1. What is the origin of the term "cabinet"? On what days are cabinet meetings now held?
2. What are the principal differences between the American cabinet and the British cabinet?
3. Do you think the members of the cabinet should be members of Congress? If not, ought they to be allowed seats in Congress without the right to vote?
4. Do you think the President ought ever to disregard the advice of his cabinet?
5. Give the names of five distinguished secretaries of state since 1789.
6. Washington's first cabinet was composed of an equal number of members from both political parties. Would it be wise to follow that practice?
7. Why is the secretary of the treasury required to make his annual reports to Congress while the other heads of departments make theirs to the President?
8. Would it be wise to elect the heads of departments of the federal government by popular vote as those of the state governments usually are?
9. Do you think the secretary of war ought to be an army officer as is the usual practice in Europe?
10. Why is the postmaster-generalship usually given to an active party manager?
11. Why is an importer ineligible under the law to appointment as secretary of the treasury?
12. Why is the department of state really misnamed? Would the title "department of foreign affairs" indicate more precisely the duties of the department?
13. What is your opinion of the movement to establish a department of public health?
14. Do you think the bureau of education should be raised to the rank of a department?
Establishment of the federal Judiciary.—The Articles of Confederation, as we have seen, made no provision for a national judiciary. Hamilton declared this to be the crowning defect of the old government, for laws, he very properly added, are a dead letter without courts to expound their true meaning and define their operations. During the period of the Confederation, the national government was dependent for the most part, as has been said, on the states for the enforcement of its will. Thus if some one counterfeited the national currency, robbed the mails, or assaulted a foreign ambassador, there was no national court to take jurisdiction of the case and punish the offender. The only way by which he could be brought to justice and the authority of the national government upheld was through the kindly assistance of some state court, and this assistance was not always cheerfully lent nor was it always effective when tendered. Congress to be sure acted as a court for the settlement of disputes between the states themselves, but a legislative assembly is never well fitted for exercising judicial functions. In the absence of a national judiciary it proved impossible to enforce solemn treaty stipulations to which the United States was a party, a fact which led Great Britain to refuse to carry out certain of her treaty engagements with the United States.
The Judicial Power of the United States.—The framers of the Constitution decided that the jurisdiction of the national courts should be restricted to questions of national interest and to those involving the peace and tranquillity of the Union, such as disputes between the states themselves and between citizens of different states, and that the jurisdiction of all other controversies should be left to the determination of the courts of the several states. The jurisdiction of the federal courts, therefore, was made to include all cases whether of law or equity arising under the national Constitution, the laws of the United States, and all treaties made under their authority; all cases affecting ambassadors, other public ministers, and consuls; all cases of admiralty and maritime jurisdiction; all controversies to which the United States is a party; all controversies between two or more states; and between a state, or the citizens thereof, and foreign states or citizens or subjects thereof.[96]
The wisdom and propriety of giving the federal courts jurisdiction over all such cases are obvious, since they involve either national, interstate, or international questions. Manifestly, the state courts could not properly be left to determine finally controversies involving the meaning or the application of provisions of the federal Constitution, laws, or treaties, since in that case they would not be what they are declared to be, namely, the supreme law of the land. Conflicting decisions would be rendered by the courts of different states, and in case of inconsistency between state constitutions and laws on the one hand and the federal Constitution, laws, and treaties on the other, the state courts would be under the temptation to uphold the validity of the former.
The Eleventh Amendment.—As originally adopted, the Constitution permitted suits to be brought in the federal courts against a state by citizens of another state or by citizens of foreign countries, and when a suit brought against the state of Georgia in 1793 by a citizen of South Carolina named Chisholm for the recovery of a debt was actually entertained by the Supreme Court, widespread popular indignation followed the decision. The authorities of Georgia felt that it was derogatory to the dignity of a sovereign state that it should be made the defendant in a suit brought by a private individual, and a demand was made that the Constitution be amended so as to prevent such "suits" in the future. As a result of this demand, the Eleventh Amendment was adopted in 1798 which declared that the judicial power of the United States should not be construed to extend to suits brought against a state by citizens of another state or of a foreign country. Nevertheless while a state cannot be made a defendant in a federal court at the instance of a private individual of another state, the federal courts may entertain jurisdiction of suits between a state and a citizen of another state provided the state is the plaintiff.
How Cases "Arise."—A case "arises" under the Constitution, laws, or treaties whenever a suit is filed involving a right or privilege thereunder. Until a case "arises," that is, until it comes before the courts in due form, they will take no notice of it. When President Washington in 1793 sought the opinion of the Supreme Court on certain points involving our obligations to France under the treaty of alliance of 1778 it declined to answer his question, holding that it could give opinions only in cases properly brought before it.
The Regular Federal Courts.—The Constitution declares 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 ordain and establish. The Supreme Court, therefore, is the only federal tribunal which owes its existence to the Constitution, the others being created by statute. Even as to the Supreme Court Congress has considerable power of control, since it determines the number of judges of which it shall be composed, and the amount of their compensation. But it cannot remove any judge except upon impeachment, or reduce his compensation after he has once been appointed.
The Supreme Court is at present composed of one Chief Justice and eight associate justices. It holds its sessions in the city of Washington from October to May of each year. Practically all the cases which it hears are those appealed from the lower courts. When a case has been argued, the court holds a consultation at which the points involved are considered and a decision is reached. The Chief Justice then requests one of his associates to prepare the opinion of the court, or he may prepare it himself, after which it is scrutinized by the court at a second conference and approved. Any member of the court who disagrees with the majority may file a dissenting opinion, a right frequently taken advantage of. The concurrence of at least five of the nine judges is necessary to the validity of a decision, and as a matter of fact, many important decisions have been rendered in recent years by a bare majority of the court. The opinions rendered are published as the United States Reports, of which there are now more than 200 volumes. They constitute the great authoritative source of the constitutional law of the United States, are studied by lawyers and judges, and are relied upon by the courts as precedents for the decisions of future cases involving similar points of law.[97] There is a reporter who arranges and publishes the opinions, a clerk who keeps the records, and a marshal who attends the court, preserves decorum, and enforces its orders.
The Circuit Courts of Appeals.—Next below the Supreme Court are the circuit courts of appeals, nine in all—one for each of the judicial circuits into which the country is divided.[98] These courts were created by act of Congress in 1891 to relieve the Supreme Court from an accumulation of business that rendered the prompt decisions of cases impossible, the docket of the court having become so overcrowded that it was about three years behind with its business. The act creating the circuit courts of appeals, however, did not provide an additional class of judges to hold these courts, but enacted that each of them should be held by three judges assigned for the purpose from among the judges of the circuit. The judges of each circuit include one justice of the Supreme Court assigned to the circuit, two or more circuit judges appointed for the circuit, and a considerable number of district judges, each appointed for a district in the circuit. Most circuit courts of appeals are held by three circuit judges; but occasionally by two circuit judges together with a district judge or the Supreme Court justice. The circuit courts of appeals have only appellate jurisdiction, that is, they hear and determine only cases appealed from the lower courts, and their decisions are final in most cases. This relieves the Supreme Court of all but the most important cases, and enables it to give more attention to the cases before it and to dispatch its business more promptly.
Former Circuit Courts.—Prior to 1911 next below the circuit courts of appeals were the circuit courts, which were held in the different districts within the circuit, either by a circuit judge or by the justice of the Supreme Court assigned to the circuit, or by a district judge, or by the three, or any two of them, sitting together. In 1911 the circuit courts were abolished and their jurisdiction conferred on the district courts. The circuit judges, however, were retained and will henceforth sit in the circuit courts of appeal.
The District Courts.—The lowest grade of federal court is the district court, held in each of the districts (about eighty) into which the country is divided. In some cases a state constitutes one district; in other cases a state is divided into two, three, four, or five districts. Usually there is one judge for each district, though in a few cases there are several judges for a single district, each holding court separately.
The jurisdiction of the district court embraces civil and criminal cases under the laws of the United States—such as suits for the infringement of patents and copyrights, admiralty cases, bankruptcy proceedings, revenue cases; and offenses against the United States revenue laws, laws against counterfeiting, the public land laws, the pure food laws, the postal laws, and the interstate commerce laws. Controversies between citizens of different states may also be brought to this court.[99]
In most cases appeals may be taken from the decisions of the district courts to the circuit courts of appeals or to the Supreme Court.
Federal Attorneys, Marshals, and Clerks.—In each of the federal judicial districts, there is a United States attorney who prosecutes violations of the federal laws in his district. There is also in each district a United States marshal who bears somewhat the same relation to the federal court that a sheriff does to a state court. He executes the processes of the court, arrests offenders, and performs other ministerial functions for the court. In each district there is a clerk who has custody of the seal of the court and keeps a record of its proceedings, orders, judgments, etc. The marshal and attorney are appointed by the President, but the clerk is chosen by the court itself.
In each district, also, the court appoints a number of United States commissioners who are empowered to issue warrants for arrest, take bail, determine whether accused persons shall be held for trial, and perform other duties somewhat similar to those discharged by justices of the peace under the judicial system of the state.
The Regular Federal Judges.—Appointment.—All federal judges are appointed by the President, by and with the advice and consent of the Senate. The judges of most of the states, as we have seen, are now chosen by popular election, but that method did not commend itself to the framers of the federal Constitution. The existing method of appointing federal judges has given general satisfaction, and with remarkably few exceptions, the persons appointed to the federal bench have been men of integrity and fitness.[100]
The term for which all the regular federal judges are appointed is good behavior. This is virtually for life, since they cannot be removed except by impeachment.[101] All other officers of the United States are appointed for definite terms, usually for four years. Except in a few states, the state judges are elected for definite terms ranging from two years to twenty-one years (p. 113). The framers of the federal Constitution, however, were deeply impressed with the advantages of a judiciary possessing the qualities of permanency and independence, and they wisely provided that the judges should hold their offices so long as their official conduct was above reproach.
Compensation.—The Constitution declares that the judges shall receive at stated times a compensation for their services which shall not be diminished during their continuance in office. As we have seen, the compensation of the President can neither be increased nor diminished during the time for which he is elected, but the prohibition in the case of the judges applies only to a reduction of their salaries. Increases are permitted to be made at any time. The compensation now allowed the chief justice of the Supreme Court is $15,000 a year, and the associate justices $14,500, amounts which are low in comparison with the salaries of the highest English judges, who receive $25,000 a year. The circuit judges receive $8,500 a year, and the district judges $7,500.
Any judge of a United States court having held his commission ten years and having attained the age of seventy years, may retire from the bench and receive the same salary during the rest of his life that was payable to him at the time of his resignation. Few judges do retire, however.
Power of the Supreme Court to Declare Laws Unconstitutional.—An important power of the Supreme Court for which there is no direct authority in the Constitution, is that of declaring acts of Congress which are in conflict with the Constitution, null and void and of no effect. This power was first exercised by the Supreme Court in 1801 in the famous case of Marbury v. Madison. Congress had passed an act giving the Supreme Court original jurisdiction in certain cases where the Constitution says it should have appellate jurisdiction, and when the act came before the court for enforcement it declined to be bound by it. The great chief justice, John Marshall, wrote the opinion of the court which held the act of Congress null and void. His argument, in brief, was that the Constitution is the supreme law of the land and the judges are bound to give effect to it. When, therefore, the court is called upon to give effect to a law of Congress which is clearly in conflict with the higher law of the Constitution, it must give the preference to the latter, otherwise the declaration in favor of the supremacy of the Constitution would have no meaning. Down to 1913 the Supreme Court had declared thirty-three acts of Congress, or parts of such acts, unconstitutional.
Power to Declare State Laws Unconstitutional.—Laws passed by the state legislatures, ordinances of municipal councils, and even the provisions of state constitutions themselves may be declared null and void by the Supreme Court in case they are in conflict with the national Constitution or the laws and treaties made in pursuance thereof. It has already been pointed out that appeals may be taken to the federal Supreme Court from the highest courts of a state whenever a right, title, or privilege under the federal Constitution is involved and the state court has decided against the right or privilege claimed. Thus where one is prosecuted and convicted under a state law or provision of a state Constitution which he claims is contrary to some provision in the federal Constitution or laws, he has a right to appeal to the United States Supreme Court and have the question of the constitutionality of the state law finally determined there. This is a necessary consequence of the supremacy of the federal Constitution and laws over those of the states. More than 200 acts of state legislatures have been pronounced null and void by the United States Supreme Court.[102]
Sometimes inferior federal courts declare acts of Congress and of the state legislatures to be unconstitutional, but in all such cases an appeal may be taken to the Supreme Court for final review.
Special Courts of the United States.—In addition to the three classes of United States courts, already described, several tribunals of a special or temporary character have been created to hear and determine particular classes of controversies. Some of these courts are held by judges who are appointed for definite terms.
The Court of Claims was created in 1855 to pass upon claims against the government. It consists of a chief justice and four associate justices who serve during good behavior. It is a well-established principle of public law that a sovereign state cannot be sued against its will. Before the creation of this court claims against the government had to be considered by Congress, a body which aside from being ill fitted for the hearing of such cases, was overburdened by the necessity of considering the large number of claims annually laid before it. The government now allows itself to be sued in this court on most claims of a contractual nature, but the judgments of the court cannot be paid until Congress appropriates the money for their payment, and hence the court cannot issue an execution to enforce its findings. At each session of Congress, an appropriation is made to satisfy any judgments made or which may be made by the court. Appeals are allowed to be taken from the court of claims to the Supreme Court on questions of law. Among the more important classes of claims that have been adjudicated by this court were the French Spoliation claims, and Indian depredation claims, both involving numerous claims and very large amounts in the aggregate.
In 1906 a United States court was established in China to exercise jurisdiction in certain cases previously exercised by the consuls. It is held by a single judge appointed by the President for a term of four years.
The tariff law of 1909 created a United States Court of Customs Appeals, consisting of a presiding judge and four associates, to hear appeals from the board of general appraisers in cases involving the construction of the law and facts respecting the classification of imported articles and the rate of duty imposed thereon.
In 1910 a Commerce Court was created, to decide appeals from the orders of the Interstate Commerce Commission; but in 1913 this court was abolished.
In the District of Columbia Congress has created two courts, with judges appointed to hold office during good behavior: the supreme court of the district, consisting of a chief justice and five associate justices; and the court of appeals, consisting of a chief justice and two associate justices. Appeals may be taken from the former to the latter, whose decisions in some cases are reversible by the Supreme Court of the United States. Appeals may also be taken from the decisions of the commissioner of patents to the court of appeals of the District of Columbia.
In each of the territories there are supreme and district courts established by Congress in pursuance of its power to provide for the government of the territories, but they are not considered as a part of the judicial system of the United States, although the judges are appointed by the President.[103]
Constitutional Protections in the Federal Courts.—The Constitution contains a number of provisions intended to protect accused persons against unauthorized prosecutions in the federal courts, as well as against arbitrary procedure in the course of the trial. As the Constitution originally stood, it contained few provisions of this kind; and this fact constituted one of the most serious objections urged against the ratification of that instrument. In consequence of this the first ten Amendments were adopted in 1790, and of these no less than five relate to the rights of accused persons on trial in the federal courts.
Most important of all, perhaps, the Sixth Amendment declares that in criminal prosecutions (in the federal courts) the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed; that he shall be informed of the nature and cause of the accusation; that he shall have the right to be confronted by the witnesses against him; that he shall have compulsory process for obtaining witnesses in his favor; and that he shall have the assistance of counsel for his defense.[104]
The Fifth Amendment protects the accused from prosecution in capital cases or cases involving infamous crime except upon indictment by a grand jury. Some of the states, as we have seen, have abolished the grand jury, and provided for prosecutions in their courts without the intervention of such an agency, but no person may be prosecuted in a federal court for a serious crime until he has been held for trial by a grand jury. The same amendment also forbids the trial of a person a second time for the same offense, if he was acquitted on the first trial; declares that he shall not be compelled to testify against himself; that he shall not be deprived of life, liberty, or property without due process of law; and that private property shall not be taken for public use without just compensation.
The Fourth Amendment declares among other things that no warrant for arrest (by the federal authorities) shall be issued except upon probable cause, supported by oath or affirmation and particularly describing the person to be seized. This provision is designed to prevent arbitrary arrests of persons on mere suspicion. It prohibits general search warrants such as were commonly used by the British authorities in the colonies prior to the outbreak of the Revolution and which were popularly known as "writs of assistance." Such warrants did not mention the name of the person to be arrested but permitted the officer to insert any name in the warrant and arrest whomsoever he might choose.
The Eighth Amendment declares that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. The purpose of the first provision is discussed on p. 119. The purpose of the other two prohibitions is to prevent the old severities of the penal code that were common two hundred years ago.
Treason.—Among the crimes in the prosecution of which judges were frequently arbitrary and which were punished with undue severity, was that of treason. Treason has always been regarded as the highest crime known to society, because it seeks the overthrow or destruction of the government itself. In earlier times, judges frequently construed offenses to be treasonable which were not declared so by the laws. This was known as constructive treason. To prevent them from construing the existence of treason where it really did not exist, parliament therefore passed a statute during the reign of Edward III defining the offense with more or less precision, and this definition in substance was incorporated in the Constitution of the United States, This provision declares that treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort. The Supreme Court in interpreting this provision has ruled that in order to constitute treason there must be an actual levying of war or an assembling of persons for the purpose of making war; that a mere conspiracy to subvert the government by force is not treason, but after the war has once begun, all those who perform any part, however minute or remote, or who give aid and comfort to the enemy, are traitors and as such are liable to the penalties of treason. To protect persons accused of treason against conviction upon the testimony of a single witness, the Constitution requires the testimony of two witnesses to the act, or confession in open court, to convict. Congress is authorized to prescribe the punishment of treason, but the Constitution declares that no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. Under the old law, a person convicted of treason was not only put to death in a barbarous manner, but his blood, was considered as "corrupted" or "attainted," so that as a matter of course, without any decree of the court to that effect, his children could not inherit property or titles through him. Thus the innocent offspring of the traitor were punished for the offense of the parent. The provision of our Constitution places the punishment on the offender alone.
References.—Andrews, Manual of the Constitution, pp. 201-223. Baldwin, The American Judiciary, ch. ix. Beard, American Government and Politics, ch. xv. Bryce, The American Commonwealth (abridged edition), chs. xxi-xxii. Harrison, This Country of Ours, chs. xx-xxi. Hart, Actual Government, ch. xvii.
Documentary and Illustrative Material.—1. The Congressional Directory, which contains a list of the higher judges and the judicial districts. 2. Specimen copies of decisions of the Supreme Court. These may be obtained from the clerk of the Supreme Court at Washington.
1. Name the Chief Justices of the United States Supreme Court from 1789 to the present time.
2. Name the present members of the Supreme Court and give the date of the appointment of each. (See Congressional Directory).
3. In which one of the nine judicial circuits of the United States do you live? Who is the Supreme Court justice assigned to the circuit? Who are the circuit judges of the circuit?
4. Who is the United States district judge for your district? At what places in your state are United States district courts held?
5. Who is the United States attorney for your district? The United States marshal?
6. What is meant by the terms "constitutional" and "unconstitutional" as applied to an act of Congress? Do you think the courts should be allowed to declare a law unconstitutional?
7. Do you think it is a wise provision which allows federal judges to serve during good behavior?
8. It has been proposed by a well-known public man that federal judges should be elected by the people. What is your opinion of the proposition?
9. Do you think the present salary allowed justices of the Supreme Court large enough to attract the best judicial talent?
10. Do you think the Supreme Court is ever justified in reversing its own decisions, or should it stand by the precedents?
11. What is the meaning of the term obiter dicta as applied to a judicial opinion?
12. Do you think it is a wise practice for judges who disagree with the majority of the court to file dissenting opinions?
13. A recent President took occasion to criticize publicly a federal judge for a decision which he rendered in a "trust" case. Do you think judges should be criticized for their decisions?
14. Are juries ever made use of in federal courts? If so, when?
15. Why have federal judges been criticized for issuing injunctions?
16. When may an appeal be taken from a state court to a federal court?
17. The Supreme Court has always refused to decide "political" controversies. What is a "political" as opposed to a "legal" controversy? Give examples.
Power of Congress over the Territories.—The Constitution expressly confers upon Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. In dealing with the territories the powers of Congress are general or residuary in character, whereas when it legislates for that part of the country which has been erected into states, its powers are specifically enumerated. Congress, therefore, may establish practically any form of government in the territories that it chooses. It may, if it wishes, set up therein a military government or it may establish civil government with such limitations and exceptions as it may wish. In the latter case it may allow the inhabitants a legislative assembly for purposes of local legislation, or Congress may legislate directly for them itself. And in case it permits the inhabitants to have a legislative assembly of their own and to enact their own laws, Congress may veto or modify any law passed by such legislature. Indeed, says the Supreme Court, Congress may make valid an invalid act passed by a territorial legislature as well as declare invalid a valid act passed by it.
Does the Constitution Extend to the Territories?—A subject much discussed, especially at the time of the acquisition of Porto Rico and the Philippines, was whether such provisions of the Constitution as were applicable extended of their own force to new territories immediately upon the establishment of American sovereignty over them; that is, whether the Constitution "follows the flag" or whether its provisions apply only when extended by act of Congress. One party asserted that such provisions go wherever the sovereignty of the United States goes, that the government cannot be carried to any new territory unless accompanied by the Constitution from which it derives its authority, and that Congress has no power to withhold such provisions as are applicable. The other party maintained that the Constitution was established only for the people of the United States; that whenever new territories have been acquired, Congress has extended such provisions as it saw fit; and that Congress is unlimited as to its power in dealing with the inhabitants of such territories. The Supreme Court in the famous Insular Cases, decided in 1900 and 1901, upheld the latter view and ruled that for all practical purposes the territories of the United States are completely subject to the legislative authority of Congress, and that it is not even restricted by those provisions of the Constitution which were adopted for the protection of individual liberty. In practice Congress has always extended to the domestic territories such provisions of the Constitution as were applicable, thus putting the inhabitants upon the same footing as those of the states so far as the enjoyment of civil rights are concerned, but not as to political rights. So far as the insular territories are concerned, it has also extended most of the provisions relating to civil rights, though in the case of the Philippines a few safeguards such as the right of indictment by grand jury, trial by jury, and the right to bear arms have been withheld.
The Origin of the Territorial System.—Before the Constitution was adopted, Congress had acquired by cession from certain of the original states a vast domain of territory north of the Ohio River, and later it acquired a considerable domain lying south of the Ohio (p. 159). One of the conditions upon which the territory north of the Ohio was ceded, was that Congress should form the territory into distinct republican states which should be admitted to the Union on an equal footing with the old states. It was felt, however, that the territory in question should be put through a sort of preparatory stage before being erected into states; that is, it should be held in a state of dependency until the population was sufficiently numerous to maintain a state government and the inhabitants had acquired sufficient political capacity to manage their own public affairs.
The Northwest Territory.—By the famous Ordinance of 1787, as reënacted and slightly modified two years later (after the adoption of the Federal Constitution), Congress provided a scheme of government for the northwest territory which was in force for many years. The Ordinance provided for two grades of government: one for the territory before its population should amount to 5,000 inhabitants; the other for the territory thereafter. The principal difference was that in the former case the territory was to have no local legislature of its own, while in the latter it was to have a legislative assembly. The scheme of government provided in the beginning consisted of a governor, a secretary, and three judges, appointed by the President. Although no legislature was provided, the governor, secretary, and judges were empowered, not to make new laws, but to select such laws from the statutes of the old states as were suitable.
When the population had reached 5,000 inhabitants, the territory was given the second grade form of government, that is, it was allowed a local legislature, the lower house of which was elected by the inhabitants on the basis of a restricted suffrage, the upper house or council to be appointed by the President from a list nominated by the lower house. The territory was now allowed to send a delegate to Congress with a right to a seat in that body, but no right to vote.
The scheme of government thus provided for the northwest territory became the model for the later territorial governments. It was introduced into the southwest territory and later to the territory acquired west of the Mississippi River.
The Organized Territories: Hawaii and Alaska.—The territories and dependencies of the United States may be grouped into two classes: the organized and the unorganized. A territory of the first class is said to be "organized" because it has its own local legislature, both houses of which are elected. At present the only territories of this class fully included as parts of the United States are Hawaii[105] and Alaska,[106] but since most of the states were organized territories before being admitted to the Union, this kind of government is of more than ordinary interest to the student of civics.
Executive.—In a fully organized territory there is a governor who is appointed by the President with the consent of the senate for a term of four years, and who enjoys the usual powers of a state executive. The appointment is usually made from the residents of the territory, though in a few cases outsiders have been appointed. There is also a secretary who keeps the records of the territory, compiles and publishes the acts of the legislature, and serves as governor during the absence or disability of the latter official. Other administrative officers of the territory are the attorney-general, treasurer, commissioner of public lands, superintendent of public education, surveyor, and auditor.
The Legislature is composed of two houses, both of which are popularly elected. Regular sessions of the legislature are held every two years and are limited to sixty days, though the governor may call extraordinary sessions with the approval of the President of the United States.
The territorial legislature is empowered to enact laws in respect to all rightful subjects of legislation not inconsistent with the laws and Constitution of the United States. Congress, however, has from time to time imposed various limitations upon the power of the territorial legislatures, and has shown a tendency to increase the restrictions, especially in regard to financial matters. Congress may veto any act of a territorial legislature.
Judiciary.—For the administration of justice, a fully organized territory has a supreme court, a number of district courts, and such inferior courts as the legislature may create. The judges of the higher court are all appointed by the President of the United States for a term of four years. The territory also has a United States district court, a district attorney, and a marshal.
Finally, a fully organized territory is given a limited representation, in the Congress of the United States through a delegate, elected by the people of the territory every two years, who is allowed a seat in the house of representatives with a right to serve on committees and take part in debate, but not to vote.
Alaska, acquired by purchase from Russia in 1867, was for seventeen years after its acquisition administered directly by the President without any express authority from Congress. In 1884, however, an act was passed providing a system of civil government for the territory, to be administered by a governor appointed by the President for a term of four years. The general laws of the state of Oregon, so far as applicable, were extended to the territory. In 1898 a criminal code was provided for the territory, and in 1900 a complete civil code and a code of civil procedure were enacted. Finally, in 1912 Alaska was made a fully organized territory, with a legislative assembly consisting of a senate of eight members and a house of representatives of sixteen members. Acts can be passed over the governor's veto by vote of two-thirds of the members of each house of the legislative assembly.
The Organized Dependencies.—Porto Rico and the Philippines, acquired from Spain in 1898, were formerly, and are now to a certain extent, regarded more as colonies than as territories, although they are governed much like a territory. For many years they were classed as "partly organized" because in their legislatures only one house was elective. They now have legislatures in which both houses are elective; but unlike the territories they are inhabited by a foreign race, and had been at the time of their cession to the United States for centuries governed by an entirely different system of laws and administration from that to which the people of the United States were accustomed.
Porto Rico.—By an act of Congress in 1917, the supreme executive power of the island is vested in a governor appointed by the President, for an indefinite term. He has the usual powers of a territorial governor. There are six executive departments, namely, justice, finance, interior, education, agriculture, and health. The attorney-general and the commissioner of education are appointed by the President for a term of four years; the heads of the other four departments are appointed by the governor for the same term. The department heads collectively form an executive council charged with the performance of such duties as the governor may prescribe.
The Legislature.—Formerly the legislature was composed of an upper house, known as the council, the members of which were appointed by the President, and a house of delegates, popularly elected. The act of 1917, however, provided for a legislature, both houses of which are elected by the voters. The upper house is called the senate and is composed of nineteen members, elected for a term of four years. The lower chamber, called the House of Representatives, consists of thirty-nine members, elected for a term of four years. The legislature is required to meet biennially and the governor may call extraordinary sessions. Laws vetoed by the governor and passed over his veto by the legislature must be transmitted to the President for his approval or disapproval. All acts of the legislature are required to be laid before Congress which may annul the same. To prevent deadlocks in the administration of the government, as several times happened in former years, the law provides that whenever the appropriation bills for the support of the government fail of passage the amount appropriated for the past year shall be considered to have been appropriated for the ensuing fiscal year.
Suffrage and Citizenship.—Practically all citizens over twenty-one years of age who can read and write are qualified voters. Formerly a source of complaint among the inhabitants was that they were denied the status of United States citizenship. They were designated as citizens of Porto Rico and were entitled to be protected by the United States and were eligible to receive passports for travel abroad, but they were not citizens of the United States. The law of 1917, however, removed this grievance by providing that all citizens of Porto Rico should be deemed to be citizens of the United States. The act also contains an elaborate bill of rights similar to those in the state constitutions.
Judiciary.—The elaborate system of Spanish courts and the Spanish legal system generally have been done away with, and in their place a system of law and procedure and a judicial system modeled upon those of the American states have been substituted. There is a supreme court consisting of five judges appointed for life by the President, and of these, three are Porto Ricans and two Americans. Below this court are a number of district courts each of which is presided over by one judge appointed by the governor with the consent of the council for a term of four years. There are also twenty-four municipal courts, and in the several towns there are courts held by the justices of the peace. The act of 1917 provided for the establishment of a District Court of the United States for the island.
Resident Commissioner at Washington.—The interests of the island are looked after at Washington by a resident commissioner who is elected by the qualified voters for a term of four years. Unlike the delegate from an organized territory he has no right to a seat in the house of representatives, but the house has granted him the courtesy of this privilege. He is, however, entitled to official recognition by all the executive departments whenever he wishes to discuss with them matters of business affecting Porto Rico.
The island has its own internal revenue system for raising taxes, and the receipts from all customs duties on goods imported into the island are turned into the insular treasury. Unlike the Philippines, however, the island does not have its own monetary system, but uses that of the United States.
The Philippines.—The problem of governing the Philippines has proved much more difficult than that of governing Porto Rico. Instead of a single island inhabited by a fairly homogeneous population, the Philippine archipelago consists of several hundred islands inhabited by various races and peoples representing almost every stage of development from savagery to fairly complete civilization. It has been a difficult problem to develop a system of government adapted to the needs and capacities of so many different elements. In addition to the difficulties presented by these conditions, the Filipinos in various parts of the archipelago have resisted American rule, and no small amount of effort and expenditure of money has been directed toward the suppression of outbreaks and the maintenance of order.
Organic Act of 1902.—In 1902 Congress passed an organic act for the government of the islands, and shortly thereafter William H. Taft was inaugurated civil governor. This act continued for the most part the form of government that had been created by the Philippine Commission. The organic act provided, however, that as soon as the insurrection then existing was suppressed, a census of the inhabitants should be taken and if the islands were in a state of peace, steps should be taken toward the establishment of a legislative assembly, the lower house of which should be popularly elected. This provision was duly carried out, and in 1907 the assembly was chosen. The upper house was a commission of nine members, including the governor, appointed by the President; and members of the commission also served as heads of executive departments.
In 1916 the government was altered by abolishing the commission and creating a legislature in which both houses are elective. The governor general, at the head of the executive department, is appointed by the President, as are also the vice governor and the auditor. Acts of the Philippine legislature may be vetoed by the governor general (or finally by the President if passed over the governor general's veto), or may be annulled by Congress. The act of 1916 declared it to be the purpose of the United States to grant the Philippines independence as soon as a stable government can be established therein.
Resident Commissioners.—The legislature is allowed to choose two resident commissioners to represent the islands at Washington. Like territorial delegates, they have seats, but no vote, in the house of representatives.
The Judicial System of the islands consists of a supreme court of seven judges who are appointed by the President, a court of first instance in each province, the judges of which are appointed by the governor general, and various municipal courts. Unlike Porto Rico and Hawaii, no United States district court has been established in the islands. Appeals lie from the supreme court of the islands directly to the United States Supreme Court in all cases in which the Constitution or any statute or treaty is involved or in which the amount in controversy exceeds $25,000.
Local Government.—Each province is governed in local matters by a board consisting of a governor and other officers elected by the voters. The organized municipalities are governed by elective councils. Special provision has been made for the government of districts inhabited by certain non-Christian peoples by the creation of a Bureau of Non-Christian Tribes.
The Unorganized Territories and Dependencies.—The third group of territories or dependencies embrace those which have no legislative assembly whatever. These include Samoan Islands, Virgin Islands, Guam, the Panama Canal Zone, and the District of Columbia.
The American Samoan Islands, the chief of which is Tutuila with its valuable harbor of Pagopago, are governed by a naval officer—the commandant of the naval station at Tutuila. He makes the laws and regulations, and sees that they are enforced, but so far as possible the inhabitants are allowed to govern themselves.
By treaty of 1916, three of the Virgin Islands were purchased from Denmark for $25,000,000. They were placed under the jurisdiction of a governor appointed by the President, but the local laws were kept in force.
Guam was seized by the United States during the war with Spain, and was retained by the treaty of peace. It is governed by the commandant of the naval station.[107]
The Panama Canal Zone is a strip of land ten miles wide extending from the Atlantic to the Pacific Ocean across the Isthmus of Panama, and was acquired by treaty from the Republic of Panama in 1904, upon the payment of $10,000,000. Soon after the conclusion of the treaty, Congress passed an act placing the entire government of the Canal Zone in the hands of the President. The powers of the President prior to 1914 were exercised through the Isthmian Canal Commission consisting of seven members, with authority to make and enforce all needful rules and regulations for the government of the Zone and to enact such local legislation as might be needed, subject to the condition that it must not be inconsistent with the Constitution, laws, or treaties of the United States. In January, 1914, President Wilson, in pursuance of an act of Congress passed in 1912, issued an order abolishing the commission and organizing a system of civil government for the Canal Zone. Colonel George W. Goethals was appointed the first civil governor.
The District of Columbia is a territory with an area of seventy square miles, and was ceded to the United States in 1790 for the site of the national capital. The district was administered from 1801 to 1871 under the forms of municipal government, that is, by a mayor and council, but in the latter year Congress vested the government in a governor, a secretary, a board of public works, a board of health, and a legislative assembly. At the same time the district was allowed to send a delegate to Congress. Largely on account of the extravagance of this government in under-taking expensive public improvements, Congress in 1874 abolished the whole scheme and established the present system, which vests practically all governmental powers in the hands of a commission of three persons appointed by the President. Two of these must be appointed from civil life and the other must be an officer belonging to the engineering corps of the army. This commission has the general direction of administrative affairs and the appointment of employees, and exercises wide powers of a quasi legislative character, such as the issuing of health and police regulations. The legislature of the district, however, is the Congress of the United States. In each house there is a committee on the District of Columbia to which all bills relating to the district are referred, and on one day of each week an hour is set apart in the house of representatives for the consideration of such bills. No provision is made for the representation of the district in Congress, and the inhabitants take no part in presidential elections.[108] One half the expense of conducting the government of the district is defrayed out of the national treasury, and the other half is raised from taxation on private property in the district.
The judicial establishment of the district consists of a court of appeals of three judges, a supreme court of six judges, and the usual police courts and courts of justices of the peace. (See page 364.)
American Protection over Spanish American States.—In addition to the ownership of the various insular dependencies mentioned above, the United States, in pursuance of a long established policy known as the "Monroe Doctrine," exercises a certain degree of protection over Latin American states. As this policy is now interpreted it forbids the further acquisition by European powers of territorial possessions in the western hemisphere, or the extension by such powers of political influence on this continent. By virtue of special treaty arrangements the United States exercises a virtual protectorate over certain of the smaller Latin American republics. Thus under the "Platt Amendment," to the constitution of Cuba (also embodied in a treaty between the United States and Cuba) the United States has the right to intervene in Cuba for the maintenance of a stable government and for the protection of public order and security; and this power was exercised in 1906. Naturally it exercises the power of protection over the republic of Panama through whose territory the Panama Canal runs, and recently (1915) it has established a sort of financial protectorate over Haiti and the Dominican Republic. In pursuance of treaty arrangements it collects the customs revenues in those republics, applies them to the payment of their foreign debts, and has the right to intervene for the maintenance of order.
References.—Beard, American Government and Politics, ch. xxi. Bryce, The American Commonwealth (abridged edition), ch. xlvi. Hart, Actual Government, ch. xx. Willoughby, Territories and Dependencies of the United States, chs. iii, iv, vi.