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establishment of the executive department is to accomplish, in this enlarged sense, a faithful execution of the laws. Without it, be the form of Government whatever it may, it will be utterly worthless for confidence, or defence, for the redress of grievances, or the protection of rights, for the happiness and good order of citizens, or for the public and political liberties of the people.
$ 210. The remaining duty is 'to commission all the officers of the United States.' The President cannot lawfully refuse, or neglect it in any case, where it is required by law. It is not designed, as some have incorrectly supposed, to give him a control over all appointments; but to give to the officers a perfect voucher of their right to office. In this view it is highly important, as it introduces uniformity and regularity into all the departments of Government, and furnishes an in. disputable evidence of a rightful appointment.
$211. The remaining section of this article contains an enumeration of the persons, who shall be liable to be removed from office by impeachment, and for what offences; and it has been already sufficiently considered,
The Judicial Department.
$ 212. Having finished our examination of the structure and organization of the Legislative and Executive, we next come to an examination of the remaining co-ordinate department, the Judiciary. No one, who has duly reflected, can doubt, that the existence of such a department, with powers co-extensive with those of the legislative and executive departments, is indispensable to the safety of a free Government. Where there is no judiciary department to interpret,
pronounce, and execute the laws, to decide controversies, to punish offences, and to enforce rights, the Government must either perish from its own weakness, or the other departments of Government must usurp powers for the purpose of commanding obedience, to the utter extinction of liberty. The will of those, who govern, must, under such circumstances, become absolute and despotic; and it is wholly immaterial, whether absolute power be vested in a single tyrant, or in an assembly of tyrants. No remark is better founded in human experience than that of Montesquieu, that 'there is no liberty, if the judiciary be not separated from the leg. 'islative and executive powers. It is no less true, that personal security and private property depend entirely upon the wisdom, integrity, and stability of courts of justice. How, otherwise, are the innocent to be protected against unjust accusations, or the injured to obtain redress for their wrongs
? 213. In the National Government, the judicial power is equally as important, as it is in the States. The want of it was a vital defect in the Confederation; and led to the most serious embarrassments during the brief existence of that ill-adjusted instrument. Without it, the laws of the Union would be perpetually in danger of being contravened by the laws of the States. The National Government would be reduced to a servile dependence upon the latter for the due execution of its powers; and we should have re-acted over the same solemn mockery, which began in the neglect, and ended in the ruin of the Confederation. Power without adequate means to enforce it, is like a body in a state of suspended animation. For all practical purposes, it is, as if its faculties were extinguished. A single State might, under such circumstances, at its pleasure suspend the whole operations of the Union.
$ 214. Two ends, of paramount importance, and fundamental to a free Government, are to be attained by a National Judiciary. The first is, a due execution of the powers of the
Government; and the second is, a uniformity of interpretation and operation of those powers, and of the laws made in pursuance of them. The power of interpreting the laws, necessarily involves the power to decide, whether they are conformable to the Constitution, or not; and in a conflict between the laws, State, or National, and the Constitution, no one can doubt, that the latter is of paramount obligation and force. And accordingly, it has always been deemed a function indispensable to the safety and liberty of the people, that courts of justice should have a right to declare void such laws, as violate the Constitution. The framers of the Constitution, having these great principles in view, unanimously adopted two fundamental resolutions on this subject; first, that a National Judiciary ought to be established ; and secondly, that it ought to possess powers co-extensive with those of the legislative department.
§ 215. The third article of the Constitution shows the manner in which these great principles are carried into effect. The first section is — 'The judicial power of the United • States shall be vested in one Supreme Court, and in such ‘inferior courts, as the Congress may from time to time ordain • and establish. The judges, both of the supreme and inse‘rior courts, shall hold their offices during good behavior ; and shall at stated times receive for their services a compensation, which shall not be diminished during their con
tinuance in office.' The establishment of a Supreme Court is positively required; the establishment of inferior courts is left to the discretion of Congress. Unless a Supreme Court were established, there would be no adequate means to ensure uniformity in the interpretation and operations of the Constitution and laws. Inferior tribunals, whether State, or national, might construe them in a very different manner; and thus, their obligation might be admitted in one, and denied in another State. The existence of a Supreme Court is, therefore, at all times indispensable for the purposes of pub
lic justice; and it is accordingly imperative and absolute. But the establishment of inferior courts might not in all cases be as indispensable; and at all events, the nature and extent of their organization and jurisdiction may properly vary, at dif. ferent times, to suit the public convenience and exigencies. The power is, therefore, confided to the discretion of Congress.
§ 216. The next consideration is the mode of appointment, and tenure of office of the judges. We have already seen, that the judges of the Supreme Court are to be appointed by the President, by and with the advice and consent of the Senate. The appointment of inferior judges is not expressly provided for. But has either been left to the discretion of Congress, or silently belongs to the President, by and with the advice and consent of the Senate, under the clause already considered, authorizing him to appoint all other offi. cers, whose appointments are not otherwise, in the Constitution, provided for.
$ 217. The tenure of office of the judges, both of the supreme and inferior Courts, is during good behavior. This tenure of office seems indispensable to a due degree of independence and firmness on their part in the discharge of the duties of their office; and a due security to the people for their fidelity and impartiality, in administering private rights, and preserving the public liberties. Such was the opinion of the framers of the Constitution, who unanimously agreed to this tenure of office. Let us briefly consider some of the reasoning, by which it is supported.
$ 218. In the first place, factions and parties are quite as common in republics, as in monarchies; and the same safeguards are as indispensable in the former, as in the latter, against the encroachments of party spirit, and the tyranny of faction. Laws, however wholesome or necessary, are sometimes the objects of temporary aversion, of popular odium, and even of popular resistance. Nothing is more easy in
republics, than for demagogues under artful pretences to stir up combinations against the regular exercise of authority, in order to advance their own selfish projects. The independence and impartiality of upright magistrates often interposes barriers to the success of their schemes, which make them the secret enemies of any regular and independent administration of justice. If, under such circumstances, the tenure of office of the judges were for a short period, they could easily intimidate them in the discharge of their duties, or by rendering them odious, easily displace them. And thus the minority in the State, whose sole reliance for protection in all free Governments must be upon the Judiciary, would be deprived of their natural protectors.
$ 219. In the next place, the independence of the Judi. ciary is indispensable, to secure the people against the unintentional, as well as the intentional usurpations of authority, in the executive and legislative departments. It has been observed with great sagacity, that power is perpetually stealing from the many to the few; and that there is a perpetual tendency in the legislative and executive departments to absorb all pow
If the judges are appointed at short intervals, either by the legislative or executive authority, they will naturally, and almost necessarily, become mere dependants upon the ap. pointing power. If they have a 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 faltering and feeble hand. It will secure little but its own place, and the approbation of those who value, because they can control it. It will be apt to decree, what best suits the opinions of the day; and to forget, that the precepts of the law rest on eternal foundations. The rulers and the citizens will not stand upon an equal ground in litigations. The favori es of the day will overcome by their power, or seduce by their influence. And