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 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; 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

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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 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 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 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 independence 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,

Let

who unanimously agreed to this tenure of office. 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 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 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 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.

§ 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 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. The Judiciary will under such circum

stances seek little but the possession of office, 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, and are not to be changed at the arbitrary will of the judges. The rulers and the citizens will not stand upon an equal ground in litigations. The favorites of the day will overcome by their power, or seduce by their influence. And thus the fundamental maxim of a republic, that it ought to be a Government of laws, and not of men, will be silently disproved, or openly abandoned.

§ 305. In the next place, all these considerations acquire still more cogency and force, when applied to constitutional questions. These questions may arise, not merely between citizen and citizen, but between State and State, and between the United States and the States. Can it be supposed, for a moment, that men, who hold their offices for two, or four, or even six years, would be generally found firm enough to resist the will of those, who have appointed them, and can so soon displace them ? If they are to administer the Constitution, according to its true spirit and principles, to support the weak against the strong, the humble against the powerful, the few against the many; how can they be expected to possess the requisite independence and impartiality, unless they hold their offices by a tenure beyond the reach of the power of the Legislature and Executive ? He is ill read in the history of human experience, who does not foresee, as well as provide for, such exigencies. In republics, the other departments of the government may sometimes, if not frequently, be found combined in hostility against the Judiciary; and even the people, for a while, under the influence of party spirit and turbulent factions, may be ready to abandon the judges to their fate. Few men possess the firmness to resist the torrent of popular opinion, or popular prejudice. Still fewer are content to sacrifice present ease and popular favor, in order to earn the slow rewards of a conscientious discharge of their duty.

If we would preserve the Constitution from inter

nal, as well as from external perils, from the influences of the great, and the corruptions of the selfish and ambitious, we must place around it every guard, which experience has shown will encourage good men in their integrity, and will awe bad men in their intrigues. If the Constitution ever perishes, it will be, when the Judiciary shall have become feeble and inert, and either unwilling or unable to perform the solemn duties imposed upon it by the original structure of the Government. Hitherto, no attempts have been made to alter the Constitution, in respect to the tenure of office. The views of the framers of it have, in all the vicissitudes of party, still been supported by the general approbation of the people. And, if any changes shall hereafter be proposed, which shall diminish the just authority of this, as an independent department, they will only be matters of regret, so far as they may take away any checks to the exercise of arbitrary power by either of the other Departments of the Government.

§ 306. But the tenure of office during good behavior, would be of little consequence, if Congress possessed an unlimited power over the compensation of the judges. It has been well remarked, that, in the course of human affairs, a power over a man's subsistence is a power over his will. If Congress could diminish at pleasure the salaries of the judges, they could reduce it to a mere pittance, and thus might sink them into an abject dependence. The Constitution has, therefore, wisely provided, that the compensation of the judges shall not be diminished during their continuance in office, and shall be paid at stated times.

§ 307. It is almost unnecessary to add, that, although the Constitution has thus sedulously endeavored, from motives of public good, to place the independence of the Judiciary upon a solid basis; yet, the judges are not beyond the reach of the law. They hold their offices during good behavior only; and for misconduct, they may be removed from office upon impeachment. Thus, personal responsibility is brought home to them; and, like all other public functionaries, they are also bound by an oath to obey the laws, and support the Constitution.