hand, if instead of availing himself of his own knowledge and capacity, the judge submits to be governed by the opinions of others; if he admits the desire to retain his office, the fear of giving offence, or the love of popularity, to form any part of the ingredients of his judgment, an equal violation of his trust is apparent. It is therefore not without anxiety that the patriotic mind endeavours so to regulate the organization of this all essential power, that it shall be safely steered between the two extremes.

In all governments retaining a semblance of the preservation of popular rights, it is believed that the structure of the judicial power ought to be founded on its independence. The tenure of office is therefore generally during good behaviour. But in some of our state governments, judges are appointed for a term of years. In some, the appointments are made by the executive, in some by the legislative power. The mode of appointment is of little consequence as to the principle, if when it has been made, the magistrate is independent of the further favour of the appointing power. The more important question is the condition and duration of the appointment. The condition of good behaviour necessarily accompanies all judicial appointments, for whatever term they may be granted. There are none during pleasure in this country, although the case is otherwise as to some high judicial stations in England. (141) Cases of misbehaviour are therefore to be provided against. Honest errors in judgment do not amount to misbehaviour. The court of the last resort is to correct all those which take place in the previous tribunals. If this court shall itself be deemed to have committed an

(141) The lord chancellor, the judges of the courts of admiralty, vice-admiralty, &c.

error, there can be no redress, because from the nature of things, there must be some point at which to stop: and it is better that an individual should sustain an injury, than that the whole system should be thrown into disorder.

This last resort may be differently constituted, but there must be some final mode of deciding.

On some occasions of dissatisfaction with the decisions of the Supreme Court, different modes of revising even their decisions have been suggested. The last of these known to the author has been to convert the senate into the final court of error and appeal.

Of their competency in a practical view, no doubt can be entertained, but of the benefit which the public would derive by their unavoidable suspension of legislative business, with other high functions devolved on them, if their time was occupied in the trial of causes, there would be much room for doubt.

But, however this ultimate tribunal may be constituted, it is still to be the last resort; and, since human infallibility can no where be found, it may also pronounce erroneous judgments for which there is no redress.

In all these institutions we must therefore recognise the imperfection of man, and content ourselves with the intention to act rightly, although the decision, in the apprehension of many, may be wrong.

In some states, a power is given to the executive authority on the application of a certain proportion of the legislature to remove a judge from office. Reasons will occur both for and against such a provision. If a judge should be incapacitated by infirmity or age, or be otherwise, without any fault of his own, prevented from performing his duties, he would not be a proper subject for removal by impeachment; yet, where duties

cannot be performed, the officer should not be continued. The incapacity should, however, be established in the specific case, and to lay down a general rule that on the attainment of a certain age, the judge shall no longer be admitted to act, may withdraw from the service of the public a person capable of being highly useful to them. In New York the commission expires at the age of sixty years; in Connecticut at seventy years; and thus their constitutions seem to intend to impose laws on nature itself, and to drive from their own service men in whom may still reside the most useful faculties, improved by time and experience. The constitution of the United States abstains from this error.

But the power of removal intended, in those states where it is found, to be exercised in cases of actual and not implied incapacity, may in practice be carried further, and if the representatives of the people hold the opinion that the proceedings of a judge are contrary to the public interests, an application for his removal may be made to the governor. If, for instance, he has decided that one of their laws is unconstitutional, and they retain a different opinion, or if his constructions of, and proceedings under a law not objectionable in itself, differ from their own views of the same. subject, dissatisfaction with his conduct which may be very honestly felt, may occasion an address for his removal, not as a mode of avoiding or reversing his decisions, for that could not be the effect, but as an example to others, and perhaps in some degree, it might be calculated for a punishment to himself.

Now, laying aside all party considerations which sometimes may operate, perhaps unconsciously, with the best men, we must inquire into the principle on which such removal would be founded, and we shall find it to be that of setting up the judgment of the peo

ple through their representatives to correct the judgment of the judicial power.

If the constitution of the particular state fairly admits of this construction, it is the will of the people, and must be obeyed. It is a control reserved to themselves over the general character of the judicial power, and to that extent impairs its absolute independence. In the absence of corrupt motives, justifying an impeachment, it is the only mode of rectifying a course of erroneous judgments which may produce public injury. But it is liable to the objection that those who thus undertake to decide, are seldom so well qualified for the task as those whose peculiar studies and occupation may be considered as having enabled them to judge. Another objection is, that removal in this manner being in every sense an evil, a fear of displeasing the legislature may always hover over the mind of the judge, and prevent his being the impartial and inflexible mediator between the legislature and the people, which the people intended he should be.

The advantages and disadvantages of the whole subject must have been duly considered by the framers of our constitution, and the people at large have confirmed the result of their judgment.

There is, however, one power vested in the legislature, of which they cannot be deprived. They are authorized from time to time" to ordain and establish tribunals inferior to the Supreme Court, and such courts they may at any time abolish. Thus, as before noticed, (142) the act of 1801, establishing certain circuit courts was repealed in 1802, and the commissions granted to the judges were consequently avoided.

To this instance we may be permitted to refer, for

(142) See p. 263.

the purpose of showing the high independence of all party considerations, that appertains to the character of a judge. The Supreme Court, which affirmed a decision by which the validity of the repealing act was established, (143) was at that time composed entirely of men politically adverse to that which, by a sudden revolution, had become the predominant party in the legislature. Yet the decision was unanimously given, one of the judges only being absent on account of illhealth. And such are the true nature and spirit of a judicial institution, that there can be no doubt that the same principle; the same entire repudiation of party spirit, would govern men of all political impressions, when required to act on similar occasions by the constitution and their country. Party spirit never contaminates judicial functions.

On the whole, it seems that with the right to new model all the inferior tribunals, and thereby to vacate the commissions of their judges, and with the power to impeach all judges whatever, a sufficient control is retained over the judiciary power for every useful purpose; that it is a branch of government which the people have the strongest motives to cherish and support, and that if they value and wish to preserve their constitution, they ought never to surrender the independence of their judges.

(143) Stuart v. Laird, 1 Cranch, 308.