The American Commonwealth. Viscount James Bryce

justices (salary $12,500). The justices are nominated by the president and confirmed by the Senate. They hold office during good behaviour, i.e., they are removable only by impeachment; and have thus a tenure even more secure than that of English judges, for the latter may be removed by the Crown on an address from both houses of Parliament.¹ Moreover, the English statutes secure the permanence only of the judges of the Supreme Court of judicature, not also of judges of county or other local courts, while the provisions of the American Constitution are held to apply to the inferior as well as the superior federal judges.² The Fathers of the Constitution were extremely anxious to secure the independence of their judiciary, regarding it as a bulwark both for the people and for the states against aggressions of either Congress or the president.³ They affirmed the life tenure by an unanimous vote in the Convention of 1787, because they deemed the risk of the continuance in office of an incompetent judge a less evil than the subserviency of all judges to the legislature, which might flow from a tenure dependent on legislative will. The result has justified their expectations. The judges, although neither they nor anyone can wholly escape the influence of party bias, have shown themselves independent of Congress and of party authority, yet the security of their position has rarely tempted them to breaches of judicial duty. Impeachment has been six times resorted to, once only against a justice of the Supreme Court, and then unsuccessfully.⁴ Attempts have been made, beginning from Jefferson, who argued that judges should hold office for terms of four or six years only, to alter the tenure of the federal judges, as that of the state judges has been altered in most state; but Congress has always rejected the proposal.

      The Supreme Court sits at Washington from October till July in every year. The presence of six judges is required to pronounce a decision, a rule which, by preventing the division of the court into two or more branches, retards the despatch of business, though it has the advantage of securing a thorough consideration of every case. The sittings are held in the Capitol, in the chamber formerly occupied by the Senate, and the justices wear black gowns, being not merely the only public officers, but the only nonecclesiastical persons of any kind whatever within the bounds of the United States who till recently used any official dress.⁵ Every case is discussed by the whole body twice over, once to ascertain the opinion of the majority, which is then directed to be set forth in a written judgment; then again when that written judgment, which one of the judges has prepared, is submitted for criticism and adoption as the judgment of the court.

      The Circuit Courts of Appeal have been created by Congress under a power in the Constitution to establish “inferior courts.” There are at present nine judicial circuits, in which courts are held regularly. Each of these has two, three, or four Circuit judges (salary $7,000), and to each there is also allotted one of the justices of the Supreme Court. The Circuit Court of Appeal may be held either by a Circuit judge alone, or by the Supreme Court Circuit justice alone, or by both together, or by either sitting along with the District judge (hereafter mentioned) of the district wherein the particular Circuit Court is held, or by the District judge alone. To the Circuit Courts of Appeals are brought cases from District Courts, a further appeal lying, in some classes of cases, to the Supreme Court, to which moreover, in certain cases, a direct appeal from the District Courts may still be brought. There was formerly a Circuit Court, but that court was abolished in 1912 and its jurisdiction transferred to the District Courts.

      The District Courts are the fourth and lowest class of federal tribunals. They were in 1910 eighty-eight in number, and their judges receive salaries of $6,000 per annum. The Constitution does not expressly state whether they and the Circuit judges are to be appointed by the president and Senate like the members of the Supreme Court; but it has always been assumed that such was its intention, and the appointments are so made accordingly.

      For the purpose of dealing with the claims of private persons against the federal government there has been established in Washington a special tribunal called the Court of Claims, with a chief justice (salary $6,500) and four other justices (salary $6,500), from which an appeal lies direct to the Supreme Court.

      A Court of Customs Appeals was created under the Tariff Act of 1909 to decide questions relating to customs duties. It consists of a presiding judge and four associates (salary $10,000).

      The jurisdiction of the federal courts extends to the following classes of cases, on each of which I say no more than what seems absolutely necessary to explain their nature.⁶ All other cases have been left to the state courts, from which there does not lie (save as hereinafter specified) any appeal to the federal courts.

      1. “Cases in law and equity arising under the constitution, the laws of the United States and treaties made under their authority.”

      In order to enforce the supremacy of the national Constitution and laws over all state laws, it was necessary to place the former under the guardianship of the national judiciary. This provision accordingly brings before a federal court every cause in which either party to a suit relies upon any federal enactment (including the Constitution and a treaty as well as a federal statute). It entitles a plaintiff who bases his case on a federal statute to bring his action in a federal court; it entitles a defendent who rests his defence on a federal enactment to have the action, if originally brought in a state court, removed to a federal court.⁷ But, of course, if the action has originally been brought in a state court, there is no reason for removing it unless the authority of the federal enactment can be supposed to be questioned. Accordingly, the rule laid down by the Judiciary Act (1789) provides “for the removal to the Supreme Court of the United States of the final judgment or decree in any suit, rendered in the highest court of law or equity of a State in which a decision could be had, in which is drawn in question the validity of a treaty or statute of, or authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favour of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of a commission held or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority. But to authorize the removal under that act, it must appear by the record, either expressly or by clear and necessary intendment, that some one of the enumerate questions did arise in the State court, and was there passed upon. It is not sufficient that it might have arisen or been applicable. And if the decision of the State court is in favour of the right, title, privilege, or exemption so claimed, the Judiciary Act does not authorize such removal, neither does it where the validity of the State law is drawn in question, and the decision of the State court is against its validity.” ⁸

      The rule seems intricate, but the motive for it and the working of it are plain. Where in any legal proceeding a federal enactment has to be construed or applied by a state court, if the latter supports the federal enactment, i.e., considers it to govern the case, and applies it accordingly, the supremacy of federal law is thereby recognized and admitted. There is therefore no reason for removing the case to a federal tribunal. Such a tribunal could do no more to vindicate federal authority than the state court has already done. But if the decision of the state court has been against the applicability of the federal law, it is only fair that the party who suffers by the decision should be entitled to federal determination of the point, and he has accordingly an absolute right to carry it before the Supreme Court.⁹

      The principle of this rule is applied even to executive acts of the federal authorities. If, for instance, a person has been arrested by a federal officer, a state court has no jurisdiction to release him on a writ of habeas corpus, or otherwise to inquire into the lawfulness of his detention by federal authority, because, as was said by Chief Justice Taney, “The powers of the general government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State court as if the line of division was traced by landmarks and monuments visible to the eye.” ¹⁰

      2.