IX Sect. 1. The Senate of the United States shall have power appoint. . . . Judges of the supreme Court. Sect. 2. In all disputes and controversies now subsisting, or that may hereafter subsist between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers. Whenever the Legislature, or the Executive authority, or lawful Agent of any State, in controversy with another, shall by memorial to the Senate, state the matter in question, and apply for a hearing; notice of such memorial and application shall be given by order of the Senate, to the Legislature or the Executive authority of the other State in Controversy. The Senate shall also assign a day for the appearance of the parties, by their agents, before the House. The Agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a Court for hearing and determining the matter in question. But if the Agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as the Senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them shall be commissioners or Judges to hear and finally determine the controversy; provided a majority of the Judges, who shall hear the cause, agree in the determination. If either party shall neglect to attend at the day assigned, without shewing sufficient reasons for not attending, or being present shall refuse to strike, the Senate shall proceed to nominate three persons out of each State, and the Clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse to submit to the authority of such Court; or shall not appear to prosecute or defend their claim or cause, the Court shall nevertheless proceed to pronounce judgment. The judgment shall be final and conclusive. The proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public records, for the security of the parties concerned. Every Commissioner shall, before he sit in judgment, take an oath, to be administered by one of the Judges of the Supreme or Superior Court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward.” XI Sect. 1. The Judicial Power of the United States shall be vested in one. Supreme Court, and in such inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States. Sect. 2. The Judges of the Supreme Court, and of the Inferior Courts, shall hold their offices during good behavior. They shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Sect. 3. The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States; to all cases affecting Ambassadors, other Public Ministers and Consuls; to the trial of impeachments of Officers of the United States; to all cases of Admiralty and maritime jurisdiction; to controversies between two or more States, (except such as shall regard Territory or Jurisdiction) between a State and Citizens of another State, between Citizens of different States, and between a State or the Citizens thereof and foreign States, citizens or subjects. In cases of impeachment, cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be party, this jurisdiction shall be original. In all the other cases before mentioned, it shall be appellate, with such exceptions and under such regulations as the Legislature shall make. The Legislature may assign any part of the jurisdiction above mentioned (except the trial of the President of the United States) in the manner, and under the limitations which it shall think proper, to such Inferior Courts, as it shall constitute from time to time. XVI Full faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the Courts and Magistrates of every State. XX The members of the Legislatures, and the Executive and Judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution.1 The articles concerning the judiciary were taken up on August 27th, when Dr. Johnson proposed to extend the judicial power of the United States to cases involving law and equity. After discussion this was agreed to, and the phrase "both in law and equity" was inserted immediately after "the United States," thus making the first part of the section read 2 The judicial power of the United States, both in law and equity, shall be vested in one Supreme Court. At a later date, namely, on September 15th, the Convention struck out the phrase concerning law and equity inserted in this part of the articles, because it was included in Sec. 2, and therefore did not need to be repeated. The matter of the tenure of judges was taken up, and it was proposed by Mr. Dickinson, that "after the words good behaviour' the words 'provided that they may be removed by the Executive on the application by the Senate and House of Representatives'" be inserted. Gouverneur Morris thought that it was a contradiction in terms to say "that the Judges should hold their offices during good behavior, and yet be removable without a trial," and Mr. Rutledge called attention to what he considered to be an insuperable objection to the motion, in that the Supreme Court was to judge between the United States and particular States. The motion was therefore rejected, and with Journal of the Convention, p. 384. Documentary History, Vol. III, pp. 623-4. Session of August 27th. modifications of form suggested by the Committee of Style, the article was adopted substantially as reported by the Committee of Detail, and in the Constitution as finally signed the two sections are thus merged: Article III. Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section 3 of the 11th Article reported by the Committee of Detail dealt with the subject matter of the 2d Section of the present Constitution, and in addition with some other matters which will be referred to later. On August 27th, Mr. Madison and Gouverneur Morris, as stated in Madison's Notes, "moved to insert after the word 'controversies' the words to which the U— S— shall be a party,'" which had the effect of investing the Supreme Court with jurisdiction in cases affecting the United States, and of subordinating the United States to the law as interpreted by the tribunal. This amendment gave effect to one of several proposals which Charles Pinckney had made on August 20th, as follows: The Jurisdiction of the supreme Court shall be extended to all controversies between the U. S. and an individual State, or the U. S. and the Citizens of an individual State.2 Dr. Johnson moved to amend the first clause of the article as reported by the Committee of Detail by inserting before the word "laws" in the first clause thereof, the expression "this Constitution and the," which would have the effect of extending the jurisdiction of the Supreme Court to all cases both in law and equity arising under "this Constitution and the laws of the United States," etc. This raised a very important question, which was at any rate seen by Mr. Madison and called to the attention of the Convention, for, to quote his Notes, he "doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature though not to be given to that Department." That is to say, the court was to be a court of law and equity; it was not to be a diplomatic body passing upon political questions. There appears to have been no action taken on the question raised by Mr. Madison. Dr. Johnson's motion was agreed to "nem. con.," it being generally supposed, as Mr. Madison says, that the jurisdiction was constructively limited to cases of a judicial nature.1 This was not the only amendment to the clause, and one moved by Mr. Rutledge gave effect to one of the purposes for which the Convention had been called, namely, to enable the United States to have its international obligations passed upon by a tribunal of the Union instead of by tribunals of the individual States, with the possibility of inconsistent and jarring interpretations. Immediately after the expression "United States," contained in this clause, Mr. Rutledge moved to insert" and treaties made or which shall be made under their authority." He further moved the omission of the phrase "passed by the Legislature," and both his amendments carried.2 The amendment, however, was due to Mr. Madison, upon whose motion it had been debated two days previously and in a different connection, as will presently appear.3 Without dwelling further upon these matters at this time, and leaving aside other and special phases of the Judiciary which will be discussed later, it is evident that the members of the Constitutional Convention were intent upon a Supreme Court of the more perfect Union in the technical sense of the word; that it should not pass upon all provisions of the Constitution, but only upon those of a judicial nature; that the Congress should have the power, to be exercised in its discretion, of appointing inferior tribunals from which an appeal should lie to the Supreme Court; that for uniformity of decision appeals should lie from State tribunals when national or international questions were concerned; and that in any event the provisions of the Constitution of a non-political character, the acts of Congress passed in pursuance of the Constitution, and treaties made or to be made by the United States, should be determined by the Supreme Court of the States, not finally determined even by the Supreme Courts of the several States. In a word, every national and every international act was in ultimate resort to be determined by the final judicial authority of the Union. The framers of the Constitution, however, did not content themselves with a narrow and technical definition of judicial power. They extended it, wisely as we now know, to controversies between the States, making the Supreme Court an international tribunal and showing the possibility of an international court of justice for the Society of Nations. 1 1 Ibid., p. 626. B Ibid., p. 619. Session of August 25th. XIII PROTOTYPE OF A COURT OF INTERNATIONAL JUSTICE The usual remedies between nations, war and diplomacy, being precluded by the federal union, it is necessary that a judicial remedy should supply their place. The Supreme Court of the Federation dispenses international law, and is the first great example of what is now one of the most prominent wants of civilized society, a real International Tribunal. (John Stuart Mill, Considerations on Representative Government, 1861, pp. 305–306.) Sitting, as it were, as an international, as well as a domestic tribunal, we apply Federal law, state law, and international law, as the exigencies of the particular case may demand. (Chief Justice Fuller in Kansas v. Colorado, 185 United States, 125, 146-147, decided in 1902.) The importance which the framers of the Constitution attached to such a tribunal, for the purpose of preserving internal tranquillity, is strikingly manifested by the clause which gives this court jurisdiction over the sovereign States which compose this Union, when a controversy arises between them. Instead of reserving the right to seek redress for injustice from another State by their sovereign powers, they have bound themselves to submit to the decision of this court, and to abide by its judgment. And it is not out of place to say, here, that experience has demonstrated that this power was not unwisely surrendered by the States; for in the time that has already elapsed since this Government came into existence, several irritating and angry controversies have taken place between adjoining States, in relation to their respective boundaries, and which have sometimes threatened to end in force and violence, but for the power vested in this court to hear them and decide between them. (Chief Justice Taney in Ableman v. Booth, 21 Howard, 506, 519, decided in 1858.) Those states, in their highest sovereign capacity, in the convention of the people thereof; on whom, by the revolution, the prerogative of the crown, and the transcendent power of parliament devolved, in a plenitude unimpaired by any act, and controllable by no authority, adopted the constitution, by which they respectively made to the United States a grant of judicial power over controversies between two or more states. (Mr. Justice Baldwin in Rhode Island v. Massachusetts, 12 Peters, 657, 720, decided in 1838.) So that the practice seems to be well settled, that in suits against a state, if the state shall refuse or neglect to appear, upon due service of process, no coercive measures will be taken to compel appearance; but the complainant, or plaintiff, will be allowed to proceed ex parte. (Mr. Justice Thompson in Massachusetts v. Rhode Island, 12 Peters, 755, 761, decided in 1838.) From the character of the parties, and the nature of the controversy, we cannot, without committing great injustice, apply to this case the rules as to time, which govern Courts of Equity in suits between individuals. . . . But a case like this, and one too of so many years standing, the parties, in the nature of things, must be incapable of acting with the promptness of an individual. Agents must be employed, and much time may be required to search for historical documents, and to arrange and collate them, for the purpose of presenting to the Court the true grounds of the defence. (Chief Justice Taney in Rhode Island v. Massachusetts, 13 Peters, 23, 24, decided in 1839.) The case to be determined is one of peculiar character, and altogether unknown in the ordinary course of judicial proceedings. It is a question of boundary between two sovereign states, litigated in a Court of Justice, and we have no precedents to guide us in the forms and modes of proceedings, by which a controversy of this description can most conveniently, and with justice to the parties, be brought to a final hearing. The subject was however fully considered at January term, 1838. It was then decided, that |