effect only on the appointment of new judges. The judge's salary, however, may be raised after his appointment. The President's salary can neither be increased nor diminished during his term of office; but there is no reason for the first restriction in the case of the judges, since they have nothing to do with making laws and fixing salaries, as the President has. When the Circuit Judges were legislated out of office in 1802, the constitutionality of the act was denied; and it is held now by many authorities that it was at least unconstitutional to refuse them their salaries.

At first, the Chief Justice received a salary of $4,000, the Associate Justices of $3,500, and the District Judges of $1,000 to $1,800. Since 1872 the salaries have been: the Chief Justice, $10,500; the Associates, $10,000; the Circuit Judges, $6,000; the District Judges, $3,500 to $5,000. An act approved April 10, 1869, provides that any judge who has held his commission ten years, and attained the age of seventy years, may resign his office and continue to draw his salary during life.

CHAPTER XIX.

THE EXTENT OF THE JUDICIAL POWER.

ARTICLE III.

Section 2, Clause 1.-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.

508. CASES.-A case, within the meaning of the Constitution, is a subject on which the judicial power is capable of acting, and which has been submitted to it in the manner required by law. The judicial power extends to such cases, and to nothing else. The powers of the National courts are very great, but until a case comes before them they have no power whatever.

Some of the States have had Councils of Revision, consisting of the superior judges and other officers, charged with reviewing the enactments of the legislature as soon as passed, and setting aside such as were deemed unconstitutional. Such a proposition was made in 1787, but the Federal Convention wisely limited the judges to hearing and determining cases.

509.

LAW AND EQUITY.-The judicial power extends to all cases in law and equity arising, etc. This language refers

to the two different modes of proceeding in the courts of common law and the courts of equity, recognized in the English system of jurisprudence.

In vindicating the equity jurisdiction of the National courts, Mr. Hamilton says in "The Federalist: " "It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains. These are contracts, in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the Federal judicatories to do justice without an equitable, as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the Federal courts."1

510. THE CONSTITUTION, THE LAWS, AND THE TREATIES. -The judicial power extends to all cases in law and equity arising under the Constitution, laws, and the treaties of the United States. This makes it the duty of the judges to interpret and to construe these three great divisions of the law. The need of a judiciary having this wide jurisdiction hardly needs to be argued.

Hamilton wrote in "The Federalist," that "thirteen independent courts of final jurisdiction over the same causes [still more forty-four] arising upon the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed."

"The judges declare the law, they do not make it," says Chief Justice Marshall; "the judicial power has no will in any case. Judicial power as contra-distinguished from the power of the law has no existence; courts are the mere instruments of the law, and can will nothing."

511.

CLASSES OF CASES.-The Constitution now proceeds to classify the cases to which the judicial power extends, as fol

1 No. 80.

lows: (1) Cases affecting ambassadors, other public ministers, and consuls; (2) Cases of admiralty and maritime jurisprudence; (3) Controversies to which the United States shall be a party; (4) Controversies between two or more States; (5) Controversies between a State and citizens of another State; (6) Controversies between citizens of different States; (7) Controversies between citizens of the same State claiming lands under grants of different States; (8) Controversies between a State, or the citizens thereof, and foreign states, citizens, or subjects.

The propriety of extending the National judicial power to these classes of cases is easily apparent in nearly every instance.

Ministers are the accredited agents of foreign governments to our own; and the extension of the State judicial power to cases affecting them would at once lead to troublesome complications. Foreign powers hold the United States responsible for the treatment of their representatives, not the States. It is as clear that the Federal courts should have exclusive jurisdiction in admiralty, or maritime jurisprudence, as that Congress should have exclusive power to legislate concerning commerce. The United States could not, with either safety or dignity, become a party to a suit in any but its own tribunals; while the same tribunals, free from local jealousy and contention, and conducted in a National spirit, are the fittest ones in the world to adjudicate controversies between 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, citizens, or subjects.

The language "to all cases affecting ambassadors," etc., has been the subject of judicial construction. The Supreme Court has decided, for example, that an indictment for an assault upon a public minister is not such a case within the meaning of the Constitution. 1

512. CHISHOLM v. GEORGIA.-The fifth of the above provisions extended the judicial power to controversies between a State and citizens of another State; while the eighth extended it to controversies between States and foreign citizens or sub1 The U. S. v. Ortega, 11 Wheaton, 467.

jects. It seems to have been assumed while the Constitution was in course of ratification, that these provisions related only to suits brought by the States, and did not authorize suits by such parties against them; or, at the utmost, that the States should not be made defendants in suits against their will. Ere long, however, such citizens and subjects began to bring actions against States. Immediately the States, or rather some of them, took the alarm. It was not consonant with the ideas then current that States should be brought before a legal tribunal by a private individual, whether an American or a foreigner. The sole question was whether such suits were authorized by the Constitution. This question was brought to an issue in the celebrated case of Chisholm v. Georgia, decided by the Supreme Court in 1793.' Delivering the judgment of the Court, Chief Justice Jay answered the question emphatically in the affirmative.

513.

AMENDMENT XI.-This decision, the correctness of which is now universally admitted, at once increased the alarm of the States. The result was that Congress proposed, and a sufficient number of States ratified, the following amendment, which took effect in 1798:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign state.

This amendment made such actions as that of Chisholm v. Georgia impossible. A State may still be sued by another State or by a foreign state, but not by its citizens or subjects. For other reasons than that it led to this amendment, this case is a celebrated one. The decision went to the heart of the question of State sovereignty; it was the first of a series of decisions that fully asserted the supremacy of the National Constitution over the States.

1 2 Dallas, 419.