CHAPTER XII CREATION OF THE SUPREME COURT a Common WHEN the convention assembled in Philadelphia in the month of May, 1787, to eliminate the weaknesses of the Confederation and to correct its faults, it was evident that an agency of a judicial nature would be created, invested with the right and the duty to pass upon questions of an international nature, in order that the department of the government responsible for foreign affairs should not be embarrassed by what might be called a luxury of judicial decision, because the holdings of thirteen courts of the States on one and the same international question whereof they might take jurisdiction would embarrass the government, whatever its form might be, and prevent foreign nations from entering into relations with this government when the relations might be interpreted by one of the contracting parties in some thirteen different ways. It was also evident that this agency Necessity for of a judicial nature, for like reasons, would be entrusted with the interpre- Judiciary tation of the laws of the Union, because the right assumed and exercised by one State to interpret the meaning of a federal law meant the possibility of thirteen different interpretations, since if one State had the right to interpret such a law, all the States would possess this right; for, whatever form the Union might take, they would at least insist upon their sovereignty and equality in their relations one with another. The necessity of some kind of judicial agency of a confederate character had been recognized and had been partially met in the 9th of the Articles of Confederation, vesting the United States in Congress assembled with the right to appoint courts for the trial of piracies and felonies committed upon the high seas; for the trial and disposition of cases of capture on land and sea, and for the trial and disposition of disputes between the sovereign, free and equal States forming the Confederation. The lack of an adequate agency of a judicial nature was one of the admitted weaknesses and faults of the perpetual Union created by the Articles of Confederation. Indeed a very keen observer and one whose opinion is law in this matter declared that the want of an adequate judicial power was its greatest defect. Thus, Alexander Hamilton felt himself justified in saying in The Federalist: A circumstance, which crowns the defects of the confederation, remains yet to be mentioned-the want of a judiciary power. Laws are a dead letter, without courts to expound and define their true meaning and opera Problem of tion. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted in the last resort, to one SUPREME TRIBUNAL. Ánd this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point, as there are courts. There are endless diversities in the opinions of men. We often see not only different courts, but the judges of the same court, differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one tribunal paramount to the rest, possessing a general superintendance, and authorized to settle and declare in the last resort an uniform rule of civil justice. This is the more necessary where the frame of the government is so compounded, that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate decision, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference should happen, there would be reason to apprehend, that the provisions of the particular laws might be preferred to those of the general laws, from the deference with which men in office naturally look up to that authority to which they owe their official existence. The treaties of the United States, under the present constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which these are composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honour, their happiness, their safety, on so precarious a foundation? 1 The members of the Confederation were thus faced with the problem of devising an agent of a judicial nature which, while adequate for the purposes of the Union in its international aspect, would meet the approval of the thirteen States, holding themselves to be sovereign, free and independent. The problem was complicated by the existence of this sovereignty whereof each State considered itself to be possessed, as, in the words of Hamilton, 1 The Federalist, 1802, Vol. I, pp. 145-6. Paper xxii. In a later paper of The Federalist the principle involved in uniform determinations is thus expressed: If there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative, 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 cause arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed. (Vol. II, p. 224, Paper lxxx.) again expressed in The Federalist, "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent.” In this passage he was doubtless making a concession against his personal convictions, and lest he might seem to be renouncing in The Federalist views which he had expressed on other public occasions, he hastened to add: This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention it will remain with the states. 1 The men who met in conference in Philadelphia during the summer months of 1787 appreciated this crowning weakness of the Confederation, and their wisdom and ingenuity met and overcame the difficulties involved in the creation of a Supreme Court of a Union composed of States retaining. the powers which they did not expressly grant to the Government of the new Union, or whose exercise would not be incompatible with the powers vested in the Union, by necessary implication, or of which they had not themselves consented to renounce the exercise. The framers of the Constitution followed the example of Solon, the renowned law-giver of antiquity, who, as stated by one of the members of the Convention in the course of debate, "gave the Athenians not the best Govt. he could devise; but the best they wd. receive." 2 of Opinion There appears to have been not merely substantial but general agreement that there should be an adequate judicial agency of the States, and there seems also to have been no opposition to its creation. There was much Differences debate and difference of opinion as to whether the judiciary should have original or whether it should only have appellate jurisdiction, whether it should consist of one supreme court to which appeals should be made from the State judiciaries, or whether courts inferior to the Supreme Court should be established and vested with jurisdiction of matters of an interest to the States as a whole. There was also much difference of opinion as to the appointment of the members of the judiciary, some advocating their appointment by the legislature, others by the executive; still others, the executive in cooperation therewith. When, however, it was resolved to constitute a court for the existing States and such others as might later join or be added to the Union, the problem was solved in principle, and all other questions, however important in themselves, became matters of detail. As has been seen, there were two great plans laid before the Convention: The Two 1 Ibid., p. 238. Paper lxxxi. Documentary History of the Constitution, Vol. III, p. 68. Mr. Butler, session of June Plans 5, 1787. The Virginian one, the Virginian plan, which the small States regarded as conceived in the interest of the large States; and the other, known as the New Jersey plan, expressly conceived in the interest of the smaller States. In the matter of the judiciary there was likewise a difference between the Virginian and the New Jersey plan, but both plans advocated the creation of a judiciary. The Journal of the Convention states, in its entry of May 29, 1787, that "Mr. Randolph, one of the deputies of Virginia, laid before the house, for their consideration, sundry propositions, in writing, concerning the American confederation, and the establishment of a national government,"1 and it was ordered that, on the morrow, "the propositions this day laid before the house, for their consideration, by Mr. Randolph," be referred to the said Committee of the whole House to consider the state of the American Union. James Madison's Notes, the chief source of our knowledge of the proceedings of the Convention, give a summary of these resolutions, which must be regarded as their most authentic text, as unfortunately the original text which Mr. Randolph laid before the Convention has not been preserved other than in Mr. Madison's handwriting. According to this draft it was to be resolved "that the articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, common defence, security of liberty and general welfare.'" To effect these objects, a national legislature, consisting of two branches, was to be formed, a national executive to be instituted, and a national judiciary to be established. It is to be observed, in this connection, that the very first draft of the new instrument of government provided for the threefold division into a legislative, executive and judicial department thereof, a principle borrowed, it would appear, from Montesquieu, and regarded as a matter of faith by Americans, then as now. The article on the judiciary, as given by Madison, reads: 9. Res. that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. that the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National Journal, Acts and Proceedings of the Convention, 1787, (1819), p. 66. 1 2 Ibid., pp. 70-1. 8 Documentary History of the Constitution, Vol. III, p. 17. revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.1 On the same day the Journal contains the following entry: Mr. Charles Pinckney, one of the deputies of South Carolina, laid before the house for their consideration, the draught of a federal government to be agreed upon between the free and independent states of America.2 Unfortunately, the text of Mr. Pinckney's draft is not preserved in the Journal of the Convention in original or summary form. It was presented after Mr. Randolph's propositions, themselves preceded by a lengthy address of their proposer. It was doubtless late in the day, so that Mr. Pinckney did not have time to accompany them with an address, although he is reported by Robert Yates, in his notes of that day, as saying that "he had reduced his ideas of a new government to a system, which he read, and confessed it was grounded on the same principle as of the above resolutions." 3 In any event, the text of Mr. Pinckney's plan did not seem to impress the members present, as it was apparently not deemed of sufficient importance, then or later, to be abstracted by Mr. Madison. It is not referred to in the accounts of Mr. McHenry or Mr. Patterson, both of whom were present and made careful summaries of Mr. Randolph's proposals. It was not adopted or considered in the Conference, other than to be referred, apparently as a compliment, to the Committee of Detail along with Mr. Randolph's resolutions, in the form in which they had been amended, and the New Jersey resolutions, presented by Mr. Patterson for such consideration as the members of the Committee might care to give to them. As in the case of Mr. Randolph's original propositions, it was ordered "that the said draught be referred to the committee of the whole house appointed to consider of the state of the American union." On the following day, Mr. Randolph's resolution in favor of a national government, consisting of a legislative, judicial and executive department, was taken up, on which there is the following record in the Journal: Resolved, That a national government ought to be established, consisting of a supreme legislative, judiciary, and executive." On June 4th the Convention took up the discussion of the ninth article of Mr. Randolph's propositions, which, like the ninth article of the Confederation, dealt with a judiciary, and on this point the Journal reads: 1 Ibid., p. 19. Journal of the Convention, p. 71. Robert Yates, Secret Proceedings and Debates of the Convention, 1821, p. 97. 4 B Ibid., p. 82. |