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COURTS OF THE UNITED STATES.

85. The constitution provides that the judicial power of the United States shall be vested in one supreme court and in such inferior courts as congress may from time to time establish.

86. The federal judicial system, as established by the constitution and acts of congress, comprises:

(a) The supreme court of the United States.

(b) The circuit courts of appeals.

(c) The circuit courts.

(d) The district courts.

(e) The court of claims.

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(f) The court of private land claims.

87. In addition, congress has established or authorized the following local or special tribunals, not a part of the federal judicial system:

(a) The territorial courts.

(b) The courts of the District of Columbia.

(c) Consular courts.

(d) Courts-martial.

Power of Congress to Establish Courts.

The supreme court, being provided for by the constitution, is largely independent of congress. It could neither be abolished nor stripped of any part of its original jurisdiction by any act of

congress. But the number of the judges of the supreme court is left to the determination of congress. The number might be indefinitely increased. But since a judge of this court could not be lawfully legislated out of his office, the number of the judges could not be diminished in any other way than by providing that vacancies, as they might occur, should not be filled up, until the number of judges was reduced to a prescribed minimum. So the jurisdiction of the court, except in so far as it is granted by the constitution, is within the control of congress, and may be enlarged or restricted as that body may determine.

2

But the courts of the United States inferior to the supreme court do not derive their judicial powers immediately from the constitution. They depend for their jurisdiction upon congressional legislation.1 And the discretion of congress in respect to the number, character, and territorial limits of the courts among which it will distribute the judicial power of the United States is unrestricted, except as to the supreme court. However, congress could not lawfully confer any part of the federal judicial power on the courts of a state, nor on any courts not established by its own authority. Since the judges of all the federal courts are to hold their offices during good behavior, it is not within the power of either congress or the President to remove them at pleasure. A more difficult question is as to the power to legislate a judge out of his office by abolishing the court in which he sits. This has in fact been done by congress, and the legislative precedent, as far as it goes, is therefore in favor of the existence of such a power.

The Federal Courts.

The federal system of courts, as at present constituted, consists of the supreme court of the United States, a circuit court of appeals in cach of the nine circuits, nine circuit courts, sixty-six district courts, the court of claims, and the court of private land claims. No mention is here made of the territorial courts, which are not constitutional courts, nor of the courts in the District of Columbia.

1 U. S. v. Hudson, 7 Cranch, 32; Sewing Machine Companies' Case, 18 Wall. 553.

2 U. S. v. Union Pac. R. Co., 98 U. S. 569, 602.

3 Martin v. Hunter, 1 Wheat. 304; Stearns v. U. S., 2 Paine, 300, Fed. Cas. No. 13,341.

Territorial Courts.

The territorial courts "are not constitutional courts in which the judicial power conferred by the constitution on the general government can be deposited. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the constitution, but is conferred by congress in the execution of those general powers which that body possesses over the terri tories of the United States." Congress may therefore invest the courts of the territories with as much or as little jurisdiction as it may see fit, or with such measure as appears reasonable, necessary, and adapted to the local conditions prevailing. While the organic act for a territory establishes, and to some extent limits, the jurisdiction of the territorial courts, it generally leaves to the control of the territorial legislature such matters as the regulation of rules of procedure and the forms and modes of pleading. The effect of the admission of a territory as a state of the Union and the erection of federal courts therein is ipso facto to extinguish the territorial government and the territorial courts as courts of the general government. But provision is usually made for continuing the territorial courts as the temporary courts of the state, and for the transfer to the federal courts of such pending causes as are properly of federal cognizance."

Consular Courts.

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Congress has provided for courts, called "consular courts," in certain non-christian countries, which are presided over by the United States consul at the port where the court is held, and which are invested with civil and criminal jurisdiction over Americans in that place, but proceed without a jury. Their establishment is authorized by treaties made with foreign countries, granting rights of

• American Ins. Co. v. Canter, 1 Pet. 511; Clinton v. Englebrecht, 13 Wall. 434; Forsyth v. U. S., 9 How. 571; Good v. Martin, 95 U. S. 90; McAllister v. U. S., 141 U. S. 174, 11 Sup. Ct. 949.

Sperling v. Calfee, 7 Mont. 514, 19 Pac. 204.

Ames v. Railroad Co., 4 Dill. 251, Fed. Cas. No. 324.

ex-territoriality to the United States for this purpose. The object is to withdraw citizens of the United States from the operation of the crude, barbarous, or uncertain systems of justice there prevailing. It is held that these are valid courts, and that a judgment of a consular court, passing sentence of death upon an American seaman for a murder committed by him within the jurisdiction of the court, 1s valid, notwithstanding there was no indictment nor trial by jury, when there was a fair trial before the consul and four assessors. The constitution, it was said, was made for the United States, and not for foreign countries, and can have no operation outside the limits of the United States."

Courts-Martial.

Under the power to "make rules for the government and regulation of the land and naval forces" congress has authority to provide for the trial and punishment of military and naval offenses in the manner practiced by all civilized nations, that is, by courts martial. But these courts are not a part of the federal judicial system. The power to establish them is not derived from, nor is it connected with, the third article of the constitution, defining the judicial power of the United States; the two powers are entirely independent. "Not belonging to the judicial branch of the government, it follows that courts-martial must pertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by congress for the President as commander in chief, to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives." The President is therefore invested with general and discretionary power to order statutory courts-martial by virtue of his capacity as commander in chief, independently of the articles of war or other legislation of congress.10

The authority of these courts is strictly limited. A court-martial has no jurisdiction to try or punish any person who is not in the

7 In re Ross, 140 U. S. 453, 11 Sup. Ct. 897.

8 Dynes v. Hoover, 20 How. 65; Kurtz v. Moffitt, 115 U. S. 487, 6 Sup. Ct. 148; Wales v. Whitney, 114 U. S. 564, 5 Sup. Ct. 1050.

91 Winthr. Mil. Law (2d Ed.) 53.

10 Id. 66.

military service or subject to the military law." The following persons are subject to their jurisdiction: The officers and men of the army and navy and marine corps, and the militia when in the actual service of the United States, retired officers of the army and navy, and certain classes of civilians who are subject to military discipline only in time of war. The last category includes such persons as sutlers, teamsters, newspaper correspondents, hospital officers and attendants, guides and scouts, and telegraphers.12 To these must be added officers and soldiers retained by law under military jurisdiction after dismissal or discharge, prisoners under confinement in military prisons undergoing sentences of courts-martial,13 and drafted men or conscripts who have been lawfully ordered to attend a rendezvous and disobey the summons.14

The provision of the fifth amendment that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury" does not apply to the proceedings of courts-martial, because "cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger," are expressly excepted from its operation. But these courts always exhibit to the accused a charge and specifications, in the nature of an indictment. And in accordance with the fundamental principles of justice, he is afforded an opportunity to be heard. in his own defense, to summon witnesses, and to be confronted with the witnesses against him.

Within the sphere of their jurisdiction, the judgments and sentences of courts-martial are as final and conclusive as those of civil tribunals of last resort. The sentence of a court-martial, when confirmed, "is altogether beyond the jurisdiction or inquiry of any civil tribunal whatever, unless it shall be in a case in which the court had not jurisdiction over the subject-matter or charge [or the prisoner] or one in which, having jurisdiction over the subject-matter, it has

11 Wolfe Tone's Case, 27 How. State Tr. 613; Grant v. Gould, 2 H. Bl. 69; Wise v. Withers, 3 Cranch, 331; Ex parte Van Vranken, 47 Fed. 888; Antrim's Case, 5 Phila. 278, Fed. Cas. No. 495; Jones v. Seward, 40 Barb. (N. Y.) 563.

12 1 Winthr. Mil. Law (2d Ed.) 112–142.

13 In re Craig, 70 Fed. 969.

14 McCall's Case, 5 Phila. (Pa.) 259, Fed. Cas. No. 8,669.

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