two objects with profound discernment, and have organized the executive department with consummate skill."

LECTURE V.

OF THE JUDICIAL POWER.

As the personal security and private property of every individual depend on the wisdom, stability, and integrity of the courts of justice, the judicial power interferes more directly and uniformly than either of the other departments with all the concerns of social and private life. No government can be complete in its form, or perfect in its principles of organization, without this power. To make laws and execute them are the respective objects of the other two departments, and are, indeed, the two principal operations of government. But laws cannot be fully and correctly executed unless there be a power in the state to expound and apply them. This power being auxiliary to the executive authority, partakes, in some degree, of its nature. But its office is, in some cases, to control the exercise of executive power; and those acts of the latter, which are judicially declared to be unconstitutional or unlawful, are thereby rendered inoperative and void. The judicial department may also be said to participate in the legislative power, as its construction of legislative acts is binding and conclusive, although this does not prevent the Legislature from repairing defects or explaining ambiguities, by subsequent laws operating on subsequent cases.

A higher function, moreover, appertains to this de

partment, under a written constitution, founded upon true principles of representation, and establishing a just separation of the three varieties of government; and that is to expound the Constitution, and thereby test the validity of the acts of the Legislature, as well as those of the executive department, in all cases where the question as to their construction arises in a suit at law, or in equity. Hence the more imperious and absolute necessity of securing, by fundamental provisions, the independence of the judicial power. A constitution which omitted to establish an adequate judicial power could not successfully be carried into effect; and if, instead of being rendered independent, that power be united with one or both of the other departments, or if those charged with its administration were made dependant on either of them, its dignity and utility would be destroyed.

The judicial power, in every government, must be coextensive with the power of legislation. Were there no power to interpret, pronounce, and enforce the law, the government, if it did not perish by its own weakness, would be corrupted by the usurpation of new powers by the Legislature, to the subversion of public liberty. But the judicial authority cannot, by the force of language, be made to exceed the legislative power, for such excess would be inconsistent with its nature; and if, by express terms, it should, on the other hand, be so restricted as to embrace a part only of the subjects of actual legislation, the integrity and efficiency of the whole system would be materially impaired. The Constitution, therefore, establishes the judicial power as a substantive, integral, and independent branch of the government; and this was the more necessary, from the extraordinary complications of the authority of the United States with that of the several states, resulting unavoidably

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 sufliciently single and steady regard for the public welfare.

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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. 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

And

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