Chapter III

CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY.

The construction of a national executive, although not surrounded by so many inherent practical difficulties as the formation of the legislative department, was likely to give rise to a great many opposite theories. The questions, of how many persons the executive ought to consist, in what mode the appointment should be made, and what were to be its relations to the legislative power, were attended with great diversities of opinion.

The question whether the executive should consist of one, or of more than one person, was likely to be influenced by the nature of the powers to be conferred upon the office. Foreseeing that it must necessarily be an office of great power, some of the members of the Convention thought that a single executive would approach too nearly to the model of the British government. These persons considered that the great requisites for an executive department--vigor, despatch, and responsibility--could be found in three persons as well as in one. Those, on the other hand, who favored the plan of a single magistrate, maintained that the prerogatives of the British monarchy would not necessarily furnish the model for the executive powers; and that unity in the executive would be the best safeguard against tyranny.

But this point connected itself with the question, whether the executive should be surrounded by a council, and the latter proposition again involved the consideration of the precise relation of the executive to the legislative power. That a negative of some kind upon the acts of the legislature was essential to the independence of the executive, was a truth in political science not likely to escape the attention of many of the members of the Convention. Whether it should be a qualified or an absolute negative was the real, and almost the sole question; for although there were some who held the opinion that no such power ought to be given, it was evident from the first that its necessity was well understood by the larger part of the assembly. In the first discussion of this subject, the negative was generally regarded as a means of defence against encroachments of the legislature on the rights and powers of the other departments. It was supposed that, although the boundaries of the legislative authority might be marked out in the Constitution, the executive would need some check against unconstitutional interference with its own prerogatives; and that, as the judicial department might be exposed to the same dangers, the power of resisting these also could be best exercised by the executive. But an absolute negative for any purpose was favored by only a very few of the members, and the proposition first adopted was to give the executive alone a revisionary check upon legislation, which should not be absolute if it were afterwards overruled by two thirds of each branch of the legislature.[31]

But inasmuch as this provision would leave the precise purposes of the check undetermined, and in order, as it would seem, to subject the whole of the legislative acts to revision and control by the executive, some of the members desired that the judiciary, or a convenient number of the judges, might be added to the executive as a council of revision. Among these persons were Mr. Madison and Mr. Wilson. The former expressed a very decided opinion, that, whether the object of a revisionary power was to restrain the encroachments of the legislature on the other departments, or on the rights of the people at large, or to prevent the passage of laws unwise in principle or incorrect in form, there would be great utility in annexing the wisdom and weight of the judiciary to the executive. But this proposition was rejected by a large majority of the States, and the power was left by the committee as it had been settled by their former decision. These proceedings, however, do not furnish any decisive evidence of the nature and purpose of the revisionary check.

But before this feature of the Constitution had been settled by the committee, they had determined on a mode in which the executive should be appointed. It is singular that the idea of an election of the executive by the people, either mediately or immediately, found so little favor at first, that on its first introduction it received the votes of but two States. Since the executive was to be the agent of the legislative will, it was argued by some members that it ought to be wholly dependent, and ought therefore to be chosen by the legislature. The experience of New York and of Massachusetts, on the other hand,--where the election of the first magistrate by the people had been successfully practised,--and the danger that the legislature and the candidates might play into each other's hands, and thus give rise to constant intrigues for the office, were the arguments employed by others. Upon the introduction of a proposition that the States be divided into districts, for the election by the people of electors of the executive, two States only recorded their votes in its favor, and eight States voted against it.[32] By the vote of eight States it was then determined that the executive should be elected by the national legislature for the term of seven years;[33] and subsequently it was determined that the executive should be ineligible to a second term of office, and should be removable on impeachment and conviction of malpractice or neglect of duty. A single executive was agreed to by a vote of seven States against three.[34] After the mode in which the negative was to be exercised had been settled, an attempt was made to change the appointment, and vest it in the executives of the States. But this proposal was decisively rejected.[35]

The judiciary was the next department of the proposed plan of government that remained to be provided. Like the executive, it was a branch of sovereign power unknown to the Confederation. The most palpable defect of that government, as I have more than once had occasion to observe, was the entire want of sanction to its laws. It had no judicial system of its own for decree and execution against individuals. All its legislation, both in nature and form, prescribed duties to States. The observance of these duties could only be enforced against the parties on whom they rested, and this could be done only by military power. But it was the peculiar and anomalous situation of the American Confederacy, that the power to employ force against its delinquent members had not been expressly delegated to it by the Articles of Union; and that it could not be implied from the general purposes and provisions of that instrument, without a seeming infraction of the article by which the States had reserved to themselves every power, jurisdiction, and right not "expressly" delegated to the United States. If this objection was well founded,--and it was universally held to be so,--we may well concur in the remark of The Federalist, that "the United States presented the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws."[36]

The Confederation, too, had found it to be entirely impracticable to rely on the tribunals of the States for the execution of its laws. Such a reliance in a confederated government presupposes that the party guilty of an infraction of the laws or ordinances of the confederacy will try, condemn, and punish itself. The whole history of our Confederation evinces the futility of laws requiring the obedience of States, and proceeding upon the expectation that they will enforce that obedience upon themselves.

The necessity for a judicial department in the general government was, therefore, one of the most prominent of those "exigencies of the Union," for which it was the object of the present undertaking to provide. The place which that department was to occupy in a national system could be clearly deduced from the office of the judiciary in all systems of constitutional government. That office is to apply to the subjects of the government the penalties inflicted by the legislative power for disobedience of the laws. Disobedience of the lawful commands of a government may be punished or prevented in two modes. It may be done by the application of military power, without adjudication; or it may be done through the agency of a tribunal, which adjudicates, ascertains the guilty parties, and applies to them the coercion of the civil power. This last is the peculiar function of a judiciary; and in order that it may be discharged effectually, the judiciary that is to perform this office must be a part of the government whose laws it is to enforce. It is essential to the supremacy of a government, that it should adjudicate on its own powers, and enforce its own laws; for if it devolves this prerogative on another and subordinate authority, the final sanction of its laws can only be by a resort to military power directed against those who have refused to obey its lawful commands.

One of the leading objects in forming the Constitution was to obtain for the United States the means of coercion, without a resort to force against the people of the States collectively. Mr. Madison, at a very early period in the deliberations of the Convention, declared that the use of force against a State would be more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.[37] At his suggestion, a clause in Governor Randolph's plan authorizing the use of force against a delinquent member of the confederacy was laid aside, in order that a system might be framed which would render it unnecessary. This could be done only by making the authority of the government supreme in relation to the rights and powers that might be committed to it; and it could be made so only by applying its legislation to individuals through the intervention of a judiciary. A confederacy whose legislative power operates only upon States, or upon masses of people in a collective capacity, can be supreme only so far as it can employ superior force; and when the issue that is to determine the question of supremacy is once made up in that form, there is an actual civil war.

The introduction, therefore, of a judicial department into the new plan of government, of itself evinces an intention to clothe that government with powers that could be executed peacefully, and without the necessity of putting down the organized opposition of subordinate communities. By their resort to this great instrumentality, we may perceive how much, in this particular, the framers of the Constitution were aided by the spirit and forms of the institutions which the people of these States had already framed for their separate governments. The common law, which the founders of all these States had brought with them to this country, had accustomed them to regard the judiciary as clothed with functions in which two important objects were embraced. By the known course of that jurisprudence the judiciary is, in the first place, the department which declares the construction of the laws; and, in the second place, when that department has announced the construction of a law, it is not only the particular case that is settled, but the rule is promulgated that is to determine all future cases of the same kind arising under the same law. Thus the judiciary, in governments whose adjudications proceed upon the course of the common law, becomes not merely the arbitrator in a particular controversy, but the department through which the government interprets the rule of action prescribed by the legislature, and by which all its citizens are to be guided. This office of the judicial department had long been known in all the States of the Union at the time of the formation of the national Constitution.

By the introduction of this department into their plan of government, the framers of the Constitution obviously intended that it should perform the same office in their national system which the corresponding department had always fulfilled in the States. No other function of a judiciary was known to the people of the United States, and this function was both known and deemed essential to a well-regulated liberty. It was known that the judicial department of a government is that branch by which the meaning of its laws is ascertained, and applied to the conduct of individuals. To effect this, it was introduced into the system whose gradual formation and development we are now examining.

The committee not only declared that this department, like the legislative and the executive, was to be "supreme," but they proceeded to make it so. One of the first questions that arose concerning the construction of the judiciary was, whether it should consist solely of one central tribunal, to which appeals might be carried from the State courts, or should also embrace inferior tribunals to be established within the several States. The latter plan was resisted as an innovation, which, it was said, the States would not tolerate. But the necessity for an effective judiciary establishment, commensurate with the legislative authority, was generally admitted, and a large majority of the States were found to be in favor of conferring on the national legislature power to establish inferior tribunals;[38] while the provision for a supreme central tribunal was to be made imperative by the Constitution.

The intention of the committee also to make the judicial coextensive with the legislative authority, appears from the definition which they gave to both. Upon the national legislature they proposed to confer, in addition to the rights vested in Congress by the Confederation, power to legislate in all cases to which the separate States were incompetent, or in which the harmony of the United States might be interrupted by the exercise of individual legislation; and the further power to negative all laws passed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties subsisting under the authority of the Union. The jurisdiction of the national judiciary it was declared should extend to all cases which respect the collection of the national revenue, and to impeachments of national officers; and then the comprehensive addition was made of "questions which involve the national peace and harmony." This latter provision placed the general objects, which it was declared ought to be embraced by the legislative power, within the cognizance of the judiciary. Those objects were not yet described in detail, the purpose being merely to settle and declare the principles on which the powers of both departments ought to be founded.

But, as we have already had occasion to see, the idea of vesting in the judicial department such control over the legislation of the separate States as might be surrendered by them to the national government, was not yet propounded. The principle which was to ascertain the extent of that control was already introduced and acted upon, namely, that it should embrace all laws of the States which might conflict with the Constitution, or the treaties made under the national authority. The plan at present was, as we have seen, to treat this as a legislative power, to be executed by the direct control of a negative. But a nearer view of the great inconveniences of such an arrangement, and the general basis of the jurisdiction already marked out for the national judiciary, led to the development of the particular feature which was required as a substitute for direct interference with the legislative powers of the States. In truth, the important principle which proposed to extend the judicial authority to questions involving the national peace and harmony, embraced all the power that was required; and it only remained to be seen that the exercise of that power by the indirect effect of judicial action on the laws of the States after they had been passed, was far preferable to a direct interference with those laws while in the process of enactment.

The committee, with complete unanimity, determined that the judges of the supreme tribunal should hold their offices during good behavior.[39] This tenure of office was taken from the English statutes, and from the constitutions of some of the States which had already adopted it. The commissions of the judges in England, until the year 1700, were prescribed by the crown; and although they were sometimes issued to be held during good behavior, they were generally issued during the pleasure of the crown, and it was always optional with the crown to adopt the one or the other tenure, as it saw fit. But in the statute passed in the thirteenth year of the reign of William III., which finally secured the ascendency of the Protestant religion in that country, and made other provisions for the rights and liberties of the subject, it was enacted that judges' commissions should be made during good behavior, and that their salaries should be ascertained and established; but it was made lawful for the crown to remove them upon the address of both houses of Parliament.[40] Still, however, it was always considered that the commissions of the judges expired on the death of the king; and for the purpose of preventing this, and in order to make the judges more effectually independent, a new statute, passed in the first year of the reign of George III., declared that the commissions of the judges should continue in force during their good behavior, notwithstanding the demise of the crown; and that such salaries as had been once granted to them should be paid in all future time, so long as their commissions should remain in force. The provision which made them removable by the crown on the address of both houses of Parliament was retained and re-enacted.[41]

In framing the Constitution of the United States, the objectionable feature of the English system was rejected, and its valuable provisions were retained. No one, at the stage of the proceedings which we are now examining, proposed to make the judges removable on the address of the legislature; and although at a much later period this provision was brought forward, it received the vote of a single State only. The first determination of the Convention, in committee of the whole, was, that the judges should hold their offices during good behavior; that they should receive punctually, at stated times, a fixed compensation for their services, in which no _increase_[42] or diminution should be made so as to affect the persons actually in office at the time.

The appointment of the judges was by general consent, at this stage of the proceedings, vested in the Senate.

* * * * *

NOTE ON THE JUDICIAL TENURE.

The English historians and juridical writers have not given a
very satisfactory account of the purpose for which the power
of removal on the address of the two Houses of Parliament was
incorporated with the provision which gave the judges their
commissions during good behavior. It is obvious that, if the
power of removal is to be regarded as an unqualified power,
to be exercised for any cause, or without the existence of
any cause, the office is held during the pleasure of the
legislative and executive branches of the government, and not
during the official good conduct of the incumbent. In this
view of it, therefore, the provision is inconsistent with the
declared tenure of the commission. On the other hand, if the
_power_ of removal is not to be regarded as a limitation upon
the tenure of the office, but the _process_ of removal is to
be considered as a mode in which the unfitness or incapacity
of the incumbent is to be ascertained,--treating it as a
substitute for impeachment, to be used in cases of palpable
official incapacity or unfitness,--then it is not repugnant
to the tenure of good behavior. In support of this view of
the subject it is to be observed that, in the statute of 1
Geo. III. c. 23, the tenure of good behavior is made the
leading and primary object of the enactment. The motives for
it are set forth with great point and emphasis. The King is
made to declare from the throne to the two houses of
Parliament that he looks upon the independency and
uprightness of judges as essential to the impartial
administration of justice, as one of the best securities to
the rights and liberties of the subject, and as most
conducive to the honor of the crown. The enacting part of the
statute, which follows this recital, provides anew that the
judges' commissions shall be and remain in force during their
good behavior, notwithstanding a demise of the crown; and
the power of removal by the King, on the address of both
houses, follows this enactment as a _proviso_. If, therefore,
a not unusual rule of construction is applied, the power
embraced in the _proviso_ should be so construed as to make
its operation consistent with, and not repugnant to, the
great purpose of the statute, which was to establish the
tenure of good behavior. In this view the rightful exercise
of the power may be confined to cases where the individual is
no longer within that tenure, or, in other words, where the
good behavior has ceased, or become impossible. Upon this
construction the power of removal can only be rightfully
exercised when a cause exists which touches the official
conduct or capacity of the incumbent.

In the Constitution of the State of Massachusetts, formed in
1780, the power of removal by the executive, on the address
of both houses of the legislature, was adopted from the
English statutes, and it was introduced as a _proviso_ after
the tenure of good behavior had been emphatically declared
for all judicial officers, just as it stands in the act of 1
Geo. III.

An objection which has sometimes been urged against the
construction above suggested is, that it is narrower than the
terms of the provision, and that it would not include a case
where a judge may have discharged all his official duties
with propriety and ability, and may yet be personally
obnoxious, as, for example, on account of gross immorality.
But the answer to this objection is, that the question,
whether a case of official good conduct accompanied by
personal immorality, or the like defect of character, was
intended to be within the power of removal, must be
determined on a careful view of the whole provision. The
meaning and scope of the qualification of "good behavior"
must be first ascertained. If it means simply that the
individual is to hold his commission so long as each official
duty is discharged in the manner contemplated by law, then a
mere personal immorality, which has not affected or
influenced the discharge of official duty, is not
inconsistent with the good behavior established as the tenure
of the office. But if the good behavior means, not merely
that the individual shall discharge his official duties in a
competent manner, with an average amount of ability, and
without corruption, but that he shall so order his life and
conversation as not to expose himself to a cessation of the
power to act intelligently and uprightly, then there may
undoubtedly be a case of personal immorality that would touch
the tenure of the office. Still it must be the tenure of the
office that is touched, and it must be touched by misconduct
or incapacity. The phrase "good behavior" is technical, and
has always had a meaning attached to it which confines it to
the discharge of official duty. It is, therefore, not what
men think of the individual, or how they feel towards him,
or how they regard him, but what he does or omits officially,
that is to determine whether he continues to behave well in
his office; and unless some conduct, or some bodily or mental
condition, is adduced, that shows him to be incapable of
fulfilling the duties of his station in the manner in which
the law intends they shall be discharged, his tenure of good
behavior is not lost.

But the naked power of removal by the other two branches of
the government exists in the English constitution, and in
that of the State of Massachusetts, without any declaration
of the purposes or occasions to which it is to be applied;
and it is not easy to reconcile it with the avowed object of
judicial independence obviously embraced by the terms of the
commission prescribed in both of them. The two most important
native writers on the English constitution, Sir William
Blackstone and Mr. Hallam, regard the provision as a
restraint on the former practice of the crown, of dismissing
judges when they were not sufficiently subservient to the
views of the government in political prosecutions. Mr.
Hallam, after referring to the provisions of the two
statutes, lays down the proposition, that "no judge can be
dismissed from office, except in consequence of a conviction
for some offence, or the address of both houses of
Parliament, which is tantamount to an act of the
legislature." (Constitutional History, III. 262.) He suggests
further, that although the commissions of the judges cannot
be vacated by the authority of the crown, yet that they are
not wholly out of the reach of its influence. They are
accessible to the hope of further promotion, to the zeal of
political attachment, to the flattery of princes and
ministers, and to the bias of their professional training. He
therefore commends the wisdom of subjecting them in some
degree to legislative control. (Ibid.) But it is not to be
inferred from his remarks that that control can be rightfully
exercised without the existence of a cause which affects
their good behavior. On the contrary, he appears to consider
that the purpose was to prevent a subserviency to the crown
in their official conduct, by subjecting _that conduct_ to
legislative scrutiny. To the honor of England, it is to be
remembered that, since this power was recognized, there has
never been an instance in which a judge has been removed for
political or party purposes.

Mr. Justice Story has taken substantially the same view of
the subject. He says: "The object of the act of Parliament
was to secure the judges from removal at the mere pleasure of
the crown; but not to render them independent of the action
of Parliament. By the theory of the British constitution,
every act of Parliament is supreme and omnipotent. It may
change the succession to the crown, and even the very
fundamentals of the constitution. It would have been absurd,
therefore, to have exempted the judges alone from the
general jurisdiction of this supreme authority in the realm.
The clause was not introduced into the act for the purpose of
conferring the power on Parliament, for it could not be taken
away or restricted, but simply to recognize it as a
qualification of the tenure of office; so that the judges
should have no right to complain of any breach of an implied
contract with them, and the crown should not be deprived of
the means to remove an unfit judge whenever Parliament
should, in their discretion, signify their assent."
(Commentaries on the Constitution, Vol. II. § 1623.)

By describing it as a "qualification of the tenure of
office," the learned commentator probably did not mean that
the power was intended to be recognized as a power to remove
judges against whom no official misconduct or incapacity
could be charged; for the context shows that he was speaking
of the removal of "unfit" judges as a power that it was
proper to recognize and regulate. If he intended to lay it
down as a complete and actual qualification of the tenure of
good behavior, it must have been upon the theory to which he
refers, upon which an act of Parliament can do anything,
either with or without reason. Upon this theory all the
commissions of all the judges in the realm may be vacated
without inquiry into their fitness or unfitness. But if the
true view of the subject is, that the _King's commission_,
which runs _quamdiu se bene gesserit_, cannot be determined
when the crown alone decides that the good behavior has
ceased, or become impracticable, but may be determined when
the whole legislative power has so decided, then in one sense
it _is_ a qualification of the commission; because the latter
emanates from the crown, but after it has issued, it is to be
superintended by Parliament _and_ the crown.

When we turn to our American constitutions, all embarrassment
arising from the English theory of the omnipotence of the
legislative department vanishes. In our systems of government
the people alone possess supreme power. The legislature is
but the organ of their will for certain specific and limited
purposes, which are carefully defined in a written
constitution; and no power that is not plainly confided by
the constitution to the legislative and executive departments
of the government can be exercised by them. Under every
American constitution, therefore, which has conferred upon
the executive power to remove a judge upon the address of the
two houses of the legislature, the question whether that
power extends to any cases but those of official misconduct
or incapacity must be determined by a careful consideration
of the position which that constitution assigns to the
judiciary. If, as is the case, for example, under the
Constitution of the State of Massachusetts, there is a clear
intention manifest to make the judiciary independent of the
other departments, and this intention appears by other
provisions, and the enunciation of other principles besides
that which in terms establishes the tenure of good behavior,
then the power of removal upon address ought to be construed
and exercised consistently with the tenure of good behavior,
and not in direct repugnance to it. It is plain that, if the
power is construed as a naked and unrestrained power,
established as a direct qualification of the tenure of
office, it may be used for party purposes, and may be
exercised for any cause for which a dominant party may see
fit to employ it.

The danger of the abuse of this power, arising from the
absence of any express restriction upon it, and of any
statement of its purpose, in the Constitution of
Massachusetts, has led to an unsuccessful effort in that
State to make its exercise more difficult than it is under
the actual provision. In the Convention held in the year
1820, in which the Constitution was subjected to revision,
Mr. Webster, Mr. Justice Story, and others of the eminent
jurists of Massachusetts, endeavored to procure an amendment
requiring the address to be adopted by a vote of two thirds
in both branches, instead of allowing it to be carried, as
the Constitution has always stood, and as the rule is in
England, by a bare majority. The effort failed; but the
result of the whole discussion to which it gave rise shows
the general understanding of the people of the State with
regard to the rightful extent of this power. The Convention
was a very remarkable assembly of the intellect and worth of
the State, and both the political parties of the time were
fully represented in it, by their most distinguished members.
All were agreed that the power was capable of abuse, and that
to apply it to any other than cases of official incapacity or
unfitness would be an abuse. But those who opposed the
adoption of a two-thirds rule were unwilling to anticipate
such an abuse of the power, and their arguments prevailed.

The framers of the Constitution of the United States
intrusted no such power over the judiciary to the other
branches of the government. They regarded the possibility of
its being used for improper purposes as a sufficient reason
why it should not exist. They thought it, moreover, a
contradiction in terms to say that the judges should hold
their offices during good behavior, and yet be removable
without a trial. But the radical objection was one that does
not seem to have been sufficiently attended to in the early
formation of some of the State constitutions, but which the
peculiar system established by the Constitution of the United
States made especially prominent.

That Constitution was designed to be in some respects an
abridgment of the previous powers of the States. Like the
State constitutions, also, it embraced a careful
distribution of the powers of government between the
different departments, and a careful separation of the
functions of one department from those of another. Questions
must, therefore, necessarily arise in the administration of
the government, whether one of these departments had
overstepped the limits assigned to it as against the others,
and whether the action of the general or the State
governments in particular instances is within their
appropriate spheres. These, now familiar to us as
constitutional questions, were to be subjected to the
arbitrament of the national judiciary; and it was almost
universally felt that this delicate and important power must
be confided to judges whose tenure of office could be touched
only by the solemn process of accusation and impeachment. The
same necessity exists under a State constitution, but perhaps
not in the same degree; for while the judiciary of a State is
often called upon to decide finally upon the conformity of
acts of legislation with the State constitution,--and ought
therefore clearly to be beyond the reach of legislative
influence,--yet no State judiciary is the final arbiter
between the rights and powers of the national government and
the rights and powers of the States. This function belongs to
the supreme judiciary of the United States. It was foreseen
that it would not infrequently involve the decision of
questions in which whole classes of States might have the
deepest interest, which would connect themselves with party
discussions, and on which the representatives of the States
in the national legislature would be likely to share in the
feelings, and even in the passions, of their constituents.
There could be no security for a judiciary called upon to
decide such questions, if they were to be subject to a power
of removal by the other two branches of the government. Their
commissions might make them theoretically independent, but
practically they could be removed at the pleasure of those
whom they might have offended. In truth, there is no State in
this Union where such a power of removal is vested without
qualification in the legislative and executive departments,
in which the judges can be said to hold their commissions
during good behavior, unless that power is construed to
embrace only those cases of palpable incapacity in which an
impeachment would be unnecessary or impracticable. As a naked
and unqualified power, it is repugnant to the tenure of good
behavior. It was so regarded in the Convention which framed
the Constitution of the United States, where a proposition to
introduce it received the vote of the single State of
Connecticut only. (Madison, Elliot, V. 481, 482.)

FOOTNOTES:

[31] Adopted by the votes of eight States against two,--Connecticut and Maryland voting in the negative.

[32] Pennsylvania, Maryland, _ay_, 2; Massachusetts, Connecticut, New York, Delaware, Virginia, North Carolina, South Carolina, Georgia, _no_, 8.

[33] Pennsylvania and Maryland, _no_.

[34] New York, Delaware, and Maryland, _no_.

[35] Nine States voted against it, and one (Delaware) was divided.

[36] The Federalist, No. 21.

[37] Madison, Elliot, V. p. 140.

[38] Eight States in the affirmative, two in the negative, and one divided.

[39] This was afterwards applied to the judges of the inferior courts also.

[40] Act 12 & 13 William III. ch. 2.

[41] Act 1 Geo. III. ch. 23.

[42] This was afterwards stricken out.