In the two articles so far considered, we have studied about the law-making and the law-enforcing branches of the government. We shall next examine the third great branch, the one which interprets and applies the laws.

SECTION I.—ORGANIZATION.

The judicial power of the United States shall be vested in one Supreme Court,[1] and in such inferior courts as the congress may from time to time ordain and establish.[2] The judges both of the Supreme and inferior courts, shall hold their offices during good behavior,[3] and shall at stated times receive for their services a compensation[4] which shall not be diminished during their continuance in office.[5]

[1] The creation of the Supreme Court, a distinct coordinate branch for the final interpretation of law, was the master-stroke of the constitution. "The Supreme Court has no prototype in history."

While the existence of the Supreme Court is thus provided for in the constitution, the number of judges to constitute it was wisely left with congress. Thus the organization may be changed as circumstances change. The Supreme Court at first consisted of six justices, as they are called; but owing to the growth of the country and the consequent increase of labor to be performed, the number of justices has been increased to nine.

[2] Under this provision congress has established three grades of "inferior" United States courts, the Circuit Courts of Appeal, Circuit Courts, and the District Courts. The United States is divided into nine judicial circuits, to each of which are assigned one justice of the Supreme Court and two circuit judges. (See page 307.) These constitute what is called the Circuit Court of Appeals, having appellate jurisdiction in their respective circuits and holding annual sessions for that purpose. (See page 210.)

The United States is further subdivided into more than sixty judicial districts. In each of these districts, at least one session of the circuit court and one of the district court is held each year. (See pages 210 and 307-9.) A full circuit court bench consists of a supreme court justice, a circuit judge, and a district judge; but court may be held by any one or two of them. The district court consists of the district judge.

[3] This virtually means during life. The purpose of this provision is to raise the judges above temptation, to put them in a position where they may feel safe in doing their exact duty, unawed by any outside power. If with this opportunity they prove unjust, they may be impeached. But so far, almost without exception, those who have been honored with a place on a United States court have proved worthy of their high calling.

[4] The purpose of this also is to remove temptation from the judges. The salary of the chief justice is $10,500 a year, and that of each associate justice, $10,000. This seems like a generous amount. But several times a place on the supreme bench has been declined, on the plea that the nominee could not afford to serve for the salary attached.

[5] This is to prevent the other two branches from occupying a threatening attitude toward the judiciary. But the salary may be increased. And the salary may be reduced, to take effect with appointments made after the passage of the law.

SECTION II.—JURISDICTION OF THE COURTS.

Clause 1.—Extent.

The judicial power shall extend to all cases,[1] in law and equity,[2] arising under this constitution, the laws of the United States, and treaties made or which shall be made, under their authority;[3] to all cases affecting ambassadors, other public ministers, and consuls;[4] to all cases of admiralty jurisdiction;[5] to controversies to which the United States shall be a party;[6] to controversies between two or more states;[7] between a state and citizens of another state;[8] between citizens of different states;[9] between citizens of the same state claiming lands under grants of different states;[10] and between a state or the citizens thereof, and foreign states, citizens or subjects.[11]_

[1] The courts decide what the law is, whether a specified law is constitutional or not, and what the meaning of constitutional provisions is, but only as these questions arise in cases brought before them for trial. They do not advise congress or the president as to the constitutionality or unconstitutionally of a law. They do not directly make law. But in determining the meaning of certain laws and of constitutional provisions they may determine what the law is, and thus they may be said to make law indirectly. But sometimes a legal question or a question as to the meaning of a constitutional provision remains for a long time unanswered, because no case involving the question comes before the courts.

[2] Sometimes the law provides no adequate remedy for a wrong. Here is the necessity for a court of equity. For instance, A sells his business to B, agreeing not to become a rival, but immediately reopens in the next block. B's only remedy in law is to secure damages. If this remedy is shown to be inadequate, a court of equity will close A's store. Or if C, having contracted to do a certain act for D, fails or declines to perform his part, the law can only award D damages; equity will compel the fulfillment of the contract. Law is curative, equity is preventive. (See Dole, 502.)

In some states there are separate courts of law and of equity. But the provision under discussion gives the United States courts jurisdiction in cases both of law and of equity. "There are no juries in equity cases, and no criminal trials."

[3] These pertain to the whole United States, so cases arising under them should be tried by a national, not by a state, court.

[4] Thus showing respect for the governments represented by them.

[5] That is, to cases arising on the high seas or on navigable waters. These matters, according also to I. 8: 10, 11, are under the jurisdiction of the United States, and therefore this provision is simply a consequence of the two referred to.

[6] Because then the interests of the whole country are at stake, and should not be left to any state.

[7] Because the United States was organized to "insure domestic tranquility."

[8] This provision has been modified by the eleventh amendment, which reads as follows: "The judicial power of the United States shall not be construed 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." That is, if the state is the plaintiff, the suit may be tried by the United States Supreme Court (compare clause 2). Claims of individuals against a state, if denied by the auditor, may be referred by them to the legislature. A state cannot be sued by an individual or corporation.

When a citizen is sued he must be sued either in the courts of the United States or in those of his own state. It would be a source of irritation to compel a state to sue a citizen of another state in the courts of his own state, hence this provision that such suits shall be in the United States court.

[9] To remove temptation to injustice through local prejudice. But the suit is tried in, and in accordance with the laws of, the state of which the defendant is a citizen.

[10] Because the states are involved in the suit, and it would be unfair to let either decide the controversy.

This provision is not of much importance now, because state boundaries are clearly defined. But when the constitution was framed, this kind of question meant a good deal. The charters given during colonial times were very loosely drawn, and claims of different colonies and proprietors overlapped each other. The question of ownership had not been settled at the time of the revolution. During the formative or confederation period, these disputes had been a source of much ill-feeling.

[11] Because the general government, and not the individual states, has charge of our foreign relations. A foreign country holds the United States responsible for the acts of its citizens; and only the United States can be looked to, to secure justice to its citizens on the part of foreign countries or citizens.

Clause 2.—Jurisdiction of the Supreme Court.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.[1] In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction,[2] both as to law and fact, with such exceptions and under such regulations as the congress shall make.[3]

[1] That is, such a suit must commence in the Supreme Court, and so cannot be tried elsewhere.

[2] That is, the action must commence in some lower court, but it may be appealed to the Supreme Court.

The U.S. District Court has jurisdiction over crimes committed on the high seas, and over admiralty cases in general; over crimes cognizable by the authority of the United States (not capital) committed within the district, and over cases in bankruptcy.

The U.S. Circuit Court has original jurisdiction in civil suits involving $2000 or more, over equity cases, and over cases arising under patent and copyright laws.

[3] To relieve the Supreme Court, which was years behind with its work, congress recently provided for a U.S. Circuit Court of Appeals in each of the nine circuits, which has final appellate jurisdiction in nearly all cases except those involving the constitutionality of a law.

Clause 3.—The Trial of Crimes.

The trial of all crimes, except in cases of impeachment, shall be by jury,[1] and such trial shall be held in the state where said crimes shall have been committed;[4] but when not committed within any state,[3] the trial shall be at such place or places as congress may by law have directed.[4]

[1] A trial by jury is a trial by twelve men impartially selected. This is regarded as one of the great bulwarks of liberty.

Civil cases may, at the desire of both parties, be tried by the court only. But for criminal trials a jury is guaranteed by this provision. In a criminal trial, the state or the nation is the prosecutor, and state or national judges might be tempted to decide unjustly, if the matter were left to them.

[2] This leaves the accused in better condition to defend himself, than if he could be taken away far from home. He is thus able at the least expense to bring witnesses in his own behalf. In harmony with this, each state has at least one U. S. District Court for the trial of crimes against the general government. (See Declaration of Independence.)

This provision is probably binding also upon the states.

[3] That is, in the District of Columbia, in one of the territories, in the Indian country, in the forts or arsenals of the United States, or upon the high seas.

[4] Congress has specified courts for the trial of such crimes. Those committed on the high seas are tried in the state where the vessel arrives. (See pages 230-4.)

SECTION III.—TREASON.

Clause 1.—Definition and Trial.

Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.[1] No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.[2]

[1] Treason is, in essence, a deliberate and violent breach of the allegiance due from a citizen or subject to his government. Being directed against the powers that be, the government in self defense is tempted to punish it severely. The more tyrannical a government is the more likely it is to be plotted against, and the more suspicious it becomes. If treason were undefined, the government might declare acts to be treasonable which the people never suspected to be so. This had occurred so many times, and good men had so often been sent on this charge to an ignominious death, that the framers of the constitution deemed it prudent to define treason carefully in the fundamental law itself.

These provisions are taken from the famous statute of Edward III which first defined treason in England. This statute declared five things to be treasonable, only the third and fourth of which are held by our constitution to be so.

[2] An overt act is an open act, not one that is simply meditated or talked about, but one actually performed.

The Supreme Court has decided that there must be an actual levying of war; that plotting to overthrow the government is not treason. But if hostilities have actually begun, if war has commenced, "all those who perform any part, however minute, or however remote from the scene of action, and who are leagued in the general conspiracy, are to be considered traitors."

Two witnesses, at least, "to the same overt act," are required, because thus only can a "preponderance of testimony" be secured.

Clause 2.—Punishment.

The congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted.

As has been hinted, the punishment of treason had been very severe in European countries. Not only was the person convicted of treason put to death in the most horrible ways, but his property was forfeited, and no one could inherit property from him or through him. Thus not only the person himself, but also his children and his children's children, were punished. The purpose of this provision is, in the words of Mr. Madison, to restrain congress "from extending the consequences of guilt beyond the person of its author."

Pertinent Questions.

By what authority was the Supreme Court established? By whom is it organized? Why is such a court necessary? How many judges or justices constitute the Supreme Court? Name them. Tell what president appointed each.

How many and what "inferior courts" has congress established? Name the Supreme Court justice assigned to this circuit. How many other states in this circuit? Name our two United States circuit judges. Name the United States district judge. How are these officers appointed? How long do they serve? State the salary of each class of judges. What legal provision is there in regard to retiring United States judges?

If a person should rob the mail, in what court would he be tried? Tell about the Dartmouth College case. If any one should be caught making cigars without a license, before what court would he be tried? If an American owed money to an ambassador from a foreign country, and declined to pay it, how could the ambassador get his pay? If the ambassador owed an American, how could the American get his pay? Would you, if the United States government asked you to represent it in a foreign country, like to be tried by a court of that country?

If a murder be committed in the District of Columbia, in what court is the trial had? If committed in Minnesota? In Wyoming? If a sailor should steal from a passenger, when out on the ocean, where would the case be tried and in what court?

If a state other than the one in which you live should sue you where could the case be tried? How can the United States be a party to a suit?

Have you knowledge of any case in which one state sued another? If a merchant in your town should buy goods from a wholesale house in Chicago or New York, and should fail or refuse to pay for them, how could the house get its pay? What laws would apply to the case? What principle seems to be involved in these answers?

How many acts of congress have been declared unconstitutional by the
Supreme Court?

Can a citizen of Wyoming bring a suit in a United States court? If you lived in Montana, how could you recover money owed you in Minnesota? Can a United States official be sued for acts performed in the discharge of his duties?

What famous case of treason was tried in 1807? Was Jefferson Davis ever tried for treason?

If the property of a traitor is taken by the government, must it be restored to his heirs at his death? Can you commit treason against this state? What do you know about the John Brown case?

Compare III. 2, 3, with amendments 5 and 6, and state the rights of a person accused of crime, which are guaranteed by the constitution.

Debate.

Resolved, That all judicial officers should be appointed.

Tabular View.

Prepare a tabular view comparing the three departments of the United
States government.