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that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the states, in regard to their own judges.
The precautions for their responsibility, are comprised in the article respecting
impeachments. They are liable to be im. peached for mal-conduot-by-the house of representatives, and tried by the senate, and if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point, which is consistont with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges.
The want of a provision for removing the judges on account of inability, has been a subject of complaint. But all considerate men will be sensible that such a provision wonld either not be practised upon, or would be more liable to abuse, than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities, than advance the interests of justice, or the public good. The result, except in the case or fosantty, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.
The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which, it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period, in men who survive it; and when, in addition to this circumstance, we consider how fow there are who outlive the season of intellectual vigour, and how im.
probable it is that any considerable proportion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent,
and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistenco, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity, than is to be found in the imaginary danger of a superannuated bench.
NEW YORK, JUNE 27 AND JULY 1, 1788.
A FURTHER VIEW OF THE JUDICIAL DEPARTMENT, IN RELATION
TO THE EXTENT OF ITS POWERS.
To judge with accuracy of the due extent of the federal judicature, it will be necessary to consider, in the first place, what are its proper objects.
It seems scarcely to admit of controversy, that the judiciary authority of the union ought to extend to these several descriptions of cases. 1st. To all those which arise out of the laws of the Unitod States, passed in pursuance of their just and constitutional powers of legislation; 2d. To all those which concern the execution of the provisions expressly contained in the articles of union; 3d. To all those in which the United States are a party; 4th. To all those which involve the PEAOB of the CONFEDERAOY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th. To all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and lastly, to all those in which the state tribunals cannot be supposed to be impartial and unbiassed.
The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving officacy to constitutional provisions. What, for instance, would
avail rustrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them? The states, by the plan of the convention, are prohibited from doing a variety of things;' some of which are incompatible with the interests of the union, others, with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe that such prohibitions would be scrupulously rogarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either bo a direct negative on the state laws, or an authority in the federal courts, to over-rulo such as might be in manifest contravention of the articles of union. There is no third course that I can imagine. The latter appears to have boon thought by the convention preferablo to the former, and I presume will be most agreeable to the states.
As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If thers are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislativo, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydru in govornment, from which nothing but contradiction and confusion can proceed.
Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum.
The fourth point rests on this plain proposition, that the peace of the WHOLE, ought not to be left at the disposal of a PART. The union will undoubtedly be answerable to foreign powers
for the conduct of its members. And the responsibility for an injury, ought ever to be accompanied with the faculty
of preventing it. As the denial or perversion of justice by the sentences of courts, is with reason classed among the just causes of war, it will follow, that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined, between casos arising upon treaties and the laws of nations, and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the states. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty, or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the controvorsies in wbich foreigners are parties, involve national questions, that it is by far most safe, and most expedient, to refer all those in which they are concerned to the national tribunals.
The power of determining causes between two states, between one state and the citizens of another, and between the citizens of different states, is perhaps not less essential to the peace of the union, than that which has been just examined. History gives us a horrid picture of the dissentions and private wars which distracted and desolated Germany, prior to the institution of the IMPERIAL CHAMBER by Maximilian, towards the close of the fifteenth contury: and informs us, at the same time, of the vast influenco of that institution, in appeasing the disordors, and establishing tho tranquillity of tho ompire. This was a court invested with authority to decide finally all differencos among the members of the Germanic body.
A method of terminating territorial disputes between the