CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 425

CHAPTER XXXVIII.

JUDICIARY -- ORGANIZATION AND POWERS.

1567. THE order of the subject next conducts us to the consideration of the third article of the constitution, which embraces the organization and powers of the judicial department.

1568. The importance of the establishment of a judicial department in the national government has been already incidentally discussed under other heads. The want of it constituted one of the vital defects of the confederation.1 And every government must, in its essence, be unsafe and unfit for a free people, where such a department does not exist, with powers co-extensive with those of the legislative department.2 Where there is no judicial department to interpret, pronounce, and execute the law, to decide controversies, and to enforce rights, the government must either perish by its own imbecility, or the other departments of government must usurp powers, for the purpose of commanding obedience, to the destruction of liberty.3 The will

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    1 The Federalist, No. 22; Cohen, v. Virginia, 6 Wheat. R. 388; 1 Kent's Comm. Lect. 14, p. 277.
    2 The Federalist, No. 80; 1 Kent's Comm. Lect. 14, p. 277; Cohens v. Virginia, 6 Wheat. R. 384; 2 Wilson's Law Lect. ch. 3, p. 201; 3 Elliot's Deb. 143; Osborne v. Bank of United States, 9 Wheat. R. 818, 819. -- Mr. Justice Wilson has traced out, with muchminuteness of detail, the nature and character of the judicial department in ancient, as well as modern nations, and especially in England; and a perusal of his remarks will be found full of instruction. 2 Wilson's Law Lect. ch. 3, p. 201, &c.
    3 1 Kent's Comm. Lect. 14, p. 277. -- It has been finely remarked by Mr. Chief Justice Marshall, that "the judicial department has no will.in any case. Judicial power, as contradistinguished from the power of

426 CONSTITUTION OF THE U. STATES. [BOOK III.

of those, who govern, will become, under such circumstances, absolute and despotic; and it is wholly immaterial, whether power is vested in a single tyrant, or in an assembly of tyrants. No remark is better founded in human experience, than that of Montesquieu, that "there is no liberty, if the judiciary power be not separated from the legislative and executive powers."1 And it is no less true, that personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice.2 If that government can be truly said to be despotic and intolerable, in which the law is vague and uncertain; it cannot but be rendered still more oppressive and more mischievous, when the actual administration of justice is dependent upon caprice, or favour, upon the will of rulers, or the influence of popularity. When power becomes right, it is of little consequence, whether decisions rest upon corruption, or weakness, upon the accidents of chance, or upon deliberate wrong. In every well organized government, therefore, with reference to the security both of public rights and private rights, it is indispensable, that there should be a judicial department to ascertain, and decide rights, to punish crimes, to administer justice, and to protect the innocent from injury and usurpation.3

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    the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to fellow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; but always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law."*
      1 Montesquieu's Spirit of Laws, B. 11, ch. 13.
      2 1 Kent's Comm. Lect. 14, p. 273.
      3 Rawle on Constitution, ch. 21, p. 199.

    * Osborne v. Bank of United States, 9 Wheat. R. 806.

CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 427

1569. In the national government the power is equally as important, as in the state governments. The laws and treaties, and even the constitution, of the United States, would become a dead letter without it. Indeed, in a complicated government, like ours, where there is an assemblage of republics, combined under a common head, the necessity of some controlling judicial power, to ascertain and enforce the powers of the Union, is, if possible, still more striking. The laws of the whole would otherwise be in continual danger of being contravened by the laws of the parts.1 The national government would be reduced to a servile dependence upon the states; and the same scenes would be again acted over in solemn mockery, which began in the neglect, and ended in the ruin, of the confederation.2 Power, without adequate means to enforce it, is like a body in a state of suspended animation. For all practical purposes it is, as if its faculties were extinguished. Even if there were no danger of collision between the laws and powers of the Union, and those of the states, it is utterly impossible, that, without some superintending judiciary establishment, there could be any uniform administration, or interpretation of them. The idea of uniformity of decision by thirteen independent and co-ordinate tribunals (and the number is now advanced to twenty-four) is absolutely visionary, if not absurd. The consequence would necessarily be, that neither the constitution, nor the laws, neither the rights and powers of the Union, nor those of the states, would be the same in any two states. And there would be per-

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    1 The Federalist, No. 22; Chisholm v. Georgia, 2 Dall. 419, 474; ante, Vol. 1. p. 246, 247; 3 Elliot's Deb. 142.
    2 See Cohens v. Virginia, 6 Wheat. R. 384 to 390; Id. 402 to 404, 415; Osborne v. Bank of United States, 9 Wheat. R. 818, 819; ante, Vol. 1. 266, 267.

428 CONSTITUTION OF THE U. STATES. [BOOK III.

petual fluctuations and changes, growing out of the diversity of judgment, as well as of local institutions, interests, and habits of thought.1

1570. Two ends, then, of paramount importance, and fundamental to a free government, are proposed to be attained by the establishment of a national judiciary. The first is a due execution of the powers of the government; and the second is a uniformity in the interpretation and operation of those powers, and of the laws enacted in pursuance of them. The power of interpreting the laws involves necessarily the function to ascertain, whether they are conformable to the constitution, or not; and if not so conformable, to declare them void and inoperative. As the constitution is the supreme law of the land, in a conflict between that and the laws, either of congress, or of the states, it becomes the duty of the judiciary to follow that only, which is of paramount, obligation. This results from the very theory of a republican constitution of government; for otherwise the acts of the legislature and executive would in effect become supreme and uncontrollable, notwithstanding any prohibitions or limitations contained in the constitution; and usurpations of the most unequivocal and dangerous character might be assumed, without any remedy within the reach of the citizens.2 The people would thus be at the mercy of their rulers,

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    1 Martin v. Hunter, 1 Wheat. R. 304, 345 to 349; The Federalist, No. 22.
    2 The Federalist, No. 78, 80, 81, 82; 1 Tuck. Black. Comm. App. 355 to 360; 3 Elliot's Deb. 134.- This subject is very elaborately discussed in the Federalist, No. 78, from. which the following extract is made: "The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, 1 understand one, which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no

CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 429

in the state and national governments; and an omnipotence would practically exist, like that claimed for the British Parliament. The universal sense of America

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    ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

    "Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination, that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged, that the authority, which can declare the acts of another void, must necessarily be superior to the one; whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds, on which it rests, cannot be unacceptable.

    "There is no position, which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission, under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can he valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do, not only what their powers do not authorize, but what they forbid.

    "If it be said, that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. It is not otherwise to be supposed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must, therefore, belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred: in other words. the constitution ought to be preferred to the statute; the intention of the people to the intention of their agents.

    "Nor does the conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes, that the power of

430 CONSTITUTION OF THE U. STATES. [BOOK III.

has decided, that in the last resort the judiciary must decide upon the constitutionality of the acts and laws of the general and state governments, so far as they are

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    the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those, which are not fundamental.

    "This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing st one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation: so far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate, that this should be done: where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule, which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will, should have the preference.

    "But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us, that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter, and disregard the former.

    "It can be of no weight to say, that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the.substitution of their pleasure to that of the legislative body. The observation, if it proved any thing, would prove, that there ought to be no judges distinct from that body."

    The reasoning of Mr. Chief Justice Marshall on this subject in Cohens

CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 431

cognizance of the judiciary, its judgments must be conclusive; for otherwise they may be disregarded, and the acts of the legislature and executive enjoy a secure and capable of being made the subject of judicial controversy.1 It follows, that, when they are subjected to the

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    v. Virginia, (6 Wheat R. 384 to 390,) has been already cited at large, ante Vol. 1. p. 369 to 372. See also 6 Wheat R. 413 to 423, and the Federalist, No. 22, on the same subject.
    1 1 Kent's Comm. Lect. 20, p. 420 to 426. See also Cohens v. Virginia, 6 Wheat. R. 386 to 390. -- The reasoning of the Supreme Court in Marbury v. Madison, (1 Cranch, 137,) on this subject is so clear and convincing, that it is deemed advisable to cite it in this place, as a corrective to those loose and extraordinary doctrines, which sometimes find their way into opinions possessing official influence.

    "The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to ,their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organises the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits, not to be transcended by those departments.

    "The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons, on whom they are imposed, and if acts prohibited, and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by

432 CONSTITUTION OF THE U. STATES. [BOOK III.

irresistible triumph.1 To the people at large, therefore, such an institution is peculiarly valuable; and it ought to be eminently cherished by them. On its firm and inde-

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    ordinary means, or it is on a level with Ordinary legislative acts, and like other acts, is alterable, when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.

    "Certainly all those, who have framed.written constitutions, contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered by this court, as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative, as if it was a law? This would be to overthrow in fact, what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

    "It is emphatically the province and duty of the judicial department to say, what the law is. Those, who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case; so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine, which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case, to which they both apply.

    "Those, then, who controvert the principle, that the constitution is to he considered, in courts, as a paramount law, are reduced to the necessity of maintaining, that courts must close their eyes on the constitution and see only the law. This doctrine would subvert the very foundation

    1 1 Kent's Comm. Lect. 20, p. 420 to 425. See also 1 Tuck. Black. Comm. App. 354 to 357; The Federalist, No. 3, 22, 80, 82: 2 Elliot's Deb. 380.

CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 433

pendent structure they may repose with safety, while they perceive in it a faculty, which is only set in motion, when applied to; but which, when thus brought

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    of all written constitutions. It would declare, that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do, what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath, which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring, that those limits may be passed at pleasure. That it thus reduces to nothing, what we have deemed the greatest improvement on political institutions -- a written constitution-would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

    "The judicial power of the United States is extended to all cases, arising under the constitution. Could it be the intention of those, who gave this power, to say, that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument, under which it arises? This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?

    "There are many other parts of the constitution, which serve to illustrate this subject. It is declared, that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law? The constitution declares, that 'no bill of attainder or ex post facto law shall be passed.' If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims, whom the constitution endeavours to preserve? 'No person,' says the constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

    "From these, and many other selectious, which might be made, it is apparent, that the framers of the constitution contemplated that instru-

434 CONSTITUTION OF THE U. STATES. [BOOK III.

into action, must proceed with competent power, if required to correct the error, or subdue the oppression of the other branches of the government.1 Fortunately

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    ment, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words, 'I do solemnly swear, that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.' Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

    "It is also not entirely unworthy of observation, that in declaring, what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United. States generally, but those only, which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are hound by that instrument."

    In the Virginia Convention, Mr. Patrick Henry (a most decided opponent of the Constitution of the United States) expressed a strong opinion in favour of the right of the judiciary to decide upon the constitutionality of laws. His fears were, that the national judiciary was not so organized, as that it would possess an independence sufficient for this purpose. His language was: "The honourable gentleman did our judiciary honour in saying, that they had firmness enough to counteract the legislature in some cases. Yes, sir, our judges opposed the acts of the legislature. We have this land-mark to guide us. They had fortitude to declare, that they were the judiciary, and would oppose unconstitutional acts. Are you sure, that your federal judiciary will act thus?

    1 Rawle on Const. ch. 21, p. 199; Id. ch. 30, p. 275, 276; 1 Wilson's Law Lect. 460, 461; 3 Elliot's Deb. 143; Id. 245; Id. 280.

CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 435

too for the people, the functions of the judiciary, in deciding on constitutional questions, is not one, which it is at liberty to decline. While it is bound not to take jurisdiction, if it should not, it is equally true, that it must take jurisdiction, if it should. It cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. It cannot pass it by, because it is doubtful. With whatever doubt, with whatever difficulties a case may be attended, it must decide it, when it arises in judgment. It has no more right to decline the exercise of a jurisdiction, which is given, than to usurp that, which is not given. The one, or the other would be treason to the constitution.1

1571. The framers of the constitution, having these great principles in view, adopted two fundamental rules with entire unanimity; first, that a national judiciary ought to be established; secondly, that the national judiciary ought to possess powers co-extensive with

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    Is that judiciary so well constituted, and so independent of the other branches, as our state judiciary? Where are your land-marks in this government? I will be bold to say, you cannot find any. I take it, as the highest encomium on this country, that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary." 2 Elliot's Debates, 248.

    1 Cohens v. Virginia, 6 Wheat. R. 404; 1 Wilson's Law Lect. 461, 462.--Mr. Justice Johnson, in Fullerton v. Bank of United States, (1 Peters's R. 604, 614,) says, "What is the course of prudence and duty, where these cases of difficult distribution as to power and right present themselves? It is to yield rather, than to encroach. The duty is reciprocal, and will no doubt be met in the spirit of moderation and comity. In the conflicts of power and opinion, inseparable from our many peculiar relations, cases may occur, in which the maintenance of principle and the constitution, according to its innate and inseparable attributes, may require a different course; and when such cases do occur, our courts must do their duty." This is a very just admonition, when addressed to other departments of the government. But the judiciary has no authority to adopt any middle course. It is compelled, when called upon, to

436 CONSTITUTION OF THE U. STATES. [BOOK III.

those of the legislative department.1 Indeed, the latter necessarily flowed from the former, and was treated, and must always be treated, as an axiom of political government.2 But these provisions alone would not be sufficient to, ensure a complete administration of public justice, or to give permanency to the republic. The judiciary must be so organized, as to carry into complete effect all the purposes of its establishment. It must possess wisdom, learning, integrity, independence, and firmness. It must at once possess the power and the means to check usurpation, and enforce execution of its judgments. Mr. Burke has, with singular sagacity and pregnant brevity, stated the doctrine, which every republic should steadily sustain, and conscientiously inculcate. "Whatever," says he, "is supreme in a state ought to have, as much as possible, its judicial authority so constituted, as not only not to depend upon it, but in some sort to balance it. It ought to give security to its justice against its power. It ought to make its judicature, as it were, something exterior to the state."3 The best manner, in which this is to be accomplished, must mainly depend upon the mode of appointment, the tenure of office, the compensation of the judges, and the jurisdiction confided to the department in its various branches.

1572. Let us proceed, then, to the consideration of the judicial department, as it is established by the

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    decide, whether a law is constitutional, or not. If it declines to declare it unconstitutional, that is an affirmance of its constitutionality. 1 Journ. of Convention, 69, 98, 121, 137, 186, 188, 189, 212; The Federalist, No. 77, 78; 2 Elliot's Debates. 380 to 394; Id. 404.
    2 Cohen, v. Virginia, 6 Wheat. R. 384; 1 Tucker's Black. Comm. App. 350; The Federalist, No. 80; 2 Elliot's Debates, 380, 390, 404; 3 Elliot's Debates, 134, 143; Osborn v. Bank of United States, 9 Wheat. R. 818, 819; 1 Kent's Comm. Lect. 14, p. 277.
    3 Burke's Reflections on the French Revolution.

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constitution, and see, how far adequate means are provided for all these important purposes.

1573. The first section of the third article is as follows: "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 continuance in office." To this may be added the clause in the enumeration of the powers of congress in the first article, (which is but a mere repetition,) that congress 'shall have power "to constitute tribunals inferior to the Supreme Court."1

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    1 It is manifest, that the constitution contemplated distinct appointments of the judges of the courts of the United States. The judges of the Supreme Court are expressly required to be appointed by the president, by and with the advice and consent of the senate. They are, therefore, expressly appointed for that court, and for that court only. Can they be constitutionally required to act, as judges of any other court? This question (it now appears) was presented to the minds of the judges of the Supreme Court, who were first appointed under the constitution; and the chief justice (Mr. Jay) and some of his associates were of opinion, (and so stated to President Washington, in 1790, in a letter, which will be cited below at large,) that they could not constitutionally be appointed to hold any other court. They were, however, required to perform the duty of circuit judges in the circuit courts, until the year 1801; and then a new system was established. The latter was repealed in 1802; and the judges of the Supreme Court were again required to perform duty in the circuit courts. In 1803, the point was directly made before the Supreme Court; but the court were then of opinion, that the practice and acquiescence, for such a period of years, commencing with the organization of the judicial system, had fixed the construction, and it could not then be shaken. Stuart v. Laird, (1 Cranch's R. 299, 309.) That there have, notwithstanding, been many scruples and doubts upon the subject, in the minds of the judges of the Supreme Court, since that period, is well known. See 1 Paine's Cirt. Rep.

    We here insert the letter of Mr. Chief Justice Jay and his associates,

438 CONSTITUTION OF THE U. STATES. [BOOK III.

1574. In the convention, which framed the constitution, no diversity of opinion existed, as to the establishment of a supreme tribunal. The proposition

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    for which we are indebted to the editors of that excellent work, the American Jurist. It is in the number for October, 1830, (vol. 4, p. 294, &c.)

    "The representation alluded to was in answer to a letter, addressed by General Washington to the court upon its organization, which we have therefore prefixed to it.

    United Sates, April 3d, 1790.

    "'Gentlemen: I have always been persuaded, that the stability and success of the national government, and consequently the happiness of the people of the United States, would depend, in a considerable degree, on the interpretation of its laws. In my opinion, therefore, it is important, that the judiciary system should not only be independent in its operations, but as perfect, as possible, in its formation.

    "'As you are about to commence your first circuit, and many things may occur in such an unexplored field, Which it would be useful should be known, I think it proper to acquaint you, that it will be agreeable to me to receive such information and remarks on this subject, as you shall from time to time judge it expedient to make. Geo. Washington.

    "'The Chief Justice and Associate Justice. of the Supreme Court. of the United States.'

    "'Sir: We, the Chief Justice and Associate Justices of the Supreme Court of the United States, in pursuance of the letter, which you did us the honour to write, on the third of April last, take the liberty of submitting to your consideration the following remarks on the "Act to establish the Judicial Courts of the United States."

    "'It would doubtless have been singular, if a system so new and untried, and which was necessarily formed more on principles of theory, and probable expediency, than former experience, had, in practice, been found entirely free from defects.

    "'The particular and continued attention, which our official duties called upon us to pay to this act, has produced reflections, which at the time it was made and passed, did not, probably, occur in their full extent either to us or others.

    "'On comparing this act with the constitution, we perceive deviations, which, in our opinions, are important.

    "'The first section of the third article of the constitution declares, that "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."

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 439

was unanimously adopted.1 In respect to the establishment of inferior tribunals, some diversity of opinion was in the early stages of the proceedings exhibited.

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    "'The second section enumerates the cases, to which the judicial power shall extend. It gives to the Supreme Court original jurisdiction in only two cases, but in all the others, vests it with appellate jurisdiction; and that with such exceptions, and under such regulations, as the congress shall make.

    "'It has long and very universally been deemed essential to the due administration of justice, that some national court, or council should be instituted, or authorized to examine the acts of the ordinary tribunals, and ultimately, to affirm or reverse their judgments and decrees; it being important, that these tribunals should be confined to the limits of their respective jurisdiction, and that they should uniformly interpret and apply the law in the same sense and manner.

    "'The appellate jurisdiction of the Supreme Court enables it to confine inferior courts to their proper limits, to correct their involuntary errors, and, in general, to provide, that justice be administered accurately, impartially, and uniformly. These controlling powers were unavoidably great and extensive; and of such a nature, as to render their being combined with other judicial powers, in the same persons, unadvisable.

    "'To the natural. as well as legal incompatibility of ultimate appellate jurisdiction, with original jurisdiction, we ascribe the exclusion of the Supreme Court from the latter, except in two cases. Had it not been for this exclusion, the unalterable, ever binding decisions of this important court, would not have been secured against the influences of those predilections for individual opinions, and of those reluctances to relinquish sentiments publicly, though, perhaps, too hastily given, which insensibly and not unfrequently infuse into the minds of the most upright men, some degree of partiality for their official and public acts.

    "'Without such exclusion, no court, possessing the last resort of justice, would have acquired and preserved that public confidence, which is really necessary to render the wisest institutions useful. A celebrated writer justly observes, that "next to doing right, the great object in the administration of public justice should be to give public satisfaction."

    "'Had the constitution permitted the Supreme Court to sit in judgment, and finally to decide on the acts and errors, done and committed by its own members, as judges of inferior and subordinate courts, much room would have been left for men, on certain occasions, to suspect, that

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    1 Journal of Convention, 69, 98, 137, 186.

440 CONSTITUTION OF THE U. STATES. [BOOK III.

A proposition to establish them was at first adopted. This was struck out by the vote of five states against four, two being divided; and a proposition was then

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    an unwillingness to be thought and found in the wrong, had produced an improper adherence to it; or that mutual interest had generated mutual civilities and tenderness injurious to right.

    "'If room had been left, for such suspicions, there would have been reason to apprehend, that the public confidence would diminish almost in proportion to the number of cases, in which the Supreme Court might affirm the acts of any of its members.

    "'Appeals are seldom made, but in doubtful cases, and in which there is, at least, much appearance of reason on both sides; in such cases, therefore, not only the losing party, hut others, not immediately interested, would sometimes be led to doubt, whether the affirmance was entirely owing to the mere preponderance of right.

    "'These, we presume, were among the reasons, which induced the convention to confine the Supreme Court, and consequently its judges, to appellate jurisdiction. We say "consequently its judges," because the reasons for the one apply also to the other.

    "'We are aware of the distinction between a court and its judges; and are far from. thinking it illegal or unconstitutional, however it may be inexpedient, to employ them for other purposes, provided the latter purposes be consistent and compatible with the former. But from this distinction it cannot, in our opinions, be inferred, that the judges of the Supreme Court may also be judges of inferior and subordinate courts, and be at the same time both the controllers and the controlled.

    "'The application of these remarks is obvious. The Circuit Courts established by the act are courts inferior and subordinate to the Supreme Court. They are vested with original jurisdiction in the cases, from which the Supreme Court is excluded; and to us it would appear very singular, if the constitution was capable of being so construed, as to exclude the court, but yet admit the judges of the court. We, for our parts, consider the constitution, as plainly opposed to the appointment of the same persons to both offices; nor have we any doubts of their legal incompatibility.

    "'Bacon, in his Abridgment, says, that" offices are said to be incompatible and inconsistent, so as to be executed by one person, when from the multiplicity of business in them, they cannot be executed with care and ability; or when their being subordinate, and interfering with each other, it induces a presumption they cannot be executed with impartiality and honesty; and this, my Lord Coke says, is of that importance, that if all offices, civil and ecclesiastical, &c. were only executed, each by different persons, it would be for the good of the commonwealth and

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 441

adopted, "that the national legislature be empowered to appoint inferior tribunals," by the vote of seven states against three, one being divided;1 and ultimately this proposition received the unanimous approbation of the convention.2

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    advancement of justice, and preferment of deserving men. If a forester, by patent for his life, is made justice in Eyre of the same forest, hac vice, the forestership is become void; for these offices are incompatible, because the forester is under lite correction of the justice in Eyre, and he cannot judge himself. Upon a mandamus to restore one to the place of town-clerk, it was returned, that he was elected mayor and sworn, and, therefore, they chose another town-clerk; and the court. were strong of opinion, that the offices were incompatible, because of the subordination. A coroner, made a sheriff, ceases to be a coroner; so a parson, made a bishop, and a judge of the Common Pleas, made a judge of the King's Bench," &c.

    "'Other authorities on this point might be added; but the reasons, on which they rest, seem to us to require little elucidation, or support.

    "'There is in the act another deviation from the constitution, which we think it incumbent on us to mention. "'The second section of the second article of the constitution declares, that the president shall nominate, and by and with the advice and consent of the senate, "shall appoint judges of the Supreme Court, and all other officers of the United States, whose appointments are not therein otherwise provided for."

    "'The constitution not having otherwise provided for the appointment of the judges of the inferior courts, we conceive, that the appointment of some of them, viz. of the Circuit Courts, by an act of the legislature, is a departure from the constitution, and an exercise of powers, which constitutionally and exclusively belong to the president and senate.

    "'We should proceed, sir, to take notice of certain defects in the act relative to expediency, which we think merit the consideration of the congress. But, as these are doubtless among the objects of the late reference, made by the house of representatives to the attorney-general, we think it most proper to forbear making any remarks on this subject at present.

    "'We have the honour to be most respectfully,
    "'Sir, your obedient and humble servants.
    "'The President of the United States.'"

    1 Journal of Convention, 69, 98, 99, 102, 137. 2 Id. 188, 212.

442 CONSTITUTION OF THE U. STATES. [BOOK III.

1575. To the establishment of one court of supreme and final jurisdiction, there do not seem to have Seen any strenuous objections generally insisted on in the state conventions, though many were urged against certain portions of the jurisdiction, proposed by the constitution to be vested in the courts of the United States.1 The principal question seems to have been of a different nature, whether it ought to be a distinct coordinate department, or a branch of the legislature. And here it was remarked by the Federalist, that the same contradiction of opinion was observable among the opponents of the constitution, as in many other cases. Many of those, who objected to the senate, as a court of impeachment, upon the ground of an improper intermixture of legislative and judicial functions, were, at least by implication, advocates for the propriety of vesting the ultimate decision of all causes in the whole, or in apart of the legislative body.2

1576. The arguments, or rather suggestions, upon which this scheme was propounded, were to the following effect. The authority of the Supreme Court of the United States, as a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the constitution will enable that court to mould them into whatever shape, it may think proper; especially, as its decisions will not be in any manner subject to the revision and correction of the legislative body. This is as unprecedented, as it is dangerous. In Great Britain the judicial power in the last resort resides in the house of lords, which is a branch of the legislature. And this part of the British government has been imi-

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    1 See 2 Elliot's Debates, 380 to 427.
    2 The Federalist, No. 81.

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 443

rated in the state constitutions in general. The parliament of Great Britain, and the legislaturesof the several states, can at any time rectify by law the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable, and remediless.1

1577. The friends of the constitution, in answer to these suggestions, replied, that they were founded in false reasoning, or a misconception of fact. In the first place, there was nothing in the plan, which directly empowered the national courts to construe the laws according to the spirit of the constitution, or which gave them any greater latitude in this respect, than what was claimed and exercised by the state courts. The constitution, indeed, ought to be the standard of construction for the laws; and wherever there was an opposition, the laws ought to give place to the constitution. But this doctrine was not deducible from any circumstance peculiar to this part of the constitution, but from the general theory of a limited constitution; and, as far as it was true, it was equally applicable to the state governments.

1578. So far as the objection went to the organization of the Supreme Court, as a distinct and independent department, it admitted of a different answer. It was founded upon the general maxim of requiring a separation of the different departments of government, as most conducive to the preservation of public liberty and private rights. It would not, indeed,

_______________________________

    1 The Federalist, No. 81. -- The learned reader will trace out, in subsequent periods of our history, the same objections revived, in other imposing forms under the sanction of men, who have attained high ascendancy and distinction in the struggles of party.

444 CONSTITUTION OF THE U. STATES. [BOOK III.

absolutely violate that maxim, to allow the ultimate appellate jurisdiction to be vested in one branch of the legislative body. But there were many urgent reasons, why the proposed organization would be preferable. It would secure greater independence, impartiality, and uniformity in the administration of justice.

1579. The reasoning of the Federalist1 on this point is so clear and satisfactory, and presents the whole argument in so condensed a form, that it supersedes all farther formal discussion. "From a body, which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit, which had operated in making them, would be too apt to influence their construction; still less could it be expected, that men, who had infringed the constitution, in the character of legislators, would be disposed to repair the breach in that of judges. Nor is this all. Every reason, which recommends the tenure of good behaviour for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men selected for the knowledge of the laws, acquired by long and laborious study, to the revision and control of men, who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications, which fit men for the stations of judges; and as, on this account, there will be great

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    1 The Federalist, No. 81.

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 445

reason to apprehend all the ill consequences of defective information; so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear, that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides, will be too apt to stifle the voice both of law and equity.

1580. "These considerations teach us to applaud the wisdom of those states, who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those, who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New-Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia; and the preference, which has been given to these models, is highly to be commended.1

1581. "It is not true, in the second place, that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense, than might be done by a future legislature of the United States. The theory, neither of the British nor the state constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed constitution, more than in either of them, by which it is forbidden. In the former, as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot re-

__________________________________

    1 At the present time the same scheme of organizing the judicial power exists substantially in every state in the Union, except in N. York.

446 CONSTITUTION OF THE U. STATES. [BOOK III.

verse a determination, once made, in a particular case; though. it may prescribe a new rule for future cases. This is the principle, and it applies, in all its consequences, exactly in the same manner and extent to the state governments, as to the national government, now under consideration. Not the least difference can be pointed out in any view of the subject.

1582. "It may, in the last place, be observed, that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is, in reality, a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive, as to amount to an inconvenience, or, in any sensible degree, to affect the order of the political system. This may be inferred with certainty from the general nature of the judicial power; from the objects, to which it relates; from the manner, in which it is exercised; from its comparative weakness; and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check, which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger, that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 447

for constituting the senate a court for the trial of impeachments.''

1583. In regard to the power of constituting inferior courts of the Union, it is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It enables the 'national government to institute, or authorize, in each state or district of the United States, a tribunal competent to the determination of all matters of national jurisdiction within its limits. One of two courses only could be open for adoption; either to create inferior courts under the national authority, to reach all cases fit for the national jurisdiction, which either constitutionally, or conveniently, could not be of original cognizance in the Supreme Court; or to confide jurisdiction of the same cases to the state courts, with a right of appeal to the Supreme Court. To the latter course solid objections were thought to apply, which rendered it ineligible and unsatisfactory. In the first place, the judges of the state courts would be wholly irresponsible to the national government for their conduct in the administration of national justice; so, that the national government would, or might be, wholly dependent upon the good will, or sound discretion of the states, in regard to the efficiency, promptitude, and ability, with which the judicial authority of the nation was administered. In the next place, the prevalency of a local, or sectional spirit might be found to disqualify the state tribunals for a suitable discharge of national judicial functions; and the very modes of appointment of some of the state judges might render them improper channels of the judicial authority of the Union.1

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    1 The Federalist, No. 81. See also Cohens v. Virginia, 6 Wheat. 386, 387.

448 CONSTITUTION OF THE U. STATES. [BOOK III.

State judges, holding their offices during pleasure, or from year to year, or for other short periods, would, or at least might, be too little independent to be relied upon for an inflexible execution of the national laws. What could be done, where the state itself should happen to be in hostility to the national government, as might well be presumed occasionally to be the case, from local interests, party spirit, or peculiar prejudices, if the state tribunals were to be the sole depositaries of the judicial powers of the Union, in the ordinary administration of criminal, as well as of civil justice? Besides; if the state tribunals were thus entrusted with the ordinary administration of the criminal and civil justice of the Union, there would be a necessity for leaving the door of appeal as widely open, as possible. In proportion to the grounds of confidence in, or distrust of the subordinate tribunals, ought to be the facility or difficulty of appeals. An unrestrained course of appeals would be a source of much private, as well as public inconvenience. It would encourage litigation, and lead to the most oppressive expenses.1 Nor should it be omitted, that this very course of appeals would naturally lead to great jealousies, irritations, and collisions between the state courts and the Supreme Court, not only from differences of opinions, but from that pride of character, and consciousness of independence, which would be felt by state judges, possessing the confidence of their own state, and irresponsible to the Union.2

________________________________

    1 The Federalist, No. 81.
    2 Mr Rawle has remarked, that "the state tribunals are no part of the government of the United States. To render the government of the United States dependent on them, would be a solecism almost as great, as to leave out an executive power entirely, and to call on the states alone to enforce the laws or the Union." Rawle on Const. ch. 21, p. 20

CH. XXXVIII.] JUDICIARY--POWER OF CONGRESS. 449

1584. In considering the first clause of the third section, declaring, that "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," we are naturally led to the inquiry, whether congress possess any discretion, as to the creation of a Supreme Court and inferior courts, in whom the constitutional jurisdiction is to be vested. This was at one time matter of much discussion; and is vital to the existence of the judicial department. If congress possess any discretion on this subject, it is obvious, that the judiciary, as a co-ordinate department of the government, may, at the will of congress, be annihilated, or stripped of all its important jurisdiction; for, if the discretion exists, no one can say in what manner, or at what time, or under what circumstances it may, or ought to be exercised. The whole argument, upon which such an interpretation has been attempted to be maintained, is, that the language of the constitution, "shall be vested," is not imperative, but simply indicates the future tense. This interpretation has been overruled by the Supreme Court, upon solemn deliberation.1 "The language of the third article," say the court, "throughout is manifestly designed to be mandatory upon the legislature. Its obligatory force is so imperative, that congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may be vested) in one Supreme Court, and in such inferior courts, as congress

_____________________________________

    1 See Martin v. Hunter, 1 Wheat. R. 304, 316. -- The Commentator, in examining the structure and jurisdiction of the judicial department, is compelled by a sense of official reserve to confine his remarks chiefly to doctrines, which are settled, or which have been deemed incontrovertible, leaving others to be discussed by those, who are unrestrained by such considerations.

450 CONSTITUTION OF THE U. STATES. [BOOK III.

may, from time to time, ordain and establish. Could congress have lawfully refused to create a Supreme Court, or to vest in it the constitutional jurisdiction? '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 continuance in office.' Could congress create or limit any other tenure of the judicial office? Could they refuse to pay, at stated times, the stipulated salary, or diminish it during the continuance in office? But one answer can be given to these questions; it must be in the negative. The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial department. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them. Without the latter, it would be impossible to carry into effect some of the express provisions of the constitution. How, otherwise, could crimes against the United States be tried and punished? How could causes between two states be heard and determined? The judicial power must, therefore, be vested in some court by congress; and to suppose, that it was not an obligation binding on them, but might, at their pleasure, be omitted, or declined, is to suppose, that, under the sanction of the constitution, they might defeat the constitution itself. A construction, which would lead to such a result, cannot be sound.

1585. "The same expression, 'shall be vested,' occurs in other parts of the constitution, in defining the powers of the other co-ordinate branches of the government. The first article declares, that 'all legislative powers herein granted shall be vested in a congress of the United States.' Will it be contended, that the

CH. XXXVIII.] JUDICIARY--POWER OF CONGRESS. 451

legislative power is not absolutely vested? that the words merely refer to some future act, and mean only, that the legislative power may hereafter be vested? The second article declares, that 'the executive power shall he vested in a president of the United States of America.' Could congress vest it in any other person; or, is it to await their good pleasure, whether it is to vest at all? It is apparent, that such a construction, in either case, would be utterly inadmissible. Why, then, is it entitled to a better support in reference to the judicial department?

1586. If, then, it is a duty of congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative, as to one part, is imperative, as to all. If it were otherwise, this anomaly would exist, that congress. might successively refuse to vest the jurisdiction in any one class of cases enumerated in the constitution, and thereby defeat the jurisdiction, as to all; for the constitution has not singled out any class, on which congress are bound to act in preference to others.

1587. "The next consideration is as to the courts, in which the judicial power shall be vested. It is manifest, that a supreme court must be established;but whether it be equally obligatory to establish inferior courts, is a question of some difficulty. If congress may lawfully omit to establish inferior courts, it might follow, that, in some of the enumerated cases, the judicial power could nowhere exist. The supreme court can have original jurisdiction in two classes of cases only, viz. in cases affecting ambassadors, other public ministers and consuls, and in cases, in which a state is a party. Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself; and if, in any of the

452 CONSTITUTION OF THE U. STATES. [BOOK III.

cases enumerated in the constitution, the state courts did not then possess jurisdiction, the appellate jurisdiction of the supreme court (admitting that it could act on state courts) could not reach those cases; and, consequently, the injunction of the constitution, that the judicial power 'shall be vested,' would be disobeyed. It would seem, therefore, to follow, that congress are bound to create some inferior courts, in which to vest all that jurisdiction, which, under the constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance. They might establish one or more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all times, vested either in an original or appellate form, in some courts created under its authority.

1588. "This construction will be fortified by an attentive examination of the second section of the third article. The words are 'the judicial power shall extend,' &c. Much minute and elaborate criticism has been employed upon these words. It has been argued, that they are equivalent to the words 'may extend,' and that 'extend' means to widen to new cases not before within the scope of the power. For the reasons, which have been already stated, we are of opinion, that the words are used in an imperative sense. They import an absolute grant of judicial power. They cannot have a relative signification applicable to powers already granted; for the American people had not made. any previous grant. The constitution was for a new government, organized with new substantive powers, and not a mere supplementary charter to a government already existing. The confederation was a compact between states; and its structure and powers were

CH. XXXVIII.] JUDICIARY--POWER OF CONGRESS. 453

wholly unlike those of the national government. The constitution was an act of the people of the United States to supersede the confederation, and not to be ingrafted on it, as a stock through which it was to receive life and nourishment.

1589. "If, indeed, the relative signification could be fixed upon the term 'extend,' it would not (as we shall hereafter see) subserve the purposes of the argument, in support of which it has been adduced. This imperative sense of the words 'shall extend,' is strengthened by the context. It is declared, that 'in all cases affecting ambassadors, &,c, the supreme court shall have original jurisdiction.' Could congress withhold original jurisdiction in these cases from the supreme court? The clause proceeds --'in all the 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 the congress shall make.' The very exception here shows, that the framers of the constitution used the words in an imperative sense. What necessity could there exist for this exception, if the preceding words were not used in that sense? Without such exception, congress would, by the preceding words, have possessed a complete power to regulate the appellate jurisdiction, if the language were only equivalent to the words 'may have' appellate jurisdiction. It is apparent, then, that the exception was intended as a limitation upon the preceding words, to enable congress to regulate and restrain the appellate power, as the public interests might, from time to time, require.

1590. "Other clauses in the constitution might be brought in aid of this construction; but a minute examination of them cannot be necessary, and would occupy too much time. It will be found, that, whenever a par-

454 CONSTITUTION OF THE U. STATES. [BOOK III.

ticulat object is to be effected, the language of the constitution is always imperative, and cannot be disregarded, without violating the first principles of public duty. On the other hand, the legislative powers are given in language which implies discretion, as from the nature of legislative power such a discretion must ever be exercised." We shall presently see the important bearing, which this reasoning has upon the interpretation of that section of the constitution, which concerns the jurisdiction of the national tribunals.

1591. The constitution has wisely established, that there shall be one Supreme Court, with a view to uniformity of decision in all cases whatsoever, belonging to the judicial department, whether they arise at the common law or in equity, or within the admiralty and prize jurisdiction; whether they respect the doctrines of mere municipal law, or constitutional law, or the law of nations. It is obvious, that, if there were independent supreme courts of common law, of equity, and of admiralty, a diversity of judgment might, and almost necessarily would spring up, not only, as to the limits of the jurisdiction of each tribunal; but as to the fundamental doctrines of municipal, constitutional, and public law. The effect of this diversity would be, that a different rule would, or might be promulgated on the most interesting subjects by the several tribunals; and thus the citizens be involved in endless doubts, not only as to their private rights, but as to their public duties. The constitution itself would or might speak a different language according to the tribunal, which was called upon to interpret it; and thus interminable disputes embarrass the administration of justice throughout the whole country.1 But the same reason did not

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    1 Dr. Paley's remarks, though general in their character, show a striking coincidence of opinion between the wisdom of the new, and the

CH. XXXVIII.] JUDICIARY--POWER OF CONGRESS. 455

apply to the inferior tribunals. These were, therefore, left entirely to the discretion of congress, as to their number, their jurisdiction, and their powers. Experience might, and probably would, show good grounds for varying and modifying them from time to time. It would not only have been unwise, but exceedingly inconvenient, to have fixed the arrangement of these courts in the constitution itself; since congress would have been disabled thereby from adapting them from time to time to the exigencies of the country.2 But, whatever may be the extent, to which the power of congress reaches, as to the establishment of inferior tribunals, it is clear from what has been already stated, that all the jurisdiction contemplated by the constitu-

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    wisdom of the old world. Speaking on the subject or the necessity of one supreme appellate tribunal he says: "But, lastly, if several courts, co-ordinate to and independent or each other, subsist together in the country, it seems necessary, that the appeals from all of them should meet and terminate in the same judicature; in order, that one supreme tribunal, by whose final sentence all others are hound and concluded, may superintend and preside over the rest. This constitution is necessary for two purposes; -- to preserve a uniformity in the decisions of inferior courts, and to maintain to each the proper limits or its jurisdiction. Without a common superior, different courts might establish contradictory rules or adjudication, and the contradiction be final and without remedy; the same question might receive opposite determinations, according as it was brought before one court or another, and the determination in each be ultimate and irreversible. A common appellant jurisdiction prevents or puts an end to this confusion. For when the judgments upon appeals are consistent, (which may be expected, while it is the same court, which is at last resorted to,) the different courts, from which the appeals are brought will be reduced to a like consistency with one another. Moreover, if questions arise between courts independent or each other, concerning the extent and boundaries of their respective jurisdiction, as each will be desirous or enlarging it, own, an authority, which both acknowledge, can alone adjust the controversy. Such a power, therefore, must reside somewhere, lost the rights and repose of the country be distracted by the endless opposition and mutual encroachments of its courts of justice."
    2 See 2 Elliot's Debates, 380.

456 CONSTITUTION OF THE U. STATES. [BOOK III.

tion must be vested in some of its courts, either in an original, or an appellate form.

1592. We next come to the consideration of those securities, which the constitution has provided for the due independence and efficiency or the judicial department.

1593. The mode of appointment of the judges has necessarily come under review, in the examination of the structure and powers of the executive department. The president is expressly authorized, by and with the consent of the senate, to appoint the judges of the Supreme Court. The appointment of the judges of the inferior courts, is not expressly provided for; but has either been left to the discretion of congress, or silently belongs to the president, under the clause of the constitution authorizing him to appoint "all other officers of the United States, whose appointments are not herein otherwise provided for."1 In the convention, a proposition at first. prevailed, for the appointment of the judges of the Supreme Court by the senate, by a decided majority.2 At a later period, however, upon the report of a committee, the appointment of the judges of the Supreme Court, was given to the president, subject to the advice and consent of the senate, by a unanimous vote.3 The reasons for the change, were doubtless the same as those, which

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    1 Whether the Judges of the inferior. courts of the United Slates are such inferior officers, as the constitution contemplates to be within the power of congress, to prescribe the mode of appointment of so as to vest it in the president alone, or in the courts of law, or in the heads of departments, is a point, upon which no solemn judgment has ever been had. The practical construction has uniformly been, that they are not such inferior officers. And no act of congress prescribes the mode of their appointment. See the American Jurist for October, 1830, vol. 4, art. V.p. 298.
    2 Journal of Convention, 19, 98, 121, 137, 186, 187, 195, 196, 211, 212.
    3 Id. 325, 326, 340.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 457

led to the vesting of other high appointments in the executive department.1

1594. The next consideration is the tenure, by which the judges hold their offices. It is declared that "the judges, both of the Supreme and In-

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    1 The Federalist, No. 78. -- Mr. Chancellor Kent has summed up the reasoning, in favour of an appointment of he judges by the executive, with his usual strength. "The advantages of the mode of appointment of public officers by the president and senate have been already considered. This mode is peculiarly fit and proper, in respect to the judiciary department. The just and vigorous investigation and punishment of every species of fraud and violence, and the exercise of the power of compelling every men, to the punctual performance of his contracts, are grave duties, not of the most popular character, though the faithful discharge of them, will certainly command the calm approbation of the judicious observer. The fittest men would probably have too much reservedness of manners, and severity of morals, to secure an election resting on universal suffrage. Nor can the mode of appointment by a large deliberative assembly be entitled to unqualified approbation. There are too many occasions, and too much temptation for intrigue, party prejudice, and local interests, to permit such a body of men to act, in respect to such appointments, with a sufficiently single and steady regard for the general welfare. In ancient Rome, the praetor was chosen annually by the people, but it was in the comitia by centuries; and the choice was confined to persons belonging to the patrician order, until the close of the fourth century of the city, when the office was rendered accessible to the plebeians; and when they became licentious, says Montesquieu, the office became corrupt. The popular elections did very well, u he observes. so long as the people were free, and magnanimous, and virtuous, and the public was without corruption. But all plans of government, which suppose the people will always act with wisdom and integrity, are plainly Utopian, and contrary to uniform experience. Government must be framed for man, as he is, and not for man, as he would be, if he were free from vice. Without referring to those cases in our own country, where judges have been annually elected by a popular assembly, we may take the less invidious case of Sweden. During the diets, which preceded the revolution in 1772, the states of the kingdom sometimes appointed commissioners to act as judges. The strongest party, says Catteau, prevailed in the trials, that came before them; and persons condemned by one tribunal were acquitted by another" 1 Kent's Comm. Lect 14, p. 273, 274, (2d edition. p. 291, 292.)

458 CONSTITUTION OF THE U. STATES. [BOOK III.

ferior Courts shall hold their offices during good behaviour."1 Upon this subject, the Federalist has spoken with so much clearness and force, that little can be added to its reasoning. "The standard of good behaviour, for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy, it is an excellent barrier to the despotism of the prince: in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient, which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power, must perceive, that in a government, in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy, or injure them. The executive not only dispenses the honours, but holds the sword of the community. The legislature, not only commands the purse, but prescribes the rules, by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword, or the purse; no direction either of the strength, or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force, nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm, for the efficacious exercise even of this faculty.

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    1 For the interpretation of the meaning of the words. good behaviour, see the judgment of Lord Holt, in Harcourt v. Fox; 1 Shower's R. 426, 506, 536. S. C. Shower's Cases in Parl. 158.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 459

1595. "This simple view of the matter suggests several important consequences. It proves incontestibly that the judiciary is, beyond comparison, the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that, though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: I mean, so long as the judiciary remains truly distinct from both the legislature and executive. -- For I agree, that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers.' It proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that, as all the effects of such an union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; that, as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may, therefore, be justly regarded, as an indispensable ingredient in its constitution; and, in a great measure, as the citadel of the public justice and the public security."

1596. "If then, the courts of justice are to be considered, as the bulwarks of a limited constitution against legislative encroachments; this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute, so much

460 CONSTITUTION OF THE U. STATES. [BOOK III.

as this, to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves; and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though, I trust, the friends of the proposed constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the fight of the people to alter or abolish the established constitution, whenever they find it inconsistent with their happiness; yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 461

fortitude in the judges to do their duty, as faithful guardians of the constitution, where legislative invasions of it have been instigated by the major voice of the community.

1597. "But it is not with a view to infractions of the constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humours in the society. These sometimes extend no further, than to the injury of the private rights of particular classes of citizens by unjust and partial laws. Here, also, the firmness of the judicial magistracy is of vast importance, in mitigating the severity, and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those, which may have been passed; but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may imagine. The benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those, whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure, that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable ten-

462 CONSTITUTION OF THE U. STATES. [BOOK III.

dency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

1598. "That inflexible and uniform adherence to the rights of the constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges, who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch, which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity to justify a reliance, that nothing would be consulted, but the constitution and the laws.

1599. "There is yet a further and a weighty reason for the permanency of judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable, that they should be bound down by strict rules and precedents, which serve to define, and point out their duty in every particular case, that comes before them. And it will readily be conceived, from the variety or controversies, which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 463

swell to a very considerable bulk, and must demand long and laborious study, to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those, who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit characters; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands, less able, and less well qualified to conduct it with utility and dignity. In the present circumstances of this country, and in those, in which it is likely to be for a long time to come, the disadvantages on this score would be greater, than they may at first sight appear; but it must be confessed, that they are far inferior to those, which present themselves under the other aspects of the subject.

1600. "Upon the whole, there can be no room to doubt, that the convention acted wisely in copying from the models of those constitutions, which have established good behaviour,as the tenure of judicial offices in point of duration; and that, so far from being blameable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government The experience of Great Britain affords an illustrious comment on the excellence of the institution."

1601. These remarks will derive additional

464 CONSTITUTION OF THE U. STATES. [BOOK III.

strength and confirmation, from a nearer survey of the judicial branch of foreign governments, as well as of the several states composing the Union. In England, the king is considered, as the fountain of justice; not indeed as the author, but as the distributer of it; and he possesses the exclusive prerogative of erecting courts of judicature, and appointing the judges.1 Indeed, in early times, the kings of England often in person heard and decided causes between party and party. But as the constitution of government became more settled, the whole judicial power was delegated to the judges of the several courts of justice; and any attempt, on the part of the king, now to exercise it in person, Would be deemed an usurpation.2 Anciently, the English judges held their offices according to the tenure of their commissions, as prescribed by the crown, which was generally during the pleasure of the crown, as is the tenure of office of the Lord Chancellor, the judges of the courts of admiralty, and others, down to the present day. In the time of Lord Coke, the Barons of the Exchequer held their offices during good behaviour, while the judges of the other courts of common law held them only during pleasure.3 And it has been said, that, at the time of the restoration of Charles the Second, the commissions of the judges were during good behaviour.4 Still, however, it was at the

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    1 1 Black. Comm. 267; 2 Hawk. B. 2, ch. 1, 1, 2, 3; Corn. Dig. Prerogative, D. 28; Id. Courts, A; Id. Officers, A.; Id. Justices, A.
    2 Ibid; 1 Woodes. Lect. III, p. 87; 4 Inst. 70, 71; 2 Hawk. B. 2, ch. 1, 2, 3; 1 Black. Comm. 41, and note by Christian.
    3 4 Coke Inst. ch. 12, p. 117; Id. ch. 7, p. 75. -- The tenure of office of the Attorney and Solicitor General was at this period during good behaviour; 4 Coke, Inst. 117.
    4 1 Kent's Comm. Lect. 14, p. 275.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 465

pleasure of the crown, to prescribe what tenure of office it might choose, until after the revolution of 1688; and there can be no doubt, that a monarch so profligate as Charles the Second, would avail himself of the prerogative, as often as it suited his political, or other objects.

1609. It is certain, that this power of the crown must have produced an influence upon the administration, dangerous to private rights, and subversive of the public liberties of the subjects. In political accusations, in an especial manner, it must often have produced the most disgraceful compliances with the wishes of the crown; and the most humiliating surrenders of the rights of the accused.1 The Statute of 13 Will. 3, ch. 2, provided, that the commissions of the judges of the courts of common law should not be as formerly durante bene placito, but should be quam din bene se gesserint, and their salaries be ascertained, and established. They were made removeable, however, by the king, upon the address of both houses of parliament; and their offices expired by the demise of the king. Afterwards by a statute enacted in the reign of George the Third, at the earnest recommendation of the king, a noble improvement was made in the law, by which the judges are to hold their offices during go od behaviour, notwithstanding any demise of the crown; and their full salaries are secured to them, during the continuance of their commissions.2 Upon that occasion, the monarch made a declaration, worthy of perpetual

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    1 See De Lolme, B. 2, ch. 16, p. 350 to 354, 362. -- The State Trials before the year 1688 exhibit the most gross and painful illustrations of these remarks. Subserviency to the crown was so general in state prosecutions, that it ceased almost to attract public indignation.
    2 1 Black. Comm. 267, 268.

466 CONSTITUTION OF THE U. STATES. [BOOK III.

remembrance, that "he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown."1 Indeed, since the independence of the judges has been secured by this permanent duration of office, the administration of justice has, with a single exception,2 flowed on in England, with an uninterrupted, and pure, and unstained current. It is due to the enlightened tribunals of that nation to declare, that their learning, integrity, and impartiality, have commanded the reverence and respect, as well of America, as Europe.3 The judges of the old parliaments of France (the judicial tribunals of that country) were, before the revolution, appointed by the crown; but they held their offices for life; and this tenure of office gave them substantial independence. Appointed by the monarch, they were considered as nearly out of his power. The most determined exertions of that authority against them only showed their radical independence. They composed permanent bodies politic, constituted to resist arbitrary innovation; and from that corporate constitution, and from most of their powers they were well calculated to afford both certainty and stability to the laws. They had been a safe asylum to secure their laws, in all the revolutions of human opinion. They had saved that sacred deposit of the

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    1 1 Black. Comm. 267, 268.
    2 Lord Macclesfield.
    3 De Lolme has dwelt on this subject, with abundant satisfaction. (De Lolme, B. 2, ch. 16, p. 363 to 365.) The Eulogy of Emerigon has been often quoted, and in,Iced is as true, as it is striking. 2 Emerigon, 67, cited in 1 Marshall on Insurance, Preliminary Discourse, p. 30, note.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 467

country during the reigns of arbitrary princes, and the struggles of arbitrary factions. They kept alive the memory and record of the constitution. They were the great security to private property, which might be said (when personal liberty had no existence,) to be as well guarded in France, as in any other country.1

1603. The importance of a permanent tenure of office, to secure the independence, integrity, and impartiality of judges, was early understood in France. Louis the Eleventh, in 1467, made a memorable declaration, that the judges ought not to be deposed, or deprived of their offices, but for a forfeiture previously adjudged, and judicially declared by a competent tribunal. The same declaration was often confirmed by his successors; and after the first excesses of the French revolution were passed, the same principle obtained a public sanction. And it has now become incorporated, as,a fundamental principle, into the present charter of France, that the judges appointed by the crown shall be irremoveable.2 Other European nations have followed the same example;3 and it is highly probable, that as the principles of free governments prevail, the necessity of thus establishing the independence of the judiciary will be generally felt, and firmly provided for.4

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    1 This is the very language of Mr. Burke in his Reflections on the French Revolution. See also De Lolme, B. 1, ch. 12, p. 159, note.
    2 Merlin's Repertoire, art. Juge, No. 3.
    3 1 Kent's Comm. Lect. 14. p. 275.
    4 Dr. Paley's remarks on this subject are not the least valuable of his excellent writings. "The next security for the impartial administration of justice, especially in decisions, to which government is a party, is the independency of the judges. As protection against every illegal attack upon the rights of the subject by the servants of the crown is to be sought for from these tribunals, the judges of the land become not unfrequently the arbitrators between the king and the people; on

468 CONSTITUTION OF THE U. STATES. [BOOK III.

1604. It has sometimes been suggested, that, though in monarchial governments the independence of the judiciary is essential, to guard the rights of the subjects from the injustice and oppression of the crown; yet that the same reasons do not apply to a republic, where the popular will is sufficiently known, and ought always to be obeyed.1 A little consideration of the subject will satisfy us, that, so far from this being true, the reasons in favour of the independence of the judiciary apply with augmented force to republics; and especially to such as possess a written constitution with defined powers, and limited rights.

1605. In the first place, factions and parties are quite as common, and quite as violent in republics, as in monarchies; and the same safeguards are as indispensable in the one, as in the other, against the encroachments of party spirit, and the tyranny of factions. Laws, however wholesome or necessary, are frequently the objects of temporary aversion, and popular odium, and sometimes of popular resistance.2

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    which account they ought to be independent of either; or, what is the same thing, equally dependent upon both: that is, if they be appointed by the one, they should be removable only by the other. This was the policy, which dictated the memorable improvement in our constitution, by which the judges, who before the revolution held their offices during the pleasure of the king, can now be deprived of them only by an address from both houses of parliament; as the most regular, solemn, and authentic way, by which the dissatisfaction of the people can be expressed. To make this independency of the judges complete, the public salaries of their office ought not only to be certain both in amount and continuance, but so liberal, as to secure their integrity from the temptation of secret bribes; which liberality will answer, also, the further purpose of preserving their jurisdiction from contempt, and their characters from suspicion; as well as of rendering the office worthy of the ambition of men of eminence in their procession." 1 4 Jefferson's Corresp. 287, 288, 289, 316, 352.
    2 1 Kent's Comm. Lect. 14, p. 275.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 469

Nothing is more facile in republics, than for demagogues, under artful pretences, to stir up combinations against the regular exercise of authority. Their selfish purposes are too often interrupted by the firmness and independence of upright magistrates, not to make them at all times hostile to a power, which rebukes, and an impartiality, which condemns them. The Judiciary, as the weakest point in the constitution, on which to make an attack, is therefore, constantly that, to which they direct their assaults; and a triumph here, aided by any momentary popular encouragement, achieves a lasting victory over the constitution itself. Hence, in republics, those, who are to profit by public commotions, or the prevalence of faction, are always the enemies of a regular and independent administration of justice. They spread all sorts of delusion, in order to mislead the public mind, and excite the public prejudices. They know full well, that, without the aid of the people, their schemes must prove abortive; and they, therefore, employ every art to undermine the public confidence, and to make the people the instruments of subverting their own rights and liberties.

1606. It is obvious, that, under such circumstances, if the tenure of office of the judges is not permanent, they will soon be rendered odious, not because they do wrong; but because they refuse to do wrong; and they will be made to give way to others, who shall become more pliant tools of the leading demagogues of the day. There can be no security for the minority in a free government, except through the judicial department. In a monarchy, the sympathies of the people are naturally enlisted against the meditated oppressions of their ruler; and they screen his victims from his vengeance. His is the cause of one against the

470 CONSTITUTION OF THE U. STATES. [BOOK III.

community. But, in free governments, where the majority, who obtain power for the moment, are supposed to represent the will of the people, persecution, especially of a political nature, becomes the cause of the community against one. It is the more violent and unrelenting, because it is deemed indispensable to attain power, or to enjoy the fruits of victory. In free governments, therefore, the independence of the judiciary becomes far more important to the security of the rights of the citizens, than in a monarchy; since it is the only barrier against the oppressions of a dominant faction, armed for the moment.with power, and abusing the influence, acquired under accidental excitements, to overthrow the institutions and liberties, which have been the deliberate choice of the people.1

1607. In the next place, the independence of the judiciary is indispensable to secure the people against the intentional, as well as unintentional, usurpations of the executive and legislative departments. It has been observed with great sagacity, that power is perpetually stealing from the many to the few; and the tendency of the legislative department to absorb all the other powers of the government has always been dwelt upon by statesmen and patriots, as a general truth, confirmed by all human experience.2 If the judges are appointed at short intervals, either by the legislative, or the executive department, they will naturally, and, indeed, almost necessarily, become mere dependents upon the appointing power. If they have any desire to obtain, or to hold office, they will at all times evince a desire to follow, and obey the will of the predominant power

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    1 1 Kent's Comm. Lect. 14, p. 275, 276.
    2 1 Wilson's Law Lect. 461, 462, 463.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 471

in the state. Justice will be administered with a faultering and feeble hand. It will secure nothing, but its own place, and the approbation of those, who value, because they control it. It will decree, what best suits the opinions of the day; and it will forget, that the precepts of the law rest on eternal foundations. The rulers and the citizens will not stand upon an equal ground in litigations. The favourites of the day will overawe by their power, or seduce by their influence; and thus, the fundamental maxim of a republic, that it is a government of laws, and not of men, will be silently disproved, or openly abandoned.1

1608. In the next place, these considerations acquire (as has been already seen) still more cogency and force, when applied to questions of constitutional law. In monarchies, the only practical resistance, which the judiciary can present, is to the usurpations of a single department of the government, unaided, and acting for itself. But, if the executive and legislative departments are combined in any course of measures, obedience to their will becomes a duty, as well as a necessity. Thus, even in the free government of Great Britain, an act of parliament, combining, as it does, the will of the crown, and of the legislature, is absolute and omnipotent. It cannot be lawfully resisted, or disobeyed. The judiciary is bound to carry it into effect at every hazard, even though it should sub-

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    1 It is far from being true, that the gross misconduct of the English Judges in many state prosecutions, while they held their offices during the pleasure of the crown, was in compliance only with the mere will of the monarch. On the contrary, they administered but too keenly to popular vengeance, acting under delusions of an extraordinary nature, sometimes political, sometimes religious, and sometimes arising from temporary prejudices.

472 CONSTITUTION OF THE U. STATES. [BOOK III.

vert private rights and public liberty.1 But it is far otherwise in a republic, like our own, with a limited constitution, prescribing at once the powers of the rulers, and the rights of the citizens.2 This very circumstance would seem conclusively to show, that the independence of the judiciary is absolutely indispensable to preserve the balance of such a constitution. In no other way can there be any practical restraint upon the acts of the government, or any practical enforcement of the rights of the citizens.3 This. subject has been already examined very much at large, and needs only to be touched in this place. No man can deny the necessity of a judiciary to interpret the constitution and laws, and to preserve the citizens against oppression and usurpation in civil and criminal prosecutions. Does it not follow, that, to enable the judiciary to fulfil its functions, it is indispensable, that the judges should not hold their offices at the mere pleasure of those, whose acts they are to check, and, if need be, to declare

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    1 See 1 Black. Comm. 9; Woodeson's Elements of Jurisprudence, Lect. 3, p. 48.
    2 1 Wilson's Law Lect. 460, 462.
    3 The remarks of Mr. Boudinot on this subject, in a debate in the house of representatives, deserve insertion in this place, from his high character for wisdom and patriotism. "It has been objected," says he, "that, by adopting the bill before us, we expose the measure to be considered, and defeated t,y the judiciary of the United States, who may adjudge it to be contrary to the constitution, and therefore void, and not lend their aid to carry it into execution. This gives me no uneasiness. I am so far from controverting this right in the judiciary, that it is my boast, and my confidence. It leads me to greater decision on all subjects of a constitutional nature, when I reflect, that, if from inattention, want of precision, or any other defect, I should do wrong, there is a power in the government, which can constitutionally prevent the operation of a wrong measure from affecting my constituents. I am legislating for a nation, and for thousands yet unborn; and it is the glory of the constitution, that there is a remedy for the failures even of the legislature itself." 1 Wilson's Law Lect. 462, 463.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 479

void? Can it be supposed for a moment, that men holding their offices for the short period of two, or four, or even six years, will be. generally found firm enough to resist the will of those, who appoint them, and may remove them?

1609. The argument of those, who contend for a short period of office of the judges, is founded upon the necessity of a conformity to the will of the people. But the argument proceeds upon a fallacy, in supposing, that the will of the rulers, and the will of the people are the same. Now, they not only may be, but often actually are, in direct variance to each other. No man in a republican government can doubt, that the will of the people is, and ought to be, supreme. But it is the deliberate will of the people, evinced by their solemn acts, and not the momentary ebullitions of those, who act for the majority, for a day, or a month, or a year. The constitution is the will, the deliberate will, of the people. They have declared under what circumstances, and in what manner it shall be amended, and altered; and until a change is effected in the manner prescribed, it is declared, that it, shall be the supreme law of the land, to which all persons, rulers, as well as citizens, must bow in obedience. When it is constitutionally altered, then and not until then, are the judges at liberty to disregard its original injunctions. When, therefore, the argument is pressed, that the judges ought to be subject to the will of the people, no one doubts the propriety of the doctrine in its true and legitimate sense.

1610. But those, who press the argument, use it in a far broader sense. In their view, the will of the people, as exhibited in the choice of the rulers, is to be followed. If the rulers interpret the constitution dif-

474 CONSTITUTION OF THE U. STATES. [BOOK III.

ferently from the judges, the former are to be obeyed, because they represent the opinions of the people; and therefore, the judges ought to be removable, or appointed for a short period, so as to became subject to the will of the people, as expressed by and through their rulers. But, is it not at once seen, that this is in fact subverting the constitution? Would it not make the constitution an instrument of flexible and changeable interpretation, and not a settled form of government with fixed limitations? Would it not become, instead of a supreme law for ourselves and our posterity, a mere oracle of the powers of the rulers of the day, to which implicit homage is to be paid, and speaking at different times the most opposite commands, and in the most ambiguous voices? In short, is not this an attempt to erect, behind the constitution, a power unknown, and unprovided for by the constitution, and greater than itself? What become of the limitations of the constitution, if the will of the people, thus inofficially promulgated, forms, for the time being, the supreme law, and the supreme exposition of the law? If the constitution defines the powers of the government, and points out the mode of changing them; and yet, the instrument is to expand in the hands of one set of rulers, and to contract in those of another, where is the standard? If the will of the people is to govern in the construction of the powers of the constitution, and that will is to be gathered at every successive election at the polls, and not from their deliberate judgment, and solemn acts in ratifying the constitution, or in amending it, what certainty can there be in those powers? If 'the constitution is to be expounded, not by its written text, but by the opinions of the rulers for the time being, whose opinions are to

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 475

prevail, the first, or the last? When, therefore, it is said, that the judges ought to be subjected to the will of the people, and to conform to their interpretation of the constitution, the practical meaning must be, that they should be subjected to the control of the representatives of the people in the executive and legislative departments, and should interpret the constitution, as the latter may, from time to time, deem correct.

1611. But it is obvious, that ejections can rarely, if ever, furnish any sufficient proofs, what is deliberately the will of the people, as to any constitutional or legal doctrines. Representatives and rulers must be ordinarily chosen for very different purposes; and, in many instances, their opinions upon constitutional questions must be unknown to their constituents. The only means known to the constitution, by which to ascertain the will of the people upon a constitutional question, is in the shape of an affirmative or negative proposition by way of amendment, offered for their adoption in the mode prescribed by the constitution. The elections in one year may bring one party into power; and in the next year their opponents, embracing opposite doctrines, may succeed; and so alternate success and defeat may perpetually recur in the same districts, and in the same, or different states.

1612. Surely it will not be pretended, that any constitution, adapted to the American people, could ever contemplate the executive and legislative departments of the government, as the ultimate depositaries of the power to interpret the constitution; or as the ultimate representatives of the will of the people, to change it at pleasure. If, then, the judges were appointed for two, or four, or six years, instead of during good behaviour, the only security, which the peo-

476 CONSTITUTION OF THE U. STATES. [BOOK III.

pie would have for a due administration of public justice, and a firm support of the constitution, would be, that being dependent upon the executive for their appointment during their brief period of office, they might, and would represent more fully, for the time being, the constitutional opinion of each successive executive; and thus carry into effect his system of government. Would this be more wise, or more safe, more for the permanence of the constitution, or the preservation of the liberties of the people, than the present system? Would the judiciary, then, be, in fact, an independent co-ordinate department? Would it protect the people against an ambitious or corrupt executive; or restrain the legislature from acts of unconstitutional authority?1

1613. The truth is, that, even with the most secure tenure of office, during good behaviour, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be too ready to yield themselves to the passions, and politics, and prejudices of the day. In a monarchy, the judges, in the performance

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    1 Mr. Jefferson, during the latter years of his life, and indeed from the time, when he became president of the United States, was a most strenuous advocate of the plan of making the judges hold their offices for a limited term of years only lie proposed, that their appointments should be for four, or six years, renewable by the president and senate. It is not my purpose to bring his opinions into review, or to comment on the terms, in which they are expressed. It is impossible not to perceive, that he entertained a decided hostility to the judicial department; and that he allowed himself in language of insinuation against the conduct of judges, which is little calculated to add weight to his opinions. He wrote on this subject apparently with the feelings of a partisan, and under influences, which his best friends will most regret. See 1 Jefferson's Corresp. 65, 66; 4 Jefferson's Corresp. 74, 75, 287, 288, 289, 317, 337, 352. His earlier opinions were of a different character. See Jefferson's Notes on Virginia, 195; Federalist, No. 48.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 477

of their duties with uprightness and impartiality, will always have the support of some of the departments of the government, or at least of the people. In republics, they may sometimes find the other departments combined in hostility against the judicial; and even the people, for a while, under the influence of party spirit and turbulent factions, ready to abandon them to their fate.1 Few men possess the firmness to resist the torrent of popular opinion; or are content to sacrifice present ease and public favour, in order to earn the slow rewards of a conscientious discharge of duty; the sure, but distant, gratitude of the people; and the severe, but enlightened, award of posterity.2

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    1 An objection was taken in the Pennsylvania convention against the constitution of the United States, that the judges were not made sufficiently independent, because they might hold other offices. 3 Elliot's Debates, 300, 313, 314.
    2 Mr. (now Judge) Hopkinson has treated this subject, as he has treated every other, failing within the range of his forensic or literary labours, in a masterly manner. I extract the following passages from his Defence of Mr. Justice Chase, upon his Impeachment, as equally remarkable for truth, wisdom, and eloquence.

    "The pure and upright administration of justice is of the utmost importance to any people; the other movements of government are not of such universal concern. Who shall be president,.or what treaties or general statutes shall be made, occupies the attention of a few busy politicians; but these things touch not, or but seldom, the private interests and happiness of the great mass of the community. But the settlement of private controversies, the administration of law between man and man, the distribution of justice and right to the citizen in his private business and concern, comes to every man's door, and is essential to every man's prosperity and happiness. Hence I consider the judiciary of our country most important among the branches of government, and its purity and independence of the most interesting consequence to every man. Whilst it is honorably and fully protected from the influence of favour, or fear, from any quarter, the situation of a people can never be very uncomfortable or unsafe. But if a judge is for ever to be exposed to prosecutions and impeachments for his official conduct on the mere suggestions of caprice, and to be condemned by the mere voice of prejudice, under the specious name of common sense, can he hold

478 CONSTITUTION OF THE U. STATES. [BOOK III.

1614. If passing from general reasoning, an appeal is made to the lessons of experience, there is every thing to convince us, that the judicial depart-

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    that firm and steady hand his high functions require? No; if his nerves ere of iron, they must tremble in so perilous a situation. In England the complete independence of the judiciary has been considered, and has been found the best and surest safeguard of true liberty, securing a government of known and uniform laws, acting alike upon every man. It has, however, been suggested by some of our newspaper politicians, perhaps from a higher source, that although this independent judiciary is very necessary in a monarchy to protect the people from the oppression of a court, yet that in our republican institution the same reasons for it do not exist; that it is indeed inconsistent with the nature of our government, that any part or branch of it should be independent of the people, from whom the power is derived. And, as the house of representatives come most frequently from this great source of power, they claim the best right of knowing and expressing its will; and of course the right of a controlling influence over the other branches. My doctrine is precisely the reverse of this.

    "If I were called upon to declare, whether the independence of judges were more essentially important in a monarchy, or a republic, I should certainly say, in the latter, all governments require, in order to give them firmness, stability, and character, some permanent principle; some settled establishment. The want of this is the great deficiency in republican institutions; nothing can be relied upon; no faith can be given, either at home or abroad, to a people, whose systems, and operations, and policy, are constantly changing with popular opinion; if, however, the judiciary is stable and independent; if the rule of justice between men rests on permanent and known principles, it gives a security end character to a country, which is absolutely necessary in its intercourse with the world, and in its own internal concerns. This independence is further requisite, as a security from oppression. History demonstrates; from page to page, that tyranny and oppression have not been confined to despotisms, but have been freely exercised in republics, both ancient and modern; with this difference, -- that in the latter, the oppression has sprung from the impulse of some sudden gust of passion or prejudice, while, in the former, it is systematically planned and pursued, as an ingredient and principle of the government; the people destroy not deliberately, and will return to reflection and justice, if passion is not kept alive and excited by artful intrigue; but, while the fit is on, their devastation and cruelty is more terrible and unbounded, than the most monstrous tyrant. It is for their own benefit, and to protect them from the violence of their own passions, that it is essential to have some firm, unshaken, independent, branch of government, able

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 479

ment is safe to a republic, with the tenure of office during good behaviour; and that justice will ordinarily be best administered, where there is most independence. Of the state constitutions, five only out of twentyfour have provided for any other tenure of office, than during good behaviour; and those adopted by the new states admitted into the Union, since the formation of the national government, have, with two or three exceptions only, embraced the same permanent tenure of office.1 No one can hesitate to declare, that in the states, .where the judges hold their offices during good. behaviour, justice is administered with wisdom, moderation, and firmness; and that the public confidence has reposed upon the judicial department, in the most critical times, with unabated respect. If the same can be said in regard to other states, where the judges enjoy a less permanent tenure of office, it will not answer the reasoning, unless it can also be shown, that the judges have never been removed for political causes, wholly distinct from their own merit; and yet have often deliberately placed themselves in opposition to the popular opinion.2

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    and willing to resist their phrenzy; if we have read of the death of Seneca, under the ferocity of a Nero; we have read too of the murder of a Socrates, under the delusion of a republic. An independent and firm judiciary, protected god protecting by the laws, would have snatched the one from the fury of a despot, and preserved the other from the madness ore people." 2 Chase's Trial, 18, 19, 20. 1 Dr. Lieber's Encyclopedia Americana, Art. Constitutions of the United Stales.
    2 It affords me very great satisfaction to be able to cite the opinions of two eminent commentators on this subject, who, differing in many other views of constitutional law, concur in upholding the necessity of an independent judiciary in a republic. Mr. Chancellor Kent, in his Commentaries, says:

    "In monarchical governments, the independence of the judiciary is essential to guard the rights of the subject from the injustice of the crown; but in republics it is equally salutary, in protecting the constitution and

480 CONSTITUTION OF THE U. STATES. [BOOK III.

1615. The considerations above stated lead to the conclusion, that in republics there are, in reality, stronger reasons for an independent tenure of office

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    laws from the encroachments and the tyranny of faction. Laws, however wholesome or necessary, are frequently the object or temporary aversion, and sometimes of popular resistance. It is requisite, that the courts of justice should be able at all times, to present a determined countenance against all licentious acts; and, to give them the firmness to do it, the judges ought to be confident of the security of their stations. Nor is an independent judiciary less useful, as a check upon the legislative power. which is sometimes disposed, from the force of passion, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, as will be shown hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the constitution, as the paramount law, and the highest evidence of the will of the people." 1 Kent's Comm. Lect 14, p. 293, 294.

    Mr. Tucker, in his Commentaries, makes the following remarks:

    "The American constitutions appear to be the first, in which this absolute independence of tim judiciary hag formed one of the fundamental principles of the government. Doctor Ratherforth considers the judiciary, as a branch only of the executive authority; and such, in strictness, perhaps, it is in other countries, its province being to advise the executive, rather than to act independently of it." "But, in the United States of America, the judicial power is a distinct, separate, independent, and co-ordinate branch of the government; expressly recognized as such in our state bill of rights, and constitution. and demonstrably so, likewise, by the federal constitution, from which the courts of the United States derive all their powers, in like manner, as the legislative and executive departments derive. theirs. The obligation, which the constitution imposes upon the judiciary department, to support the constitution of the United States, would be nugatory, if it were dependent upon either of the other branches of the government, or in any manner subject to their control, since such control might operate to the destruction, instead of the support, of the constitution. Nor can it escape observation, that to require such an oath on the part of the judges, on the one hand, and yet suppose them hound by acts of the legislature, which may violate the constitution, which they have sworn to support. carries with it such a degree of impiety, as well as absurdity, as no man, who pays any regard to the obligations of an oath, can be supposed, either to contend for, or to defend.

    "This absolute independence of the judiciary, both of the executive and the legislative departments, which I contend is to be found, both

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 481

by the judges, a tenure during good behaviour, than in a monarchy. Indeed, a republic with a limited constitution, and yet without a judiciary sufficiently inde-

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    in the letter, and spirit of our constitutions, is not less necessary to the liberty and security of the citizen, and his property, in a republican government, than in a monarchy. If, in the latter, the will of the prince may be considered, as likely to influence the conduct of judges created occasionally, and holding their offices only during his pleasure, more especially in eases, where a criminal prosecution may be carried on by his orders, and supported by his influence; in a republic, on the other hand, the violence and malignity of party spirit, as well in the legislature, as in the executive, requires not less the intervention of, calm, temperate, upright, and independent judiciary, to prevent that violence and malignity from exerting itself 'to crush in dust and ashes' all opponents to its tyrannical administration, or ambitious projects. Such an independence can never be perfectly attained, but by a constitutional tenure of office, equally independent of the frowns and smiles of the other branches of the government. Judges ought, not only to be incapable of holding any other office at the same time, but even of appointment to any but a judicial office. For the hope of favour is always more alluring, and generally more dangerous, than the fear of offending. In England, according to the principles of the common law, a judge cannot hold any other office; and according to the practice there for more than a century, no instance can, I believe, be shown, where a judge has been appointed to any other, than a judicial office, unless it be the honorary post of privy counsellor, to which no emolument is attached. And even this honorary distinction is Seldom conferred, but upon the chief justice of the king's bench, if I have been rightly informed. To this cause, not less than to tile tenure of their offices during good behaviour, may we ascribe that pre-eminent integrity, which amidst surrounding corruption, beams with genuine lustre from the English courts of judicature, as from the sun through surrounding clouds and mists. To emulate both their wisdom and integrity is an ambition, worthy of the greatest characters in any country.

    "If we consider the nature of the judicial authority, and the manner, in which it operates, we shall discover, that it cannot, of itself oppress any individual; for the executive authority must lend its aid in every instance, where oppression can ensue from its decisions: whilst, on the contrary, its decisions in favour of the citizen are carried into instantaneous effect, by delivering him from the custody and restraint of the executive officer, the moment, that an acquittal is pronounced. And herein consists one of the great excellencies of our constitution: that no individual can be oppressed, whilst this branch of the government remains independent, and uncorrupted: it being a necessary check

482 CONSTITUTION OF THE U. STATES. [BOOK III.

pendent to check usurpation, to protect public liberty, and to enforce private rights, would be as visionary and absurd, as a society organized without any restraints of law. It would become a democracy with unlimited powers, exercising through its rulers a universal despotic sovereignty. The very theory of a balanced republic of restricted powers presupposes some organized means to control, and resist, any excesses of authority. The people may, if they please, submit all power to their rulers for the time being; but, then, the government should receive its true appellation and character. It would be a government of tyrants, elective, it is true, but still tyrants; and it would become the more fierce, vindictive, and sanguinary, because it would perpetually generate factions in its own bosom, who could succeed only by the ruin of their enemies. It would be alternately characterized, as a reign of terror, and a reign of imbecility. It would be as cor-

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    upon the encroachments, or usurpations of power, by either of the other."

    "That absolute independence of the judiciary, for which we contend, is not, then, incompatible with the strictest responsibility; (for a judge is no more exempt from it, than .any other servant of the people, according to the true principles of the constitution;) but such an independence of the other co-ordinate branches of the government, as seems absolutely necessary to secure to them the free exercise of their constitutional functions, without the hope of pleasing, or the fear of offending. And, as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches, who have the custody of the purse and sword of the confederacy; and as nothing can contribute so much to its firmness and independence, as permanency in office, this quality, therefore, may be justly regarded, as an indispensable ingredient in its constitution; and in great measure, as the citadel of the public justice, and the public security." 1 Tuck. Black. Comm. App. 354, 356 to 360.

    There is also a very temperate, and, at the same time, a very satisfactory elucidation of the same subject, in Mr. Rawle's work on the Constitution, (ch. 30.) It would be cheerfully extracted, if this note had not already been extended to an inconvenient length.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 483

rupt, as it would be dangerous. It would form another model of that profligate and bloody democracy, which, at one time, in the French revolution, darkened by its deeds the fortunes of France, and left to mankind the appalling lesson, that virtue, and religion, genius, and learning, the authority of wisdom, and the appeals of innocence, are unheard and unfelt in the frenzy of popular excitement; and, that the worst crimes may be sanctioned, and the most desolating principles inculcated, under the banners, and in the name of liberty. In human governments, there are but two controlling powers; the power of arms, and the power of laws. If the latter are not enforced by a judiciary above all fear, and above all reproach, the former must prevail; and thus lead to the triumph of military over civil institutions. The framers of the constitution, with profound wisdom, laid the corner stone of our national republic in the permanent independence of the judicial establishment. Upon this point. their vote was unanimous.1 They adopted the results of an enlightened experience. They were not seduced by the dreams of human perfection into the belief, that all power might be safely left to the unchecked operation of the private ambition, or personal virtue of rulers. Nor, on the other hand, were they so lost to a just estimate of human concerns, as not to feel, that confidence must be reposed somewhere; if either efficiency, or safety are to be consulted in the plan of government. Having provided amply for the legislative and executive authorities, they established a balance-wheel, which, by its independent structure, should adjust the irregularities, and check the excesses of the occasional movements of the system.

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    1 Journal of Convention, 100, 188.

484 CONSTITUTION OF THE U. STATES. [BOOK III.

1616. In the convention a proposition was offered to make the judges removeable by the president, upon the application of the senate and house of representatives; but it received the support of a single state only.1

1617. This proposition doubtless owed its origin to the clause in the act of parliament, (13 Will. 3 ch. 2,) making it lawful for the king to remove the judges on the address of both houses of parliament, notwithstanding the tenure of their offices during good behaviour, established by the same act.2 But a moment's reflection will teach us, that there is no just analogy in the cases. The object of the act of parliament was to secure the judges from removal at the mere pleasure of the crown; but not to render them independent of the action of parliament. By the theory of the British constitution, every act of parliament is supreme and omnipotent. It may change the succession to the crown; and even the very fundamentals of the constitution. It would have been absurd, therefore, to have exempted the judges alone from the general jurisdiction of this supreme authority in the realm. The clause was not introduced into the act, for the purpose of conferring the power on parliament, for it could not be taken away, or restricted; but simply to recognize it, as a qualification of the tenure of office; so that the judges should have no right to complain of any breach of an implied contract with them, and the crown should not be deprived of the means to remove an unfit judge, whenever parliament should in their discretion signify their assent. Besides; in England the judges are not, and cannot be, called upon to de-

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    1 Journ. of Convention, 296.
    2 1 Black. Comm. 266.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 485

cide any constitutional questions; and therefore there was no necessity to place them, and indeed there would have been an impropriety in placing them, even if it had been possible, (which it clearly was not) in a situation, in which they would not have been under the control of parliament.

1618. Far different is the situation of the people of the United States. They have chosen to establish a constitution of government, with limited powers and prerogatives, over which neither the executive, nor the legislature, have any power, either of alteration or control. It is to all the departments equally a supreme, fundamental, unchangeable law, which all must obey, and none are at liberty to disregard. The main security, relied on to check any irregular, or unconstitutional measure, either of the executive, or the legislative department, was (as we have seen) the judiciary. To have made the judges, therefore, removable, at the pleasure of the president and congress, would have been a virtual surrender to them of the custody and appointment of the guardians of the constitution. It would have been placing the keys of the citadel in the possession of those, against whose assaults the people were most strenuously endeavouring to guard themselves. It would be holding out a temptation to the president and congress, whenever they were resisted in any of their measures, to secure a perfect irresponsibility by removing those judges from office, who should dare to oppose their will. In short, in every violent political commotion or change, the judges would be removed from office, exactly as the lord chancellor in England now is, in order, that a perfect harmony might be established between the operations of all the departments of government. Such a power would have

486 CONSTITUTION OF THE U. STATES. [BOOK III.

been a signal proof of a solicitude to erect defences round the constitution, for the sole purpose of surrendering them into the possession of those, whose acts they were intended to guard against. Under such circumstances, it might well have been asked, where could resort be had to redress grievances, or to overthrow usurpations? Quis custodiet oustodes?

1619. A proposition of a more imposing nature was to authorize a removal of judges for inability to discharge the duties of their offices. But all considerate persons will readily perceive, that such a provision would either not be practised upon, or would be more liable to abuse, than calculated to answer any good purpose. The mensuration of the faculties of the mind has no place in the catalogue of any known art or science. An attempt to fix the boundary between the region of ability and inability would much oftener give rise to personal, or party attachments and hostilities, than advance the interests of justice, or the public good.1 And instances of absolute imbecility would be too rare to justify the introduction of so dangerous a provision.

1620. In order to avoid investigations of this sort, which must for ever be vague and unsatisfactory, some persons have been disposed to think, that a limitation of age should be assumed as a criterion of inability; so that there should be a constitutional removal from office, when the judge should attain a certain age. Some of the state constitutions have adopted such a limitation. Thus, in New-York, sixty years of age is a disqualification for the office of judge; and in some other states the period is prolonged to seventy. The value of these

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    1 The Federalist, No. 79. See Rawle on Constitution, ch. 30, p. 278, 279.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 487

provisions has never, as yet, been satisfactorily established by the experience of any state. That they have worked mischievously in some cases is matter of public notoriety. The Federalist has remarked, in reference to the limitation in New-York,1 "there are few at present, who do not disapprove of this provision. There is no station, in which it is less proper, than that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men, who survive it. And when, in addition to this circumstance, we consider how few there are, who outlive the season of intellectual vigour, and how improbable it is, that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude, that limitations of this sort have little to recommend them. In a

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    1 The limitation of New-York struck from its bench one of the greatest names, that ever adorned it, in the full possession of his extraordinary powers. I refer to Mr. Chancellor Kent, to whom the jurisprudence of New-York owes a debt of gratitude, that can never be repaid. He is at once the compeer of Hardwicke and Mansfield. Since his removal from the bench, he has composed his admirable Commentaries,* a work, which will survive, as an honor to the country, long after all the perishable fabrics of our day shall be buried in oblivion. If he had not thus secured an enviable fame since his retirement, the public might have had cause to regret, that New-York should have chosen to disfranchise her best citizens at the time, when their services were most important, and their judgments most mature.

    Even the age of seventy would have excluded from public service some of the greatest minds which have belonged to our country. At eighty, said Mr. Jefferson, Franklin was the ornament of human nature. At eighty, Lord Mansfield still possessed in vigor his almost unrivalled powers. If seventy had been the limitation in the constitution of the United States, the nation would have lost seven years of as brilliant judicial labors, us have ever adorned the annals of the jurisprudence of any country.

    * While the present work was passing through the press, a second edition has been published by the learned author; and it his been greatly improved by his severe, gate, and accurate judgment.

488 CONSTITUTION OF THE U. STATES. [BOOK III.

republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations, in which they have served their country long and usefully, and on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity, than is to be found in the imaginary danger of a superannuated bench."1

1621. It is observable, that the constitution has declared, that the judges of the inferior courts, as well as of the Supreme Court, of the United States, shall hold their offices during good behaviour. In this respect there is a marked contrast between the English government and our own. In England the tenure is exclusively confined to the judges of the superior courts, and does not (as we have already seen) even embrace all of these. In fact, a great portion of all the civil and criminal business of the whole kingdom is performed by persons delegated, pro hac vice, for this purpose under commissions issued periodically for a single circuit.2 It is true, that it is, and for a long period has been, ordinarily administered by the judges of the courts of King's Bench, Common Pleas, and Exchequer; but it is not so merely virtute officii, but under special commissions investing them from time to time with this authority in conjunction with other persons named in the commission. Such are the commissions of oyer and terminer, of assize, of gaol delivery, and of nisi prius, under which all civil and criminal trials of matters of fact are had at the circuits, and in the metropolis.3 By the constitu-

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    1 The Federalist, No. 79. See Rawle on Const. ch. 30, p. 278, 279.
    2 1 Wilson's Law Lect. 463, 464; 2 Wilson's Law Lect. 258, 259.
    3 See 3 Black. Comm. 58, 59, 60.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 489

tion of the United States all criminal and civil jurisdiction must be exclusively confided to judges holding their office during good behaviour; and though congress may from time to time distribute the jurisdiction among such inferior courts, as it may create from time to time, and withdraw it at their pleasure, it is not competent for them to confer it upon temporary judges, or to confide it by special commission. Even if the English system be well adapted to the wants of the nation, and secure a wise and beneficent administration of justice in the realm, as it doubtless does; still it is obvious, that, in our popular government, it would be quite too great a power, to trust the whole administration of civil and criminal justice to commissioners, appointed at the pleasure of the president. To the constitution of the United States, and to those, who enjoy its advantages, no judges are known, but such, as hold their offices during good behaviour.1

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    1 1 Wilson's Law Lect. 464, 465. -- Mr. Tucker has spoken with a truly national pride and feeling on the subject of the national judiciary, in comparing it with that of England. "Whatever then has been said," says he, "by Baron Montesquieu, De Lolme, or Judge Blackstone, or any other writer, on the security derived to the subject from the independence of the judiciary of Great Britain, will apply at least as forcibly to that of the United States. We may go still further. In England the judiciary may be overwhelmed by a combination between the executive and the legislature. In America, (according to the true theory of our constitution,) it is rendered absolutely independent of, and superior to the attempts of both, to control, or crush it: First, by the tenure of office, which is during good behaviour; these words (by a long train of decisions in England, even as far back, as the reign of Edward the Third) in all commissions and grants, public or private, importing an office, or estate, for the life of the grantee, determinable only by his death, or breach of good behaviour. Secondly, by the independence of the judges, in respect to their salaries, which cannot be diminished. Thirdly, by the letter of the constitution, which defines and limits the powers of the several co-ordinate branches of the government; and the spirit of it, which forbids any attempt on the part of either to subvert the

490 CONSTITUTION OF THE U. STATES. [BOOK III.

1622. The next clause of the constitution declares, that the judges of the supreme and inferior courts "shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Without this provision the other, as to the tenure of office, would have been utterly nugatory, and indeed a mere mockery. The Federalist has here also spoken in language so direct and convincing, that it supersedes all other argument.

1623. "Next to permanency in office, nothing can contribute more to the independence of the judges, than a fixed provision for their support. The remark made in relation to the president is equally applicable here. In the general course of human nature, a power over a man's subsistence amounts to a power over his will. And we can never hope to see realized in practice the complete separation of the judicial from the legislative power, in any system, which leaves the former dependent for pecuniary resource on the occasional grants of the latter. The enlightened friends to good government in every state have seen cause to lament the want of precise and explicit precautions in the state constitutions on this head. Some of these indeed have declared, that permanent salaries should be established for the judges; but the experiment has in some instances shown, that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been

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    constitutional independence of the others. Lastly, by that uncontrollable authority in all eases of litigation, criminal or civil, which from the very nature of things is exclusively vested in this department, and extends to every supposable case, which can affect the life, liberty, or property of the citizens of America, under the authority of the federal constitution, and laws, except in the case of an impeachment." 1 Tuck. Black. Comm. App. 353, 354.

CH. XXXVIII.] JUDICIARY--COMPENSATION. 491

evinced to be requisite. The plan of the convention accordingly has provided, that the judges of the United States "shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office."

1624. "This, all circumstances considered, is the most eligible provision, that could have been devised. It will readily be understood, that the fluctuations in the value of money, and in the state of society, rendered a fixed rate of compensation in the constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances; yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands; and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause, which has been quoted, combines both advantages. The salaries of judicial offices may from time to time be altered, as occasion shall require; yet so as never to lessen the allowance, with which any particular judge comes into office, in respect to him. It will be observed, that a difference has been made by the convention between the compensation of the president and of the judges. That of the former can neither be increased, nor diminished. That of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the president is to be electedfor no more than four years, it can rarely happen, that an adequate salary, fixed at the commencement of that period, will not

492 CONSTITUTION OF THE U. STATES. [BOOK III.

continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service.

1625. "This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed, that together With the permanent tenure of their offices, it affords a better prospect of their independence, than is discoverable in the constitutions of any of the states, in regard to their own judges. The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for maleconduct by the house of representatives, and tried by the senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character; and is the only one, which we find in our own constitution, in respect to our own judges."1

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    1 Mr. Chancellor Kent has written a few brief but pregnant sentences on this subject; and he has praised the constitution of the United States, as in this respect an improvement upon all previously existing constitutions, in this, or in any other country. 1 Kent's Comm. Lect. 14, p. 276. In big second edition, (Id. p. 294,) he has in some manure limited the generality of expression of the first, by stating, that by the English act of settlement, of 12 &, 13 Will. 3, it was declared, that the salaries of the judges should be ascertained and established; and by the statute 1 George 3, the salaries of the judges were absolutely secured to them, during the continuance of their commissions.* Still there remains a striking difference in favour of the American constitution, inasmuch as in England the compensation, as well as the tenure of office, is within

    * See l Black. Comm. 267, 268.

CH. XXXVIII.] JUDICIARY--COMPENSATION. 493

1626. Mr. Justice Wilson also has, with manifest satisfaction, referred to the provision, as giving a decided superiority to the national judges over those of England. "The laws," says he, "in England, respecting the independency of the judges, have been construed, as confined to those in the superior courts. In the United States, this independency extends to judges in courts inferior, as well as supreme. This independency reaches equally their salaries, and their commissions. In England, the judges of the superior courts do not now, as they did formerly, hold their commissions and their salaries at the pleasure of the crown; but they still hold them at the pleasure of the parliament: the judicial subsists, and may be blown to annihilation, by the breath of the legislative department. In the United States, the judges stand upon the sure basis of the constitution: the judicial department is independent of the department of legislature. No act of congress can shake their commissions, or reduce their salaries. '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 continuance in office.' It is not lawful for the president of the United States to remove them on the address of the two houses of congress. They may be removed, however, as they ought to be, on conviction of high crimes and misdemeanours. The judges of the United States stand on a much more independent footing, than that on which the judges of England stand, with

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    the reach of the repealing power of parliament; but in the national government it constitutes a part of the supreme fundamental law, unalterable, except by an amendment of the constitution.

494 CONSTITUTION OF THE U. STATES. [BOOK III.

with regard to jurisdiction, as well as with regard to commissions and salaries. In many cases, the jurisdiction of the judges of the United States is ascertained, and secured by the constitution. As to these, the power of the judicial is co-ordinate with that of the legislative department. As to the other cases, by the necessary result of the constitution, the authority of the former is paramount to the authority of the latter."

1627. It would be a matter of general congratulation, if this language had been completely borne out by the perusal, of our juridical annals. But, unfortunately, a measure was adopted in 1802 under the auspices of president Jefferson,1 which, if its constitutionality can be successfully vindicated, prostrates in the dust the independence of all inferior judges, both as to the tenure of their office, and their compensation for services, and leaves the constitution a miserable and vain delusion. In the year 1801, congress passed an act2 reorganizing the judiciary, and authorizing the appointment of sixteen new judges, with suitable salaries, to hold the circuit courts of the United States, in the different circuits created by the act, Under this act the circuit judges received their appointments, and performed the duties of their offices, until the year 1802, when the courts, established by the act, were abolished by a general repeal of it by congress, without in the slightest manner providing for the payment of the salaries of the judges, or for any continuation of their offices.3 The result of this act, therefore, is

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    1 See Mr. Jefferson's Message, Dec. 8, 1801; 4 Wait's State Papers, p. 332.
    2 Act of 1801, ch. 75.
    3 Act of 8th of March, 1809. ch. 8.

CH. XXXVIII.] JUDICIARY--COMPENSATION. 495

(so far as it is a precedent,) that, notwithstanding the constitutional tenure of office of the judges of the inferior courts is during good behaviour, congress may, at any time, by a mere act of legislation, deprive them of their offices at pleasure, and with it take away their whole title to their salaries.1 How this can be reconciled with the terms, or the intent of the constitution, is more, than any ingenuity of argument has ever, as yet, been able to demonstrate.2 The system fell, because it was unpopular with those, who were then in possession of power; and the victims have hitherto remained without any indemnity from the justice of the government.

1628. Upon this subject a learned commentator3 has spoken with a manliness and freedom, worthy of himself and of his country. To those, who are alive to the just interpretation of the constitution; those, who, on the one side, are anxious to guard it against usurpations of power, injurious to the states; and those, who, on the other side, are equally anxious to

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    1 See Sergeant on Const. ch. 30, [ch. 32.]
    2 The act gave rise to one of the most animated debates, to be found in the annals of congress; and was resisted by a power of argument and eloquence, which has never been surpassed. These debates were collected, and printed in a volume at Albany in 1802; and are worthy of the* most deliberate perusal of every constitutional lawyer. The act may be asserted, without fear of contradiction, to have been against the opinion of a great majority of all the ablest lawyers at the time; and probably now, when the passions of the day have subsided, law lawyers will be found to maintain the constitutionality of the act. No one can doubt the perfect authority of congress to remodel their courts or to confer, or withdraw their jurisdiction at their pleasure. But the question is, whether they can deprive them of the tenure of their office, and their salaries, after they have once become constitutionally vested in them. See 3 Tuck. Black. Comm. App. 22 to 25.
    3 Mr. Tucker, 1 Tuck. Black. Comm. App. 360; 3 Tuck. Black. Comm. App. 22 to 25.

496 CONSTITUTION OF THE U. STATES. [BOOK III.

prevent a prostration of any of its great departments to the authority of the others; the language can never be unseasonable, either for admonition or instruction, to warn us of the facility, with which public opinion may be persuaded to yield up some of the barriers of the constitution under temporary influences, and to teach us the duty of an unsleeping vigilance to protect that branch, which, though weak in its powers, is yet the guardian of the rights and liberties of the people. "It was supposed," says the learned author, "that there could not be a doubt, that those tribunals, in which justice is to be dispensed, according to the constitution and laws of the confederacy; in which life, liberty, and property are to be decided upon; in which questions might arise as to the constitutional powers of the executive, or the constitutional obligation of an act of the legislature; and in the decision of which the judges might find themselves constrained by duty, and by their oaths, to pronounce against the authority of either, should be stable and permanent; and not dependent upon the will of the executive or legislature, or both, for their existence. That without this degree of permanence, the tenure of office during good behaviour could not secure to that department the necessary firmness to meet unshaken every question, and to decide, as justice and the constitution should dictate, without regard to consequences. These considerations induced an opinion, which, it was presumed, was general, if not universal, that the power vested in congress to erect, from time to time, tribunals inferior to the supreme court, did not authorize them, at pleasure, to demolish them. Being built upon the rock of the constitution, their foundations were supposed to partake of its perma-

CH. XXXVIII.] JUDICIARY--COMPENSATION. 497

nency, and to be equally incapable of being shaken by the other branches of the government. But a different construction of the constitution has lately prevailed. It has been determined, that a power to ordain and establish from time to time, carries with it a discretionary power to discontinue, or demolish. That although the tenure of office be during good behaviour, this does not prevent the separation of the office from the officer, by putting down the office; but only secures to the officer his station, upon the terms of good behaviour, so long as the office itself remains. Painful indeed is the remark, that this interpretation seems calculated to subvert one of the fundamental pillars of free governments, and to have laid the foundation of one of the most dangerous political schisms, that has ever happened in the United States of America."1

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    1 Whether justices of the peace, appointed under the authority of the United States, are inferior courts, within the sense of the constitution, has been in former times a matter of some controversy, but has never been decided by the Supreme Court. They ere doubtless officers of the government of the United States; but their duties are partly judicial, and partly executive or ministerial.* In these respects they have been supposed to be like commissioners of excise, of bankruptcy, commissioners to take depositions, and commissioners under treaties. And it has been said, that the constitution, in speaking of courts and judges, means those, who exercise all the regular and permanent duties, which belong to a court in the ordinary popular signification of the terms.+

    At present the courts of the United States, organized under the constitution, consist of district courts, (one of which at least is established in every state in the Union,) of circuit courts, and of a Supreme Court, the latter being composed of seven judges. The judiciary act of 1789, ch. 20; and the judiciary act of 1802, ch. 31, are those, which make the general provisions for the establishments of these courts, and for their jurisdiction, original and appellate. Mr. Chancellor Kent has given a brief but accurate account of the examination of the courts of the United States. 1 Kent's Comm. Lect 14, p. 279 to 985. [2d edit p. 298 to 305.]

    * Wise v. Withers, 3 Cranch's R. 336; S. C. 1 Peters's Cond. R. 552.
    + Sergeant on Const. (2d edit.) ch. 32, p. 377, 378.

498 CONSTITUTION OF THE U. STATES. [BOOK III.

1629. It is almost unnecessary to add, that, although the constitution has, with so sedulous a care, endeavoured to guard the judicial department from the overwhelming influence or power of the other coordinate departments of the government, it has not conferred upon them any inviolability, or irresponsibility for an abuse of their authority. On the contrary for any corrupt violation or omission of the high trusts confided to the judges, they are liable to be impeached, (as we have already seen,) and upon conviction, removed from office. Thus, on the one hand, a pure and independent administration of public justice is amply provided for; and, on the other hand, an urgent responsibility secured for fidelity to the people.

1630. The judges of the inferior courts, spoken of in the constitution, do not include the judges of courts appointed in the territories of the United States under the authority, given to congress, to regulate the territories of the United States. The courts of the territories 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 sovereignty, which exists in the national government over its territories. The jurisdiction, with which they are invested, is not a part of the judicial power, which is defined in the third article of the constitution; but arises from the same general sovereignty. In legislating for them, congress exercises the combined powers of the general, and of a state government. Congress may, therefore, rightfully limit the tenure of office of the judges of the territorial courts, as well as their jurisdiction; and it

CH. XXXVIII.] JUDICIARY--JURISDICTION. 499

has been accordingly limited to a short period of years.1

1631. The second section of the third article contains an exposition of the jurisdiction appertaining to the, judicial power of the national government. The first clause is as follows: "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 lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects."2

1632. Such is the judicial power, which the constitution has deemed essential, in order to follow out one of its great objects stated in the preamble, "to establish justice." Mr. Chief Justice Jay, in his very

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    1 The American Insurance Company v. Canter, 1 Peters's Sup. R. 511, 546.
    2 It has been very correctly remarked by Mr. Justice Iredell, that "the judicial power of the United States is of a peculiar kind. It is, indeed, commensurate with the ordinary legislative and executive powers of the general government, and the powers, which concern treaties. But it also goes further. When certain parties are concerned, although the subject in controversy does not relate to any special objects of authority of the general government, wherein the separate sovereignties of the separate states are blended in one common mass of supremacy; yet the general government has a judicial authority in regard to such subjects of controversy; and the legislature of the United States may pass all laws necessary to give such judicial authority its proper effect." Chisholm v. Georgia, 2 Dall. 433, 431; S. C. 2 Peters's Cond. R. 641.