ish it during the continuance in office? But one answer can be given to these questions. It must be in the negative. The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial department. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them. Without the latter, it would be impossible to carry into effect some of the express provisions of the constitution. How, otherwise, could crimes against the United States be tried and punished? How could

causes between two states be heard and determined? The judicial power must, therefore, be vested in some court by congress; and to suppose, that it was not an obligation binding on them, but might, at their pleasure, be omitted, or declined, is to suppose, that, under the sanction of the constitution, they might defeat the constitution itself. A construction, which would lead to such a result, cannot be sound."

§ 827. The constitution has wisely established, that there shall be one Supreme Court, with a view to uniformity of decision in all cases whatsoever, belonging to the judicial department, whether they arise at the common law, or in equity, or within the admiralty and prize jurisdiction; whether they respect the doctrines of mere municipal law, or constitutional law, or the law of nations. It is obvious, that, if there were independent supreme courts of common law, of equity, and of admiralty, a diversity of judgment might, and almost necessarily would spring up, not only, as to the limits of the jurisdiction of each tribunal; but as to the fundamental doctrines of municipal, constitutional, and public law. The effect of this diversity would be, that a different rule would, or might be promulgated on the

most interesting subjects by the several tribunals; and thus the citizens be involved in endless doubts, not only as to their private rights, but as to their public duties. The constitution itself would, or might speak a different language according to the tribunal, which was called upon to interpret it; and thus interminable disputes might embarrass the administration of justice throughout the whole country. But the same reason did not apply to the inferior tribunals. These were, therefore, left entirely to the discretion of congress, as to their number, their jurisdiction, and their powers. Experience might, and probably would, show good grounds for varying and modifying them from time to time. It would not only have been unwise, but exceedingly inconvenient, to have fixed the arrangement of these courts in the constitution itself; since congress would have been disabled thereby from adapting them from time to time to the exigencies of the country. But, whatever may be the extent, to which the power of congress reaches, as to the establishment of inferior tribunals, it is clear from what has been already stated, that all the jurisdiction contemplated by the constitution must be vested in some of its courts, either in an original or an appellate form.

828. We next come to the consideration of those securities, which the constitution has provided for the due independence and efficiency of the judicial department.

§ 829. The mode of appointment of the judges has necessarily come under review, in the examination of the structure and powers of the executive department. The president is expressly authorized, by and with the consent of the senate, to appoint the judges of the Supreme Court. The appointment of the

judges of the inferior courts is not expressly provided for; but has either been left to the discretion of congress, or silently belongs to the president, under the clause of the constitution authorizing him to appoint "all other officers of the United States, whose appoint"ments are not herein otherwise provided for."

§ 830. The next consideration is the tenure, by which the judges hold their offices. It is declared that "the judges, both of the Supreme and Inferior Courts shall hold their offices during good beha"viour."

§831. It has sometimes been suggested, that, though in monarchical governments the independence of the judiciary is essential to guard the rights of the subjects from the injustice and oppression of the crown; yet that the same reasons do not apply to a republic, where the popular will is sufficiently known, and ought always to be obeyed. A little consideration of the subject will satisfy us, that, so far from this being true, the reasons in favour of the independence of the judiciary apply with augmented force to republics; and especially to such as possess a written constitution with defined powers, and limited rights.

§ 832. In the first place, factions and parties are quite as common, and quite as violent in republics, as in monarchies; and the same safeguards are as indispensable in the one, as in the other, against the encroachments of party spirit, and the tyranny of factions. Laws, however wholesome or necessary, are frequently the objects of temporary aversion, and popular odium, and sometimes of popular resistance. Nothing is more facile in republics, than for demagogues, under artful pretences, to stir up combinations against the regular exercise of authority. Their selfish

purposes are too often interrupted by the firmness and independence of upright magistrates, not to make them at all times hostile to a power, which rebukes, and an impartiality, which condemns them. The judiciary, as the weakest point in the constitution, on which to make an attack, is therefore, constantly that, to which they direct their assaults; and a triumph here, aided by any momentary popular encouragement, achieves a lasting victory over the constitution itself. Hence, in republics, those, who are to profit by public commotions, or the prevalence of faction, are always the enemies of a regular and independent administration of justice. They spread all sorts of delusion, in order to mislead the public mind, and excite the public prejudices. They know full well, that, without the aid of the people, their schemes must prove abortive; and they, therefore, employ every art to undermine the public confidence, and to make the people the instruments of subverting their own rights and liberties.

§ 833. It is obvious, that, under such circumstances, if the tenure of office of the judges is not permanent, they will soon be rendered odious, not because they do wrong, but because they refuse to do wrong; and they will be made to give way to others, who shall become more pliant tools of the leading demagogues of the day. There can be no security for the minority in a free government, except through the judicial department. In a monarchy, the sympathies of the people are naturally enlisted against the meditated oppressions of their ruler; and they screen his victims from his vengeance. His is the cause of one against the community. But, in free governments, where the majority, who obtain power for the moment, are supposed to represent the will of the people, persecution, espe

cially of a political nature, becomes the cause of the community against one. It is the more violent and unrelenting, because it is deemed indispensable to attain power, or to enjoy the fruits of victory. In free governments, therefore, the independence of the judiciary becomes far more important to the security of the rights of the citizens, than in a monarchy; since it is the only barrier against the oppressions of a dominant faction, armed for the moment with power, and abusing the influence, acquired under accidental excitements, to overthrow the institutions and liberties, which have been the deliberate choice of the people.

§ 834. In the next place, the independence of the judiciary is indispensable to secure the people against the intentional, as well as unintentional, usurpations of the executive and legislative departments. It has been observed with great sagacity, that power is perpetually stealing from the many to the few; and the tendency of the legislative department to absorb all the other powers of the government has always been dwelt upon by statesmen and patriots, as a general truth, confirmed by all human experience. If the judges are ap, pointed at short intervals, either by the legislative, or the executive department, they will naturally, and, indeed, almost necessarily, become mere dependents upon the appointing power. If they have any desire to obtain, or to hold office, they will at all times evince a desire to follow, and obey the will of the predominant power in the state. Public justice will be administered with a faultering and feeble hand. It will secure nothing, but its own place, and the approbation of those, who value, because they control it. It will decree, what best suits the opinions of the day; and it will forget, that the precepts of the law rest on eternal foundations. The