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of the rulers and the phrenzy of the people. Voices of the past, as heralds of the future, warn us to anticipate the one as well as the other. For though the liability to the last is not so continual as the systematic tendency to the first, yet it is more, far more to be dreaded. For when it comes, it is as the whirlwind comes as the thunder-bolt or earthquake shock, convulsing the very depths of the political universe. It is more powerful and reckless and violent than the first, and its effects more lasting, disastrous and desolating. The one may shake into disorder the superstrúcture of society, but the other upturns its very foundations. The French revolution, in its causes and effects warns us of, and confirms the truth of these remarks.
While then it is necessary to restrict the ruler, it is likewise essential to interpose some check to the rashness of the people. · History, on the one hand, points us to a Seneca yielding himself a victim to satiate the
а cruelty of a Nero, and on the other to a Socrates reel. ing beneath the infuriate injustice of an Athenian populace. A well appointed judiciary, rendered firm, fearless, and impartial by a permanent tenure of office, might have snatched the first from the tyranny of a despot, and saved the latter from the more violent fury of the people.
Thus experience corroborates the correctness of the reasoning which recommended the adoption of a permanent tenure for the judicial office, and elicited in favor of it the unanimous vote of the convention.
A proposition was offered to make the judges removable by the President, upon the address of the Se
* See “Hopkinson's Defence of Justice Chase. Is
nate and House of Representatives, but it received the vote of only one State. It was doubtless suggested by a sinilar feature in the British constitution, making it lawful for the crown to remove the judges upon address of both houses of parliament. But here there is no just analogy. This provision was not intended to confer upon the crown any actual new power, but to restrict that previously possessed by it, so as to recognize the parliainent in this respect as omnipotent. Such is the very theory of the British constitution. The parliament may make or alter at pleasure the very fundamentals of the government. With respect to its Bupremacy, not only the people are required to submit, but the crown itself sinks to the level of a subject. It would have been inconsistent, therefore, to exempt the judges from its intended universal supremacy. But the theory of our constitution is different. It was intended to make each department co-ordinate to the others, and subordinate only to the people of the United States mediately or immediately, according to the text of the compact. The Legislature here is no more supreme by original right, as in Great Britain, than the executive and judiciary. Here, the people of the United States alone are omnipotent; and in order to Preserve the different departments in subordination to their will expressed in the constitution, it is necessary, as has been shown, that they should be co-ordinate. If in this case the theory of the British constitution had been adopted, (since like causes produce like effects) the ordinary legislature and their will, rather than the people of the United States" and their constitution, would have been supreme.
Turning from this, we pass to another proposition of a more specious character, authorizing the removal of judges for inability to perform the functions of their office. A very slight consideration of this will lead to the conclusion that such a power would be more liable to abuse than adapted to effect any wise purpose. The mensuration of mind, from its subtile character, does not permit its reduction to a science in any great des gree approximating to certainty. Hence it is impossible to ascertain any fixed medium between ability and inability : It must, therefore, ever depend upon a discretion, which, in this case, is less apt to be correct than partial. There is danger that it would much oftener call forth personal or party resentments, or partialities, than serve the purposes of justice and order.
To obviate the vague and perplexing uncertainty which must for ever envelope its investigation in some of the States, a standard of age has been fixed as the boundary between competency and incompetency.Experience, however, has proved it defective; and while it has served no good purpose in any known instance, it is notorious that in some it has worked ungenerously and injuriously. In some States judicial offices are to be vacated at seventy years of age, and in the State of New York the limitation of sixty excluded from its bench one of the mightiest minds that ever adorned the judicial annals of any country while yet it swelled with the treasures of intellect and beamed in the unclouded splendor of its genius--even ere it had yet attained the fulness of its mighty vigor and transcendent effulgence. The person alluded to will doubtless be tecognized as Chancellor Kent. The following remarks of Justice Story, in relation to this event, are no less true than complimentary: “He is, at once,' said Story, “the compeer of Hardwick and Mansfield. Since his removal from the bench he has composed his admirable Commentaries, a work which will survive as an honor to the country, long after all the perishable fabrics of our day shall be buried in oblivion. If he had not thus secured an enviable fame since his retirement, the public might have had cause to regret that New York should have chosen to disfranchise her best citizens, at the time when their services were most important, and their judgments most mature.” The age of seventy, or even eighty, would have excluded from public service some of the mightiest minds that have given grace and dignity to humanity. At eighty, observed Mr. Jefferson, Franklin was the ornament of human nature. At eighty Lord Mansfield still possessed in vigor his almost unrivalled powers. “If seventy,” adds Story, “had been the limitation in the constitution of the United States, the nation would have lost seven years of as brilliant judicial labors as have ever adorned the annals of the jurisprudence of any country.”
These facts, together with the following brief extract from the Federalist, will afford a sufficient comment on this point. It has remarked that "there are few at present who do not disapprove of thiis provision. There is no station in which it is less proper, than that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it. And when, in addition to this circumstance, we consider how few there
are who ontlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude, that limitations of this sort have little to recommend them. In a republic where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, and on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench."
The next clause of the constitution provides for the support of judges as follows:-“They shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.” In the absence of such a provision all the advantages of ability and independence sought to be effected by a permanent tenure of office, would have become entirely illusory and unattainable. As has been remarked, a control over a man's subsistence is a control over his conduct. An unlimited legislative control, therefore, over the compensation of the judiciary would have subjected its action to the will of the legislature and the separation of the departments (the propriety of which is so fully admitted and established) would thus have been completely defeated and become a mere mockery.
It has doubtless been perceived that, in regard to compensation, there is a difference between the ex