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Those who oppose any additional security for the tenure of judicial office have pressed to know what evil has been experienced, what injury has arisen, from the constitution as it is. Perhaps none; but if evils probably may arise, the question is, whether the subject be not so important as to render it prudent to guard against that evil. If evil do arise, we may be sure it will be a great evil; if this power should happen to be abused, the consequences would be most mischievous. It is not a sufficient answer to say that we have as yet felt no inconvenience. We are bound to look to probable future events. We have, too, the experience of other States. Connecticut, having had judges appointed annually, from the time of Charles the Second, in the recent alteration of her constitution has provided, that hereafter they shall hold their office during good behavior, subject to removal on the address of two thirds of each house of the legislature. In Pennsylvania, the judges may be removed, “ for any reasonable cause," on the address of two thirds of the two houses. In some of the States, three fourths of each house are required. The new constitution of Maine has a provision, with which I should be content; which is, that no judge shall be liable to be removed by the legislature till the matter of his accusation has been made known to him, and he has had an opportunity of being heard in his defence. This seems no more than common justice; and yet it is much greater than any security which at present exists in the constitution of this Commonwealth. It will be found, if I mistake not, that there are not more than two or three, out of all the States, which have left the tenure of judicial office at the entire pleasure of the legislature.
It cannot be denied, that one great object of written constitutions is to keep the departments of government as distinct as possible; and for this purpose to impose restraints designed to have that effect. And it is equally true, that there is no department on which it is more necessary to impose restraints than the legislature. The tendency of things is almost always to augment the power of that department, in its relation to the judiciary. The judiciary is composed of few persons, and those not such as mix habitually in the pursuits and objects which most engage public men. They are not, or never should be, political men. They have often unpleasant duties to perform
and their conduct is often liable to be canvassed and censured, where their reasons for it are not known, or cannot be understood. The legislature holds the public purse. It fixes the compensation of all other departments; it applies, as well as raises, all revenue. It is a numerous body, and necessarily carries along with it a great force of public opinion. Its members are public men, in constant contact with one another, and with their constituents. It would seem to be plain enough, that, without constitutional provisions which should be fixed and certain, such a department, in case of excitement, would be able to encroach on the judiciary. Therefore is it, that a security of judicial independence becomes necessary; and the question is, whether that independence be at present sufficiently secured.
The constitution being the supreme law, it follows of course, that every act of the legislature, contrary to that law, must be void. But who shall decide this question ? Shall the legislature itself decide it? If so, then the constitution ceases to be a legal, and becomes only a moral restraint on the legislature. If they, and they only, are to judge whether their acts be conformable to the constitution, then the constitution is admonitory or advisory only; not legally binding; because, if the construction of it rest wholly with them, their discretion, in particular cases, may be in favor of very erroneous and dangerous constructions. Hence the courts of law, necessarily, when the case arises, must decide upon the validity of particular acts. These cases are rare, at least in this Commonwealth ; but they would probably be less so, if the character of the judiciary were less respectable than it is.
It is the theory and plan of the constitution to restrain the legislature, as well as other departments, and to subject their acts to judicial decision, whenever it appears that such acts infringe constitutional limits. Without this check, no certain limitation could exist on the exercise of legislative power. The constitution, for example, declares, that the legislature shall not suspend the benefit of the writ of habeas corpus, except under certain limitations. If a law should happen to be passed restraining personal liberty, and an individual, feeling oppressed by it, should apply for his habeas corpus, must not the judges decide what is the benefit of habeas corpus intended by the constitution, what it is to suspend it, and whether the acts of 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.