over a succession of officers, especially of elected officers. Men come and go, but an assembly goes on forever; it is immortal, because while the members change, the policy, the passion for extending its authority, the tenacity in clinging to what has once been gained, remain persistent. A weak magistrate comes after a strong magistrate, and yields what his predecessor had fought for; but an assembly holds all it has ever won. Thus Congress has succeeded in occupying nearly all the ground which the Constitution left debatable between the President and itself; and would, did it possess a better internal organization, be even more plainly than it now is the supreme power in the government. THE AMERICAN SYSTEM OF GOVERN MENT The Courts and the Constitution WH CHAPTER I THE FEDERAL COURTS THEN in 1788 the loosely confederated States of North America united themselves into a nation, national tribunals were felt to be a necessary part of the national government. Under the Confederation there had existed no means of enforcing the treaties made or orders issued by the Congress, because the courts of the several States owed no duty to that feeble body, and had little will to aid it. Now that a Federal legislature had been established, whose laws were to bind directly the individual citizen, a Federal judicature was evidently needed to interpret and apply these laws, and to compel obedience to them. State courts were not fitted to deal with matters of a quasi-international character, such as admiralty jurisdiction and rights arising under treaties. They supplied no means for deciding questions between different States. They could not be trusted to do complete justice between their own citizens and those of another State. Being authorities coordinate with, and independent of, one another, with no common court of appeal placed over them to correct their errors or harmonize their views, they would be likely to interpret the Federal constitution and statutes in different senses, and make the law uncertain by the variety of their decisions. These reasons pointed imperatively to the establishment of a new tribunal or set of tribunals, altogether detached from the States, as part of the machinery of the new government. Side by side, of the thirteen (now forty-five) different sets of State courts, whose jurisdiction under State laws and between their own citizens was left untouched, there arose a new and complex system of Federal courts. The Constitution drew the outlines of the system. Congress perfected it by statutes; and as the details rest upon these statutes, Congress retains the power of altering them. Few American institutions are better worth studying than this intricate judicial machinery: few deserve more admiration for the smoothness of their working: few have more contributed to the peace and well-being of the country. The Federal courts fall into three classes: The Supreme Court, which sits at Washington. The District courts. The Supreme Court is directly created by the Constitution, but with no provision as to the number of its judges. Originally there were six; at present there are nine, a Chief Justice, with a salary of $10,500, and eight associate justices (salary $10,000). The justices are nominated by the President and confirmed by the Senate. They hold office during good behavior, i.e., they are removable only by impeachment. 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. 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 have shown themselves independent of Congress and of party, yet the security of their position has rarely tempted them to breaches of judicial duty. Impeachment has been four times resorted to, once only against a justice of the Supreme Court, and then unsuccessfully. 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 dispatch 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. 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 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 annually. Each of these has two Circuit judges (salary $6,000), and to each there is also allotted one of the justices of the Supreme Court. The Circuit Court may be held either by the 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. [By a statute of 1891, Circuit Courts of Appeals were established. Cases may be brought to these from District or Circuit Courts, as also certain cases to the Supreme Court, to which likewise, in specified cases, direct appeal may be brought from the District or Circuit Courts.] An appeal lies from the Circuit Court to the Supreme Court, except in certain cases where the amount in dispute is small. The District Courts are the third and lowest class of Federal tribunals. They are at present fifty-five in number, and their judges receive salaries of $5,000 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 per sons against the Federal government there has been established in Washington a special tribunal called the Court of Claims, with five justices (salary $4,500), from which an appeal lies direct to the Supreme Court. The jurisdiction of the Federal courts extends to the following classes of cases. 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. It entitles a plaintiff who bases his case on a Federal statute to bring his action in a Federal court: it entitles a defendant who rests his defense on a Federal enactment to have the action, if originally brought in a State court, removed to a Federal court. 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 favor 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, |