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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. (a)

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 honorable salaries should be established by law for the judges; but this was * 295 not sufficiently precise and definite to guard against all evasion; 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. In Pennsylvania, the judges of the Supreme Court, and the president judges of the courts of common pleas, by the constitution of that state, are to receive, at stated times, an adequate compensation for their services," to be fixed by law, and not to be diminished during their continuance of office." The legislature, by act, in 1843, repealed the act of 1839, which had increased the salaries of the judges; and they also, by act of 1841, assessed upon the salaries of the judges a tax of two per cent, which the state treasurer

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(a) The protection of law and liberty from the encroachments of the sovereign was an avowed purpose of the institution of the Justicia in the Aragonese constitution, ne quid autem damni detrimentive leges aut libertates nostræ patiantur, judex quidam medius adesto ad quem a rege provocare, si aliquem læserit, injuriasque arcere si quas forsan reipub. intulerit, jus fasque esto. Blancas, Commentarii, 26, cited in 1 Prescott, Ferdinand and Isabella, Int. 107, n. 59.

retained. The invalidity of the statutes reducing the salaries and assessing a tax thereon was afterwards adjudged as being unconstitutional, and a peremptory mandamus was awarded to the state treasurer to pay the salary so retained, free of the reduction and of the taxation. Commonwealth ex relat. Hepburn v. Mann, 5 Watts & Serg. 403. The authority of the constitutional provision, and the void nature of the statutes, were illustrated and enforced in the opinion of the Supreme Court, as given by Mr. Justice Rogers. But the decision of the court has been questioned, on the ground that the increased salary was subject to legislative control, under the restriction, however, that the allowance was not to be lessened in respect to the judges, or any of them, below that point at which it stood when they respectively came into office. This last construction is supported by the Federalist, No. 79, and by Mr. Justice Story in his Commentaries, in the remarks on a similar constitutional provision under the United 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 had been recently reformed. (a)

(a) By the constitutions of Massachusetts, Delaware, Maryland, Virginia, Kentucky, North Carolina, South Carolina, Florida, Missouri, and Illinois, the judges of the Supreme Courts hold their offices during good behavior. This was the case in Pennsylvania under the constitution of 1790; but by the amended constitution of 1838, the tenure of the judges, as to the term, was reduced; that of the judges of the Supreme Court to fifteen years, and of the president judges to ten years, and of the associate judges to five years. This was also the case in Louisiana, until the new constitution of that state, in 1845, which reduced the term of office to eight years. In the states of Maine, New Hampshire, and Connecticut, they hold during good behavior, or until seventy years of age, and in Missouri until sixty-five, and in New York, until lately for [until] sixty years of age. In Tennessee the judges of the Supreme Court hold their offices for twelve years, and of the inferior courts for eight years. In Arkansas the judges of the Supreme Court hold their offices for eight years, and the judges of the Circuit Courts for four years; in the states of New Jersey, Ohio, Michigan, and Indiana, they hold for the term of seven years; in Alabama, Mississippi, and Texas, six years; and in Iowa for four years. In Vermont and Rhode Island they are annually elected. In Georgia the judges of the Supreme Court for the Correction of Errors are to be elected for a term of years, to be prescribed by law, and the judges of the Superior Court for the term of four years. The judges of the Supreme Court consist of three, and by statute are elected for six years. The new constitution of Rhode Island, which was adopted in 1842, and went into operation in May, 1843, mproved the tenure of the judicial office, by declaring that the judges of the Supreme

But though the Constitution of the United States has rendered the courts of justice independent of undue influence from the Court should be elected by the legislature, and hold their offices respectively until the place of the judge be declared vacant by a resolution of the legislature passed by a majority of all the members elected to each house, at the annual session for the elec tion of public officers. By the ordinance of Congress of July, 1787, for the government of the Northwest Territory, the commissions of the judges were to continue in force during good behavior. But the subsequent constitutions of Ohio and Indiana cut down that permanent tenure to one for seven years. The constitution of Alabama, in 1819, established the judicial tenure to be during good behavior; but the consti. tution has been since specially altered in that particular, so as to change the tenure to the term of six years. And by the first constitution of the state of Mississippi, in 1807, the judges held their offices during good behavior, or until sixty-five years of age, and were appointed by the joint vote of the two houses of the legislature, given viva voce, and recorded. But by the constitution, as amended and reordained in 1833, every officer in the government, legislative, executive, and judicial, is elected by the universal suffrage of the people; that is, by every free white male citizen of twentyone years of age, who has resided within the state for one year preceding, and for the last four months within the county, city, or town in which he offers to vote. The judges of the Supreme Court of Errors and Appeals are thus chosen by districts for six years. The chancellor is elected for six years by the electors of the whole state. The judges of the Circuit Courts are elected in districts for four years. The judges of probates and clerks of courts are elected for two years, &c. This was carrying the democratic principle beyond all precedent theretofore in this country. In all the other states of the Union (at least until very recently) the judges of the higher courts of law and equity received their appointments either from the governor and council, or governor and senate-as in Maine, Massachusetts, New Hampshire, New York, New Jersey, Maryland, Kentucky, Indiana, Louisiana, Missouri, and Michigan- -or from the governor alone - as in Pennsylvania and Delaware- or from the legislature — as in Vermont, Rhode Island, Connecticut, Virginia, North and South Carolina, Georgia, Florida, Tennessee, Ohio, Illinois, Iowa, Alabama, and Arkansas. In Indiana there is a peculiar qualification in the judicial appointments; for the Supreme Court is appointed by the governor and senate, the presidents of the Circuit Courts by the legislature, and the associate circuit judges are elected by the people. By the revised constitution of New York of 1846, a momentous revolution was effected in the mode of appointment, organization, and tenure of the judicial department, as well as in the appointment of officers generally. It was ordained that there should be a Court of Appeals, composed of eight judges, of whom four, to be elected by the electors of the state, for eight years, and four selected from the class of justices of the Supreme Court having the shortest time to serve; and the judges were to be so classified, that one should be elected every second year. There was to be a Supreme Court, having general jurisdiction in law and equity. The state was to be divided into eight judicial districts, and to have four justices of the Supreme Court in each district, and to be so classified, that one of the justices of each district shall go out of office at the end of every two years; and after the expiration of their terms under such classification, the term of their office shall be eight years. One or more of the judges of the Supreme Court, who is not a judge of the Court of Appeals, to be duly designated to preside at the general terms of the said courts to be held in the several districts, and any three or more of the justices (the presiding judge so designated to be one) to hold such general terms. Any one or more of them may hold special terms and Circuit Courts, and preside in courts of Oyer and Terminer in any county. The judges of the

other departments, it has made them amenable from any corrupt violation of their trust. The House of Representatives, as we Court of Appeals, and justices of the Supreme Court are to have a compensation for their services, not to be increased or diminished during their continuance in office. They are not to hold any other office or public trust, nor exercise any power of appointment to public office. The justices of the Supreme Court and judges of the Court of Appeals may be removed by concurrent resolutions of two-thirds of all the members elected to the assembly, and a majority of all the members elected to the senate. All other judicial officers and justices of the peace may be removed by the senate, on the recommendation of the governor. The judges of the Court of Appeals to be elected by the electors of the state, and the justices of the Supreme Court by the electors of the several judicial districts. One county judge to be elected in each of the counties of the state, except the city of New York, to hold his office for four years, and to hold the County Court, and perform the duties of surrogate. The County Court to have no original civil jurisdiction, except in special prescribed cases. But the county judge and two justices of the peace to hold Courts of Sessions, with criminal jurisdiction; and he is to receive an annual salary, to be fixed by the board of supervisors, and to be neither increased nor diminished during his continuance in office. Justices of the peace, for services in Courts of Sessions, to be paid a per diem allowance out of the county treasury. The legislature may provide for the election of a surrogate in counties where the population exceeds 40,000; and they may confer equity jurisdiction, in special cases, upon the county judge, and establish inferior local courts, of civil and criminal jurisdiction, in cities. Justices of the peace are to be elected in each town at their annual town meeting, whose term of office is to be four years, and they may be removed in a due manner by the county, city, or state courts, as prescribed. The clerk of the Court of Appeals is to be ex officio clerk of the Supreme Court, and to be chosen by the electors of the state, and to hold his office for three years, and to be paid out of the public treasury. No judicial officer, except justices of the peace, shall receive any fees or perquisites of office.

This is the substance of the new judicial system, under the revised constitution of New York, and its very democratic character pervades the whole instrument. The central appointing power, with the extensive patronage which, under the prior constitutions of 1777 and 1821, existed in the governor and senate, is broken up and diffused through every part of the body politic. All offices of any moment now rest on popular election. Besides the judicial officers already mentioned, the Secretary of State, Comptroller, Treasurer, Attorney-General, a State Engineer and Surveyor, the Canal Commissioners, the Inspectors of State Prisons, the Clerk of the Court of Appeals, Sheriffs, Clerks of Counties, the Register and Clerk of the city of New York, dsitrict attorneys, and generally all local officers, are to be chosen by popular election. The revised constitution of New York of 1846 is more democratic than any of the state constitutions in the Union, and it contains more specific restrictions and limitations on the exercise of legislative power than are anywhere to be met with. The convention seem to have most anxiously guarded against the influences of selfishness, intrigue, favoritism, and corruption, which have been supposed to have heretofore affected the action of the legislative department. All depends now upon the discreet exercise of the right of suffrage; and as the convention, in their circular address, truly observed, "the happiness and progress of the people of this state will, under God, be in their own hands." Perhaps the most unwise feature in the revised constitution is the election, by universal suffrage, and for comparatively short periods, of all judicial officers. The convention have disregarded, in this respect, the lessons taught by the former constitutions of 1777 and 1821, as well as the wisdom of the

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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.

2. Its General Powers. The federal judiciary being thus established on principles which are essential to maintain that department in a proper 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 (b) 1 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 * thereof, and foreign states; and between *296 Constitution of the United States. The organization of the judicial department is not so essential as the supply of intelligent, learned, and honest judges to administer the laws. The danger to be apprehended, as all past history teaches us, in governments resting in all their parts on universal suffrage, is the spirit of faction, and the influence of active, ambitious, reckless, and unprincipled demagogues, combining, controlling, and abusing the popular voice for their own selfish purposes. Much more grievous would be such results when applied to the election of judges, for that would tend to break down and destroy the independence and integrity of the administration of justice.

The constitutional provision for making judges elective for short periods, by universal suffrage, is contagious, and every new constitutional reform or establishment tends that way. In the constitution of Wisconsin, established in 1846, the judges of the highest courts were to be elected for five years only.

In respect to the compensation of the judges of the Superior Courts, the constitutions of the states of Maine, Rhode Island, New Jersey, Pennsylvania, Delaware, Virginia, Tennessee, South Carolina, Georgia, Florida, Alabama, Ohio, Indiana, Illinois, Michigan, Missouri, Mississippi, Arkansas, and Louisiana either establish or direct the salaries to be fixed by law, and that they shall not be diminished during the continuance of the judges in office. In New Hampshire, North Carolina, and Kentucky adequate and permanent, or fixed salaries, are directed to be provided by law. In other states (and New York is one of them) the compensation of the judges, and the duration of it, rest entirely in legislative discretion; for though the statute (as in New York) may declare that the judges shall have a specified annual salary, the statute is liable, at any future time, to legislative repeal.

(b) Art. 3, sec. 2. Amendments to the Constitution, art. 11.

1 Post, 326, n. 1.

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