innocent individual may be convicted. But cases may occur, in which the guilt of the offender is clearly proved, when expediency and humanity may require his pardon. Laws do not always fix the exact degree of punishment. Offences of the same kind, committed by different persons, or under different circumstances, do not always deserve the same measure of punishment. Hence the executive sometimes commutes the penalty of the law; that is, he exchanges it for another of less severity.

§ 91. The power of appointment, also, is, to some extent, exercised by the chief magistrate. The extent and variety of the business of the executive department, requires the assistance of numerous subordinate officers. As the executive is responsible for the faithful performance of the duties devolving upon his department; and as he is presumed to be most competent to judge of the requisite number and qualifications of these officers; their selection is properly given to him. Besides, unexpected vacancies, and numerous other causes, often render immediate appointments necessary, in order to prevent the derangement of the public business which would result from the delay consequent upon an election by the people at large.

§ 92. But upon this power, as upon most others, the people have imposed a constitutional restraint. Consider. ing it too important to be entrusted to one man, the concurrence of the senate is required in appointments devolved by the constitution upon the executive. He may make appoint. ments to fill vacancies which happen when the senate is not in session; but they must be submitted to that body at its next session for approval. In all other cases, it will be seen, the executive has simply the privilege of nomination; that is, of naming to the senate the person he wishes appointed: and the senate may, from party or other unworthy considerations, abuse its power, by rejecting the nominations made by the governor. But senators, as a body, are seldom so void of self-respect and of a sense of their duty, as to with hoid their assent to an unexceptionable nomination.

§ 91. Why is the power of appointment vested in this officer? § 92. What restraint is laid upon this power?

CHAPTER XI.

Judicial Power.

§ 93. THE judiciary is that branch of the government of a state to which are committed the interpretation of the laws, and the administration of justice. No form of govern. ment can be complete, without some power to decide disputes, to award justice to the citizens, and to punish crime, according to the laws of the state. This power ought to be kept separate from the legislative and executive. The union of the judicial with the other powers of the government in the same hands, would constitute an absolute despotism. It is the separation of the former from the latter, that so effectually secures to the people of this country the blessings of equal laws and impartial justice.

§ 94. The judicial department embraces all the courts of law and equity in which justice is administered; as well those instituted in the several towns and counties, as the supreme or superior courts of the state. The necessity of these inferior courts has been briefly stated. (§ 50.) It is to these that citizens in ordinary cases go to obtain justice. The business of the higher courts is to try causes in which large sums are in controversy; to rejudge causes that have been tried in the lower courts, but from whose decisions appeal has been made by the dissatisfied party; and also to try criminal offences of high grade.

§ 95. When it is considered that the security of the citizen in the enjoyment of his property, liberty, character, and even life, depends on the intelligent and impartial exercise of judicial authority, the importance of this department of the government must be apparent. To invest ignorant or corrupt men with judicial powers, would be extremely dangerous to the rights of the community. Judges and justices

§ 93. What is the object of the judicial power? § 94. What courts does the judiciary of a state embrace? In what courts do citizens usually obtain justice? What is the business of the higher courts? § 95. Wherein consists the importance of this department? § 96. For

ought to be men distinguished for their knowledge of the laws, deep discrimination, and sound judgment. They ought also to be persons of inflexible integrity, who cannot be swayed in their decisions, either by motives of fear, or by the prospect of gain.

§ 96. Judges are not elected by the people. Legislative officers, who represent the people in making laws, and executive officers who are to see that they are executed, are properly chosen by the people. They are the people's agents; and the people have a right to elect such as they think will best represent their wishes, and obey their will. These officers have discretionary power. As every particular duty which they will be called upon to perform cannot be previously pointed out, they must be left to act, in a great measure, according to their own sense of what is right or wrong, and with a due regard to the supposed interests and wishes of their constituents. Whereas, judicial officers have little or no discretionary power. They are not to be governed by their opinion as to what the law ought to be, but by the law as it is. Since, then, they are not, strictly speaking, the agents or representatives of the people, it can. not be important that they be elected by popular suffrage.

§ 97. But there are reasons for not making the judges elective by the people, which are supposed to overbalance any that may be given in favor of their election in this manner. The political actions of men are more or less influenced by the spirit of party; and the prevailing party is sometimes controlled by men of wealth and distinction, who may be tempted to combine their influence to effect the election of favorites or dependants, from whose decisions they may hope to derive some future advantage. It is to be presumed, too, that those who have nothing to hope, but much to fear, from an inflexible administration of justice, would not only feel no interest in, but would actually oppose, the election of upright men. And as men who possess the qualities requisite for this office are seldom the most popu lar, they would probably too often fail to secure an election by the people. A.

what reason are not judges elected by the people? § 97. What direct evils may result from an election of judges in this manner? § 98.

§ 98. There are two principal modes in which judges are appointed in the United States: the one is, by the legisla. ture; the other, by the senate, on nomination by the gov ernor. The former mode is practised, as is believed, in a small majority of the states. The latter has, however, been adopted in nearly an equal number, and is that which the constitution of the United States provides for the appointment of the judges of the national courts; they being appointed by the concurrence of the senate in the nomination of the president. The responsibility of making a proper selection, by the latter mode, devolves upon a single individual; and a sense of this responsibility generally secures the nomination and appointment of good men.

§ 99. The independence of the judges is one of the most essential objects to be kept in view, in the organization of a judicial system. The necessity of this independence arises from the natural weakness of the judiciary. It has been remarked with much apparent truth, that "the executive not only dispenses the honors, but holds the sword of the community the legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated: the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; neither FORCE nor WILL, but judgment."

§ 100. Permanency in office is indispensable to the firm. ness and independence of the judiciary. This principle has been carried into all the constitutions of the states, with but one or two exceptions. Judges of the superior courts generally hold their offices during good behavior, which is in effect for life, or for a long term of years. When judges are firmly seated in office, they cannot be awed by the frowns of power; and there will be no occasion nor inducement to court popularity, or to resort to any improper means to secure a reappointment to office; nor for office-seekers to attempt to render them unpopular with a view to supersede or displace them.

What are the principal modes of appointing judicial officers in the United States? 99. What renders the independence of judges essential? 100. What tends to secure the independence of a judi

§ 101. A uniform interpretation of the laws and constitution is an important advantage, which can be secured only by a permanent judiciary. A constant change of judges, differing in their legal opinions, would give rise to conflicting decisions on the same points of law. A decision made one year might be reversed the next; and, as a conse quence, the principles of law would be kept in an unsettled state Long duration of office furnishes the best security against this evii. Another advantage resulting from a long term is, that it enables a judge to acquire that skill in the laws, which is an essential qualification for the judicial office.

§ 102. Judges ought to receive a liberal compensation. This is necessary to ensure the services of the fittest and most learned men, who would not relinquish a lucrative professional business for the duties and responsibilities of a judicial station, without ample reward. This compensation should also be fixed and permanent: for, though it were liberal, men would nevertheless be reluctant to accept the office, if there were not some guaranty against the reduction of the salary. A fixed and liberal support also contrib. utes to the independence of the judges. In view of these advantages, the constitution of the United States provides, that the judges of the national courts "shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office." Every state constitution ought to contain a like provision.

§ 103. But the most judicious organization of the judi ciary, and the most careful provisions for the appointment of its officers, have been deemed insufficient to guard the purity of our courts, and to secure a perfect administration of justice. Ignorant and corrupt men will, it is to be presumed, sometimes be promoted to judicial stations. Το prevent the mischiefs which may ensue from the continuance of such men in office, some provision is necessary for their removal, in case of misconduct. Such provision becomes the more necessary from the permanent tenure by which

Iciary? What is the ordinary term of office? § 101. What are the advantages of a permanent judiciary? § 102. Why ought judicial officers to receive a liberal and permanent compensation? § 103. What remedy is necessary for the evils resulting from the misconduct