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of a Supreme Court is positively required; the establish ment of inferior courts is left to the discretion of Congress Uuless a Supreme Court were established, there would be no adequate means to insure uniformity in the interpretation and operations of the Constitution and laws. Inferior tribunals, whether State, or National, might construe them in very different manners ; and, thus their full obligation might be admitted in one State, and denied in another State. The existence of a Supreme Court is, therefore, at all times indispensable for the purposes of public justice ; and it is accordingly made the imperative and absolute duty of Congress to establish such a Court. But the establishment of inferior courts may not, in all cases, and under all circumstances, be as indispensable. And, at all events, the nature and extent of the organization and jurisdiction of these inferior courts, may properly vary, at different times, to suit the public convenience and exigencies. The power, therefore, to establish these courts, as well as prescribe their organization and jurisdiction, is confided to the discretion of Congress.
$ 301. The next consideration is, the mode of appoint ment, and tenure of office, of the judges. We have already seen, that the judges of the Supreme Court are to be appointed by the President, by and with the advice and consent of the Senate. The appointment of inferior judges is not expressly provided for. But it has either been left to the discretion of Congress, or silently belongs to the President, by and with the advice and consent of the Senate, under the clause already considered, authorizing him to appoint all other officers, whose appointments are not otherwise, in the Constitution, provided for.
§ 302. The tenure of office of the judges, both of the Supreme and the inferior courts, is during good behavior This tenure of office seems indispensable to a due degree of in lependence and firmness on their part, in the discharge of the duties of their office; and to a due security to the people for their fidelity and impartiality, in administering private rights, and preserving the public liberties. Such was the opinion of the framers of the Constitution
who unanimously agreed to this tenure of office. Let us briefly consider some of the reasoning, by which it is supported.
§ 303. In the first place, factions and parties are quite as common in republics, as in monarchies ; and the same safeguards are as indispensable in the former, as in the latter, against the encroachments of party spirit, and the tyranny oi faction. Laws, however wholesome or neces sary, are sometimes the objects of temporary aversion, of popular odium, and even of popular resistance. Nothing is more easy in republics, than for demagogues, under artful pretences, to stir up combinations against the regular exercise of authority, in order to advance their own selfish projects. The independence and impartiality of upright magistrates often interpose barriers to the success of their schemes, which make them the secret enemies of any regular and independent administration of justice. If, under such circumstances, the tenure of office of the judges were for a short period, they could easily intimi date them in the discharge of their duties, or, by renderng them odious, easily displace them. And thus the minority in the state, whose sole reliance for protection, in all free governments, must be upon the Judiciary, would be deprived of their natural protectors.
§ 304. In the next place, the independence of the Judiciary is indispensable, to secure the people against the unintentional, as well as the intentional usurpations of authority, in the Executive and Legislative departments. It has been observed, with great sagacity, that power is perpetually stealing from the many to the few ; and that there is a perpetual tendency in the Legislative and Executive departments to absorb all power. If the judges are appointed at short intervals, either by the Legislative or by the Executive authority, they will naturally, and almost necessarily, become mere dependents upon the appointing power. If they have a desire to obtain, or to hold office, they will at al, times evince a desire to follow, and obey the will of the predominant power in the state. Public justice will be administered with a faltering and leeble hand. The Judiciary will under such circu'na stances seek little but the possession of office, and the approbation of those who value, because they can control it. It will be apt to decree, what best suits the opinions of the day ; and to forget, that the precepts of the law rest on eternal foundations, and are not to be changed at the arbitrary will of the judges. The rulers and the citizens will not stand upon an equal ground in litigations. The favorites of the day will overcome by their power, or seduce by :heir influence. And thus the fundamental maxim of a republic, that it ought to be a Government of laws, and not of men, will be silently disproved, or openly abandoned.
§ 305. In the next place, all these considerations ac quire still more cogency and force, when applied to constitutional questions. These questions may arise, not merely between citizen and citizen, but between State and State, and between the United States and the States. Can it be supposed, for a moment, that men, who hold their offices for two, or four, or even six years, would be generally found firm enough to resist the will of those, who have appointed them, and can so soon displace them ? If they are to administer the Constitution, according to its true spirit and principles, to support the weak against the strong, the humble against the powerful, the few against the many; how can they be expected to possess the requisite independence and impartiality, unless they hold their offices by a tenure beyond the reach of the power of the Legislature and Executive ? He is ill read in the history of human experience, who does not foresee, as well as provide for, such exigencies. In republics, the other departments of the government may sometimes, if not frequently, be found combined in hostility against the Judiciary; and even the people, for a while, under the influence of party spirit and turbulent factions, may be ready to abandon the judges to their fate. Few men possess the firmness to resist the torrent of popular opinion, or popular prejudice. Still fewer are content to sacrifice present ease and popular favor, in order to earn the slow rewards of a conscientious discharge of their duty. If we would preserve the Constitution from inter
nal, as well as from external perils, from the influences of the great, and the corruptions of the selfish and amicious, we must place around it every guard, which experience has shown will encourage good men in their integrity, and will awe bad men in their intrigues. If the Constitution ever perishes, it will be, when the Judiciary shall have become feeble and inert, and either unwilling or unable to perform the solemn duties imposed upon it by the original structure of the Government. Hitherto, no attempts have been made to alter the Constitution, in respect to the tenure of office. The views of the framers of it have, in all the vicissitudes of party, still been supported by the general approbation of the people. And, if any changes shall hereafter be proposed, which shall diminish the just authority of this, as an independent department, they will only be matters of regret, so far as they may take
away any checks to the exercise of arbitrary power by either of the other Departments of the Government.
$ 306. But the tenure of office during good behavior, would be of little consequence, if Congress possessed an unlimited power over the compensation of the judges. It has been well remarked, that, in the course of human affairs, a power over a man's subsistence is a power over his will. If Congress could diminish at pleasure the sal aries of the judges, they could reduce it to a mere pit tance, and thus might sink them into an abject dependence. The Constitution has, therefore, wisely provided, that the compensation of the judges shall not be diminished during their continuance in office, and shall be paid at stated times.
§ 307. It is almost unnecessary to add, that, although the Constitution has thus sedulously endeavored, from inotives of public good, to place the independence of the Judiciary upon a solid basis ; yet, the judges are not be yond the reach of the law. They hold their offices du ring good behavior only ; and for misconduct, they may be removed from office upon impeachment. Thus, personal responsibility is brought home to them; and, like all other public functionaries, they are also bound by an oath to obey the laws, and support the Constitution.
$ 308. The next, the second section of the third arti. cle, contains an exposition of the jurisdiction appertaining to the National Judiciary. “The judicial power shall extend to all cases in law and equity, arising under this 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 maritime jurisdiction; 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.”
§ 309. In a work like the present, it is impossible to present a full exposition of the reasons for conferring the different portions of this jurisdiction, all having the same general object, the promotion of harmony, good order, and justice at home, and the preservation of peace and commercial intercourse abroad. In a general summary, it may be said, that the jurisdiction extends to cases arising under the Constitution, laws, and treaties, of the United States, because the judicial power ought to be coextensive with the legislative and executive powers, in order to ensure uniformity of interpretation and operation of the Constitution, laws, and treaties, and the means of enforcing rights, duties, and remedies, arising under them. It extends to cases affecting ambassadors, public ministers, and consuls, because they are officers of foreign nations, entitled by the law of nations to the protection of our Gov ernment ; and
any misconduct towards them might lead 10 private retaliations, or open hostilities, on the part of