Government in the United States, National, State and Local

Former Circuit Courts.– Prior to 1911 next below the circuit courts of appeals were the circuit courts, which were held in the different districts within the circuit, either by a circuit judge or by the justice of the Supreme Court assigned to the circuit, or by a district judge, or by the three, or any two of them, sitting together. In 1911 the circuit courts were abolished and their jurisdiction conferred on the district courts. The circuit judges, however, were retained and will henceforth sit in the circuit courts of appeal.

The District Courts.– The lowest grade of federal court is the district court, held in each of the districts (about eighty) into which the country is divided. In some cases a state constitutes one district; in other cases a state is divided into two, three, four, or five districts. Usually there is one judge for each district, though in a few cases there are several judges for a single district, each holding court separately.

The jurisdiction of the district court embraces civil and criminal cases under the laws of the United States – such as suits for the infringement of patents and copyrights, admiralty cases, bankruptcy proceedings, revenue cases; and offenses against the United States revenue laws, laws against counterfeiting, the public land laws, the pure food laws, the postal laws, and the interstate commerce laws. Controversies between citizens of different states may also be brought to this court.99

In most cases appeals may be taken from the decisions of the district courts to the circuit courts of appeals or to the Supreme Court.

Federal Attorneys, Marshals, and Clerks.– In each of the federal judicial districts, there is a United States attorney who prosecutes violations of the federal laws in his district. There is also in each district a United States marshal who bears somewhat the same relation to the federal court that a sheriff does to a state court. He executes the processes of the court, arrests offenders, and performs other ministerial functions for the court. In each district there is a clerk who has custody of the seal of the court and keeps a record of its proceedings, orders, judgments, etc. The marshal and attorney are appointed by the President, but the clerk is chosen by the court itself.

In each district, also, the court appoints a number of United States commissioners who are empowered to issue warrants for arrest, take bail, determine whether accused persons shall be held for trial, and perform other duties somewhat similar to those discharged by justices of the peace under the judicial system of the state.

The Regular Federal Judges.—Appointment.– All federal judges are appointed by the President, by and with the advice and consent of the Senate. The judges of most of the states, as we have seen, are now chosen by popular election, but that method did not commend itself to the framers of the federal Constitution. The existing method of appointing federal judges has given general satisfaction, and with remarkably few exceptions, the persons appointed to the federal bench have been men of integrity and fitness.100

The term for which all the regular federal judges are appointed is good behavior. This is virtually for life, since they cannot be removed except by impeachment.101 All other officers of the United States are appointed for definite terms, usually for four years. Except in a few states, the state judges are elected for definite terms ranging from two years to twenty-one years (p. 113). The framers of the federal Constitution, however, were deeply impressed with the advantages of a judiciary possessing the qualities of permanency and independence, and they wisely provided that the judges should hold their offices so long as their official conduct was above reproach.

Compensation.– The Constitution declares that the judges shall receive at stated times a compensation for their services which shall not be diminished during their continuance in office. As we have seen, the compensation of the President can neither be increased nor diminished during the time for which he is elected, but the prohibition in the case of the judges applies only to a reduction of their salaries. Increases are permitted to be made at any time. The compensation now allowed the chief justice of the Supreme Court is $15,000 a year, and the associate justices $14,500, amounts which are low in comparison with the salaries of the highest English judges, who receive $25,000 a year. The circuit judges receive $8,500 a year, and the district judges $7,500.

Any judge of a United States court having held his commission ten years and having attained the age of seventy years, may retire from the bench and receive the same salary during the rest of his life that was payable to him at the time of his resignation. Few judges do retire, however.

Power of the Supreme Court to Declare Laws Unconstitutional.– An important power of the Supreme Court for which there is no direct authority in the Constitution, is that of declaring acts of Congress which are in conflict with the Constitution, null and void and of no effect. This power was first exercised by the Supreme Court in 1801 in the famous case of Marbury v. Madison. Congress had passed an act giving the Supreme Court original jurisdiction in certain cases where the Constitution says it should have appellate jurisdiction, and when the act came before the court for enforcement it declined to be bound by it. The great chief justice, John Marshall, wrote the opinion of the court which held the act of Congress null and void. His argument, in brief, was that the Constitution is the supreme law of the land and the judges are bound to give effect to it. When, therefore, the court is called upon to give effect to a law of Congress which is clearly in conflict with the higher law of the Constitution, it must give the preference to the latter, otherwise the declaration in favor of the supremacy of the Constitution would have no meaning. Down to 1913 the Supreme Court had declared thirty-three acts of Congress, or parts of such acts, unconstitutional.

Power to Declare State Laws Unconstitutional.– Laws passed by the state legislatures, ordinances of municipal councils, and even the provisions of state constitutions themselves may be declared null and void by the Supreme Court in case they are in conflict with the national Constitution or the laws and treaties made in pursuance thereof. It has already been pointed out that appeals may be taken to the federal Supreme Court from the highest courts of a state whenever a right, title, or privilege under the federal Constitution is involved and the state court has decided against the right or privilege claimed. Thus where one is prosecuted and convicted under a state law or provision of a state Constitution which he claims is contrary to some provision in the federal Constitution or laws, he has a right to appeal to the United States Supreme Court and have the question of the constitutionality of the state law finally determined there. This is a necessary consequence of the supremacy of the federal Constitution and laws over those of the states. More than 200 acts of state legislatures have been pronounced null and void by the United States Supreme Court.102

Sometimes inferior federal courts declare acts of Congress and of the state legislatures to be unconstitutional, but in all such cases an appeal may be taken to the Supreme Court for final review.

Special Courts of the United States.– In addition to the three classes of United States courts, already described, several tribunals of a special or temporary character have been created to hear and determine particular classes of controversies. Some of these courts are held by judges who are appointed for definite terms.

The Court of Claims was created in 1855 to pass upon claims against the government. It consists of a chief justice and four associate justices who serve during good behavior. It is a well-established principle of public law that a sovereign state cannot be sued against its will. Before the creation of this court claims against the government had to be considered by Congress, a body which aside from being ill fitted for the hearing of such cases, was overburdened by the necessity of considering the large number of claims annually laid before it. The government now allows itself to be sued in this court on most claims of a contractual nature, but the judgments of the court cannot be paid until Congress appropriates the money for their payment, and hence the court cannot issue an execution to enforce its findings. At each session of Congress, an appropriation is made to satisfy any judgments made or which may be made by the court. Appeals are allowed to be taken from the court of claims to the Supreme Court on questions of law. Among the more important classes of claims that have been adjudicated by this court were the French Spoliation claims, and Indian depredation claims, both involving numerous claims and very large amounts in the aggregate.

In 1906 a United States court was established in China to exercise jurisdiction in certain cases previously exercised by the consuls. It is held by a single judge appointed by the President for a term of four years.

The tariff law of 1909 created a United States Court of Customs Appeals, consisting of a presiding judge and four associates, to hear appeals from the board of general appraisers in cases involving the construction of the law and facts respecting the classification of imported articles and the rate of duty imposed thereon.

In 1910 a Commerce Court was created, to decide appeals from the orders of the Interstate Commerce Commission; but in 1913 this court was abolished.

In the District of Columbia Congress has created two courts, with judges appointed to hold office during good behavior: the supreme court of the district, consisting of a chief justice and five associate justices; and the court of appeals, consisting of a chief justice and two associate justices. Appeals may be taken from the former to the latter, whose decisions in some cases are reversible by the Supreme Court of the United States. Appeals may also be taken from the decisions of the commissioner of patents to the court of appeals of the District of Columbia.

In each of the territories there are supreme and district courts established by Congress in pursuance of its power to provide for the government of the territories, but they are not considered as a part of the judicial system of the United States, although the judges are appointed by the President.103

Constitutional Protections in the Federal Courts.– The Constitution contains a number of provisions intended to protect accused persons against unauthorized prosecutions in the federal courts, as well as against arbitrary procedure in the course of the trial. As the Constitution originally stood, it contained few provisions of this kind; and this fact constituted one of the most serious objections urged against the ratification of that instrument. In consequence of this the first ten Amendments were adopted in 1790, and of these no less than five relate to the rights of accused persons on trial in the federal courts.

Most important of all, perhaps, the Sixth Amendment declares that in criminal prosecutions (in the federal courts) the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed; that he shall be informed of the nature and cause of the accusation; that he shall have the right to be confronted by the witnesses against him; that he shall have compulsory process for obtaining witnesses in his favor; and that he shall have the assistance of counsel for his defense.104

The Fifth Amendment protects the accused from prosecution in capital cases or cases involving infamous crime except upon indictment by a grand jury. Some of the states, as we have seen, have abolished the grand jury, and provided for prosecutions in their courts without the intervention of such an agency, but no person may be prosecuted in a federal court for a serious crime until he has been held for trial by a grand jury. The same amendment also forbids the trial of a person a second time for the same offense, if he was acquitted on the first trial; declares that he shall not be compelled to testify against himself; that he shall not be deprived of life, liberty, or property without due process of law; and that private property shall not be taken for public use without just compensation.

The Fourth Amendment declares among other things that no warrant for arrest (by the federal authorities) shall be issued except upon probable cause, supported by oath or affirmation and particularly describing the person to be seized. This provision is designed to prevent arbitrary arrests of persons on mere suspicion. It prohibits general search warrants such as were commonly used by the British authorities in the colonies prior to the outbreak of the Revolution and which were popularly known as "writs of assistance." Such warrants did not mention the name of the person to be arrested but permitted the officer to insert any name in the warrant and arrest whomsoever he might choose.

The Eighth Amendment declares that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. The purpose of the first provision is discussed on p. 119. The purpose of the other two prohibitions is to prevent the old severities of the penal code that were common two hundred years ago.

Treason.– Among the crimes in the prosecution of which judges were frequently arbitrary and which were punished with undue severity, was that of treason. Treason has always been regarded as the highest crime known to society, because it seeks the overthrow or destruction of the government itself. In earlier times, judges frequently construed offenses to be treasonable which were not declared so by the laws. This was known as constructive treason. To prevent them from construing the existence of treason where it really did not exist, parliament therefore passed a statute during the reign of Edward III defining the offense with more or less precision, and this definition in substance was incorporated in the Constitution of the United States, This provision declares that treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort. The Supreme Court in interpreting this provision has ruled that in order to constitute treason there must be an actual levying of war or an assembling of persons for the purpose of making war; that a mere conspiracy to subvert the government by force is not treason, but after the war has once begun, all those who perform any part, however minute or remote, or who give aid and comfort to the enemy, are traitors and as such are liable to the penalties of treason. To protect persons accused of treason against conviction upon the testimony of a single witness, the Constitution requires the testimony of two witnesses to the act, or confession in open court, to convict. Congress is authorized to prescribe the punishment of treason, but the Constitution declares that no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. Under the old law, a person convicted of treason was not only put to death in a barbarous manner, but his blood, was considered as "corrupted" or "attainted," so that as a matter of course, without any decree of the court to that effect, his children could not inherit property or titles through him. Thus the innocent offspring of the traitor were punished for the offense of the parent. The provision of our Constitution places the punishment on the offender alone.

References.– Andrews, Manual of the Constitution, pp. 201-223. Baldwin, The American Judiciary, ch. ix. Beard, American Government and Politics, ch. xv. Bryce, The American Commonwealth (abridged edition), chs. xxi-xxii. Harrison, This Country of Ours, chs. xx-xxi. Hart, Actual Government, ch. xvii.

Documentary and Illustrative Material.– 1. The Congressional Directory, which contains a list of the higher judges and the judicial districts. 2. Specimen copies of decisions of the Supreme Court. These may be obtained from the clerk of the Supreme Court at Washington.

Research Questions

1. Name the Chief Justices of the United States Supreme Court from 1789 to the present time.

2. Name the present members of the Supreme Court and give the date of the appointment of each. (See Congressional Directory).

3. In which one of the nine judicial circuits of the United States do you live? Who is the Supreme Court justice assigned to the circuit? Who are the circuit judges of the circuit?

4. Who is the United States district judge for your district? At what places in your state are United States district courts held?

5. Who is the United States attorney for your district? The United States marshal?

6. What is meant by the terms "constitutional" and "unconstitutional" as applied to an act of Congress? Do you think the courts should be allowed to declare a law unconstitutional?

7. Do you think it is a wise provision which allows federal judges to serve during good behavior?

8. It has been proposed by a well-known public man that federal judges should be elected by the people. What is your opinion of the proposition?

9. Do you think the present salary allowed justices of the Supreme Court large enough to attract the best judicial talent?

10. Do you think the Supreme Court is ever justified in reversing its own decisions, or should it stand by the precedents?

11. What is the meaning of the term obiter dicta as applied to a judicial opinion?

12. Do you think it is a wise practice for judges who disagree with the majority of the court to file dissenting opinions?

13. A recent President took occasion to criticize publicly a federal judge for a decision which he rendered in a "trust" case. Do you think judges should be criticized for their decisions?

14. Are juries ever made use of in federal courts? If so, when?

15. Why have federal judges been criticized for issuing injunctions?

16. When may an appeal be taken from a state court to a federal court?

17. The Supreme Court has always refused to decide "political" controversies. What is a "political" as opposed to a "legal" controversy? Give examples.

CHAPTER XIX

GOVERNMENT OF THE TERRITORIES AND DEPENDENCIES

Power of Congress over the Territories.– The Constitution expressly confers upon Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. In dealing with the territories the powers of Congress are general or residuary in character, whereas when it legislates for that part of the country which has been erected into states, its powers are specifically enumerated. Congress, therefore, may establish practically any form of government in the territories that it chooses. It may, if it wishes, set up therein a military government or it may establish civil government with such limitations and exceptions as it may wish. In the latter case it may allow the inhabitants a legislative assembly for purposes of local legislation, or Congress may legislate directly for them itself. And in case it permits the inhabitants to have a legislative assembly of their own and to enact their own laws, Congress may veto or modify any law passed by such legislature. Indeed, says the Supreme Court, Congress may make valid an invalid act passed by a territorial legislature as well as declare invalid a valid act passed by it.

Does the Constitution Extend to the Territories?– A subject much discussed, especially at the time of the acquisition of Porto Rico and the Philippines, was whether such provisions of the Constitution as were applicable extended of their own force to new territories immediately upon the establishment of American sovereignty over them; that is, whether the Constitution "follows the flag" or whether its provisions apply only when extended by act of Congress. One party asserted that such provisions go wherever the sovereignty of the United States goes, that the government cannot be carried to any new territory unless accompanied by the Constitution from which it derives its authority, and that Congress has no power to withhold such provisions as are applicable. The other party maintained that the Constitution was established only for the people of the United States; that whenever new territories have been acquired, Congress has extended such provisions as it saw fit; and that Congress is unlimited as to its power in dealing with the inhabitants of such territories. The Supreme Court in the famous Insular Cases, decided in 1900 and 1901, upheld the latter view and ruled that for all practical purposes the territories of the United States are completely subject to the legislative authority of Congress, and that it is not even restricted by those provisions of the Constitution which were adopted for the protection of individual liberty. In practice Congress has always extended to the domestic territories such provisions of the Constitution as were applicable, thus putting the inhabitants upon the same footing as those of the states so far as the enjoyment of civil rights are concerned, but not as to political rights. So far as the insular territories are concerned, it has also extended most of the provisions relating to civil rights, though in the case of the Philippines a few safeguards such as the right of indictment by grand jury, trial by jury, and the right to bear arms have been withheld.

The Origin of the Territorial System.– Before the Constitution was adopted, Congress had acquired by cession from certain of the original states a vast domain of territory north of the Ohio River, and later it acquired a considerable domain lying south of the Ohio (p. 159). One of the conditions upon which the territory north of the Ohio was ceded, was that Congress should form the territory into distinct republican states which should be admitted to the Union on an equal footing with the old states. It was felt, however, that the territory in question should be put through a sort of preparatory stage before being erected into states; that is, it should be held in a state of dependency until the population was sufficiently numerous to maintain a state government and the inhabitants had acquired sufficient political capacity to manage their own public affairs.

The Northwest Territory.– By the famous Ordinance of 1787, as reënacted and slightly modified two years later (after the adoption of the Federal Constitution), Congress provided a scheme of government for the northwest territory which was in force for many years. The Ordinance provided for two grades of government: one for the territory before its population should amount to 5,000 inhabitants; the other for the territory thereafter. The principal difference was that in the former case the territory was to have no local legislature of its own, while in the latter it was to have a legislative assembly. The scheme of government provided in the beginning consisted of a governor, a secretary, and three judges, appointed by the President. Although no legislature was provided, the governor, secretary, and judges were empowered, not to make new laws, but to select such laws from the statutes of the old states as were suitable.

When the population had reached 5,000 inhabitants, the territory was given the second grade form of government, that is, it was allowed a local legislature, the lower house of which was elected by the inhabitants on the basis of a restricted suffrage, the upper house or council to be appointed by the President from a list nominated by the lower house. The territory was now allowed to send a delegate to Congress with a right to a seat in that body, but no right to vote.

The scheme of government thus provided for the northwest territory became the model for the later territorial governments. It was introduced into the southwest territory and later to the territory acquired west of the Mississippi River.