History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle FramersCurtis, George Ticknor
History
History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle Framers
Curtis, George Ticknor
Constitutional history -- United States
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
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