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the towns have all a right to send representatives to the legislature, in a certain fixed proportion to their numbers. It has been found that the full exercise of this right fills the House of Representatives with too numerous a body. What, then, is to be done? Why, Sir, the delegates of the towns are here assembled, to agree, mutually, on some reasonable mode of reduction. Now, Sir, it is not for one party to stand sternly on its right, and demand all the concession from another. As to right, all are equal. The right which Hull possesses to send one, is the same as the right of Boston to send fifty Mutual concession and accommodation, therefore, can alone accomplish the purpose of our meeting. If Boston consents, instead of fifty, to send but twelve or fifteen, the small towns must consent, either to be united, in the choice of their representatives, with other small towns, or to send a representative less frequently than every year; or to have an option to do one or the other of these, hereafter, as shall be found most convenient. This is what the report of the committee proposes, and, as far as we have yet learned, a great majority of the delegates from small towns approve the plan. I am willing, therefore, to vote for this part of the report of the committee; thinking it as just and fair a representation, and as much reduced in point of numbers, as can be reasonably hoped for, without giving up entirely the system of representation by towns. It is to be considered also, that, according to the report of the committee, the pay of the members is to be out of the public treasury. Every body must see how this will operate on the large towns. Boston, for example, with its twelve or fourteen members, will pay for fifty. Be it so; it is incident to its property, and not at all an injustice, if proper weight be given to that property, and proper provision be made for its security.
To recur, again, to the subject of the Senate. There is one remark, made by gentlemen on the other side, of which I wish to take notice. It is said, that, if the principle of representation in the Senate by property be correct, it ought to be carried through; whereas, it is limited and restrained by a provision that no district shall be entitled to more than six Senators. But this is a prohibition on the making of great districts, generally; not merely a limitation of the effect of the property principle. It prevents great districts from being made where the valuation is small, as well as where it is large. Were it not for this, or some similar prohibition, Worcester and Hampshire might have been joined, under the present constitution, and have sent, perhaps, ten or twelve Senators. The limitation is a general one, introduced for general purposes; and if in a particular instance it bears hard on any county, this should be regarded as an evil incident to a good and salutary rule, and ought to be, as I doubt not it will be, quietly borne.
I forbear, Mr. Chairman, to take notice of many minor objections to the report of the committee. The defence of that report, especially in its details, properly belongs to other and abler hands. My purpose in addressing you was, simply, to consider the propriety of providing in one branch of the legislature a real check upon the other. And as I look upon that principle to be of the highest practical importance, and as it has seemed to me that the doctrines contended for would go to subvert it, I hope I may be pardoned for detaining the committee so long.
INDEPENDENCE OF THE JUDICIARY.*
Regrets are vain for what is past; yet I hardly know how it has been thought to be a regular course of proceeding to go into committee on this subject, before taking up the several propositions which now await their final readings on the president's table. The consequence is, that this question comes on by surprise. The chairman of the select committee is not present; many of the most distinguished members of the convention are personally so situated as not to be willing to take part in the debate, and the first law officer of the government, a member of the committee, happens at this moment to be in a place (the chair of the committee of the whole) which deprives us of the benefit of his observations. Under these circumstances, I had hoped the committee would rise. It has, however, been determined otherwise, and I must therefore beg their indulgence while I make a few observations.
As the constitution now stands, all judges are liable to be removed from office by the governor, with the consent of the council, on the address of the two houses of the legislature. It is not made necessary that the two houses should give any reasons for their address, or that the judge should have an opportunity to be heard. I look upon this as against common right, as well as repugnant to the general principles of the government. The commission of the judge purports to be, on the face of it, during good behavior. He has an interest in his office. To give an authority to the legislature to deprive him of it, without trial or accusation, is manifestly to make the judges dependent on the legislature.
* Remarks made on the 30th of December, 1820, in the Convention, upon a Resolution to make Judicial Officers removable by the Governor and Council upon the Address of two thirds (instead of a majority) of each Branch of the Legislature.
The question is not what the legislature probably will do, but what they may do. If the judges, in fact, hold their offices only so long as the legislature see fit, then it is vain and illusory to say that the judges are independent men, incapable of being influenced by hope or by fear. The tenure of their office is not independent. The general theory and principle of the government are broken in upon, by giving the legislature this power. The departments of government are not equal, coördinate, and independent, while one is thus at the mercy of the others. What would be said of a proposition to authorize the governor or judges to remove a senator or member of the House of Representatives from office! And yet, the general theory of the constitution is to make the judges as independent as members of the legislature.
I know not whether a greater improvement has been made in government than to separate the judiciary from the executive and legislative branches, and to provide for the decision of private rights in a manner wholly uninfluenced by reasons of state, or considerations of party or of policy. It is the glory of the British constitution to have led in the establishment of this most important principle. It did not exist in England before the Revolution of 1688, and its introduction has seemed to give a new character to the tribunals. It is not necessary to state the evils which had been experienced in that country from depend. ent and timeserving judges. In matters of mere property, in causes of no political or public bearing, they might perhaps be safely trusted; but in great questions concerning public liberty or the rights of the subject, they were, in too many cases, not fit to be trusted at all. Who would now quote Scroggs, or Saunders, or Jeffreys, on a question concerning the right of the habeas corpus, or the right of suffrage, or the liberty of the press, or any other subject closely connected with political freedom ? Yet on all these subjects the sentiments of the English judges since the Revolution, of Somers, Holt, Ireby, Jekyl, and others like them, are, in general, favorable to civil liberty, and receive and deserve great attention whenever referred to. Indeed, Massachusetts herself knows, by her own history, what is to be expected from dependent judges. Her own charter was declared forfeited, without a hearing, in a court where such judges sat.
When Charles the Second, and his brother after him, attempted the destruction of chartered rights, both in the kingdom
and out of it, the mode was by judgments obtained in the courts. It is well known, that after the prosecution against the eity of London was commenced, and while it was pending, the judges were changed; and Saunders, who had been consulted on the occasion, and had advised the proceeding on the part of the crown, was made chief justice for the very purpose of giving a judgment in favor of the crown; his predecessor being removed to make room for him. But since the Revolution of 1688, an entire new character in this respect has been given to English judicature. The judges have been made independent, and the benefit has been widely and deeply felt. A similar improvement seems to have made its way into Scotland. Before the union of the kingdoms, it cannot be said that there was any judicial independence in Scotland; and the highest names in Scottish jurisprudence have been charged with being under influences which could not, in modern times, be endured. It is even said, that the practice of entails did not extensively exist in Scotland till about the time of the reigns of the last princes of the Stuart race, and that it was then introduced to guard against unjust forfeitures. It is strange, indeed, that this should happen at so late a period, and that a most unnatural and artificial state of property should be owing to the fear of dependent judicatures. I might add here, that the heritable jurisdictions, the greatest almost of all evils connected with the administration of justice, were not abolished in Scotland till about the middle of the last century; so slowly does improvement make progress when opposed by ignorance, prejudice, or interest.
In our own country, it was for years a topic of complaint, before the Revolution, that justice was administered, in some of the Colonies, by judges dependent on the British crown. The Declaration of Independence itself puts forth this as a prominent grievance, among those which justified the Revolution. The British king, it declares, “ had made judges dependent on his own will alone, for the tenure of their offices.” It was therefore to be expected, that, in establishing their own governments, this important point of the independence of the judicial power would be regarded by the States. Some of them have made greater and others less provision on this subject; the more recent constitutions, I believe, being generally framed with the best guards for judicial independence.