Studies in Civics Part 32

_Clause 1.--Extent._

The judicial power shall extend to all cases,[1] in law and equity,[2]

arising under this const.i.tution, the laws of the United States, and treaties made or which shall be made, under their authority;[3] to all cases affecting amba.s.sadors, other public ministers, and consuls;[4] to all cases of admiralty jurisdiction;[5] to controversies to which the United States shall be a party;[6] to controversies between two or more states;[7] between a state and citizens of another state;[8] between citizens of different states;[9] between citizens of the same state claiming lands under grants of different states;[10] and between a state or the citizens thereof, and foreign states, citizens or subjects.[11]_

[1] The courts decide what the law is, whether a specified law is const.i.tutional or not, and what the meaning of const.i.tutional provisions is, but only as these questions arise in _cases_ brought before them for trial. They do not advise congress or the president as to the const.i.tutionality or unconst.i.tutionally of a law. They do not directly make law. But in determining the meaning of certain laws and of const.i.tutional provisions they may determine what the law is, and thus they may be said to make law indirectly. But sometimes a legal question or a question as to the meaning of a const.i.tutional provision remains for a long time unanswered, because no _case_ involving the question comes before the courts.

[2] Sometimes the law provides no adequate remedy for a wrong. Here is the necessity for a court of equity. For instance, A sells his business to B, agreeing not to become a rival, but immediately reopens in the next block.

B's only remedy in law is to secure damages. If this remedy is shown to be inadequate, a court of equity will close A's store. Or if C, having contracted to do a certain act for D, fails or declines to perform his part, the law can only award D damages; equity will compel the fulfillment of the contract. Law is curative, equity is preventive. (See Dole, 502.)

In some states there are separate courts of law and of equity. But the provision under discussion gives the United States courts jurisdiction in cases both of law and of equity. "There are no juries in equity cases, and no criminal trials."

[3] These pertain to the whole United States, so cases arising under them should be tried by a national, not by a state, court.

[4] Thus showing respect for the governments represented by them.

[5] That is, to cases arising on the high seas or on navigable waters.

These matters, according also to I. 8: 10, 11, are under the jurisdiction of the United States, and therefore this provision is simply a consequence of the two referred to.

[6] Because then the interests of the whole country are at stake, and should not be left to any state.

[7] Because the United States was organized to "insure domestic tranquility."

[8] This provision has been modified by the eleventh amendment, which reads as follows: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." That is, if the state is the _plaintiff_, the suit may be tried by the United States Supreme Court (compare clause 2). Claims of individuals against a state, if denied by the auditor, may be referred by them to the legislature. A state cannot be sued by an individual or corporation.

When a citizen is sued he must be sued either in the courts of the United States or in those of his own state. It would be a source of irritation to compel a state to sue a citizen of another state in the courts of his own state, hence this provision that such suits shall be in the United States court.

[9] To remove temptation to injustice through local prejudice. But the suit is tried in, and in accordance with the laws of, the state of which the defendant is a citizen.

[10] Because the states are involved in the suit, and it would be unfair to let either decide the controversy.

This provision is not of much importance now, because state boundaries are clearly defined. But when the const.i.tution was framed, this kind of question meant a good deal. The charters given during colonial times were very loosely drawn, and claims of different colonies and proprietors overlapped each other. The question of ownership had not been settled at the time of the revolution. During the formative or confederation period, these disputes had been a source of much ill-feeling.

[11] Because the general government, and not the individual states, has charge of our foreign relations. A foreign country holds the United States responsible for the acts of its citizens; and only the United States can be looked to, to secure justice to its citizens on the part of foreign countries or citizens.

_Clause 2.--Jurisdiction of the Supreme Court._

_In all cases affecting amba.s.sadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.[1] In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction,[2] both as to law and fact, with such exceptions and under such regulations as the congress shall make.[3]_

[1] That is, such a suit must _commence_ in the Supreme Court, and so cannot be tried elsewhere.

[2] That is, the action must commence in some lower court, but it may be appealed to the Supreme Court.

The U.S. District Court has jurisdiction over crimes committed on the high seas, and over admiralty cases in general; over crimes cognizable by the authority of the United States (not capital) committed within the district, and over cases in bankruptcy.

The U.S. Circuit Court has original jurisdiction in civil suits involving $2000 or more, over equity cases, and over cases arising under patent and copyright laws.

[3] To relieve the Supreme Court, which was years behind with its work, congress recently provided for a U.S. Circuit Court of Appeals in each of the nine circuits, which has final appellate jurisdiction in nearly all cases except those involving the const.i.tutionality of a law.

_Clause_ 3.--_The Trial of Crimes._

_The trial of all crimes, except in cases of impeachment, shall be by jury,[1] and such trial shall be held in the state where said crimes shall have been committed;[4] but when not committed within any state,[3] the trial shall be at such place or places as congress may by law have directed.[4]_

[1] A trial by jury is a trial by twelve men impartially selected. This is regarded as one of the great bulwarks of liberty.

Civil cases may, at the desire of both parties, be tried by the court only. But for criminal trials a jury is guaranteed by this provision. In a criminal trial, the state or the nation is the prosecutor, and state or national judges _might_ be tempted to decide unjustly, if the matter were left to them.

[2] This leaves the accused in better condition to defend himself, than if he could be taken away far from home. He is thus able at the least expense to bring witnesses in his own behalf. In harmony with this, each state has at least one U. S. District Court for the trial of crimes against the general government. (See Declaration of Independence.)

This provision is probably binding also upon the states.

[3] That is, in the District of Columbia, in one of the territories, in the Indian country, in the forts or a.r.s.enals of the United States, or upon the high seas.

[4] Congress has specified courts for the trial of such crimes. Those committed on the high seas are tried in the state where the vessel arrives. (See pages 230-4.)

SECTION III.--TREASON.

_Clause 1.--Definition and Trial._

_Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.[1] No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.[2]_

[1] Treason is, in essence, a deliberate and violent breach of the allegiance due from a citizen or subject to his government. Being directed against the powers that be, the government in self defense is tempted to punish it severely. The more tyrannical a government is the more likely it is to be plotted against, and the more suspicious it becomes. If treason were undefined, the government might declare acts to be treasonable which the people never suspected to be so. This had occurred so many times, and good men had so often been sent on this charge to an ignominious death, that the framers of the const.i.tution deemed it prudent to define treason carefully in the fundamental law itself.

These provisions are taken from the famous statute of Edward III which first defined treason in England. This statute declared five things to be treasonable, only the third and fourth of which are held by our const.i.tution to be so.

[2] An overt act is an open act, not one that is simply meditated or talked about, but one actually performed.

The Supreme Court has decided that there must be an actual levying of war; that plotting to overthrow the government is not treason. But if hostilities have actually begun, if war has commenced, "all those who perform any part, however minute, or however remote from the scene of action, and who are leagued in the general conspiracy, are to be considered traitors."

Two witnesses, at least, "to the _same_ overt act," are required, because thus only can a "preponderance of testimony" be secured.

_Clause 2.--Punishment._

_The congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted._

As has been hinted, the punishment of treason had been very severe in European countries. Not only was the person convicted of treason put to death in the most horrible ways, but his property was forfeited, and no one could inherit property from him or through him. Thus not only the person himself, but also his children and his children's children, were punished. The purpose of this provision is, in the words of Mr. Madison, to restrain congress "from extending the consequences of guilt beyond the person of its author."

_Pertinent Questions._

By what authority was the Supreme Court established? By whom is it organized? Why is such a court necessary? How many judges or justices const.i.tute the Supreme Court? Name them. Tell what president appointed each.

How many and what "inferior courts" has congress established? Name the Supreme Court justice a.s.signed to this circuit. How many other states in this circuit? Name our two United States circuit judges. Name the United States district judge. How are these officers appointed? How long do they serve? State the salary of each cla.s.s of judges. What legal provision is there in regard to retiring United States judges?

If a person should rob the mail, in what court would he be tried? Tell about the Dartmouth College case. If any one should be caught making cigars without a license, before what court would he be tried? If an American owed money to an amba.s.sador from a foreign country, and declined to pay it, how could the amba.s.sador get his pay? If the amba.s.sador owed an American, how could the American get his pay? Would you, if the United States government asked you to represent it in a foreign country, like to be tried by a court of that country?

If a murder be committed in the District of Columbia, in what court is the trial had? If committed in Minnesota? In Wyoming? If a sailor should steal from a pa.s.senger, when out on the ocean, where would the case be tried and in what court?

If a state other than the one in which you live should sue you where could the case be tried? How can the United States be a party to a suit?