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Article 3, Section 1

Document 26

St. George Tucker, Blackstone's Commentaries 1:App. 350--61; 4:App. 23--30


III. The constitution and powers of the judiciary department of the federal government have been equally the subject of applause and censure; of confidence and jealousy. The unexceptionable mode of appointing the judges, and their constitutional independence of every other branch of the government merit an eulogium, which all would have concurred in bestowing on this part of the constitution of the United States, had not the powers of that department been extended to objects which might hazard the tranquility of the union in attempting to secure it. No one doubted the necessity and propriety of a federal judiciary, where an ultimate decision might be had upon such questions as might arise under the law of nations, and eventually embroil the American nation with other sovereign powers: nor was it doubted that such a tribunal was necessary to decide such differences as might possibly arise between the several members of the confederacy, or between parties claiming lands under grants from different states. But the objects of the federal jurisdiction were originally far more numerous; extending to "all cases in law and equity arising under the constitution, the laws of the United States, and treaties made, or to be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; and 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." "These objects," a writer on the subject remarks, "are so numerous, and the shades of distinction between civil causes are oftentimes so slight, that it is more than probable the state judicatories will be wholly superceded; for in contests about jurisdiction, the federal court, as the most powerful, will ever prevail." This conclusion will not appear to be ill-founded, if we advert to the ingenious fictions which have been from time to time adopted in the courts of Great Britain, in order to countenance the claim of jurisdiction. But more solid objections seemed to arise from the want of a sufficient security for the liberty of the citizen in criminal prosecutions: the defect of an adequate provision for the trial by jury in civil cases; and the burthens and mischiefs which might arise from the re-examination of facts, upon an appeal. These objections, however, seem to be completely removed by the amendments proposed by the first congress, and since ratified, and made a part of the constitution. Another important objection has been likewise in some degree obviated, by the act of 1 Cong. 1 Sess. c. 20. §. 11, which declares, that no district or circuit court shall have cognizance of any suit upon a promissory note, or other chose in action in favour of an assignee, except in cases of foreign bills of exchange, unless a suit might have been prosecuted in such court if no assignment had been made: it is, however, to be wished, that this provison had formed a part of the amendments to the constitution, which were proposed at the same session, since the objection, upon constitutional grounds, still remains: more especially, as a very serious attempt was made during the last session of the sixth congress to repeal this legislative provision. But the grand objection, that the states were made subject to the action of an individual, still remained for several years, notwithstanding the concurring dissent of several states at the time of accepting the constitution. Nor was it till after several of the states had actually been sued in the federal courts, that the third congress proposed an amendment, which declares, "that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by the citizens of another state, or by the citizens or subjects of a foreign state." This amendment having been duly ratified now forms a part of the federal constitution. It is well calculated to secure the peace of the confederacy from the dangers which the former power might have produced, had any compulsory method been adopted for carrying into effect the judgment of a federal court against a state, at the suit of an individual. But whilst the propriety of the amendment is acknowledged, candor requires a further acknowledgment, that in order to render the judicial power completely efficacious, both in the federal and in the state governments, some mode ought to be provided, by which a pecuniary right, established by the judicial sentence of a court against a state, or against the government of the United States, may be enforced. It is believed, that instances might be adduced, where, although such rights have been judicially established, the claimants have not received any benefit from the judgment in their favour, because the legislature have neglected (perhaps willfully) to provide a fund, or make the necessary appropriation required by the constitution, for the discharge of the debt. In this instance, the constitutions both of the federal and state governments seem to stand in need of reform. For what avails it, that an impartial tribunal have decided, that a debt is due from the public to an individual, if those who hold the purse-strings of the government, may nevertheless refuse the payment of a just debt?

But whatever objection may be made to the extent of the judicial power of the federal government; in other respects, as it is now organized, and limited by the constitution itself, by the amendments before mentioned, and by the act referred to, it seems worthy of every encomium, that has ever been pronounced upon the judiciary of Great Britain, to which it's constitution is in no respect inferior; being, indeed, in all respects assimilated to it, with the addition of a constitutional, instead of a legal independence, only. Whatever then has been said by Baron Montesquieu, De Lolme, or Judge Blackstone, or any other writer, on the security derived to the subject from the independence of the judiciary of Great Britain, will apply at least as forcibly to that of the United States. We may go still further. In England the judiciary may be overwhelmed by a combination between the executive and the legislature. In America (according to the true theory of our constitution,) it is rendered absolutely independent of, and superior to the attempts of both, to control, or crush it: First, by the tenure of office, which is during good behaviour; these words (by a long train of decisions in England, even as far back as the reign of Edward the third) in all commissions and grants, public or private, importing an office, or estate, for the life of the grantee, determinable only by his death, or breach of good behaviour. Secondly, by the independence of the judges, in respect to their salaries, which cannot be diminished. Thirdly, by the letter of the constitution which defines and limits the powers of the several co-ordinate branches of the government; and the spirit of it, which forbids any attempt on the part of either to subvert the constitutional independence of the others. Lastly, by that uncontrollable authority in all cases of litigation, criminal or civil, which, from the very nature of things is exclusively vested in this department, and extends to every supposable case which can affect the life, liberty, or property of the citizens of America under the authority of the federal constitution, and laws, except in the case of an impeachment.

The American constitutions appear to be the first in which this absolute independence of the judiciary has formed one of the fundamental principles of the government. Doctor Rutherforth considers the judiciary as a branch only, of the executive authority; and such, in strictness, perhaps, it is in other countries, it's province being to advise the executive, rather than to act independently of it: thus when Titius demands a debt, or a parcel of land of Sempronius, the judgment of the court is, it's advice to the executive, to whom the execution of the laws appertains, to levy the debt for the plaintiff, or put him in possession of the lands which he claims, or to dismiss his demand as unjust and ill founded. So also if Titius be accused of treason, murder, or other crime, and be thereof convicted, the judgment of the court, is it's advice in what manner he shall be punished according to law; which advice is to be carried into effect by the executive officer. Or if he be acquitted, the judgment of the court is it's advice that he be discharged from his confinement, and from further prosecution. In this sense it is, that the judges of the courts of law in England are reckoned among the number of the king's councils, they being his advisers in all cases where the subject matter is of a legal nature. But in the United States of America, the judicial power is a distinct, separate, independent, and co-ordinate branch of the government; expressly recognised as such in our state bill of rights, and constitution, and demonstrably so, likewise, by the federal constitution, from which the courts of the United States derive all their powers, in like manner as the legislative and executive departments derive theirs. The obligation which the constitution imposes upon the judiciary department to support the constitution of the United States, would be nugatory, if it were dependent upon either of the other branches of the government, or in any manner subject to their control, since such control might operate to the destruction, instead of the support, of the constitution. Nor can it escape observation, that to require such an oath on the part of the judges, on the one hand, and yet suppose them bound by acts of the legislature, which may violate the constitution which they have sworn to support, carries with it such a degree of impiety, as well as absurdity, as no man who pays any regard to the obligations of an oath can be supposed either to contend for, or to defend.

This absolute independence of the judiciary, both of the executive and the legislative departments, which I contend is to be found, both in the letter, and spirit of our constitutions, is not less necessary to the liberty and security of the citizen, and his property, in a republican government, than in a monarchy: if in the latter, the will of the prince may be considered as likely to influence the conduct of judges created occasionally, and holding their offices only during his pleasure, more especially in cases where a criminal prosecution may be carried on by his orders, and supported by his influence; in a republic, on the other hand, the violence and malignity of party spirit, as well in the legislature, as in the executive, requires not less the intervention of a calm, temperate, upright, and independent judiciary, to prevent that violence and malignity from exerting itself "to crush in dust and ashes" all opponents to it's tyrannical administration, or ambitious projects. Such an independence can never be perfectly attained, but by a constitutional tenure of office, equally independent of the frowns and smiles of the other branches of the government. Judges ought not only to be incapable of holding any other office at the same time, but even of appointment to any but a judicial office. For the hope of favour is always more alluring, and generally more dangerous, than the fear of offending. In England, according to the principles of the common law, a judge cannot hold any other office; and according to the practice there for more than a century, no instance can, I believe, be shewn, where a judge has been appointed to any other than a judicial office, unless it be the honorary post of privy counsellor, to which no emolument is attached. And even this honorary distinction is seldom conferred but upon the chief justice of the king's bench, if I have been rightly informed1 . To this cause, not less than to the tenure of their offices during good behaviour, may we ascribe that pre-eminent integrity, which amidst surrounding corruption, beams with genuine lustre from the English courts of judicature, as from the sun through surrounding clouds, and mists. To emulate both their wisdom and integrity is an ambition worthy of the greatest characters in any country.

If we consider the nature of the judicial authority, and the manner in which it operates, we shall discover that it cannot, of itself, oppress any individual; for the executive authority must lend it's aid in every instance where oppression can ensue from it's decisions: whilst on the contrary, it's decisions in favour of the citizen are carried into instantaneous effect, by delivering him from the custody and restraint of the executive officer, the moment that an acquittal is pronounced. And herein consists one of the great excellencies of our constitution: that no individual can be oppressed whilst this branch of the government remains independent, and uncorrupted; it being a necessary check upon the encroachments, or usurpations of power, by either of the other. Thus, if the legislature should pass a law dangerous to the liberties of the people, the judiciary are bound to pronounce, not only whether the party accused hath been guilty of any violation of it, but whether such a law be permitted by the constitution. If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience; or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act. If an individual be persecuted by the executive authority, (as if any alien, the subject of a nation with whom the United States were at that time at peace, had been imprisoned by order of the president under the authority of the alien act, 5 Cong. c. 75) it is then the province of the judiciary to decide whether there be any law that authorises the proceedings against him, and if there be none, to acquit him, not only of the present, but of all future prosecutions for the same cause: or if there be, then to examine it's validity under the constitution, as before-mentioned. The power of pardon, which is vested in the executive, in it's turn, constitutes a proper check upon the too great rigor, or abuse of power in the judiciary department. On this circumstance, however, no great stress ought to be laid; since in criminal prosecutions, the executive is in the eye of the law, always plaintiff; and where the prosecution is carried on by it's direction, the purity of the judiciary is the only security for the rights of the citizen. The judiciary, therefore, is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing it's shield between him and the sword of usurped authority, the darts of oppression, and the shafts of faction and violence. Let us see in what manner this protection, is thus confided to the judiciary department by the constitution.

1. First, then; the judicial power of the United States extends to all cases in law and equity, arising under the constitution, the laws of the United States, and treaties made by their authority. 2. No person shall be deprived of life, liberty, or property, (and these are the objects of all rights) without due process of law; which is the peculiar province of the judiciary to furnish him with. 3. No person shall be held to answer for any crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger. . . . 4. In criminal cases the accused shall have a speedy and public trial, by an impartial jury of the state and district, where the crime shall be committed. 5. He shall be informed of the nature and cause of his accusation. 6. He shall be confronted by the witnesses against him; and 7, Shall have compulsory process for obtaining witnesses in his favour.2 8. He shall not be compelled to be a witness against himself. 9. He shall not be subject, for the same offence, to be twice put in jeopardy of life or limb. 10. He shall have the aid of counsel for his defence. 11. His person, house, papers, and effects, shall be free from search or seizure, except upon warrants issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person, or things to be seized. 12. Excessive bail shall not be required of him. 13. The benefit of the writ of habeas corpus shall not be denied him, unless in case of actual invasion, or rebellion, the public safety (of which congress are to judge, and suspend the benefit accordingly) may require the suspension of that privilege generally, and not in his particular case, only. 14. Excessive fines shall not be imposed, nor unusual punishments inflicted on him. 15. His private property shall not be taken for the public use without just compensation. 16. He shall not be convicted upon any charge of treason, unless on the testimony of two witnesses, at least, to the same overt act, or on confession in open court. In all these respects, the constitution, by a positive injunction, prescribes the duty of the judiciary department; extending it's powers, on the one hand, so far as to arrest the hand of oppression from any other quarter; and on the other prescribing limits to it's authority, which if violated would be good cause of impeachment, and of removal from office. Thus if the privilege of the writ of habeas corpus should be suspended by congress, when there was neither an invasion, nor rebellion in the United States, it would be the duty of the judiciary, nevertheless, to grant the writ, because the act of suspension in that case, being contrary to the express terms of the constitution, would be void. On the other hand, if the benefit of the writ of habeas corpus, should be granted to any person, contrary to the provisions of an act for suspending it, during the time of an invasion or rebellion, this would be a good ground for impeaching a judge who should conduct himself in that manner. So, if a judge were to instruct a jury upon the trial of a person for treason, that he might be convicted upon the testimony of a single witness, if such instruction were advisedly, and corruptly given, (and not the mere effect of mistake and misapprehension) it would furnish a good ground for impeachment, and removal of such judge from his office. And any other gross misconduct of a judge in the execution of his office may be punished in like manner.

That absolute independence of the judiciary, for which we contend is not, then, incompatible with the strictest responsibility; (for a judge is no more exempt from it than any other servant of the people, according to the true principles of the constitution;) but such an independence of the other co-ordinate branches of the government as seems absolutely necessary to secure to them the free exercise of their constitutional functions, without the hope of pleasing, or the fear of offending. And, as from the natural feebleness of the judiciary it is in continual jeopardy of being overpowered, awed, or influenced by it's coordinate branches, who have the custody of the purse and sword of the confederacy; and as nothing can contribute so much to it's firmness and independence as permanancy in office, this quality therefore may be justly regarded as an indispensable ingredient in it's constitution; and in great measure as the citadel of the public justice and the public security. Nor was it imagined that there was more than one opinion, upon this subject, in the United States, until a recent event proved the contrary. It was supposed that there could not be a doubt that those tribunals in which justice is to be dispensed according to the constitution and laws of the confederacy; in which life, liberty and property are to be decided upon; in which questions might arise as to the constitutional powers of the executive, or the constitutional obligation of an act of the legislature; and in the decision of which the judges might find themselves constrained by duty, and by their oaths, to pronounce against the authority of either, should be stable and permanent; and not dependent upon the will of the executive or legislature, or both, for their existence. That without this degree of permanence, the tenure of office during good behaviour, could not secure to that department the necessary firmness to meet unshaken every question, and to decide as justice and the constitution should dictate without regard to consequences. These considerations induced an opinion which it was presumed was general, if not universal, that the power vested in congress to erect from time to time, tribunals inferior to the supreme court, did not authorise them, at pleasure, to demolish them. Being built upon the rock of the constitution, their foundations were supposed to partake of it's permanency, and to be equally incapable of being shaken by the other branches of the government. But a different construction of the constitution has lately prevailed; it has been determined that a power to ordain and establish from time to time, carries with it a discretionary power to discontinue, or demolish. That although the tenure of office be, during good behaviour, this does not prevent the separation of the office from the officer, by putting down the office; but only secures to the officer his station, upon the terms of good behaviour, so long as the office itself remains. . . . Painful indeed is the remark, that this interpretation seems calculated to subvert one of the fundamental pillars of free governments, and to have laid the foundation of one of the most dangerous political schisms that has ever happened in the United States of America.

. . . . .

By the constitution of the United States, it is declared, that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress may, from time to time, ordain and establish; the judges of which shall hold their office during good behaviour, and receive a salary which shall not be diminished during their continuance in office. The judicial power extends to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made under their authority: to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to those between two or more states; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state and foreign states. In the original frame of the constitution, the judicial power was still more extensive; but an amendment has been proposed and ratified, by which it is declared that the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state. Amendments to the constitution of the United States, Art. 13.

The judicial courts of the United states, as organized by the act of 1 Cong. 1 Sess. c. 20, consisted, first, of a district court in each state, and in that part of Massachusetts which is called the province of Maine, a single judge being appointed for each district, who was by law required to reside within the same; these courts held four sessions in every year. Secondly, of a circuit court; which held two sessions annually in each district, and consisted of two judges of the supreme court who alternately rode the circuits, together with the judge of the district court, or any two of them. But for the convenience of the judges of the supreme court, on whom the duty was founded to fall very hard, a subsequent act required the attendance of one of them only at each circuit court: and, thirdly, of a supreme court, consisting of a chief justice, and five associate justices, which held two sessions annually at the seat of government.

During the second session of the sixth congress a very extensive alteration in the system was proposed, and carried into effect by an act passed on the thirteenth day of February 1801, which, among other provisions, divided the United States into twenty-two districts. The districts were again classed into six circuits, in each of which, (except the sixth, comprehending the districts of East Tenessee, West Tenessee, Kentucky and Ohio,) three judges, to be called circuit judges, one of whom was to be commissioned as chief judge, were authorised to be appointed, with an annual salary of two thousand dollars, each. In the the sixth circuit, one circuit judge only was to be appointed, who together with the district judges of Kentucky and Tenessee was authorised to hold the circuit courts for that circuit; and whenever the office of district judge, in those districts, respectively, should become vacant, such vacancies were to be supplied by the appointment of two additional judges, for that circuit.

The appointments authorised by this act were made by the president for the time being, altho' not more than twenty days remained of the period for which he was elected, after passing the act, which had been carried thro' congress by small majorities, after a strenuous opposition. As soon as the question had been taken and carried in the house of representatives, a member gave notice, which was laid upon the table, that at the next session he should move for a repeal of the act. Some unpopular appointments of judges, made by the president were not calculated to reconcile the opponents of the act to its passage. The question whether a succeeding congress could repeal the law, and by so doing remove the newly appointed judges from office, soon became a popular topic of discussion, in many parts of the United States. And while many who disapproved the law, were satisfied that it could not constitutionally be repealed, so as to affect the judges who held commissions under it, others either doubted, or declared themselves convinced of the constitutionalty, as well as expediency and sound policy of such a measure. Accordingly, very soon after the commencement of the first session of the seventh congress, a motion was made in the senate for the repeal of the act.

The debate was conducted with great ability in both houses successively, during a considerable portion of the session; the several speakers both in favour of the repeal, and against it, displaying a scope of talents and ingenuity in their arguments, which shewed them equally prepared to maintain their opposite opinions. The bill passed the senate by a small majority only; but the majority in favour of the repeal was much greater in the house of representatives. It received the president's assent on the eighth day of March, 1802, and it's passage, as it respects the construction of the constitution of the United States, and of that principle (supposed to be a fundamental one,) which appeared both to require and to have secured the absolute independence of the judiciary department, may be deemed one of the most important events which have taken place in congress since the adoption of the constitution. The act of the 13th Feb. 1801, 6 Cong. 2 Sess. 4. As also, another passed the third day of March, 1801, for altering the times and places of holding certain courts, 6 Cong. 2 Sess. c. 32, were totally repealed, and all acts, and parts of acts, which were in force before the passage thereof, and which by the same were either amended, explained, altered, or repealed, are thereby revived, and declared to be in as full and complete force as if those two acts had never been made. And by a subsequent act of the same session, the districts of the United States (excepting the districts of Maine, Kentucky, and Tenessee,) are formed into six circuits, of which the districts of New Hampshire, Massachusetts, and Rhode Island, constitute the first; Connecticut, New York, and Vermont the second; New Jersey and Pennsylvania the third; Maryland and Delaware the fourth; Virginia and N. Carolina the fifth; and S. Carolina and Georgia the sixth. The chief justice of the U. States, and the several associate justices of the supreme court, are assigned to these courts respectively; and together with the district judges respectively, are to hold two circuit courts annually, in each district, but if only one of them shall attend, the circuit court may be held by the judge so attending. And on every appointment hereafter made of a chief justice or associate justice of the supreme court, the judges shall allot themselves among the several courts, as they shall think fit and such allotment shall be entered upon record. And, if no allotment be made, the president may make the allotment; which he seems authorised to do in the first instance after making any appointment; and the allotment made in either case is binding until another is made.

The district courts of the United States have, exclusively of the courts of the several states, cognizance of all crimes and offences which shall be cognizable under the authority of the United States committed within their respective districts, or upon the high seas, where no other punishment is to be inflicted than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months: as also exclusive cognizance of all civil causes of admiralty and maritime jurisdiction, and of all captures made within the waters of the United States, or within a marine league of the coasts or shores thereof; of all seizures made under the laws of impost, navigation or trade of the United States, where the seizures are made on waters navigable from the sea, by vessels of ten tons burthen, within their respective districts, as well as upon the high seas: saving to the suitors in all cases the right of a common law remedy where the common law is competent to give it; and also exclusive cognizance of all seizures made on the land or other waters than those before mentioned, and of all suits for penalties and forfeitures incurred under the laws of the United States (except in cases of penalties incurred by breach of the laws imposing duties on wine licences, spirits distilled, or goods sold at auction, where the distance is more than fifty miles from the plase of holding a federal district court, which are also cognizable by the state courts as also cognizance concurrent, with the state courts of all causes where an alien sues for a tort only, in violation of the law of nations, or of any treaty of the United States; and of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs, to one hundred dollars. They have also jurisdiction, (exclusively of the state courts) of all suits against consuls or vice-consuls, except for offences above the description above mentioned. A writ of error lies from the circuit courts of the United States to these courts, where the matter in dispute is more than fifty dollars exclusive of costs. The district courts for Virginia are now held alternately at Richmond and at Norfolk, on the third Tuesday in December, March, June and September, yearly, in addition to which, the district judge hath power to hold special courts at either of those places, or at any other place in the district, as the nature of the business may require.

The circuit courts of the United States, hold two sessions every year in each district: that for Virginia, was formerly held alternately at Williamsburg and Charlottesville, but is now stationary at Richmond, and sits on the twenty-second days of May and November, yearly. The present chief justice of the United States is allotted to this circuit, and that of North-Carolina. The circuit courts now consist of one judge of the supreme court of the United States, according to the allotment made by the act of 7 Cong. 1 Sess. c. 31, and the district judge of the district in which the court is held; but if one of the judges only attend, he may hold the court as was before mentioned. In addition to the stated sessions of these courts, the judges have power to appoint and hold special sessions for the trial of criminals, at any other time and place within the district as convenience may require. These courts have original cognizance concurrent with the state courts, in all suits at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the value of five hundred dollars; and the United States are plaintiffs, or an alien is a party; or the suit is between a citizen of the state where the suit is brought, and a citizen of another state. They have also exclusive cognizance of all crimes and offences cognizable, under the authority of the United States, except where the laws of the United States may otherwise direct, and concurrent jurisdiction with the district courts of the United States, of the crimes and offences cognizable therein. But no person can be arrested in one district, for trial in another, in any civil action, and no civil suit can be brought therein, against an inhabitant of the United States, unless he be an inhabitant of the district, or found therein at the time of serving the writ; nor can these courts take cognizance of any suit, brought by an assignee of a promisory note, or other chose in action, unless a suit might have been prosecuted therein if no assignment had been made, except in cases of foreign bills of exchange. Suits cognizable in these courts, if commenced in a state court against an alien, or a citizen of another state, or if the title of lands be concerned, and the value of the matter in dispute exceeds five hundred dollars, may on certain conditions be removed therein for trial. A writ of error in the nature of an appeal, where the matter in dispute exceeds two thousand dollars, lies from the supreme court of the United States to these courts.

In all cases removed, by appeal or writ of error, from the district courts to the circuit courts, judgment shall be rendered in conformity to the opinion of the judges of the supreme court, presiding at the circuit courts. And in case of disagreement in opinion between the judges presiding in the circuit courts, in any other case, the point upon which the disagreement shall happen, shall, during the same term, upon request of either party, be stated under the direction of the judges, and certified under the seal of the court to the supreme court at their next session, and shall be there finally decided, and the decision shall be remitted to the circuit court and there entered of record, and have effect according to the nature of the judgment or order of the supreme court. But the cause may still proceed in the circuit court, if, in the opinion of the court, further proceedings can be had, without prejudice to the merits. It is further provided that imprisonments shall not be allowed, nor punishment in any case inflicted, where the judges of the circuit court are divided in opinion upon the question touching such punishment or imprisonment.

The supreme court of the United States has jurisdiction exclusively, in all such suits or proceedings against ambassadors or other public ministers, or their domestics, or domestic servants, as a court of law can exercise consistently with the law of nations; and original, but not exclusive, jurisdiction, of all suits brought by ambassadors or other public ministers, or in which a consul or vice consul shall be a party. This court hath likewise power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus to any courts appointed or persons holding office under the United States. A writ of error lies from this court to the highest court of law or equity of a state, in which a decision in the suit can be had. In any suit where the validity of a treaty, or a statute of, or an authority exercised under, the United States is called in question, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where the construction of any clause in the constitution, or of a treaty, or statute of, or commission held under, the United States is drawn in question, and the decision is against the right, title, privity, or exemption set up, or claimed by either party under the same. But no other error can be assigned but such as immediately respects the above-mentioned questions.

All the courts of the United States have power to issue writs of scire facias, habeas corpus, and all other writs not especially provided for, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. The judges both of the supreme and district courts, have likewise power to issue writs of habeas corpus, where the prisoner is in custody under, or by colour of the authority of, the United States.

The supreme court is hereafter to be holden at Washington, the present seat of government of the United States, on the first Monday in February annually, by any four of the justices thereof; but one or more may make any orders touching any suit preparatory to the trial or decision thereof; and if four justices do not attend within ten days, the court shall be continued over to the next stated session. It is moreover made the duty of the associate justice resident within the fourth circuit, to attend at the city of Washington on the first Monday in August annually, and he is authorised to make any orders touching any suit depending in the supreme court preparatory to the trial or decision thereof: and all writs and process may be returnable to the first Monday in August, as well as to the session to be held in February; and all actions, pleas and other proceedings in any cause civil or criminal shall be continued over to the ensuing February session: so that there is now but one session of the supreme court in every year, for hearing and deciding causes therein depending, the session in August being merely preparatory.

  1. Much is it to be regretted that a similar conduct towards the judges of the courts of the United States, has not prevailed in the federal government. Already have we seen two chief justices of the United States, whose duties cannot, certainly, be performed in foreign parts, appointed envoys to distant nations, and still holding their offices in the supreme court of the federal government; offices altogether incompatible, yet held at the same time in manifest violation of every constitutional principle. For surely nothing is more incompatible with the nature of the federal government, than to suppose an office of such high trust and responsibility to have been intended as a sine cure; much less that it could have been intended as the means of extending executive influence, or of shielding the president against the effect of an impeachment. For what could more effectually strengthen the hands of an usurping president, than the power of sending into an honourable exile, the very officer whom the constitution expressly requires to preside at his trial, in case of his impeachment? To preserve the lustre of judicial purity, perfectly unsullied, it seems necessary, by an express amendment of the constitution, to disqualify the federal judges from appointment to any other than a judicial office; since such appointments have a natural tendency to excite hopes, and secure compliance, from the prospect or expectation of additional emolument, accumulated honours, or greater pre-eminence of station.

  2. On the trial of Mr. Thomas Cooper, in the federal circuit court in Pennsylvania, for a libel against the president of the United States, under the sedition law, it is said, that Mr. Cooper applied to the court for a subpoena to summon the president as a witness in his behalf, and that the court refused to grant one. Upon what principle the application was refused, (notwithstanding this article) I have never been able to obtain satisfactory information. The case was certainly delicate, and might have been perplexing.

The Founders' Constitution
Volume 4, Article 3, Section 1, Document 26
The University of Chicago Press

Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.

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