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ability, and a like solemn promise was required of the executive of other States. In the eighteenth century, and especially before the adoption of the national Constitution, the governor of a State was considered by the people to be chiefly a military officer, and the State constitutions uniformly styled him commander-in-chief of the army and navy. The Albany plan had proposed to empower the president-general to nominate officers in the army and navy, their commissions to come from the Crown. This power, in the States, was commonly placed with the legislature. The power of the executive to pardon was limited in most of the States, though granted without restriction in three. His power to fill vacancies was chiefly limited to the militia, but it was specified, at length, in the constitutions of seven States. The constitutions of Georgia and New York established a precedent for the governor's message. Six of the States empowered the executive to
1 New York, 1777, Article XIX; see also Vermont, 1777, Article XVIII, and 1786, Article II.
2 Pennsylvania, 1776, Section 40; Delaware, 1776, Article XXII; Maryland, 1776, Article L; Georgia, 1777, Article XXIV; South Carolina, 1776, Article XXXIII, and 1778, Article XXXVI; Massachusetts, 1780, Part 1, Chapter VI, Article I; New Hampshire, 1784.
3 For the account of the organization of the State governments in the eighteenth century, see Chapters ii, iii, and iv of Vol. I of the Constitutional History of the American People, 1776-1850.
4 Maryland, 1776, Article XXXIII; Vermont, 1777, Article XVIII; New Hampshire, 1784, with the advice of council. It was granted conditionally in Virginia, 1776, Section 7, and in North Carolina, 1776, Article XIX. It was limited in Delaware, 1776, Article VII, in New York, 1777, Article XVII, and was denied in Georgia, 1777, Article XIX.
5 Pennsylvania, 1776, Section 20; Virginia, 1776, Section 14; North Carolina, 1776, Article XX; South Carolina, 1776, Article XXIV and XXX, and 1778, Articles XXXI-XXXII; Georgia, 1777, Article XXII; Vermont, 1777, Article XVIII; New Hampshire, 1784.
6 Georgia, 1777, Article XXII; New York, 1777, Article XIX.
call extra sessions of the legislature, but the power to adjourn it was usually denied him. While it cannot be said that the chief executive of any one State was a prototype of the President, it is clear that, in the aggregate, the State executives possessed, though in a limited way, the powers which the national Constitution now gives to the President.
Thus he was required to give Congress information, from time to time, of the state of the Union; and he was empowered to convene both Houses, or either of them, on extraordinary occasions, the suggestion emanating from McHenry. He should take care that the laws be faithfully executed, an obligation suggested by Madison. That the President should be impeachable was suggested by Williamson, and the proposition found a precedent in the constitutions of four States. His right to commission officers of the United States may have been suggested from the constitution of Vermont.?
In establishing the Department of the Judiciary, the
1 Delaware, 1776, Article X; Virginia, 1776, Section 8; South Carolina, 1776, Article VIII; Georgia, 1777, Article XX; New York, 1777, Article XVIII; New Hampshire, 1784.
2 As in Delaware, 1776, Article X; Virginia, 1776, Section 8, but permitted in New York, 1777, Article XVIII (to prorogue sixty days); New Hampshire, 1784.
3 September 8, Elliot, v. 530.
6 Virginia, 1776, Section 15; Delaware, 1776, Article XXIII; Georgia, 1777, Article XLIX; Vermont, 1777, Article XX; 1786, Article XXI. Judges were declared impeachable in Virginia, 1776, Section 16; Vermont, 1777, Article XX; and 1786, Article XXI.
7 Vermont, 1777, Article XVIII; 1786, Article XI.
8 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 ani inferior Courts, shall hold their Offices during good behavior, and shall, at stated
TENURE OF OFFICE.
Convention, as has been already said, had only the necessities of the proposed government for their guide. The term “judicial power,” as descriptive of the department, originated with Madison and Gouverneur Morris," but the Virginia Plan contained the provision for one Supreme Court, and such inferior courts as Congress might establish. Both the New Jersey and Virginia Plans made the tenure of judicial office for good behavior, and also provided that the judges should receive a compensation for their services, which should not be diminished during their continuance in office. In his letter to Washington, in April, Madison had suggested a supreme national judiciary, and the Virginia Plan made a general, unlimited grant of judicial powers. In his letter to Jefferson, in
Times, receive for their Sevices a Compensation, which shall not be diminished during their Continuance in Office.
Section 2: 1. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, 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;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.
2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such regulations as the Congress shall make.
3. The Trial of all Crimes, except in cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
ugust 27, Elliot, V, 483.
March, he had urged, as one of the reforms most necessary, the practical separation of the powers of government. The phraseology of the clause respecting the jurisdiction of the judicial power was largely the work of the Committee of Detail, but Rutledge suggested the phrase which gives jurisdiction over controversies to which the United States is a party. Pinckney suggested that respecting controversies between a State and citizens of another, and between citizens of different States, and Sherman proposed that respecting controversies between citizens of the same State claiming lands under grants of different States, though the idea was already embodied in the Articles of Confederation. We are indebted to the Committee of Detail for the provisions respecting the trial of all crimes by jury; for extending the original jurisdiction of the judicial power to cases affecting ambassadors, other public ministers and consuls, and those to which a State is party; and also respecting the appellate jurisdiction. But the Virginia Plan proposed a maritime jurisdiction and jurisdiction over cases to which citizens of foreign States might be a party. The provision on treason is a clear case of transfer from the British Statute of Treasons of Edward III, though Franklin added the requirement of the testi
1 August 22, Elliot, V, 462.
5 Section 3: 1. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
2. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.
6 25 Edward III, A. D. 1352.
mony of two witnesses and Luther Martin, that the confession should be in open court,2 but Mason completed the definition of treason by adding to the words "adhering to their enemies," the phrase "Giving them aid and comfort.” As a whole, the article on the Judiciary was put into form by the Committee of Detail, for Morris is our authority, that it was left quite as it came to him from that committee.
That full faith should be given in each State to the public acts and judicial proceedings of every other State, taken from the Articles of Confederation, may have been suggested by Gouverneur Morris, but the language, as it stands, was chiefly from Rutledge,4 of the Committee of Detail, though later slightly modified by Madison. Rutledge's committee also proposed the clause, taken from the Articles, on equal privileges and immunities to citizens in
1 August 20, Elliot, V, 449. 2 August 20, Id., 451.
3 August 29, Elliot, V, 488; Articles of Confederation IV and XII.
4 September 1st, Id. V, 504.
5 Article IV: Section 1. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by "general Laws prescribe the manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.
Section 2. 1. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
2. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.
3. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
6 September 3, Id., 504.