CHAPTER XXVI THE JUDICIARY HAMILTON characterized the lack of a judiciary as the crowning defect of government under the Confederation. 66 Laws," he wrote, "are a dead letter without courts to expound and define their true meaning and operation." Judicial powers were vested in the Continental Congress or in the agents of that body. The conviction that the Federal Judiciary should constitute one of three independent parts of the government was general in the Constitutional Convention, and after a brief discussion, this was provided for as follows: Lack of a judiciary under the Confedera tion. The No. 22. Federalist," section 1. The judicial power of the United States shall be vested Article III, 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. act of 1789. Congress carried out the provisions of this section by passing the Judiciary act of 1789. This act provided Judiciary that the Supreme Court should consist of a Chief Justice and five Associates. District Courts and Circuit Courts were also created by it and their functions as inferior courts were defined. The Supreme Court, at present, consists of the Chief Justice and eight Associate Justices. It holds one ses- The Supreme sion annually, at Washington, beginning on the second Court., Monday in October and continuing until about May 1st. District Congres sional Directory, 1900, 266. United States District Attorneys and Marshals. Circuit The territory of the United States has been divided into judicial districts, none of them crossing State lines and each having a District Court. There are at present seventy-two districts. Alabama, Texas, Tennessee, and the Indian Territory have each three districts; Pennsylvania, Virginia, Georgia, Florida, Mississippi, Louisiana, Ohio, Michigan, Illinois, Wisconsin, Iowa, Missouri, Arkansas, and California have two districts each; and the remaining States have each a single district. New Mexico and Oklahoma constitute a district, and also Alaska and Arizona. Generally there is a judge for each district, but a single judge is now assigned to two districts in Mississippi and another to two districts in Tennessee. 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 Marshals execute the warrants or other orders of the United States District and Circuit Courts and, in general, perform duties connected with the enforcement of the Federal laws which resemble the duties of sheriffs under State laws. Circuit Courts are next higher than the District Courts in the series of Federal Courts. 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 has been to have as many Circuit Courts as there are Justices of the Supreme Court. It was not until 1869 that a Circuit Judge was provided for each of the nine circuits. The area of a circuit was determined by grouping several districts together; thus, the seventh circuit includes the districts of Indiana, Northern and Southern Illinois, Eastern and Western Wisconsin. Circuit Courts may be held by a Judge sional Di of the Supreme Court assigned to that circuit, by a Circuit Judge, or by the District Judge of the district in which the court is held, or by any two of these or by all of them sitting together. The law requires that the Justice of the Supreme Court shall attend court in each district of his circuit at least once in two years. Each of the circuits, the first and the fourth being excepted, has now (1901) three Circuit Judges. The increase in Congresthe number of cases to be tried before the Circuit rectory, Courts made the appointment of additional Circuit Judges necessary, and by the law of 1891, also, nine Circuit Courts of Appeals were established for each of which an additional Circuit Judge was provided. The Circuit Courts of Appeals consist of three Judges each, any two constituting a quorum. The Judges eligible to sit in one of these courts are: the Supreme Court Judge assigned the Circuit, the Circuit Judges, and the District Judges of the Circuit. 56th Con gress, First 266, 267. Session, Circuit Courts of Appeals. Claims. The Court of Claims was established in 1855 and con- Court of sists of a Chief Justice and four Associates. It holds an annual session in Washington. 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. The Constitution states that Judges of the Supreme Court shall be appointed by the President with the consent of the Senate. It has been interpreted that the Judges of the inferior courts are to receive their appointments in like manner. The salaries of the Judges have been increased at different times. The Chief Justice now receives $10,500 per annum; the Associate Justices $10,000 each; Cir Terms and salaries of Section 2, clause 1. Section 2, clause 2. Bryce, American Commonwealth, I, 237-240. cuit Judges $6,000; and District Judges $5,000. Any Judge who has reached the age of seventy years, and has served ten years, may retire on full pay for life. We are next to consider the jurisdiction of the several courts that have been described. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;—to all cases affecting Ambassadors, 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. In all cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be 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. Speaking of the position of the Supreme Court in our judicial system, Mr. Bryce says: "No feature of the government of the United States has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the ark of the Constitution." A careful consideration of clause 1 of this section shows the wide extent of the powers of the United the judicial power. States Courts. It shows too the desirability of having Extent of all such cases under their jurisdiction rather than under the authority of the State courts. This jurisdiction applies to two classes of cases. One class has to do with the nature of the questions involved, as in all those cases arising out of the Constitution, laws, and treaties. of the United States, and admiralty and maritime cases. The other class of cases arises because of the parties to the suits, as, Ambassadors, Consuls, two or more States, citizens of different States, etc. The provisions here made, that the judicial power shall extend to controversies between a State and citizens of another State, and between a State and the citizens or subjects of a foreign state, were doubtless intended to apply only to suits in which a State should attempt, as plaintiff, to secure justice in a Federal Court. But, contrary to expectation, suits were early brought against some of the States by citizens of other States to enforce the payment of debts and other claims. 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 XIth Amendment to the Constitution, which was ratified in 1798 and reads as follows: State as XI. The judicial power of the United States shall not be con- Amendment strued 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. The Supreme Court has original jurisdiction in "all cases affecting Ambassadors, other public ministers, and |