After some desultory conversation, concerning the mode of considering the judiciary, the 1st and 2d sections of the 3d article were read.
Mr. PENDLETON. Mr. Chairman, on a former occasion, when I was considering the government at large, I mentioned the necessity of making a judiciary an essential part of the government. It is necessary, in order to arrest the executive arm, prevent arbitrary punishments, and give a fair trial, that the innocent may be guarded, and the guilty brought to just punishment, and that honesty and industry be protected, and injustice and fraud be prevented. Taking it for granted, then, that a judiciary is necessary, the power of that judiciary must be coëxtensive with the legislative power, and reach to all parts of society intended to be governed. They must be so arranged, that there must be some court which shall be the central point of their operations; and because all the business cannot be done in that part, there must be inferior courts to carry it on. The first clause contains an arrangement of the courts—one supreme, and such inferior as Congress may ordain and establish. This seems to me to be proper. Congress must be the judges, and may find reasons to change and vary them as experience shall dictate. It is therefore, not only improper, but' exceedingly inconvenient, to fix the arrangement in the Constitution itself, and not leave it to laws which may be changed according to circumstances. I think it highly probable that their first experiment will be, to appoint the state courts to have the inferior federal jurisdiction, because it would be best calculated to give general satisfaction, and answer economical purposes; since a small additional salary may in that case suffice, instead of competent provision for the judges. But even this eligible mode experience may furnish powerful reasons for changing, and a power to make such changes ought to rest with Congress. This clause also secures an important point—the independency of the judges, both as to tenure of offices and fixing of salary. I wish the restraint had been applied to increase as well as diminution.
The 2d section points out the subjects of their jurisdiction.
| 1. | Cases arising under | the Constitution. |
| 2. | the laws of the federal legislature. | |
| 3. | treaties made by them. |
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