view, there is more divergence than in the legislative systems of these typical states. This has an historical reason. The legislatures are more purely the products of the modern state, while the executive is in greater degree an institution transmitted from antecedent eras. Its adjustment to modern. conditions is still in progress, and the political science of the future must give to this department the larger share of its attention.

DIVISION IV. -THE CONSTITUTION OF THE

JUDICIARY.

I MUST remind my readers again that I am writing a book upon constitutional law, and not upon public law; i.e. I am treating that part of public law which is ordained in the constitutions. There is no doubt of the fact that some parts of the public law now existing only in the form of statutes or customs ought to be in the constitutions, and there is, on the other hand, no doubt that some things contained in the constitutions are more properly subjects of statutory regulation. In the preceding pages I have indicated where, in my opinion, such mistakes have been made, and in the discussion of the present topic I shall do the same. But I shall not treat of this topic further than the constitutions deal with it, both for the reason above given and for the additional reason that this work is to be followed by treatises upon administrative law and comparative jurisprudence, in which the statutory and customary organization of the courts will be considered as well as their constitutional organization.

CHAPTER I.

THE ORGANIZATION AND POWERS OF THE JUDICIARY IN THE CONSTITUTION OF THE UNITED STATES.

I. The Basis of the Judicial Department.

The constitution declares that 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."1

1 United States Constitution, Art. III, sec. I.

Apparently the Supreme Court is here created by the constitution, while the inferior courts depend for their existence upon the will of the legislature. When we come to consider the subject more closely, however, we find that the existence of the Supreme Court itself virtually depends upon the will of the legislature. The legislature, in the absence of constitutional provisions, must determine the number of judgeships. which the Supreme Court shall contain, create the same, and fix the salaries of the judges. It might be thought that, these things once done, the Court would then have a constitutional anchor against the legislature, since the constitution provides the term of good behavior for the judges and forbids the diminution of the salary of any judge during his continuance in office. But it must be again remembered that at the end of any term, concluded by the death, resignation, or impeachment of any judge, the legislature may modify or abolish that particular judgeship for the future. It is thus possible for the legislature virtually to disestablish the Supreme Court at the conclusion of the terms of the judges who may be holding at the time the legislature may adopt this destructive policy. A sound view of the constitution would, I think, interpret the constitutional provision in reference to the creation of the judicial department as a command to the legislature to organize the Supreme Court in such force, and inferior courts in such number and force, as to provide for the transaction of the judicial business of the central government; but the legislature alone is the authoritative interpreter of the constitution upon this subject, and the legislature is here subject to control by the state only. The constituencies may influence the legislators, but the sovereignty alone can command the legislature. It will thus be seen that the judicial department, even in the constitution of the United States, does not really have an equally independent existence with the legislative and executive departments. In order to accomplish this, the con

1 United States Constitution, Art. III, sec. I.

stitution must establish all the courts and all the judgeships thereof, and create means for the selection of the judges without action by the other departments. This consideration appears to me to be the most important argument for the election of the judges. I admit, however, that the argument is more academic than practical. The legislature has hardly made adequate provision for the central judiciary, as the most cursory examination of the docket of the Supreme Court will reveal; but it has not claimed the right, under the discretionary power vested in it by the constitution, to provide no organization at all for the judicial department.

With this general understanding of the constitutional basis of the judicial department, we may now examine the details of its organization and powers, so far as these are regulated by the constitution.

II. The Judicial Tenure and Term.

All the judges of the courts of the central government are nominated by the President,1 confirmed by the Senate,2 and commissioned by the President. These are the three elements of appointment. The character of the first two of these elements differs, however, from that of the last. In the nomination of the judges the President is left by the constitution entirely to his own discretion. The constitution does not even prescribe a qualification for holding judicial office. Likewise, in the confirmation or rejection of the President's nominees, the Senate is left by the constitution entirely to its own discretion. The commissioning of the appointed judge is, however, a ministerial power. The President is ordered by the constitution to execute the commission. If, however, he should fail to do so, there is no way in which he could be compelled to do so. The President may in this manner defeat the appointment if he will. If, however, he shall have signed the commission and shall have

transmitted it to the Secretary of State, as directed by statute, the appointee has then a vested right which he can pursue in a proper court against any attempt on the part of the Secretary of State to withhold the commission; and if the Secretary shall have sealed and recorded the commission, as he is commanded by statute to do, the attempt of the President himself to withdraw it will not deprive the judge of his office, not even if the Secretary should return the commission to the President.1

Once appointed, the term of the judge is during good behavior.2 In other words, the term is for life, unless the judge shall resign or be convicted upon impeachment and expelled from office by judgment upon impeachment.

Good behavior, accordingly, is determined by the legislature through the process of an impeachment trial. The important question important as regards the independence of the judicial tenure is whether the legislature is left by the constitution in possession of complete freedom in the interpretation of the phrase "good behavior," or is limited by the constitution in this respect. The constitution provides that removals from office through the process of impeachment shall be upon conviction of treason, bribery, or other high crimes and misdemeanors,3 i.e. upon conviction of the commission of an indictable offence. What these offences are is tolerably well defined in our system of criminal law. For two reasons, then, I hold that the legislature is limited in its power to interpret the phrase "good behavior," viz; that an unlimited power in this respect would enable the legislature to destroy the independence of the judiciary, and that the specification in the constitution of the classes of offences for which the judges may be impeached and removed by the legislature excludes all other classes. The constitution,

1 Marbury v. Madison, U. S. Reports, 1 Cranch, 137; United States v. Le Baron, U. S. Reports, 19 Howard, 73.

2 United States Constitution, Art. III, sec. I.

8 Ibid. Art. II, sec. 4.