Civil Government in the United States Considered with Some Reference to Its Origins Part 31

[Sidenote: Federal courts and judges.]

[Sidenote: District attorneys and marshals.]

The federal judiciary consists of a supreme court, circuit courts, and district courts.[28] At present the supreme court consists of a chief justice and eight a.s.sociate justices. It holds annual sessions in the city of Was.h.i.+ngton, beginning on the second Monday of October. Each of these nine judges is also presiding judge of a circuit court. The area of the United States, not including the territories, is divided into nine circuits, and in each circuit the presiding judge is a.s.sisted by special circuit judges. The circuits are divided into districts, fifty-six in all, and in each of these there is a special district judge. The districts never cross state lines. Sometimes a state is one district, but populous states with much business are divided into two or even three districts. "The circuit courts sit in the several districts of each circuit successively, and the law requires that each justice of the supreme court shall sit in each district of his circuit at least once every two years." [29] District judges are not confined to their own districts; they may upon occasion exchange districts as ministers exchange pulpits. A district judge may, if need be, act as a circuit judge, as a major may command a regiment. All federal judges are appointed by the president, with the consent of the Senate, to serve during good behaviour. Each district has its _district attorney_, whose business is to prosecute offenders against the federal laws and to conduct civil cases in which the national government is either plaintiff or defendant. Each district has also its marshal, who has the same functions under the federal court as the sheriff under the state court. The procedure of the federal court usually follows that of the courts of the state in which it is sitting.

[Footnote 28: See the second note on p.278.]

[Footnote 29: See Wilson, _The State_, p. 554. I have closely followed, though, with much abridgment, the excellent description of our federal judiciary, pp. 555-561.]

[Sidenote: The federal jurisdiction.]

The federal jurisdiction covers two cla.s.ses of cases: (1) those which come before it "_because of the nature of the questions involved_: for instance, admiralty and maritime cases, navigable waters being within the exclusive jurisdiction of the federal authorities, and cases arising out of the Const.i.tution, laws, or treaties of the United States or out of conflicting grants made by different states"; (2) those which come before it "_because of the nature of the parties to the suit_," such as cases affecting the ministers of foreign powers or suits between citizens of different states.

The division of jurisdiction between the upper and lower federal courts is determined chiefly by the size and importance of the cases.

In cases where a state or a foreign minister is a party the supreme court has original jurisdiction, in other cases it has appellate jurisdiction, and "any case which involves the interpretation of the Const.i.tution can be taken to the supreme court, however small the sum in dispute." If a law of any state or of the United States is decided by the supreme court to be in violation of the Const.i.tution, it instantly becomes void and of no effect. In this supreme exercise of jurisdiction, our highest federal tribunal is unlike any other tribunal known to history. The supreme court is the most original of all American inst.i.tutions. It is peculiarly American, and for its exalted character and priceless services it is an inst.i.tution of which Americans may well be proud.

QUESTIONS ON THE TEXT.

1. What was the second important factor in transforming our country from a Band-of-States to a Banded-State?

2. Why was a federal judiciary deemed necessary?

3. The organization of the federal judiciary:-- a. The supreme court and its sessions.

b. The circuit courts.

c. The district courts.

d. Exchanges of service.

e. Appointment of judges.

f. The United States district attorney.

g. The United States marshal.

4. The jurisdiction of the federal courts:-- a. Cases because of the nature of the questions involved.

b. Cases because of the nature of the parties to the suit.

c. The division of jurisdiction between the upper and the lower courts.

d. Wherein the supreme court is the most original of American inst.i.tutions.

Section 6. _Territorial Government._

[Sidenote: The Northwest Territory.]

[Sidenote: The Ordinance of 1787.]

The Const.i.tution provided for the admission of new states to the Union, but it does not allow a state to be formed within another state. A state cannot "be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress." Shortly before the making of the Const.i.tution, the United States had been endowed for the first time with a public domain. The territory northwest of the Ohio River had been claimed, on the strength of old grants and charters, by Ma.s.sachusetts, Connecticut, New York, and Virginia. In 1777 Maryland refused to sign the Articles of Confederation until these states should agree to cede their claims to the United States, and thus in 1784 the federal government came into possession of a magnificent territory, out of which five great states--Ohio, Indiana, Illinois, Michigan, and Wisconsin--have since been made. While the Federal Convention was sitting at Philadelphia, the Continental Congress at New York was doing almost its last and one of its greatest pieces of work in framing the Ordinance of 1787 for the organization and government of this newly acquired territory. The ordinance created a territorial government with governor and two-chambered legislature, courts, magistrates, and militia. Complete civil and religious liberty was guaranteed, negro slavery was prohibited, and provision was made for free schools.[30]

[Footnote 30: The manner in which provision should be made for these schools had been pointed out two years before in the land-ordinance of 1785, as heretofore explained. See above, p. 86.]

[Sidenote: Other territories and their government.]

In 1803 the enormous territory known as Louisiana, comprising everything (except Texas) between the Mississippi River and the crest of the Rocky Mountains, was purchased from France. A claim upon the Oregon territory was soon afterward made by discovery and exploration, and finally settled in 1846 by treaty with Great Britain. In 1848 by conquest and in 1853 by purchase the remaining Pacific lands were acquired from Mexico. All of this vast region has been at some time under territorial government. As for Texas, on the other hand, it has never been a territory. Texas revolted from Mexico in 1836 and remained an independent state until 1845, when it was admitted to the Union. Territorial government has generally pa.s.sed through three stages: first, there are governors and judges appointed by the president; then as population increases, there is added a legislature chosen by the people and empowered to make laws subject to confirmation by Congress; finally, entire legislative independence is granted. The territory is then ripe for admission to the Union as a state.

QUESTIONS ON THE TEXT.

1. What is the const.i.tutional provision for admitting new states?

2. What states claimed the territory northwest of the Ohio river? On what did they base their claims?

3. Why was this territory ceded to the general government?

4. What states have since been made out of this territory?

5. What was the Ordinance of 1787?

6. What were the princ.i.p.al provisions of this ordinance?

7. Give an account of the Louisiana purchase?

8. Give an account of the acquisition of the Oregon territory.

9. Give an account of the acquisition of the remaining Pacific lands.

10. How came Texas to belong to the United States?

11. How much of the public domain has been at some time under territorial government?

12. Through what three stages has territorial government usually pa.s.sed?

Section 7. _Ratification and Amendments._

[Sidenote: Concessions to the South.]

Thus the work of the Ordinance of 1787 was in a certain sense supplementary to the work of framing the Const.i.tution. When the latter instrument was completed, it was provided that "the ratifications of the conventions of nine states shall be sufficient for the establishment of this Const.i.tution between the states so ratifying the same." The Const.i.tution was then laid before the Continental Congress, which submitted it to the states. In one state after another, conventions were held, and at length the Const.i.tution was ratified.

There was much opposition to it, because it seemed to create a strange and untried form of government which might develop into a tyranny. There was a fear that the federal power might crush out self-government in the states. This dread was felt in all parts of the country. Besides this, there was some sectional opposition between North and South, and in Virginia there was a party in favour of a separate southern confederacy. But South Carolina and Georgia were won over by the concessions in the Const.i.tution to slavery, and especially a provision that the importation of slaves from Africa should not be prohibited until 1808. By winning South Carolina and Georgia the formation of a "solid South" was prevented.

[Sidenote: Bill of Rights proposed.]

The first states to adopt the Const.i.tution were Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut, with slight opposition, except in Pennsylvania. Next came Ma.s.sachusetts, where the convention was very large, the discussion very long, and the action in one sense critical. One chief source of dissatisfaction was the absence of a sufficiently explicit Bill of Rights, and to meet this difficulty, Ma.s.sachusetts ratified the Const.i.tution, but proposed amendments, and this course was followed by other states. Maryland and South Carolina came next, and New Hamps.h.i.+re made the ninth. Virginia and New York then ratified by very narrow majorities and after prolonged discussion. North Carolina did not come in until 1789, and Rhode Island not until 1790.

[Sidenote: The first ten amendments.]

In September, 1789, the first ten amendments were proposed by Congress, and in December, 1791, they were declared in force. Their provisions are similar to those of the English Bill of Rights, enacted in 1689,[31] but are much more full and explicit. They provide for freedom of speech and of the press, the free exercise of religion, the right of the people to a.s.semble and pet.i.tion Congress for a redress of grievances, their right to bear arms, and to be secure against unreasonable searches and seizures. The quartering of soldiers is guarded, general search-warrants are prohibited, jury trial is guaranteed, and the taking of private property for public use without due compensation, as well as excessive fines and bail and the infliction of "cruel and unusual punishment" are forbidden. Congress is prohibited from establis.h.i.+ng any form of religion.

[Footnote 31: See above, p. 190. This is further elucidated in Appendixes B and D.]

Finally, it is declared that "the enumeration of certain rights shall not be construed to deny or disparage others retained by the people,"

and that "the powers not granted to the United States by the Const.i.tution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

QUESTIONS ON THE TEXT.

1. What provision did the Const.i.tution make for its own ratification?

2. What was the general method of ratification in the states?

3. On what general grounds did the opposition to the Const.i.tution seem to be based?