Cyclopædia of Political Science, Political Economy, and the Political History of the United States
JUDICIARY (IN U. S. HISTORY). Under the colonial régime the judges held office at the king's pleasure. In Virginia, Maryland and New England the assemblies were at first the final court on appeal, and the New England assemblies for this reason assumed the special title of "the great and general court" (see
—I. ORIGIN. The "Virginia plan," as introduced, May 29, 1787, in the convention, proposed in its ninth resolution that "a national judiciary be established. to consist of one or more supreme tribunals and of inferior tribunals, to be chosen by the national legislature, to hold their offices during good behavior," and to have jurisdiction over all "questions which may involve the national peace and harmony." In committee of the whole, June 4, "the first clause, that a national judiciary be established, passed in the affirmative, nem. con." June 13 the jurisdiction of federal judges was limited to "cases which respect the collection of the national revenue. impeachments of any national officers, and questions which involve the national peace and harmony"; and their appointment was given to the senate. July 18, it was proposed to give the appointment to the executive, with the advice and consent of the senate, as was finally decided; but this was lost, July 21, and the judiciary resolution went unchanged to the committee of detail, Aug. 4, except that congress was to appoint inferior judges. The report of the committee, Aug. 6, did not essentially change the jurisdiction or constitution of the judiciary. It was not until the report of the committee of eleven, Sept. 4, that the judiciary took its present form: the appointment of the judges was given to the president with the confirmation of the senate; and the power of trying impeachments was taken from it and given to the senate. Its jurisdiction had previously been settled, Aug. 27, and was perfected by the committee on revision, appointed Sept 8. In their report it stands as it was finally adopted. (See
—In the constitution of the federal judiciary two points are to be specially noted, before considering its history and jurisdiction. 1. The supreme court itself was the only one which was imperatively called for by the constitution; inferior courts were to be such as "congress may from time to time ordain and establish"; but in all the courts the judges were to hold office during good behavior, and their salaries were not to be diminished during their continuance in office. Congress, by the judiciary act of 1789, organized the district and circuit court system of inferior tribunals, from which scarcely any essential departure has since been made. (See
—II. HISTORY. One of the first subjects which claimed the attention of congress under the constitution was the organization of the judiciary. A committee to prepare a bill for that purpose was appointed in the senate, April 7, 1789, the day after the first permanent organization of that body. The first judiciary act became law Sept. 24, 1789. It provided for a supreme court, to consist of a chief justice and five associate justices, and to hold two sessions annually, in February and August, at the seat of government; for district courts, each to cover within its jurisdiction a state, or some defined part of a state, as the district of Maine in Massachusetts, or the district of Kentucky in Virginia; for circuit courts, each to cover within its jurisdiction several districts, to hold two courts annually in each circuit, and to be presided over by one of the supreme court justices and the district judge of the district; for a marshal and an attorney for each district; for an attorney general of the United States; and for forms of writ and process. This organization, produced without any precedents as guides, has remained substantially unaltered to the present day. The number of supreme court justices has been gradually enlarged to nine, eight associate justices and a chief justice; a distinct class of circuit judges has been created; the territorial limits of the circuits have been variously modified; the number of districts has been increased from fifteen to fifty-three; but the organization is still the same.
—The only doubtful point in the organization of the judiciary was, whether the circuit courts, presided over by supreme court justices, were "inferior courts," such as congress was authorized to establish. This, with other reasons, led to the passage of the act of Feb. 13, 1801, which organized a distinct class of circuit courts, with sixteen justices to preside over them. The appointees were federalists; their clerks and other officers were of the same party; and the whole bill was denounced by the democrats as a federalist scheme to provide offices for life for a number of federalist politicians who were now to lose all hold on power. The story that President Adams was kept busy until midnight of his last day of office in signing commissions under the act, seems to have given strength to the popular clamor for the removal of the "midnight judges." It was difficult to find a way to the removal, for the constitution distinctly provided that the term of all judges should be during good behavior. The democratic majority, however, decided that the official existence of the judges was bound up with that of their courts, and the act of March 8, 1802. got rid of the judges by abolishing their courts and restoring the old circuit court system. The ousted judges petitioned congress for employment or for pay, but were refused both.
—Suits "between a state and citizens of another state" are placed by the constitution under the jurisdiction of the supreme court. Suits were at once begun in the supreme court against various states, but it was not until February. 1793, in the case of Chisholm vs. Georgia, that the court decided that such suits would lie against a state as against any other corporation. Georgia protested, and refused to appear; judgment by default was given for the plaintiff in February, 1794; but its execution was stopped by the adoption of the 11th amendment. (See
—Among the last appointments of President Adams were those of certain justices of the peace in the District of Columbia which the incoming president, Jefferson, refused to complete. An attempt was made through the supreme court to compel completion of the appointments. In this case, Marbury vs. Madison (the secretary of state), the court laid down the rule, to which it has always adhered, that "questions in their nature political, or which are by the constitution and laws submitted to the executive, can never be made in this court." By observing this rule the judiciary has successfully avoided any clashing with the other departments of the government. (See
—For the first thirty years of its history the federal judiciary came very little into contact or antagonism with state sovereignty or state courts. The first occasion of heart-burning was removed by the 11th amendment, and thereafter the supreme court carefully avoided any conflict until 1806, when, for the first time in our history, a state law was "broken." (See
—The outbreak of the rebellion in 1861 found the national government divided in politics: congress and the president were republican; the supreme court was unanimously democratic, and two of its members, Catron and Wayne, were from the seceding states of Tennessee and Georgia respectively. Nevertheless, except in one instance (see
—The first reconstruction act, as originally introduced, Feb. 6, 1867, prohibited the granting of writs of habeas corpus in the insurrectionary states without military permission; as passed, March 2, 1867, it contained no such provision, but reached much the same end by directing the punishment of disorders and violence to be by military commission. (See
—The misgivings of congressional leaders had been unfounded. In December, 1868, the court fully sustained reconstruction by congress, in the case of Texas vs. White. It was already becoming republican in its sympathies by new appointments, and the continued control of the appointing power by the republican party made it progressively more so, until there is now (1882) but one democratic justice in the court, S. J. Field. In December, 1869, there was still some doubt as to the political leanings of the court. It then decided against the constitutionality of the action of congress, in 1862, in giving a legal tender character to the paper currency, but in March following, a new judgeship having been created by law and another new judge having been appointed to fill a vacancy, the legal tender question was again introduced, and the previous decision was reversed by the votes of the two new judges. In 1873, in the slaughter-house cases, the court began its construction of the war amendments, and upheld the validity of congressional action under them. This work it has not yet carried to its completion. (See
—The powers and duties of the district and circuit courts are great, but not extraordinary. Those of the supreme court can not be paralleled or approached by those of any other judicial body which has ever existed. The imagination of a lawyer of earlier times could hardly have soared to the ideal of a court empowered to wipe out at a touch the legislation not only of great states like New York, equal in population and wealth to at least a kingdom of the second class, but even of that which is now the most powerful republic, and will very soon be the most powerful nation, of the world. And the powers of the court are not based on its overmastering force, for it has always carefully avoided the use or even the suggestion of force. It is, said Marbois long ago, a power "which has no guards, palace or treasures, no arms but truth and wisdom, and no splendor but its justice and the publicity of its judgments" Its controlling influence, nevertheless, is firmly established, though very charily used. Congress and the president would resort to almost any expedient rather than have the supreme court formally pronounce against them; a law which this court has finally declared unconstitutional can be disobeyed or set at defiance with impunity all over the country, for no other court would allow a conviction under it; and, apart from both these considerations, the popular reverence for the court's wisdom and discretion is so deeply fixed that its final decision has been sufficient, as in the case of the general election law in 1879, to control even the passionate feeling of a great national party. This influence is due not only to the distinguished ability of the members of the court, but to their invariable integrity, freedom from partisan feeling, and self-restraint. Throughout the whole history of the court there has never been the faintest suspicion upon the integrity of the supreme court justices; and this is equally true of the inferior courts, with the single exception of one district judge in Louisiana in 1872-3. (See
—The chief justices have been as follows, with the dates of their appointments: John Jay, of New York, Sept. 26, 1789; John Rutledge, of South Carolina, July 1, 1795 (rejected by the senate); Wm. Cushing, of Massachusetts, Jan. 27, 1796 (declined); Oliver Ellsworth, of Connecticut, March 4, 1796; John Jay, of New York, Dec. 19, 1800 (declined); John Marshall, of Virginia, Jan. 31, 1801; Roger Brooke Taney, of Maryland, March 15, 1836; Salmon Portland Chase, of Ohio, Dec. 6, 1864; Morrison R. Waite, of Ohio, Jan. 21, 1874. The first associate justices, appointed Sept. 26, 1789, were John Rutledge, Wm. Cushing, John Blair, of Virginia, James Wilson, of Pennsylvania, and Robt. H. Harrison, of Maryland. The court is now constituted as follows: Chief Justice Morrison R. Waite, of Ohio, Jan. 21, 1874; Samuel F. Miller, of Iowa, July 16, 1862; Stephen J. Field, of California, March 10, 1863; Joseph P. Bradley, of New Jersey, March 21, 1870; John M. Harlan, of Kentucky, Nov. 29, 1877; Wm. B. Woods, of Georgia, Dec. 21, 1880; Stanley Matthews, of Ohio, May 12, 1881; Horace Gray, of Massachusetts, Dec. 20, 1881; Samuel Blatchford, of New York, March 13, 1882. Among the associates in the intervening period are the following: Wm. Paterson, of New Jersey, 1793-1806; Samuel Chase, of Maryland, 1796-1811 (see
—III. SUPREME COURT. No attempt is here made to give the practice of the federal courts. For information under this head the reader is referred to the treatises cited among the authorities It is only intended to give a general idea of the jurisdiction of the court.
—1. Original Jurisdiction. According to the 3d article of the constitution the court is to have original jurisdiction, that is, suits are to be begun in this court, in but two classes of cases, those which "affect" ambassadors, other public ministers, and consuls, and those in which a state shall be a party. Cases "affect" an ambassador only by personally concerning him. By the 11th amendment the state can only be a party as plaintiff; but the power to issue writs of error to state courts often brings a state before the supreme court as defendant. The judiciary act of 1789 undertook to give the supreme court further original jurisdiction in the issue of writs of mandamus, but the court itself, in the case of Marbury vs. Madison, decided that congress had no such power.
—2. Appellate Jurisdiction. This necessarily covers the original jurisdiction of the district and circuit courts, and cases under it come into the supreme court on appeal. It includes "all cases of admiralty and maritime jurisdiction; controversies to which the United States shall be a party; controversies between citizens of different states, and between citizens of the same state claiming lands under grants of different states;" and "federal questions." that is, "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." How far congress may also give to inferior courts any part of the supreme court's original jurisdiction, is an unsettled question.
—The act of 1789 provided for the admiralty jurisdiction of the inferior courts; but it was long held that this extended no further than the ebb and flow of the tide. The growth of inland navigation began to suggest the idea that the admiralty jurisdiction should properly extend to navigable rivers and lakes also. In 1825, in the case of The Steamboat Thomas Jefferson, the supreme court, following English definitions, declined to assume any inland admiralty jurisdiction. The act of congress of Feb. 26, 1845, gave such jurisdiction, in cases of tort and contract, in the case of vessels of more than twenty tons engaged in commerce on lakes and navigable waters between different states or with a foreign nation. In 1851, in the case of The Genesee Chief, the court upheld the act, and federal courts at once proceeded to act under it. Since that time, however, the court has swerved toward the opinion that the admiralty jurisdiction had never been limited to the ebb and flow of the tide; that neither the act of 1789 nor that of 1845 was intended as a restraining act; and that inland maritime jurisdiction is fully conferred by the constitution itself. This has been the fixed doctrine of the court since 1866-8.
—The idea that the federal courts possessed a common law criminal jurisdiction was held by the first corps of supreme court justices. and was not formally disavowed for many years. (See
—IV. CIRCUIT COURTS. The original jurisdiction of these courts comes under the appellate jurisdiction of the supreme court. From the final decision of the circuit court, when the matter in dispute exceeds the value of $5,000, an appeal lies to the supreme court. The amount was $2,000 until May 1, 1875, when it was increased by the act of Feb. 16, 1875. Patent and revenue cases are not limited as to amount involved.
—The number of associate justices was originally five; was increased to six in 1807; was increased to eight in 1837; was increased to nine in 1863; was decreased to eight in 1865, and to seven in 1867; and was increased to eight in 1870.
—Besides the associate justices of the supreme court, who, with the district judges, were to hold circuit courts, there is now a distinct class of circuit judges, nine in number. In each circuit, court may be held by the associate justice alone, by the circuit judge alone, by the two together, or by either one with the district judge.
—Each circuit is composed of several states; the process of the court, however, is not limited by circuit lines, but runs everywhere throughout the territory of the United States. Territorial arrangements have varied from time to time. The following gives the number of the circuits in 1882, the states composing each, and the names of the associate justice and circuit judge of each: 1. Maine, New Hampshire, Massachusetts and Rhode Island—Horace Gray, John Lowell; 2. Vermont, Connecticut and New York—Samuel Blatchford, William J. Wallace; 3. New Jersey, Delaware and Pennsylvania—Joseph P. Bradley, Wm. McKennan; 4. Maryland, Virginia, West Virginia and North and South Carolina—Chief Justice Waite, Hugh L. Bond; 5. Georgia, Florida, Alabama, Mississippi, Louisiana and Texas—Wm B. Woods, Don A. Pardee; 6. Ohio, Michigan, Kentucky and Tennessee—Stanley Matthews, John Baxter; 7. Indiana, Illinois and Wisconsin—John M. Harlan, Thomas Drummond; 8. Minnesota, Iowa, Missouri, Kansas, Arkansas, Nebraska and Colorado—Samuel F. Miller, George W. McCreary; 9. California, Oregon and Nevada—Stephen J. Field, Lorenzo Sawyer.
—V. DISTRICT COURTS. The territorial unit for these courts is in general still the state. but the growth of population, or other reasons, has caused the division of the following states into more than one district: Alabama, 3; Arkansas, 2; Florida, 2; Georgia, 2; Illinois, 2; Michigan, 2; Mississippi, 2; Missouri, 2; New York, 3; North Carolina, 2; Ohio, 2; Pennsylvania, 2; Tennessee, 2; Texas, 3; Virginia, 2; Wisconsin, 2 From these courts an appeal lies to the circuit court where the matter in dispute is of a greater value than $500, and a "federal question" is involved.
—VI. TERRITORIAL COURTS. Though these courts are not strictly a part of the federal judiciary, as provided for in the constitution, an appeal lies from them to the supreme court. The history and practice of this class of judicial bodies will be found very fully treated in the case of Clinton vs. Englebrecht, cited among the authorities, to which the reader is referred.
—VII. PROPOSED AMENDMENTS Space will not allow any consideration of the various changes which have been proposed in judiciary legislation, with a view to relieving the supreme court of some portion of its rapidly accumulating business. It is only designed to notice the amendments to the constitution which were proposed at various times in the first forty years of our history for the purpose of vitally altering the constitution of the judiciary. No such change has been seriously proposed since 1840.
—1. The failure of the Chase impeachment (see
—2. The revival of the "supreme law" clause by the supreme court, heretofore referred to, caused the introduction in the senate, Jan. 14, 1822, by Richard M. Johnson, of Kentucky, of the following amendment: "That in all controversies where the judicial power of the United States shall be so construed as to extend to any case in law or equity, arising under the constitution, the laws of the United States, or treaties made, or which shall be made, under their authority, and to which a state shall be a party; and in all controversies in which a state may desire to become a party, in consequence of having the constitution or laws of such state questioned, the senate of the United States shall have appellate jurisdiction." The amendment was not brought to a vote. Johnson's speech upon it, as cited among the authorities below, is a very convenient résumé of the cases up to its date in which the federal judiciary had come into conflict with the states.
—3. Propositions were made in the house, Jan. 28, 1831, and Jan. 24, 1835, to amend the constitution by limiting the term of office of federal judges; but the former was voted down, and the latter was not considered. These ended the attempts to change the basis of the existence of the federal judiciary. (See
—See 1 Stat. at Large (Bioren and Duane's edit.), 67, 73, 670 (ordinance of April 5. 1781): I. 5 Elliot's Debates, 128, 131, 155, 192, 203, 380, 478, 507, 564; II. 1 Stat. at Large, 73 (act of Sept. 24, 1789); 2 Stat. at Large, 89, 132 (act of Feb. 13, 1801, and repealing act); 2 Bancroft's History of the Constitution, 195; 2 Benton's Debates of Congress, 427 (and see index under "Judiciary"); 2 Dallas, 419 (Chisholm vs. Georgia); 1 Cranch, 137 (Marbury vs. Madison); 1 Wheat., 304 (Martin vs. Hunter's Lessee); 6 Wheat., 264 (Coheus vs. Virginia); 4 Wheat., 316 (McCulloch vs. Maryland); 9 Wheat, 738 (Osborn vs. Bank); Letters of Algerrion Sidney (collected); 4 Jefferson's Works (edit. 1829), 371; 12 Wheat., 264 (Ogden vs. Saunders); 1 Democratic Review, 143; 4 Elliot's Debates, 523, Tyler's Life of Tancy, 432; Schuckers' Life of Chase, 533; 7 Wall., 700 (Texas vs. White); authorities under RECONSTRUCTION; Flanders' Lives of the Chief Justices; Van Santvoord's Lives of the Chief Justices; III.-VI. The Federalist, 22, 77; Story's Commentaries, (edit. 1833), § 1567; 2 Wilson's Law Lectures, 201; Sergeant's Constitutional Law (1822); Grimke's Nature of Free Institutions, 379; Duponceau's Jurisdiction of U. S. Courts (1824); Law's Jurisdiction of U. S. Courts (1852); G. T. Curtis' Jurisdiction of U. S. Courts (1854); A. Conkling's Treatise on U. S. Courts (1856); Murray's Proceedings in U. S. Courts (1868); Boyce's Manual of Practice in U. S. Circuit courts (1868); Abbott's Treatise on U. S. Courts (1869); Phillips' Statutory Jurisdiction and Practice of U. S. Courts (1872); Miller's Supreme Court of the United States (1877); B. R. Curtis' Jurisdiction of U. S. Courts (1880); 13 Wall., 434 (Clinton vs. Englebrecht); VII. 3 Benton's Debates of Congress, 553; 4 ib., 351; 5 ib., 468; 7 ib., 145 (Johnson's speech); 11 ib., 303.
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