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tained their validity. Taken as a is absolute in authority. From its mandates whole, the decisions of this period nity and moral influence it outranks all other
there is no appeal. Its decree is law. In dig. constitute a body of law unique as re- judicial tribunals of the world. No court of
either ancient or modern times was ever invested gards the questions raised, and of far
with such high prerogatives. Secure in the tenure reaching importance as establishing of the judges from the influences of politics and the Constitutional power of the Gov
the violence of prejudice and passion, it presents ernment in directions and for pur
an example of judicial independence unattainable
in any of the States and far beyond that of the poses scarcely imagined before. His- highest court in England. No institution of tory will not fail to regard this as a
purely human contrivance presents so many
features calculated to inspire both veneration and period in the life of the Federal judiciary not less interesting and impor
From its institution in 1790 to 1912 tant than any that had preceded it.
the Supreme Court had only nine With the accession of Edward D.
Chief Justices, all but two of whom White to the Chief-Justiceship in 1910 and the change in the personnel of
(John Jay and Oliver Ellsworth) died
in office. Prior to the incumbency of nearly one-half the Court in that and
Chief Justice White (appointed in the preceding year, the Court in effect
1910) the average term of service was entered upon a new career, in which
little more than 14 years. Prior to the indications were that its wisdom
1912 there had been 59 Associate would be called into exercise more
Justices, whose average term of servthan ever before upon questions re
ice was about 17 years. Those longest lating to the commercial and indus
on the bench were Chief Justice trial interests of the people.
Marshall, Justice Joseph Story, JusIn its later, no less than in its
tice Stephen J. Field, and Justice earlier, career the Supreme Court has
John M. Harlan, each serving 34 proved one of the most efficient and
years. most admirable arms of the Govern
While the Supreme Court was ment. One of its warmest admirers has written of it in terms profoundly tion of the inferior courts was left to
created by the Constitution, the creajust, though unduly enthusiastic:
Congress. There was even more dif“The establishment of the Supreme Court of ference over these courts by the the United States was the crowning marvel of the wonders wrought by the statesmanship of
framers of the Constitution than there America. In truth the creation of the Supreme was respecting the higher court. Court with its appellate powers was the greatest
There was a strong demand for leavconception of the Constitution. It embodied the loftiest ideas of moral and legal power, and al- ing to the State courts jurisdiction in though its prototype existed in the superior first instance over Federal cases as courts of the various States, yet the majestic proportions to which the structure was carried
well as those pertaining to the State. became sublime. No product of government either here or elsewhere has ever approached it * Hampton L. Carson, The Supreme Court of in grandeur. Within its appropriate sphere it the United States: Its History, pp. 6-8.
It was feared by many that the in- court of claims, consisting of one chief ferior Federal courts would in time justice and four associate judges to destroy the power of the State judi- hear and determine claims against the ciaries. Eventually Congress came United States, was established and to exercise its power of creating these organized in 1855. By act of Congress courts and none of the disastrous con
in 1891 a court of private land claims sequences which had been predicted
was established to determine land were ever experienced.
claims and grants under the United Circuit courts were established and
States law. This court expired in their number was gradually increased
1903. There have also been other as the country grew, until at the opening of the Twentieth century they special courts of limited duration,
such as the court on the Spanish War were nine in number, the jurisdiction
claims. The judiciary system of the of each circuit covering several States.
District of Columbia is Federal, conThe circuit courts are inferior in
stituted by Congress and consisting of power only to the Supreme Court.
a Supreme Court with powers correThey have jurisdiction in all cases
sponding to those of the United States where the United States is party to
District Courts. By act of Congress, the litigation, and exclusive jurisdic
June 18, 1910, a commerce court of tion in capital cases against the Fed
five judges was created to have the eral Government. There are 29 cir
same jurisdiction possessed by circuit cuit judges, no circuit having less
courts over cases for the enforcement than two. By act of 1891 a Supreme
of orders of the Interstate Commerce Court Justice and the judges of a
Commission other than for the paycircuit were designated a court of
ment of money; over disputes arising appeals for that circuit. Other in
from the action of the Interstate Comferior Federal courts were estab
merce Commission; etc. * lished. The most important and the oldest of these are the district courts, * Thomas M. Cooley, General Principles of inferior to the circuit courts. Before Constitutional Law in the United States of
America (Boston, 1880); A. P. C. Griffin, List them is brought admiralty and bank
of References on Federal Control of Commerce ruptcy business and they have juris- and Corporations (Library of Congress, Washing- . diction of all crimes, not capital, of
ton, 1903); W. H. Barnes, The United States
Supreme Court (Washington, 1877); H. W. which the United States takes cogni
Scott, Distinguished American Lawyers (New zance. In each State there is one dis- York, 1891); J. W. Schuckers, Life and Public trict court and in several of the larger
Services of Salmon P. Chase (New York, 1874);
Albert B. Hart, Salmon P. Chase (American States there are two or more. A
Statesmen series, Boston, 1892).
THE FORMATION AND ADOPTION OF STATE CONSTITUTIONS.
State constitutions adopted since the Civil War - Characteristics and tendencies in newer constitutions
Methods of enacting and amending constitutions Ease and frequency of change.
Thirty-six States were admitted to The constitutions of this period rethe Union up to 1865 and twelve States veal a tendency to strengthen the after 1865. The latter are as follows: powers of the executive and the judi1866. Nebraska. Enabling act of Congress 1864;
ciary; the governors and judges serve Congressional act for admission and for a longer term and the governors President's proclamation announcing ad- have the limited veto power in all mission, both 1867. Later constitution, 1875.
States save North Carolina. The 1876. Colorado. Enabling act of Congress, 1875, legislatures during this period have and President's proclamation announcing
important limitations put upon their admission, 1876. 1889. Idaho. Enabling act of Congress 1890. powers particularly as affecting 1889. Montana. Enabling act of Congress and
special legislation, internal improvePresident's proclamation announcing admission, both 1889.
ments, State indebtedness, and the 1889. North Dakota. Enabling act of Congress length of the legislative session. Durand President's proclamation of admis
ing this period, too, the field of adsion, both 1889. 1889. Souih Dakota. Same as North Dakota. ministrative activity has been en1889. Washington. Same as North Dakota.
larged as required by the modern in1889. Wyoming. Congressional act for admission, 1890.
dustrial State. The regulation of 1895. Utah. Enabling act of Congress 1894, and corporations, the government of cities, President's proclamation of admission,
the conditions in factories and the 1896. 1907. Oklahoma. Enabling act of Congress 1906,
hours of labor, public health, public and President's proclamation of admis.
schools, charitable and reformatory sion, 1907. 1910. Arizona. Enabling act of Congress 1910.
institutions, etc., all are considered in Constitution adopted in 1910 but not ap- the constitutions of this period. proved by the President and Congress.
One of the most noticeable features Joint resolution of Congress August 21, 1911, granting statehood conditional
of the newer constitutions is their upon elimination of objectionable pro- great similarity. They have an end
visions from State constitutions. 1910. New Mexico. Same as Arizona.
less variety of detail, but they agree
in essentials. Whatever tendencies Prepared for this History by William George
have been at work, the influence has Jordan, formerly Secretary of the Governors' Conference.
been the same throughout the Union.
The constitutions are all longer, the should be brought into the fundaold topics being treated at far greater mental law and there made to reprelength than in the first half of the sent the guiding principles both of our Nineteenth century and the latter part National life and personal relations, of the Eighteenth century. Educa- just as the Ten Commandments of old tion, railroads, private law, State and stood by themselves as a fundamental municipal indebtedness are among the digest or code of laws embracing the topics which were either untouched or many other provisions in the ancient very indifferently mentioned in the scheme of government; for the State early constitutions. The later provi- constitution of to-day stands in relasions regarding the judiciary, and tion to the statute law as the Ten Comparticularly those restricting the mandments stood in relation to the power of the legislature, have grown other laws of Moses which follow the far more minute in recent years. This Twentieth Chapter of Exodus. is attributed to the frequent abuses of A slight reaction might be noted power and the waning respect for after the Civil War, up to which time legislative authority. "The time there had been a strong Democratic might almost seem to have come," ob- tendency in all American institutions. serves Mr. Bryce, “ for prescribing The reaction was not against popular that, like Congress, they [the legisla- sovereignty, which had
grown tures] should be entitled to legislate stronger than ever, it was as already on certain enumerated subjects only, stated in favor of strengthening the and be always required to establish executive and judicial departments. affirmatively their competence to deal Undoubtedly the most notable developwith any given topic.”
ment since 1865 has been the narrowPerhaps the one thing most notice- ing legislative activity and the checkable in the development of the State ing of its powers by a variety of constitutions has been the earlier complicated restrictions. Mr. Bryce, exalting of the powers of the legisla- a commentator who is read to-day with
a ture and their subsequent diminution as much respect and interest for his by restrictive clauses inserted in the clear observation and illuminating fundamental law, extending the direct suggestion as when he first published interference of the people through The American Commonwealth, has their representatives and changing the this to say regarding this most notable constitution itself from a short and feature in the development of the simple document to a long and com
State constitutions: “It may seem
• plex one. Just how far this will go in that to take powers away from the coming years it is impossible to fore- legislature is to give them to the peosee. It is but natural, after all, that ple, and is therefore another step the checks and balances of government towards pure democracy. But in
America this is not so, because a legis
When a new constitution is to take lature always yields to any popular the place of an existing one, the conclamor, however transient, while di- stitutional convention is called for the rect legislation by the people involves purpose of drafting and discussing some delay. Such provisions are each new provision proposed, and the therefore conservative in their re- form of the whole instrument. In sults, and are really checks imposed several States the existing constituby the citizens upon themselves." tions provide that such conventions
Since 1789 the States which have shall be held at regular intervals; and been admitted to the Union have pre- in a number of other States the conviously drawn up their constitutions stitutions require that the people shall and submitted them to Congress for vote every seven, ten, sixteen, or approval; or else Congress has passed twenty years whether a constitutional an act empowering the people of the convention shall be called; and in still territory seeking statehood to hold a other States the legislature is given convention and enact a constitution, the power to decide in favor of such and the constitution so enacted has convention being called (a two-thirds received Congressional endorsement. vote of the members of both houses A state constitution must contain no being generally necessary to pass such provisions contrary to the declara- a resolution). tions of the Federal Constitution, and The method is to give notice by none contrary to the decisions of the publication in the newspapers. Then United States Supreme Court inter- a vote of the people is taken on the preting the Federal Constitution, or question whether a convention shall opposed to any treaty authorized un- be called, and the result of this vote der the Federal Constitution.
determines the action of the legislaState Constitutions are amended in ture, thus: If there is a majority three different ways in a manner pre- vote in favor of the convention, the scribed in the constitutions them- time and place of holding it is deselves. Many of them provide for cided by the legislature, which also amendment through a constitutional arranged for the election of deleconvention to which delegates are gates. It is the common practice now nominated and elected. Another to submit the new constitution which method, prescribed in all the States the convention has drafted to the vote except New Hampshire, is by action of the people for their endorsement of the legislature which is afterward or rejection. Down to 1887, 157 con
. ratified by popular vote. Finally, we stitutional conventions had met, 113 now have the method recently adopted of which, following the lead of Massain several of the States that of the chusetts (1780), submitted their work popular initiative and referendum. to the people.