er judges also were made so to run at the restoration of Charles the Second, it still remained at the pleasure of the crown to prescribe the form of the commission, until the statute of William and Mary established the commissions of all the commonlaw judges to be quam diu bene se gesserint. The excellence of this provision has recommended its adoption by other nations of Europe, and it prevails in most of our state constitutions, but in some of them under modifications more or less extensive and injurious.

Whoever attentively considers the different departments of power, must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights secured by the Constitution, because it will have the least capacity to invade or injure them. The executive power not only dispenses the honours, but wields the sword of the community; the Legislature not only holds the public purse, but prescribes the rules by which the rights and duties of every citizen are to be enjoyed and regulated. But the judicial power has no command over the sword or the purse; no direction either of the strength or the wealth of the society, and can take no active resolution whatsoever. It has been truly and emphatically said to have "neither force nor will, but merely judgment;" and even for the exercise of this faculty, it must depend on the protection and support of the executive arm. This view of the subject shows, in the first place, that the judicial is, beyond all comparison, the weakest of the three departments of power; that it can never attack, with success, either of the others, and that all possible care is required to defend it against attacks from them. It also shows that, although individual

oppression may now and then proceed from the courts of justice, yet the general liberty of the people can never be endangered from that quarter, so long as the judicial, remains truly distinct from the legislative and executive powers. And it shows, lastly, as a consequence of these previous deductions, and bearing immediately on the point we are considering, that nothing can contribute so much to the firmness and independence of the judicial power as permanency in office. This quality, therefore, may justly be regarded as an indispensable ingredient in its constitution, and as rendering it the great security of public justice, liberty, and safety.

3d. In addition to the tenure by which the judges hold their offices, the permanent provision for their support is admirably adapted to secure their independence. It tends, also, to secure a succession of learned men for the bench, who, in consequence of a certain fixed support, are induced to relinquish the lucrative pursuit of their practice at the bar for the duties of a more important and honourable station—a seat on the bench. The Constitution declares, on this subject, that all the judges of the United States "shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office;" and this provision was deemed an improvement upon the previously existing constitutions of the states. It was ordained in the Constitution of Massachusetts, that permanent and honourable salaries should be established by law for the judges. But this was not sufficiently precise and definite, and the more certain provision in the Federal Constitution has been wisely followed in the subsequent constitutions of several of the individual

states.

The complete and perfect independence of the

judges is peculiarly requisite in a limited constitution, which, like that of the United States, contains certain specific restrictions upon legislative authority, both of the Federal and State Governments; such, for instance, as that "Congress shall pass no bills of attainder or ex post facto law," and that "no state shall coin money, emit bills of credit, or pass laws impairing the obligation of contracts." Limitations of neither of these kinds can be preserved in practice in any other way than through the instrumentality of courts of justice; and it is a wise and necessary principle of our government, as I shall show more fully hereafter, that the acts both of the Federal and State Legislatures are subject to the severe scrutiny and impartial interpretation of tribunals who are bound to regard the Constitution as the paramount law, and the highest evidence of the will of the people; and, consequently, to declare void all acts contrary to its tenour. Without this power, not only all the limitations and restrictions such as I have specified, but all the reservations, of rights and privileges, either to the several states, or their individual citizens, would be ineffectual and nugatory.

4th. But while the Constitution has thus rendered the federal courts independent of undue influence from the other departments of the government, it has adopted a precaution for their responsibility, by rendering them amenable for any corrupt violation of their trust; and the judges of the United States may be held to answer upon an impeachment; and, if convicted, they may be removed from the bench, and disqualified from holding any office in the government. This, perhaps, is the only provision consistent with the necessary independence of the judicial character in a government of the complex nature of that of the United States, and is the only one to be found relative to the subject, in the Constitution.

The want of a provision for removing the judges on account of inability, or upon the address of the Legislature, which exists not only in England, but in some of the states of this Union, afforded ground of objection when the Federal Constitution was under discussion in the state conventions. But the most wise and considerate men of that period believed that such a provision could not be reduced to practice, or, in a government like ours, be more liable to abuse than productive of good consequences. A provision similar to that in the Constitution of New-York, which limits the duration of the highest judicial officers to the age of sixty years, was also complained of as an omission in the Federal Constitution; but it was admirably replied by General Hamilton, one of the ablest and most illustrious defenders of that instrument, that, "in a republic where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully-on which they depend for subsistence, and from which it will be too late to resort to any other occupation, should have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench."

The Federal Judiciary being established, as I have explained, on principles essential to maintain that department in a proper state of independence, and to secure a pure and vigorous administration of the law, the Constitution proceeds to designate the objects of its jurisdiction.

It extends the judicial power of the United States to all cases in law and equity arising under the Constitution and laws of the Union, and treaties made under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to contro

versies to which the United States are a party; to controversies between two or more states; between a state, when plaintiff, and citizens of another state; between citizens of the same state claiming land under grants from different states; and to controversies between citizens of the United States and foreign states, citizens, or subjects. As it stood originally, the judicial power of the United States extended to suits prosecuted against an individual state by a citizen of another state of the Union, or by citizens or subjects of any foreign state. The states, however, were not willing to be arraigned as defendants before the Federal Courts at the instance of private persons; and it was subsequently declared, by an amendment to the Constitution, that the judicial power should not be construed to extend to any suit of law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

The propriety of vesting the jurisdiction, as it now stands, in the judicial department of the United States, seems to result necessarily from their union as one nation; and its exercise by the national tribunals may be considered requisite to the existence of the Federal Government. It may be profitable, however, at the present moment, to view this branch of our subject somewhat in detail, in particular reference to questions arising under the Constitution and laws of the United States.

The fitness of extending the jurisdiction of the Federal Courts to cases arising under the Constitution, in contradistinction to those arising under the laws passed in virtue of its authority, results from the obvious necessity of a constitutional method of giving efficacy to those provisions of the compact which neither require nor admit of an act on the part