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at the age of sixty years ; in Connecticut at seventy years ; and thus their constitutions seem to intend to impose laws on nature itself, or to drive from their own service men in whom may still reside the most useful faculties, improved by time and experience. The Constitution of the United States abstains from this error.
But the power of removal intended, in those states where it is found, to be exercised in cases of actual and not implied incapacity, may in practice be carried further, and if the representatives of the people hold the opinion that the proceedings of a judge are contrary to the public interests, an application for his removal may be made to the governor. If, for instance, he has decided that one of their laws is unconstitutional, and they retain a different opinion, or if his constructions of, and proceedings under a law not objectionable in itself, differ from their own views of the same subject, dissatisfaction with his conduct which may be very honestly felt, may occasion an address for his removal, not as a mode of avoiding or reversing his decisions, for that could not be the effect, but as an example to others, and perhaps in some degree, it might be calculated for a punishment to himself.
Now, laying aside all party considerations which sometimes may operate, perhaps unconsciously, with the best men, we must inquire into the principle on which such removal would be founded, and we shall find it to be that of setting up the judgment of the people through their representatives to correct the judgment of the judicial power.
If the Constitution of the particular state fairly admits of this construction, it is the will of the people, and must be obeyed. It is a control reserved to themselves over the general character of the judicial power, and to that extent impairs its absolute independence. In the absence of corrupt motives, which might justify an impeachment, it is the only mode of rectifying a course of erroneous judgments tending to
produce public injury. But it is liable to the objection that those who thus undertake to decide, are seldom so well qualified for the task as those whose peculiar studies and occupation may be considered as having enabled them to judge. Another objection is, that removal in this manner being in every sense an evil, a fear of displeasing the legislature may always hover over the mind of the judge, and prevent his being the impartial and inflexible mediator between the legislature and the people, which the people intended he should be.
The advantages and disadvantages of the whole subject must have been duly considered by the framers of our Constitution, and the people at large have confirmed the result of their judgment.
There is, however, one power vested in the legislature, of which they cannot be deprived. They are authorized “ from time to time" to ordain and establish tribunals inferior to the supreme court, and such courts they may at any time abolish. Thus, as before noticed, the act of 1801, establishing certain circuit courts was repealed in 1802, and the commissions granted to the judges were consequently avoided.
To this instance we may be permitted to refer, for the purpose of showing the high independence of all party considerations, that appertains to the character of a judge. The supreme court, which affirmed a decision by which the validity of the repealing act was established,* was at that time composed entirely of men politically adverse to that which, by a sudden revolution, had become the predominant party in the legislature. Yet the decision was unanimously given, one of the judges only being absent on account of ill-health. And such are the true nature and spirit of a judicial institution, that there can be no doubt that the same principle; the same entire repudiation of party spirit, would govern men of all political
* Stuart v. Laird, 1 Cranch, 308.
impressions, when required to act on similar occasions by the Constitution and their country. Party spirit seldom contaminates judicial functions.
On the whole, it seems that with the right to new model all the inferior tribunals, and thereby to vacate the commissions of their judges, and with the power to impeach all judges whatever; a sufficient control is retained over the judiciary power for every useful purpose; that it is a branch of government which the people have the strongest motives to cherish and support, and that if they value and wish to preserve their Constitution, they ought never to surrender the independence of their judges.
OF CHECKS AND CONTROLS ON OTHER BRANCHES OF
Is there any foundation for the position, that in a republic the people are naturally betrayed by those in whom they trust?
Is it true that personal power and independence in the magistrate, being the immediate consequence of the favour of the people, they are under an unavoidable necessity of being betrayed ?*
Were this objection well founded, we should shrink with horror from the formation of a republic. Let us examine how it is attempted to be supported.
The first postulate is, that those who are in possession of power, generally strive to enlarge it for their own advantage in preference to the public good. In those governments where no restraint on the conduct of public officers is provided, we see to what an extent this propensity has been sometimes carried. Rome is the favourite example adduced to support the proposition.
It was found impossible for the people of that state, ever to have faithful defenders. Neither those whom they expressly chose, nor those whom some personal advantages enabled to
• See this bold assertion and its feeble illustration, in Delolme, book 2, ch, ix.
govern the assemblies, were united to them by any common feeling of the same concern. The tribunes pursued with zeal and perseverance, no greater object than to procure admission to all the different dignities in the republic. To admit the plebeians to participate in offices previously confined to patricians, was considered a great victory over the latter. The use they made of the power of the people was to increase prerogatives, which they falsely called the prerogatives of all, but which the tribunes and their friends alone were likely to enjoy. But it does not appear that they ever set bounds to the terrible power of the magistrates, or repressed that class of citizens who knew how to make their crimes pass unpunished, or to regulate and strengthen the judicial power; precautions without which men might struggle to the end of time, and never attain true liberty.
Such are the views taken of this great, but internally imperfect republic, and a general proposition is illogically deduced from a particular instance.
If a Constitution is so framed that official power becomes at once absolute and independent of law; if the magistrates who are to administer the law are authorized like the prætors, to make it from time to time as they think proper, and if a competition is admitted among the public officers, as to who shall exercise the most authority, and he who succeeds the best, cannot be compelled by the people either to surrender or reduce it; the very appointment, in such case, tends to stimulate all the evil propensities, and create a dereliction of all the moral obligations of man. But it is an error to suppose, (if it is supposed,) that this is confined to republican forms. The distinction would only be in name. Create a government of any kind, and invest its officers with powers so extensive and uncontrollable, and there will be the same abuses. The only difference will be that in one case we shall say the people are oppressed; in the other that they are betrayed.