§ 386. Same-"Inferior Courts" of the United States.-The principles upon which the federal government was constructed, and the relations between that government and the state governments, required that the judicial power of the United States should be exercised in both (1) the original and (2) the appellate form; and the original jurisdiction of the supreme court having been limited by the constitution to a few classes of cases, and declared in all others to be appellate, it was necessary that the large residuum of original jurisdiction should be vested in other tribunals; and it was necessary that there should be in each state or district of the United States federal courts of original jurisdiction of federal causes; and it was, therefore, provided in the constitution that the congress should have power "to constitute tribunals inferior to the supreme court.'

99 24

§ 387. Constitutional provision securing the independence of the federal judiciary.-The complete independence of the judges is requisite to the due and faithful administration of justice, and the stability of the government; and this is especially true in a government founded upon a written constitution, which imposes limitations upon the legislative power, and in consequence of which the judges will be called upon to declare void legislative enactments which are found to be repugnant to the fundamental law, a duty, the performance of which may, and often does, require high courage and an "independent spirit in the judges." Such independent judicial action is often necessary to prevent "dangerous innovations in the government," defeat efforts to subvert the constitution, and to protect the rights of the life, liberty and property of persons. The usual means of securing the independence of the judges are: (1) A permanent tenure of office, (2) a fixed provision for their support, which may not be diminished, but may be increased during their continuance in office, and (3) precautions for their responsibility.25

The independence of the judges of the courts of the United States is secured by constitutional provision, namely: "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." 26

§ 388. The constitution mandatory upon congress to organize the federal judiciary.-The supreme court was created by the constitution; it exists by a direct grant to it of judicial power. That instrument declares that there shall be "one supreme court," that a part of judicial power, both original and appellate, shall be vested in it, determines the mode of the appointment of the judges of the court, fixes their tenure of office, makes provision for their compensation, authorizes congress to ordain and establish other and inferior courts in whom shall be vested the residue of judicial power, and gives it power to make all laws necessary and proper for carrying into execution all powers vested by the constitution in the government of the United States. But, in the nature of things, the judicial system of the United States, which had been provided for in the constitution, could not be organized and its jurisdiction distributed, and the powers of the several courts defined and their exercise regulated, without legislative action; and the principle has long been settled that the constitution was mandatory upon congress to organize the supreme court, establish inferior courts, distribute the judicial power, regulate its exercise, and bring into operation the federal judiciary, consistently with the great outlines delineated in the fundamental law; and to suppose that congress could have declined to perform that duty, is to suppose that it could, by inaction, have defeated the constitution itself.27

$389. Same-The federal judiciary organized by congress under the original judiciary act.-In obedience to the mandate of the constitution, 28 congress, by the original judiciary act,20 passed at its first session after the adoption of the constitution, organized the supreme court, and defined its jurisdiction, original and appellate, consistently with the organic law, and divided the United States into judicial districts and judicial cir

26 U. S. Const. art. III, sec. 1. 27 Martin v. Hunter's Lessees, 1 Wheat. 304 (4:97); Rhode Island v. Massachusetts, 12 Pet. 657 (9: 1233, 1259, 1262); Sheldon v. Sill,

8 How. 441 (12:1147); Cary v. Curtis, 3 How. 236 (11:577).

28 Rhode Island v. Massachusetts, 12 Pet. 657 (9:1233).

29 1 U. S. Stat. at L. ch. 20, pp. 73-79.

cuits, created district courts and circuit courts, defined their powers and jurisdiction, and regulated the exercise thereof, and gave to all the courts of the United States power to issue writs of scire facias, habeas corpus, and all other writs not specialy provided for by statute, and which might be necessary for the exercise of their respective jurisdictions, and agreeable to the prnciples and usages of law; and fully organized the federal judicial system and brought it into active operation.30

§ 390. Same-Creation of the United States circuit courts of appeals. All of the appellate judicial power of the United States was not vested by the constitution in the supreme court; appellate jurisdiction was given by that instrument to that court, in a designated class of cases, "with such exceptions and under such regulations as the congress shall make," which left congress free to create inferior courts and vest in them a part of the appellate jurisdiction.31 And congress, by the act of March 3, 1891, in the exercise of its acknowledged power, and in order to facilitate the prompt disposition of cases in the supreme court, and to relieve it of the overburden of cases and controversies resulting from the rapid growth of the country and the steady increase of litigation, created in and for each circuit a circuit court of appeals, and transferred to them a large part of the appellate jurisdiction which had been theretofore vested in the supreme court, and distributed between the former and the latter the entire appellate jurisdiction over cases from the circuit and district courts of the United States.32 § 391. The courts constituting the federal judicial system.— The courts now constituting the federal judicial system, as provided for by the constitution are: (1) District courts; (2) circuit courts; (3) circuit courts of appeal; and (4) the supreme court. The first, second and third are, within the meaning of the constitution, inferior courts, constituted by congress, in the execution of the power invested in it by the constitution for that purpose.33

30 Rhode Island V. Massachusetts, 12 Pet. 657 (9:1233).

31 Martin v. Hunter's Lessees, 1 Wheat. 304 (4:97); U. S. Const. art. III, sec. 2, cl. 2.

32 McLish v. Robb, 141 U. S. 661 35:893); Re Lau Ow Bew, 141 U.

S. 583 (35:868), S. C. 144 U. S. 47 (36:340); American Construction Co. v. Jacksonville, Tampa & Key West Ry. Co., 148 U. S. 372, 378 (37:486); 26 U. S. Stat at L. ch. 517, p. 826.

33 U. S. Const. art. I, sec. 8, cl. 9.

§ 392. Same-Inferior courts not inferior in the commonlaw sense. The district courts, and circuit courts, and circuit courts of appeal of the United States, are not "inferior courts" in the common-law or technical sense; they are so only in the sense of the federal constitution, and in subordination to the supreme court; and their judgments and proceedings are not to be regarded and interpreted in the light of the common-law rules appplicable to inferior common-law courts.3

34

§ 393. The jurisdiction of the federal judiciary is co-extensive with the legislative power.-It is requisite to a free and balanced constitution, that there be a judicial department coordinate and co-extensive with the legislative power, vested with jurisdiction adequate to the enforcement of all legislative, enactments, the administration of justice between parties claiming rights and immunities under the constitution and laws, and the execution of all the powers of government which can be rightfully exercised, in so far as these objects can be conveniently and legitimately accomplished through courts of justice.35 The federal judiciary meets this requirement. It has exclusive jurisdiction of all criminal violations of the laws of the United States, whether committed on land or on the high seas; all suits for penalties and forfeitures under any law of the United States; all suits under the revenue and postal laws of the United States; all causes of admiralty and maritime jurisdiction, saving to suitors in all cases a common-law remedy where the common law is competent to give it; all prize causes; all suits brought by any alien for a tort only in violation of the laws of nations, or of a treaty of the United States; all suits against ambassadors and ministers; many classes of

34 Livingston v. Van Ingen, 1 Paine, 45, Fed. Cas. No. 8,420; Turner v. Bank of North America, 4 Dall. 8 (1:718); McCormick v. Sullivan, 10 Wheat. 192 (6:300); Kempe's Lessees v. Kennedy, 5 Cranch, 173 (3:70); Cutler V. Houston, 158 U. S. 423, 431 (39: 104); Evers v. Watson, 156 U. S. 527 (39:520); Navigation Co. v. Homestead Co., 123 U. S. 552 (31: 202); Ex parte Cuddy, 131 U. S.

(33:154); Ex parte Cooper, 143 U. S. 472, 513 (36:232); Dowell v. Applegate, 152 U. S. 327, 346 (38:463).

35 Cohens v. Virginia, 6 Wheat. 264 (5:257); Osborn v. Bank, 9 Wheat. 738 (6:204); Marbury v. Madison, 1 Cranch, 137 (2:60); Federalist, Nos. XLVI, XLVII, LXXVIII and LXXX; 1 Spirit of Laws (Rev. Ed.) 149-182.

38

39

37

civil actions arising under the laws of the United States; 30 suits to enforce the interstate commerce act, and the antitrust act; matters in bankruptcy. And it has concurrent jurisdiction with the state courts in a large class of civil cases arising under the constitution, laws and treaties of the United States, and cases based on diversity of citizenship, in which it administers the municipal laws of the states; 40 and exclusive jurisdiction of suits between states.1 This jurisdiction enables the government to punish all violations of its criminal laws, collect its revenues, execute the powers of government vested in it by the constitution, secure domestic tranquility, and control all matters affecting the relations of this country with foreign governments.43

42

44

§ 394. The federal judiciary necessary to enforce the constitutional limitations upon the states.-The active principle ** in republican governments based upon written constitutions requires that there shall be a peaceful and "constitutional method of giving efficacy to constitutional provisions," and especially so in a complex system where there are several legislative bodies, legislating for distinct local communities, but restrained by constitutional limitations; and this object of giving efficacy to the fundamental law can be attained with greater uniformity and certainty, with better security to the life, liberty and property of the citizen, with less friction and better security of the public tranquility and preservation of the public faith, by the exercise of judicial power, through a competent, independent and efficient judiciary, than by any other

36 U. S. Rev. Stat. secs. 563, 564, 629, 630, 687, 711, 3039, 4270, 4540, 4610, 4970, 5308, 5309, 5555; 4 Fed. Stat. Anno. 216-236, 245-251, 493497; 1 U. S. Comp. Stat. 455-460, 501-517, 576–578.

37 U. S. R. S. sec. 4386, 4389, 5258; 23 U. S. Stat. at L. ch. 60, sec. 6, pp. 31, 32; 24 U. S. Stat. at L. ch. 104, p. 379; 26 U. S. Stat. at L. ch. 128, p. 743; 25 U. S. Stat. at L. ch. 1063, p. 501; 27 U. S. Stat. at L. ch. 196, p. 531; Re Debs, 158 U. S. 564 (39:1092).

38 28 U. S. Stat, at L. ch. 349, sec. 73, 74, p. 570.

39 U. S. R. S. sec. 630; 30 U. S. Stat. at L ch. 541, p. 544.

40 18 U. S. Stat, at L. ch. 137, pp. 470, 473; 25 U. S. Stat. at L. ch. 866, p. 433.

41 U. S. R. S. sec. 687.

42 Re Debs, 158 U. S. 564 (39: 1092).

43 U. S. Rev. Stat. sec. 5283; United States V. The Three Friends, 166 U. S. 1, 83 (41:897, 925).

441 Spirit of Laws (Rev. Ed.) 19-22.