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even in the same state or district the elections go one way this time and next exactly the opposite. Thus, a perpetual seesawing of this nick-named popular will is continually exhibited.
Under such circumstances, could it for a moment be tolerated that the opinions of rulers, for the time being, should form the rule and measure of an Amer. ican constitution that the executive and legislative departments should thus be 'made the ultimate depositories of the sovereign power? Armed, as they necessarily are, with hundreds of mighty influences, holding the one the sword, and the other the purse tion, by which either force might be effected or rewards provided, would such a plan be safe? If under such a system it was even probable that changes might still be effected through the medium of elections_10 what purpose would be the change? Would it not be at best but a change of masters? But whilst there is not in the history of the world one single instance on which to found a hope for it, the adoption of the system in question would at once preclude, if not the possibility, yet obviously the probability that even this mean privilege would long be allowed us. A judiciary appointed for short periods, and thus made dependent upon, and brought under the influence of rulers for the time being, would not long possess the firmness to preserve for us even this poor privilege the meanest and least esteemed of all that masters yield to slaves.Some indeed might be found of sufficient judgment, properly to consider the worthlessness of such temporary or menial offices, and, of sufficient firmness and integrity to risk their loss, by an observance of the constitution and resistance to the unauthorized acts of a corrupt legislature, or an ambitious executive. Such a resistance, however, is not only at variance with the theory urged by the opponents of a permanent tenure, but its practicability with the aid of such a tenure, forins indeed the very ground of their objections. The true question then involved in the issue before us is, whether the constitution shall be construed at the option of the rulers for the time being, and thus made to contract or expand according to the passion and caprice of any and every party happening to be in power—whether the judiciary shall cease to be a separate co-ordinate department-and whether, its chief defence being swept away, it shall be overwhelmed by executive or legislative influence, and thus become amalgamated with one or both of these departments ? The constitutions of the United States, with but few exceptions, answer to this question, with the most decided negative, and such indeed is the theory of them all, though their practical effect is in a few instances different. . This question is also fully replied to in our arguments on the distribution of powers, while it is maintained, by every political writer of any weight or authority, and almost universally admitted, that the executive, legislative, and judicial departments ought to be separate each from the others. It would, therefore, be presuming too far upon the ignorance of the American public to reconsider a principle so well established, and the propriety of which, a due deference to their information, as well to the merit of the arguments heretofore presented, sufficiently warrant us to regard as evident.
A little consideration will teach us that, instead of the judicial department being too powerful, its comparative weakness is indeed such, that even with the most secure tenure of office the danger is, that it will be overcome by the influence of the others, and too api tó yield to the desires or demands of dominant parties, rather than be too firm in resisting the humors and prejudices of the people in defence of their rights and lib erties. This indeed formed the ground of one of the chief objections to the federal constitution in the Virginia convention; and though it may appear strange, both to the most strenuous opponents and ardent admirers of our judicial constitution, yet' it must be admitted that its sufficiency has not been altogether unconfirmed by experience. The judges of the Supreme Court, notwithstanding the obvious unconstitutionality of the measure, and their able and manly protest against it, have been forced by a combination of the other departments to do the duty of circuit judges. Again: under the auspices of Mr. Jefferson, the Legislature, (probably too supported by public opinion, though evidently contrary to the constitution, actually deprived the judges of the inferior courts of their offices.
In view of the notoriety of these facts, together with the considerations previously urged, we feel almost justified to asctibe all further attempts to weaken the judiciary to a most reckless hardihood, either of ignorance or criminality.
In a monarchy, where the constitution is determined by the will of the legislative and executive departments, or of either, the judge will always, by an upright dis
charge of duty, receive support from one of them, or form the people. For, unless public opinion prevent, the law, if contrary to the will of these departments, may be changed, and with it the duty of the judges, at their pleasure. In a republic, however, where the complexion of the other departments is frequently changed by elections at short intervals, both these and the people may at times, be combined in hostility to the judiciary. This results from the fact that, in re. publics, the constitution is generally fixed and paramount, both to the will of the government and temporary caprice of dominant parties. If then a permanient tenure be necessary for the proper discharge of the judicial office in monarchies, as both reason and experience show, it is obviously far more necessary to secure to the judiciary that independence requisite: 10 resist the still greater combinations against it, which may sometimes occur in republics. 1.1
The very theory of a limited government necessarily supposes some organized means to check and control it, and to resist the extension of its powers beyond the limits assigned them. Law does not possess an inherent power; and, whether human or divine, it cannot operate of its own accord. Its very nature necessarily demands some exterior power, as well to define as to enforce. Humanity is imperfect and depraved; it naturally resists restraint, and man would even resist his own will, if it were not but the mere weathercock of his passions. The hypothesis, then, of a limited constitution, without some power to enforce its limitations, is altogether utopian, and must so remain while law is law and man remains man. For man, from his very nature, requires
restraint, and a constitution differs not from any other law except in the superior authority given it by the exterior power which ordains and enforces it. The constitution, then, to be of force against men, must have some power to enforce it.
Truly, the people, if it pleased them, might so arrange their government that the checks of the constitution upon its different departments might be iooperative; but then it would be despotic government-gov. ernment without check or restriction, of universal and unlimited powers, elective possibly, but nevertheless despotic. Yet such is the history of man, as to warn us against committing to his hands such vast and mighty power, for thousands and thousands of dark and dire abuses of it have rendered despotism synonimous with tyranny. Full often too does history remind us that tyranny is not confined to monarchical governments, and that though it is a legitimate offspring of these, it is nevertheless at times the monstrous production of unlimited republics. While
While it moanfully chronicles the cruel and criminal dominations of the despot, in the midst of its description it drops its pen as if in dread consternation at the fiendish atrocity of faction, and leaves to stern indignation the unhappy task of finishing the picture. If upon one page we see recorded the systematic tyranny of a prince, another reminds us of the capricious, and, on that account, the more dreadful tyranny of the people. It is for such reasons that a firm and independent establishment of the judiciary is necessary-that it may be able and willing to preserve the constitution and protect the rights and liberties it secures, both from the usurpation