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R. Carter Pittman

Copyright © 1951 American Bar Association.
Originally published as 37 ABA J. 485 & 587 (Jul & Aug, 1951).
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The Emancipated Judiciary in America
Its Colonial and Constitutional History

By R. Carter Pittman


A nation which easily casts itself loose from the traditions of the past loses steadiness of purpose, and ultimately, wearied by excitement, it falls into the arms of despotism. [Gardiner, Constitutional Documents, Puritan Revolution, xxxi (3d Ed.).]

PARAPHRASING the fifteenth paragraph of George Mason's Virginia Bill of Rights, someone has said: "A people indifferent to its past will not achieve an honored history." That statement has peculiar application to a people indifferent to the history of the struggles of its ancestors to emancipate its judges from servility to executive and legislative powers.

Gouverneur Morris, of Pennsylvania, whose classic language contributed most to the form of the final Constitution, writing in 1814, said of the Constitution:(1)

I believe it to be as clear as our language would permit, excepting, nevertheless, a part of what relates to the Judiciary. On that subject, conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases which, expressing my own notions, would not alarm others, nor shock their self-love; and to the best of my recollection, this was the only part which passed without cavil.

In view of that statement, it is strange that no one has accepted the implied invitation of Gouverneur Morris to seek the historical basis for the judiciary provisions of the Constitution.

Nothing in the Constitution is rooted so deeply in the history of the American Colonies and the history of England as are the judiciary provisions of our fundamental law.

In the case of National Mutual Insurance Company v. Tidewater Transfer Company, 337 U.S. 582, 69 S. Ct. 1173, our Supreme Court discloses an admirable willingness to go back of John Marshall and back of the Federalist to seek the springs from which the federal judiciary flows, but it stopped far short of the goal. It is not surprising that, as one of the Justices confessed, the decision ends in utter confusion.(2)

Two of the Justices frankly confessed their inability to find in the Constitution anything that would prevent Congress from transferring all the judicial power of the United States "from constitutional to legislative courts for the purpose of emasculating the former". They were generous enough, however, to leave the matter "open to question." 337 U. S. 644, 69 S. Ct. 1209.

Masked confusion seems always to sit with the Supreme Court, as its Chief Judge, when judicial powers and duties are under consideration. Why? While criticising the decisions of John Marshall the judges might have appropriately said, that John Marshall had been dead ten years before Madison's Notes of Debates in the Constitutional Convention were published, one year before Elliot's Debates in the ratifying conventions of the several states were published, and seventy-five years before any substantial portion of colonial and English records, elucidating the judiciary content of the Constitution, were published.

Battle of the Constitution
Was Fought by Marshall

The Court might have appropriately said also that, as John Marshall fought the Battle of the Constitution against combined assaults of the power of the purse and the power of the sword in the hands of the legislative and executive branches of the government (ever determined and greedy for powers denied to them by the Constitution,) historical research, the great guardian of constitutional liberty, stood by with a withered hand. Alone and empty-handed, he stood toe to toe and exchanged blow for blow. Blinded at times and vanquished at others, he was forced to retreat to new positions in order to save the integrity of the judiciary and the Constitution. Be it said to his eternal credit that his blindness was never self-imposed. In the Constitution's darkest hours, God sent a man -- just a man -- human enough to err and federalist enough to veer. When he turned the stern of the Constitution to windward in the Canter case, 1 Pet. 511, in order, as he thought, to ride out the storm, he did not expect his successors to interpret their oaths to "uphold the Constitution" as requiring adherence to the course he had set, midst billows, darkness and duress.

When the Supreme Court comes to answer the "open question" posed by Chief Justice Vinson and Justice Douglas, it is devoutly hoped that it will use the materials unavailable to John Marshall and seek the historical basis for the judiciary provisions, to the end that the one institution, designed as a guardian against the assaults of power upon the liberties of men, may not refuse to liberty its aid, and yield to despotism its consent.

The restricted length of this article renders it impossible to discuss the "open question" raised in the Tidewater case except in a fragmentary manner. Material sufficient to fill hundreds of pages may not be compressed into a few without loss of substance.

Article I, Section 8, of the Constitution gives to Congress the power "To constitute Tribunals inferior to the supreme Court"; and also the power "To make all Laws which shall be necessary and proper for carrying into Execution" this power. Once the "tribunal" is constituted, Article III, Section 1, seizes it and transforms it into an "inferior court" the "Judges . . . [of which] . . . shall hold their Offices during good Behaviour, and shall at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office". Nowhere does the Constitution give to Congress the power to constitute any tribunal other than one whose members shall hold office by nonprecarious tenure. According to the plain words of the Constitution, birth and emancipation are simultaneous. "Quasi-judicial" tribunals, exercising judicial powers, with judges or "members" servile to executive or legislative powers are thus expressly forbidden. Does the Constitution mean what it says? On the answer to that question depends the constitutionality of many federal "administrative" courts, whose members hold office by precarious tenure.

Legislative Agencies Are Not
Part of Judiciary

In the first place we must exclude legislative agencies and executive agencies, by whatever name, which exercise purely legislative or executive functions, or both. Certainly Congress has the "power of the purse" and may establish a claims agency and call it a "Court of Claims" without making it "inferior to the Supreme Court" with nonprecarious tenure and undiminishable pay for its "Judges." Congress may do the same thing by committees, or it may legislate as to each particular claim. That is not "judicial." The "power of the purse" is power over the public purse, not power over the purse of citizens. The citizen, whose purse is being filched, under some legislative enactment, may question the right and, if he does, the Constitution guarantees to him a trial, fair in all its phases, before a judge emancipated from servility to the power that pursues and assails him.

It was the doctrine of every English King from James I to George III and every English courtier and minister from Wentworth and Laud to Lord North that territorial residents, or colonists, were not entitled to the fundamental rights of citizens, such as the right to have one's case tried before an emancipated judge. That doctrine was specifically repudiated by the American Revolution, and thereafter by the Continental Congress in giving to the residents of the Northwest Territory an emancipated judiciary while the Constitutional Convention was in session.

Despite this background, the Congress and the Supreme Court have been able to look at Article IV, Section 3 of the Constitution through a pinpoint peep-hole and deny to territorial residents the right to have their cases tried by an independent judiciary. Like George III, the Supreme Court has labored mightily about the peculiar status of territorial judges. That didn't seem to worry the framers of the Constitution. If territorial status should end in statehood, emancipated judges would be there and there would be no hiatus in the even flow of justice under law. If territorial status should end in some other unforeseeable manner, the tenure of such judges would still stand, but their "compensation" was made dependent upon "services" by Section 1 of Article III. Thus the public purse was protected from sinecures.

The blast of flint-locks and six shooters in our "wildwest" shows is a twentieth century commentation on the first signal failure of the Supreme Court to stand by the charter it had sworn to uphold with an undergirding arm.

By the same squinting at Article I, Section 8, Clause 17 and by the same warped process of reasoning we have been able to deny to the inhabitants of the District of Columbia the same fundamental right. A judge with the rhetorical capacity to magnify a louse and diminish an empire may make the enslavement of District of Columbia residents sound plausible and constitutional. Where does the Constitution vest "the judicial power of the United States" anyway? Whose "judicial power" is exercised in the District of Columbia, or in Alaska?

A typical "quasi-judicial" tribunal to which this article relates is one such as the National Labor Relations Board, which exercises judicial powers and whose members hold their offices for a term of years and who are removable at the pleasure of the President, (after a "hearing" of course) and who are as much under the control and influence of the President as the jury that convicted Algernon Sidney was under the control of the King from whose household many were drawn.

The NLRB adjudicates cases. It makes "findings of facts" which are binding, under the statute which creates it, as distinguished from prima facie. If such "findings" are supported by any substantial evidence in the record, the courts of appeals are powerless to stay an injustice, however shocking. Furthermore, the courts of appeals are forced, with a refined cruelty, to use and abuse their processes to carry into effect the "orders of the Board," thus making the independent judiciary paltry participant in a "quasi-judicial" crusade directed from the White House and its judges pitiful record clerks and shrouded pall-bearers at the tomb of liberty.

The power to make "findings of fact" and make them binding is the power to rule the world. Man's long struggle to establish a system for the selection of an indifferent and impartial jury, controlled by no power on earth, is a recognition of that fact. Any contention that a "board" servile to executive or legislative power performs the same function and is therefore valid requires no reference to days that are gone for a reply. We need only look at the bound volumes that record the history of the last decade to discover that argument to be a fraud -- a fraud upon liberty and a fraud upon a constitution that sanctions no power to find facts binding on man in any proceeding with judicial aspects, except in an independent judiciary or an impartial and indifferent jury.

If a jury does not exercise a judicial function when it makes a finding of fact, then what function does it perform? Are we to believe that it is executive or legislative? Shifting tribunals does not result in shifting functions. Mankind has not yet discovered a way to base a just judgment upon an unjust finding of facts -- and never will. Our Constitution-makers were neither too naive not to know that nor too base not to take it into account.

Before anyone can understand the judiciary provisions of the Federal Constitution he must know the "Constitution" of the American Colonies before 1776 as our forefathers knew it. He must realize that the Puritan Revolution of the 1640's and the "Glorious Revolution" of 1689, while effecting revolutionary changes in the British Constitution, effected none in the "constitution" of the American colonies.

Act of Settlement
Emancipated English Judges

The Act of Settlement of 1701 which gave to England the House of Hanover, gave to England, above all else, judges emancipated from control by the King by tenure during good behavior, and emancipated from control by Parliament by undiminishable pay, and removable only upon the address of both Houses of Parliament. This was the "seal" of the British Constitution that miraculously transformed Magna Charta, the Petition of Right and the English Bill of Rights from aspirations to realities. It ended forever the necessity or occasion for Parliament repeatedly to "reaffirm" Magna Charta as it had done more than thirty times during the preceding five centuries.(3)

The Act of Settlement was no part of the constitution of the American colonies. Their constitution was the same constitution, with only minor exceptions and changes, that England endured under Charles I. It was the same constitution that gave birth to all the executive courts that disgraced the reigns of the Stuarts, as well as the equally detestable legislative courts of the Commonwealth. The Court of High Commission, the Council of the North, the Star Chamber, etc., and the irregular parliamentary tribunals that followed their demise after 1641, -- all servile tools of tyranny -- were legitimate ancestors in the genealogy of the "constitutions" of the American colonies before 1776.

The efforts of colonial assemblies to re-enact and adopt such hopeful preservatives of human liberty as Magna Charta, habeas corpus, etc., were always disallowed as conflicting with the royal "prerogative".(4) Every fox-hole of liberty was sealed off with "prerogative".

In Volume I of his Commentaries, page 108, et seq., Blackstone describes the American colonial constitutions. The "constitutions" of the Provincial colonies, he said,

. . . depend on the respective commissions issued by the Crown to the Governors, and the instructions which usually accompany those commissions; under the authority of which, provincial assemblies are constituted, with the power of making local ordinances, not repugnant to the laws of England.

Typical instructions in 1758 may be found in Volume IX of New Jersey Archives, pages 40 through 107. This does not include several added thereafter, including one in 1761 to all governors of royal colonies forbidding them to assent to any law granting judges' commissions "during good behavior" on "pain of being removed from your government".(5)

Royal Governors Had Power
To Constitute Courts

The commissions to the governors of all royal colonies, authorized them to erect courts.(6) Throughout the colonial period, the Crown jealously guarded, by every means possible, its ancient prerogative to erect courts. Court bills in all the crown colonies met His Majesty's royal axe.(7) The Colonial Records of North Carolina, (Volume 6); Pennsylvania Archives, (Volume IV); Colonial Documents of New York, (Volume 6); Documents Connected with the History of South Carolina by Weston, page 138, et seq., as well as many others, reveal the bitter, yet losing, struggle of the American colonists to emancipate their judges from servility to the King, by assembly acts establishing courts and giving to colonial judges, tenure "during good behavior," in the two decades preceding the Revolution.

While the Crown permitted some encroachment upon "his Majesty's prerogative" in other matters, control over the colonial judiciary by commissions from the Crown with tenure "during pleasure" of the Crown, was to English Kings, as to all despots in all times, the biggest gun in the arsenal of tyranny.(8)

The part that a servile, instructed judiciary played in the settlement of the American continent; how England was depopulated of its patriots by way of the scaffold and by way of ships to America throughout the reigns of the Stuart kings by instructed judges;(9) the Englishman's struggle through five centuries to make Magna Charta something more than an aspiration; how it became a reality only after the emancipation of judges in the Act of Settlement; the struggle in America for another century to emancipate their judiciary from control by executive power; the struggle of the colonists against "prerogative" courts from their first settlements;(10) and the final loss of that struggle in all the colonies between 1754 and 1774, with a final appeal from the forum to the field in 1776, are not all that give meaning to the judiciary provisions of our Constitution.

Nearly every constitutional document preceding the American Revolution boldly indicts George III, as did the Declaration of Independence, for making ". . . Judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries." All of them protested against the admiralty courts, which had been extended "beyond their ancient limits" so as to permit dry-land persecutions.(11) These were the darlings of His Majesty -- they were the haggard and dissolute sisters of the prerogative courts of the Stuarts whose law was His Majesty's will.

It was the irregular admiralty tribunals with tenure at the pleasure of the Crown and subsisting, like birds of prey, upon the victims of their talons, that caused Washington to exclaim in 1767 that "no one ought to hesitate to take up arms" to drive them from American shores.

In England admiralty jurisdiction was confined to matters occurring upon the high seas and juries, "anciently" and usually, tried issues of fact. In the colonies the "ancient limits" were broken down and the jurisdiction of servile judges and custom officers, without juries, was extended to matters occurring within the limits of counties.(12)

On the eve of the American Revolution, but before the coercive Acts of 1774, John Adams could say:(13)

It may be depended on that all the commissions of Judges throughout America are without the words, Quamdiu se bene gesserint in them and consequently that this horrid fragment of futile despotism hangs over the heads of the best of them to this hour.

When King and Parliament sought to tax the colonists to "protect" them from "enemies" no longer existing after 1763, the colonists knew what the money was to be used for. Except in Georgia, and in New York after 1763,(14) they had in a measure restrained impecunious judges, holding office at the pleasure of the Crown, by raising or lowering their salaries in proportion to their zeal for liberty or for prerogative.(15) Now this last check-rein was severed at the bit, with salaries to be paid by the Crown from taxes collected from the colonists.(16) At long last, their chains were to be riveted with silver and gold extracted from their own pockets.

When the Massachusetts colonists learned that December 17, 1773, was the last day before tea aboard ships in Boston Harbor was to be seized by customs officers for nonpayment of duties, and that on the eighteenth it would be seized and later sold in the black market to raise money to pay servile judges, the "Mohawks" showed up on the night of December 16, muttering something that sounded ominously like "To Your Tents, Oh Israel," and threw it overboard.(17)

The Massachusetts Government Act of 1774(18) was the answer to the "Mohawks". It took from the people of Massachusetts every charter guaranty of justice under law. It specifically provided for rendering judges servile to the Crown both as to tenure and pay and set up elaborate machinery for packing juries -- the fact-finding tribunals of that day.

In thus polluting the streams of justice, King and Parliament imposed the rule of the Stuarts upon a charter colony as had been done long before in the royal colonies by king alone. In thus polluting the last trickling streams of justice, George III anticipated Karl Marx by seventy-five years,(19) and anticipated the United States Congress by 175 years. In 1774 it meant the sword -- and the sword to the hilt. In 1951 it is the historians' "hyperbole in the sanguinary simile" and it means "the empiric process of administration," as applied by obsequious executive "experts" to uncatalogued "devices and stratagems."(20) Thus the fruits of valor and victory in an ageless struggle are enmeshed and lost in the jargon of "social[ized] justice".

The Earl of Chatham was under no misconception in 1775 when he introduced a bill in Parliament which he believed would answer the "salutary purposes expressed in its title," being "A Provisional Act for Settling the Troubles in America . . .," under the terms of which admiralty courts were restricted to their "ancient limits" and colonial judges were placed upon the same footing with respect to nonprecarious tenure and pay as were the judges of England under The Act of Settlement of 1701.(21) It was only after England had lost the American Revolution that Parliament took the advice of Chatham, and, after 1780, to prevent further loss of its colonial empire, gave to all its remaining colonies an independent judiciary.(22)

In the struggle to maintain the royal prerogative to rule despotically, through the instrumentality of a servile judiciary, Charles I lost his head, James II lost his throne and George III lost an empire.

Most States Had Freed Judges
Before Constitution

Before the Declaration of Independence, South Carolina, Virginia and New Jersey adopted constitutions establishing judiciaries emancipated from executive control. Before the adoption of the Federal Constitution every state had adopted a constitution establishing nonprecarious tenure for its judges, except Pennsylvania and New Jersey, where terms for years "during good behavior" were established, except Connecticut and Rhode Island which had adopted their colonial charter, and except Georgia, whose judges had never known anything but dependence upon the King and Parliament both as to tenure and pay.(23) Georgia's civil establishment was supported by Parliament for many years as in Nova Scotia.(24) Connecticut had an independent judiciary from 1639 until one dependent upon the Assembly was imposed by its Charter of 1662.(25) It was elective and the first judiciary emancipated from control by any other branch of government known to the English-speaking world.

Rhode Island's Charter of 1663 made its judiciary dependent upon the legislative assembly. The decision in the Rhode Island case of Trevett v. Weeden (1786),(26) resulted in the judges being displaced for doing their duty. Judges were being awed by the Pennsylvania Assembly in 1787.(27)

That, as well as the experience of the people under legislative courts during the Commonwealth in England and the propensities of all legislatitive assemblies to usurp power, led our constitution-makers to fear legislative control as much as executive control.(28) Gouverneur Morris of Pennsylvania, on the Committee of Style, finally drafted the judiciary provisions. In the convention, he, and others, drove home the horrors of legislative tyranny. The recent Rhode Island case had been in every newspaper and was on the lips of everyone there.(29) For example, on July 17, Madison said:(30)

In Rhode Island the Judges who refused to execute an unconstitutional law were displaced and others substituted by the legislature who would be willing instruments of the wicked and arbitrary plans of their masters.

Everyone knew, of course, that the displacing of the Rhode Island judges resulted from their decision that the Assembly was without constitutional power to constitute irregular tribunals exercising judicial powers, which were not "inferior to the Supreme Court" of Rhode Island.(31)

Our Forefathers laughed(32) at the preamble to the Rhode Island law which said that, whereas

. . . the usual and stated methods and times of holding courts within this State is impracticable, inexpedient and inapplicable to the true intent and meaning of said Act, and altogether insufficient to carry into effect the good purposes of this legislature touching the same,

Therefore the irregular tribunal was necessary and proper. It is hard to understand the joke today.


From the middle of June until the end of the Constitutional Convention, the constitution-makers, who wanted a government of laws and not of men, were assiduously taking down legislative sails and fastening judicial anchorage onto the Constitution. For example, the words "inferior to the Supreme Court" went in after the word "tribunals"; the appointive power was taken from the Senate and given to the executive with Senate participation, and the fateful words "herein granted" went into the grant of legislative powers in Article I.

Isn't it a mystery that when the constitution-makers struck "tribunal" from the judiciary provisions of the Virginia draft and substituted "courts," they didn't also strike the word "tribunals" in the clause granting legislative power to create them, and substitute "courts"? According to Webster, a "tribunal" is a "person or body of persons having authority to hear and decide disputes so as to bind the disputants." A "court" is a "tribunal established for the administration of justice." "Courts" would not but "tribunals" would describe all engines of tyranny that had stalked through the pages of history, leaving their trails of maimed and broken bodies and plundered estates. As Gouverneur Morris observed: "The framers of this Constitution had seen much, read much, and deeply reflected. They knew by experience the violence of popular bodies. . . ."(33) The Rhode Island Assembly had taught them the distinction between a "tribunal" and a "court"; so had James I; so had Charles I; so had Cromwell; so had Charles II, James II, and George III, and so had scores of colonial governors.

If the framers had authorized Congress to constitute "courts" "inferior to the Supreme Court," it would have soon found somewhere the implied power to constitute some other "tribunal" servile to its will or the will of some president greedy for power. They had learned to "dread the depravity of human nature."(34) They knew that "jealousy and distrust are the guardian angels who watch over liberty," and that "security and confidence are the forerunners of slavery."(35) So they made that portion of the Constitution so plain a child could understand it and, expressly, authorized Congress to create "tribunals inferior to the Supreme Court," with nonprecarious tenure, so that no tyrant could ever again stalk across the pages of American history.

How could we so soon forget that it was the fear and distrust of state tribunals, servile to legislative power, in some states, that caused the framers to authorize the creation of any federal inferior tribunals at all?(36) Did that distrust of servile state tribunals lead the framers to embrace servile federal tribunals? Were they merely swapping harlots in Philadelphia? The authorizing clause defined the kind and excluded all others. There was no slip of the pen. The word "not" was never intended to be inserted between "tribunals" and "inferior".

Our constitution-makers intended that never again in America should irregular servile tribunals be commissioned and used to effectuate and enforce executive policy. Never again should a Governor Berkeley use such an instrumentality to send scores to the gallows in an orgy of mock trials, courts martial and murders.(37)

Never again should there be such a willing and zealous tribunal as that specially commissioned by Slaughter in New York in 1691 to try and execute Leisler and Milborne;(38) as that handpicked and specially commissioned to try witches in Massachusetts in 1692;(39) as that specially commissioned by Governor Cosby of New York in 1733 as a "court of exchequer" with an "equity side";(40) as that hand-picked and instructed by Lieutenant Governor Clarke of New York in 1741 to try and execute twenty-nine Negroes and three whites to effectuate an executive policy;(41) as that commisioned by Governor Martin of North Carolina in 1773 to try many and execute ten in areas where no regular courts existed by reason of the disallowance of one court bill after another by George II and George III since 1754, because such bills gave to judges tenure during good behavior.(42)

They intended that never again should "special" servile tribunals, such as that created by the Rhode Island Assembly in 1786; those created and extended by Charles I from 1629 to 1640; or such legislative courts as those created under the Commonwealth, be used to effectuate social and economic policies of those in power. They, therefore, said that if it is a "tribunal" under Article I, it becomes an emancipated "court" under Article III.

Founders Intended
To Create Free Judiciary

They intended that never under this new and untried sovereignty should a judge be dismissed from office for consulting his conscience and his God rather than his President. They, therefore, said that all men appointed to serve upon national tribunals exercising judicial powers "shall hold their offices during good behavior, and shall at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." They therefore said that all the judicial power of the United States shall be vested in tribunals whose judges hold office by non-precarious tenure and pay. They therefore said that "The Judicial power," vested exclusively in such tribunals, "shall extend to all cases in Law and Equity, arising under this Constitution, the Laws of the United States, and treaties made under their authority." They therefore said that if "cases" arise in any other manner, such as with respect to ambassadors, etc. or "admiralty and maritime jurisdiction" under laws of some other sovereignty, or the law of nations, "all" such "cases" shall fall within the judicial power thus vested. Governmental controversies, state or federal, might arise. They too were made proper subjects for the exercise of the judicial power of the United States. Thus the judicial power of the United States, vested in an emancipated judiciary, was extended to every kind and character of case or controversy known to the framers in 1787, which might be a proper subject for the exercise of federal judicial power. That judicial power not only included but was extended beyond proper subjects of federal legisation.

Why were the words "extend to" used in Article III, Section 2 instead of "be limited to"? The judges who posed the "open question" in the Tidewater case seem to think it was a slip of the pen, and they think a judicial correction imperative. If the framers had meant to use words of limitation instead of words of extension they would have done so. Words of limitation were readily found by them for insertion in Article I and there lies the trouble. Since the early days of the Republic, Congress has been endeavoring to slip the words, "herein granted" out of Article I and into Article III. At times the power of the sword has joined the power of the purse in the endeavor. Is that to be accomplished by a judicial correction?

Our failure to take the fatherly advice of George Mason and recur frequently to "fundamental principles" has led us into confusion when considering the judiciary in connection with limitation of powers. The "fundamental" is that the legislative makes, the executive executes and the judicial judges the law. If the executive and judicial may only execute and judge that which the legislative makes, then is it not true that the limitations imposed upon the legislative branch by Article I, are ipso facto limitations upon the executive and the judicial branches? Since the judicial was to judge of the Constitution, of the laws of nations and the states (in specified instances), it became necessary to insert Section 2 of Article III so as to "extend", (not limit) "the judicial power of the United States," to subjects over which the legislative branch was forbidden to legislate.

The general language of Section 1 of Article III vesting "the judicial power of the United States" in an emancipated judiciary was all that was necessary to coordinate judicial powers with legislative powers. Over-caution caused the framers to attempt to particularize the general powers while extending them to additional objects. They feared that the stronger branches of government might become so greedy for powers denied to them by the Constitution as to "jump on" the weaker branch and try to rob it of its powers.

Recapitulation and reiteration were used as devices to make the anticipated assaults more difficult. The historical experience that justified their fears has repeated itself. It is hoped that their wisdom will not be lost forever on a Supreme Court that finds virtue in headlong flight. A third reiteration, with a fourth saying "It all means what it says," would also have been lost on judges that wage furious wars with far-away constables and policemen and defenseless state legislatures, yet who never turn to give battle to those who have usurped powers with the curtilage of the very temple of justice they were commissioned by the people's constitution to defend as trustees for the people. The people gave them the most enviable tenure history has ever known that they might forget themselves and guard the liberties of the people with courage and honor. Indeed, the third and fourth reiterations were substantially added as the ninth and tenth paragraphs of the Bill of Rights. But of what avail is a four-ply "logical net" when a cringing judiciary defines such a simple word as "extend" in Article III, as meaning "limit," while words of limitation in Article I are consistently defined as words of extension?

The Tribunal Clause of Article I implements and preserves the sanctity of the judiciary. Its language is reiterated in Section 1 of Article III, in order to make it a "logical net." Nevertheless, we are now told that the Commerce Clause in Article I, carries a death warrant for the Tribunal Clause and that the Necessary and Proper Clause is its gibbet, and that the heavenly thing called "social justice" is now to be achieved by the martyrdom of justice. History is to again repeat itself. The martyrdom of justice to "social (ist) justice" has always accompanied the transition of governments of laws to governments of flesh. Governments of flesh have always gone the way of all flesh and always will. In going, a divine retribution has always made the victors of today the victims of tomorrow. We are still digging and excavating in the ruins of ancient civilizations, all of which testify to these truths. Indifference to history and indifference to impartial justice under law, seem always to walk hand in hand leading a deluded people in bankruptcy down the last mile to the graveyard of fallen empires.

It has been often said that the Constitution is bigger than the men who made it and that those who made it didn't understand it. That is true with respect to some, but not all, who helped to make it. Some understood it well and a precious few were bigger. For example, more than half of the amendments to the Constitution, including the last, were insisted upon by George Mason in Philadelphia. The so-called "Father of the Constitution" either did not understand it, or soon lost his high principles along apostasy's low road. After Mason and Henry kept Madison from going to the Senate from Virginia, he, as a lowly member of the House of Representatives, on June 16, 1789, expounded the doctrine "that the meaning of the Constitution may as well be ascertained by the legislative as by the judicial authority,"(43) after having decried such a treacherous doctrine as a Constitution-maker. Madison's change of front is but an illustration of the transition that too often takes place when frail men are shifted from powerless positions to positions of power over men. A constable's badge makes tyrants of some men. A few yards of black cheese cloth makes fools of some, while making others noble and benign. It is no wonder that the Great Master of men, to whom the world had given a Judas, taught us just one simple prayer that begs deliverance from our "temptations," our "trespasses," our "evil," and our hunger for "daily bread," while leaving to our own pitiful wits the phrasing of prayers for things less urgently needed!

As John Marshall fought the Battle of the Constitution, many of the Constitution's framers were his adversaries, turned apostates by the accident of changed positions. The havoc wrought by apostasy within the Constitution's first twenty-five years caused Gouverneur Morris to make the priceless revelation that the judiciary provisions of the Constitution were recapitulated and reiterated to make a "logical net" for the "legislative lion." What he said in 1814, as the judiciary was being pulled limb from limb by the "lion," might have been said yesterday:(44)

But, after all, what does it signify that men should have a written constitution, containing unequivocal provisions and limitations? The legislative lion will not be entangled in the meshes of a logical net. The legislature will always make the power which it wishes to exercise, unless it be so organized as to contain within itself the sufficient check. Attempts to restrain it from outrage, by other means, will only render it more outrageous. The idea of binding legislators by oaths is puerile. Having sworn to exercise the powers granted, according to their true intent and meaning, they will, when they feel a desire to go farther, avoid the shame, if not the guilt, of perjury, by swearing the true intent and meaning to be, according to their comprehension, that which suits their purpose.

Now let us end this digression and its revolting scenes and go back to the arena in which selfless men out of power were seeking to forge a charter for a free people.

Gouverneur Morris, who favored the executive branch over the legislative in the struggle for power, and George Mason, who wished to limit both in his struggle for human liberty, reached a partial understanding "out of doors" in the last days of the Convention. Randolph didn't know what hit his "Virginia plan."(45) He was in a fury, striking like a wounded wolf. As he was cooling down, after refusing to sign the Constitution, he wrote the Virginia House of Delegates urging amendments and their aid, "In limiting and defining the judicial power."(46) Even he had too much faith in the virtue of men to believe that such might be accomplished someday by "legislative exposition" in the face of a cringing judiciary.

When Randolph returned to Virginia he ran into a thousand questions. Some were embarrassing and unanswerable. Soliloquy tortured him. Finally it dawned upon him that "limiting . . . the judicial power" must necessarily result in the transmission of such power from the clean hands of an emancipated judiciary to state tribunals, some of which were servile and hence unclean, or to the filthy hands of demagogues. He was driven to sack-cloth and ashes. God and history told him that judicial power has never been, and never will be dangerous to human liberty except when externally controlled. He no longer insisted upon stoking the boilers of executive and legislative powers with timbers torn from the only haven built into the Constitution for helpless men hotly pursued by arbitrary power. As he supported the Constitution in the Virginia Convention, he was again tortured as he heard John Marshall turn the tide of battle to the side of the "paper on the table" with his encomiums of the independent judiciary set up in that "paper", and its favorable comparison with the emancipated and fearless judiciary George Mason had given to Virginia in 1776.(47)

Who is it, the least familiar with history, that does not know that it was the provisions of the Constitution emancipating the judiciary that saved it from ignominious defeat and gave it final acceptance in the necessary nine states? No President or Congressman would ever have had the opportunity to take an oath to abide by and to "defend" that "paper" if the people had not been convinced that an emancipated judiciary would make them live up to that oath.

Among all the brilliant proponents and opponents of the Constitution throughout the states, not a letter was ever written, and not a word was ever said in the press, or in the debates, either in the Philadelphia Convention or in the several state conventions, that could be taken as remotely implying that anyone believed that Congress was given the power to create a tribunal exercising judicial power which would not be "inferior to the Supreme Court" with nonprecarious tenure for its members. Such an argument, if valid, would have ended the debates and the proposed Constitution. When Gerry refused to sign the Constitution and cried, "Star Chamber," he was careful to define such Star Chamber as a tribunal, though inferior to the Supreme Court, yet proceeding without a jury in civil cases.(48) If anyone had argued "quasi-judicial tribunal" as one not falling under Article III, he would have been justly branded a charlatan.

Our Forefathers would have known that "quasi-judicial" is simply "judicial" with a Roman handle. They were prepared for the adulteration of "judicial" with some other ingredient. Such alchemy had been tried on them before. The British Board of Trade and the Privy Council, in its colonial aspects, were the most perfect examples of "quasi-judicial" tribunals history afforded to them aside from the old Star Chamber and High Commission. It was they who rammed the King's "prerogative" down their throats.

It was the privy Council, acting in its "quasi-judicial" capacity, that had caused George II and George III to disallow scores of court bills enacted by colonial assemblies from 1752 to 1774, extending justice to their frontiers and giving to judges nonprecarious tenure, because they were "subversive of the Constitution and restrictive of Your Majesty's just Rights and Prerogative . . . thereby setting aside the effect of one fundamental Principal of the Constitution of the British Colonies." Furthermore, they said, nonprecarious tenure tended "to lessen that just dependence which the Colonies ought to have upon the government of the mother country . . . [and was] . . . highly prejudicial to the just rights of the Crown and the Acts of Trade."(49)

It was this "quasi-judicial" body that had prepared for the signature of George III the instruction to the governors of all royal colonies on December 9, 1761, as follows:(50)

Whereas laws have been lately passed or Attempted to be passed in Several of our Colonies in America enacting that the Judges of the Several Courts of Judicature or other Chief Officers of Justice in the said Colonies shall hold their Offices, during good Behavior; And Whereas the Governors or other Chief Officers of Several others of our Colonies have Granted Commissions to the Judges or other Chief Officers of Justice; by which they have been empowered to hold their said Offices during good Behavior, Contrary to the express Directions of the Instructions given to the said Governors or other Chief Officers by us or by our Royal Predecessors; And Whereas it does not appear to us, that, in the present Situation and Circumstances of our said Colonies it would either be for the Interest or Advantage of the said Colonies, or of this our Kingdom of Great Britain that the Judges or other Chief Officers of Justice, should hold their Offices, during good Behaviour; It is therefore our express Will and Pleasure that you do not upon any pretense whatever upon pain of being removed from your Government give your assent to any Act, by which the Tenure of the Commissions to be granted to the Chief Judges, or other Justices of the Several Courts of Judicature shall be regulated, or ascertained in any manner whatsoever; and you are to take particular care in all Commissions to be by you Granted to the said Chief Judges, or other Justices of the Courts of Judicature that the said Commissions are Granted, during Pleasure only, agreeable to what has been the Ancient practice and usage in our said Colonies and Plantations.

Against such a background of experience, Blackstone,(51) Adam Smith,(52) Montesquieu(53) and others were screaming to the founders of the Republic, from the printed page, that it matters not what they wrote in Philadelphia -- it matters not what laws and charters may say, "There can be no liberty if the judiciary be not separated from the executive and the legislative." With the help of God and the English language, they meant to emancipate one so as to achieve the other.

Servile Tribunals and the Military--
Weapons of Tyrants

Our Forefathers may have been "reactionary," but they weren't fools. They knew the devious ways employed by rulers to reach the utmost verge of their powers, and then roam at large in forbidden fields. They knew that the purpose of all delineating bulwarks is to halt rogues -- not angels! They knew that tyrants exert force by only two instrumentalities, viz., servile tribunals or the military. Article III was plainly worded so as to seize and emancipate every "tribunal" possible to be created under Article I. The Framers intended that if their children should ever lose their liberty by the old servile tribunal method, the judges who sanctioned it should forfeit the respect and earn the contempt of all mankind, including children.

Those disciples of Karl Marx who interpret American history and construe the Constitution on the basis of "class antagonisms,"(54) are strangely silent when they come to the judiciary provisions of the Constitution. They do not even reveal, much less explain, that among the relatively few things that met the unanimous approbation of all men in the Constitutional Convention and in the state ratifying conventions, were the provisions emancipating judges from control or influence by any other branch of government by nonprecarious tenure and pay, and rendering the legislative branch powerless to erect any tribunal exercising judicial power except one whose members should hold their offices by such a tenure. Those who opposed the congressional power to create any inferior tribunals on account of jealousy for state tribunals, when defeated, joined with all "classes" in settling forever any question as to the tenure of the members of such tribunals. Given a choice, all rejected the high road to tyranny.

Why don't the records of the conventions tell the whole story? If there is no controversy, there is no debate. If there is no debate, there is no record of debates. Madison buried that story with the notation: "Nem con." 2 Farrand 44, 315, 320.

George Mason refused to sign the Constitution for the reason that it did not give to the judiciary the weapons inherent in a Bill of Rights, to repel the assaults of power against the liberties of men. But for an independent judiciary, as the recipient of all judicial power the Constitutional Convention would have been a Timon's banquet for the masses of men. Every devotee of human liberty realized that an independent judiciary was the "sole protection against a tyrannical execution of the laws" to be enacted by the legislative branch.(55)

The argument of "expediency" is often heard to support power. No argument as to expediency can appeal to the mind of an honest judge looking upon his charter. The Temple of Justice was never intended to be a castle of Morpheus nor the judicial robe a sleeping gown. Whatever a man in a business suit may do judicially under the title of "member," he may also do in a judicial robe under the title of "judge." If not, he is unfit to wear such robe. How the Colony of Virginia in 1658(56) changed its court procedure so as to make unnecessary any executive or administrative courts, such as admiralty, chancery, exchequer, etc., and the success of this system for seventy-five years until finally broken down, under the heavy-handed power of the throne;(57) and the belated and partial accomplishment of the same objective by the new rules of federal procedure in federal courts, are other answers to the argument of expediency. Federal tribunals were left unfettered by the common law and its obsolete procedure, as an answer to those who might urge the creation of servile tribunals as necessary or proper, procedurally, for exertion of judicial power.

The argument of "prior legislative exposition" is heard to support power. Precedents of usurpation of power create no legal authority. Upon the integrity of that principle rests the validity of every right man has ever wrested from power, and every liberty he has ever torn from tyrants.

Should We Emulate
the Stuart Kings?

In 1631, Charles I said it was necessary and proper that he have vigorous and expanded executive courts at his disposal to effectuate his royal will, in the interest of "good government and to avoid delays." Hence he named all the members of his Council severally to a standing committee to fix the jurisdiction of all the courts of England, reserving to the Star Chamber, High Commission and other irregular tribunals, in the North, in Wales and elsewhere, that which he wanted them to have, saying.(58) "It being manifest that our Justice . . . is originally and in Sovereignitye onlye and intyrely in ourselves."

If it is "necessary and proper" for Congress to emulate Charles I, it is "necessary and proper" that our Constitution be amended. While the people turned over to their emancipated judges the "keys" to their Constitution to enable them to keep and guard it for them, they retained in themselves the sole right to change its structure. Any usurper of that right, though he be one of the guards, and a whimpering "liberal", is but a traitor within the gates -- a constitutional "Quisling"!

Such an amendment was twice rejected on August 27, 1787, in Philadelphia. A motion was made to insert in Article III, Section 3, -- "In all the other cases before mentioned(59) the judicial power shall be exercised in such a manner as the legislature shall direct." The motion was defeated, only two states voting for it.(60) Next a motion was made to strike from the August 6 draft, as reported by the Committee of Detail, the following appearing in Article III, Section 3: "The legislature may assign any part of the jurisdiction above mentioned (except the trial of the President of the United States) in the manner and under the limitations which it shall think proper, to such inferior courts as it shall constitute from time to time." That motion to reject carried unanimously.(61)

Thus ended the last effort at Philadelphia to establish a federal judiciary that could be rigged by the party in power to effectuate transient policies. At last the judiciary became a tribunus plebis and was retained by the people as a check upon the propensity of all governments in all ages to usurp powers at the expense of individual freedom.

Only Mason, Gerry and Randolph refused to affix their names to the completed document. The common people were not so unanimous. They knew that liberty always loses in effectiveness that which the government gains in power. They still worshipped their martyrs such as Algernon Sidney who had told them: "Man is of an aspiring nature, and apt to put too high a value upon himself; they who are raised above their brethern, though but a little, desire to go farther; and . . . they think themselves wronged and degraded, when they are not suffered to do what they please."(62) Patrick Henry was their spokesman: "Human nature will never part from power. Look for an example of a voluntary relinquishment of power, from one end of the globe to the other -- you will find none."(63) They, like him, were unwilling to "depend on so slender a protection as the possibility of being represented by virtuous men."(64) "Virtue will slumber."(65) While an emancipated judiciary was preserved to them as the "sole protection against a tyrannical execution of the laws,"(66) they were not satisfied. They agreed with Patrick Henry: "My great objection to this government is, that it does not leave us the means of defending our rights or of waging war against tyrants."(67) More legislative sails and executive rigging had to come down and more judicial anchorage had to go in. An arsenal of weapons must be given to the judiciary to enable it to wage the ever recurring "war against tyrants".

"No Bill of Rights, no Constitution" was the watchword among the sons of the Sons of Liberty. At last George Mason's Bill of Rights became the seal of an instrument that should limit power as well as confer power. Nine of the first Ten Amendments gave to the judiciary powerful weapons to use against tyrants. The other amendment (the second) guaranteed "the right of the people to keep and bear arms" as "necessary to the security of a free State."

When a servile and corrupt judiciary abandons the people and enlists in the service of those who would enslave mankind by the age old methods of tyrants, the rifle over the "fire board" is the last slender "security of a free State". It served its purpose well from 1773 to 1776 as Sons of Liberty cried out their watchword, "To Your Tents, Oh Israel,"(68) and drove servile judges to a haven in His Majesty's ships.(69) But the despots who sit secure under the effigy and ensigns of freedom in the twentieth century, cannot so readily be deposed by such methods.

Have We Nullified
the Revolution?

Those who rest in unmarked graves from Lexington to Yorktown were not fighting to decide who should govern, but to decide how they and their children should be governed. Was it all in vain? Have we nullified the American Revolution? Is our Constitution a cruel hoax? Does not an emancipated judiciary stand as the last barricade on the road from Moscow to Washington?

If we have turned back the clock more than three centuries, and have reverted to John Locke's(70) "appeal to Heaven," then let us start again with Sir Edward Coke's prayer: "God send me never to live under the law of convenience or discretion."(71)



1. Elliott's Debates 506.

2. Justice Frankfurter: "Conflicting minorities in combination bring to pass a result -- paradoxical as it may seem -- which differing majorities of the court find insupportable."

3. The Petition of Right (1628) and the Bill of Rights (1689) proved to be vain efforts to breathe life into Magna Charta, particularly its twenty-ninth chapter which expressly forbade the use of special servile tribunals as instruments af executive power. Petition of Right, Paragraphs II, V, VII, VIII, IX and X; Bill of Rights, Paragraphs I, II, III, X, XI and XII. Tenure of judges during good behavior and without servility to executive power was an issue in the Puritan Revolution. Gardiner, Constitutional Documents of the Puritan Revolution, 1625-1660 (3d Edition) Introduction and pages 38, 213, 253, 263, 284. The Grand Remonstrance (1641): "Judges have been put out of their places for refusing to do against their oaths and consciences; others have been so awed that they durst not do their duties, and the better to hold a rod over them, the clause Quam dieu se bene gesserint was left out of their patents, and a new clause Durante bene placito inserted." Paragraph 38, Gardiner, op. cit., 213. 3 Life and Works of John Adams, 511.
  England relearned that to destroy tyrants is not to destroy tyranny; that tyranny can only be destroyed by curtailing power. Thus the same issue persisted under Cromwell. Gardiner, pages 318, 357, 359, 374, 383, 416, 445. 2 Haller, Tracts on Liberty in the Puritan Revolution, 179, 204, 289, 313, 361, 400, 403.
  The same issue persisted after the restoration, in violent form. Haynes, Selection and Tenure of Judges, 59 et seq. It was an issue in the "Glorious Revolution." Hallam, Constitutional History of England, c. XV. The issue was not settled by the Bill of Rights, but William III promised to grant tenure to judges during good behavior.
  England was soon to relearn that lust for power is never satisfied except when the Goddess of Liberty is being ravished. Before the ink was dry on the English Bill of Rights, William III appointed a "Committee on Instructions to the Judges about To Go on Circuit." 1 Turner, The Privy Council, 1603-1784, 204 (July 1, 1689). In 1692 he refused his assent to an Act of Parliament establishing tenure for judges during good behavior and fixed pay. Hallam, op. cit., c. XV. Just two years before the Act of Settlement, William lll called all judges about to go on the assizes to come before his Council for "instructions." 1 Turner, op. cit., 144.
  It was from the history of a servile and instructed judiciary in England and the miraculous transformation accomplished by the Act of Settlement, as well as the example of an emancipated judiciary established by William Penn in the Pennsylvania Colony in 1682, that Montesquieu relearned an age-old truth: "Constant experience shows us that every man invested with power is opt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits! To prevent this abuse, it is necessary from the nature of things that power should be a check to power . . . There is no liberty if the judiciary power be not separated from the legislative and the executive." Montesquieu, Spirit of Laws, Book XI. On Penn as "a real Lycurgus," Book IV, c. 6. Penn's Charter of Liberties, Thorpe, Charters and Constitutions 3047, 3054. Those who would parrot after the English pedantic historians, Dr. Trevelyan and Macaulay, and say, "It is now well understood that Montesquieu did not understand English institutions," either misunderstand Montesquieu or English history. Our constitution-makers understood both. Liberty of Thought and the Separation of Powers, Charles Morgan (1948); Federalist, No. 47; 4 Elliott's Debates 121; 1 Farrand, 391; 2 id. 34, 530; 3 id. 108, 109.

4. 3 Colonial Documents, New York 357; Russell, Review of Colonial Legislation 140.

5. 6 North Carolina Colonial Records 591; 9 New Jersey Archives 321; 7 New York Colonial Documents 476; 11 Board of Trade Journal 229-233.

6. 9 New Jersey Archives 349, 475.

7. Russell, Review of Colonial Legislation 189.

8. Hitler, 1942: "Judges who do not recognize the needs of the hour will be removed from office." Vishinsky, 1948: "Law is an instrument of politics . . . There are libraries full of books trying to prove the contrary, but it is known to be a legal fiction." Address, Lord Morton, 33 A.B.A.J. 889. James I, about 1620: "While I have the power of making Judges and Bishops, I will make that to be law and gospel which best pleases me." 2 Algernon Sidney, Discourses on Government (Richard Lee Ed. 1805) 312. Lord Bute, Prime Minister under George III, 1761: "The forms of a free and the ends of an arbitrary government are things not altogether incompatible." 4 Green, History of the English People 221. Dr. Kurt Schuschnigg, (Chancellor of Austria, 1934-1938) speaking to American Judicature Society, in the fall of 1950, on "A Lesson from Central Europe," where traditional courts of justice were replaced by "popular tribunals" and "peoples courts" and honorable judges dismissed from office said: "When the independence of courts disappears because judges have become accustomed to taking political orders; when dogmatic politics defines the law as that which is useful to the nation; when judges are purged because of . . . politics; when they are required to decide . . . cases . . . according to . . . what has been called 'the healthy sentiment of the perception of the people'; and when this perception is regulated and dictated from above; when the total corruption of the Judiciary is completed -- then and only then is modern totalitarianism . . . able to paralyze the minds of the people . . . As long as an independent judiciary exists intact there can be no totalitarianism. There are no degrees of totalitarianism . . . a divided or half totalitarianism is as much a contradiction . . . as the phrase 'communist democracy.'" Journal American Judicature Society (October, 1950). See also: "The Debasement of Germany's Legal System," 36 A.B.A.J. 634, August 1950; Denham, "And So I Was Purged," Saturday Evening Post, December 30, 1950, page 22; "Judicial Independence Essential to Free Government," 33 A.B.A.J. 1087; Address, McRuer, C. J. Ontario Supreme Court, 72 A.B.A. Rep. 337.

9. Pittman, "History of Privilege Against Self-Incrimination," 21 Va. L. Rev. 770 et. seq.; Privy Council Record LVI, March 14, 1662; LX, June 3, 1668; Gardiner, Constitutional Documents, Puritan Revolution 215. 1 Winthrop's Journal 272.

10. Governor Dobbs of North Carolina to Board of Trade in 1762: "No Exchequer Court has yet been held nor is it safe to attempt it . . . for fear of a general outcry and opposition to it, the government having no force to support their authority." 6 North Carolina Colonial Records 623.

11. See MacDonald, Documentary Source Book of American History for typical protests.

12. 6 George II 13; 4 George III 15; 5 George III 33; 5 George III 12; 7 George III 46; Kellogg, American Colonial Charters 259, et seq; Bland, Inquiry Into Rights of British Colonies (1766); 2 Rowland, Life of George Mason 381; MacDonald, Documentary Source Book of American History 117, 136, 146, 162. The admiralty courts were the "commerce courts" prior to the Revolution. Until around 1840, the words "to ship" meant only "to send by ships."

13. 3 Life and Works of John Adams 558.

14. 7 New York Colonial Records 7, 797.

15. Russell, Colonial Legislation 192. 6 New York Colonial Documents 462, 470, 484, 500-505. 9 New Jersey Archives 323-326, 345-347. 11 Board of Trade Journal 255, 263, 285.

16. McDonald, op. cit. 117, 122, 155, 159. New Hampshire was the last of the states to adopt a Constitution and bill of rights before the Philadelphia Convention. Its Bill of Rights of 1784 contains a typical expression of the prevailing contemporaneous views with respect to the emancipation of judges. Paragraph 35 is as follows: "It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit. It is therefore not only the best policy, but for the security of the rights of the people, that the judges of the supreme (or superior) judicial court should hold their offices so long as they behave well; and that they should have honorable salaries, ascertained and established by standing laws." Thorpe, Constitutions and Charters 2457. Many previous state constitutions and bills of rights contain similar provisions. New Hampshire, like all the other colonies, had tasted the bitter cup of tyranny held by the hand of a servile judiciary. It too had fought back with every feeble weapon at hand. For all of its nearly one hundred years prior to 1771 (except from 1686 to 1689), its assembly had refused to pay one cent towards the salary of judges holding office during the pleasure of the King. Fry, New Hampshire, as a Royal Province 465, et seq. It had seen its judges come and go "at the pleasure" of kings and their governors, until all its springs of hope were filled with despair. Ibid, 465. As it was finally breaking, under the heavy hand of power, and at last voting salaries to servile judges to rescue its frontier from anarchy, one may discern pathetic resignation in its plea for an emancipated judiciary in 1769. 7 Province Papers of New Hampshire 230. Probably more American colonial judges were removed "at the pleasure of his majesty" during the seventy-five years after the Act of Settlement, than were removed in England during the seventy-five years preceding the Act of Settlement. See, for examples: Tanner, The Province of New Jersey, 1664-1738, c. 23; Field, Provincial Courts of New Jersey, (numerous pages); 6 New York Colonial Documents, pages 14, 404; 1 Collections Historical Society of South Carolina, pages 90, 92, 130, 134; 2 ibid., 273, 306, 309; Rivers, Early History of South Carolina c. 61, § 6; 2 Carroll, Historical Collections of South Carolina 427; 1 North Carolina Colonial Records 705; 8 Colonial Records of Georgia 735-749; Stokes, View of the Constitution of the British Colonies in 1776, 158; Fry, supra at 465; Haynes, Selection and Tenure of Judges, 59, et. seq.

17. Miller, Origins of the American Revolution 347.

18. McDonald, op. cit. 155; 14 George III 29, 45.

19. Capital and other Writings of Karl Marx (Carlton House Edition 1932) 379, 404.

20. N.L.R.B. v. Gullett Gin Co. 71 S. Ct. 337, citing Frankfurter in Phelps Dodge Corp. v. NLRB 313 U.S. 177. For the "historian's . . . hyperbole" see, Jones v. Securities Commission, 298 U.S. 23.

21. Raynal, History of British Settlements and Trade in North America (1779) 351, et seq.

22. Reinch, Colonial Government (1902) 363.

23. Governor Wright of Georgia removed Chief Justice Graver in 1763 for "insubordination." 8 Colonial Records of Georgia 735-749.

24. 11 Board of Trade Journal 238.

25. Thorpe, 519 et seq.; 1 Winthrop's Journal 290. William Hard, The Connecticut (1947) 61 et. seq.

26. 1 Thayer, Cases on Constitutional Law 73: Bates, Rhode Island and the Union 107, 128-134. James M. Varnum, Pamphlet, Trevett v. Weeden, printed by John Carter, Providence, 1787.

27. Federalist, No. 48.

28. 2 Elliott's Debates 480. 3 Farrand 47. Federalist, No. 48.

29. 1 Farrand 12, 13, 479; 2 id. 42; 3 id. 19, 47.

30. 2 Farrand 28. Rhode Island judges were displaced as the Constitutional Convention was getting under way in 1787. Bates, supra. Madison made his speech about Georgia and Rhode Island judiciaries on July 17. On the next day Ghorum and Gouverneur Morris made speeches about the situation in Rhode Island. On that day judges were emancipated "Nem Con".

31. This decision was based in part on the twenty-ninth chapter of Magna Charta. Bates, supra.

32. 2 Farrand 47, 48. The humorous opposition to perpetuating the laws of Rhode Island by Gouverneur Morris seems to have brought forth a laugh from every one except members of the Georgia delegation who got an inferiority complex from it. When Madison, a few minutes later, proposed to guarantee the constitutions of the various states, Houston, of Georgia, said he didn't want Georgia's constitution perpetuated because it was "a very bad one." (While purporting to "separate" the judiciary from the legislative and executive it effectively abolished it. Thorpe, Charters and Constitutions 782, 783) History does not record that some delegate said "Pennsylvania's Constitution doesn't smell like a rose," but something like that must have been said. Pennsylvania's Constitution made judges appointive by the executive and removable by the Assembly for "misbehavior at any time." Tenure was for seven years. The Assembly had already used its power to awe the judiciary. Federalist, No. 48. Wilson, in the Pennsylvania ratifying Convention, reported to the people of Pennsylvania on the "surprise" of others at the judiciary provisions of their Constitution, commenting that "if, every five or seven years, the Judges are obliged to make court for their appointments to office, they cannot be styled independent." 2 Elliott 480. Pennsylvania changed her constitution a few months thereafter and established an independent judiciary. Thorpe, 3096.

33. 3 Farrand 393.

34. 3 Elliott's, 327.

35. Ford, Essays on the Constitution 379.

36. Federalist, No. 81; Cohen v. Virginia, 6 Wheat. 264, 386. 1 Farrand 124, 125, 2 ibid. 46.

37. Jameson, Narratives of The Insurrections 15, et seq., 38-41; 97 (1676] 124, 125; 2 Farrand 46. Of Berkeley even Charles II said: "That old fool has hanged more men in that naked country, than I have done for the murther of my father". Jameson, op. cit. 40.

38. Jameson op. cit. 392.

39. Burr, Narratives of the Witchcraft Cases 199, 373.

40. 40. 6 Documents Relating to Colonial History of New York 4. This tribunal was instituted, according to Cosby's report to the Board of Trade, to give "dispatch to business which the King's suits require." It was not to be "inferior to the Supreme Court" of New York, but, like its counterparts in the twentieth century, was to have a different status. Its first case disclosed the reason for every special tribunal in history -- "a sneaking job to be done." It was Cosby v. Van Dam, in which the Governor himself was seeking to recover half the salary and perquisite of government granted him by the King. Chief Justice Morris of New York held the court to be unconstitutional and was promptly removed by Governor Cosby who named another whose patriotism for promotion exceeded his patriotism for liberty. Peter Zenger took up the battle in his New York Journal for an independent judiciary. It was the "false and scandalous libels printed in Zenger's Journal" against Cosby for rendering the judiciary of New York servile to his will that led to his imprisonment, trial and pardon by a jury. 6 Documents of New York 4, 5, 11, 14, 20, 42, 43, 89. Rutherford, John Peter Zenger (1941) 197. The Zenger case was vastly more than a "freedom of the press" case. It was a "freedom of the judiciary" case. Therefore it involved all human freedoms. When Chief Justice Lewis Morris was called upon by Governor Cosby for a copy of his opinion in the Van Dam case, he knew the book was closing on his judicial career. He knew that he had exchanged life's material things and its transient preferments, for the privilege to stand erect and unafraid before his conscience and his God! When he complied with the command of his Governor, he also gave a copy to Peter Zenger. To the opinion was added a note, in part as follows: ". . . Judges are no more infallible, than their superiors ore impeccable: But if judges are to be intimidated so as not to dare to give any opinion but what is pleasing to a Governor, and agreeable to his private views and the people of this Province, who are very much concern'd both with Respect to their Lives and Fortunes in the Freedom and Independency of those who are to Judge of them, may possibly not think themselves so secure in either of them as the Laws of his Majestie intends they should be. . . . As to my Integrity, I have given you no Occasion to call it in Question. I have been in this Office allmost Twenty Years, my Hands were never foul'd with a Bribe; nor am I conscious to myself, that Power or Poverty hath been able to induce me to be partial in the Favour of either of them. And I have no Reason to expect any Favor from you, so I am neither afraid nor ashamed to stand the Test of the strictest Inquiry you can make, concerning my Conduct. I have served the Public faithfully and honestly, according to the best of my Knowledge; and dare, and do appeale to them for my Justification." The Opinion and Argument of Chief Justice Morris, as printed by John Peter Zenger, in Smith Street, 1733, pages 14, 15. New York Public Library. The story of how this great judge went to England and there won restoration to his judgeship by fanning into flame the dying embers of honor and rectitude in the hearts of the King's Ministers; how his magnitude as a man so impressed them that they offered to divorce the Government of New Jersey from New York and make him Governor of the former; his acceptance, and how he ended judicial despotism in New Jersey by issuing commissions to judges "during good behavior," in 1738, is to long to tell here. It was for the renewal of such commissions, (one of which bore the signature of Governor Lewis Morris, dated 1738) after the death of George II (but before receiving the new Instruction of December, 1761), that Governor Hardy was removed by George III in 1762. 9 New Jersey Archives pages 345, 346, 360, 361, 379. Chief Justice John Hunter Morris, Judges Nevill and Salter surrendered their commissions and took commissions "during pleasure" in a futile attempt to save Governor Hardy. 9 New Jersey Archives pages 367, 361. His removal stood, "as a necessary example to deter others in the same situation from like Disobedience to Your Majesty's Orders, and as a measure essentially necessary to support Your Majesty's just Rights and Authority in the Colonies . . ." Lest we forget: Gouverneur Morris, whose hand contributed much to the judiciary provisions of the Constitution, was a grandson of Lewis Morris, a nephew of John Hunter Morris and the son of Lewis Morris II, who was for a time Speaker of the New York Assembly. He paid a large part of Andrew Hamilton's fee for representing Peter Zenger, and, after Zenger was acquitted, organized the biggest celebration (per capita) that New York City has ever known. John Hunter had been Governor of Pennsylvania for a short time also. 9 New Jersey Archives 378. Gouverneur Morris was named after the Gouverneur family of old New York. Abraham Gouverneur was sentenced to hang with Leisler and Milborne by a tribunal servile to Slaughter. Jameson, Narratives of the Insurrections 338, 369, 393.

41. 6 Documents New York 196, 201 et seq., 213. A "negro plot" to burn down the City of New York, soon became a "popish plot" under Clarke's diversionary tactics. The "popish plot" soon became no "plot" at all, and Clarke confessed to the Board of Trade, after all these executions at the stake and on the gallows, that "great industry had been used throughout the town to discredit the witnesses and prejudice the people against them, and I am told it has had in a great measure its intended effect. . . . I do not think we are yet got near the bottom of it, when I doubt the principal conspirators lie concealed." Clarke also told the Board: "I desired the Judges to single out only a few of the most notorious (Negroes and white Catholics) for execution, and that I would pardon the rest." The Board responded, as did Charles II after Jeffrey's return from the "bloody assizes": "We heartily congratulate you." 6 Documents New York 196-203, 213.

42. North Carolina Colonial Records, Volumes 6, 7, 8 and 9, on hundreds of pages.

43. 4 Elliot's, 399.

44. 1 Elliott's, 507.

45. By the end of August, old George Mason saw that his battle for the rights of men was all but lost in the conflict between two factions, warring over legislative versus executive dominance. He began to draft proposed alterations, handing them to who ever he thought might use them in that raging conflict, ostensibly, so that "the system would be unexceptionable." One proposal was that, "The object of ye national Government to be expressly defined instead of indefinite powers under an arbitrary construction of general clauses." Farrand, Volume IV, pages 56-57. This proposal finally showed up for the first time in Article I in the September 12 draft of the Constitution, embodied in the words, "herein granted." Farrand II, 590. Gouverneur Morris, the leader of the faction warring for executive powers, hit a blow for freedom with that product of Mason's mind. With the legislative branch limited now, for the first time, and an emancipated judiciary established to hold it in check, Mason's proposal for a Bill of Rights was unanimously rejected on September 12 as "unnecessary." Mason's aging mind became aflame. Back to his room at the "Indian Queen," where other proposed alterations flowed from his pen. He was a divining prophet. He knew that emancipated judicial tribunals would have to have secretaries, masters in chancery, trustees, auditors, examiners and others, to assist them in properly exercising the judicial powers of the United States. He knew that they too had to be emancipated from executive and legislative control in order to save the streams of justice from pollution, so he drafted a propsal "to add at end of 2nd clause of 2nd section of 2nd article": "And which shall be established by law but the Congress may by law vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law,, or in the heads of departments." Farrand IV, 60. This too was handed to Gouverneur Morris. Morris proposed it on September 15, but overlooked the words "and which shall be established by law." The vote was a tie. Put to vote again it passed, "nem Con." Farrand II, 627. The words, "and which shall be established by law," were on the paper Morris held in his nervous hand. They went into the Constitution when he handed the paper to the Clerk. Mason's effort to get his bill of rights into the Constitution piecemeal after September 12 was defeated at every roll call.

46. 1 Elliott's, 491.

47. 3 Elliott's, 559.

48. 2 Forrond, 633.

49. 6 Colonial Records, North Carolina 582, 586, 587, 591, 987; 9 New Jersey Archives 321; 7 New York Colonial Documents 476. 8 Pennsylvania Colonial Records 543. IV Acts of Privy Council 216, 502, 5 id., 166. 11 Board of Trade Journal 229, 233, 234. Weston, Documents, Hist. S. C. 138, 141, 143.

50. 6 North Carolina Colonial Records 592.

51. 1 Commentaries 267, et seq.

52. Wealth of Nations 681.

53. Spirit of laws, Book XI.

54. Capital and Other Writings of Karl Marx (Carlton House Ed. 1932) 341.

55. 3 Elliott 539, 548, 552.

56. 1 Hening, Statutes of Virginia 486. 5 Virginia Magazine of History 5, 57. Beverly, The History and Present State of Virginia 94, 97, 255, 256.

57. An attempt in New York to adopt the Virginia procedure was disallowed by the Crown in 1704. Russell, Review of Colonial Legislation 140.

58. 19 Rymer, Foedera 280.

59. Meaning all cases other than those relating to impeachment of the President, to ambassadors, etc., as to which the Supreme Court was given original jurisdiction.

60. 2 Farrand 431. Note: Why did Madison wait until his old age to insert in his notes in different ink that Virginia and Delaware were the states voting for this disgraceful motion? Why did he fail to record that it was he, Randolph and Dickinson that sponsored it? Why was Randolph in a bad humor from this day on? What were the bitter words used? Why were Virginia and Delaware ashamed to vote for the less offensive measure next proposed? Why did new alignments take place that day in Philadelphia? Why did Madison hate George Mason from this day on? Was Madison's defeat for the Senate in Virginia a part of the price of apostasy? Why did he, as a lowly representative in Congress, expound the treacherous doctrine of "legislative interpretation" of the Constitution, after having early in the Convention and earlier in Congress decried such a thing? The answers are not too difficult but are too long to detail here.

61. 2 Farrand 431.

62. Discourses on Government 176.

63. 3 Elliott's Debates, 174.

64. 3 Elllott's Debates 327.

65. 3 Elliott's Debates 165.

66. 3 Elliott's Debates 539.

67. 3 Elliott's Debates 47.

68. This was the watchword of revolt of the ten tribes of Jerusalem, when they separated from Rehoboam. It was the watchword in the Puritan Revolution, becoming such when a man by the name of Walker threw a pamphlet so entitled into the carriage of Charles I, as he drove through a cold and muttering crowd on his way from Whitehall to Guildhall to try to effect the arrest of Hamden, Pym, Holles, Strode and Haslerig, for questioning his prerogative to rule despotically through the instrumentality of a servile judiciary. Guizot, History of the English Revolution of 1640, 134. It became the watchword of the Sons of Liberty in a like cause. Bowen, John Adams and the American Revolution 281.

69. John Marshall, History of the American Colonies 422. Raynal, British Trade and Settlements in North America (1779) 329. Gushing, Transition in Massachusetts from Colony to Commonwealth 86. Bowen, John Adams and the American Revolution 436, et seq. Miller, Origins of The American Revolution 369.

70. John Locke, Civil Government, Chap. XIV, par. 168.

71. 2 Rushworth Collections 4. Said by Coke in 1628 while urging that Charles I had no power to constitute a tribunal not inferior to the King's Bench for the purpose of effectuating executive policies.