32. For accounts of the new Congressional Library, see Century Mag., 53:682-694; 694-711; Atl. Mo., 85:145-158; Cosmop., 23:10-20.

33. What is the special value of the work of the Bureau of American Republics? Forum, 30:21-27.

For other questions and references on the topics in this chapter, consult Government in State and Nation, 259, 260.

CHAPTER XVI.

THE NATIONAL JUDICIARY.

ARTICLE III.

Establishment of an Independent Tribunal.--Alexander Hamilton characterized the lack of a judiciary as the crowning defect of government under the Confederation. If we consider the nature of our present government, it is easily seen that some form of independent tribunal is necessary. We have a central government exercising complete control over National affairs and foreign relations and, at the same time, the State governments with equally complete control over questions arising within their limits. If differences arise, then, as to the authority of National or State government over a given question, how are these disputes to be settled peaceably? After a brief discussion, the problem was answered in the Const.i.tutional Convention by the formation of a Federal judiciary.

Organization of the Judiciary.--The organization of the judiciary is provided for as follows: Section 1. _The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office._

In 1789 Congress provided that the Supreme Court should consist of a chief justice and five a.s.sociates. Circuit and district courts were also established. The Supreme Court at present consists of the chief justice and eight a.s.sociate justices. It holds one session annually, at Washington, beginning on the second Monday in October and continuing until about May 1.

District Courts.--The territory of the United States has been divided into judicial districts, none of them crossing State lines and each having a district court. New York and Texas have each four districts; Alabama, Pennsylvania, and Tennessee three each; Arkansas, California, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Mississippi, Michigan, Missouri, North Carolina, Ohio, Oklahoma, Virginia, Washington, Wisconsin, and West Virginia two each; and the remaining States have each a single district. Alaska and Hawaii const.i.tute a district. Generally there is a judge for each district, but a single judge is at times a.s.signed to two districts.

United States District Attorneys and Marshals.--A district attorney and marshal are appointed by the President for each district court. The United States district attorney is required to prosecute all persons accused of the violation of Federal law and to appear as defendant in cases brought against the government of the United States in his district. The United States marshal executes the warrants or other orders of the United States district court, and, in general, performs duties connected with the enforcement of the Federal laws which resemble the duties of sheriffs under State laws.

Circuit Courts and Courts of Appeals.--Established by the act of 1789, each circuit court was at first presided over by a justice of the Supreme Court and a district judge. The policy was to have as many circuit courts as there were justices of the Supreme Court. It was not until 1869 that a circuit judge was provided for each of the nine circuits. By an Act of Congress during the year 1911, in response to the agitation for a simplified Federal judicial system and greater expedition in the hearing of cases, the circuit courts were abandoned.

Judges of these courts were transferred to the circuit courts of appeals. The circuit courts of appeals consist of three judges each, any two const.i.tuting a quorum. Supreme Court judges and district judges may sit in these courts. The Court of Claims was established in 1855 and consists of a chief justice and four a.s.sociates. It holds an annual session in Washington.

Terms and Salaries of the Judges.--That the judiciary should be independent of parties and of other influences cannot be questioned.

Hence the wisdom of the provision that United States judges shall hold their offices during good behavior and shall receive a compensation for their services which shall not be diminished during their continuance in office. Judges of the United States courts are appointed by the President with the consent of the Senate.

By an Act of Congress of 1911 the salary of the Chief Justice was fixed at $15,000 per annum; that of a.s.sociate justices, $14,500; and district judges, $6000.

Jurisdiction of the National Courts.--We are next to consider the jurisdiction of the several courts that have been described.

Section 2, Clause 1. _The judicial power shall extend to all cases, in law and equity, arising under this Const.i.tution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting amba.s.sadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more States;--between a State and citizens of another State;--between citizens of different States;--between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens or subjects_. A careful consideration of this clause shows the wide extent of the powers of the United States courts. It shows also the desirability of having all such cases under their jurisdiction rather than under the authority of the State courts.

a.s.sociate Justice Brewer wrote, with reference to the influence of the decisions of the Supreme Court on the history of the country:[56] "Its decisions have always been in harmony with and sustaining the proposition that this republic is a nation acting directly upon all its citizens, with the attributes and authority of a nation, and not a mere league or confederacy of States. The importance of this cannot be overestimated, and will be appreciated by all who compare the weakness of the old confederacy with the strength and vigor of the republic under the present Const.i.tution."

[Footnote 56: "The Supreme Court of the United States," _Scribner's Mag_., 33:275,276.]

Suit against a State by a Citizen of Another State.--In the notable case of Chisholm vs. Georgia in 1793, Chisholm, a citizen of North Carolina, began action against the State of Georgia in the Supreme Court of the United States. That court interpreted the clause as applying to cases in which a State is defendant, as well as to those in which it is plaintiff. The decision was received with disfavor by the States, and Congress proposed the Eleventh Amendment to the Const.i.tution, which was ratified in 1798 and is as follows:--

_The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign state_.

Original and Appellate Jurisdiction.--Clause 2. _In all cases affecting amba.s.sadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make_.

The Supreme Court has original jurisdiction in "all cases affecting amba.s.sadors, other public ministers and consuls, and those in which a State shall be a party." Original jurisdiction means that these cases may be begun in the Supreme Court. Other cases are brought to the Supreme Court from the inferior United States courts or from the supreme courts of the States and Territories by appeal. In such cases the Supreme Court is said to have appellate jurisdiction.

Jurisdiction of the Inferior Courts.--It is difficult in brief s.p.a.ce to define minutely the province of each court The following accounts, therefore, give only a general description:--

The circuit courts of appeals are given final jurisdiction in certain cases appealed to them from the district courts, such as those arising under the patent, revenue, and criminal laws, as well as admiralty and other cases in which the opposing parties to a suit are an alien and a citizen, or are citizens of different States. There is reserved to the Supreme Court the decision of cases involving const.i.tutionality.

The circuit courts of appeals have the final decision in nearly all other cases involving merely the application of ordinary law.

The jurisdiction of the district courts embraces criminal cases, admiralty cases, bankruptcy proceedings, suits for penalties, and the like. In general, the jurisdiction of cases formerly in the circuit courts was transferred to the district courts when the circuit courts were discontinued.

The Court of Claims "shall hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, which may be suggested to it by a pet.i.tion filed therein; and also all claims which may be referred to said court by either house of Congress."[57]

[Footnote 57: Statutes at Large, 612.]

Trial by Jury.--The right of trial by jury in all criminal cases had been insisted upon by Englishmen for centuries prior to the formation of our Const.i.tution. There were two branches to the system, the grand and the pet.i.t juries. Each performed the same duties as they do now. The Const.i.tution provides in Section 2, Clause 1, that

_The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crime shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed_.

This clause was attacked by the opponents of the Const.i.tution in the State conventions. It was believed that the Const.i.tution did not furnish adequate safeguards against unjust prosecutions. Because of this agitation, Congress, in its first session, proposed Amendments V, VI, VII, and VIII, which were duly ratified by the several States.

Amendment V. _No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, etc._[58]

[Footnote 58: See Appendix A.]

Authorities have had difficulty in giving an exact definition of an infamous crime. That given by Judge Cooley is the most satisfactory. He says: "But the punishment of the penitentiary must always be deemed infamous, and so must any punishment that involves the loss of civil or political privileges."

The Grand Jury.--A grand jury consists of from twelve to twenty-three men. They sit in secret, and no accusation can be made by them without the concurrence of at least twelve. An indictment is a written accusation of an offense drawn up by a prosecuting officer on behalf of the government and laid before the grand jury. "A presentment is an accusation by a grand jury of an offense upon their own observation and knowledge, or upon evidence before them, and without any bill of indictment laid before them at the suit of government."[59] In the case of a presentment, the party accused cannot be held to trial until he has been indicted. After hearing the evidence, if the grand jury concludes that the accusation is not true, they write on the back of the bill, "Not a true bill" or "Not found." The accused, if held in custody, is then given his freedom, but he may be again indicted by another grand jury. If the grand jury decides that the accusation is true, they then write on the back of the bill, "A true bill" or "Found."

The indicted person must be held to answer the charges made against him.

[Footnote 59: Story, "Commentaries on the Const.i.tution," -- 1784.]

Rights of the Accused.--Amendment VI. _In all criminal prosecutions, 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, etc. _(See Appendix A).

Amendment VII. _In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law._

The accused must be given a public and speedy trial before an impartial jury, known as the pet.i.t jury, consisting of twelve men from the district wherein the crime was committed. The decision must be unanimous before a verdict can be rendered. The accused is given a copy of the indictment in which the nature of the accusation is clearly set forth and is granted time in which to prepare for his defense. Equally just and significant are the provisions that he shall be confronted by the witnesses against him, may compel the attendance of witnesses in his favor, and may employ counsel for his defense. In case he is not able to pay for his own counsel, the judge appoints one whose services are paid for out of the public treasury. If the verdict has been rendered by a jury and the judgment p.r.o.nounced, the accused cannot be again brought to trial on the same charge.

SUPPLEMENTARY QUESTIONS AND REFERENCES.

1. What are the names of the members of the Supreme Court at present?

Congressional Directory.

2. How large is the district in which your home is located? Who are the judges? Congressional Directory.

3. Under what conditions may a case be appealed from the supreme court of the State to the United States Supreme Court? Bryce, American Commonwealth, I, 228-230 (232-234).

4. How is the fact that conflicts between the authority of the Federal and the State courts do not arise, accounted for? Bryce, I, 234-235 (238).