Original and Impeachment under the Confederation. A step in advance of this was taken by the Convention upon Mr. Madison's suggestion "agreed to nem. con.," that after the words "controversies between the States," the clause should be inserted "to which the U- S- shall be a party." The Supreme Court was the appropriate court in which the United States should appear as a litigant, and it was natural that the right of the Government to avail itself of this tribunal should be expressly stated; although it might have been plausibly contended that the United States, as such, would be included within the clause extending the judicial power "to controversies between two or more States." The Convention either did not consider the United States as a State within the meaning of this clause, or deemed it preferable to separate the united from the individual States. Had it not done so, and if the United States were not included within the clause, it would have followed that the United States could be sued in the Supreme Court as well as appear as a plaintiff in a controversy with a State to which it was a party, whereas the United States would or would not be a party defendant under Mr. Madison's motion as the Supreme Court should interpret the clause when a case involving it was presented for its consideration. In any event, it is important to note the difference of language used with respect to the United States and to the States as such in these two clauses, as the Supreme Court has held that, by virtue of this wording, a State may be made defendant at the instance of a State because of the consent by them given in the Constitution, whereas the United States, by the clause in question, is authorized to make use of the Supreme Court in a controversy to which it is a party, but not to be made a defendant without its special consent, as the terms of the clause imply authorization, not consent. The second clause of the second section of the third article of the Constitution as finally adopted is designed to give effect to the grant of judicial power and to assign some of the subjects, by reason of their importance, to the original jurisdiction of the Supreme Court, and, in all other matters included in the article, to give the Supreme Court appellate jurisdiction. "with such Exceptions, and under such Regulations as the Congress shall make" in order that there may be one law for the United States, one for the States, and one for the citizens thereof, in as far as what may be called federal questions are concerned. The impeachment of officers of the United States fell within the original jurisdiction of the Supreme Court in the draft of the Committee of Detail as reported on August 6th. This question was, however, ultimately removed from the judicial to the legislative branch of the Government of the Union. The requirement that the Chief Justice of the Supreme Court should preside in the Senate during the trial of persons impeached by the House of Representatives shows that, although removed from the court, the procedure was nevertheless to be judicial, making of the Senate, when so sitting, a high court of impeachment. With this further exception, the grant of original jurisdiction in the Constitution stands as reported by the Committee of Detail, with slight changes of language later made by the Committee on Style. The balance of the clause, however, was changed in substance as well as in form by the Convention. Doubt having arisen in the mind of Gouverneur Morris as to whether the appellate jurisdiction of the Supreme Court already extended to matters of fact as well as law and to cases of common as well as civil law, Mr. Wilson, speaking for the Committee, of which he was a member, said: The Committee he believed meant facts as well as law & Common as well as Civil law. The jurisdiction of the federal Court of Appeals had he said been so construed.1 In order to clear up all doubt on this point, Mr. Dickinson moved, and his motion was unanimously agreed to, "to add after the word 'appellate' the words both as to law & fact,'" and on the following day, the 28th, to improve the English, the phrase "supreme Court" was substituted for the expression "it" before "appellate jurisdiction." As thus amended, the appellate jurisdiction of what we should today call the federal courts was agreed upon in the session of the 27th of August, with the exception of certain formal changes proposed by the Committee on Style. How were the judges to be appointed for the Supreme Court and the inferior courts which Congress might be minded to establish? In the first section of Article IX of the draft as reported by the Committee of Detail, it was provided that "the Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the supreme Court." But in the discussions on the appointment of the judges, which have already been set forth, the method suggested by Mr. Gorham, although then defeated, was eventually adopted and applied to appointments generally, by virtue whereof they are made by the executive, by and with the consent of the second branch, that is to say, the Senate. On the 23d of August the clause relating to the appointment of Ambassadors and judges came before the Convention, but no agreement was Powers of the Court reached, other than to refer the matter again to the Committee of Detail. This body did not, however, present a report; therefore the question went over to the Committee on Unfinished Portions, which considered the whole subject of appointments as properly before it and reported the following method, approved by the Convention on the 4th of September with the addition of "Consuls" after the word "Ministers": The President by and with the advice and Consent of the Senate, shall have power to make Treaties; and he shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and other public Ministers, Judges of the Supreme Court, and all other Officers of the U- S-, whose appointments are not otherwise herein provided for. But no treaty shall be made without the consent of two thirds of the members present.1 The framers of the Constitution were much worried as to the method of appointing judges and as to the tenure of the judges when appointed. They were creating the judiciary equal in rank and dignity to the legislative and executive, and as we think of even greater importance, for great as are the powers of the other departments they are nevertheless defined and interpreted by the judiciary, and in cases of excess of the Constitutional grant they are declared by the men of the law to be null and void. To do this, they should be independent of the legislative and executive, "to the end," to cite again the Constitution of Massachusetts, "it may be a government of laws, and not of men." Fortunately for the administration of justice and the prevalence of law in these United States, their efforts were crowned with complete success. But the judiciary would not have stood out as the most prominent feature of the American system, and the judges could not have rendered the great services which they have to the American people, were it not for the second clause of the sixth article of the Constitution, which defined the sense in which the judicial power, extended by the third article to all cases in law and equity arising under the Constitution, the laws and treaties of the United States, was to be understood. It is therefore necessary to state the action upon Article VIII of the draft of the Constitution reported by the Committee of Detail, inasmuch as it declared the Constitution, the acts of Congress made in pursuance of the Constitution, and the treaties negotiated. under the authority of the United States, the supreme law of the land, binding as of course the governments, Federal and State, and all officers, State and Federal, political or judicial. It was clearly the intention of the large States, as indicated in the Vir ginian plan, and of the smaller States, as set forth in the New Jersey plan, to make the laws of the new Union within the grant of power superior to the laws of the States as such. As amended by the Committee, the sixth article of the Virginian plan included treaties as well. Thus: The Nat. Legislature ought to be empowered to negative all laws passed by the several States contravening in the opinion of the National Legislature, the articles of Union, or any treaties subsisting under the authority of the Union.1 This was even more explicitly stated in the sixth article of the New Jersey plan, reading as follows: Resd. that all Acts of the U. States in Congs. made by virtue & in pursuance of the powers hereby & by the articles of confederation vested in them, and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts. or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwithstanding; and if any State, or any body of men in any State shall oppose or prevent ye. carrying into execution such acts or treaties, the federal Executive shall be authorized to call forth ye power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an Observance of such Treaties.2 The Convention, however, did not approve this article. On July 17th the following proposal was before the Convention: To negative all laws passed by the several States contravening in the opinion of the Nat: Legislature, the articles of Union, or any treaties subsisting under the authority of ye Union.3 After much debate and discussion, this proposition was adopted by a vote of seven to three of the States. Immediately thereupon, and without a break in the proceedings, Luther Martin of Maryland moved the following resolution, which was unanimously agreed to although it closely followed the New Jersey plan which had been rejected in all its parts: 1 That the Legislative acts of the U. S. made by virtue & in pursuance of the articles of Union, and all treaties made & ratified under the authority of the U. S. shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants & that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding.* 1 Ibid., p. 121. Session of June 13th. Ibid., pp. 127-8. Session of June 15th. Ibid., p. 351. 4 Ibid., p. 353. The Supreme Law of the The resolution proposed by Mr. Martin and adopted by the Convention was referred to the Committee of Detail, which reported its Article VIII of the proposed Constitution. On August 23 the Convention took up this article as reported by the Committee of Detail, and, upon Mr. Rutledge's motion, it was amended and unanimously adopted in the following form: This Constitution & the laws of the U. S. made in pursuance thereof, and all Treaties made under the authority of the U. S. shall be the supreme law of the several States and of their citizens and inhabitants; and the Judges in the several States shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States, to the contrary notwithstanding.1 Mr. Martin's resolution made acts of Congress within the grant of the Constitution and the treaties negotiated by the United States not merely the laws of the United States but of each State of the Union, in so far as the acts or treaties relate to the States. Mr. Rutledge's amendment added the "Constitution" and struck out the qualifying clause regarding the States, with the result that the Constitution, the laws of the United States made in pursuance of the Constitution, and the treaties of the United States likewise made in pursuance of the Constitution became the supreme law of each of the States to the same extent as if the Constitution had been drafted by Conventions held within the States instead of ratified by Conventions specially called for such purpose within the States. But the article as amended, while it no doubt pleased Mr. Madison, in that the Constitution, laws and treaties of the United States became the laws of the States as if each had been made in each instance by each of the States, did not please him in the matter of treaties, as he was set upon making the clause so clear, its language so precise and its meaning so unmistakable, as to give to the treaty paramount effect, in order to enable British creditors to recover their debts in accordance with the treaty of 1783 with Great Britain recognizing the independence of the United States. In a letter written to Mr. Randolph, dated April 4, 1787, a month and more before the meeting of the Convention, he had said: But does the establishment of the treaty as a law provide certainly for the recovery of debts? Ought it not [to] be paramount to law; or at least to be one of those laws which are, in my opinion, beyond repeal, from being combined with a compact?2 1 Documentary History, Vol. iii, p. 600. M. D. Conway, Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph, 1888, p. 72. |