from the nature of the Federal Union. The judicial power of the National Government is accordingly vested "in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish." A chief-justice is recognised in the article which provides that when the President shall be impeached, the chief-justice shall preside; and the existence of other judges is contemplated by the provision which prescribes the manner of their appointment. The complete organization, however, of the Supreme Court, as well as the establishment of inferior and subordinate courts, is provided for by statute.

In the survey which I propose to take of this interesting and important branch of the Federal Government, I shall consider, First, the manner in which it is constituted, and, Secondly, the extent and distribution of its authority.

The first point embraces these several objects, viz. the mode in which the judges of the several courts of the United States are appointed, the tenure by which they hold their offices, the provision for their support, and the precautions to secure their responsibility.

1st. The mode of appointing public officers, by the President and Senate, I have already spoken of as generally advantageous, and it seems to me peculiarly fit and proper with respect to the judicial department. The just and vigorous investigation and punishment of every species of fraud and violence, and compelling every man punctually to fulfil his contracts, are duties not certainly of the most popular character, although the faithful discharge of them will always command the approbation of the candid and judicious. The fittest men would probably possess too much reserve and too much severity of morals to secure an election depending on universal

suffrage; nor would the mode of appointment by a large deliberative assembly be entitled to unqualified approbation. There are too many occasions, and too many temptations for intrigue and party prejudices, and too much scope for the interference of local interests, to permit such a body to act in such cases with a sufficiently single and steady regard for the public welfare.

2d. The judges, both of the supreme and inferior courts, hold their offices during good behaviour. This tenure, as a standard for the duration and continuance in office of the judicial magistracy, is considered by the authors of "The Federalist" as one of the most valuable of modern improvements in the practice of government. In a monarchy, it is a necessary barrier against the despotism of the prince; in a republic, it is no less essential as a defence against the encroachments of the executive and legislative powers; and it is the best expedient that can be devised in any government, to secure a steady, upright, and impartial administration of the laws. This principle, which has been the subject of so much deserved eulogy, is one of the many benefits derived from the land of our forefathers, where the judges anciently held their seats at the pleasure of the crown, as does the chancellor to this day. It is easy to conceive what a dangerous influence this must have given to the king in the administration of justice, in those cases where the claims or pretensions of the government were made to bear on the rights of a private individual.

And

although, in the reign of James the First, the barons of the exchequer, being the court in which jurisdiction is taken of all matters relative to the revenues and property of the crown, were created during good behaviour; and although the commissions of the oth

er judges also were made so to run at the restoration of Charles the Second, it still remained at the pleasure of the crown to prescribe the form of the commission, until the statute of William and Mary established the commissions of all the commonlaw judges to be quam diu bene se gesserint. The excellence of this provision has recommended its adoption by other nations of Europe, and it prevails in most of our state constitutions, but in some of them under modifications more or less extensive and injurious.

Whoever attentively considers the different departments of power, must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights secured by the Constitution, because it will have the least capacity to invade or injure them. The executive power not only dispenses the honours, but wields the sword of the community; the Legislature not only holds the public purse, but prescribes the rules by which the rights and duties of every citizen are to be enjoyed and regulated. But the judicial power has no command over the sword or the purse; no direction either of the strength or the wealth of the society, and can take no active resolution whatsoever. It has been truly and emphatically said to have "neither force nor will, but merely judgment;" and even for the exercise of this faculty, it must depend on the protection and support of the executive arm. This view of the subject shows, in the first place, that the judicial is, beyond all comparison, the weakest of the three departments of power; that it can never attack, with success, either of the others, and that all possible care is required to defend it against attacks from them.

It also shows that, although individual

oppression may now and then proceed from the courts of justice, yet the general liberty of the people can never be endangered from that quarter, so long as the judicial, remains truly distinct from the legislative and executive powers. And it shows, lastly, as a consequence of these previous deductions, and bearing immediately on the point we are considering, that nothing can contribute so much to the firmness and independence of the judicial power as permanency in office. This quality, therefore, may justly be regarded as an indispensable ingredient in its constitution, and as rendering it the great security of public justice, liberty, and safety.

3d. In addition to the tenure by which the judges hold their offices, the permanent provision for their support is admirably adapted to secure their independence. It tends, also, to secure a succession of learned men for the bench, who, in consequence of a certain fixed support, are induced to relinquish the lucrative pursuit of their practice at the bar for the duties of a more important and honourable station-a seat on the bench. The Constitution declares, on this subject, that all the judges of the United States "shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office;" and this provision was deemed an improvement upon the previously existing constitutions of the states. It was ordained in the Constitution of Massachusetts, 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 Federal Constitution has been wisely followed in the subsequent constitutions of several of the individual

states.

The complete and perfect independence of the

judges is peculiarly requisite in a limited constitution, which, like that of the United States, contains certain specific restrictions upon legislative authority, both of the Federal and State Governments; such, for instance, as that "Congress shall pass no bills of attainder or ex post facto law," and that "no state shall coin money, emit bills of credit, or pass laws impairing the obligation of contracts." Limitations of neither of these kinds can be preserved in practice in any other way than through the instrumentality of courts of justice; and it is a wise and necessary principle of our government, as I shall show more fully hereafter, that the acts both of the Federal and State Legislatures are subject to the severe scrutiny and impartial interpretation of tribunals who are bound to regard the Constitution as the paramount law, and the highest evidence of the will of the people; and, consequently, to declare void all acts contrary to its tenour. Without this power, not only all the limitations and restrictions such as I have specified, but all the reservations of rights and privileges, either to the several states, or their individual citizens, would be ineffectual and nugatory.

4th. But while the Constitution has thus rendered the federal courts independent of undue influence from the other departments of the government, it has adopted a precaution for their responsibility, by rendering them amenable for any corrupt violation of their trust; and the judges of the United States may be held to answer upon an impeachment; and, if convicted, they may be removed from the bench, and disqualified from holding any office in the government. This, perhaps, is the only provision consistent with the necessary independence of the judicial character in a government of the complex nature of that of the United States, and is the only one to be found relative to the subject, in the Constitution.