Article 1, Section 8, Clause 9

Document 4

St. George Tucker, Blackstone's Commentaries 1:App. 267--68


9. Congress is moreover authorised to constitute tribunals inferior to the supreme court. [C.U.S. Art. 1. § 8.] The third article of the constitution further declares, 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 establishment of courts, is in England, a branch of the royal prerogative, which has in that country been, from time to time, very much abused; as in the establishment of the famous courts of high-commission, and of the star-chamber; two of the most infamous engines of oppression and tyranny, that ever were erected in any country. "The judges of which (as the statute for suppressing the former declares) undertook to punish, where no law did warrant, and the proceedings, and censures of which were an intollerable burthen upon the subject, and the means to introduce an arbitrary power and government." In England there are also courts of special-commission of oyer and terminer, (I do not here speak of the ordinary commissions of oyer and terminer and general gaol delivery, under which, courts are held by the judges of the courts of Westminister-hall, at the assizes, in every county,) occasionally constituted for the special purpose of trying persons accused of treason, or rebellion, the judges of which, are frequently some of the great officers of state, associated with some of the judges of Westminster-hall, and others, whose commission determines as soon as the trial is over. Most of the state trials, have been had before courts thus constituted: and the number of convictions and condemnations in those courts is a sufficient proof how very exceptionable such tribunals are: or rather how dangerous to the lives and liberties of the people, a power to select particular persons, as judges for the trial of state offences, must be, in any country, and under any possible form of government. In these cases, the offence is not only in theory, against the crown and government, but often, in fact, against the person, authority, and life of the ruling monarch. His great officers of state share with him in danger, and too probably in apprehension, and resentment. These are the judges, he selects, and from their hands expects security for himself and them. Whilst the frailties of human nature remain, can such a tribunal be deemed impartial? Wisely, then, did the constitution of the United States deny to the executive magistrate a power so truly formidable: wisely was the supreme federal legislature made the depositary of the power of establishing courts, inferior to the supreme court; and most wisely was it provided, that the judges of those courts, when once appointed by the president with the advice of the senate, should depend only on their good behaviour for their continuance in office, and be placed at once beyond the reach of hope or fear, where they might hold the balance of justice steadily in their hands.

These considerations induce a conviction in my mind, that this clause of the constitution does not authorise the establishment of occasional, or temporary courts, but courts of a permanent constitution and duration. Courts that could neither be affected in their conduct nor in their existence by the ferments or changes, or parties; and which might remain a monument to all posterity of the wisdom of that policy, which separates the judiciary from the executive and legislative departments, and places it beyond the influence or control of either.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 9, Document 4
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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