the other departments, it has made them amenable for any corrupt violation of their trust. The house of representatives, as

in the judicial appointments; for the Supreme Court is appointed by the governor and senate, the presidents of the circuit courts by the legislature, and the associate circuit judges are elected by the people. By the revised constitution of New York of 1845, a momentous revolution was effected in the mode of appointment, organization, and tenure of the judicial department, as well as in the appointment of officers generally. It was ordained that there should be a Court of Appeals, composed of eight judges, of whom four, to be elected by the electors of the state, for eight years, and four selected from the class of justices of the Supreme Court having the shortest time to serve; and the judges were to be so classified, that one should be elected every second year. There was to be a Supreme Court, having general jurisdiction in law and equity. The state was to be divided into eight judicial districts, and to have four justices of the Supreme Court in each district, and to be so classified, that one of the justices of each district shall go out of office at the end of every two years; and after the expiration of their terms under such classification, the term of their office shall be eight years. One or more of the judges of the Supreme Court, who is not a judge of the Court of Appeals, to be duly designated to preside at the general terms of the said courts to be held in the several districts, and any three or more of the justices (the presiding judge so designated to be one) to hold such general terms. Any one or more of them may hold special terms and Circuit Courts, and preside in courts of Oyer and Terminer in any county. The judges of the Court of Appeals and justices of the Supreme Court are to have a compensation for their services, not to be increased or diminished during their continuance in office. They are not to hold any other office or public trust, nor exercise any power of appointment to public office. The justices of the Supreme Court and judges of the Court of Appeals may be removed by concurrent resolutions of two thirds of all the members elected to the assembly, and a majority of all the members elected to the senate. All other judicial officers and justices of the peace may be removed by the senate, on the recommendation of the governor. The judges of the Court of Appeals to be elected by the electors of the state, and the justices of the Supreme Court by the electors of the several judicial districts. One county judge to be elected in each of the counties of the state, except the city of New York, to hold his office for four years, and to hold the County Court, and perform the duties of surrogate. The County Court to have no original civil jurisdiction, except in special prescribed cases. But the county judge and two justices of the peace to hold Courts of Sessions with criminal jurisdiction; and he is to receive an annual salary, to be fixed by the Board of Supervisors, and to be neither increased nor diminished during his continuance in office. Justices of the peace, for services in Courts of Sessions, to be paid a per diem allowance out of the county treasury. The legislature may provide for the election of a surrogate in counties where the population exceeds 40,000; and they may confer equity jurisdiction, in special cases, upon the county judge, and establish inferior local courts, of civil and criminal jurisdiction, in cities. Justices of the peace are to be elected in each town at their annual town meeting, whose term of office is to be four years, and they may be removed in a due manner by the county, city or state courts, as prescribed. The clerk of the Court of Appeals is to be ex officio clerk of the Supreme Court, and to be chosen by the electors of the state, and to hold his office for three years, and to be paid out of the public treasury. No judicial officer, except justices of the peace, shall receive any fees or perquisites of office.

we have already seen, is invested with the power of impeachment, and the judges may, by that process, be held to answer before the senate, and, if convicted, they may be removed from office.

This is the substance of the new judicial system, under the revised constitution of New York, and its very democratic character pervades the whole instrument. The central appointing power, with the extensive patronage which, under the prior constitutions of 1777 and 1821, existed in the governor and senate, is broken up and diffused through every part of the body politic. All offices of any moment now rest on popular election. Besides the judicial officers already mentioned, the secretary of state, comptroller, treasurer, attorney-general, a state engineer and surveyor, the canal commissioners, the inspectors of state prisons, the clerk of the Court of Appeals, sheriffs, clerks of counties, the register and clerk of the city of New York, district attorneys, and generally all local officers, are to be chosen by popular election.

The revised constitution of New York of 1846, is more democratic than any of the state constitutions in the Union, and it contains more specific restrictions and limitations on the exercise of legislative power than are anywhere to be met with. The convention seem to have most anxiously guarded against the influences of selfishness, intrigue, favoritism, and corruption, which have been supposed to haye heretofore affected the action of the legislative department. All depends now upon the discreet exercise of the right of suffrage; and as the convention, in their circular address, truly observed, "the happiness and progress of the people of this state will, under God, be in their own hands." Perhaps the most unwise feature in the revised constitution is the election, by universal suffrage, and for comparatively short periods, of all judicial officers. The convention have disregarded, in this respect, the lessons taught by the former constitutions of 1777 and 1821, as well as the wisdom of the constitution of the United States. The organization of the judicial department is not so essential as the supply of intelligent, learned, and honest judges to administer the laws. The danger to be apprehended, as all past history teaches us, in governments resting in all their parts on universal suffrage, is the spirit of faction, and the influence of active, ambitious, reckless, and unprincipled demagogues, combining, controlling, and abusing the popular voice for their own selfish purposes. Much more grievous would be such results when applied to the election of judges, for that would tend to break down and destroy the independence and integrity of the administration of justice.

The constitutional provision for making judges elective for short periods, by universal suffrage, is contagious, and every new constitutional reform or establishment tends that way. In the constitution of Wisconsin, established in 1846, the judges of the highest courts were to be elected for five years only.1

In respect to the compensation of the judges of the Superior Courts, the constitutions of the states of Maine, Rhode Island, New Jersey, Pennsylvania, Delaware, Virginia, Tennessee, South Carolina, Georgia, Florida, Alabama, Ohio, Indiana, Illinois, Michigan, Missouri, Mississippi, Arkansas, and Louisiana, either establish or direct the salaries to be fixed by law, and that they shall not be diminished during the con

1 By the constitution of Illinois, ratified in 1848, the judges of the Supreme Court are elected for a term of nine years, and the subordinate judges for a shorter term. By new constitutions of Kentucky, Louisiana, Ohio, and Iowa, the judiciary is now elective.

Extent of

II. The federal judiciary being thus established on the judicial principles which are essential to maintain that departpower. ment in a proper state of independence, and to secure the pure and vigorous administration of the law, the constitution proceeded to designate, with comprehensive precision, the objects of its jurisdiction. The judicial power extends (a) to all cases in law and equity arising under the constitution, the laws and treaties of the Union; to all cases affecting ambasadors, 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 controversies between two or more states; to controversies between a state, when plaintiff, and citizens of another state, or foreign citizens or subjects; to controversies between citizens of different states, and between citizens of the same state, claiming lands under grants of different states; and between a state or citizens * thereof, and foreign states; and between citizens and foreigners. The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from the union of these states in one national government, and they may be considered as requisite to its existence. The judicial power in every government must be coextensive with the power of legislation. It follows, as a consequence, that the judicial department of the United States is, in the last resort, the final expositor of the constitution as to all questions of a judicial nature. (b) Were there no power to interpret, pronounce, and execute the law, the government would either perish through its own imbecility, as was the case with the articles of confederation, or other

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tinuance of the judges in office. In New Hampshire, North Carolina, and Kentucky, adequate and permanent, or fixed salaries, are directed to be provided by law. In other states (and New York is one of them) the compensation of the judges, and the duration of it, rest entirely in legislative discretion; for though the statute (as in New York) may declare that the judges shall have a specified annual salary, the statute is liable, at any future time, to legislative repeal.

(a) Art. 3, sec. 2. Amendments to the Constitution, art. 11.

(b) The Federalist, Nos. 33, 39, 80. Story's Commentaries on the Constitution, vol. i. pp. 263, 360, 362, notes. Marshall, Ch. J., in Cohens v. Virginia, 6 Wheaton, 264, 384. The whole question is fully examined, and all the contemporary discussions in relation to it, placed in a striking view, in 1 Story's Commentaries on the Constitution, pp. 344-382.

powers must be assumed by the legislative body, to the destruction of liberty. That the interpretation of treaties, and the cases of foreign ministers and maritime matters, are properly confided to the federal courts, appears from the close connection those cases have with the peace of the Union, the confusion that different proceedings in the separate states would tend to produce, and the responsibility which the United States are under to foreign nations for the conduct of all its members. The other cases of enumerated jurisdiction are evidently of national concern, and they constitute one of the principal motives to union, and one of the principal cases of its necessity, which was the insurance of the domestic tranquillity. The want of a federal judiciary to embrace these important subjects, was once severely felt in the German confederacy, and disorder, license, and desolation reigned in that unhappy country, until the establishment of the imperial chamber by the Emperor Maximilian, near the close of the fifteenth century; and that jurisdiction was afterwards the great source of order and tranquillity in the Germanic body. (a)

The judicial power, as it originally stood, extended to suits prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state; but the states were not willing to submit to be arraigned as defendants before the federal courts, at the instance

of private persons, be the cause of action what it *297 might. The decision of the Supreme Court of the United States, in the case of Chisholm v. The State of Georgia, (b) decided in 1793, in which it was adjudged that a state was suable by citizens of another state, gave much dissatisfaction, and the legislature of Georgia carried their opposition to an open defiance of the judicial authority. The inexpediency of the power appeared, so great, that congress, in 1794, proposed to the states an amendment to that part of the constitution, and it was subsequently amended in this particular under the provision in the fifth article. It was declared by the amendment, (c) that the judicial power of the United States

(a) Robertson's Charles V. vol. i. pp. 183, 395, 397.
(b) 2 Dallas, 419.

(c) Amendments, art. 11.

should 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. (a) The inhibition applies only to citizens or subjects, and does not extend to suits by a state, or by foreign states or powers. (b) They retain the capacity to sue a state as it was originally granted by the constitution; and the Supreme Court has original jurisdiction in the case of suits by a foreign state against one of the members of the Union. (c)

(a) As the United States have no existence, as a political ideal being, except under the organization of the constitution and laws of the United States, it is assumed as a principle flowing from the sovereignty of the United States, that the officers of the government are not subject to suits for acts in the regular discharge of their official duties. Opinions of the Attorneys-General, (Gilpin's edit.) vol. i. 457.

(b) The Cherokee Nation v. Georgia, 5 Peters's U. S. Rep. 1. New Jersey v. New York, ibid. 284. A mandamus is a suit within the meaning of the constitution, for it is a litigation of a right in a court of justice, seeking a decision. Weston v. City Council of Charleston, 2 Peters's R. 449. Holmes v. Jennison, 15 Id. 564.

(c) Blair, J., and Cushing, J., in Chisholm v. State of Georgia, 2 Dallas, 419. That a foreign prince or state may sue in our own, as well as in the English courts of law and equity, see King of Spain v. Oliver, 1 Peters's Cir. Rep. 276. The Colombian Government v. Rothschild, 1 Simons, 104. King of Spain v. Machado, 4 Russell, 238. 1 Dow P. C. N. S. 165, S. C. No direct suit can be maintained against the United States, without the authority of an act of congress, nor can any direct judgment be awarded against them for costs. Marshal, Ch. J., in Cohens v. Virginia, 6 Wheaton, 411, 412. United States v. Clarke, 8 Peters, 444. United States v. Barney, Dist. C. Maryland, 3 Hall's L. J. 128. United States v. Wells, 2 Wash. C. C. R. 161. Opinions of the Attorneys-General, (Gilpin's edit.) vol. ii. 967, 968. But if an action be brought by the United States to recover money in the hands of a party, he may, by way of defence, set up any legal or equitable claim he has against the United States, and need not, in such case, be turned round to an application to congress. Act of congress, March 3d, 1797, c. 74, sec. 3, 4. United States v. Wilkins, 6 Wheaton, 135, 143. Walton v. United States, 9 Wheaton, 651. United States v. Macdaniel, 7 Peters's U. S. Rep. 16. United States v. Ringgold, 8 ibid. 163. United States v. Clarke, 8 ibid. 436. United States v. Robeson, 9 Peters, 319. Same v. Hawkins, 10 ibid. 125. Same v. Bank of the Metropolis, 15 Peters's U. S. Rep. 377. In the case of the late Bank of the United States, who claimed damages by way of set-off on a protested bill drawn by the United States, the Attorney-General, in an elaborate official opinion, held, that the set-off could not be allowed in a suit by the United States against the bank, for dividends due the United States and withheld. Opinions of the Attorneys-General, Nov. 28th, 1834, vol. ii. 964, 982. But in the same case of the Bank of the United States v. The United States, in 2 Howard's U. S. Rep. 711, the United States sued the bank for dividends withheld; and the bank, by way of set-off, claimed 15 per cent. damages, under the law of Maryland, (which on this point was the law at the city of Washing