Page:Debates in the Several State Conventions, v4.djvu/461

1802.] —the Supreme Court, which implies that there should be but one. They were not used to give Congress power to constitute inferior courts, for that power had been previously given; and if the inferior courts, together with the offices of the judges, are, as is contended, subjects of ordinary legislation, these words were unnecessary to enlarge the powers of Congress on them; for, on all subjects of ordinary legislation, Congress have an unquestionable right to enact and repeal at pleasure.

It is not said, in the 8th section, 1st article, that Congress shall have the power to borrow money from time to time, to regulate commerce from time to time, or to establish post-offices and post-roads from time to time; yet nobody doubts that Congress have a right to enact and repeal laws on these subjects when it may appear expedient; and the same power would have extended to the clause giving power to constitute inferior tribunals, if there had been no restriction in any other part of the Constitution. As these words are unnecessary to give the power contended for, they must have some other meaning. The plain meaning is this—that these words, together with the first part of the section, were not used to give a power to constitute courts; for that power had been expressly given: they were merely introduced to dispose of judiciary power, and to declare where it should reside. The judiciary 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; meaning the power before given, which was discretionary as to number. The clause in the 8th section of the 1st article is brought here into view; and in the very next sentence, the offices are positively fixed and limited. Here, then, is an express and positive provision, uncontradicted by any express declaration, or by any violent implication.

Mr. BAYARD. The 2d section of the 3d article of the Constitution expressly extends the judicial power to all cases arising under the Constitution, the laws, &c. The provision in the 2d clause of the 6th article leaves nothing to doubt. This Constitution, and the laws of the United States which shall be made in pursuance thereof, &c., shall be the supreme law of the land. The Constitution is absolutely the supreme law. Not so of the acts of the legislature. Such only are the laws of the land as are made in pursuance of the Constitution.

Mr. RUTLEDGE. Taught by examples the value of a good judiciary, the patriots who met at Philadelphia determined to establish one which should be independent of the executive and legislature, and possess the power of deciding rightfully and finally on conflicting claims between them. The Convention laid their hand upon this invaluable and protecting principle: in it they discovered what was essential to the security and duration of free states; what would prove the shield and palladium of our liberties; and they boldly said, notwithstanding the discouragement in other countries, in past times, to efforts in favor of republicanism, our experiment shall not miscarry, for we will establish an independent judiciary; we will create an asylum to secure the government and protect the people in all the revolutions of opinion, and struggles of ambition and faction. They did establish an independent judiciary. There is nothing, I think, more demonstrable than that the Convention meant the judiciary to be a coördinate, and not a subordinate branch of the government. This is my settled opinion. But on a subject so momentous as this is, I am unwilling to be directed by the feeble lights of my own understanding, and as my judgment, at all times very fallible, is liable to err much where