was unanimously adopted.1 In respect to the establishment of inferior tribunals, some diversity of opinion was in the early stages of the proceedings exhibited.

"The second section enumerates the cases, to which the judicial power shall extend. It gives to the Supreme Court original jurisdiction in only two cases, but in all the others, vests it with appellate jurisdiction; and that with such exceptions, and under such regulations, as the congress shall make.

"It has long and very universally been deemed essential to the due administration of justice, that some national court, or council should be instituted, or authorized to examine the acts of the ordinary tribunals, and ultimately, to affirm or reverse their judgments and decrees; it being important, that these tribunals should be confined to the limits of their respective jurisdiction, and that they should uniformly interpret and apply the law in the same sense and manner.

"The appellate jurisdiction of the Supreme Court enables it to confine inferior courts to their proper limits, to correct their involuntary errors, and, in general, to provide, that justice be administered accurately, impartially, and uniformly. These controlling powers were unavoidably great and extensive; and of such a nature, as to render their being combined with other judicial powers, in the same persons, unadvisable.

666

"To the natural, as well as legal incompatibility of ultimate appellate jurisdiction, with original jurisdiction, we ascribe the exclusion of the Supreme Court from the latter, except in two cases. Had it not been for this exclusion, the unalterable, ever-binding decisions of this important court, would not have been secured against the influences of those predilections for individual opinions, and of those reluctances to relinquish sentiments publicly, though, perhaps, too hastily given, which insensibly and not unfrequently infuse into the minds of the most upright men, some degree of partiality for their official and public acts.

"Without such exclusion, no court, possessing the last resort of justice, would have acquired and preserved that public confidence, which is really necessary to render the wisest institutions useful. A celebrated writer justly observes, that "next to doing right, the great object in the administration of public justice should be to give public satisfaction."

"Had the constitution permitted the Supreme Court to sit in judgment, and finally to decide on the acts and errors, done and committed by its own members, as judges of inferior and subordinate courts, much room would have been left for men, on certain occasions, to suspect, that

1 Journal of Convention, 69, 98, 137, 186.

A proposition to establish them was at first adopted. This was struck out by the vote of five states against four, two being divided; and a proposition was then

an unwillingness to be thought and found in the wrong, had produced an improper adherence to it; or that mutual interest had generated mutual civilities and tendernesses injurious to right.

"If room had been left for such suspicions, there would have been reason to apprehend, that the public confidence would diminish almost in proportion to the number of cases, in which the Supreme Court might affirm the acts of any of its members.

666

Appeals are seldom made, but in doubtful cases, and in which there is, at least, much appearance of reason on both sides; in such cases, therefore, not only the losing party, but others, not immediately interested, would sometimes be led to doubt, whether the affirmance was entirely owing to the mere preponderance of right.

"These, we presume, were among the reasons, which induced the convention to confine the Supreme Court, and consequently its judges, to appellate jurisdiction. We say "consequently its judges," because the reasons for the one apply also to the other.

"We are aware of the distinction between a court and its judges; and are far from thinking it illegal or unconstitutional, however it may be inexpedient, to employ them for other purposes, provided the latter purposes be consistent and compatible with the former. But from this distinction it cannot, in our opinions, be inferred, that the judges of the Supreme Court may also be judges of inferior and subordinate courts, and be at the same time both the controllers and the controlled.

"The application of these remarks is obvious. The Circuit Courts established by the act are courts inferior and subordinate to the Supreme Court. They are vested with original jurisdiction in the cases, from which the Supreme Court is excluded; and to us it would appear very singular, if the constitution was capable of being so construed, as to exclude the court, but yet admit the judges of the court. We, for our parts, consider the constitution, as plainly opposed to the appointment of the same persons to both offices; nor have we any doubts of their legal incompatibility.

"Bacon, in his Abridgment, says, that" offices are said to be incompatible and inconsistent, so as to be executed by one person, when from the multiplicity of business in them, they cannot be executed with care and ability; or when their being subordinate, and interfering with each other, it induces a presumption they cannot be executed with impartiality and honesty; and this, my Lord Coke says, is of that importance, that if all offices, civil and ecclesiastical, &c. were only executed, each by different persons, it would be for the good of the commonwealth and

adopted, "that the national legislature be empowered to appoint inferior tribunals," by the vote of seven states against three, one being divided; and ultimately this proposition received the unanimous approbation of the convention.2

advancement of justice, and preferment of deserving men. If a forester, by patent for his life, is made justice in Eyre of the same forest, hac vice, the forestership is become void; for these offices are incompatible, because the forester is under the correction of the justice in Eyre, and he cannot judge himself. Upon a mandamus to restore one to the place of town-clerk, it was returned, that he was elected mayor and sworn, and, therefore, they chose another town-clerk; and the court were strong of opinion, that the offices were incompatible, because of the subordination. A coroner, made a sheriff, ceases to be a coroner; so a parson, made a bishop, and a judge of the Common Pleas, made a judge of the King's Bench," &c.

"Other authorities on this point might be added; but the reasons, on which they rest, seem to us to require little elucidation, or support. "There is in the act another deviation from the constitution, which we think it incumbent on us to mention.

"The second section of the second article of the constitution declares, that the president shall nominate, and by and with the advice and consent of the senate, "shall appoint judges of the Supreme Court, and all other officers of the United States, whose appointments are not therein otherwise provided for."

"The constitution not having otherwise provided for the appointment of the judges of the inferior courts, we conceive, that the appointment of some of them, viz. of the Circuit Courts, by an act of the legislature, is a departure from the constitution, and an exercise of powers, which constitutionally and exclusively belong to the president and

senate.

"We should proceed, sir, to take notice of certain defects in the act relative to expediency, which we think merit the consideration of the congress. But, as these are doubtless among the objects of the late reference, made by the house of representatives to the attorney-general, we think it most proper to forbear making any remarks on this subject at present.

"We have the honour to be most respectfully,

"Sir, your obedient and humble servants.

"The President of the United States." "

1 Journal of Convention, 69, 98, 99, 102, 137. 2 Id. 188, 212.

1575. To the establishment of one court of supreme and final jurisdiction, there do not seem to have been any strenuous objections generally insisted on in the state conventions, though many were urged against certain portions of the jurisdiction, proposed by the constitution to be vested in the courts of the United States. The principal question seems to have been of a different nature, whether it ought to be a distinct coordinate department, or a branch of the legislature. And here it was remarked by the Federalist, that the same contradiction of opinion was observable among the opponents of the constitution, as in many other cases. Many of those, who objected to the senate, as a court of impeachment, upon the ground of an improper intermixture of legislative and judicial functions, were, at least by implication, advocates for the propriety of vesting the ultimate decision of all causes in the whole, or in a part of the legislative body.2

§ 1576. The arguments, or rather suggestions, upon which this scheme was propounded, were to the following effect. The authority of the Supreme Court of the United States, as a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the constitution will enable that court to mould them into whatever shape, it may think proper; especially, as its decisions will not be in any manner subject to the revision and correction of the legislative body. This is as unprecedented, as it is dangerous. In Great Britain the judicial power in the last resort resides in the house of lords, which is a branch of the legislature. And this part of the British government has been imi

1 See 2 Elliot's Debates, 380 to 427.

2 The Federalist, No. 81.

tated in the state constitutions in general. The parliament of Great Britain, and the legislatures of the several states, can at any time rectify by law the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable, and remediless.1

§ 1577. The friends of the constitution, in answer to these suggestions, replied, that they were founded in false reasoning, or a misconception of fact. In the first place, there was nothing in the plan, which directly empowered the national courts to construe the laws according to the spirit of the constitution, or which gave them any greater latitude in this respect, than what was claimed and exercised by the state courts. The constitution, indeed, ought to be the standard of construction for the laws; and wherever there was an opposition, the laws ought to give place to the constitution. But this doctrine was not deducible from any circumstance peculiar to this part of the constitution, but from the general theory of a limited constitution; and, as far as it was true, it was equally applicable to the state governments.

§1578. So far as the objection went to the organization of the Supreme Court, as a distinct and independent department, it admitted of a different answer. It was founded upon the general maxim of requiring a separation of the different departments of government, as most conducive to the preservation of public liberty and private rights. It would not, indeed,

1 The Federalist, No. 81.-The learned reader will trace out, in subsequent periods of our history, the same objections revived in other imposing forms under the sanction of men, who have attained high ascendancy and distinction in the struggles of party.