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both of the Supreme and inferior courts shall hold their offices during good behavior, and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office." A distinction is to be noticed between the provision for the Supreme Court and that for the inferior courts of the United States. The former was created directly by the Constitution, while the establishment of the latter was made optional with Congress. The number and character of the inferior courts, if any were established, were left to Congress to determine. Congress was given the power to determine the number of Supreme Court judges. The judges of the Supreme Court have the right, in virtue of their office, to sit in the inferior courts of the United States, each Supreme Court judge being assigned to one of the nine judicial circuits.5

§ 191. Privileges and disabilities of judges.-The Constitution attempts to secure the independence of the United States judiciary by making their term of office for life, or during good behavior. James Bryce in his "The American Commonwealth” thus comments on this point: "They (i. e., the judges) hold office during good behavior (i. e., they are removed only by impeachment). They have thus a tenure even more secure than that of English judges, for the latter may be removed by the crown on an address from both houses of Parliament. Moreover, the English statutes secure the permanence only of the judges of the Supreme Court of Judicature, not also of judges of country or other local courts, while the provisions of the American Constitution are held to apply to the inferior as well as the superior Federal judges."

This protection, however, does not apply to the judges of the territorial courts, who are appointed for a term of years only; these courts not being created under the authority of the third article of the Constitution, but under that clause in the fourth article which gives Congress power to "make all needful rules and regulations respecting the territory and other public property of the United States."

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4 United States v. Union Pacific R. R., 98 U. S. 569.

Stuart v. Laird, 1 Cranch, 299.

"American Insurance Company v. Canter, 1 Peters, 511; Howard v. United States, 22 Ct. Cl. 316.

The judges of the United States courts are not liable in civil suits for their judicial acts. Any judge appointed under the authority of the United States who engages in the practice of law while holding his judicial office is guilty of a high misdemeanor. It is no objection to a judge trying a case that before his appointment he was an attorney in other matters for one of the parties. Any judge of any court of the United States who resigns his office after having served as judge for at least ten years and after having attained the age of seventy years, is entitled during the remainder of his life to receive the same salary which was by law payable to him at the time of his resignation.10

§ 192. Power to declare acts of Congress unconstitutional. The most noticeable characteristic of the judicial department of the United States Government, and the feature of the United States Constitution which has attracted the most attention among foreign students and statesmen, is the right of United States judges to declare unconstitutional acts of the legislative departSuch a power has never been possessed by the courts of any European government." The courts do not exercise this power of declaiming directly by setting aside the act when passed by the legislative body, but only indirectly, when the constitutionality of the aqt becomes involved in the decision of some question which comes before them in the regular course of legal procedure.

ment.

Philbrook v. Newman, 85 Fed. Rep. 139.

8

* Rev. Stats. 713.

Carr v. Fife, 156 U. S. 494. 10 Rev. Stats. 714.

"The theory has been advanced, but on slim foundations, that this principle existed in Roman law. See Brinton Coxe's "Judicial Power and Unconstitutional Legislation," and Howe's "Studies in the Civil Law," Appendix H. That this theory is entirely er

roneous is shown by a citation from Las Siete Partidas," the leading code based upon the Civil or Roman law which was produced during the middle ages. "When doubts arise concerning the meaning of a law, whether from an error in committing it to writing, or from the obscurity of the expressions made use of by the legislator, it belongs to the legislature alone to explain such doubts."-Law Siete Partidas, Partido I., Title I., Law 14.

During the early years of the United States the Supreme Court seemed to have been a little doubtful of this power, or at least a little afraid to use it. In Hylton v. United States12 the court refused to pass on this question, saying: "It is unnecessary at this time for me to determine whether this court constitutionally possesses the power to declare an act of Congress void on the ground of its being made contrary to and in violation of the Constitution, but if the court have such power I am free to declare that I will never exercise it but in a very clear case."

§ 193. Marbury v. Madison.—In Marbury v. Madison13 the question came before the court in a manner where it could not be avoided, and in the decision in this case (among the most important ever rendered by the Supreme Court) the right of the courts to declare an act of Congress in opposition to the Constitution and therefore void was asserted. Mr. Chief Justice Marshall delivered the opinion of the court, which was in part as follows:

"The Constitution is either a superior paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts; and, like other acts, is alterable when the legislature shall please to alter it.

"If the former part of the alternative be true, then a legislative act contrary to the constitution is not a law; if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

"Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the Constitution is void.

"This theory is essentially attached to a written constitution and is consequently to be considered by this court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

3 Dallas, 171.

131 Cranch, 137.

"If an act of the legislature repugnant to the consideration is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or in other words, though it be not a law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem at first view an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each.

"So if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

"If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution and not any such ordinary act must govern the case to which they both apply."

This decision in Marbury v. Madison has since been taken as decisive of the law on this point. Since this case the right of the United States courts to declare acts of Congress unconstitutional has never been disputed, although the presumption is still in favor of the constitutionality of any statute," the legislative

14 Hylton v. United States, 3 Dallas, 171; Cooper v. Telfair, 4 Dallas, 14, 19; Township of Pine Grove v. Talcott, 19 Wallace, 666, 673; Munn v. Illinois, 94 U. S. 113, 123; Sinking Fund Cases, 99 U. S..700, 718, 727; County of Livingston v. Darlington, 101 U. S. 407; Ogden v. Saunders, 12 Wheaton, 213, 270; the Legal

Tender Cases, 12 Wallace, 457; Powell v. Pennsylvania, 127 U. S. 678, 684; Nicol v. Ames, 173 U. S. 509; 515; Parsons v. Bedford, 3 Peters, 433, 448; Craig v. Missouri, 4 Peters, 410, 444; Butler v. Pennsylvania, 10 Howard, 402, 415; the Mayor v. Cooper, 6 Wallace, 251.

body being supposed to act within scope of its authority15 16 Such claim on the part of any court as that laid down in the case of Marbury v. Madison was, up to the time of this decision, with

15 The following list of cases in which the Supreme Court has declared an act of Congress uncon. stitutional, with the act so declared, is taken from an article in the American Law Review for January-February, 1904, by Blackburn Esterline: Marbury v. Madison, 1 Cranch, 138 (1803).

The provision of the Judiciary Act, which gave to the Supreme Court the power to issue writs of mandamus to persons holding office under the authority of the United States.

Scott v. Sanford (the Dred Scott case), 19 Howard, 393 (1857). The Missouri Compromise Act,' Ex parte Garland, 4 Wallace, 333 (1866). An act passed in July, 1862, which prescribed that before being entitled to his salary, every person elected or appointed to any office of honor or profit under the government of the United States (excepting the President) should, before entering upon his duties, subscribe to an oath to the effect that he had never borne arms against the United States, and had never voluntarily given aid or encouragement to persons engaged in armed hostility thereto; and that he had not sought, accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility thereto; together with the supplemental act of January, 1865, providing that no person should be admitted to the bar of

the Supreme Court, or to the bar of any District or Circuit Court of the United States, unless he subscribed to the above mentioned oath.

The Alicia, 7 Wallace, 571 (1868). An act allowing prize cases to be transferred from the Circuit Courts to the Supreme Court.

Hepburn v. Griswold, 8 Wallace, 603 (1869). The legal

tender act.

The Justices v. Murray, 9 Wallace, 274 (1869). An act allowing certain cases already tried in a State court with a jury to be removed and retried in the United States courts.

The Collector v. Day, 11 Wallace, 113 (1870). The circuit tax law of the Civil War period, so far as it affected the salaries of State officials. United States v. Klein, 13 Wallace, 128 (1871). A provision that no pardon or amnesty of the President should be admissible in evidence in support of any claim asserted in the Court of Claims against the United States. United States v. Reese, 92 U. S. 214 (1875). An act of May 31, 1870. Section 3 of this act provided, in substance, that whenever, under the constitution laws of any State, an act or prerequisite to qualify any citizen to vote was required, the offer of such citizens to perform the act required to be done, shall, if it fail to be carried into execution by reason of the wrongful act or omission of

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