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the federal courts, to arrest offenders against federal law, and to otherwise assist in the execution of that law. Both of these officers are appointed by the President and Senate.

The Federal Judicial Power

The jurisdiction of the federal courts is defined in the Constitution. It embraces, on the one hand, cases affecting certain persons or parties and, on the other hand, cases relative to certain


1. In the first place, the jurisdiction of the federal courts covers cases affecting ambassadors, other public ministers and consuls; controversies to which the United States is a party; controversies between two or more states, between a state and citizens of another state, between citizens of different states,' and between a state or the citizens thereof and foreign states, citizens or subjects with the provision that the judicial power shall not extend to any suit in law or equity commenced or prosecuted against one of the United States by American citizens or by citizens of foreign states. When any of these parties are involved in controversies, the case may come under federal judicial power, regardless of the nature of the matter in controversy. So much for the jurisdiction of the federal courts over parties. 2. In the next place, the federal judicial power extends to certain matters, regardless of the character of the parties involved in the controversy; that is, to all cases in law and equity arising under the Constitution, the statutes, and the treaties of the United States and to all admiralty and maritime cases.

A case, according to Story,2 arises "when some subject touching the Constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law." In other words, a case in law or equity comes within the federal judicial power whenever a correct decision of the controversy involves in any way the interpretation of the Constitution or federal laws or treaties.3

1 Also between citizens of the same state claiming lands under grants of different states. For the purposes of suing in federal courts corporations are regarded as "citizens," but for other purposes they are regarded as "persons." Commentaries, Vol. II, section 1646.

3 Of course it is often the duty of state courts to apply federal law, but provision is made for appeal from their decisions. See below, p. 308.

With the exception of two classes of cases, the Constitution does not say which of the federal courts shall have jurisdiction over any particular matter, but leaves the distribution of the judicial powers to Congress. The two exceptions are cases affecting ambassadors, other public ministers, and consuls and cases in which state may be a party. Over such cases the Supreme Court, under the Constitution, has original, but not exclusive, jurisdiction; that is to say, whenever any such case arises, it may be taken into the Supreme Court in the very beginning, without having been previously tried in any lower court. Since, however, the Constitution does not confer exclusive jurisdiction in such matters, it is left for Congress to decide whether any other federal court or courts may also try these cases and under what limitations. Over all other cases falling within the scope of the federal judicial power, the Supreme Court has only appellate jurisdiction as to law and fact, subject to such exceptions and under such regulations as Congress may make.

The Great Writs

In the exercise of their judicial functions the federal courts have the power of issuing certain writs which affect very fundamentally the rights of citizens.

1. The first and most famous of these writs is that of habeas corpus. This writ is designed to secure to any imprisoned person the right to have an immediate preliminary hearing for the purpose of discovering the reason for his detention. For example, a United States marshal in the execution of the revenue laws kills a citizen of a state and is arrested and imprisoned by the state authorities. His attorney applies to some near-by federal court for a writ of habeas corpus, which writ will require the state officer having charge of the prisoner to produce him in the federal court where the reasons for his arrest and detention are to be examined.

The Supreme Court and Circuit and District courts of the United States have the power of issuing writs of habeas corpus, and the several justices and judges of these courts within their respective jurisdictions have the power of granting the writ for making inquiries into the cause of arrest. This does not mean, however, that a federal judge may issue the writ indiscriminately.

It can only be issued when a prisoner is in jail under federal custody or authority; or for some act done or omitted in pursuance of a law of the United States or the order, process, or decree of some federal court or judge; or is in prison in violation of the Constitution or some law or treaty of the United States; or is a citizen of a foreign country claiming to be imprisoned for some act committed with the sanction of his government.' In other words, a federal judge cannot issue a writ of habeas corpus in behalf of some person who merely claims that he is detained in violation of the law of a commonwealth. He must be a prisoner held either under federal authority, or by state authority in violation of some law of the United States.

The application for a writ of habeas corpus is made to the proper court by a complaint in writing, signed by the prisoner, setting forth the facts concerning his detention and the reasons for his imprisonment, if they are known to him, and stating in whose custody he is held. It is the duty of the judge upon application to grant the writ, unless it is evident from the application itself that the prisoner is not entitled to it under the law. Within a certain time the person to whom the writ is directed must make due return, bringing the prisoner before the judge and certifying as to the cause of his detention. The court or judge, thereupon, must proceed in a summary way to examine the facts, hear the testimony and arguments, and either release the prisoner (if he is detained in violation of the law), or remand him for trial if there is no warrant, under the law, for interfering. 2. The second writ is the writ of mandamus which is used against public officials, private persons, and corporations for the purpose of forcing them to perform some duty required of them by law. The mandamus is properly used against executive officers to compel them to perform some ministerial duty."3 Where the duty is purely discretionary and its performance


1 Taylor, Jurisdiction and Procedure of the United States Supreme Court, P. 503.

2 It was early settled by judicial decision that no federal court (except the Supreme Court of the District of Columbia) could issue the writ of mandamus except in aid of the exercise of jurisdiction acquired in some other way.

* An excellent example of the use of mandamus is afforded by the case of Postmaster-General Kendall, who was ordered by the Supreme Court to obey the provisions of an act of Congress directing him to pay certain sums due to mail-carriers under government contract (1837).

depends upon the pleasure of the official or upon his own interpretation of the law, the court will not intervene. In general, any one seeking the writ of mandamus to compel a federal officer to perform an act must show that he has no other adequate legal remedy and that he has a clear legal right to have the action in question performed by the officer. "It is elementary law that mandamus will only issue to enforce a ministerial duty as contradistinguished from a duty that is merely discretionary. This doctrine was clearly and fully set forth by Chief Justice Marshall in Marbury v. Madison and has since been many times reasserted by this Court." The writ of mandamus is also often used to compel an inferior court to pass upon some matter within its jurisdiction which it has refused to hear or act upon.2

3. The third great writ is the writ (or bill) of injunction. This writ may be used for many purposes. Sometimes it takes the form of a mandatory writ ordering some person or corporation to maintain a status quo by performing certain acts. Thus, for example, the employees of a railway may be forbidden to refuse to handle the cars of some company which they wish to boycott; in other words, may be ordered to continue to perform! their regular and customary duties while remaining in the service of their employer. Sometimes the injunction takes the form of a temporary restraining order forbidding a party to alter the existing condition of things in question until the merits of the case may be decided. Sometimes the writ is in the form of a permanent injunction ordering a party not to perform some act the results of which cannot be remedied by any proceeding in law.


The question of injunctions has been brought into national politics by the frequency with which federal courts have issued them in labor disputes. Inasmuch as corporations are often "citizens" of some other state than that in which their striking laborers reside, it is easy for them to seek relief at the hands of the federal courts on the ground of diversity of citizenship. Injunctions are also occasionally granted by the federal courts in

1 The United States, etc., v. Lamont, 155 U. S. R., 308.

2 Taylor, Jurisdiction and Procedure, pp. 512 ff.

3 Judson, The Law of Interstate Commerce (1905), p. 127, note 3.
4 See above, p. 301 and note 1.


cases involving interference with interstate commerce matter coming under federal authority. For example, during the famous Chicago strike in 1894, the federal district court in that city issued a general injunction to all persons concerned, ordering them not to interfere with the transmission of the mails or with interstate commerce in any form. Mr. Debs, who was directing the strike which was tying up interstate commerce, was arrested, fined, and imprisoned for refusing to obey this injunction. Debs thereupon, through his counsel, claimed the right to jury trial, asserting that the court could not impose a penalty which was not provided by statute. On appeal, the Supreme Court affirmed the right of the lower court to grant an order enjoining any person from interfering with interstate commerce over natural or artificial highways, and held that imprisonment for contempt of court did not violate the principle of due process of law.

Accordingly, this power of the federal courts to issue injunctions was brought into politics by working-men who claimed that those courts, in many instances, issued writs hastily, arbitrarily, and with prejudice to their legal rights. In 1908 the question was taken up by both of the great political parties. The Democratic party said in its platform: "We believe that the parties to all judicial proceedings should be treated with rigid impartiality and that injunctions should not be issued in any cases in which injunctions would not issue if no industrial dispute were involved "; and furthermore reiterated the pledges of 1896 and 1904 trial by jury in all cases of persons arrested for indirect contempt; that is, contempt committed outside the presence of the court. On account of the stand taken by the Democratic party, Mr. Gompers, President of the American Federation of Labor, came out openly in support of Mr. Bryan and attempted to secure for him the labor vote throughout the United States.

The issue was also taken up by the Republicans. In their platform they declared, "that the rules of procedure in the federal courts with respect to the issuance of the writ of injunction should be more accurately defined by statute and that no injunction or temporary restraining order should be issued without notice, except where irreparable injury would result from delay, in which case a speedy hearing thereafter should be granted."

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