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CHAPTER XXX.

OF CHECKS AND RESTRAINTS ON THE JUDICIAL BRANCH.

From these general views of the judicial power, we collect that it is in the nature of a principle incorporated for useful purposes into the Constitution, vested in various agents, some of whom derive their authority from the United States, and some from the states, and holding their offices, as will appear by reference to those constitutions, on various tenures, but all possessing the right of deciding on the validity of a law.

If this power is in itself inordinate, if it is not consistent with the true interests of the people, it might have been excluded from, or carefully qualified in, the Constitution; but it has been established by the people on full deliberation; and a few additional reflections on its nature and utility may be admitted.

In the first place, we may observe, that a judicial power with such extensive attributes, is probably peculiar to this country. Where there is not a fixed and settled constitution, whether written or unwritten, which cannot be altered by the legislature, the judiciary has no power to declare a law unconstitutional. In such countries, the people are at the mercy of the legislature. The appeals which they may make to their constitutions are disregarded if they cannot be enforced, and the constitution possesses merely a nominal value. It tends indeed to excite discontents, by exhibiting rights that cannot be enjoyed,

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and promising restraints on government that may be broken with impunity.

The Constitution of the United States was not framed, in this respect, on ground new to us. The principle had been previously inserted in all the state constitutions then formed. It has been preserved in all those since established, and none of the alterations which we have heretofore noticed, have been extended to this point.

We may then inquire, in what mode or form of language it could have been excluded from the Constitution, and what would have been the effect of such exclusion. Being in itself a necessary incident to a regular and complete government, its existence is implied from the mere fact of creating such a government; if it is intended that it should not be commensurate with all the powers and obligations of the government, or that it should not form any part of it whatever, express terms of qualification or exclusion would certainly be required.

Now it would be difficult to reconcile the minds of freemen, to whom was submitted the consideration of a scheme of government, professing to contain those principles by which a. future legislature and executive were to be regulated, to any declarations that a subversion or abandonment of those principles, by either branch, and particularly by the legislature, should be liable to no resistance or control. The judicial power potentially existed before any laws were passed; it could not be without an object; that object is at first the Constitution. As the legislature proceeds to act, the judicial power follows their proceedings. It is a corrective imposed by the Constitution on their acts. The legislature are not deceived or misled. Nothing indicates that they alone are to decide on the constitutionality of their own acts, or that the people who may be injured by such acts, are unprovided with any other defence than open resistance to them. But without an adequate power in the judiciary to the effect

required, the people would either be driven to such resistance; obliged to wait till they could obtain redress through the exercise of their elective powers; or be compelled to patient submission.

The rights of the people are better secured by the general undefined judicial power, necessarily inferred from the general language of the Constitution itself, pre-existing in their own state constitutions, and never surrendered to the United States. In the last mentioned aspect, it would appear surprising that those who were most apprehensive of the selfincreasing power of the general government, did not perceive the bulwark of their safety. The courts and the judges of every státe possess, as before observed, the right to decide on the constitutionality of a law of their own state and of the United States. The principle itself, and not the merè tribunal, constitutes the public security. That such decisions are subject to the appellate jurisdiction heretofore spoken of, forms no objection to their usefulness. The object of this jurisdiction is to produce uniformity. Instead of reducing, it enhances the value, while it proves the universal bearing of the principle itself.

In the organization of this power thus salutary, thus necessary, is found the only difficulty. To render it wholly independent of the people, is objected to by many: to affect its necessary independence by the modes of creating and appointing its ministers, is liable to equal objections. In the first case, arbitrary and despotic proceedings are apprehended. It is supposed to be the natural disposition of man, when placed above control, to abuse his power, or, if no corrupt motives produce this consequence, there sometimes are found a laxity, a carelessness, a want of sufficient exertion and deliberate judgment in the exercise of it. On the other hand, if instead of availing himself of his own knowledge and capacity, the judge submits to be governed by the opinions of

others; if he allows the desire to retain his office, the fear of giving offence, or the love of popularity, to form any part of the ingredients of his judgment, an equal violation of his trust is apparent. It is therefore not without anxiety that the patriotic mind endeavours so to regulate the organization of this all essential power, that it shall be safely steered between the two extremes.

In all governments retaining a semblance of the preservation of popular rights, it is believed that the structure of the judicial power ought to be founded on its independence. The tenure of office is therefore generally during good behaviour. But in some of our state governments, judges are appointed for a term of years. In some, the appointments are made by the executive, in some by the legislative power. The mode of appointment is of little consequence as to the principle, if, when it has been made, the magistrate is independent of the further favour of the appointing power. The more important question is the condition and duration of the appointment. The condition of good behaviour necessarily accompanies all judicial appointments, for whatever term they may be granted. There are none during pleasure in this country, although the case is otherwise as to some high judicial stations in England.* Cases of misbehaviour are therefore to be provided against. Honest errors in judgment do not amount to misbehaviour. The court of the last resort is to correct all those which take place in the previous tribunals. If this court shall itself be deemed to have committed an error, there can be no redress, because from the nature of things, there must be some point at which to stop: and it is better that an individual should sustain an injury, than that the whole system should be thrown into disorder.

* The lord chancellor, the judges of the courts of admiralty, vice-admiralty, &c.

This last resort may be differently constituted, but there must be some final mode of deciding.

On some occasions of dissatisfaction with the decisions of the supreme court, different modes of revising even their decisions have been suggested. The last of these known to the author has been to convert the senate into the final court of error and appeal.

Of their competency in a practical view, no doubt can be entertained, but of the benefit which the public would derive by their unavoidable suspension of legislative business, with other high functions devolved on them, while their time was occupied in the trial of causes, there would be much room for doubt.

But, however this ultimate tribunal may be constituted, it is still to be the last resort; and, since human infallibility can no where be found, it may also pronounce erroneous judgments for which there would be no redress.

In all these institutions we must therefore recognise the imperfection of man, and content ourselves with the intention to act rightly, although the decision, in the apprehension of many, may be wrong.

In some states, a power is given to the executive authority on the application of a certain proportion of the legislature to remove a judge from office. Reasons will occur both for and against such a provision. If a judge should be incapacitated by infirmity or age, or be otherwise, without any fault of his own, prevented from performing his duties, he would not be a proper subject for removal by impeachment ; yet, where duties cannot be performed, the officer should not be continued. The incapacity should, however, be established in the specific case, and to lay down a general rule, that on the attainment of a certain age, the judge shall no longer be admitted to act, may withdraw from the service of the public a person capable of being highly useful to them. In New York the commission expires

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