Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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JUDICIARY

II.221.1

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 ASSEMBLIES); but the crown ultimately succeeded in maintaining its right to appoint all the judges, though the assemblies retained the right to pay them. (See REVOLUTION.) When royal authority was overthrown, the control of the judiciary fell to the states. In Massachusetts. New York and Maryland their appointment was given to the governor and council; in the other states. to the legislature. There was no federal judiciary. and congress was dependent upon state courts for the definitive interpretation even of the articles of confederation. In territorial disputes between the states congress was itself a court, (see CONFEDERATION, ARTICLES OF, IX); and by the ordinance of April 3, 1781. congress established courts for the trial of piracies and felonies on the high seas; but there was no power in either ease to enforce decisions. This lack of any general judicial power, extending throughout the states, and empowered to define the boundaries of federal authority and to enforce its decisions by federal power, was one of the most serious evils of the confederation, and there was hardly any opposition in the convention to the proposition for supplying it by the creation of the judiciary system of the United States.

II.221.2

—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 CONSTITUTION ART. III.)

II.221.3

—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 FEDERAL PARTY, I) The territorial courts are not a part of the judiciary contemplated by the constitution, but are organized under the sovereign power of the federal government over the territories; their judges, therefore, hold office for a term of four years. There are also consular courts, held by American consuls in foreign countries, such as Egypt and China, which have sometimes even acted as courts of probate; but these are entirely out of the scope of any constitutional view, and if defensible at all can only be defended under the treaty power. 2. To create a judiciary, and even to assign to it a jurisdiction, did not seem sufficient to bind down the state courts which had hitherto been sole possessors of judicial powers. The constitution, therefore, further provides (in article VI.) that the constitution, and the laws and treaties made by virtue of it, shall be "the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." This, the most sweeping and energetic of the very few distinctly national features of the constitution, seems hardly to have been taken at its full measure by the convention itself. There was no such provision in the "Virginia" or nationalizing plan; it was first introduced in the "Jersey plan," June 15; and when brought up, June 27, by Luther Martin, then the most ultra of particularists, "was agreed to, nem. con." Nor was there any more opposition to the two slight changes, Aug. 23 and 25, which brought the clause into exactly its present form. It seems to have been regarded mainly as a repetition of the promise of the states "that they shall abide by the determinations of the United States in congress assembled," which had been the only guarantee for the faithful observance of the articles of confederation. It would probably have amounted to no more than this but for the coincident creation of the federal judiciary. The conjunction, accidental or purposed, of the two provisions had an effect that could hardly have been anticipated. By defining law, as well as law courts, it vested in the federal judiciary the power to define the boundary line between federal and state powers, and bound the state judges to acquiescence. When the consequences became apparent, an instant revulsion followed. Jefferson and the whole democratic party at once denied the "power of the federal government thus to define its authority"; and on their accession to power in 1801 the "supreme law" clause became a practical nullity until toward 1820, when the judiciary, under the lead of Chief Justice Marshall, again began its assertion. It met with renewed opposition, which was gradually weakened until the close of the rebellion left the "supreme law" clause universally acknowledged as above stated. (See KENTUCKY RESOLUTIONS, CHEROKEE CASE, NULLIFICATION, PERSONAL LIBERTY LAWS.) However necessary it may be, it is certainly open to one criticism. The judiciary has always held that it can not interfere with the political exercise of power by congress or the president. It is evident, then, that there is a large class of cases in which the supreme court, by its own decisions, can not and will not act as the "interpreter of the constitution," (see STATE SOVEREIGNTY, SECESSION), and in these cases congress and the president must be the final judges of their own powers. The United States is thus practically made a national democracy, limited only by its own desire for representative institutions and for the preservation of state lines. To some minds this has always seemed a national tyranny; to others, the surest method of encouraging the political self-control of congress, the president, the state governments, and the national democracy itself.

II.221.4

—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.

II.221.5

—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.

II.221.6

—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 CONSTITUTION, III.) The jurisdiction of the court was thus limited to suits in which a state is plaintiff and a citizen or citizens of another state defendants.

II.221.7

—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 EXECUTIVE. III)

II.221.8

—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 YAZOO FRAUDS). The war of 1812 increased the national feeling so widely that the federal judiciary could not but reflect it. The first case which brought the change to clear view was that of Martin vs. Hunter's Lessee, in February, 1816. The 25th section of the act of 1789 had given a right of appeal to the supreme court from a final judgment of a state court in what are now often called "federal questions." that is, in questions whose decision invalidates any law or treaty of the United States. or upholds a state law claimed to be repugnant to "the constitution, treaties or laws of the United States." In February, 1813, the Virginia court of appeals refused to obey a mandate of the supreme court in an appeal of this kind, on the ground that no act of congress could constitutionally give any such right of appeal. Story's opinion in the above case in 1816, and still more Marshall's in the case of Cohen vs. Virginia, in February. 1821, upheld the constitutionality of the 25th section. and in doing so brought out for the first time to full view the "supreme law" clause of the constitution, with all its consequences. These, and the almost contemporary bank cases of McCulloch vs. Maryland, in February, 1819, and Osborn vs. The Bank of the United States, in February, 1824, (see BANK CONTROVERSIES, III), roused immediate opposition. Their root doctrines were ably controverted by Judge Roane, of Virginia, in a series of articles in the Richmond "Enquirer." May 10-July 13, 1821, over the signature of "Algernon Sidney", were warmly dissented from by at least one of the supreme court justices; and organized opposition to them in several of the states was only checked by the overshadowing importance of the Missouri question. (See COMPROMISES, IV.) Nevertheless the federal judiciary swept on to the assumption of its full limits of power. In 1827, in the Ogden case, it overthrew the insolvency laws of the states; and in 1831 it brought the state of New York before it, at the suit of New Jersey, in order to decide a disputed question of boundary. In January, 1838, the "Democratic Review" thus angrily summed up the progress of the federal judiciary since the beginning of the century: "Nearly every state of the Union, in turn, had been brought up for sentence; Georgia, New Jersey, Virginia, New Hampshire. Vermont, Louisiana, Missouri, Kentucky, Ohio, Pennsylvania, Maryland, New York, Massachusetts, South Carolina. (Delaware just escaped over Black-bird creek). all passed through the Caudine forks of a subjugation which has more than revived the suability of states. Beginning with Madison's case, there are nearly forty of these political fulminations from 1803 to 1834, viz.: one each in 1806, 1812 and 1813, two in 1815, one in 1816, four in 1819, three in 1820, two in 1821, two in 1823, two in 1824, one in 1825, four in 1827, five in 1829, three in 1830, two in 1832, two in 1833, and one in 1834; a great fabric of judicial architecture as stupendous as the pyramids and as inexplicable." The development was undoubtedly checked by the failure of the supreme court to compel obedience by Georgia in 1832 (see CHEROKEE CASE); but it was entirely arrested for a time by the political revolution in the court itself in 1835-7. In this brief space the seats of two associate justices and the chief justice were vacated by death or resignation, two new justiceships were created, and the appointments by Jackson and Van Buren completely changed the complexion of the court. In 1845-6 three new vacancies occurred which were filled by democratic appointments, and the court thereafter was rather a check than a provocative to the advance of the nationalizing spirit. (See NATION, III.; DRED SCOTT CASE.)

II.221.9

—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 HABEAS CORPUS), there was no sign of variance; the same court which had pronounced the Dred Scott decision unhesitatingly upheld the power of the national government to prosecute war against the rebellion. (See INSURRECTION, I.) The circuits in the seceding states were suspended during the war and after its close until (in 1867) martial law had ceased to operate, for the obvious reason, as given by Chief Justice Chase, that "members of the supreme court could not properly hold any court the proceedings or process of which was subject, in any degree, to military control." Circuit courts were held by various district judges in seceding states, but the supreme court declined to consider appeals from them.

II.221.10

—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 RECONSTRUCTION.) As the process of reconstruction went on, its leaders began to entertain more misgivings as to the possible action of the supreme court. One McArdle, in Mississippi, had obtained a writ of habeas corpus from a federal circuit judge to the military commission which was trying him. The circuit court refusing to discharge him, he appealed to the supreme court, and it seemed likely that the fate of the whole scheme of reconstruction would be involved in the final decision of the court. An act of congress was therefore passed repealing that section of the act of Feb. 5, 1867, which authorized such appeals in habeas corpus cases. The bill was vetoed, March 25, 1868, and passed over the veto. A bill also passed the house to forbid a declaration of the unconstitutionality of any act of congress by the supreme court, unless two thirds of the justices should concur; but it failed in the senate.

II.221.11

—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 CONSTRUCTION, III.)

II.221.12

—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 LOUISIANA.) Nearly every justice has been prominent in polities before his appointment, and some of them, as Taney, Barbour, Woodbury and Chase, very actively; but all have dropped partisanship on entering the court. The drift of the court this way or that has been due to no desire for party advantage, but to the general cast of mind of its majority for the time being. Even the Dred Scott decision must fairly be ascribed to the honest conviction of the court. The self-restraint of the court has been equally conspicuous. Its greatest period of amplification, 1815-35, was not a usurpation, but a long delayed assumption of its legitimate powers; and since that time it has not hesitated to decide, again and again, in favor of states and individuals and against the federal government or even against the jurisdiction of the supreme court itself.

II.221.13

—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 IMPEACHMENTS, II.); Bushrod Washington, of Virginia, 1798-1829; William Johnson, of South Carolina, 1804-84; Thomas Todd, of Kentucky, 1807-26: Brockholst Livingston, of New York, 1806-23; Joseph Story, of Massachusetts, 1811-45, (see his name); Gabriel Duval, of Maryland, 1811-36; Smith Thompson, of New York, 1823-43; John McLean, of Ohio, 1829-61; Henry Baldwin, of Pennsylvania, 1830-44; James M. Wayne, of Georgia, 1835-67; Philip P. Barbour, of Virginia, 1836-41; John Catron. of Tennessee, 1837-65; Peter V. Daniel, of Virginia, 1840-60; Samuel Wilson, of New York, 1843-72; Levi Woodbury, of New Hampshire, 1846-51; Robert C. Grier, of Pennsylvania, 1846-69; Benj. R. Curtis, of Massachusetts, 1851-7; Nathan Clifford, of Maine, 1858-82; David Davis, of Illinois, 1862-77; Noah H. Swayne, of Ohio, 1862-81.

II.221.14

—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.

II.221.15

—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.

II.221.16

—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.

II.221.17

—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.

II.221.18

—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 ALIEN AND SEDITION LAWS.) Since 1810 the criminal jurisdiction of the judiciary has been limited to offenses against acts passed under such powers of congress as those to lay and collect taxes, etc., to regulate commerce, to punish counterfeiting and felonies committed on the high seas, and to govern the territories. (See CONSTITUTION, ART. I.; CONGRESS, POWERS OF.) The 14th and 15th amendments, which give congress power to enforce them by appropriate legislation, have enlarged the criminal jurisdiction of the judiciary also.

II.221.19

—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.

II.221.20

—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.

II.221.21

—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.

II.221.22

—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.

II.221.23

—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.

II.221.24

—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.

II.221.25

—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.

II.221.26

—1. The failure of the Chase impeachment (see IMPEACHMENTS, II.) brought out the following amendment, proposed in the house by John Randolph, March 1. 1805 "The judges of the supreme and all other courts of the United States shall be removed by the president, on the joint address of both houses of congress. requesting the same, anything in the constitution of the United States to the contrary notwithstanding" It was postponed to the following session, was again introduced Feb 24, 1806, but was never brought to a final vote. It was reintroduced in the house, Jan. 29, 1811, by Wright, of Maryland, but the house refused to consider it; again in the senate, March 18, 1816. by Nathan Sanford, of New York, but without success.

II.221.27

—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.

II.221.28

—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 CONSTRUCTION, III.; STATE SOVEREIGNTY; SECESSION; NULLIFICATION.)

II.221.29

—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.

ALEXANDER JOHNSTON.

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