tion.""

It was no doubt the experience of the members of the Convention arising from the limited judicial system under the Articles that caused a unanimous demand for a separate, independent and supreme judicial tribunal. The federal judicial system, contrary to what some writers have asserted and is generally supposed, was not a new or original creation of the Convention. This is shown by the fact that in most, if not all the States, a similar system existed with which the members of the Federal Convention must have been familiar. The statement of Hamilton on this subject should be accepted as authoritative. Concerning it he says:

1 The Federalist No. 22.

Speaking in 1826 in the United States Senate of the power of the Supreme Court, Mr. Van Buren, afterwards President of the United States, said:

In virtue of

"It has been justly observed elsewhere that 'there exists not upon earth, and there never did exist, a judicial tribunal clothed with powers so various and so important' as the Supreme Court. Not only are the acts of the National Legislature subject to its review, but it stands as the umpire between the conflicting powers of the General and State governments. That wide field of debatable ground between those rival powers is claimed to be subject to the exclusive and absolute dominion of the Supreme Court. this power, we have seen it holding for naught the statutes of powerful States, which had received the deliberate sanction, not only of their legislatures, but of their highest judicatories, composed of men venerable in years, of unsullied purity, and unrivalled talents-statutes on the faith of which immense estates had been invested, and the inheritance of the widow and the orphan were suspended. You have seen such statutes abrogated by the decision of this court, and those who had confided in the wisdom and power of the State authorities, plunged in irremediable ruin. Decisions final in their effect and ruinous in their consequences. I speak of the power of the court, not of the correctness or incorrectness of its decisions. With that we have here nothing to do.

"But this is not all. It not only sits in final judgment upon our acts, as the highest legislative body known to the country-it not only claims to be arbiter between the Federal and State Governments-but it exercises the same great power between the respective States forming this great Confederacy, and their own citizens. Add to the immense powers of which I have spoken, those of expounding treaties, of deciding controversies between the States of the Confederacy themselves, and between the citizens of the different States; and the justice of the remark will not be questioned, that there is no known judicial power so transcendentally omnipotent as that of the Supreme Court of the United States." Abridgment of Congressional Debates, vol. 8, 500, 502.

"These considerations teach us to applaud the wisdom of those States who have committed the judicial power in the last resort, not to a part of the Legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the Convention, in this respect as novel and unprecedented, it is but a copy of the Constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, and the preference which has been given to these models is highly to be commended."

The establishment by a written Constitution of a separate branch of the Government which would possess such power as would naturally and of right belong to the judicial department was, at the time of its creation, and still is a matter of such moment that the assertion of a rather full account of the plans submitted and the debates which occurred in the Convention on this important subject seems desirable. It is only by an examination of the proceedings of the Convention that we can get the spirit, the ideal purpose, the motives and philosophical conception, which animated the framers of the Constitution. They were intensely earnest in their work, and differed in their opinions on many of the great questions which came before them, and it is these differences of opinion, this clashing of the great minds of the Convention, that the student must understand if he would know either the spirit or the letter of the Constitution.

Plans for the establishment of the Judiciary.-Mr. Randolph's plan was "that a national judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals.''

Mr. Pinckney's, "that the Legislature of the United States shall have the power, and it shall be their duty, to establish such courts of law, equity and admiralty as shall be necessary. One of these shall be termed the Supreme Court.""

2 The Federalist, No. 81.

3 Journal, 62.

4 Journal, 70.

Mr. Paterson's, "that a federal judiciary be established, to consist of a supreme tribunal.

Mr. Hamilton's, "the supreme judicial authority to be vested in judges."

The Supreme Court is the creation of the Constitution and Congress can not abolish it. If that body should refuse to fix the compensation of the members of the court, or refuse to appropriate money for their compensation, it would in either case be a violation of the Constitution, for that instrument provides that the members of the court shall receive a compensation at stated times.'

5 Journal, 163.

• Journal, 186,

7 In Gordon v. United States, Chief Justice Taney used this language in reference to the Supreme Court:

"The Supreme Court does not owe its existence or its powers to the legislative department of the government. It is created by the Constitution, and represents one of the three great divisions of power in the Government of the United States, to each of which the Constitution has assigned its appropriate duties and powers, and made each independent of the other in performing its appropriate functions.

"The existence of this court is, therefore, as essential to the organization of the government established by the Constitution as the election of a president or members of Congress. It is the tribunal which is ultimately to decide all judicial questions confided to the Government of the United States. No appeal is given from its decisions, nor any power given to the legislative or executive departments to interfere with its judgments or process of execution. Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress can not require or authorize the court to exercise any other jurisdiction or power, or perform any other duty.

"The reason for giving such unusual power to a judicial tribunal is obvious. It was necessary to give it from the complex character of the Government of the United States, which is in part National and in part Federal: where two separate governments exercise certain powers of sovereignty over the same territory, each independent of the other within its appropriate sphere of action, and where there was, therefore, an absolute necessity, in order to preserve internal tranquillity, that there should be some tribunal to decide between the Government of the United States and the government of a State whenever any controversy should arise as to the relative and respective powers in the common territory. The Supreme Court was created for that purpose, and to insure its impartiality it was absolutely necessary to make it independent of the legislative power, and the influence direct or indirect of Congress and the Executive. Hence the care with which its jurisdiction, powers, and duties are

The Supreme Court was created and its jurisdiction determined by the act of September 24, 1789.8 It consisted of a chief justice, and five associate justices.

The act prescribed the following oath which the justices took before entering upon the discharge of their duties, and which is still the form of oath taken by all federal judges.

"I.

do solemnly swear

or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States; so help me God."'9

The same act created a district court in each State and provided for the appointment of a judge in each district. It also created three circuits and provided that in each circuit there should be held a circuit court to consist of two justices of the Supreme Court and a district judge.10

defined in the Constitution and its independence of the legislative branch of the government secured. It was to prevent an appeal

to the sword and a dissolution of the compact that this court by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government; its powers defined, and limited, and made strictly judicial, and placed therefore beyond the reach of the powers delegated to the Legislative and Executive departments." 117 U. S. (appendix), 699.

81 U. S. Statutes at Large, 73. 91 U. S. Statutes at Large, 76. 10 The great act commonly called the judiciary act of September 24, 1789, originated in the Senate. One member of the committee which reported it, Oliver Ellsworth, afterwards became Chief Justice of the Supreme Court, and another member, William Paterson, associate justice of the same court. Five of the members had also been deputies to the Convention which framed the Constitution. It may

be said that the authors of this act, as well as the Congress which adopted it, were adherents of the political party which held that it was indispensable to the peace and unity of the country that the authority of the Federal Government should be extended as far as it could be constitutionally. So it has been considered, and justly so, as an authoritative and contemporaneous exposition of the limits of the judicial power of the General Government. Miller on the Constitution, 335, note.

In his opinion in Cohens v. Virginia, Mr. Chief Justice Marshall

The question soon arose with many of the statesmen and jurists of that day whether that portion of the act requiring the justices of the Supreme Court to hold the circuit courts was constitutional. How could judges of a court created by the Constitution be compelled to sit as judges of a court created by a statute? That the

said, "Congress seems to have intended to give its own construction to this part of the Constitution, in the twenty-fifth section of the judiciary act; and we perceive no reason to depart from that construction." 6 Wheaton 264.

The authorship of this act is generally conceded to Ellsworth, but Mr. Van Buren attributes it to Hamilton. Referring to the 25th section of the act he says, "It was this provision in the judiciary act which more than all other things combined, made that department-which Montesquieu described as next to nothing in point of power, and upon the weakness of which Hamilton before the passage of that act descanted so freely-the most formidable and overshadowing branch of the government. The section bears the impress of his mind, and if not the work of his pen was beyond all doubt the result of his suggestion. Hamilton was not a member then, but we have seen that he made speeches in Congress through another, and I have not a doubt that, if the truth could now be known, it would appear that few things were said or done on one side, in either branch of that body, of which he did not make a part in some form." Van Buren, Political Parties in the United States, 294, 295.

On Sept. 26, 1789, Ralph Izard, a member of the United States Senate from South Carolina, wrote Edward Rutledge as follows:

"I am just returned from the Senate where the following officers have been approved of-Mr. Jay, Chief Justice; judges of the Supreme Court, J. Rutledge, Cushing, Wilson, Harrison, and Blair; Edmund Randolph, Attorney General. The judges of the Supreme Court are chosen from among the most eminent and distinguished characters in America, and I do not believe any judiciary in the world is better filled. The President asked me before the nominations were made, whether I thought your brother John, General Pinckney, or yourself would accept of a Judge in the Supreme Court. I told him that I was not authorized to say you would not, but intimated that the office of Chief Justice would be most suitable to either of you. That, however, was engaged. Mr. Jay's office has this day been filled by Mr. Jefferson, who is expected here soon from France. The home department is added to it, and the name of the office changed. Mr. Jefferson is called Secretary of State. I hope it may suit your brother to accept, if it should only be for two or three years; as it is of the first importance that the judiciary should be highly respectable...... The President will not nominate any but the most eminent, and if none in South Carolina of that description will accept, he will be obliged to have recourse to some other State." Am. Hist. Rev., July, 1909, 777.