History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 3

By the introduction of this department into their plan of government, the framers of the Const.i.tution obviously intended that it should perform the same office in their national system which the corresponding department had always fulfilled in the States. No other function of a judiciary was known to the people of the United States, and this function was both known and deemed essential to a well-regulated liberty. It was known that the judicial department of a government is that branch by which the meaning of its laws is ascertained, and applied to the conduct of individuals. To effect this, it was introduced into the system whose gradual formation and development we are now examining.

The committee not only declared that this department, like the legislative and the executive, was to be "supreme," but they proceeded to make it so. One of the first questions that arose concerning the construction of the judiciary was, whether it should consist solely of one central tribunal, to which appeals might be carried from the State courts, or should also embrace inferior tribunals to be established within the several States. The latter plan was resisted as an innovation, which, it was said, the States would not tolerate. But the necessity for an effective judiciary establishment, commensurate with the legislative authority, was generally admitted, and a large majority of the States were found to be in favor of conferring on the national legislature power to establish inferior tribunals;[38] while the provision for a supreme central tribunal was to be made imperative by the Const.i.tution.

The intention of the committee also to make the judicial coextensive with the legislative authority, appears from the definition which they gave to both. Upon the national legislature they proposed to confer, in addition to the rights vested in Congress by the Confederation, power to legislate in all cases to which the separate States were incompetent, or in which the harmony of the United States might be interrupted by the exercise of individual legislation; and the further power to negative all laws pa.s.sed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties subsisting under the authority of the Union. The jurisdiction of the national judiciary it was declared should extend to all cases which respect the collection of the national revenue, and to impeachments of national officers; and then the comprehensive addition was made of "questions which involve the national peace and harmony." This latter provision placed the general objects, which it was declared ought to be embraced by the legislative power, within the cognizance of the judiciary. Those objects were not yet described in detail, the purpose being merely to settle and declare the principles on which the powers of both departments ought to be founded.

But, as we have already had occasion to see, the idea of vesting in the judicial department such control over the legislation of the separate States as might be surrendered by them to the national government, was not yet propounded. The principle which was to ascertain the extent of that control was already introduced and acted upon, namely, that it should embrace all laws of the States which might conflict with the Const.i.tution, or the treaties made under the national authority. The plan at present was, as we have seen, to treat this as a legislative power, to be executed by the direct control of a negative. But a nearer view of the great inconveniences of such an arrangement, and the general basis of the jurisdiction already marked out for the national judiciary, led to the development of the particular feature which was required as a subst.i.tute for direct interference with the legislative powers of the States. In truth, the important principle which proposed to extend the judicial authority to questions involving the national peace and harmony, embraced all the power that was required; and it only remained to be seen that the exercise of that power by the indirect effect of judicial action on the laws of the States after they had been pa.s.sed, was far preferable to a direct interference with those laws while in the process of enactment.

The committee, with complete unanimity, determined that the judges of the supreme tribunal should hold their offices during good behavior.[39] This tenure of office was taken from the English statutes, and from the const.i.tutions of some of the States which had already adopted it. The commissions of the judges in England, until the year 1700, were prescribed by the crown; and although they were sometimes issued to be held during good behavior, they were generally issued during the pleasure of the crown, and it was always optional with the crown to adopt the one or the other tenure, as it saw fit.

But in the statute pa.s.sed in the thirteenth year of the reign of William III., which finally secured the ascendency of the Protestant religion in that country, and made other provisions for the rights and liberties of the subject, it was enacted that judges' commissions should be made during good behavior, and that their salaries should be ascertained and established; but it was made lawful for the crown to remove them upon the address of both houses of Parliament.[40] Still, however, it was always considered that the commissions of the judges expired on the death of the king; and for the purpose of preventing this, and in order to make the judges more effectually independent, a new statute, pa.s.sed in the first year of the reign of George III., declared that the commissions of the judges should continue in force during their good behavior, notwithstanding the demise of the crown; and that such salaries as had been once granted to them should be paid in all future time, so long as their commissions should remain in force. The provision which made them removable by the crown on the address of both houses of Parliament was retained and re-enacted.[41]

In framing the Const.i.tution of the United States, the objectionable feature of the English system was rejected, and its valuable provisions were retained. No one, at the stage of the proceedings which we are now examining, proposed to make the judges removable on the address of the legislature; and although at a much later period this provision was brought forward, it received the vote of a single State only. The first determination of the Convention, in committee of the whole, was, that the judges should hold their offices during good behavior; that they should receive punctually, at stated times, a fixed compensation for their services, in which no _increase_[42] or diminution should be made so as to affect the persons actually in office at the time.

The appointment of the judges was by general consent, at this stage of the proceedings, vested in the Senate.

NOTE ON THE JUDICIAL TENURE.

The English historians and juridical writers have not given a very satisfactory account of the purpose for which the power of removal on the address of the two Houses of Parliament was incorporated with the provision which gave the judges their commissions during good behavior. It is obvious that, if the power of removal is to be regarded as an unqualified power, to be exercised for any cause, or without the existence of any cause, the office is held during the pleasure of the legislative and executive branches of the government, and not during the official good conduct of the inc.u.mbent. In this view of it, therefore, the provision is inconsistent with the declared tenure of the commission. On the other hand, if the _power_ of removal is not to be regarded as a limitation upon the tenure of the office, but the _process_ of removal is to be considered as a mode in which the unfitness or incapacity of the inc.u.mbent is to be ascertained,--treating it as a subst.i.tute for impeachment, to be used in cases of palpable official incapacity or unfitness,--then it is not repugnant to the tenure of good behavior. In support of this view of the subject it is to be observed that, in the statute of 1 Geo. III. c. 23, the tenure of good behavior is made the leading and primary object of the enactment. The motives for it are set forth with great point and emphasis. The King is made to declare from the throne to the two houses of Parliament that he looks upon the independency and uprightness of judges as essential to the impartial administration of justice, as one of the best securities to the rights and liberties of the subject, and as most conducive to the honor of the crown. The enacting part of the statute, which follows this recital, provides anew that the judges' commissions shall be and remain in force during their good behavior, notwithstanding a demise of the crown; and the power of removal by the King, on the address of both houses, follows this enactment as a _proviso_. If, therefore, a not unusual rule of construction is applied, the power embraced in the _proviso_ should be so construed as to make its operation consistent with, and not repugnant to, the great purpose of the statute, which was to establish the tenure of good behavior. In this view the rightful exercise of the power may be confined to cases where the individual is no longer within that tenure, or, in other words, where the good behavior has ceased, or become impossible. Upon this construction the power of removal can only be rightfully exercised when a cause exists which touches the official conduct or capacity of the inc.u.mbent.

In the Const.i.tution of the State of Ma.s.sachusetts, formed in 1780, the power of removal by the executive, on the address of both houses of the legislature, was adopted from the English statutes, and it was introduced as a _proviso_ after the tenure of good behavior had been emphatically declared for all judicial officers, just as it stands in the act of 1 Geo. III.

An objection which has sometimes been urged against the construction above suggested is, that it is narrower than the terms of the provision, and that it would not include a case where a judge may have discharged all his official duties with propriety and ability, and may yet be personally obnoxious, as, for example, on account of gross immorality.

But the answer to this objection is, that the question, whether a case of official good conduct accompanied by personal immorality, or the like defect of character, was intended to be within the power of removal, must be determined on a careful view of the whole provision. The meaning and scope of the qualification of "good behavior"

must be first ascertained. If it means simply that the individual is to hold his commission so long as each official duty is discharged in the manner contemplated by law, then a mere personal immorality, which has not affected or influenced the discharge of official duty, is not inconsistent with the good behavior established as the tenure of the office. But if the good behavior means, not merely that the individual shall discharge his official duties in a competent manner, with an average amount of ability, and without corruption, but that he shall so order his life and conversation as not to expose himself to a cessation of the power to act intelligently and uprightly, then there may undoubtedly be a case of personal immorality that would touch the tenure of the office. Still it must be the tenure of the office that is touched, and it must be touched by misconduct or incapacity. The phrase "good behavior" is technical, and has always had a meaning attached to it which confines it to the discharge of official duty. It is, therefore, not what men think of the individual, or how they feel towards him, or how they regard him, but what he does or omits officially, that is to determine whether he continues to behave well in his office; and unless some conduct, or some bodily or mental condition, is adduced, that shows him to be incapable of fulfilling the duties of his station in the manner in which the law intends they shall be discharged, his tenure of good behavior is not lost.

But the naked power of removal by the other two branches of the government exists in the English const.i.tution, and in that of the State of Ma.s.sachusetts, without any declaration of the purposes or occasions to which it is to be applied; and it is not easy to reconcile it with the avowed object of judicial independence obviously embraced by the terms of the commission prescribed in both of them. The two most important native writers on the English const.i.tution, Sir William Blackstone and Mr. Hallam, regard the provision as a restraint on the former practice of the crown, of dismissing judges when they were not sufficiently subservient to the views of the government in political prosecutions. Mr.

Hallam, after referring to the provisions of the two statutes, lays down the proposition, that "no judge can be dismissed from office, except in consequence of a conviction for some offence, or the address of both houses of Parliament, which is tantamount to an act of the legislature." (Const.i.tutional History, III. 262.) He suggests further, that although the commissions of the judges cannot be vacated by the authority of the crown, yet that they are not wholly out of the reach of its influence. They are accessible to the hope of further promotion, to the zeal of political attachment, to the flattery of princes and ministers, and to the bias of their professional training. He therefore commends the wisdom of subjecting them in some degree to legislative control. (Ibid.) But it is not to be inferred from his remarks that that control can be rightfully exercised without the existence of a cause which affects their good behavior. On the contrary, he appears to consider that the purpose was to prevent a subserviency to the crown in their official conduct, by subjecting _that conduct_ to legislative scrutiny. To the honor of England, it is to be remembered that, since this power was recognized, there has never been an instance in which a judge has been removed for political or party purposes.

Mr. Justice Story has taken substantially the same view of the subject. He says: "The object of the act of Parliament was to secure the judges from removal at the mere pleasure of the crown; but not to render them independent of the action of Parliament. By the theory of the British const.i.tution, every act of Parliament is supreme and omnipotent. It may change the succession to the crown, and even the very fundamentals of the const.i.tution. It would have been absurd, therefore, to have exempted the judges alone from the general jurisdiction of this supreme authority in the realm.

The clause was not introduced into the act for the purpose of conferring the power on Parliament, for it could not be taken away or restricted, but simply to recognize it as a qualification of the tenure of office; so that the judges should have no right to complain of any breach of an implied contract with them, and the crown should not be deprived of the means to remove an unfit judge whenever Parliament should, in their discretion, signify their a.s.sent."

(Commentaries on the Const.i.tution, Vol. II. -- 1623.)

By describing it as a "qualification of the tenure of office," the learned commentator probably did not mean that the power was intended to be recognized as a power to remove judges against whom no official misconduct or incapacity could be charged; for the context shows that he was speaking of the removal of "unfit" judges as a power that it was proper to recognize and regulate. If he intended to lay it down as a complete and actual qualification of the tenure of good behavior, it must have been upon the theory to which he refers, upon which an act of Parliament can do anything, either with or without reason. Upon this theory all the commissions of all the judges in the realm may be vacated without inquiry into their fitness or unfitness. But if the true view of the subject is, that the _King's commission_, which runs _quamdiu se bene gesserit_, cannot be determined when the crown alone decides that the good behavior has ceased, or become impracticable, but may be determined when the whole legislative power has so decided, then in one sense it _is_ a qualification of the commission; because the latter emanates from the crown, but after it has issued, it is to be superintended by Parliament _and_ the crown.

When we turn to our American const.i.tutions, all embarra.s.sment arising from the English theory of the omnipotence of the legislative department vanishes. In our systems of government the people alone possess supreme power. The legislature is but the organ of their will for certain specific and limited purposes, which are carefully defined in a written const.i.tution; and no power that is not plainly confided by the const.i.tution to the legislative and executive departments of the government can be exercised by them. Under every American const.i.tution, therefore, which has conferred upon the executive power to remove a judge upon the address of the two houses of the legislature, the question whether that power extends to any cases but those of official misconduct or incapacity must be determined by a careful consideration of the position which that const.i.tution a.s.signs to the judiciary. If, as is the case, for example, under the Const.i.tution of the State of Ma.s.sachusetts, there is a clear intention manifest to make the judiciary independent of the other departments, and this intention appears by other provisions, and the enunciation of other principles besides that which in terms establishes the tenure of good behavior, then the power of removal upon address ought to be construed and exercised consistently with the tenure of good behavior, and not in direct repugnance to it. It is plain that, if the power is construed as a naked and unrestrained power, established as a direct qualification of the tenure of office, it may be used for party purposes, and may be exercised for any cause for which a dominant party may see fit to employ it.

The danger of the abuse of this power, arising from the absence of any express restriction upon it, and of any statement of its purpose, in the Const.i.tution of Ma.s.sachusetts, has led to an unsuccessful effort in that State to make its exercise more difficult than it is under the actual provision. In the Convention held in the year 1820, in which the Const.i.tution was subjected to revision, Mr. Webster, Mr. Justice Story, and others of the eminent jurists of Ma.s.sachusetts, endeavored to procure an amendment requiring the address to be adopted by a vote of two thirds in both branches, instead of allowing it to be carried, as the Const.i.tution has always stood, and as the rule is in England, by a bare majority. The effort failed; but the result of the whole discussion to which it gave rise shows the general understanding of the people of the State with regard to the rightful extent of this power. The Convention was a very remarkable a.s.sembly of the intellect and worth of the State, and both the political parties of the time were fully represented in it, by their most distinguished members.

All were agreed that the power was capable of abuse, and that to apply it to any other than cases of official incapacity or unfitness would be an abuse. But those who opposed the adoption of a two-thirds rule were unwilling to antic.i.p.ate such an abuse of the power, and their arguments prevailed.

The framers of the Const.i.tution of the United States intrusted no such power over the judiciary to the other branches of the government. They regarded the possibility of its being used for improper purposes as a sufficient reason why it should not exist. They thought it, moreover, a contradiction in terms to say that the judges should hold their offices during good behavior, and yet be removable without a trial. But the radical objection was one that does not seem to have been sufficiently attended to in the early formation of some of the State const.i.tutions, but which the peculiar system established by the Const.i.tution of the United States made especially prominent.

That Const.i.tution was designed to be in some respects an abridgment of the previous powers of the States. Like the State const.i.tutions, also, it embraced a careful distribution of the powers of government between the different departments, and a careful separation of the functions of one department from those of another. Questions must, therefore, necessarily arise in the administration of the government, whether one of these departments had overstepped the limits a.s.signed to it as against the others, and whether the action of the general or the State governments in particular instances is within their appropriate spheres. These, now familiar to us as const.i.tutional questions, were to be subjected to the arbitrament of the national judiciary; and it was almost universally felt that this delicate and important power must be confided to judges whose tenure of office could be touched only by the solemn process of accusation and impeachment. The same necessity exists under a State const.i.tution, but perhaps not in the same degree; for while the judiciary of a State is often called upon to decide finally upon the conformity of acts of legislation with the State const.i.tution,--and ought therefore clearly to be beyond the reach of legislative influence,--yet no State judiciary is the final arbiter between the rights and powers of the national government and the rights and powers of the States. This function belongs to the supreme judiciary of the United States. It was foreseen that it would not infrequently involve the decision of questions in which whole cla.s.ses of States might have the deepest interest, which would connect themselves with party discussions, and on which the representatives of the States in the national legislature would be likely to share in the feelings, and even in the pa.s.sions, of their const.i.tuents.

There could be no security for a judiciary called upon to decide such questions, if they were to be subject to a power of removal by the other two branches of the government. Their commissions might make them theoretically independent, but practically they could be removed at the pleasure of those whom they might have offended. In truth, there is no State in this Union where such a power of removal is vested without qualification in the legislative and executive departments, in which the judges can be said to hold their commissions during good behavior, unless that power is construed to embrace only those cases of palpable incapacity in which an impeachment would be unnecessary or impracticable. As a naked and unqualified power, it is repugnant to the tenure of good behavior. It was so regarded in the Convention which framed the Const.i.tution of the United States, where a proposition to introduce it received the vote of the single State of Connecticut only. (Madison, Elliot, V. 481, 482.)

FOOTNOTES:

[31] Adopted by the votes of eight States against two,--Connecticut and Maryland voting in the negative.

[32] Pennsylvania, Maryland, _ay_, 2; Ma.s.sachusetts, Connecticut, New York, Delaware, Virginia, North Carolina, South Carolina, Georgia, _no_, 8.

[33] Pennsylvania and Maryland, _no_.

[34] New York, Delaware, and Maryland, _no_.

[35] Nine States voted against it, and one (Delaware) was divided.

[36] The Federalist, No. 21.

[37] Madison, Elliot, V. p. 140.

[38] Eight States in the affirmative, two in the negative, and one divided.

[39] This was afterwards applied to the judges of the inferior courts also.

[40] Act 12 & 13 William III. ch. 2.

[41] Act 1 Geo. III. ch. 23.

[42] This was afterwards stricken out.

CHAPTER IV.

ADMISSION OF NEW STATES.--GUARANTY OF REPUBLICAN GOVERNMENT.--POWER OF AMENDMENT.--OATH TO SUPPORT THE NEW SYSTEM.--RATIFICATION.

Having settled a general plan for the organization of the three great departments of government, the committee next proceeded to provide for certain other objects of primary importance, the necessity for which had been demonstrated by the past history of the Confederacy. The first of these was the admission of new States into the Union.

It had long been apparent, that the time would sooner or later arrive when the limits of the United States must be extended, and the number of the States increased. Circ.u.mstances had made it impossible that the benefits and privileges of the Union should be confined to the original thirteen communities by whom it had been established.

Population had begun to press westward from the Atlantic States with the energy and enterprise that have marked the Anglo-American character since the first occupation of the country. Wherever the hardy pioneers of civilization penetrated into the wilderness of the Northwest, they settled upon lands embraced by those shadowy boundaries which carried the territorial claims of some of the older States into the region beyond the Ohio. Circ.u.mstances, already detailed in a former part of this work, had compelled a surrender of these territorial claims to the United States; and in the efforts made by Congress, both before and after the cessions had been completed, to provide for the establishment of new States, and for their admission into the Union, we have already traced one of the great defects of the Confederation, which rendered it incapable of meeting the exigencies created by this inevitable expansion of the country.[43]

In the year 1784, when Mr. Jefferson brought into Congress a measure for the organization and admission of new States, to be formed upon the territories that had been or might thereafter be ceded to the United States, he seems to have considered that the Articles of Confederation authorized the admission of new States formed out of territory that had belonged to a State already in the Union, by a vote of nine States in Congress. But a majority of the States in Congress evidently regarded the power of admission as doubtful; and although they pa.s.sed the resolves for the admission of new States,--princ.i.p.ally because it was extremely important to invite cessions of Western territory,--they left the provision as to the mode of admission so indefinite, that the whole question of power would have to be opened and decided on the first application that might be made by a State to be admitted into the Union.[44]

When the Ordinance of 1787 was formed, it made provision for the establishment of new States in the territory, and declared that, when any of them should have sixty thousand free inhabitants, it should be admitted into Congress on an equal footing with the original States.

But the mode of admission was not prescribed. The power to admit was a.s.sumed, and no rule of voting on the question of admission was referred to. The probability is, that Congress antic.i.p.ated at this time that a definite const.i.tutional power would be provided by the Convention that had been summoned to revise the federal system. This power was embraced in the plan adopted in the committee of the whole of that body, by a resolve which declared "that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole." In what mode this provision was made will be seen hereafter, when we come to examine the framework of the Const.i.tution.

Another of the new powers now proposed to be given to the Union was that of protecting and upholding the governments of the States. I have already had occasion to explain the relations of the Confederation to its members in a time of internal disturbance and peril; and have given to the incapacity of that government to afford any aid in such emergencies great prominence among the causes which led to the revision of the federal system.[45] Under that system the States had been so completely sovereign, and so independent of each other in all that related to their internal concerns, that the government of any one of them might have been subverted without the possibility of an authorized and regulated interference by the rest. The const.i.tutional and republican liberty that had been established in these States after the Revolution had freed them from the dominion of England, was at that period a new and untried experiment; and in order that we of this generation may be able to appreciate the importance of the guaranty proposed to be introduced into the Const.i.tution of the United States, it is necessary for us to look somewhat farther than the particular circ.u.mstances of the commotions in New England that marked the year 1787 as an era of especial danger to these republican governments. It is, in fact, necessary for us to remember the contemporaneous history of Europe, and to observe how the events that were taking place in the Old World necessarily acted upon our condition, prospects, and welfare.

The French Revolution, consummated in 1791 by the execution of the King, was already begun when the Const.i.tution of the United States went into operation. No one who has examined the history of the first years of our present national government, can fail to have been impressed with the dangers which the administration of our domestic affairs incurred of becoming complicated with the politics of Europe.

As in all other countries, so in America, the events and progress of the Revolution in France found sympathy or reprobation, according to the natural tendencies, the previous a.s.sociations, and the political sentiments of individuals. But in the United States there was a peculiar and predisposing cause for the liveliest interest in the success of the principles that were believed, by large ma.s.ses of the people, to be involved in the French Revolution. Our own struggles for liberty, our bold and successful a.s.sertion of the rights of man, and our achievement of the means and opportunity of self-government, had evidently and strikingly acted upon France. The people of the United States were fully sensible of this; and transferring to the French nation the debt of grat.i.tude for the aid which had flowed to us in the first instance from their government without any special influence of their own, large numbers of our people became warmly enlisted in the cause of that Revolution, of which the early promise seemed so encouraging to the best hopes of mankind, and the full development of which first ruined the interests of liberty, in the wanton excesses of anarchy and national ambition, and finally crushed them beneath the usurpations and necessities of military despotism. On the other hand, the more cautious--who, if they had not from the first looked with distrust upon the whole movement of the Revolutionary party in France, very soon believed that it could result in no real benefit to France or to the world--tended strongly and naturally to the side of those governments with which the leaders of the Revolution had to contend.

In consequence of this state of feeling among different portions of the people of the United States, with reference to French affairs, and of the conduct of France and England towards ourselves, the administration of Was.h.i.+ngton had great difficulty both in preserving the neutrality of the country, and in excluding foreign influence and interference in our domestic affairs.

Had this state of things, which followed immediately after the inauguration of our new government, found us still under the Confederation, there can be no doubt that our condition would have afforded to the Revolutionary party in France the means not only of disseminating their principles among us, but also of overturning any of the inst.i.tutions of the weaker States which might have stood in the way of their acquiring an influence in America. Yet what form or principle of government is there in the world, that more imperatively requires all foreign or external influence to be repelled, than our own republican system, of which it is a cardinal doctrine that every inst.i.tution and every law must express the uncontrolled and spontaneous will of a majority of the people who const.i.tute the political society? Other governments may be upheld by the interference of their neighbors; other systems may require, and perhaps rightfully admit, foreign influence. Ours demand an absolute immunity from foreign control, and can exist only when the authority of the people is made absolutely free. That their authority should be made and kept free to act upon the principles that enable it to operate with certainty and safety, it requires the guaranty of a system that rests upon the same principles, is committed to the same destiny, is itself const.i.tuted by American power, and is created for the express purpose of preserving the republican form, the theory and the right of self-government.

Such was the purpose of the framers of the Const.i.tution, when, in this early stage of their deliberations, they determined that a republican const.i.tution should be guaranteed by the United States to each of the States.[46] The object of this provision was, to secure to the people of each State the power of governing their own community, through the action of a majority, according to the fundamental rules which they might prescribe for ascertaining the public will. The insurrection in Ma.s.sachusetts, then just suppressed, had made the dangers that surround this theory of government painfully apparent. It had demonstrated the possibility that a minority might become in reality the ruling power. Fortunately, no foreign interference had then intervened; but a very few years only elapsed, before a crisis occurred, in which the inst.i.tutions of the States would have been quite unable to withstand the shocks proceeding from the French Revolution, if the government of the Union had not been armed with the power of protecting and upholding them.