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Some of the subjects mentioned above are in many Constitutions surrounded with elaborate limitations. This is especially the case with private Corporations. In most States no company can be incorporated except under general statutes, and sometimes the Constitution settles the general principles which such statutes must respect. Railroad and banking companies are frequently subjected to Constitutional restrictions peculiar to themselves. In some States the prohibition or regulation of the liquor traffic, in others the protection of labour, is elevated to a place among the Standing Orders—as they may fittingly be calledwhich the people issues to its representatives in the Legislature.
These Constitutional provisions show how far the State Legislature is from possessing the unfettered freedom which we associate with the power of Parliament. Changes in the Constitution may, as a general rule, be brought about on the initiation of the Legislature, by a plebiscite or general popular vote. But in most cases bare majorities of the Legislature are not sufficient to bring a proposed amendment of the Constitution to a popular vote. Sometimes the proposal must be approved by a two-thirds or three-fourths vote of both Houses, and sometimes by a simple or proportional majority of two successive Legislatures.
In most cases a majority of the popular vote is sufficient to carry a Constitutional amendment. Moreover, provision is generally made for a general revision of the whole Constitution, in a special convention to be called for that purpose, on the initiation of the Legislature, ratified by a popular vote; while in some States the question whether such a convention should be held must be regularly referred to the people at stated intervals of ten, or it may be twenty years.
THE JUDICIARY.—The chief instrument in the development of the limitations on State powers has been the Federal Judiciary. Congress itself has no direct relations with the State Legislatures; it cannot control them, or issue orders to them, or affect their conduct in any way. The imperial and the local Legislature stand side by side, dividing the field of legislation between them; if the measures passed by either overstep the proper boundaries, it will be for the courts to say so when such measures are brought in question in any suit or action arising before them. The courts themselves do not directly interfere with the Legislatures by way of mandamus injunction or otherwise, and they only pass judgment upon the validity or invalidity of legislation in the course of legal proceedings. Nor does the Federal court interfere directly with the State court. They, too, may be described as standing side by side, dividing between them the field of judicature, as the Legislatures, State and Federal, divide between them the field of legislation. Neither set of
tribunals acts directly upon the other, or issues orders to the other, or, except as hereafter shown, hears appeals from the other. A State tribunal may properly sit in judgment on the constitutionality of a statute of the United States, but in all such controversies the Federal tribunals have the last word, and in that last word resides the power which has enabled them to change the face of the Constitution. It is not infrequently assumed in this country that the Federal Supreme Court at Washington is a court of appeal of the last resort for the whole country, like the House of Lords in our own system. On the contrary, the highest State court is the last court of appeal for all ordinary questions within its jurisdiction. It may happen that on some questions a principle of law may be enforced by the one set of tribunals which the other set disavows in like cases, but, speaking generally, and subject to modifications which will be made apparent immediately, the State Court declares the law, constitutional and statutory, of the State, just as the Federal Court declares the law, constitutional and statutory, of the Union, and each of the two judicatures has conclusive authority in the cases appointed to it.
The judicial powers imparted to the “United States” by the Constitution are defined in the third article :
Sect. 1. The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain
and establish. The judges both of the Supreme and inferior Courts shall hold their offices during good behaviour, and shall at stated times receive for their services a compensation which shall not be diminished during their continuation in office.
Sect. 2. The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority to all cases affecting ambassadors, other public ministers, and consuls—to all cases of Admiralty and maritime jurisdiction -to controversies to which the United States shall be a party—to 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 land under grants of different States, and between a State or the citizens thereof, and foreign States, citizens, or subjects.
Sect. 3. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as Congress shall make.
The trial of all crimes except in cases of impeachment shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State the trial shall be at such place, or places, as the Congress may by law have directed.
Congress has accordingly, from time to time, passed Acts establishing and regulating the inferior courts, by which, together with the Supreme Court, the judi
ciary powers of the Constitution are to be exercised. All of these courts are strictly limited to the jurisdiction conferred upon them by the Constitution or the Acts of Congress respectively. All judicial powers other than those enumerated in the Constitution may be deemed to be retained by the separate State—at all events they are not exercisable by the Federal courts. Two aliens, for example, or two English companies in litigation, would not be within the jurisdiction of the Federal courts. *
For judicial purposes the United States are divided into nine circuits. The circuit courts in each circuit may be held by the justice of the Supreme Court allotted to the circuit, or by the circuit judge of the circuit, or by the district judge of the district sitting alone, or by all or any two sitting together.
The following are the circuits, with the States which they include:
* See Cooley's “Principles of Constitutional Law":-"Congress may apportion among the several Federal courts all the judicial power of the United States, or it may apportion a part only, and in that case what is not apportioned will be left to be exercised by the courts of the States. Thus the States may have a limited jurisdiction within the sphere of the judicial power of the United States, but subject to be further limited or taken away by subsequent Federal legislation. Such is the state of the law at this time; many cases within the reach of the judicial power of the United States are left wholly to the State courts, while in many others the State courts are permitted to exercise a jurisdiction concurrent with that of the Federal courts, but with a final review of their judgments on questions of Federal law in the United States Supreme Court” (p. 109).