professional student. We are to consider the organization and jurisdiction of the judicial department of the federal and State government. To this department the people have committed the high functions of interpreting and applying the laws of the land, and of declaring them void when they contravene the provisions of the constitution. To this department, thus made to be pre-eminently the guardian of the laws, we resort in all cases of doubt or controversy, as the final arbiter of our rights; and our lives, liberty, and property hang upon its decisions. It has been said that judges exercise no will of their own; but merely expound the legislative will. This is theoretically true; and if our laws were all legislative acts it might be true in point of fact. But in the present state of law, as before described, who can doubt that they exercise a high and vast discretion? Who that has ever observed the course, variety, and amount of litigation, even in the best-regulated community, will hesitate to say that judges exert a more immediate influence upon individual happiness, than any other public functionaries? Legislators, indeed, erect the temples of justice, but judges preside therein. The executive sees to the execution of the laws, when there is no doubt or difficulty; but these cases of doubt and difficulty are the very occasions when judicial interposition is required. What is the law applying to a given case? Is it constitutional? Has it been violated? What are the consequences? These are the questions which judges are ordained to answer, with reference to all the interests which men hold dear on earth, whenever these interests become the subject of controversy; and in making up their decisions, they are less limited by precise and peremptory instructions, than any other public officers, in the discharge of their prescribed duties. No wonder, therefore, that the framers of our government evinced a deep solicitude with respect to the

revenue, impeachment, and questions involving the national peace and harmony id. 860. Cases of impeachment were afterwards stricken out, and cases arising under the national laws added-id. 1137. On a subsequent debate, appointment by the president and senate was negatived, 3 to 6, and appointment by the senate affirmed by the same vote-id. 1171-5. Such was the condition of this department, as reported in the first plan of a constitution, except that there was a more specific enumeration of the cases of jurisdiction — id. 1238-9. A proposition to make the judges removable by the executive on the application of Congress, received but one vote- -id. 1437. The last proposition was, that the judges should be appointed by the president and senate, which was adopted unanimously-id. 1520. For further information respecting the judicial department, see 2 Story, Const. chap. 38; 1 Kent, Com. lec. 14-18; Sergeant on Constitutional Law; Duponceau on Federal Jurisdiction; Conkling on the Jurisdiction and Practice of the U. S. Courts; 3 Black. Com. chap. 3-6; Kitchen on Courts; United States v. Ravara, 2 Dall. 297; Chisholm . Georgia, 2 Dall. 419; Clarke v. Harwood, 3 Dall. 342; Wiscart v. Dauchy, 3 Dall. 321; Fowler v. Lindsey, 3 Dall. 411; Turner v. Bank of North America, 4 Dall. 8; New York v. Connecticut, 4 Dall. 1; Marbury v. Madison, 1 Cranch, 137; Clarke v. Bazadone, 1 Cranch, 212; United States v. Moore, 3 Cranch, 159; Owings v. Norwood, 5 Cranch, 344; Durousseau v. United States, 6 Cranch, 307; M'Intyre v. Wood, 7 Cranch, 504; Fairfax v. Hunter, 7 Cranch, 603; Martin v. Hunter, 1 Wheat. 304; Miller v. Nicholls, 4 Wheat. 311; Cohens v. Virginia, 6 Wheat. 264; United States v. Ortega, 11 Wheat. 467. Williams v. Norris, 12 Wheat. 117; Montgomery v. Hernandes, 12 Wheat. 129. Also, by way of comparison, the 3d, 4th, 5th, and 6th chapters of Blackstone's third book.

structure of this department. They would have been unequal to their mighty undertaking, if they had not been deeply sensible how much its ultimate success must depend upon a well-constituted judiciary. And yet, while this department holds the happiness of individuals so much at its disposal, and may thus become so efficient an instrument of good, it is a gratifying reflection, that no perversion or abuse of its powers can ever make it an equally efficient instrument of evil. It holds neither the purse nor the sword of the community. It dispenses no patronage. It makes no rules but for individual cases. Its chief function is judgment, and that affects only the parties in litigation. If, therefore, it possessed the will it is utterly destitute of the power to subvert our liberties. The blow which is to destroy them, if it come at all, must come from one of the other departments. The judiciary can do little to promote such a catastrophe, but may do much to avert it.

We have seen that the want of a federal judiciary was one of the glaring defects of the confederation. The framers of the constitution, therefore, with this admonition before them, were unanimous in the opinion that such a department must be created. Νο one thought of leaving the interpretation of federal powers entirely to the State tribunals. There were some, however, who thought that it would be sufficient to provide one supreme federal tribunal, as a court of ultimate resort, and leave the rest to the States; but this number was small. The weight of opinion was greatly in favor of providing also for inferior federal courts, and thus forming a complete federal judiciary. Again, there were some in favor of imitating the structure of the English judiciary, as several of the States have done, by making the senate the court of final jurisdiction. But this opinion, also, yielded to the great maxim, that power, in order to be safe, must be divided among distinct departments. And the constitution accordingly declares, that "the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish;" and in another place, that "the Congress shall have power to constitute tribunals inferior to the supreme court. (a) This last provision is, of course, a pleonasm, and the most striking one in the constitution. It may now appear strange that this language of the constitution should ever have been supposed to leave it optional with Congress, to provide for a supreme and inferior courts or not. But this was once a question of much speculation; though it does not appear that Congress has ever regarded the provision otherwise than as strictly imperative. A question of more doubt has been, whether Congress is hereby required to vest the whole judicial power of the United States in the federal courts; or has an option to confer

(a) The convention at first resolved that there should be one supreme, and inferior tribunals; but afterwards left the matter of inferior tribunals to Congress. Mad. Pap. 791, 800.

some portions of it upon the State courts. But it has been decided, that all the jurisdiction contemplated by the constitution must be vested in courts constituted by Congress. If the State courts have a concurrent jurisdiction in certain cases, it is because they possessed such jurisdiction originally, and the federal constitution did not take it away. They cannot derive it from any grant of Congress, because the constitution does not authorize Congress to confer it. (a) The result then is, that there must be one, and only one, supreme federal court; that the number and nature of the inferior courts are left to the discretion of Congress; and that, among these courts, all federal jurisdiction must be distributed. In this way has the constitution redeemed the pledge given in its preamble," to establish justice."

§ 45. Organization of the Federal Courts. The organization of the federal courts, pursuant to the foregoing provisions, is as follows: Besides the supreme court, Congress has created two inferior courts, denominated circuit and district courts. But for these three grades of courts, there are but two grades of judges; namely, supreme and district judges. (b) The supreme court consists of nine supreme judges; namely, one chief justice, and eight associate justices. (c) This court holds one session, annually, at the seat of government. For the purpose of organizing the inferior courts, the United States are parcelled off into districts and circuits. Each State forms at least one district, and sometimes more. For each of these districts, there is a district court, consisting of a single district judge, and held at least twice a year. Several of these districts constitute one circuit; for which there is a circuit court, held twice a year, in each district of the circuit, and composed of one supreme judge and the district judge. Thus, the circuit court holds an intermediate rank between the supreme and district courts.

(a) Martin v. Hunter, 1 Wheat. 304; Prigg v. Commonwealth of Penn., 16 Peters, 539. See Moore v. People of Illinois, 14 How. 13. Nor can any State legislature confer jurisdiction upon courts of the United States. Greeley v. Townsend, 25 Cal. 604; Payne v. Hook, 7 Wall. 425. But whenever a general rule as to property, or personal rights, or injuries to either, is established by State legislation, its enforcement by a federal court in a case between proper parties is a matter of course; and the jurisdiction of the court in such case cannot be prohibited by the State legislature. So held in a case giving an action to the representatives of a man killed by negligence, and requiring the action to be brought in the State courts. Railway Co. r. Whitton, 13 Wall. 270. When a State law gives a right, a United States court in a proper case will give it effect. Ex parte McNiel, 13 Wall. 236. When a State has created a corporation, it cannot by any provision in its charter prevent its being sued in the courts of the United States, by a citizen of another State. Cowles v. Mercer Co., 9 Wall. 118.

(b) By the act of April 10, 1869, nine circuit judges were created with a salary of $5000 per annum, and the judges of the supreme court were required only to hold court in each district in their circuit once in two years.

(c) By the act of March 3, 1863, another associate justice was added, making nine associate justices. But by the act of July 3, 1866, no vacancy in the office of associate justice is to be filled until the number of associate justices is reduced to six. The supreme court is thereafter to consist of the chief justice and six associate justices, any four of whom shall be a quorum. One term is to be held annually at the seat of government, and such adjourned or special terms as may be necessary. By the act of April 10, 1869, the court was restored to its original number of one chief justice and eight associate justices, of whom six were to form a quorum.

It was originally doubted, and not without reason, whether the supreme judges could constitutionally sit on the circuits at all; and perhaps it may become expedient to act upon this doubt, and create a distinct set of circuit judges.

§ 46. Organization of the State Courts. Here there is much diversity. In this State, the plan is similar to that of the federal courts. For three grades of courts there are but two grades of judges. The supreme court consists of five judges, who hold at least one session, annually, at the seat of government. For the purpose of organizing the other courts, the State is divided into common pleas districts, in each of which there are three common pleas judges. The district court for each district is held by one supreme judge, and the three common pleas judges. In each county there is held a common pleas court by one of the common pleas judges, and each may be holding a court at the same time. There is next a probate court for each county, held by a single judge; and, lastly, courts of justices of the peace for each township.

§ 47. Appointment, Tenure, Compensation. The mode of appointment of judges is the next subject of inquiry. The federal convention at first resolved that the supreme judges should be appointed by the senate, without the nomination of the president. (a) But, as we have already seen, the constitution was ultimately so framed as to require them to be appointed by the president and senate. Congress has also required the inferior judges to be appointed in the same way. The excellence of this mode of appointment has been sufficiently dwelt upon. But if further illustration were wanted, it might be found in the contrast which our State constitution furnishes. Formerly, all our judges were elected by joint ballot of both houses of assembly, and our justices of the peace, by the people of each township. By the new constitution, all the judges are elected by the people. That the federal method is preferable, seems hardly to admit of doubt. One man can select better than many; and where there is a negative given to another body of men, there can be little danger of improper appointments.

Tenure of Office. (b) The tenure of judicial office comes next in

(a) The first proposition was that Congress should appoint the judges, which was negatived by a vote of 9 to 2. Then, that the senate should appoint, which passed unanimously. Dr. Franklin mentioned the Scotch mode of a nomination by the bar, who would be sure to select the best lawyer to get him out of the way. Mad. Pap. 792, 855. Then, that the executive should appoint them, which was negatived, 2 to 6-id. 1131-4. Then, that the executive should appoint them with the consent of the senate, which was lost by a tie vote- -id. 1135. A subsequent proposition to the same effect was debated, and negatived, 3 to 6, and appointment by the senate affirmed, 6 to 3-id. 1171-5. But ultimately, appointment by the president and senate was carried unanimously-id. 1520.

(b) There seems to have been no diversity of opinion in the convention upon this subject. Mad. Pap. 794. A proposition that judges should be removable by the president, on the application of Congress, received but one vote-id. 1436. By the act of April 10, 1869, any judge over seventy having held his commission at least ten years may resign, and still receive his salary for the term of his natural life. By the act of March, 1873, the salary of the chief justice was made $10,500 per annum, and of each of the associate justices $10,000 per annum.

order. We have seen, that a salutary republican jealousy has limited the legislative and executive functionaries to short and fixed terms of service. But various reasons seem to justify a departure from this policy, in relation to judicial officers. First, no danger is to be apprehended from a long term, because judicial power, from its nature, cannot enslave the people. Secondly, a proper discharge of judicial duty requires vast learning and experience, which a short term of service would furnish neither an adequate motive nor opportunity for acquiring. And thirdly, integrity, firmness, and independence, so indispensable to a well-organized judiciary, can only be secured by an independent tenure of office. Accordingly, in imitation of the best governments in Europe, and the best of our State constitutions, the federal constitution declares that "the judges both of the supreme and inferior courts, shall hold their offices during good behavior." The consequence is, that they are removable only by impeachment. They are thus placed beyond the reach of fear or favor, and have nothing to consult but the monitor within. The waves of popular commotion cannot reach them; and they have no occasion to court the good will of the other departments. From the secure elevation on which they are thus placed, all disturbing influences being removed, they are left to the calm and fearless exercise of unbiassed judgments; (a) and there is a life before them in which to perfect themselves for duty. But here again our State constitution offers a contrast. judges are elected for only five years, and our justices of the peace for only three. And is it probable, with such a tenure of office, that they will be as independent, or as well qualified, as with the tenure of good behavior? There can be but one answer; and yet, when we look to some of our sister States, we have reason to be thankful that we have not annual elections. There is a provision in some of the State constitutions, making judges removable on the address of both branches of the legislature. And such a proposition was made with respect to the federal judges, but the convention wisely rejected it.

Our

Compensation. The next topic is the compensation of judges. This should be so large as to secure the best abilities; and so regulated as to co-operate with the other provisions, in rendering the judges independent. Accordingly, the federal constitution provides that the judges "shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." It may, however, be increased, since this is not prohibited. (b) This provision wisely proceeds upon the maxim,

(a) A judge of a court of general jurisdiction is not liable to a judicial action for his judicial acts, even when they are in excess of his jurisdiction, and alleged to have been done maliciously or corruptly. It is only a clear absence of all jurisdiction over the subject, which would render the act a usurpation of authority, that can render him liable. For such act, no excuse is permissible. Bradley v. Fisher, 13 Wall. 335, 352.

(b) At first, the convention resolved that it should neither be increased nor diminished. Mad. Pap. 794. Afterwards, the prohibition to increase was stricken out, 6 to 2-id. 1136, 1437.