several states. Congress may effectually secure the continuance of the house of representatives by its own action, if the several states do not exercise the power confided to them in this respect; no such power is, unless by implication, conferred in relation to the senate. If every state in the Union should, at the same time, and for six consecutive years, decline to choose senators, an integral part of the federal government would become vacant. This omission was the subject of discussion before the constitution was adopted. It did not, however, create any alarm in the minds of those who advocated an adoption of the system, although it was regarded by Alexander Hamilton as an evil, but as an evil which could not have been avoided, without excluding the states, in their political capacities, from a place in the organization of the national government. The second department (adopting a classification resulting from the nature and the order of, and in which, the duties of the different departments are to be performed) is the judicial. The constitution provides, 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, order and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office. The judicial power shall extend to all cases, in law and in equity, arising under the 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 mar

*The Federalist. Lecture No. 59.

† Constitution of United States, art. iii, sec. 1.

itime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, 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.*

In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the supreme court has original jurisdiction. In all the other cases the supreme court has appellate jurisdiction, with such exceptions and under such regulations as the congress shall make. The judicial power of the United States is limited by the duties and rights of the federal sovereignty, of which it is an important part or element. The enumeration of its powers excludes its action upon any matter dependent for decision upon the municipal law of an individual or particular state; controversies between citizens of the same state, with a single exception, are not within its jurisdiction, unless they are dependent upon the constitution, upon some law or right of, or under the federal sovereignty. Controversies between citizens of the same state, except as already stated, are to be determined by the action of the judicial tribunals of the state in which they may arise or be litigated. With equal distinctness, rights arising under the constitution, under treaties, under the laws of the United States, the rights of ambassadors and of other public ministers, admiralty and maritime rights, suits in which the United States is a party, are to be exclusively adjudged by the federal jurisdiction, through the instrumentality of its judiciary.

The construction of this department exhibits several

*Constitution of United States, art. iii, sec. 2. Amendments of Constitution, art. xi.

prominent purposes sought to be accomplished. These are, that the foreign relations of the United States should be free from any control or supervision of any state sovereignty; that the treaties and laws of the federal sovereignty, individual right derived from, or under them, should be construed and enforced by itself. It exhibits the truth and power of the declaration so often made by the United States to all other nations," although many, we are one." It presents also a clear and undoubted acknowledgment of the independence and supremacy of the several states, and of their laws, as a general proposition, in all local matters. It regards the sovereignty of the several states as applicable, with one or two limitations, to all matters to which it had extended before the adoption of the federal constitution, except those growing out of our foreign relations and intercourse, and the relation of the several states to and with each other. The arrangement by means of which the judicial power thus conferred is carried into effect, consists of the supreme court of the United States, of circuit courts, of district courts, of commissioners, marshals, and such officers as the courts may appoint to aid them in the investigations, and in the exercise of their respective jurisdictions. The supreme court of the United States is now composed of nine judges; it holds an annual session at Washington, the seat of the national government. The circuit courts correspond in number with the number of the states; the circuits correspond in number with the number of judges of which the supreme court, for the time being, shall be composed, the limits of which, territorially, are defined by law, and each circuit now comprehends three or more states. The district courts exceed the number of states, as some of the states are divided into two judicial districts, to avoid an inconvenience which might otherwise result from extent of

territory. The circuit court in each state is holden by a judge of the supreme court of the United States, and by the district judge of the district within which the circuit court is so holden, and provision is made by law, that the circuit court may, under some circumstances, be held by a district judge. Formerly, any one of the judges of the supreme court might preside over any circuit court within the United States; now, the judges are allotted each to a prescribed circuit. Every district court is holden by a district judge, ordinarily by the judge appointed for the district over which he presides, although, in some instances, a district judge may be called from one district to another. From this statement it will be perceived that the courts of the United States are of three distinct classes or divisions; - the judges of the courts of the United States form only two classes or divisions; they are all appointed by the president of the United States, by and with the advice and consent of the senate; they may be selected from any part of the United States, although they are ordinarily selected from the circuit within which they are allotted to preside. I have thus stated substantially the outline of the judicial department of the United States. It is not my purpose to present, in relation to any of the departments, all the particulars of which they are composed, or to which they extend, but it is to present a general view, such as will enable you to reflect upon the system, to discover its purpose, its adaptation to its purpose, to judge of the accuracy of the suggestions in relation to it which may be made. In one particular the judicial department is distinguishable from every other department.

Its officers, the judges, in their appointment are more remotely and indirectly dependent upon the people; in their term of office they are less dependent upon the people than any other officers. This feature was made

a ground of objection to an adoption of the system, although it was in conformity with the plan of many of the state constitutions, almost all of which contained similar provisions as to the tenure of judicial office. In reply to this objection, it was said by a distinguished jurist that "the standard of good behavior 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 honors, 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." This course of reasoning, which was approved by the most eminent, learned, and patriotic

* The Federalist, Lecture No. 78.