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FEDERAL GOVERNMENT] forth in a written opinion; then again when the written opinion, prepared by one of the judges, is submitted for criticism and adoption by the court as its judgment.

The other Federal courts have been created by Congress under a power in the Constitution to establish “inferior courts.” The circuit courts consist of twenty-nine circuit judges, acting in nine judicial circuits, while to each circuit there is also allotted one of the justices of the Supreme Court. The judges of each circuit, acting with or without the justice of the Supreme Court for the circuit, constitute a circuit court of appeals, established to relieve the Supreme Court. Some cases may, however, be appealed to the Supreme Court from the circuit court of appeals, and others directly from the lower courts. The district courts are now eighty in number, each having usually a single justice, rarely two. There is also a special tribunal called the court of claims, which deals with the claims of private persons against the Federal government. It is not strictly a part of the general judicial system, but is a creation of Congress designed to relieve that body of a part of its own labours. A customs court of five judges was created by an act of 1909 for the hearing of cases relating to the tariff.

The jurisdiction of the Federal courts extends only to those cases in which the Constitution makes Federal law applicable. All other cases are left to the state courts, from which there is no appeal to the Federal courts, unless where some specific point arises which is affected by the Federal Constitution or a Federal law. The classes of cases dealt with by the Federal courts are as follows:—

1. Cases in law and equity arising under the Constitution, the laws of the United States and treaties made under their authority;

2. Cases affecting ambassadors, other public ministers and consuls;

3. Cases of admiralty and maritime jurisdiction;

4. Controversies to which the United States shall be a party;

5. Controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens or subjects (Const. art. iii. § 2). Part of this jurisdiction has, however, been withdrawn by the eleventh amendment to the Constitution, which declares that “the judicial power of the United States shall not be construed to extend to any suit in law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.”

The jurisdiction of the Supreme Court is original in cases affecting ambassadors, and wherever a state is a party; in other cases it is appellate. In some matters the jurisdiction of the Federal courts is exclusive; in others it is concurrent with that of the state courts.

As it frequently happens that cases come before state courts in which questions of Federal law arise, a provision has been made whereby due respect for the latter is secured by giving the party to a suit who relies upon Federal law, and whose contention is overruled by a state court, the right of having the suit removed to a Federal court. The judiciary Act of 1789 (as amended by subsequent legislation) provides for the appeal to the Supreme Court of the United States of “a final judgment or decree in any suit rendered in the highest court of a state in which a decision in the suit could be had where is drawn in question the validity of a treaty or statute for an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favour of their validity; or where any title, right, privilege or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under the United States, and the decision is against the title, right, privilege

or immunity specially set up or claimed by either party under the Constitution, treaty, statute, commission or authority.” If the decision of the state court is in favor of the right claimed under Federal law or against the validity or applicability of the state law set up, there is no ground for appeal, because the applicability or authority of Federal law in the particular case could receive no further protection from a Federal court than has in fact been given by the state court.

The power exercised by the Supreme Court in declaring statutes of Congress or of state legislatures (or acts of the executive) to be invalid because inconsistent with the Federal Constitution, has been deemed by many Europeans a peculiar and striking feature of the American system. There is, however, nothing novel or mysterious about it. As the Federal Constitution, which emanates directly from the people, is the supreme law of the land everywhere, any statute passed by any lower authority (whether the Federal Congress or a state legislature) which contravenes the Constitution must necessarily be invalid in point of law, just as in the United Kingdom a railway bye-law which contravened an act of parliament would be invalid. Now, the functions of judicial tribunals—of all courts alike, whether Federal or state, whether superior or inferior—is to interpret the law, and if any tribunal finds a congressional statute or state statute inconsistent with the Constitution, the tribunal is obliged to hold such statute invalid. A tribunal does this not because it has any right or power of its own in the matter, but because the people have, in enacting the Constitution as a supreme law, declared that all other laws inconsistent with it are ipso jure void. When a tribunal has ascertained that an inferior law is thus inconsistent, that inferior law is therewith, so far as inconsistent, to be deemed void. The tribunal does not enter any conflict with the legislature or executive. All it does is to declare that a conflict exists between two laws of different degrees of authority, whence it necessarily follows that the weaker law is extinct. This duty of interpretation belongs to all tribunals, but as constitutional cases are, if originating in a lower court, usually carried by appeal to the Supreme Court, men have grown accustomed to talk of the Supreme Court as in a special sense the guardian of the Constitution.

The Federal courts never deliver an opinion on any constitutional question unless or until that question is brought before them in the form of a lawsuit. A judgment of the Supreme Court is only a judgment on the particular case before it, and does not prevent a similar question being raised again in another lawsuit, though of course this seldom happens, because it may be assumed that the court will adhere to its former opinion. There have, however, been instances in which the court has virtually changed its view on a constitutional question, and it is understood to be entitled so to do.

§ 26. As the Federal Constitution is a short document, which deals very concisely with most of the subjects it touches,

a vast number of questions have arisen upon its interpretation in the course of the 122 years which have elapsed since its enactment. The decisions of the Supreme Court upon these questions form a large body of law, a knowledge of which is now indispensable to a mastery of the Constitution itself. By them the Constitution has been so expanded in the points which it expressly treats of, and so filled up in the matters which it covers only by way of implication, that it is now a much more complete instrument than it was when it came from the hands of its framers. Thus the courts have held that, while the national government can exercise only such powers as have been affirmatively granted, it is not restricted in its choice of the methods for exercising such powers as have been granted. From this doctrine there has been derived a conspicuous activity of the national government in such fields as taxation, borrowing of money, regulating commerce and carrying on war. Executive and legislative acts not authorized by the letter of the Constitution have also been allowed to remain unchallenged, and thus precedents have been in fact established,