At first glance it seems as if this were a judicial machinery which would be far too complicated to work smoothly; it seems as if sources of friction had been arbitrarily devised, and as if continual collisions between the authorities of the several systems would be inevitable. This is true in two instances especially; firstly, the judicial machinery, which carries out the federal laws, sometimes collides with that of the separate states. Then, secondly, the complicated system of Constitutional provisions, devised a hundred years since, may interfere with the progressive measures of Congress or the separate states; and this must be a source of much uncertainty in law. These are the actual difficulties of a legal sort. Everything else, as for instance the enormous diversity of the laws in the separate states, is of course very inconvenient, but gives rise to no conflicts of principle.
Neither of these two difficulties finds its counterpart in Germany. In no Prussian city is there a German tribunal side by side with the Prussian, no imperial judge beside the local judge; nor can one conceive of a conflict in the German Empire between the creators of the legal code and the law-givers who frame the provisions of the Constitution. This doubleness of the judicial officials is in every part of the Union, however, characteristic of the American system and necessary to it. The wonderful equilibrium between centripetal and centrifugal forces which characterizes the whole American scheme of things makes it impossible from the outset for either the whole Federation to become the sole administrator of justice, or for such administration, on the basis of federal law, to be left entirely to the separate states. As a matter of course, a clear separation of jurisdiction has been necessary. The Constitution provides for this in a way clearly made necessary by the conditions under which the Federation was formed. Justice in the army and navy, commercial policies, and political relations with other countries; weights and measures, coinage, provisions, interstate commerce, and the postal system, the laws of patents and copyrights, of bankruptcy, and of naturalization, the laws of river and harbour, cases of treason, and much else are left to the Federation as a whole. While all these matters fall naturally within the scope of federal law, there are, on the other hand, obvious reasons whereby certain classes of persons should be under the jurisdiction of the federal courts. These are, firstly, diplomatic ministers and consuls; secondly, either actual or legal parties when they belong in different states; thirdly, and most important, the states themselves. Wherever a state is party to an action, the Supreme Federal Court must hear the case and give the decision. On the other hand, the Constitution declares expressly that, wherever jurisdiction is not explicitly conferred on the federal courts, it pertains to the individual states; therefore, much the larger part of criminal law belongs to the states, and so the laws of marriage and inheritance, of contract, property ownership, and much else.
For the administration of cases within its jurisdiction, the Federation has divided the whole country into twenty-seven districts, whose boundaries coincide partly with state lines, and of which each has a district court. Groups of such districts form a circuit, of which each has a circuit court, which sits on the more important cases, especially civil cases involving large interests. And, finally, there is a court of appeals. These districts and circuits are now coincident with the regions lying in the jurisdiction of the several states. In their method of procedure the federal and the state courts resemble each other, especially in the general conduct of criminal cases, which is everywhere the same, because the Constitution itself has fixed the main features. Both state and federal courts are alike bound by the extraordinarily rigid rules framed by the Constitution in order to protect the innocent man against the severity of the law.
No criminal can be condemned except by a jury which has been sworn to perform its duty, and before he comes before this jury a provisional jury has to make the accusation against him. Thus one sworn jury must be convinced of the justice of the suspicion before a second jury can give its verdict. A person cannot be brought up for trial twice for the same crime; no one can be compelled to testify against himself; every one has the right to be brought before a jury in the district where the crime was committed, to hear all the testimony against him, to have counsel for his own defence, and to avail himself of the strong arm of the law in bringing to court such witnesses as would speak in his favour; cruel or excessive penalties may not be fixed, nor a man’s freedom or property interfered with except after due process of law. The Constitution provides this, and a good deal else, and thus makes the conduct of trials uniform. In other respects, however, there are not a few differences which are not so obvious in the courts. Among these is the circumstance that federal judges are appointed for life, while the judges of the separate states are elected for short periods of from four to seven years.
The relations between constitutional laws and legislative laws seem even more complicated. Here, too, in a way, the same province is covered by a two-fold system of laws. The fixed letter of the Constitution and the living decisions by a majority in Congress or in a state legislature, stand in opposition to each other. It is established that no legislature can ride over the Constitution; and if the interpretation of a court brings out a contradiction between the two systems, a conflict arises which in principle makes justice uncertain. If we now ask how it is possible that all such conflicts have disappeared without the least prejudice to the national sense of justice, how in spite of all these possibilities of friction no disturbance is seen, or how in a land which has been overrun with serious political conflicts, a jurisprudence so lacking in uniformity has always been the north star of the nation—the reply will be that the Supreme Court has done all this. The upper federal court has been the great reconciling factor in the history of the United States, and has left behind it a succession of honourable memorials. Its most distinguished chief justice has been John Marshall, who presided over it from 1801 to 1835. He was America’s greatest jurist, and contributed more than any one else toward impressing the spirit of the Constitution on the country.
The German reader who hears of the Supreme Court sitting at the Capitol, must not turn back in his mind to the Imperial Court at Leipzig. The Supreme Court is by no means the sole court of highest instance, for the suits in single states which properly fall within the jurisdiction of a state can go no higher than the highest court of appeal of that state. The Supreme Court in Washington is the court of last instance for federal cases; but in order to disburden the judges in Washington, there are large classes of civil cases pertaining to the federal courts, which can be carried no higher than the federal court of appeals of a given circuit. Much more important than the cases in which the Supreme Court is really the court of highest instance for federal suits, are those others in which it is at once the court of first and last instance; these are the processes which the Constitution assigns immediately to the Supreme Court. They are chiefly suits in which a single state, or in which the United States is itself a party, for the Supreme Bench alone can settle disagreements between states and decide whether the federal or state laws conflict with the Constitution. In this sense the Supreme Court is higher than both President and Congress. If it decides that a treaty which the Executive has concluded, or a law which has been passed by the Legislative, violates the Constitution, then the doings of both Congress and the President are annulled. There is only one way by which a decision of the Supreme Court can be set aside—namely, by the vote of a three-fourths majority of all the states; that is, by an amendment of the Constitution. There are some instances of this in the history of the United States; but virtually the decision of the nine judges of the Supreme Court is the highest law of the land.
The Supreme Court has annulled Congressional measures twenty-one times and state statutes more than two hundred times, because these were at variance with the Constitution. Many of these have been cases of the greatest political importance, long and bitterly fought out in the legislatures, and followed with excitement by the public. The whole country has often been divided in its opinion on a legal question, and even the decision itself of the nine judges has sometimes been handed down with only a small majority. Nevertheless, for many years the country has every time submitted to the oracle of the Supreme Court, and considered the whole issue definitely closed.
One is not to suppose that the Supreme Court occupies itself with handing down legal verdicts in the abstract and in a way declaring its veto whenever Congress or some legislature infringes the Constitution. Such a thing is out of the question, since theoretically the Supreme Court, although the equal is not the superior of Congress; most of all, it is a court and not a legislature. The question of law does not come up then before this tribunal until there is a concrete case which has to be decided, and the Supreme Court has always declined to hand down a theoretical interpretation in advance of an actual suit. As early as the eighteenth century, Washington was unable to elicit from the Supreme Court any reply to a hypothetical question. Even when the actual case has come up, the Supreme Court does not say that a certain law is invalid, but decides strictly on the one case before it, and announces on what principle of the law it has based its decision. If there is a disagreement between two laws, the decision of the Court simply lays the practical emphasis on one rather than on the other. It is true that in this way nothing but one single case is decided; but here the principle of common law comes in—one decision establishes a point of law, and the Supreme Court and all lower courts likewise must in future hand down verdicts conformable thereto. The legislative law so superseded is thus practically annulled and made non-existent. In the Supreme Court one sees again that the security of national justice rests on the binding force of former decisions.
It will be enough to point out two decisions which have been given in recent years and which have interested the whole country. In the year 1894 Congress passed a new tax law; one clause of this law taxed every income which was larger than a certain amount. It was taxation of the wealthy. So far as income was obtained by actual labour the tax was undoubtedly valid. But New York barristers doubted the constitutionality of this tax in so far as it was laid on the interest from securities or on rents; because the Constitution expressly says that direct taxation for the country must be levied by the separate states, and in such a way that the whole sum to be raised shall be apportioned among the different states according to their population. The counsels of the wealthy New Yorkers said this provision ought to apply here. The difference would be for every rich man in thickly populated states a very considerable one. If the tax was to be apportioned according to population, the poor states must also bear their share. While it came to be levied on the individuals the largest part of the burden would fall to the millionaires, who are grouped in a few states. The Supreme Court would say nothing so long as the discussion was theoretical. Finally, a case was tested; when the lawyers were prepared, a certain citizen refused to pay the income tax and let the matter go to court. The first barristers in the country were divided on the question, as was also the Supreme Court. The majority decided in favour of the citizen who refused to pay the tax, because in its opinion the tax was a direct one, and therefore the constitutional provision relating to direct taxation was in force. By this one decision the income tax was set aside, and instead of ten thousand new suits being brought, of which the outcome was already clear, the excess taxes were everywhere paid back. At bottom this was the victory, over both President and Congress, of a single eminent barrister, who is to-day the ambassador to England.
A still more important decision, because it involved the whole political future of the United States, was that on the island possessions. By the treaty with Spain, Porto Rico had become a possession of the United States, and was therefore subject to United States law; but Congress proceeded to lay a tariff on certain wares which were imported from the island. There were two possible views. On the one hand, the Constitution prescribes that there shall be no customs duties of any sort between the states which belong to the Union; and since Porto Rico is a part of the Union the rest of the states may not levy a tariff on imports from the island. On the other hand, the Constitution empowers Congress to regulate at its discretion the affairs of such territory as belongs to the United States, but has not yet been granted the equal rights of states; thus the other provision of the Constitution would not immediately apply to this island. The question had never before been decided, because the Indian territories, the Mexican accessions, and Alaska had never been treated as Porto Rico now was. Congress had previously taken for granted that the Constitution was in force for these territories, but now the imperialistic tendencies of politics had created a new situation, and one which had to be settled.