9. Congress and Its Critics," North American Review, vol. clxii., p. 355. 10. Filibustering: "How to Deal with a Filibustering Minority,” J. B. MCMASTER, Forum, vol. xvi., p. 471.

II. "The Speakership, EDWIN MAXEY, in Some Questions of Larger Politics.

12. Procedure in Congress: "How a Bill Becomes a Law," G. H. WALKER, Chautauquan, vol. xiv., p. 569.

13. “The Quorum in Congress," The Nation, vol. lviii., pp. 148, 306. 14. Reconquest of the House of Representatives,” J. C. RIDPATH, Arena, vol. xx., p. 118.

15. "Obstruction as Affected by the New Rules in Congress," H. C. LODGE, Nineteenth Century, vol. xxix., p. 423.

16. "

'Congress or Parliament," T. P. GILL, Contemporary Review, vol. liii., p. 758.

17. "Congress: Its Procedure Compared with that of Parliament,” J. CHAMBERLAIN, Nineteenth Century, vol. xxviii., p. 861.

18. "Misrepresentation in Congress," L. S. BRYCE, North American Review, vol. cxlviii., p. 184.

19.

"The Autocrat of Congress," H. L. WEST, Forum, vol. xxiii., p. 343. 20. "A Century of Congress," J. A. GARFIELD, Atlantic Monthly, vol. xl., p. 49.

21.

"Conduct of Business in Congress," North American Review. vol. cxxviii., p. 113.

22. On Appropriations: “How Congress Votes Money," C. F. Crisp, North American Review, vol. clxii., p. 14; "Appropriations and Misappropriations," North American Review, vol. cxxviii. ; "Spending of Public Money," T. B. REED, North American Review, vol. liv.; "Congress and its Appropriations," The Nation, vol. lxiv., p. 196.

23.

"The House of Representatives and the House of Commons,” HILARY A. HERBERT, North American Review, vol. clviii.

24. Johnston, ALEXANDER, article on “Riders" in Lalor's Cyclopedia of Political Science.

25.

"How Our Laws are Made," R. OGDEN, Nation, vol. lvi., p. 191. 26. How to Purify Congress," M. V. ALLEN, North American Review,

vol. clix., p. 159.

27. "Is Congress a Sovereign Legislature Touching Our External Relations?" Senators G. G. VEST and G. N. DOLPH, North American Review, vol. clvii., p. 234.

28. "The Power of the Speaker of the House of Representatives," J. B. WALKER, Cosmopolitan, vol. xxiv., p. 630.

THE

CHAPTER VI

THE JUDICIARY

HE Judiciary is a third department of Government under the Constitution.

The Judicial Power: Where Vested?

The Judicial power of the United States is vested in one Supreme Court and in such inferior courts as Congress may establish from time to time. It was difficult in the Convention of 1787 to secure the power to establish inferior courts, against the objections of the small State party. It was thought that the national courts, being merely appellate in their jurisdiction, would have so little to do that one Supreme Court would be sufficient. The growth of national interests and of national law was not foreseen.

The Judges, both of the Supreme and inferior courts, hold their offices during good behavior. They receive for their services a compensation which shall Tenure and not be diminished during their continuance in Compensation. office.1

Under the old Confederation there was no National Judiciary. Congress was made a court of appeal in disputes between two or more States concern- The Judiciary ing boundaries, jurisdiction, and other causes. under the Congress might establish courts for the trial of piracies and felonies on the high seas, and courts for reviewing cases of capture and other admiralty matters. The Congress itself occasionally acted as a court in inter

1 Constitution, Art. III., Sec. I.

Confederation.

State disputes and erected certain admiralty courts which passed on maritime affairs. But neither Congress nor these courts had any power or process of executing their judgments when they were questioned. The Articles of Confederation were construed by the State courts. When national law began to operate upon individuals it became . necessary to have a National Judiciary.

Classes of

There are three classes of Federal Courts:

Federal Courts. 1. The Supreme Court.

2. Circuit Courts.

3. District Courts.

The Supreme Court was required by the Constitution itself; the erection of the other courts was left to the discretion of Congress.

In the Judiciary Act of September 24, 1789, Congress carried into effect the provisions of the Constitution as to Judiciary Act the Judiciary. This act in its essential features of 1789. still stands as the statute determining the constitution of the Federal court. In the history of national legislation no Act can be counted of greater importance, so far as legislation has permanently affected any of our institutions. Its abiding influence and importance are enough to immortalize its author, Oliver Ellsworth, of Connecticut.

Originally, by the Act of 1789, the Supreme Court numbered six. There are now nine, a Chief Justice with a salary of $10,500, and eight associate Justices with salaries of $10,000 each.

Size of
Supreme
Court.

The Justices are nominated by the President and confirmed by the Senate. They are removable only by impeachment. English Justices are removable How Justices are Remov- by the Crown on an address, or petition, from both Houses of Parliament. The securer tenure in America is to ensure the independence of the Judiciary and to prevent their subserviency either to the executive or to the legislative department. The

able.

separation and independence of the three co-ordinate departments of our Government are again guarded at this point.

The regular sessions of the Supreme Court are from October to July in each year. The presence of six judges is required to pronounce a decision. This se- Sessions of the cures a thorough consideration of every case,

though it prevents the expediting of the busi

Supreme

Court.

ness before the Court. Every case is argued before the full Court; the judgment of the majority of the Court is then expressed, and the written judgment is then prepared by one of the Justices.

Circuit Courts.

Congress has established nine judicial circuits, or nine Circuit Courts. Each of these has two circuit judges with a salary of $6000, and one Justice of the Supreme Court is assigned to each of these circuits. The circuit court may be held either by a circuit judge alone, or the Supreme Court Justice for that circuit alone, or by both together, or by either sitting with the district judge, in that district, or by the district judge alone. In 1891, an act established Circuit Courts of Appeals, to which cases may be taken from the circuit and district courts,-a further appeal lying to the Supreme Court in certain classes of cases. This act was for the purpose of relieving the Supreme Court, which was nearly three years behind in its cases.

District

Courts.

The District Courts' are the third form of the Federal courts. They are at present fifty-five in number. Their judges receive a salary of $5000. They are appointed by the President by and with the advice and consent of the Senate.

Court of
Claims.

Congress has erected a Court of Claims for the special purpose of trying claims of private persons against the United States. Appeals may be taken to the Supreme Court.

1 See Bryce, p. 231, Statesman's Year Book, 1898.

What kind of cases come under the jurisdiction of the Federal courts?

Jurisdiction of
Federal
Courts.

How a Case may be Transferred

from a State

Court.

1. "Cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority.

991

In any case to which a Federal statute applies suit may be brought in a Federal court. Any defendant who rests his defence on a Federal law may have the case transferred to the Federal court though it may have arisen in a State court. The Judiciary to a Federal Act of 1789 lays down the rules for removing a case from the State to the Federal court. If the State court has decided against the validity of a treaty, or law, or authority exercised under the United States; or, if the State court has decided in favor of the validity of a State law or exercise of authority, which is questioned as being contrary to the Constitution, treaties, or laws of the United States; or where the State court decision is against any title, right, privilege, or immunity claimed by either party under the United States Constitution and laws,-in such cases the action may be transferred from the State to the Federal courts.

The principle of the rule is obvious: State construction of a Federal law unfavorable to Federal authority may be reviewed by Federal construction. A State construction favorable to Federal authority needs no review, the Federal power being already sufficiently vindicated.' The Federal authority is the final judge of the extent of its powers, and State decisions and actions cannot interrupt the exercise of these powers. This principle applies also to executive acts under Federal authority. Within its legal sphere the United States law operates of its own right, and it is supreme and sufficient; no State authority can resist it. For illustration: A person arrested by a Federal officer may not be released by a State court on 1 Constitution, Art. III., Sec. 2.

2 Bryce.