cil. To turn a man out of office is an exercise neither of legislative nor of judicial power. The advice of the senate does not make the appointment; the president appoints: there are certain restrictions in certain cases, but the restriction is as to the appointment and not as to the removal." * One question on the qualifications of the president was among the last to be decided. On the twenty-second of August the committee of detail, fixing the requisite age of the president at thirty-five, on their own motion and for the first time required that the president should be a citizen of the United States, and should have been an inhabitant of them for twentyone years. The idea then arose that no number of years could properly prepare a foreigner for the office of president; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, the committee of states who were charged with all unfinished business proposed, on the fourth of September, that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, should be eligible to the office of president," and for the foreign-born proposed a reduction of the requisite years of residence to fourteen. On the seventh of September the modification, with the restriction as to the age of the president, was unanimously adopted. No majorities of the legislature could force a president to retire before the end of his term; but he might be impeached by the house of representatives for treason, bribery, or other high crimes and misdemeanors. The tribunal for his arraignment was at first the supreme court of the United States; but they would be few in number; the president, after condemnation, might be further amenable to them; and besides, they would be of his appointment. Hamilton had suggested a forum composed of the chief justice of each state. Contrary to the opinion of Madison, the English precedent was followed, and the senate was made the court to try all officers liable to impeachment; and, on conviction by a two thirds vote, to remove them. As the vice-president, on the president's removal, * MS. report of Ellsworth's speech by William Paterson. Gilpin, 1398; Elliot, 462. Gilpin, 892, 1158; Elliot, 205, 342. would succeed to his place, the chief justice was directed to preside on the trial of the president. At so late a day as the fourteenth of September, Rutledge and Gouverneur Morris moved that persons impeached be suspended from their offices until they be tried and acquitted; but Madison defeated the proposition by pointing out that this intermediate suspension would put it in the power of one branch only to vote a temporary removal of the existing magistrate.* Judgment in cases of impeachment could extend only to removal from office and disqualification; but the party remained liable to indictment, trial, and punishment, according to law. The trial of all crimes, except in cases of impeachment, could be only by jury. *Gilpin, 1572; Elliot, 512. CHAPTER X. THE FEDERAL JUDICIARY. AUGUST AND SEPTEMBER 1787. THE resolution on the federal judiciary which went from the convention to the committee of detail purposely described the extent of its jurisdiction in vague and general terms. The very able lawyers on that committee, Rutledge, Wilson, Randolph, and Ellsworth, proceeding with equal boldness and precision, shrinking from aggressions on the rights of the states and yet entertaining efficient and comprehensive designs, brought in a report, which caused little diversity of opinion, and was held to need no essential amendment. But on one point they kept silence. A deeply-seated dread of danger from hasty legislation pervaded the mind of the convention; and Mason, Madison, and others persistently desired to vest in the supreme court a revisionary power over the acts of congress, with an independent negative, or a negative in conjunction with the executive. Though the measure had been repeatedly brought forward and as often put aside, Madison, on the fifteenth of August, proposed once more that "Every bill which shall have passed the two houses shall, before it becomes a law, be severally presented to the president of the United States, and to the judges of the supreme court, for the revision of each;" the veto of the judges not to be overthrown by less than two thirds, nor, if the president joined them, by less than three fourths of each house. He was seconded by Wilson. Charles Pinckney opposed the interference of the judges in legislation, because it would involve them in the conflict of Gilpin, 1332; Elliot, 428. * parties and tinge their opinions before their action in court. "The judiciary," said John Francis Mercer of Maryland, "ought to be separate from the legislative and independent of it. I disapprove the doctrine that the judges should, as expositors of the constitution, have authority to declare a law void. Laws ought to be well and cautiously made, and then to be uncontrollable." To the regret of Gouverneur Morris, the motion of Madison was supported only by Maryland, Delaware, and Virginia. Dickinson was strongly impressed with the objection to the power of the judges to set aside the law. He thought no such power ought to exist, but was at a loss for a substitute. "The justiciary of Aragon," he observed, "became by degrees the law-giver." + On the morning of the twentieth Charles Pinckney submitted numerous propositions; among them was one that "Each branch of the legislature, as well as the supreme executive, shall have authority to require the opinions of the supreme judicial court upon important questions of law, and upon solemn occasions." This article, as well as the rest, was referred to the committee of detail, without debate or consideration by the house, and was never again heard of. On the twenty-seventh the article on the judiciary reported by the committee of detail was taken up; and it was agreed that "the judicial power of the United States shall be vested in one supreme court, and such inferior courts as shall, when necessary, from time to time, be constituted by the legislature of the United States." # "The judges of the supreme court, and of the inferior courts, shall hold their offices during good behavior. They shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." Judges of inferior courts were clothed with the same independence of the two other branches of the government as the judges of the supreme court. Dickinson thought that the tenure of office was made too absolute; and, following the example of Great Britain and Massachusetts, he desired that the judges should be removable * Gilpin, 1333; Elliot, 429. Gilpin, 1334; Elliot, 429. Gilpin, 1365; Elliot, 445; i., 249. #Gilpin, 1485; Elliot, 481. | Gilpin, 1437; Elliot, 482. by the executive on application of the senate and the house of representatives.* "If the supreme court," said Rutledge, "is to judge between the United States and particular states, this alone is an insuperable objection to the motion." The clause gained no vote but that of Connecticut, Massachusetts being absent. In England the highest judicial officer is liable to change with every change of administration, and every one may be removed on the request of a majority in each house of parliament; every judge of the United States, from the highest to the lowest, is an officer for life, unless on impeachment he should be convicted by the vote of two thirds of the senate. The judicial power was by a motion of Johnson extended to cases in law and equity. He further proposed to extend it "to all cases arising under the constitution ;" and the motion was agreed to without dissent, because in the opinion of the convention the jurisdiction given was constructively limited to cases of a judiciary nature.† In this way Madison's scheme of restraining unconstitutional legislation of the states by reserving to the legislature of the union a veto on every act of state legislation was finally abandoned; and the power of revising and reversing a clause of a state law that conflicted with the federal constitution was confided exclusively to the federal judiciary, but only when a case should be properly brought before the court. The decision of the court in all cases within its jurisdiction is final between the parties to a suit, and must be carried into effect by the proper officers; but, as an interpretation of the constitution, it does not bind the president or the legislature of the United States. Under the same qualification the constitution gives to the judges the power to compare any act of congress with the constitution. But the supreme bench can set aside in an act of congress or of a state only that which is at variance with the constitution; if it be merely one clause, or even but one word, they can overrule that word or that clause, and no The whole law can never be set aside unless every part of it is tainted with unconstitutionality. + more. * Rutledge next observed that the jurisdiction of the court + Gilpin, 1438, 1439; Elliot, 483. Gilpin, 1436; Elliot, 481. Curtis in Howard, xix., 628. |