the mode of the President's appointment, his term of office *289 and the *precise and definite limitations imposed upon the exercise of his power, the Constitution has also rendered him directly amenable by law for mal-administration. The inviolability of any officer of government is incompatible with the republican theory, as well as with the principles of retributive justice. The President, Vice-President, and all civil officers of the United States may be impeached by the House of Representatives for treason, bribery, and other high crimes and misdemeanors, and upon conviction by the Senate removed from office. (a) If, then, neither the sense of duty, the force of public opinion, nor the transitory nature of the seat, are sufficient to secure a faithful discharge of the executive trust, but the President will use the authority of his station to violate the Constitution or law of the land, the House of Representatives can arrest him in his career, by resorting to the power of impeachment.1

I have now finished a general survey of the office of President of the United States; and, considering the nature and extent of the powers necessarily incident to that station, it was difficult to constitute the office in such a manner as to render it equally safe and useful, by combining in the structure of its powers a due proportion of energy and responsibility. The first is necessary to maintain a firm administration of the law; the second is equally requisite, to preserve inviolate the liberties of the people. The authors of the Constitution appear to have surveyed the two objects with profound discernment, and to have organized the executive department with consummate skill.

(a) [Art. 1, sec. 2, 5, sec. 3, 6, and] art 2, sec. 4.

1 Post, 343, n. 1.

[308]

LECTURE XIV.

OF THE JUDICIARY DEPARTMENT.

As the judiciary power is intrusted with the administration of justice, it interferes more visibly and uniformly than any other part of government with all the interesting concerns of social life. Personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice. In the survey which is to be taken of the judiciary establishment of the United States, we will in the present lecture consider, (1.) The judges, in relation to their appointment, the tenure of their office, and their support and responsibility; (2.) The structure, powers, and officers of the several courts.

1. Of the Appointment, Tenure, and Support of the Judges. The Constitution (a) declares that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." In this respect it is mandatory upon the legislature to establish courts of justice commensurate with the judicial power of the Union. Congress have no discretion in the case. (b) They were bound to vest the whole judicial power, in an original or appellate form, in the courts mentioned and contemplated in the Constitution, and to provide courts inferior to the Supreme Court, in which the judicial power, unabsorbed by the Supreme Court, might be placed. The judicial power of the United States is, in point of origin and title, equal * with the other powers of the government, and is * 291 as exclusively vested in the courts created by or in pursuance of the Constitution, as the legislative power is vested in Congress, or the executive power in the President. (a) The

(a) Art. 3, sec. 1.

(b) Martin v. Hunter, 1 Wheaton, 328-337.

(a) Story, Comm. iii. pp. 449-456.

President is to nominate, and, by and with the advice and consent of the Senate, to appoint "judges of the Supreme Court, and all other officers whose appointments are not therein otherwise provided for, and which shall be established by law. But 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." (b) It has never been judicially settled, but it has been very authoritatively and very wisely settled by the uniform practice of the government, that the judges of the District Courts are not inferior officers, whose appointments might be withdrawn by law from the President and Senate, and placed in other hands.

The advantages of the mode of appointment of public officers by the President and Senate have been already considered. The mode is peculiarly fit and proper in respect to the judiciary department. The just and vigorous investigation and punishment of every species of fraud and violence, and the exercise of the power of compelling every man to the punctual performance of his contracts, are grave duties, not of the most popular character, though the faithful discharge of them will certainly command the calm approbation of the judicious observer. The fittest men would probably have too much reservedness of manners, and severity of morals, to secure an election resting on universal suffrage. Nor can the mode of appointment by a large deliberative assembly be entitled to unqualified approbation. There are too many occasions, and too much temptation for intrigue, party prejudice, and local interest, to permit such a body of men to

act, in respect to such appointments, with a sufficiently *292 single and steady regard for the general welfare.

* In

ancient Rome, the prætor was annually chosen by the people, but it was in the comitia by centuries, and the choice was confined to persons belonging to the patrician order, until the close of the fourth century of the city, when the office was rendered accessible to the plebeians; and when they became licentious, says Montesquieu, (a) the office became corrupt. The popular elections did very well, as he observes, so long as the people were free, and magnanimous, and virtuous, and the public was without corruption. But all plans of government which suppose the people will always act with wisdom and

(b) Const. art. 2, sec. 2.

(a) Esprit des Lois, liv. viii. c. 12.

integrity are plainly Utopian, and contrary to uniform experience. Government must be framed for man as he is, and not for man as he would be if he were free from vice. Without referring to those cases in our own country, where judges have been annually elected by a popular assembly, we may take the less invidious case of Sweden. During the diets which preceded the revolution of 1772, the states of the kingdom sometimes appointed commissioners to act as judges. The strongest party, says Catteau, (b) prevailed in the trials that came before them, and persons condemned by one tribunal were acquitted by another.

By the Constitution of the United States, (c) "the judges, both of the Supreme and inferior courts, are to hold their offices during good behavior; and they are, at stated times, to receive for their services a compensation which shall not be diminished during their continuance in office." The tenure of the office, by rendering the judges independent both of the government and people, is admirably fitted to produce the free exercise of judgment in the discharge of their trust. This principle, which has been the subject of so much deserved eulogy, was derived from the English constitution. (d) The English judges anciently held their seats at the pleasure of the king, * 293 and so does the lord chancellor to this day. It is easy to perceive what a dangerous influence this must have given to the king in the administration of justice, in cases where the claims or pretensions of the crown were brought to bear upon the rights of a private individual. But, in the time of Lord Coke, (a) the barons of the exchequer were created during good behavior, and so ran the commissions of the common-law judges at the restoration of Charles II. (b) It was still, however, at the (b) View of Sweden, c. 8. (c) Art. 3, sec. 1.

(d) The high judicial officer in the ancient kingdom of Aragon, called the Justicia, and appointed by the king, having repeatedly and boldly protected private individuals from the persecutions of the crown, was, in more than one instance, removed from office at the instance of the king. To guard against the like prostration of the independent discharge of duty, it was provided, by a statute of Alfonso V., in 1442, that the justice should continue in office during life, remorable only on sufficient cause by the king and the cortes united. Prescott's Hist. of Ferdinand and Isabella, i. Int. 108. This was the most ancient precedent in favor of the establishment of an independent judiciary, and it did great credit to the wisdom and spirit of the free states of Aragon. (a) 4 Inst. 117.

(b) 1 Sid. 2. Charles I., in his message to Parliament, July 5th, 1641, informing them of having signed the bill for abolishing the High Commission court and the Star Chamber added, also, that he had granted that the judges should thereafter hold their

pleasure of the crown to prescribe the form of the commission, until the Act of Settlement of 12 and 13 Wm. III. c. 2, which was in the nature of a fundamental charter, imposing further limitations upon the crown, and adding fresh securities to the Protestant succession, and the rights and liberties of the subject. It established that the commissions of the judges be made quamdiu se bene gesserint, though they were still to be removable upon the address of both houses of Parliament. (c) The excellence of this provision has recommended the adoption of it by other nations of Europe. It was incorporated into one of the modern reforms of the constitution of Sweden, (d) and it was an article in the French constitution of 1791, and in the French constitution of 1795, and it was inserted in the constitutional charter of Louis XVIII. The same stable tenure of the judges was contained in a provision in the Dutch constitution of 1814, and it is a principle which likewise prevails in most of our state constitutions, and, in some of them, under modifications more or less extensive and injurious.

In monarchical governments, the independence of the *294 * judiciary is essential to guard the rights of the subject from the injustice of the crown; but in republics it is equally salutary, in protecting the Constitution and laws from the encroachments and the tyranny of faction. Laws, however wholesome or necessary, are frequently the object of temporary aversion, and sometimes of popular resistance. It is requisite that the courts of justice should be able, at all times, to present a determined countenance against all licentious acts; and to deal impartially and truly, according to law, between suitors of every description, whether the cause, the question, or the party be popular or unpopular. To give them the courage and the firmness to do it, the judges ought to be confident of the security of their salaries and station. Nor is an independent judiciary less useful as a check upon the legislative power, which is sometimes disposed, from the force of party, or the temptations of interest,

places quamdiu se bene gesserint. Hume, in his History of England, vi. 423, says, that this grant of the judges' patents during good behavior was made at the request of the Parliament.

(c) The English judges, notwithstanding the form of their commissions, continued to consider that the demise of the crown vacated their seats. But this imperfection, if one really existed, was removed by the statute of 1 Geo. III. enacted at the recom mendation of the king. (d) Catteau's View of Sweden, c. 5.