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however, provides no method of enforcing this limitation upon the legislature. If the legislature proceeds upon a wider interpretation of its powers than the view above taken warrants, no power in our system short of the sovereign can revoke its act. The legislature seems, at an early period, to have taken this wider view of its power of impeachment.1 More recently, however, it has manifested the wiser tendency to follow the narrower view.2

The final element in the principle of judicial independence is the sufficiency and stability of the salary. The constitution permits the legislature to determine the amount of the salary, but prohibits it from reducing the same during the continuance of the particular incumbent in office. As a matter of fact, the legislature has once violated this constitutional limitation and has always pursued a niggardly policy as to the compensation of the judges. From the standpoint of practical politics, however, I do not see how this subject could be regulated otherwise than it is. The judges could not, upon any sound principle of political science, be permitted to fix their own salaries. Neither could the executive be intrusted with any such power over the judiciary. The alternative lies between the constitution and the legislature. The state might, of course, prescribe the salary in the constitution, and such an arrangement would greatly increase the judicial independence, but it would be a clumsy solution of the question. The judicial salary ought to be increased as the cost of living increases, unless it should at the outset be fixed at so high a sum as to discount such increase of expenses. It would be a clumsy procedure to initiate a constitutional amendment every time that this necessity became manifest ; and, after all, it is not certain that the state would be any

1 Annals of the 8th Congress, Ist Session, case of Judge Pickering, 794 ff. 2 Annals of the 8th Congress, 2d Session, case of Judge Chase, 81 ff.; Congressional Debates, vol. vii, case of Judge Peck, 9 ff.

3 United States Constitution, Art. III, sec. I.

more generous than the legislature in this respect. The greater enlightenment of the legislature is about the only practicable way of curing this defect common to democratic

states.

III. The Judicial Powers.

The jurisdiction of the United States courts is of a double. nature. Upon the one side, it is determined by the character of the matter in controversy; upon the other, by the character of the parties to the suit.

1. It extends, in the first sphere, to all cases in law or equity arising under the constitution, the statutes, and the treaties of the United States, and to all cases of admiralty and maritime jurisdiction.1

2. It extends, in the second sphere, to all cases affecting ambassadors, other public ministers, and consuls; to controversies to which the United States shall be a party; to controversies between two or more commonwealths, between a commonwealth and citizens of another commonwealth, between citizens of different commonwealths, between citizens of the same commonwealth claiming lands under the grants. of different commonwealths, and between a commonwealth or the citizens thereof and foreign states or the citizens or subjects of foreign states.2

3

The Supreme Court has defined the phrase, “case in law or equity," to mean the submission of a subject to the judicial department by a party who asserts his rights in the form prescribed by law, i.e. a "suit instituted according to the regular course of judicial proceedings," 4 and has distinguished cases from controversies by the limitation of the latter term to civil suits. According to this distinction, the constitution

1 United States Constitution, Art. III, sec. 2.

2 Ibid.

3 Osborn v. United States Bank, U. S. Reports, 9 Wheaton, 738.

4 Story, Commentaries on the Constitution of the United States, vol. ii, p.

436 ft.

5 Chisholm v. Georgia, U. S. Reports, 2 Dallas, 419.

has conferred no criminal jurisdiction upon the United States courts wherever it denominates the suit a controversy. If they have any jurisdiction in such suits, it must rest upon an act of the legislature of the United States. Such jurisdiction does not, however, come under consideration in a work limited strictly to constitutional law.

I will not go with any fulness into the reasons for conferring judicial power upon the courts of the central government in these cases. Briefly, they are: The preservation of the supremacy and uniformity of United States law; the defense of the international responsibility of the United States; the vindication of the sovereign dignity of the United States; the prevention of self-help between the commonwealths; and the attainment of impartial decisions. These are all commanding reasons; and one or the other of these will be found to support the jurisdiction of the United States courts, as conferred by the constitution.

The two questions of greatest importance to political science and comparative constitutional law, in reference to this part of this subject, are: Whether the constitution has conferred upon the judiciary a power to stand between the constitution and the legislature and impose its interpretations of the constitution upon the legislature; and whether the constitution, or rather the state through the constitution, has conferred upon the United States courts the power of independent interpretation in all the branches of their jurisdiction.

The Supreme Court of the United States has itself answered these questions. It has asserted the power of the United States judiciary to stand between the constitution and the legislature, and to pronounce an act of the legisla ture null and void whenever it comes into conflict with such private rights or private property as, according to the interpretation placed upon the constitution by the judiciary, are guaranteed in that instrument.1 The Court, on the other

1 Civil Rights Cases, 109 U. S. Reports, 3.

hand, declines to claim any such transcendent power where the legislative act does not come into conflict with private rights or private property. Of course, the Court asserts the same power over against executive interference with private rights or private property. A fortiori, it claims the same power over against the acts of the commonwealths.2 The Court must itself determine when the case is one primarily affecting private rights or private property, and when, on the contrary, it is primarily a political question. The Court bases this position, in principle, upon the provision of the constitution which vests in the judiciary jurisdiction over all cases arising under the constitution.

The judicial interpretation of the constitution is therefore. the ultimate interpretation; but it must be given through the form of a case, and can therefore be given only upon such questions as form a proper subject for a case. Now, a case is a suit, and a suit can be brought only when some private relation is directly involved.

The conclusion of political science from this view, held by the Court itself, must be that the decision of the Court really affects only the particular case and that the executive power may, without violating the constitution, go on enforcing the nullified law in all instances where it is not successfully resisted through the courts. The general respect for judicial decision in the United States has, however, given to any particular judgment of the Supreme Court of the United States the force of a general rule, and has made it a part of our constitutional custom that the executive shall cease to undertake the further enforcement of a statute pronounced unconstitutional in any case.

1 Luther v. Borden, U. S. Reports, 7 Howard, 1; The Cherokee Nation v. Georgia, U. S. Reports, 5 Peters, 1; Mississippi v. Johnson, U. S. Reports, 4' Wallace, 475; Georgia v. Stanton, U. S. Reports, 6 Wallace, 50.

2 Cohens v. Virginia, U. S. Reports, 6 Wheaton, 264; Virginia Coupon Cases, 114 U. S. Reports, 269.

As to the question whether, in the exercise of its jurisdiction, the United States judiciary possesses the right of independent interpretation of the law, the Supreme Court of the United States has given the following answer. It has asserted this right in all cases in which jurisdiction is established by the character of the subject-matter of the suit; but when jurisdiction is based solely upon the character of the parties to the suit, it has enunciated the principle that the United States courts, in interpreting the local law which governs the case, must follow the interpretation placed upon the law by the commonwealth court of highest instance. This doctrine rests upon the assumption that all purely commonwealth law is finally interpreted by the commonwealth courts, and that the common law is purely commonwealth law;1 i.e. that the United States has no common law. The Court has not itself been able to hold to this doctrine in its practice. In many cases where the jurisdiction of the United States courts rested wholly upon the character of the parties to the suit, it has rendered decisions contradicting the decisions of the highest courts of the commonwealths concerned. Such action can be rationally explained only upon the theory that the United States has a common law; that the United States courts are quite as independent in their interpretation of this common law as in their interpretation of the constitution, statutes and treaties of the United States; and that, in many cases where the jurisdiction of the United States courts rests apparently only upon the character of the parties to the suit, the question involved is one of United States common law.

IV. The Distribution of the Judicial Powers.

I. The constitution confers original jurisdiction upon the

1 Wheaton v. Peters, U. S. Reports, 8 Peters, 591.

2 Munroe Smith, State Statute and Common Law, Political Science Quarterly, vol. iii, no. 1; Meigs, Federal Doctrine of General Principles of Jurisprudence, Central Law Journal, vol. 29, no. 24.

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