JUDICIAL CONTROL OVER STATE LEGISLATION. 355 to establish inferior tribunals;' while the provision for a supreme central tribunal was to be made imperative by the Constitution.

The intention of the committee also to make the judicial coextensive with the legislative authority appears from the definition which they gave to both. Upon the national legislature they proposed to confer, in addition to the rights vested in Congress by the Confederation, power to legislate in all cases to which the separate states were incompetent, or in which the harmony of the United States might be interrupted by the exercise of individual legislation; and the further power 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. The jurisdiction of the national judiciary, it was declared, should extend to all cases which respect the collection of the national revenue and to impeachments of national officers; and then the comprehensive addition was made of "questions which involve the national peace and harmony." This latter provision placed the general objects which, it was declared, ought to be embraced by the legislative power, within the cognizance of the judiciary. Those objects were not yet described in detail, the purpose being merely to settle and declare the principles on which the powers of both departments ought to be founded.

But, as we have already had occasion to see, the idea of vesting in the judicial department such control over the legislation of the separate states as might be surrendered by them to the national government was not yet propounded. The principle which was to ascertain the extent of that control was already introduced and acted upon, namely, that it should embrace all laws of the states which might conflict with the Constitution or the treaties made under the national authority. The plan at present was, as we have seen, to treat this as a legislative power, to be executed by the direct control of a negative. But a nearer view of the great inconveniences of such an arrangement, and the general basis of the jurisdiction already marked out for the national judiciary, led to the development of the particular feature which was required as a substitute for direct interference with the legislative powers of the states. In truth, the important principle which proposed

'Eight states in the affirmative, two in the negative, and one divided,

to extend the judicial authority to questions involving the national peace and harmony embraced all the power that was required; and it only remained to be seen that the exercise of that power by the indirect effect of judicial action on the laws of the states after they had been passed was far preferable to a direct interference with those laws while in the process of enactment.

The committee, with complete unanimity, determined that the judges of the supreme tribunal should hold their offices during good behavior.' This tenure of office was taken from the English statutes, and from the constitutions of some of the states which had already adopted it. The commissions of the judges in England, until the year 1700, were prescribed by the crown; and although they were sometimes issued to be held during good behavior, they were generally issued during the pleasure of the crown, and it was always optional with the crown to adopt the one or the other tenure, as it saw fit. But in the statute passed in the thirteenth year of the reign of William III., which finally secured the ascendency of the Protestant religion in that country, and made other provisions for the rights and liberties of the subject, it was enacted that judges' commissions should be made during good behavior, and that their salaries should be ascertained and established; but it was made lawful for the crown to remove them upon the address of both houses of Parliament. Still, however, it was always considered that the commissions of the judges expired on the death of the king; and for the purpose of preventing this, and in order to make the judges more effectually independent, a new statute, passed in the first year of the reign of George III., declared that the commissions of the judges should continue in force during their good behavior, notwithstanding the demise of the crown; and that such salaries as had been once granted to them should be paid in all future time, so long as their commissions should remain in force. The provision which made them removable by the crown on the address of both houses of Parliament was retained and re-enacted.3

In framing the Constitution of the United States, the objectionable feature of the English system was rejected, and its valuable

This was afterwards applied to the judges of the inferior courts also. 2 Act 12 and 13 William III., ch. 2. Act 1 Geo. III., ch. 23.

3

provisions were retained. No one, at the stage of the proceedings which we are now examining, proposed to make the judges removable on the address of the legislature; and although at a much later period this provision was brought forward, it received the vote of a single state only. The first determination of the Convention, in committee of the whole, was, that the judges should hold their offices during good behavior; that they should receive punctually, at stated times, a fixed compensation for their services, in which no increase' or diminution should be made so as to affect the persons actually in office at the time.

The appointment of the judges was by general consent, at this stage of the proceedings, vested in the Senate.

This was afterwards stricken out.

CHAPTER XX.

ADMISSION OF NEW STATES.-GUARANTEE OF REPUBLICAN GOVERNMENT.-POWER OF AMENDMENT.-OATH TO SUPPORT THE NEW SYSTEM. RATIFICATION.

HAVING Settled a general plan for the organization of the three great departments of government, the committee next proceeded to provide for certain other objects of primary importance, the necessity for which had been demonstrated by the past history of the Confederacy. The first of these was the admission of new states into the Union.

It had long been apparent that the time would sooner or later arrive when the limits of the United States must be extended, and the number of the states increased. Circumstances had made it impossible that the benefits and privileges of the Union should be confined to the original thirteen communities by whom it had been established. Population had begun to press westward from the Atlantic States with the energy and enterprise that have marked the Anglo-American character since the first occupation of the country. Wherever the hardy pioneers of civilization penetrated into the wilderness of the Northwest, they settled upon lands embraced by those shadowy boundaries which carried the territorial claims of some of the older states into the region beyond the Ohio. Circumstances, already detailed in a former part of this work, had compelled a surrender of these territorial claims to the United States; and in the efforts made by Congress, both before and after the cessions had been completed, to provide for the establishment of new states and for their admission into the Union, we have already traced one of the great defects of the Confederation, which rendered it incapable of meeting the exigencies created by this inevitable expansion of the country.'

1 Ante, Chap. XIV.

In the year 1784, when Mr. Jefferson brought into Congress a measure for the organization and admission of new states, to be formed upon the territories that had been or might thereafter be ceded to the United States, he seems to have considered that the Articles of Confederation authorized the admission of new states formed out of territory that had belonged to a state already in the Union, by a vote of nine states in Congress. But a majority of the states in Congress evidently regarded the power of admission as doubtful; and although they passed the resolves for the admission of new states-principally because it was extremely important to invite cessions of western territory--they left the provision as to the mode of admission so indefinite that the whole question of power would have to be opened and decided on the first application that might be made by a state to be admitted into the Union.'

1 Mr. Jefferson has very lucidly stated the position of the question in some observations furnished by him, when in Paris, to one of the editors of the Encyclopédie Méthodique, in 1786 or 1787, which I here insert entire. "The eleventh Article of Confederation admits Canada to accede to the Confederation at its own will, but adds, 'no other colony shall be admitted to the same unless such admission be agreed to by nine states.' When the plan of April, 1784, for establishing new states, was on the carpet, the committee who framed the report of that plan had inserted this clause: 'Provided nine states agree to such admission, according to the reservation of the eleventh of the Articles of Confederation.' It was objected-1. That the words of the Confederation, 'no other colony,' could refer only to the residuary possessions of Great Britain, as the two Floridas, Nova Scotia, etc., not being already parts of the Union; that the law for admitting' a new member into the Union could not be applied to a territory which was already in the Union, as making part of a state which was a member of it. 2. That it would be improper to allow 'nine' states to receive a new member, because the same reasons which rendered that number proper now would render a greater one proper when the number composing the Union should be increased. They therefore struck out this paragraph, and inserted a proviso, that the consent of so many states in Congress shall be first obtained as may at the time be competent;' thus leaving the question whether the eleventh article applies to the admission of new states to be decided when that admission shall be asked. See the Journal of Congress of April 20th, 1784. Another doubt was started in this debate, viz., whether the agreement of the nine states required by the Confederation was to be made by their legislatures, or by their delegates in Congress? The expression adopted, viz., ' so many states in Congress is first obtained,' shows what was their sense of this matter. If it be agreed that the eleventh Article of the Confederation is not to be applied to the admission