ticular object is to be effected, the language of the constitution is always imperative, and cannot be disregarded, without violating the first principles of public duty. On the other hand, the legislative powers are given in language, which implies discretion, as from the nature of legislative power such a discretion must ever be exercised." We shall presently see the important bearing, which this reasoning has upon the interpretation of that section of the constitution, which concerns the jurisdiction of the national tribunals.

1591. The constitution has wisely established, that there shall be one Supreme Court, with a view to uniformity of decision in all cases whatsoever, belonging to the judicial department, whether they arise at the common law or in equity, or within the admiralty and prize jurisdiction; whether they respect the doctrines of mere municipal law, or constitutional law, or the law of nations. It is obvious, that, if there were independent supreme courts of common law, of equity, and of admiralty, a diversity of judgment might, and almost necessarily would spring up, not only, as to the limits of the jurisdiction of each tribunal; but as to the fundamental doctrines of municipal, constitutional, and public law. The effect of this diversity would be, that a different rule would, or might be promulgated on the most interesting subjects by the several tribunals; and thus the citizens be involved in endless doubts, not only as to their private rights, but as to their public duties. The constitution itself would or might speak a different language according to the tribunal, which was called upon to interpret it; and thus interminable disputes embarrass the administration of justice throughout the whole country.' But the same reason did not

1 Dr. Paley's remarks, though general in their character, show a striking coincidence of opinion between the wisdom of the new, and the

apply to the inferior tribunals. These were, therefore, left entirely to the discretion of congress, as to their number, their jurisdiction, and their powers. Experience might, and probably would, show good grounds for varying and modifying them from time to time. It would not only have been unwise, but exceedingly inconvenient, to have fixed the arrangement of these courts in the constitution itself; since congress would have been disabled thereby from adapting them from time to time to the exigencies of the country. But, whatever may be the extent, to which the power of congress reaches, as to the establishment of inferior tribunals, it is clear from what has been already stated, that all the jurisdiction contemplated by the constitu

wisdom of the old world. Speaking on the subject of the necessity of one supreme appellate tribunal he says: "But, lastly, if several courts, co-ordinate to and independent of each other, subsist together in the country, it seems necessary, that the appeals from all of them should meet and terminate in the same judicature; in order, that one supreme tribunal, by whose final sentence all others are bound and concluded, may superintend and preside over the rest. This constitution is necessary for two purposes; to preserve a uniformity in the decisions of inferior courts, and to maintain to each the proper limits of its jurisdiction. Without a common superior, different courts might establish contradictory rules of adjudication, and the contradiction be final and without remedy; the same question might receive opposite determinations, according as it was brought before one court or another, and the determination in each be ultimate and irreversible. A common appellant jurisdiction prevents or puts an end to this confusion. For when the judgments upon appeals are consistent, (which may be expected, while it is the same court, which is at last resorted to,) the different courts, from which the appeals are brought will be reduced to a like consistency with one another. Moreover, if questions arise between courts independent of each other, concerning the extent and boundaries of their respective jurisdiction, as each will be desirous of enlarging its own, an authority, which both acknowledge, can alone adjust the controversy. Such a power, therefore, must reside somewhere, lest the rights and repose of the country be distracted by the endless opposition and mutual encroachments of its courts of justice."

2 See 2 Elliot's Debates, 380.

tion must be vested in some of its courts, either in an original, or an appellate form.

§ 1592. We next come to the consideration of those securities, which the constitution has provided for the due independence and efficiency of the judicial department.

§ 1593. The mode of appointment of the judges has necessarily come under review, in the examination of the structure and powers of the executive department. The president is expressly authorized, by and with the consent of the senate, to appoint the judges of the Supreme Court. The appointment of the judges of the inferior courts, is not expressly provided for; but has either been left to the discretion of congress, or silently belongs to the president, under the clause of the constitution authorizing him to appoint "all other officers of the United States, whose appointments are not herein otherwise provided for."1 In the convention, a proposition at first prevailed, for the appointment of the judges of the Supreme Court by the senate, by a decided majority. At a later period, however, upon the report of a committee, the appointment of the judges of the Supreme Court, was given to the president, subject to the advice and consent of the senate, by a unanimous vote.3 The reasons for the change, were doubtless the same as those, which

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Whether the Judges of the inferior courts of the United States are such inferior officers, as the constitution contemplates to be within the power of congress, to prescribe the mode of appointment of, so as to vest it in the president alone, or in the courts of law, or in the heads of departments, is a point, upon which no solemn judgment has ever been had. The practical construction has uniformly been, that they are not such inferior officers. And no act of congress prescribes the mode of their appointment. See the American Jurist for October, 1830, vol. 4, art. V. p. 298.

2 Journal of Convention, 69, 98, 121, 137, 186, 187, 195, 196, 211,

3 Id. 325, 326, 340.

led to the vesting of other high appointments in the executive department.1

§ 1594. The next consideration is the tenure, by which the judges hold their offices. It is declared that "the judges, both of the Supreme and In

1 The Federalist, No. 78. — Mr. Chancellor Kent has summed up the reasoning, in favour of an appointment of the judges by the executive, with his usual strength. "The advantages of the mode of appointment of public officers by the president and senate have been already considered. This mode is peculiarly fit and proper, in respect to the judiciary department. The just and vigorous investigation and punishment of every species of fraud and violence, and the exercise of the power of compelling every man, to the punctual performance of his contracts, are grave duties, not of the most popular character, though the faithful discharge of them, will certainly command the calm approbation of the judicious observer. The fittest men would probably have too much reservedness of manners, and severity of morals, to secure an election resting on universal suffrage. Nor can the mode of appointment by a large deliberative assembly be entitled to unqualified approbation. There are too many occasions, and too much temptation for intrigue, party prejudice, and local interests, to permit such a body of men to act, in respect to such appointments, with a sufficiently single and steady regard for the general welfare. In ancient Rome, the prætor was chosen annually by the people, but it was in the comitia by centuries; and the choice was confined to persons belonging to the patrician order, until the close of the fourth century of the city, when the office was rendered accessible to the plebeians; and when they became licentious, says Montesquieu, the office became corrupt. The popular elections did very well, as he observes, so long as the people were free, and magnanimous, and virtuous, and the public was without corruption. But all plans of government, which suppose the people will always act with wisdom and'integrity, are plainly Utopian, and contrary to uniform experience. Government must be framed for man, as he is, and not for man, as he would be, if he were free from vice. Without referring to those cases in our own country, where judges have been annually elected by a popular assembly, we may take the less invidious case of Sweden. During the diets, which preceded the revolution in 1772, the states of the kingdom sometimes appointed commissioners to act as judges. The strongest party, says Catteau, prevailed in the trials, that came before them; and persons condemned by one tribunal were acquitted by another." 1 Kent's Comm. Lect. 14, p. 273, 274, (2d edition, p. 291, 292.)

"ferior Courts shall hold their offices during good be"haviour." Upon this subject, the Federalist has spoken with so much clearness and force, that little can be added to its reasoning. "The standard of good behaviour, for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy, it is an excellent barrier to the despotism of the prince: in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient, which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power, must perceive, that in a government, in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy, or injure them. The executive not only dispenses the honours, but holds the sword of the community. The legislature, not only commands the purse, but prescribes the rules, by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword, or the purse; no direction either of the strength, or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force, nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm, for the efficacious exercise even of this faculty.

1 For the interpretation of the meaning of the words good behaviour, see the judgment of Lord Holt, in Harcourt v. Fox; 1 Shower's R. 426, 506, 536. S. C. Shower's Cases in Parl. 158.