De liable to arrest, imprisonment, or detention, while he is the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability. In the exercise of his political powers, he is to use his own discretion, and is accountable only to his country, and to his own conscience. His decision, in relation to these powers, is subject to no control; and his discretion, when exercised, is conclusive. But he has no authority to control other officers of the government, in relation to the duties imposed upon them by law, in cases not touching his own political powers.

§ 296. Thus is closed the examination of the rights, powers, and duties of the Executive department. Unless my judgement has been unduly biased, I think it will be found impossible to withhold from this part of the Cons‘itution a tribute of profound respect, if not of the liveliest admiration. All, that seems desirable in order to gratify the hopes, secure the reverence, and sustain the dignity the nation, is, that it should always be occupied by a man of elevated talents, of ripe virtues, of incorruptible integrity, and of tried patriotism; one, who shall forget his own interests, and remember, that he represents not a party, but the whole nation; one, whose fame may be rested with posterity, not upon the false eulogies of favorites, but upon the solid merit of having preserved the glorv, and enhanced the prosperity of the country.

CHAPTER XXX

The Judicial Department.

§ 297. HAVING finished our examination of the struc ture and organization of the Legislative and Executive Departments, we next come to an examination of the "emaining coordinate department, the JUDICIARY. No one, who has duly reflected, can doubt, that the existence of such a department, with powers coextensive with those of the Legislative and Executive departments, is indispen

Where there

sable to the safety of a free government. 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 civil and political 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 legislative 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? If tha government can be truly said to be despotic and intolerable, in which the law is vague and uncertain; it cannot but be rendered still more oppressive and more mischievous, when the actual administration of justice is depend ent upon caprice, or favor, upon the will of rulers, or the influence of popularity. When power becomes right, it is of little consequence, whether decisions rest upon cor ruption, or weakness, upon the accidents of chance, or upon deliberate wrong. In every well-organized government, therefore, with reference to the security both of public rights and private rights, it is indispensable, that there should be a judicial department, to ascertain, and decide, rights, to punish crimes, to administer justice, and to protect the innocent from injury and usurpation.

$298. 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 Gov

ernment would be reduced to a servile dependence upon the latter for the due execution of its powers; and we should have reacted 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 mere pleasure, suspend the whole operations of the Union.

§ 299. Two ends, of paramount importance, and fun damental to a free government, are to be attained by a National Judiciary. The first is, a due execution of the powers of the government; 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, and ought to be, 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 coextensive with those of the legislative department.

§ 300. 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 inferior 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 continuance in office." The establishment

of a Supreme Court is positively required; the establish ment of inferior courts is left to the discretion of Congress Unless a Supreme Court were established, there would be no adequate means to insure uniformity in the interpretation and operations of the Constitution and laws. Inferior tribunals, whether State, or National, might construe them in very different manners; and, thus their full obligation might be admitted in one State, and denied in another State. The existence of a Supreme Court is, therefore, at all times indispensable for the purposes of public justice; and it is accordingly made the imperative and absolute duty of Congress to establish such a Court. But the establishment of inferior courts may not, in all cases, and under all circumstances, be as indispensable. And, at all events, the nature and extent of the organization and jurisdiction of these inferior courts, may properly vary, at different times, to suit the public. convenience and exigencies. The power, therefore, to establish these courts, as well as prescribe their organization and jurisdiction, is confided to the discretion of Congress.

§301. The next consideration is, the mode of appoint ment, 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 it 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 officers, whose appointments are not otherwise, in the Constitution, provided for.

§ 302. The tenure of office of the judges, both of the Supreme and the inferior courts, is during good behavior This tenure of office seems indispensable to a due degree of in lependence and firmness on their part, in the discharge of the duties of their office; and to 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.

$303. 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 neces sary, 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 interpose 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 intimi date them in the discharge of their duties, or, by renderng 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.

§ 304. In the next place, the independence of the Judiciary 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 power. If the judges are appointed at short intervals, either by the Legislative or by the Executive authority, they will naturally, and almost necessarily, become mere dependents upon the appointing power. If they have a desire to obtain, or to hold office, they will at al. 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. The Judiciary will under such circun