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the legislature do, in the given case, conform to the constitution? All these questions would of course arise. The judge is bound by his oath to decide according to law. The constitution is the supreme law. Any act of the legislature, therefore, inconsistent with that supreme law, must yield to it; and any judge, seeing this inconsistency, and yet giving effect to the law, would violate both his duty and his oath. But it is evident that this power, to be useful, must be lodged in independent hands. If the legislature may remove judges at pleasure, assigning no cause for such removal, of course it is not to be expected that they would often find decisions against the constitutionality of their own acts. If the legislature should, unhappily, be in a temper to do a violent thing, it would probably take care to see that the bench of justice was so constituted as to agree with it in opinion.
It is unpleasant to allude to other States for negative examples; yet, if any one were inclined to the inquiry, it might be found that cases had happened in which laws, known to be at best very questionable as to their consistency with the constitution, had been passed; and at the same session, effectual measures taken, under the power of removal by address, to create a new bench. Such a coincidence might be accidental; but the frequent happening of such accidents would destroy the balance of a free government. The history of all the States, I believe, shows the necessity of settled limits to legislative power. There are reasons, entirely consistent with upright and patriotic motives, which, nevertheless, evince the danger of legislative encroachments. The subject is fully treated by Mr. Madison, in some numbers of the Federalist, which well deserve the consideration of the convention.
There is nothing, after all, so important to individuals as the upright administration of justice. This comes home to every man; life, liberty, reputation, property, all depend on this. No government does its duty to the people, which does not make ample and stable provision for the exercise of this part of its powers. Nor is it enough, that there are courts which will deal justly with mere private questions. We look to the judicial tribunal for protection against illegal or unconstitutional acts, from whatever quarter they may proceed. The courts of law, independent judges, and enlightened juries, are citadels of popular
liberty, as well as temples of private justice. The most essential rights connected with political liberty are there canvassed, discussed, and maintained; and if it should at any time so happen that these rights should be invaded, there is no remedy but a reliance on the courts to protect and vindicate them. There is danger, also, that legislative bodies will sometimes pass laws interfering with other private rights than those connected with political liberty. Individuals are too apt to apply to the legislative power to interfere with private cases or private property; and such applications sometimes meet with favor and support. There would be no security, if these interferences were not subject to some subsequent constitutional revision, where all parties could be heard, and justice be administered according to the standing laws.
These considerations are among those which, in my opinion, render an independent judiciary equally essential to the preservation of private rights and public liberty. I lament the necessity of deciding this question at the present moment; and should hope, if such immediate decision were not demanded, that some modification of this report might prove acceptable to the committee, since, in my judgment, some provision beyond what exists in the present constitution is necessary.
BANK OF THE UNITED STATES.*
On the 2d of January, 1815, the bill to incorporate a bank being under consideration, Mr. Webster moved that it be recommitted to a select committee, with instructions to make the following alterations, to wit:
1. To reduce the capital to twenty-five millions, with liberty to the government to subscribe on its own account five millions.
2. To strike out the thirteenth section.
3. To strike out so much of said bill as makes it obligatory on the bank to lend money to government.
4. To introduce a section providing, that if the bank do not commence its operations within the space of — months, from the day of the passing of the act, the charter shall thereby be forfeited.
5. To insert a section allowing interest at the rate of — per cent. on any bill or note of the bank, of which payment shall have been duly demanded, according to its tenor, and refused ; and to inflict penalties on any directors who shall issue any bills or notes during any suspension of specie payment at the bank.
6. To provide that the said twenty-five millions of capital stock shall be composed of five millions of specie, and twenty millions of any of the stocks of the United States bearing an interest of six per cent., or of treasury-notes.
7. To strike out of the bill that part of it which restrains the bank from selling its stock during the war.
In support of this motion the following speech was delivered. The motion did not prevail, but the bill itself was rejected the same day on the third reading. Some of the main principles of these instructions were incorporated into the charter of the late bank, when that charter was granted, the following year; especially those which were more
* A Speech delivered in the House of Representatives of the United States, on the 2d of January, 1815.