Harper's Encyclopedia of United States History
Benson Lossing, Ed.

The judicial power of the United States government is vested by the Constitution in one Supreme Court, and in such inferior courts as Congress may from time to time establish. The number of the judges of the Supreme Court is also fixed by Congress. It consists at this time of a chiefjustice and eight associate justices. They are appointed by the President, confirmed by the Senate, hold office during good behavior, and receive a compensation which cannot be diminished during their term of office. On attaining the age of seventy years, a justice of this court is entitled (if he has served ten years) to retire upon the same compensation during his life which he has received while on the bench. The court sits at Washington, from October till May, with short intermediate recesses.

For the organization of the inferior federal courts, the United States are divided into circuits, in number equal to the number of the justices of the Supreme Court. To each of these circuits a justice of that court is assigned, and has usually a residence within it. In each circuit a circuit judge is appointed. The several circuits are again divided into districts, in proportion to the amount of judicial business. Each State constitutes at least one district, and in the larger States there are several. In each district there is appointed a district judge. The circuit and district judges are appointed in the same manner, and are subject to the same provisions as to tenure of office and retirement as apply to the justices of the Supreme Court. The courts held by these judges are circuit courts and district courts, sitting for the districts in which they are held. The circuit courts may be held by a justice of the Supreme Court, by the circuit judge of the circuit, or by a district judge within his own district, or in any other district of the same circuit to which he may be temporarily assigned, or by any of these judges sitting together. The district court can only be held by the district judge in his own district.

The jurisdiction of the federal courts is extended by the Constitution to all cases in law and equity under the Constitution, the laws of the United States, or treaties made under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and be- [479]

Justices of the United States Supreme Court.

	Service.
Name.	Term.	Years.	Born.	Died.
John Jay, New York.	1789-95	6	1745	1829
John Rutledge, South Carolina	1789-91	2	1739	1800
William Cushing, Massachusetts	1789-1810	21	1733	1810
James Wilson, Pennsylvania	1789-98	9	1742	1798
John Blair, Virginia	1789-96	7	1732	1800
Robert H. Harrison, Maryland	1789-90	1	1745	1790
James Iredell, North Carolina	1790-99	9	1751	1799
Thomas Johnson, Maryland	1791-93	2	1732	1819
William Paterson, New Jersey	1793-1806	13	1745	1806
John Rutledge, South Carolina	1795-95	..	1739	1800
Samuel Chase, Maryland	1796-1811	15	1741	1811
Oliver Ellsworth, Connecticut	1796-1800	4	1745	1807
Bushrod Washington, Virginia	1798-1829	31	1762	1829
Alfred Moore, North Carolina	1799-1804	5	1755	1810
John Marshall, Virginia	1801-35	34	1755	1835
William Johnson, South Carolina	1804-34	30	1771	1834
Brockholst Livingston, New York	1806-23	17	1757	1823
Thomas Todd, Kentucky	1807-26	19	1765	1826
Joseph Story, Massachusetts	1811-45	34	1779	1845
Gabriel Duval, Maryland	1811-36	25	1752	1844
Smith Thompson, New York	1823-43	20	1767	1843
Robert Trimble, Kentucky	1826-28	2	1777	1828
John McLean, Ohio	1829-61	32	1785	1861
Henry Baldwin, Pennsylvania	1830-44	14	1779	1844
James M. Wayne, Georgia	1835-67	32	1790	1867
Roger B. Taney, Maryland	1836-64	28	1777	1864
Philip B. Barbour, Virginia	1836-41	5	1783	1841
John Catron, Tennessee	1837-65	28	1786	1865
John McKinley, Alabama	1837-52	15	1780	1852
Peter V. Daniel, Virginia	1841-60	19	1785	1860
Samuel Nelson, New York	1845-72	27	1792	1873
Levi Woodbury, New Hampshire	1845-51	6	1789	1851
Robert C. Grier, Pennsylvania	1846-70	23	1794	1870
Benjamin R. Curtis, Massachusetts	1851-57	6	1809	1874
John A. Campbell, Alabama	1853-61	8	1811	1889
Nathan Clifford, Maine	1858-81	23	1803	1881
Noah H. Swayne, Ohio	1861-81	20	1804	1884
Samuel F. Miller, Iowa	1862-90	28	1816	1890
David Davis, Illinois	1862-77	15	1815	1886
Stephen J. Field, California	1863-97	34	1816	1899
Salmon P. Chase, Ohio	1864-73	9	1808	1873
William Strong, Pennsylvania	1870-80	10	1808	1895
Joseph P. Bradley, New Jersey	1870-92	22	1813	1892
Ward Hunt, New York	1872-82	10	1811	1886
Morrison R. Waite, Ohio	1874-88	14	1816	1888
John M. Harlan, Kentucky	1877–..	..	1833	....
William B. Woods, Georgia	1880-87	7	1824	1887
Stanley Matthews, Ohio	1881-89	8	1824	1889
Horace Gray, Massachusetts	1881–..	..	1828	....
Samuel Blatchford, New York	1882-93	11	1820	1893
Lucius Q. C. Lamar, Mississippi	1888-93	5	1825	1893
Melville W. Fuller, Illinois	1888–..	..	1833	....
David J. Brewer, Kansas	1889–..	..	1837	....
Henry B. Brown, Michigan	1890–..	..	1836	....
George Shiras, Jr., Pennsylvania	1892–..	..	1832	....
Howell E. Jackson, Tennessee	1893-95	2	1832	1895
Edward D. White, Louisiana	1893–..	..	1845	....
Rufus W. Peckham, New York	1895–..	..	1837	....
Joseph McKenna, California	1898–..	..	1843	....

tween a State or citizens thereof, and foreign states, citizens, or subjects.

The result is that the federal courts have a general jurisdiction in two classes of cases, the first depending on the subject-matter of the controversy, the second upon the character or residence of parties. Under the first class are comprehended all cases where the cause of action arises under the Constitution or laws of the United States, such as actions for infringements of patents or copyrights, all cases in admiralty, all cases in which the United States is a party, and all controversies between States. Under the second class are embraced all cases in law and equity in which an ambassador, minister, consul, or alien is a party; where the parties are citizens of different States, or of the same State claiming lands under grants of different States, or where a State brings action against a foreign state, or against [480] the citizens of another State or of a foreign state. Certain public officers of the United States are also authorized to cause to be removed into the federal courts actions brought against them for acts done in their official capacity.

In cases within the first class, the jurisdiction of the federal courts is exclusive; in those of the second, it is concurrent with the jurisdiction of the State courts. In the latter class of cases, the action may be brought in the federal courts in the first instance by the party entitled to sue there, or, having been brought in the State courts, it may be seasonably removed by such a party into the federal courts.

In the exercise of the jurisdiction belonging to the federal courts, the district courts have original jurisdiction in admiralty, in bankruptcy proceedings under the United States laws, and in various revenue and other cases over which jurisdiction is specially conferred upon them by act of Congress; and an appeal lies from the district court to the circuit court sitting in the same district.

The circuit courts, besides this appellate jurisdiction from the district courts, have original and general jurisdiction in all cases in law and equity coming within either of the two classes above described. They have also jurisdiction in all criminal cases where the offence is crime on the high seas or against foreign nations, or is made criminal by statutes of the United States having reference to subjects within the control of the national government. From the circuit courts an appeal or writ of error lies to the Supreme Court of the United States, in all civil cases in which the amount in controversy is $5,000 exclusive of costs, and in all cases where a question material to the decision arises under the Constitution, laws, or treaties of the United States. There is no appeal to the Supreme Court in criminal cases, though a habeas corpus may be applied for in that court where a person has been convicted and sentenced for crime in a circuit or State court, and is in confinement, if it is claimed that on his trial or sentence any provision of the Constitution, laws, or treaties of the United States have been violated. The courts will not, however, consider any other question upon such an application, nor take cognizance of any other error.

The Supreme Court has original jurisdiction in cases affecting ambassadors, other public ministers, and consuls, and in those wherein a State is a party. It also hears applications for mandamus and habeas corpus in certain cases. In all other cases its jurisdiction is appellate, and is subject to the regulation of Congress. It has been uniformly held by the Supreme Court that the jurisdiction authorized by the Constitution is permissive only, and requires to be made effectual by appropriate legislation. Congress has, however, from the beginning provided for the exercise by the federal courts of all the jurisdiction contemplated by the Constitution, and there has never been any disposition to attempt to abridge it.

The Supreme Court, aside from the limited original jurisdiction before mentioned, and the large appellate jurisdiction from the various circuit courts, has another important power upon appeal or writ of error, in certain cases in the State courts. Whenever in an action in a State court a right is claimed on either side arising under the Constitution or laws of the United States, or any treaty with a foreign government, and the right so claimed is denied upon appeal to the highest court in the State, the cause, so far as that question is concerned, may be carried to the Supreme Court of the United States for revision. No other point will, however, be considered in that court in such case. And if the question does not distinctly arise, or is not necessary to be decided in reaching a proper judgment, the appeal will not be entertained. It will thus be seen that no person claiming the protection of any provision of the Constitution of the United States, or of any of its laws or treaties, in any tribunal in the country, whether State or federal, can be deprived of it short of a decision of the Supreme Court, if he chooses to invoke its judgment upon the question; while if a State court allows him the right he contends for, no appeal to the Supreme Court to reverse such a decision lies against him.

In the Territories organized under acts of Congress but not yet admitted as States, the judicial power is exercised by [481] federal courts, the judges of which are appointed by the President for a fixed term, and confirmed by the Senate. From the judgment of these courts an appeal or writ of error to the Supreme Court of the United States lies in most cases. In some of the Territories, inferior local courts are also authorized by the acts of organization. In the District of Columbia, in which the federal seat of government is located, and over which permanent and complete jurisdiction has been ceded to the United States by the States from which that district was taken, there is a system of federal courts having general civil and criminal jurisdiction, regulated by acts of Congress. From their decision in most cases, except criminal cases, an appeal to the Supreme Court is allowed.

Applicable to all federal courts in the United States, however constituted and wherever sitting, are certain general provisions in the Constitution, designed for the protection of accused persons against injustice, and for the insuring of fair trials in all eases.

It is declared that no person shall be held to answer for a capital or infamous crime but on the indictment of a grand jury, except in military or naval service; nor for the same offence be twice put in jeopardy, nor be compelled in any criminal case to be a witness against himself; that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district (previously ascertained by law) wherein the crime shall have been committed, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and the assistance of counsel; that excessive bail shall not be required, excessive fines imposed, nor cruel and unusual punishments inflicted.

The Constitution also provides that in suits at common law, where the value in controversy exceeds $20, the right of trial by jury shall be preserved, and that no fact tried by a jury shall be otherwise re-examined than according to the rules of the common law. This provision has reference only to proceedings in the federal courts; but a similar clause exists in all the State constitutions, applicable to all State courts.

Upon the subject of the judicial powers of the federal government it only remains to add that in every State in the Union there is a complete system of courts for the administration of civil and criminal justice, including courts of highest appeal. These courts are independent of the courts of other States, and equally independent of the federal courts, except in the particulars already mentioned— the right of certain parties to remove causes from the State to the federal courts, and the right of appeal from the State courts to the United States Supreme Court when a right claimed under the Constitution or laws of the United States has been denied. And the jurisdiction of the State courts is universal, except in the limited class of cases already referred to, over which that of the federal courts is exclusive.

In all courts in the United States, whether federal or State (except the State courts of Louisiana), the common law of England is administered, so far as it is applicable to existing institutions, and consistent with the Constitutions of the United States and of the several States, and modified by the provisions of the acts of Congress and of the State legislatures, within the sphere of their respective authority. In Louisiana alone the civil law prevails, a tradition of its Spanish and French history. The common law as it existed at the time the Constitution was formed was adopted by the States, or has been assumed by their courts and legislatures. The federal courts, however, have no common law criminal jurisdiction, and in civil cases administer the law prevailing in the States to which transactions before them are subject.

But whatever the original excellence of the Constitution as a written document, the system of government that has arisen upon its foundations is far less a creation than a growth. This is true of all governments and all systems of law, administrative or judicial, and especially of those found among English-speaking people. It has been a growth not away from nor outside of the provisions of the fundamental law, but their natural result. It is in the capacity for such an expansion [482] that the highest excellence of the Constitution lies. It became what it is through the construction and application that were given to its provisions. The wisdom that framed it would have been thrown away but for an equal wisdom to adapt the framework to its use. It was as fortunate in one as in the other, for again, in this critical period, the man and the time appeared together.

John Marshall, of Virginia, was appointed chief-justice of the Supreme Court of the United States in 1801, and remained in that office until he died in 1835. His predecessors had held the place for only very brief periods, and but few questions under the Constitution had arisen for their decision. The field opened to Marshall and his associates on the bench, in the construction and adaptation of that instrument, was, therefore, nearly untrodden. In the thirty-five years during which he presided, the Constitution, in its most important features, and in respect to its controlling principles and rules of construction, took permanent shape.

It was said of Marshall by William Pinkney that “he was born to be the chiefjustice of whatever country his lot might happen to be cast in.” In temper judicial, in character dignified and blameless, in perception unerring, in reasoning luminous, in the principles of law a master, his judgments, sustained by an invincible logic, and expressed with a nervous simplicity that left no word to be misunderstood, approached the nature of demonstration. Imbued with the spirit of all precedent, he rarely cited any; rich in the learning of jurisprudence, he used it to illustrate principles, not to obscure them. Englishmen, less familiar with American history than with the long line of illustrious names that have adorned the judgment-seat of their country, may be surprised to be told that John Marshall, in the qualifications of a great magistrate, as well as in the magnitude and dignity of his judicial work, was the peer of the best among them all.

His associates on the bench were also men of a high order. Three of them had been members of the convention that adopted the Constitution; another, for a considerable part of the time, was Judge Story, one of the most learned of American lawyers. But it stands upon their testimony that, in constitutional law, Marshall was the master-spirit. Only once while he was on the bench was he overruled upon a question of that sort, and then by a bare majority of his associates. And it is now plain to be seen that in that instance the strength of the argument was on his side.

The problems presented to the Supreme Court were altogether new in a tribunal of law. Courts are usually concerned with the administration of individual justice. They are not called upon to settle principles of government, to adjust the relations of States, or to set bounds to the exertion of political authority. The proceedings of courts sitting under the common law had been previously based upon a system of government they had little share in forming, and upon the will of Parliament as the supreme law and the final arbiter of the Constitution. There were, therefore, no precedents by which this court could be guided; they had to make precedents, not to follow them. The intent and scope of the Constitution had to be deduced by general principles of construction, in view of its great purposes and farreaching consequences.

The questions were not only novel, but difficult. Many of them had given rise to great difference of opinion among lawyers, judges, and statesmen, and the court was not always able to reach a unanimous conclusion in deciding them. This paper would extend into a treatise were it attempted to review, or even to state, the series of decisions, in which one doubt after another, arising upon the Constitution, was settled and disposed of. Questions affecting and determining the powers of the federal government, and of its various departments, the authority of the State governments, and their relation to that of the nation, the extent and quality of the protection afforded by the Constitution to personal and political rights, the limits of the judicial jurisdiction, and many others of minor significance in comparison, but still most material, found a solution in these judgments of the Supreme Court, that has remained, and will remain, the permanent and undisputed law of the land. And thus was infused into the Constitution the breath of life.

The effect of these decisions upon public [483] sentiment, as from time to time they took place, was striking and conclusive. However warmly the subjects had been debated, however great had been the diversity of opinion, although in some instances the controversies had assumed a political character, and had entered into the warfare of parties, the judgments of the court, when they came to be pronounced, always deliberate, passionless, unpartisan, and just, commanded complete and immediate confidence. It was generally seen that they were right; it was always felt that they must be respected.

Time, the supreme test of the value of human exertion, has demonstrated the excellence of this early and striking chapter of judicial history. What was doubtful in the outset is now made clear by the light of experience. No competent tribunal could at the present day be induced to abandon or change the principles of constitutional jurisprudence that were established in that first half-century, if they were now all open to be reconsidered.

Looking back upon these discussions with the aid of what has since taken place, it is easy to see how different might have been the result, in the hands of a tribunal less wise and far-sighted. It was the formative period of the Constitution, in which it was determined whether it should perish, or whether it should endure. If its administration had commenced upon narrower or less sagacious principles of interpretation, its history would have been brief. Next to the years of the Revolution, this was the most critical time in the life of the young republic, and perhaps even more critical than they were. Had the Revolution been defeated, another would have succeeded; but had this effort at union failed, as its predecessor did, a third would hardly have been attempted. A better or more hopeful Constitution could not have been constructed. America would probably have been divided into as many states as Europe; under what forms of government, and with what subsequent history, is not to be conjectured.

It is by no means to be inferred from these observations that it is meant to be implied that the construction of the Constitution was terminated by Marshall's court. Its great leading principles were then principally determined, and the lines on which its subsequent administration proceeded were in a large measure laid down. In a field so novel everything depended on the beginning. But so long as the Constitution remains the supreme law its construction will not terminate. The time will never arrive, while the Constitution lasts, in which the court will cease to be occupied in ascertaining the application of its provisions to new cases and new subjects, in the ever-changing emergencies of human affairs. Many most important and interesting questions have arisen under it, and have been decided, from time to time, and through all the time since Marshall's day. The Civil War, especially, was fruitful of controversies involving constitutional discussion, on points of great consequence, which no previous occasion had brought into consideration. During the very last term completed by the court four or five cases were determined which turned upon constitutional questions.

In dealing with this delicate subject the court expresses no obiter opinions. It will never decide such a question under any circumstances, unless it is absolutely necessary to a determination of the case before it. The unconstitutionality of the act or proceeding in dispute must clearly appear, or it will not be held void; a doubt, however grave, is not enough. It must be shown to infringe some express provision of the Constitution, not merely its general spirit. And when only a part of an act is found to be an infringement, the remainder will be valid. A decision once reached, even though by a divided court, will not be departed from. In only one instance in the history of the court has the decision of a constitutional question been reconsidered and a different result arrived at. And that was upon a rehearing of the same case in which the former judgment was given, the court being on both arguments divided in opinion. It is another rule in respect to these cases that they will never be heard without the presence of all the members of the court. And the judgment is always announced in a written opinion, which is placed upon record, and reported under the supervision of the court.

So much has been said on the subject [484] of judicial construction that it should be further pointed out that its application to the Constitution is not universal. The Supreme Court has no jurisdiction to decide questions of that sort, except when they arise in actions at law or in equity which come before it in actual litigation. Nor will it ever allow fictitious or collusive cases to be made up for that purpose. It is only, therefore, when the act or the legislation which is claimed to be in contravention of the Constitution reaches and actually affects some individual or corporate right, capable of being vindicated in a court of justice, that the question can come before the Supreme Court for consideration. Legislative or executive proceedings which are in their nature political, which, however they may affect the general welfare and the public interest, do not come in contact with personal rights, or reach one individual in the community more than another, cannot be the subject of litigation. In respect to such subjects the action of the executive or legislative departments within their respective spheres is final, and the judicial power has nothing to do with it but to accept the result. Such are questions of the existence of war or peace, the de facto government of a foreign country, or the extent of its jurisdiction, the authority of ambassadors or ministers from other countries, the admission or division of States, and others of the same general character. Many topics of this sort, involving grave constitutional inquiries, have been discussed and dealt with in Congress upon memorable occasions. The public policy of the government has been thus directed and controlled. It has been with the relation of the States and their citizens to the federal government under the Constitution that the Supreme Court has been chiefly concerned.