Loe raamatut: «Government in the United States, National, State and Local», lehekülg 21

3. Do you think the members of the cabinet should be members of Congress? If not, ought they to be allowed seats in Congress without the right to vote?

4. Do you think the President ought ever to disregard the advice of his cabinet?

5. Give the names of five distinguished secretaries of state since 1789.

6. Washington's first cabinet was composed of an equal number of members from both political parties. Would it be wise to follow that practice?

7. Why is the secretary of the treasury required to make his annual reports to Congress while the other heads of departments make theirs to the President?

8. Would it be wise to elect the heads of departments of the federal government by popular vote as those of the state governments usually are?

9. Do you think the secretary of war ought to be an army officer as is the usual practice in Europe?

10. Why is the postmaster-generalship usually given to an active party manager?

11. Why is an importer ineligible under the law to appointment as secretary of the treasury?

12. Why is the department of state really misnamed? Would the title "department of foreign affairs" indicate more precisely the duties of the department?

13. What is your opinion of the movement to establish a department of public health?

14. Do you think the bureau of education should be raised to the rank of a department?

CHAPTER XVIII
THE FEDERAL JUDICIARY

Establishment of the federal Judiciary.– The Articles of Confederation, as we have seen, made no provision for a national judiciary. Hamilton declared this to be the crowning defect of the old government, for laws, he very properly added, are a dead letter without courts to expound their true meaning and define their operations. During the period of the Confederation, the national government was dependent for the most part, as has been said, on the states for the enforcement of its will. Thus if some one counterfeited the national currency, robbed the mails, or assaulted a foreign ambassador, there was no national court to take jurisdiction of the case and punish the offender. The only way by which he could be brought to justice and the authority of the national government upheld was through the kindly assistance of some state court, and this assistance was not always cheerfully lent nor was it always effective when tendered. Congress to be sure acted as a court for the settlement of disputes between the states themselves, but a legislative assembly is never well fitted for exercising judicial functions. In the absence of a national judiciary it proved impossible to enforce solemn treaty stipulations to which the United States was a party, a fact which led Great Britain to refuse to carry out certain of her treaty engagements with the United States.

The Judicial Power of the United States.– The framers of the Constitution decided that the jurisdiction of the national courts should be restricted to questions of national interest and to those involving the peace and tranquillity of the Union, such as disputes between the states themselves and between citizens of different states, and that the jurisdiction of all other controversies should be left to the determination of the courts of the several states. The jurisdiction of the federal courts, therefore, was made to include all cases whether of law or equity arising under the national Constitution, the laws of the United States, and all treaties made under their authority; all cases affecting ambassadors, other public ministers, and consuls; all cases of admiralty and maritime jurisdiction; all controversies to which the United States is a party; all controversies between two or more states; and between a state, or the citizens thereof, and foreign states or citizens or subjects thereof.⁹⁶

The wisdom and propriety of giving the federal courts jurisdiction over all such cases are obvious, since they involve either national, interstate, or international questions. Manifestly, the state courts could not properly be left to determine finally controversies involving the meaning or the application of provisions of the federal Constitution, laws, or treaties, since in that case they would not be what they are declared to be, namely, the supreme law of the land. Conflicting decisions would be rendered by the courts of different states, and in case of inconsistency between state constitutions and laws on the one hand and the federal Constitution, laws, and treaties on the other, the state courts would be under the temptation to uphold the validity of the former.

The Eleventh Amendment.– As originally adopted, the Constitution permitted suits to be brought in the federal courts against a state by citizens of another state or by citizens of foreign countries, and when a suit brought against the state of Georgia in 1793 by a citizen of South Carolina named Chisholm for the recovery of a debt was actually entertained by the Supreme Court, widespread popular indignation followed the decision. The authorities of Georgia felt that it was derogatory to the dignity of a sovereign state that it should be made the defendant in a suit brought by a private individual, and a demand was made that the Constitution be amended so as to prevent such "suits" in the future. As a result of this demand, the Eleventh Amendment was adopted in 1798 which declared that the judicial power of the United States should not be construed to extend to suits brought against a state by citizens of another state or of a foreign country. Nevertheless while a state cannot be made a defendant in a federal court at the instance of a private individual of another state, the federal courts may entertain jurisdiction of suits between a state and a citizen of another state provided the state is the plaintiff.

How Cases "Arise."– A case "arises" under the Constitution, laws, or treaties whenever a suit is filed involving a right or privilege thereunder. Until a case "arises," that is, until it comes before the courts in due form, they will take no notice of it. When President Washington in 1793 sought the opinion of the Supreme Court on certain points involving our obligations to France under the treaty of alliance of 1778 it declined to answer his question, holding that it could give opinions only in cases properly brought before it.

The Regular Federal Courts.– The Constitution declares that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. The Supreme Court, therefore, is the only federal tribunal which owes its existence to the Constitution, the others being created by statute. Even as to the Supreme Court Congress has considerable power of control, since it determines the number of judges of which it shall be composed, and the amount of their compensation. But it cannot remove any judge except upon impeachment, or reduce his compensation after he has once been appointed.

The Supreme Court is at present composed of one Chief Justice and eight associate justices. It holds its sessions in the city of Washington from October to May of each year. Practically all the cases which it hears are those appealed from the lower courts. When a case has been argued, the court holds a consultation at which the points involved are considered and a decision is reached. The Chief Justice then requests one of his associates to prepare the opinion of the court, or he may prepare it himself, after which it is scrutinized by the court at a second conference and approved. Any member of the court who disagrees with the majority may file a dissenting opinion, a right frequently taken advantage of. The concurrence of at least five of the nine judges is necessary to the validity of a decision, and as a matter of fact, many important decisions have been rendered in recent years by a bare majority of the court. The opinions rendered are published as the United States Reports, of which there are now more than 200 volumes. They constitute the great authoritative source of the constitutional law of the United States, are studied by lawyers and judges, and are relied upon by the courts as precedents for the decisions of future cases involving similar points of law.⁹⁷ There is a reporter who arranges and publishes the opinions, a clerk who keeps the records, and a marshal who attends the court, preserves decorum, and enforces its orders.

The Circuit Courts of Appeals.– Next below the Supreme Court are the circuit courts of appeals, nine in all – one for each of the judicial circuits into which the country is divided.⁹⁸ These courts were created by act of Congress in 1891 to relieve the Supreme Court from an accumulation of business that rendered the prompt decisions of cases impossible, the docket of the court having become so overcrowded that it was about three years behind with its business. The act creating the circuit courts of appeals, however, did not provide an additional class of judges to hold these courts, but enacted that each of them should be held by three judges assigned for the purpose from among the judges of the circuit. The judges of each circuit include one justice of the Supreme Court assigned to the circuit, two or more circuit judges appointed for the circuit, and a considerable number of district judges, each appointed for a district in the circuit. Most circuit courts of appeals are held by three circuit judges; but occasionally by two circuit judges together with a district judge or the Supreme Court justice. The circuit courts of appeals have only appellate jurisdiction, that is, they hear and determine only cases appealed from the lower courts, and their decisions are final in most cases. This relieves the Supreme Court of all but the most important cases, and enables it to give more attention to the cases before it and to dispatch its business more promptly.

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.