CHAP. may be removed on the request of a majority in each X. house of parliament; every judge of the United 1787. States, from the highest to the lowest, is an officer for life; unless on impeachment convicted with the concurrence of two thirds of the senate.

Aug.

27.

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 1 Gilpin, 1438, 1439; Elliot, 488.

X.

one word, they can overrule that word or that clause, CHAP. and no more. The whole law can never be set aside unless every part of it is tainted with unconstitution. 1787. ality.'

Rutledge next added that the jurisdiction of the court 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 1 Curtis in Howard, xix. 628. 'Gilpin, 1439; Elliot, 483.

Aug. 27.

Aug.

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CHAP. authorizing a state as plaintiff to seek justice in X. a federal court; it was as little intended to permit 1787. individuals to bring a state there as a 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 dif ferent 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 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 unmanageable masses of business.

'Story in Curtis, iii. 569; Ellsworth in Curtis, i. 243.

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The method of choosing the federal judiciary was CHAP. settled without strife. The motion for its appointment by the executive, with the advice and consent 1787. of the senate, when first proposed, gained an equal vote; and on the seventh of September was agreed Sept. to without a division.'

2

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 2 Federalist, lxxviii.

1

Gilpin, 1520; Elliot, 524.

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Sept.

CHAP. judgments. In the first place, the force of a judicial X. opinion of the supreme court, in so far as it is irre1787. versible, reaches only the particular case in dispute; 7. 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 1 Wilson's Works, i. 29.