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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 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. The advantages of the mode of appointment of public Judicial in

dependence. officers by the President and senate, have been already considered. This 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 interests, to permit such a body of men to act, in respect to such appointments, with a sufficiently single and steady regard for the general wel

fare. In ancient Rome, the prætor was chosen annually 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," 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 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 in 1772, the states of the kingdom sometimes appointed commissioners to act as judges. The strongest party, says Catteau," 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, “the judges both of the supreme and inferior courts are to hold their offices during good behaviour; 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 oflice, 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. The English judges anciently held their seats

a Esprit des Loix, liv. 8. c. 12. b View of Sweden, ch. 8. C Art. 3. sec. l.

at the pleasure of the king, 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, the barons of the exchequer were created during good behaviour, and so ran the commissions of the common law judges at the restoration of Charles II. It was still, however, at the 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 removeable upon the address of both houses of parliament.* 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, 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 is 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 ju

a 4 Inst. 117. b i Sid. 2.

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 was removed by the statue of 1 Geo. III. enacted at the recommendation of the king.

a Catteau's View of Sweden, ch. 5.

diciary 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 give them the firmness to do it, the judges ought to be confident of the security of their stations. Nor is an independent judiciary less useful as a check upon the legislative power, which is sometimes disposed, from the force of passion, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, as will be shown hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the constitution as the paramount law, and the highest evidence of the will of the people.

The provision for the permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence. It tends also to secure a succession of learned men on the bench, who, in consequence of a certain undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station. The constitution of the United States, on this subject, was an improvement upon all our previously existing constitutions. By the English act of settlement of 12 and 13 William III. it was declared that the salaries of the judges should be ascertained and established ; but by the statute of 1 Geo. III. the salaries of the judges were absolutely secured to them during the continuance of their commissions. The constitution of Massachusetts followed the declaration in the English statute of William, and provided that permanent and honourable salaries should be established by law for the judges ; but

this was not sufficiently precise and definite, and the more certain provision in the constitution of the United States has been wisely followed, in the subsequent constitutions of most of the individual states. The constitution of New York, as amended in 1821, is an exception to this remark, and it left the judiciary department in a more dependent condition, and under greater disabilities, than it found it, and greater than in any of those states in the Union, or in any of those governments in Europe, whose constitutions have been recently reformed.

But though the constitution of the United States has rendered the courts of justice independent of undue influence from the other departments, it has made them amenable for any corrupt violation of their trust.

The house of representatives, as we have already seen, is invested with the power of impeachment, and the judges may, by that process, be held to answer before the senate, and, if convicted, they may be removed from office.

The federal judiciary being thus established on principles Exter:tof the which are essential to maintain that department in a proper power. state of independence, and to secure the pure and vigorous administration of the law, the constitution proceeded to designate, with comprehensive precision, the objects of its jurisdiction. The judicial power extends to all cases in law and equity arising under the constitution, the laws and treaties of the Union ; to all cases affecting ambassadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more states; to controversies between a state, when plaintiff, and citizens of another state, or foreign citizens or subjects; to controversies between citizens of different states, and between citizens of the same state, claiming lands under grants of different states; and between a state, or citizens

judicial

a Art. 3. sec. 2. Amendments to the Constitution, art. 11.

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