parties and tinge their opinions before their action in court. "The judiciary," said John Francis Mercer of Maryland, "ought to be separate from the legislative and independent of it. I disapprove the doctrine that the judges should, as expositors of the constitution, have authority to declare a law void. Laws ought to be well and cautiously made, and then to be uncontrollable." To the regret of Gouverneur Morris, the motion of Madison was supported only by Maryland, Delaware, and Virginia. Dickinson was strongly impressed with the objection to the power of the judges to set aside the law. He thought no such power ought to exist, but was at a loss for a substitute. "The justiciary of Aragon," he observed, "became by degrees the law-giver." + On the morning of the twentieth Charles Pinckney submitted numerous propositions; among them was one that "Each branch of the legislature, as well as the supreme executive, shall have authority to require the opinions of the supreme judicial court upon important questions of law, and upon solemn occasions." This article, as well as the rest, was referred to the committee of detail, without debate or consideration by the house, and was never again heard of. On the twenty-seventh the article on the judiciary reported by the committee of detail was taken up; and it was agreed that “the judicial power of the United States shall be vested in one supreme court, and such inferior courts as shall, when necessary, from time to time, be constituted by the legislature of the United States." # "The judges of the supreme court, and of the inferior courts, shall hold their offices during good behavior. They shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." Judges of inferior courts were clothed with the same independence of the two other branches of the government as the judges of the supreme court. Dickinson thought that the tenure of office was made too absolute; and, following the example of Great Britain and Massachusetts, he desired that the judges should be removable * Gilpin, 1333; Elliot, 429. Gilpin, 1334; Elliot, 429. Gilpin, 1365; Elliot, 445; i., 249. #Gilpin, 1435; Elliot, 481. by the executive on application of the senate and the house of representatives.* "If the supreme court," said Rutledge, “is to judge between the United States and particular states, this alone is an insuperable objection to the motion." The clause gained no vote but that of Connecticut, Massachusetts being absent. In England the highest judicial officer is liable to change with every change of administration, and every one may be removed on the request of a majority in each house of parliament; every judge of the United States, from the highest to the lowest, is an officer for life, unless on impeachment he should be convicted by the vote of two thirds of the senate. The judicial power was by a motion of Johnson extended to cases in law and equity. He further proposed to extend it "to all cases arising under the constitution;" and the motion was agreed to without dissent, because in the opinion of the convention the jurisdiction given was constructively limited to cases of a judiciary nature.† In this way Madison's scheme of restraining unconstitutional legislation of the states by reserving to the legislature of the union a veto on every act of state legislation was finally abandoned; and the power of revising and reversing a clause of a state law that conflicted with the federal constitution was confided exclusively to the federal judiciary, but only when a case should be properly brought before the court. The decision of the court in all cases within its jurisdiction is final between the parties to a suit, and must be carried into effect by the proper officers; but, as an interpretation of the constitution, it does not bind the president or the legislature of the United States. Under the same qualification the constitution gives to the judges the power to compare any act of congress with the constitution. But the supreme bench can set aside in an act of congress or of a state only that which is at variance with the constitution; if it be merely one clause, or even but one word, they can overrule that word or that clause, and no The whole law can never be set aside unless every part of it is tainted with unconstitutionality. + more. Rutledge next observed that the jurisdiction of the court * Gilpin, 1436; Elliot, 481. + Gilpin, 1438, 1439; Elliot, 483. Curtis in Howard, xix., 628. should extend to treaties made, or to be made, under the authority of the United States; and this proposal was readily adopted.* The proposition that the courts should conduct the trial of impeachments was put aside, and that duty was afterward assigned to the senate. Two clauses in the report of the committee of detail, which, after a precedent in the confederacy, confided to the senate the settlement of all controversies between two or more states respecting jurisdiction or territory, and all controversies concerning grants of the same lands by two or more states, were in the course of the discussion removed from the senate and made over to the federal courts. In constructing the judiciary, extreme care was taken to keep out of the United States courts all questions which related to matters that began and ended within a separate commonwealth. This intention is stamped alike on the federal proposals of Virginia, of New Jersey, and of Connecticut; it was carefully respected in those clauses which limit the action of the individual states. The original jurisdiction of the supreme court embraces only cases affecting ambassadors, other public ministers and consuls. Cases in which a state should be a party were added for the single purpose of authorizing a state as plaintiff to seek justice in a federal court; it was as little intended to permit individuals to bring a state there as defendant as to arraign an ambassador. The appellate power included cases of admiralty and maritime jurisdiction. In these three classes the jurisdiction of the court, original in two of them, appellate in the third, is in imperative language extended "to all cases." But as "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," the judicial power is limited. The section implies that only a part of the controversies in each of the enumerated classes may come under the jurisdiction of the federal courts; and it was left to * Gilpin, 1439; Elliot, 483. the federal legislature to make the discrimination which in its judgment public policy might dictate.* Here congress, and congress alone, selects the controversies to which the appellate judicial power may extend, and at its own judgment limits the right of appeal. The convention purposely made it the duty of congress to watch over the development of the system, and restrict accordingly the appellate jurisdiction. By reserving to the tribunals of the states jurisdiction over cases that may properly belong to them, it may rescue the federal court from the danger of losing its efficiency beneath larger masses of business than it can dispose of. The method of choosing the federal judiciary was settled without strife. The motion for its appointment by the executive, with the advice and consent of the senate, when first proposed, gained an equal vote; and on the seventh of September was agreed to without a division.t The supreme court was to be the "bulwark of a limited constitution against legislative encroachments." A bench of a few, selected with care by the president and senate from the nation, seemed a safer tribunal than a multitudinous assembly elected for a short period under the sway of passing currents of thought, or the intrepid fixedness of an uncompromising party. There always remains danger of erroneous judgments, arising from mistakes, imperfect investigation, the bias of previous connections, the seductions of ambition, or the instigations of surrounding opinions; and a court from which there is no appeal is apt to forget circumspection in its sense of security. The passage of a judge from the bar to the bench does not necessarily divest him of prejudices; nor chill his relations to the particular political party to which he may owe his advancement; nor blot out of his memory the great interests which he may have professionally piloted through doubtful straits; nor quiet the ambition which he is not required to renounce, even though his appointment is for life; nor cure predilections which sometimes have their seat in his own inmost nature. But the constitution retains the means of protecting itself against the errors of partial or interested judgments. In the * Story in Curtis, iii., 569; Ellsworth in Curtis, i., 243. Gilpin, 1620; Elliot, 524. Federalist, lxxviii. first place, the force of a judicial opinion of the supreme court, in so far as it is irreversible, reaches only the particular case in dispute; and to this society submits, in order to escape from anarchy in the daily routine of business. To the decision on an underlying question of constitutional law no such finality attaches. To endure, it must be right. If it is right, it will approve itself to the universal sense of the impartial. A judge who can justly lay claim to integrity will never lay claim to infallibility; but with indefatigable research will add, retract, and correct whenever more mature consideration shows the need of it.* The court is itself inferior and subordinate to the constitution; it has only a delegated authority, and every opinion contrary to the tenor of its commission is void, except as settling the case on trial. The prior act of the superior must be preferred to the subsequent act of an inferior; otherwise it might transform the limited into an unlimited constitution. When laws clash, the latest law is rightly held to express the corrected will of the legislature; but the constitution is the fundamental code, the law of laws; and where there is a conflict between the constitution and a decision of the court, the original permanent act of the superior outweighs the later act of the inferior, and retains its own supreme energy unaltered and unalterable except in the manner prescribed by the constitution itself. To say that a court, having discovered an error, should yet cling to it because it has once been delivered as its opinion, is to invest caprice with inviolability and make a wrong judgment of a servant outweigh the constitution to which he has sworn obedience. An act of the legislature at variance with the constitution is pronounced void; an opinion of the supreme court at variance with the constitution is equally so. Next to the court itself, the men who framed the constitution relied upon the power and the readiness of congress to punish through impeachment the substitution of the personal will of the judge for the law. A third influence may rise up "as the rightful interpreter of this great charter" of American rights and American power in "the good sense"† of the land, wiser than the judges alone, *Wilson's Works, i., 29. + Cooley's Constitutional Law, 224; Curtis, iv., 390. |