other departments, and this intention appears by other provisions, and the enunciation of other principles besides that which in terms establishes the tenure of good behavior, then the power of removal upon address ought to be construed and exercised consistently with the tenure of good behavior, and not in direct repugnance to it. It is plain that, if the power is construed as a naked and unrestrained power, established as a direct qualification of the tenure of office, it may be used for party purposes, and may be exercised for any cause for which a dominant party may see fit to employ it.

The danger of the abuse of this power, arising from the absence of any express restriction upon it, and of any statement of its purpose, in the Constitution of Massachusetts, has led to an unsuccessful effort in that State to make its exercise more difficult than it is under the actual provision. In the Convention held in the year 1820, in which the Constitution was subjected to revision, Mr. Webster, Mr. Justice Story, and others of the eminent jurists of Massachusetts, endeavored to procure an amendment requiring the address to be adopted by a vote of two thirds in both branches, instead of allowing it to be carried, as the Constitution has always stood, and as the rule is in England, by a bare majority. The effort failed; but the result of the whole discussion to which it gave rise shows the general understanding of the people of the State with regard to the rightful extent of this power. The Convention was a very remarkable assembly of the intellect and worth of the State, and both the political parties of the time were fully represented in it, by their most distinguished members. All were agreed that the power was capable of abuse, and that to apply it to any other than cases of official incapacity or unfitness would be an abuse. But those who opposed the adoption of a two-thirds rule were unwilling to anticipate such an abuse of the power, and their arguments prevailed.

The framers of the Constitution of the United States intrusted no such power over the judiciary to the other branches of the government. They regarded the possibility of its being used for improper purposes as a sufficient reason why it should not exist. They thought it, moreover, a contradiction in terms to say that the judges should hold their offices during good behavior, and yet be removable without a trial. But the radical objection was one that does not seem to have been sufficiently attended to in the early formation of some of the State constitutions, but which the peculiar system established by the Constitution of the United States made especially prominent.

That Constitution was designed to be in some respects an abridgment of the previous powers of the States. Like the State constitutions, also,

ed the judges alone from the general jurisdiction of this supreme authority in the realm. The clause was not introduced into the act for the pu pose of conferring the power on Parliament, for it could not be tal away or restricted, but simply to recognize it as a qualification of tenure of office; so that the judges should have no right to compl any breach of an implied contract with them, and the crown sho be deprived of the means to remove an unfit judge whenever Par should, in their discretion, signify their assent." (Commentari Constitution, Vol. II. § 1623.)

By describing it as a "qualification of the tenure of office," commentator probably did not mean that the power was in recognized as a power to remove judges against whom no duct or incapacity could be charged; for the context sho speaking of the removal of "unfit " judges as a power tl to recognize and regulate. If he intended to lay it do and actual qualification of the tenure of good behavior upon the theory to which he refers, upon which an ac do anything, either with or without reason. Upo commissions of all the judges in the realm may quiry into their fitness or unfitness. But if the t is, that the King's commission, which runs quam be determined when the crown alone decides t1 ceased, or become impracticable, but may be legislative power has so decided, then in one the commission; because the latter emanates has issued, it is to be superintended by Parli

When we turn to our American constitut from the English theory of the omnipoten vanishes In our systems of governm preme power. The legislature is but specific and limited purposes, which constitution; and no power that is tion to the legislative and executive be exercised by them. Under which has conferred upon the ex the address of the two houses that power extends to any case pacity must be determined which that constitution assign example, under the Consti a clear intention manife

"

questions, if they were two beaches of the hem thesily inde the glossume of those thea Sale in this

REPUBLICAN OATH TO SUP

ed.

or the organization of government, the o provide for certain mportance, the necessity onstrated by the past his

The first of these was the

es into the Union.

apparent, that the time would ive when the limits of the United extended, and the number of the

Circumstances had made it imt the benefits and privileges of the Union confined to the original thirteen comby whom it had been established. Pophad begun to press westward from the ntic States with the energy and enterprise that ave marked the Anglo-American character since the first occupation of the country. Wherever the hardy pioneers of civilization penetrated into the wilderness of the Northwest, they settled upon lands embraced by those shadowy boundaries which

1

it embraced a careful distribution of the powers of government between the different departments, and a careful separation of the functions of one department from those of another. Questions must, therefore, necessarily arise in the administration of the government, whether one of these departments had overstepped the limits assigned to it as against the others, and whether the action of the general or the State governments in particular instances is within their appropriate spheres. These, now familiar to us as constitutional questions, were to be subjected to the arbitrament of the national judiciary; and it was almost universally felt that this delicate and important power must be confided to judges whose tenure of office could be touched only by the solemn process of accusation and impeachment. The same necessity exists under a State constitution, but perhaps not in the same degree; for while the judiciary of a State is often called upon to decide finally upon the conformity of acts of legislation with the State constitution, — and ought therefore clearly to be beyond the reach of legislative influence, —yet no State judiciary is the final arbiter between the rights and powers of the national government and the rights and powers of the States. This function belongs to the supreme judiciary of the United States. It was foreseen that it would not infrequently involve the decision of questions in which whole classes of States might have the deepest interest, which would connect themselves with party discussions, and on which the representatives of the States in the national legislature would be likely to share in the feelings, and even in the passions, of their constituents. There could be no security for a judiciary called upon to decide such questions, if they were to be subject to a power of removal by the other two branches of the government. Their commissions might make them theoretically independent, but practically they could be removed at the pleasure of those whom they might have offended. In truth, there is no State in this Union where such a power of removal is vested without qualification in the legislative and executive departments, in which the judges can be said to hold their commissions during good behavior, unless that power is construed to embrace only those cases of palpable incapacity in which an impeachment would be unnecessary or impracticable. As a naked and unqualified power, it is repugnant to the tenure of good behavior. It was so regarded in the Convention which framed the Constitution of the United States, where a proposition to introduce it received the vote of the single State of Connecticut only. (Madison, Elliot, V. 481, 482.)

CHAPTER IV.

ADMISSION OF NEW STATES. GUARANTY

GOVERNMENT. - POWER OF AMENDMENT.
PORT THE NEW SYSTEM. RATIFICATION.

OF REPUBLICAN
OATH TO SUP-

HAVING settled a general plan for the organization of the three great departments of government, the committee next proceeded to provide for certain other objects of primary importance, the necessity for which had been demonstrated by the past history of the Confederacy. The first of these was the admission of new States into the Union.

It had long been apparent, that the time would sooner or later arrive when the limits of the United States must be extended, and the number of the States increased. Circumstances had made it impossible that the benefits and privileges of the Union should be confined to the original thirteen communities by whom it had been established. Population had begun to press westward from the Atlantic States with the energy and enterprise that have marked the Anglo-American character since the first occupation of the country. Wherever the hardy pioneers of civilization penetrated into the wilderness of the Northwest, they settled upon lands embraced by those shadowy boundaries which