should extend to treaties made, or to be made, under the authority of the United States; and this proposal was readily adopted.* The proposition that the courts should conduct the trial of impeachments was put aside, and that duty was afterward assigned to the senate. Two clauses in the report of the committee of detail, which, after a precedent in the confederacy, confided to the senate the settlement of all controversies between two or more states respecting jurisdiction or territory, and all controversies concerning grants of the same lands by two or more states, were in the course of the discussion removed from the senate and made over to the federal courts. In constructing the judiciary, extreme care was taken to keep out of the United States courts all questions which related to matters that began and ended within a separate commonwealth. This intention is stamped alike on the federal proposals of Virginia, of New Jersey, and of Connecticut; it was carefully respected in those clauses which limit the action of the individual states. The original jurisdiction of the supreme court embraces only cases affecting ambassadors, other public ministers and consuls. Cases in which a state should be a party were added for the single purpose of authorizing a state as plaintiff to seek justice in a federal court; it was as little intended to permit individuals to bring a state there as defendant as to arraign an ambassador. The appellate power included cases of admiralty and maritime jurisdiction. In these three classes the jurisdiction of the court, original in two of them, appellate in the third, is in imperative language extended "to all cases." But as "to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens or subjects," the judicial power is limited. The section implies that only a part of the controversies in each of the enumerated classes may come under the jurisdiction of the federal courts; and it was left to *Gilpin, 1439; Elliot, 488. the federal legislature to make the discrimination which in its judgment public policy might dictate.* Here congress, and congress alone, selects the controversies to which the appellate judicial power may extend, and at its own judgment limits the right of appeal. The convention purposely made it the duty of congress to watch over the development of the system, and restrict accordingly the appellate jurisdiction. By reserving to the tribunals of the states jurisdiction over cases that may properly belong to them, it may rescue the federal court from the danger of losing its efficiency beneath larger masses of business than it can dispose of. The method of choosing the federal judiciary was settled without strife. The motion for its appointment by the executive, with the advice and consent of the senate, when first proposed, gained an equal vote; and on the seventh of September was agreed to without a division.t The supreme court was to be the "bulwark of a limited constitution against legislative encroachments." A bench of a few, selected with care by the president and senate from the nation, seemed a safer tribunal than a multitudinous assembly elected for a short period under the sway of passing currents of thought, or the intrepid fixedness of an uncompromising party. There always remains danger of erroneous judgments, arising from mistakes, imperfect investigation, the bias of previous connections, the seductions of ambition, or the instigations of surrounding opinions; and a court from which there is no appeal is apt to forget circumspection in its sense of security. The passage of a judge from the bar to the bench does not necessarily divest him of prejudices; nor chill his relations to the particular political party to which he may owe his advancement; nor blot out of his memory the great interests which he may have professionally piloted through doubtful straits; nor quiet the ambition which he is not required to renounce, even though his appointment is for life; nor cure predilections which sometimes have their seat in his own inmost nature. But the constitution retains the means of protecting itself against the errors of partial or interested judgments. In the *Story in Curtis, iii., 569; Ellsworth in Curtis, i., 243. Gilpin, 1520; Elliot, 524. Federalist, lxxviii. first place, the force of a judicial opinion of the supreme court, in so far as it is irreversible, reaches only the particular case in dispute; and to this society submits, in order to escape from anarchy in the daily routine of business. To the decision on an underlying question of constitutional law no such finality attaches. To endure, it must be right. If it is right, it will approve itself to the universal sense of the impartial. A judge who can justly lay claim to integrity will never lay claim to infallibility; but with indefatigable research will add, retract, and correct whenever more mature consideration shows the need of it.* The court is itself inferior and subordinate to the constitution; it has only a delegated authority, and every opinion contrary to the tenor of its commission is void, except as settling the case on trial. The prior act of the superior must be preferred to the subsequent act of an inferior; otherwise it might transform the limited into an unlimited constitution. When laws clash, the latest law is rightly held to express the corrected will of the legislature; but the constitution is the fundamental code, the law of laws; and where there is a conflict between the constitution and a decision of the court, the original permanent act of the superior outweighs the later act of the inferior, and retains its own supreme energy unaltered and unalterable except in the manner prescribed by the constitution itself. To say that a court, having discovered an error, should yet cling to it because it has once been delivered as its opinion, is to invest caprice with inviolability and make a wrong judgment of a servant outweigh the constitution to which he has sworn obedience. An act of the legislature at variance with the constitution is pronounced void; an opinion of the supreme court at variance with the constitution is equally so. Next to the court itself, the men who framed the constitution relied upon the power and the readiness of congress to punish through impeachment the substitution of the personal will of the judge for the law. A third influence may rise up "as the rightful interpreter of this great charter" of American rights and American power in "the good sense" + of the land, wiser than the judges alone, *Wilson's Works, i., 29. + Cooley's Constitutional Law, 224; Curtis, iv., 390. VOL. VI.-23 because it includes within itself the wisdom of the judges themselves; and this may lead either to the better instruction of the court, or to an amendment of the constitution by the collective mind of the country. The consolidation of the union was to be made visible to the nation and the world by the establishment of a seat of government for the United States under their exclusive jurisdiction; and like authority was to be exercised over all places purchased for forts, dock-yards, and other needful buildings.* It was not doubted that the government of the union should defend each state against foreign enemies and concurrently against domestic violence; and should guarantee to every one of the states the form of a republic.t Sherman hesitated about granting power to establish uniform laws on the subject of bankruptcies, lest they might be made punishable even with death. "This," said Gouverneur Morris, "is an extensive and delicate subject. I see no danger of abuse of the power by the legislature of the United States."+ On the question the clause was agreed to, Connecticut alone being in the negative. So soon as it was agreed that the states should have an equal representation in the senate, the small states ceased to be jealous of its influence on money bills; finally, on the eighth of September, it was settled that, while all bills for raising revenue should originate in the house of representatives, the senate might propose or concur with amendments as on other bills.# On the same day, just before the adjournment, Williamson strove to increase the number of the first house of representatives; and was seconded by Madison. Hamilton spoke with earnestness and anxiety for the motion. "I am," said he, "a friend to a vigorous government; at the same time I hold it essential that the popular branch of the government should rest on a broad foundation. The house of representatives is on so narrow a scale as to warrant a jealousy in the people for their * Gilpin, 740, 1218, 1295, 1612; Elliot, 130, 374, 409, 561. Gilpin, 734, 861, 1141, 1241,1621; Elliot, 128, 190, 333, 381, 564. #Gilpin, 1494, 1530, 1531; Elliot, 510, 529; Elliot, i., 285, 294, 295. liberties. The connection between the president and the senate will tend to perpetuate him by corrupt influence; on this account a numerous representation in the other branch of the legislature should be established." The motion was lost by one majority; Pennsylvania and the four states nearest her on the south being outvoted by New Jersey and the New England states at one extreme, and South Carolina and Georgia at the other.* It remained to mark out the way in which the new constitution should be ratified. The convention had shown a disinclination to ask for it the approbation of congress. Hamilton saw in the omission an indecorum, and made the rash motion. that congress, if they should agree to the constitution, should transmit it for ratification to the legislatures of the several states. Gerry seconded him.† Wilson strongly disapproved "the suspending the plan of the convention on the approbation of congress." He declared it worse than folly to rely on the concurrence of the Rhode Island members of congress. Maryland had voted, on the floor of the convention, for requiring the unanimous assent of the thirteen states to the change in the federal system; for a long time New York had not been represented; deputies from other states had spoken against the plan. "Can it then be safe to make the assent of congress necessary? We are ourselves, at the close, throwing insuperable obstacles in the way of its success." Clymer thought the proposed mode would fetter and embarrass congress; and King and Rutledge concurring with him, Hamilton's motion was supported only by Connecticut.# It was then voted, in the words of the report of the committee of detail: "This constitution shall be laid before the United States in congress assembled; and it is the opinion of this convention that it should be afterward submitted to a convention chosen in each state, under the recommendation of its legislature, in order to receive the ratification of such convention." In substance this method was never changed; in form it was removed from the constitution and imbodied in a directory resolution. * Gilpin, 1533; Elliot, 530. Gilpin, 1540; Elliot, 534. Gilpin, 1539; Elliot, 533. #Gilpin, 1541; Elliot, 534. Art. xxii. of draft of the constitution submitted to the committee of revi cion, September 10th. Gilpin, 1570; Elliot, 541. |