The American Judiciary

S >> Simeon E. Baldwin, LLD >> The American Judiciary

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Another cause is also effective in lessening the docket of the
District Courts. The ordinary lawyer prefers to sue in a State
court, when he has the choice, on account of his greater
familiarity with the practice there. Many American lawyers have
never brought an action in a federal court. Most cases which
could be so brought can also be and are brought in a State court.

Congress has thus far maintained for the federal courts the
ancient distinction between procedure in law and in equity
explained in the preceding chapter. There are those who claim
that the reference in Art. III, Sec. 2, of the Constitution of
the United States to "cases in law and equity" requires its
preservation; but this seems a strained construction of the
phrase. Separate dockets are kept in the District Court of legal
and of equitable actions. They are brought in different form,
tried in a different way, and disposed of by different rules,
though by the same judges and at the same term of court. As to
equity cases, the rules of the old English chancery practice are
substantially followed. In cases of a common law nature, the
practice existing at the time in regard to those of a similar
kind in the courts of the State within which the federal court
may be held is to be followed, as nearly as may be.[Footnote:
U. S. Revised Statutes, Sec. 914.] In fact, there is a departure
from it in many points in most States,[Footnote: See Nudd
_v._ Burrows, 91 U. S. Reports, 426.] and in vital ones in
those which have reformed their procedure in civil actions by
fusing remedies at law with those in equity. If an action framed
in this method be removed from a State court to a federal court,
the plaintiff must thereupon split it in two, and present his
case at law on one set of papers and his case in equity on
another.

The Supreme Court, under power derived from acts of Congress, has
framed rules of procedure for the inferior trial courts of the
United States in equity and admiralty cases, and the latter
courts have supplemented them by further rules of their own
making. The Equity Rules promulgated by the Supreme Court were
revised in 1912, and took effect as changed in 1913.[Footnote:
They are printed in Volume 226 of the United States Reports.]
They greatly simplify the former procedure. Suits are now tried
generally on oral testimony taken stenographically in open court.
Formerly the evidence was usually given before officials known as
examiners or masters in chancery. The former reported the
testimony at length to the trial court. The latter reported
their conclusions from it.

The new rules have abolished demurrers in equity causes in favor
of what is substantially the present English practice.[Footnote:
See _infra,_ page 203.]

In common law causes in the District Court, the State remedies by
way of attaching the property of a defendant to respond to a
judgment, or seizing it on execution, or imposing a lien upon it
by a judgment, are adopted and enforced.[Footnote:
U. S. Rev. Stat., Sec.Sec. 915, 916, 967, 988.]

The field of national legislation being narrow, the offenses
against the nation are correspondingly few. Any acts done on
lands ceded by a State, which would have been crimes under its
law in 1873, may be punished as such in the federal courts in the
same manner which that law provided.[Footnote: _Ibid_., Sec.
5391.]

In the Circuit Courts, before 1866 it was customary to defer the
trial of important causes until the Justice of the Supreme Court
assigned to the circuit could be present. If he differed on any
material point from the District Judge, this point could be
certified up to the full Supreme Court for argument and decision
there. During this period the published reports of the decisions
of the Circuit Court contain many opinions of the highest value.
Several of the best which Story and Bushrod Washington wrote are
to be found among them.

The Act of 1866, by which a resident Circuit Judge was appointed
for each circuit, provided notwithstanding that each member of
the Supreme Court should attend at least one term of the Circuit
Court in each district as often as once in two years. The press
of business at Washington, however, soon became such as to make
it practically impossible for the Supreme Court Justices to do
any substantial circuit work. When some case of national
importance was to be heard in any district, the Justice in whose
circuit it was included would make a special effort to go down.
In this way Chief Justice Chase heard and sustained the plea with
which Jefferson Davis met the indictment against him for treason.
But ordinarily the Circuit Judge took the place of the Supreme
Court Justice, and the latter, if he appeared at all during the
term, remained hardly for a day.

The Supreme Court, therefore, during over a hundred years
remained the only court of the United States existing mainly for
appellate purposes. The work which it had before it at the last
term during which it occupied this position (October Term, 1890)
will show how much it was then overburdened.

Its docket contained 1,177 appeals brought forward by continuance
because they could not be disposed of at the preceding term, 623
new cases of the same kind, and 16 cases of original
jurisdiction, making a total of 1,816 actions. Of these,
although the term lasted nearly eight months, it was only able to
dispose of 617, thus leaving 1,199 for continuance to the
following term.[Footnote: 140 U. S. Reports, Appendix.] It will
be observed that the court was no longer able to cope with its
new business, not to mention that left over from previous years.

Appeals now lie in most civil cases from the final judgments of
the District and Circuit Courts, and from convictions for
infamous crimes, not capital, to the Circuit Court of Appeals.
They also extend to judgments granting a temporary injunction.
There is a court of this name for each of the nine circuits,
which was established in 1891 for the further relief of the
Supreme Court and the speedier termination of litigation. This
measure originated in the American Bar Association, by which it
was pressed upon the attention of Congress. It had become an
absolute necessity to devise some plan of expediting the
disposition of appeals from the trial courts of the United
States. There was more than enough of such business by the close
of the Civil War (the events attending which brought up for
decision many novel questions of the highest importance) to
require the entire attention of the Supreme Court. It soon took
three years after an appeal was docketed before it could be
reached for argument. This was intolerable, and it was obviously
necessary either to restrict the liberty of appeal; to constitute
divisions of the court, one to hear appeals of a certain class
and another those of another class; or to set up an intermediate
court. The last method was preferred. The practice in the
Circuit Court of Appeals is governed by rules of its own making,
but in general conforms to that of the Supreme Court of the
United States in appealed cases.

The commission appointed some years since to prepare a revision
of the laws of the United States have reported in favor of
abolishing all jurisdiction of the Circuit Court over original
cases and turning it into an appellate court.[Footnote: Senate
Doc. 68, 57th Congress, 1st Session.] Should this recommendation
be adopted, the District Court would acquire the jurisdiction now
vested in the Circuit Court, the District Judges would sit in the
District Court only, and the Circuit Court Judges in the Circuit
Court only, while the Circuit Court of Appeals would come to an
end.

The American Bar Association voted in 1903 that it was desirable
to establish a new appellate court to sit at Washington and take
cognizance of patent and copyright cases. Such a measure would
tend to relieve the Supreme Court of the United States of any
undue pressure of business, and promote both uniformity and
promptitude of decision in a class of actions in which
promptitude and uniformity are of special importance. As things
stand now, a patent may be pronounced invalid in one circuit and
upheld in another by courts of equal authority; and while in such
event the Supreme Court would probably, on a special application,
call both these judgments up before it for review, this remedy
cannot be claimed as a matter of absolute right, and is at best a
slow one.

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

Except in a very limited class 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 Washington 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
Constitution 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
Washington, consisting of a Chief Justice and four associates.
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, Sec. 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 associate justices, and has jurisdiction to hear and
determine claims of title 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 associate
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
institute 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 Constitution 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
Constitution 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 Constitution 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 constituted.[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 Constitution
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 Constitution, and every
treaty made under the authority of the United States, as, in case
of conflict, superior to anything in his State Constitution 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
classes 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 assume 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
citizenship 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, petitioner, 4 Gray's
(Mass.) 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 Constitution, 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 unconstitutional 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 Constitution or
laws of the United States.[Footnote: _Federalist_,
No. LXXXII.] 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
constitutional 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 Constitution 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
unconstitutional 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 Constitution 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. LXXX.]

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