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at the pleasure of the king, and so does the lord chancellor to this day. It is easy to perceive what a dangerous influence this must have given to the king in the administration of justice, in cases where the claims or pretensions of the crown were brought to bear upon the rights of a private individual. But, in the time of Lord Coke, the barons of the exchequer were created during good behaviour, and so ran the commissions of the common law judges at the restoration of Charles II. It was still, however, at the pleasure of the crown, to prescribe the form of the commission, until the act of settlement, of 12 and 13 Wm. III. c. 2, which was in the nature of a fundamental charter, imposing further limitations upon the crown, and adding fresh securities to the Protestant succession, and the rights and liberties of the subject. It established that the commissions of the judges be made quamdiu se bene gesserint, though they were still to be removeable upon the address of both houses of parliament." The excellence of this provision has recommended the adoption of it by other nations of Europe. It was incorporated into one of the modern reforms of the constitution of Sweden, and it was an article in the French constitution of 1791, and in the French constitution of 1795, and it was inserted in the constitutional charter of Louis XVIII. The same stable tenure of the judges is contained in a provision in the Dutch constitution of 1814, and it is a principle which likewise prevails in most of our state constitutions, and, in some of them, under modifications more or less extensive and injurious.
In monarchical governments, the independence of the ju
The English judges, notwithstanding the form of their commissions, continued to consider that the demise of the crown vacated their seats. But this imperfection was removed by the statue of 1 Geo. III. enacted at the recommendation of the king.
d Catteau's View of Sweden, ch. 5.
diciary is essential to guard the rights of the subject from the injustice of the crown; but in republics it is equally salutary, in protecting the constitution and laws from the encroachments and the tyranny of faction. Laws, however wholesome or necessary, are frequently the object of temporary aversion, and sometimes of popular resistance. It is requisite that the courts of justice should be able, at all times, to present a determined countenance against all licentious acts; and, to give them the firmness to do it, the judges ought to be confident of the security of their stations. Nor is an independent judiciary less useful as a check upon the legislative power, which is sometimes disposed, from the force of passion, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, as will be shown hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the constitution as the paramount law, and the highest evidence of the will of the people.
The provision for the permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence. It tends also to secure a succession of learned men on the bench, who, in consequence of a certain undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station. The constitution of the United States, on this subject, was an improvement upon all our previously existing constitutions. By the English act of settlement of 12 and 13 William III. it was declared that the salaries of the judges should be ascertained and established; but by the statute of 1 Geo. III. the salaries of the judges were absolutely secured to them during the continuance of their commissions. The constitution of Massachusetts followed the declaration in the English statute of William, and provided that permanent and honourable salaries should be established by law for the judges; but
this was not sufficiently precise and definite, and the more certain provision in the constitution of the United States has been wisely followed, in the subsequent constitutions of most of the individual states. The constitution of New-York, as amended in 1821, is an exception to this remark, and it left the judiciary department in a more dependent condition, and under greater disabilities, than it found it, and greater than in any of those states in the Union, or in any of those governments in Europe, whose constitutions have been recently reformed.
But though the constitution of the United States has rendered the courts of justice independent of undue influence from the other departments, it has made them amenable for any corrupt violation of their trust. The house of representatives, as we have already seen, is invested with the power of impeachment, and the judges may, by that process, be held to answer before the senate, and, if convicted, they may be removed from office.
The federal judiciary being thus established on principles Extent of the which are essential to maintain that department in a proper power. state of independence, and to secure the pure and vigorous administration of the law, the constitution proceeded to designate, with comprehensive precision, the objects of its jurisdiction. The judicial power extends to all cases in law and equity arising under the constitution, the laws and treaties of the Union; 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; to controversies between a state, when plaintiff, and citizens of another state, or foreign citizens or subjects; to controversies between citizens of different states, and between citizens of the same state, claiming lands under grants of different states; and between a state, or citizens
a Art. 3. sec. 2. Amendments to the Constitution, art. 11.
thereof, and foreign states; and between citizens and foreigners. The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from the union of these states in one national government, and they may be considered to be requisite to its existence. The judicial power in every government must be co-extensive with the power of legislation. Were there no power to interpret, pronounce, and execute the law, the government would either perish through its own imbecility, as was the case with the articles of confederation, or other powers must be assumed by the legislative body, to the destruction of liberty. That the interpretation of treaties, and the cases of foreign ministers and maritime matters, are properly confided to the federal courts, appears from the close connexion those cases have with the peace of the Union, the confusion that different proceedings in the separate states would tend to produce, and the responsibility which the United States are under to foreign nations for the conduct of all its members. The other cases of enumerated jurisdiction are evidently of national concern, and they constitute one of the principal motives to union, and one of the principal cases of its necessity, which was the insurance of the domestic tranquillity. The want of a federal judiciary to embrace these important subjects, was once severely felt in the German confederacy, and disorder, license, and desolation, reigned in that unhappy country, until the establishment of the imperial chamber by the Emperor Maximilian, near the close of the fifteenth century; and that jurisdiction was afterwards the great source of order and tranquillity in the Germanic body."
The judicial power, as it originally stood, extended to suits prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state; but the states were not willing to submit to be arraigned as defendants before the federal courts, at the in
a Robertson's Charles V. vol. 1. 183. 395. 397.
stance of private persons, be the cause of action what it may. The decision of the Supreme Court of the United States, in the case of Chisholm v. The State of Georgia,* decided in 1793, and in which it was adjudged, that a state was suable by citizens of another state, gave much dissatisfaction, and the legislature of Georgia carried their opposition to an open defiance of the judicial authority. The inexpediency of the power appeared so great, that Congress, in 1794, proposed to the states an amendment to that part of the constitution, and it was subsequently amended in this particular under the provision in the fifth article. It was declared by the amendment, that the judicial power of the United States should 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. The inhibition applies only to citizens or subjects, and does not extend to suits by a state, or by foreign states or powers. They retain the capacity to sue a state as it was originally granted by the constitution; and the Supreme Court has original jurisdiction in the case of suits by a foreign state against one of the members of the Union.d
With these general remarks on the constitutional principles of the judiciary department, and the objects of its authority, we proceed to a particular examination of the several courts of the United States, as ordained by law.
a 2 Dallas, 419.
b Amendments, art. 11.
c The Cherokee Nation v. Georgia, 5 Peters' U. S. Rep. 1. NewJersey v. New-York, Ibid. 284.
d Blair, J. and Cushing, J. in Chisholm v. State of Georgia, 2 Dallas, 419. That a foreign prince or state may sue in our own, as well as in the English courts of law and equity, see King of Spain v Oliver, 1 Peters' Cir. Rep. 276. The Colombian Government v. Rothschild, 1 Simons, 104. King of Spain v. Machado, 4 Russel, 238. 1 Dow P. C. N. S. 195. S. C.