The American Judiciary Part 8

The Circuit Court of Appeals is held by three judges, two const.i.tuting a quorum. Those generally sitting are the Circuit Judges belonging to the circuit. The Justice of the Supreme Court a.s.signed to the circuit may also sit, and any of the District Judges in the circuit can be called in.

Except in a very limited cla.s.s of cases, the decision of this court is final, unless the Supreme Court, on special application, should think the questions involved to be of sufficient importance to require a review, when it can order the record sent up to Was.h.i.+ngton for that purpose. The Circuit Court of Appeals can also of its own motion certify up any questions in a cause to the Supreme Court for its instructions before making a final disposition of it.

The Supreme Court has direct appellate jurisdiction over the District and Circuit Courts in cases turning on the limits of their jurisdiction, in prize causes, in equity suits by the United States under the statutes regulating inter-State commerce, and in all cases involving the construction or application of the Const.i.tution of the United States, or of a treaty. Appeals also lie to it from judgments of conviction in the Circuit Court for capital offenses.[Footnote: 29 U. S. Statutes at Large, 492; 32 _ib_. 823.]

The consequence of the Circuit Courts, which had been impaired by the practical withdrawal of the justices of the Supreme Court, was further lessened by the creation of the Circuit Court of Appeals. Before that their judgments in most cases were final.

In criminal causes there was no appeal, and in ordinary civil causes none after 1875, unless the matter in controversy exceeded $5,000 in value. This left the life, liberty and property of the citizen top much in the hands of one man; and the people, led by the bar, insisted on stripping him of powers so liable to abuse.[Footnote: See an attack on a similar state of things existing in Louisiana at one time in the District Court, by Edward Livingston in 1826. Hunt, "Life of Edward Livingston,"

302, 303.] No sovereign can be sued in his own courts without his consent. The United States consent to be sued on most claims against them of a contractual nature, which they may dispute.

For this purpose a Court of Claims has been established at Was.h.i.+ngton, consisting of a Chief Justice and four a.s.sociates.

Originally it was little more than an administrative bureau; but by successive amendments of the law it has come to have fully a judicial character,[Footnote: United States _v._ Klein, 13 Wallace's Reports, 128, 144; 24 U. S. Statutes at Large, 505.]

except in one particular. It is a general principle that a court will make no decree that it cannot enforce. The Court of Claims cannot issue an execution to enforce its judgments. Money can be drawn from the treasury of the United States only to meet appropriations made by Congress. An appropriation is made by each Congress of a gross sum to satisfy any judgments that have been or may be rendered by the Court of Claims; but should this provision be omitted in any appropriation bill the judgments of the Court of Claims could not be collected.

Concurrent jurisdiction in these respects is given to the District Court of claims not exceeding $1,000 in amount, and to the Circuit Court of those exceeding $1,000 and not exceeding $10,000.

Aliens can sue in the Court of Claims when their own country accords a similar privilege in its courts to citizens of the United States.[Footnote: U. S. Revised Statutes, -- 1068.]

This court has also a peculiar kind of advisory jurisdiction.

Congress, or any committee of either house, can refer to it any questions of fact which may have come before them. The judges must then ascertain the facts and report them back. The head of any of the great executive departments may, in like manner, in dealing with any claim against the government, if the claimant consents, refer any uncontroverted questions, either of fact or law, to the court, which must then report back to him its findings and opinion. This does not take the form of a judgment, for there is no case and no parties are before it. It is a mere expression of opinion, and stands on much the footing of the report of a committee of inquiry to a superior authority.[Footnote: 22 U. S. Statutes at Large, 485; 24 _id._, 507.]

A temporary court is also in existence called the Court of Private Land Claims. This is composed of a Chief Justice and four a.s.sociate justices, and has jurisdiction to hear and determine claims of t.i.tle to land as against the United States, founded on Spanish or Mexican grants in New Mexico, Arizona, Utah, Nevada, Colorado or Wyoming. An appeal from the final judgment is given to the Supreme Court of the United States.[Footnote: 26 U. S. Statutes at Large, 854.]

The District of Columbia has a special judicial establishment.

There is a court of general jurisdiction known as the Supreme Court of the District of, Columbia, and appeals from its judgments lie to the Court of Appeals of the District of Columbia. This is composed of a Chief Justice and two a.s.sociate justices, and its judgments are reviewable by the Supreme Court of the United States, if $5,000 is involved, or the validity of an authority exercised under the United States or a treaty or Act of Congress is in question. An appeal also lies to it from decisions of the Commissioner of Patents as to claims of a right to a patent.[Footnote: 27 U. S. Statutes at Large, 434.]

When new territory comes by conquest or cession permanently under the jurisdiction of the United States, it belongs to the President, in the exercise of his executive power, to see to its proper government until Congress makes other provision. He can inst.i.tute courts there for that purpose, or if he finds courts created by the former sovereign in existence, can expressly or impliedly permit them to continue in the exercise of judicial functions.

Each fully organized Territory has a set of local courts and one Supreme Court to which appeals can be taken and the judgments of which, in cases of large pecuniary magnitude or great legal importance, can be reviewed by the Supreme Court of the United States. These territorial courts do not exercise what is known in the strict sense and designated in the Const.i.tution as "the judicial power of the United States." They are created to meet temporary conditions, and with judges whose commissions run only for a few years. Such courts are instruments through which Congress exercises its power of regulating the territory of the United States. They act judicially. They have judicial power.

But the source of this power is not the clause in the Const.i.tution under which the judicial power of the United States is defined.[Footnote: American Insurance Co. _v._ Canter, 1 Peters' Reports, 511.] It is therefore not necessary to confine such courts strictly to the consideration of judicial business.

In the organization of our earliest Territories the judges were given legislative functions, and while this was originally due to the terms of the Ordinance of 1787, it was confirmed by various Acts of Congress after the adoption of the Const.i.tution of the United States.

The Philippines are governed under an Act of Congress by a commission acting under the supervision of the Secretary of War.

The organization of courts established by Spain has been in substance preserved. The Spanish law which was in force there was expressed in codes mainly founded on those framed for France under Napoleon I. In 1901, the Spanish code of civil procedure was supplanted by one prepared by a member of the Philippine Commission, and which is now familiarly known by his name as the Ide Code. In substance, it establishes the mode of proceeding in civil cases which is known in the United States as code pleading.

Trial by jury has not been introduced into the Philippines either in civil or criminal causes, and need not be.[Footnote: Dorr _v._ United States, 195 U. S. Reports, 138.]

In criminal causes, the Spanish system was originally retained, allowing either party, the United States or the defendant, to appeal from the judgment of the court of first instance to the Supreme Court of the islands and have there a new hearing both as to fact and law. This, however, so far as concerns an appeal by the government, was held to be contrary to the Act of Congress under which it was const.i.tuted.[Footnote: Kepner _v._ United States, 195 U. S. Reports, 100.]

The courts of the United States are generally provided with an officer styled a marshal. He executes their process, attends their sessions, and exercises in general the functions which belong to a sheriff as respects State courts.

Each District Court appoints a convenient number of District Court Commissioners, who issue warrants of arrest on criminal proceedings, take bail, inquire whether there is probable cause to hold the accused to answer to the charge in court, and discharge in such respects substantially the functions generally belonging to justices of the peace in the States.

CHAPTER X

RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES AND OF THE UNITED STATES JUDICIARY TO THE STATES

Every judicial officer of a State is required by the Const.i.tution of the United States to bind himself by oath or affirmation to support it, and this obligation compels him to respect every Act of Congress made in pursuance of the Const.i.tution, and every treaty made under the authority of the United States, as, in case of conflict, superior to anything in his State Const.i.tution or laws.

The courts of the national government are complementary to those of the States. Both belong to one judicial system. Rights arising under the laws of the United States may be enforced by a State court as well as by a federal court, and rights arising under a State law by a federal as well as by the State court, unless in cases where there is some special restriction upon its jurisdiction. Such a restriction may be imposed by either government, as respects any right which it creates.

The judicial power of the United States extends only to certain cla.s.ses of cases. As to some of these it is necessarily exclusive: as to any of the rest Congress can make it such.[Footnote: The Moses Taylor, 4 Wallace's Reports, 411, 429.] On the other hand Congress may a.s.sume to invest a State court with power to dispose of a certain matter of federal right, and the State may decline to permit the exercise of such a power.

The United States cannot in that manner compel the courts of another government to do their bidding. It would tend to throw on the States a greater burden than they might deem necessary or proper. They provide courts to meet the wants of those looking to their own sovereignties for justice. Thus, although nothing could seem more anomalous than for one sovereignty to confer citizens.h.i.+p in another, the laws of the United States allow naturalization to be obtained by proceedings in State courts.

Most aliens who become citizens of the United States do so in that way, because the State courts are more easy of access. But a State can at any time restrict or forbid the use of its courts for such a purpose.[Footnote: Stephens, pet.i.tioner, 4 Gray's (Ma.s.s.) Reports, 559; State _v._ Judges, 58 N. J. Law Reports, 97; 32 Atlantic Reporter, 743.]

The federal courts can lend their aid to carry into effect a right arising wholly from the statute of a State, even if it affect maritime interests and must be enforced, if at all, through an admiralty court. Admiralty suits, it is true, can only be brought in the courts of the United States, but that is the very reason why, if such a suit gives the only remedy, jurisdiction of it should be entertained in the only sovereignty competent to give relief.[Footnote: The Lottawanna, 21 Wallace's Reports, 558, 580.]

There are many civil cases which can be brought, at the option of the plaintiff, either in a court of the United States or in a State court. Some of these, if brought in a State court, the defendant can, at his option, allow to remain there or remove for trial into the Circuit Court of the United States. Criminal prosecutions by a State may also be removed, under certain conditions, to the Circuit Court of the United States, when the defense is one arising under the laws of the United States.

In any cause tried in a State court, if the decision turns on a claim of right, set up under the Const.i.tution, laws or treaties of the United States, and is against its validity, the losing party, if unable to secure its reversal by appeal to a higher court of the State, can ask such relief from the Supreme Court of the United States.

It will be observed that it is the losing party only who has this remedy. If the State court decides, however erroneously, that the claim of a federal right is well grounded, this is conclusive as respects the controversy in that suit. If all State courts in which the validity of an unconst.i.tutional Act of Congress was contested should uphold it, the courts of the United States would be powerless to right the wrong, unless they were called upon to enforce the statute in some suit brought before them for original trial.

The obvious object of the limitation is to preserve so far as is possible the sovereignty of the States. The courts of the nation are to set aside acts or judgments flowing from that only in case of necessity and to preserve rights flowing from the sovereignty of the nation. For the same reasons, resort can be had to the Supreme Court of the United States only after every right of review given by the laws of the State has been exhausted.

Usually this requires one who loses his cause in a trial court to take it up to the State court of last resort. Where, however, this is not permitted by the State law, he may ask for a writ of error from the Supreme Court of the United States to whatever court was the highest to which he was able to remove it; and if, by the State law, he was unable to appeal at all, then the writ will go to the trial court. One of the greatest of Chief Justice Marshall's great opinions was rendered on a writ of error to the quarterly session court for the borough of Norfolk in Virginia, held by the mayor, recorder, and aldermen of the borough.[Footnote: Cohens _v._ Virginia, 6 Wheaton's Reports, 264.]

It was the opinion of Hamilton that an appeal might be given from the State courts to the inferior federal courts, in case of a decision turning on a right claimed under the Const.i.tution or laws of the United States.[Footnote: _Federalist_, No. Lx.x.xII.] This is probably true, but Congress has wisely forborne to make any such provision. It imposes a strain sufficiently great on the sovereignty of a State to subject the judgments of its court of last resort to reversal by the Supreme Court of the nation.

The power to declare a statute void because inconsistent with const.i.tutional provisions belongs to every court in every case in which such a statute is relied on either to support the action or in defense.[Footnote: See Chap. VII.] It therefore belongs, as respects a State statute which may be attacked as inconsistent with the Const.i.tution of the United States, to the trial courts of the United States as well as to the Supreme Court. This makes it possible for a District or Circuit Court of the United States to adjudge the statute of a State in which it sits to be unconst.i.tutional and void, although it may have been declared valid by a judgment of the highest court of the State, from which no appeal to the Supreme Court of the United States was ever taken.

However derogatory to the sovereignty of the States the possession of such authority may seem and be, it is evidently a necessary feature of our dual system of government. In some way it was indispensable to provide for maintaining the full powers of the United States against encroachments by State legislation, and also for enforcing all the special limitations on the powers of State legislation which the Const.i.tution of the United States lays down. This could have been done effectually in but two ways: either by giving to Congress or to the President a veto upon State laws; or by leaving the right of control to lie dormant until a necessity for exercising it should arise, and then putting it in the hands of the judiciary. The latter method was clearly open to the least objection.[Footnote: See Hamilton's discussion on this point in the _Federalist_, No. Lx.x.x.]

Jefferson maintained that there was a third, and one which the Const.i.tution expressly provided. This was the calling of a convention of all the States for proposing amendments to it. If, he said, a State on the one hand by her highest authorities a.s.serts a certain line of action to be within her powers, and the United States by their highest authorities deny it, "the ultimate arbiter is the people of the Union, a.s.sembled by their deputies in convention, at the call of Congress, or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs."[Footnote: Letter to Mr. Justice Johnson, Tucker, "Life of Thomas Jefferson," II, 455.] There seems a plain fallacy in this proposition. The question to be decided, in case of a conflict of judicial authority, is not which doctrine ought to be adopted, but which was adopted when the Const.i.tution was framed. To amend that instrument and make it something else could not justly be allowed to alter the effect of acts previously done.

But one serious proposition has ever been made to call a national const.i.tutional convention for any such purpose. That was by Kentucky in January, 1861, when civil war was threatened; and it was not pressed. The very delays which would be inevitable in a.s.sembling such a body were then a reason for the call, for they would give time for the "sober second thought." The plan, however, seemed and probably was impracticable. The movement toward secession had gone too far.[Footnote: Debates and Proceedings of the National Peace Convention, 45, 61, 67.]

There were many, at the time when the Const.i.tution of the United States was before the people for ratification, who feared that the jurisdiction of their courts would be extended by judicial construction beyond the limits of the grant. New York in her vote of ratification incorporated a declaration that she understood it to be impossible that the jurisdiction of any court of the United States could ever be enlarged "by any fiction." In the Maryland Convention, this sentiment took shape in a proposed amendment to the Const.i.tution adopted by a committee appointed for the purpose, but never reported, "that the Federal courts shall not be ent.i.tled to jurisdiction by fictions or collusion."[Footnote: Elliot's Debates, 550; Proceedings Ma.s.sachusetts Historical Society, XVII, 504-7.] Had such an amendment been proposed and adopted, it would have cut off a large share of the most important cases now brought before the Circuit Courts. In 1787, there were only twenty-seven business corporations in the United States.[Footnote: Report of the American Historical a.s.sociation for 1902, 267; _American Historical Review_, VIII, 449.] It was not long before they became countless and the large affairs of the country were in their hands. Could they sue and be sued in the courts of the United States? The decision on this point was that, by force of a pure legal fiction, invented for the purpose, they might be.

They were, indeed, not citizens of any State;[Footnote: Paul _v._ Virginia, 8 Wallace Reports, 168.] but the persons who composed them probably were. Therefore, it must be a.s.sumed that they certainly were, and also that they were all citizens of the same State and that the State from which incorporation was obtained.[Footnote: Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson, 2 Howard's Reports, 497, 555; Ohio and Mississippi R. R. Co. _v._ Wheeler, I Black's Reports, 286.]

Sir Henry Maine maintained that legal fictions were the rude device of early stages in government, and to add to them disturbed the symmetry of a legal system and was unworthy the approval of modern courts.[Footnote: Ancient Law, 26.] But while they are among the things that it is hard to justify on principle, it is harder to dispense with them in actual practice, as the instance given conspicuously ill.u.s.trates.

Although the United States are the only depositary of the power of ordering foreign relations, foreign governments are often aggrieved by acts of the courts of a State which the United States have but imperfect means of preventing or rectifying.

In 1841, we were brought to the verge of war with Great Britain by an incident of this nature.

An insurrection broke out in Canada in 1837, and a New York steamboat was chartered to bring supplies across the Niagara River to those engaged in it. One night when she was moored on the New York side of the river a party of loyal Canadians seized and burned her. During the accompanying affray an American was killed. A Canadian named McLeod, who was charged with having fired the fatal shot, was afterwards arrested in New York and indicted for murder. The British government then informed ours that it had ordered the burning of the steamer, and thereupon demanded McLeod's release. Our Secretary of State replied that the prosecution was in the hands of the State of New York, and the United States had no control over it. Lord Palmerston made the affair the subject of a dispatch, in which he stated that McLeod's execution would produce "a war of retaliation and vengeance." The President at once requested the Governor of New York to order a discontinuance of the prosecution. This was declined, but with a promise to grant a pardon in case of conviction.[Footnote: Lothrop, "Life of William H. Seward," 35.]

The State courts refused to discharge the prisoner. He was tried on the original charge, but acquitted.

Congress in 1842 did what it could to prevent the recurrence of such a conflict of authority by pa.s.sing an Act giving the Circuit and District Courts of the United States jurisdiction on _habeas corpus_ proceedings in favor of foreigners held by State authority, who might claim a right of release under the principles of international law.[Footnote: U. S. Revised Statutes, -- 762.]

The Circuit Court has since 1875 been given power to entertain original jurisdiction of any causes arising under the Const.i.tution, laws or treaties of the United States, regardless of the citizens.h.i.+p of the parties, if a value of $2,000 is involved. In all cases, also, of imprisonment by State authority, whether under arrest before trial or after a sentence of conviction, in violation of rights claimed under the Const.i.tution, laws or treaties of the United States, the prisoner may now be summarily discharged on a writ of _habeas corpus_ by a court or judge of the United States. Ordinarily, however, as a matter of comity, he will be left to seek his remedy in the State courts, and if without success there, on a writ of error from the Supreme Court of the United States.[Footnote: _In re_ Neagle, 135 U. S. Reports, 1; _Ex parte_ Royall, 117 U. S. Reports, 241.]

The State courts have no power to release on _habeas corpus_ one who is held under the authority of the United States. If that authority has been illegally exerted, his remedy is in the federal courts alone.[Footnote: Ableman _v._ Booth, 21 Howard's Reports, 506.]