.

CHAPTER XXXIV.

VESTING THE JUDICIAL POWER.

ARTICLE III.

REFERENCES.

The following special references will be found useful: The writings of John Marshall, etc. (A compilation of his great constitutional decisions; Coxe, Judicial Power and Unconstitutional Legislation; Constitutional History of the United States as seen in the development of American law. A course of lectures before the Political Science Association of the University of Michigan (Thomas M. Cooley, Henry Hitchcock, George W. Biddle, Charles A. Kent, and Daniel H. Chamberlain); Stevens, Sources of the Constitution, Chapter VII.

525. The Period of the Confederation.-The ninth of the Articles of Confederation made Congress the court of last resort on appeal in all disputes and differences between two or more States concerning boundary, jurisdiction, or any other cause whatever. The same article also gave Congress authority to establish courts for the trial of piracies and felonies committed on the high seas, and courts for reviewing and determining finally all cases of captures. Congress acted in the first capacity on one or more occasions, and also organized courts such as the second provision called for. But neither Congress nor these courts had the power to execute their judicial judgments when they were questioned. The State courts even construed the Articles of Confederation. Evils both numerous and serious resulted from this state of things. Hence it was natural that all the plans of government laid before the Convention proposed a Judicial department of equal rank and dignity with the Legislative and Executive departments.1

1 On this topic, consult Jameson: Essays on the Constitutional History of the U. S., "The Predecessor of the Supreme Court."

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

526. Judiciary Act of 1789.-The Constitution itself created the Judicial department of the Government. It said there should be one Supreme Court, and defined its jurisdiction. But the creation of inferior courts, and all matters of detail in regard to the Supreme Court, it left to the discretion of Congress. Congress gave these provisions effect by enacting the Judiciary Act, approved by President Washington September 24, 1789. This act has undergone minor changes, but in its essential features it still stands, a monument to the genius of Oliver Ellsworth, of Connecticut, afterwards Chief Justice, who drew the bill, and to the first Congress.

527. Provisions of the Judiciary Act. This act provided that the Supreme Court should consist of five Associate Justices in addition to the Chief Justice, and that it should hold two sessions annually at the seat of government. It provided for District Courts to be held by District Judges, to sit four times a year, each district to consist of a State or some defined portion of a State. It also created three Circuit Courts, each one to sit twice a year in each of the several districts composing it, and to consist, when fully organized, of two Justices of the Supreme Court and of the District Judge for the district where the court sat. It also created the office of Attorney-General, and provided for a marshal in every judicial district.

528. Present Organization of the Original Courts. -At first the Supreme Court consisted of the Chief Justice and five Associate Justices; in 1807 the number of Associates was increased to six ; in 1837 to eight; in 1863 to nine; in 1866 Congress enacted that no more vacancies should be filled until the number was reduced to six; and then, in

1869, the number was made eight again. The Court holds one regular session a year at Washington, beginning the second Monday of October.

The admission of new States, the growth of population, and the consequent increase of business has multiplied the number of District Courts until there are now seventy-two. The times and places of holding these courts are regulated by law. The rule is two terms a year in every district.

At first there were no Circuit Judges so called; the Circuit Courts were held by the Supreme and District Judges. Congress in 1801 created sixteen Circuit Judgeships, but the next year repealed the act and legislated the judges out of office. In 1869 Congress created nine Circuit Judgeships, one each for the nine circuits, and in 1891 as many more; one additional judge has also been provided the second, seventh, and eighth circuits respectively, thus making twenty-one in all. The Circuit Courts are held in the several districts of the several circuits by the Circuit Justice, as the Supreme Justice assigned to the circuit is called, or by a Circuit Judge, or by the District Judge of the district, sitting alone, or by any two of the said judges sitting together. The Circuit Justice must visit each district in his circuit at least once in two years. The sessions of these courts are held at stated times fixed by law, and at special times fixed by the judges. There must be at least one session in each district each year.

529. The Circuits, Etc.-First Circuit, four districts and four District Judges, consists of Maine, Massachusetts, New Hampshire, and Rhode Island. The Second Circuit, five districts and five judges, of Connecticut, New York, and Vermont. The Third Circuit, four districts and four judges, of Delaware, New Jersey, and Pennsylvania. The Fourth Circuit, eight districts and seven judges, of Maryland, North Carolina, South Carolina, Virginia, and West Virginia. The Fifth Circuit, fourteen districts and twelve judges, of Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas. The Sixth Circuit, ten districts and eight judges, of Kentucky, Michigan, Ohio, and Tennessee. The Seventh Circuit, five districts and five judges, of Illinois, Indiana, and Wisconsin. The Eighth Circuit, thirteen districts and thirteen judges, of Arkansas, Colorado, Iowa, Kansas,

Minnesota, Missouri, Nebraska, North Dakota, South Dakota, and Wyoming. The Ninth Circuit, eight districts and eight judges, of California, Idaho, Montana, Nevada, Oregon, Washington and Utah. There are 9 circuits, 21 Circuit Judges, 72 districts, and 67 District Judges. Each district has also its own district-attorney, clerk, and marshal.

530. Judge's Tenure of Office. This is during good behavior. There is no legal way of ousting a judge but by conviction of impeachment, and hence no other way of showing that his behavior is bad. If a judge becomes mentally incompetent to perform his duties, he can be removed from the bench only in that way.

Nothing is more essential to a judicial system than the independence of the judges. The United States judges are rendered independent of the people by vesting their appointments in the President and Senate, and independent of the appointing power by making the tenure good behavior. If they were elected, they might court popular favor to secure re-elections; if they were appointed for limited terms, as four or six years, they might court the President and the Senate to secure reappointments on the expiration of their terms. The Constitution gives the President and the VicePresident, Senators and Representatives fixed terms; but these all have political power, which is far more liable to abuse than judicial power.

531. Compensation of the Judges. This cannot be diminished during their continuance in office. If Congress could diminish it, the judges would be dependent on that body and the independence of the Judiciary would be destroyed. "The Federalist "very justly observes: "In the general course of human nature, a power over a man's subsistence amounts to a power over his will." Congress may reduce the salaries, prospectively, although it has never done so, but the reduction can take effect only on the appointment of new judges. The judges' salaries, however, may be raised after their appointment, and they frequently have been raised. The President's salary can

neither be increased nor diminished during his term of

office; but there is no reason for the first restriction in the case of the judges, since they have nothing to do with making laws and fixing salaries, as the President has. When the Circuit Judges were legislated out of office in 1802, the constitutionality of the act was denied, and it is held now by some authorities that it was unconstitutional to refuse them their salaries.

At first, the Chief Justice received a salary of $4,000, the Associate Justices of $3,500, and the District Judges of $1,000 to $1,800. Since 1872 the salaries have been the Chief Justice, $10,500; the Associates, $10,000; the Circuit Judges, $6,000. The District Judges now receive $5,000. An act approved April 10, 1869, provides that any judge who has held his commission ten years, and attained the age of seventy years, may resign his office and continue to draw his salary during life.

The members of the Supreme Court divide the nine Circuits among themselves according to their convenience. At this writing (June, 1896), the assignment is as follows: First Circuit, Mr. Justice Gray; Second Circuit, Mr. Justice Peckham; Third Circuit, Mr. Justice Shiras; Fourth Circuit, Mr. Chief Justice Fuller; Fifth Circuit, Mr. Justice White; Sixth Circuit, Mr. Justice Harlan ; Seventh Circuit, Mr. Justice Brown; Eighth Circuit, Mr. Justice Brewer; Ninth Circuit, Mr. Justice Field.