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its wrath on those who, possessing the power of removal, have not exercised it. The term, let it be remembered, is during good behaviour; the power of removal is for any reasonable cause. They who have condemned the constitution are without an excuse; for if there be a fault, it lies not in the admirable provision of that instrument.
The judiciary has within itself checks against the abuse of power, which no other department can possess. The station, from its exposure to observation and scrutiny, is surrounded with peculiar safeguards. The public trial, the constant exertion of the mind in the decision of causes, the pressure of litigants, and the watchfulness of the bar, are calculated to keep a judge in the path of duty, and prompt him to pursue an honourable career. A man who is qualified for the station, is too elevated in feeling, and too thoroughly disciplined in mind, to permit the consciousness of independence to lull him to repose, or the possession of an income adequate to his support to relax his habits of industry. Reputation, the love of knowledge, and a devotion to the cause of justice, which it is his duty to administer, will inspire the heart and expand the intellect of the upright judge. A contrary effect may be visible in many incumbents, but it only proves their unfitness for their stations, and does not impair the force of the remark that, when a judge is made of the right materials, a stable tenure and comfortable income increase his capacity and opportunities for the performance of his duties.
The term of office during good behaviour has, perhaps, in some sections of the country, lost the approbation of a portion of the people, in consequence of the refusal of the legislature to purge the bench of a few glaring examples of immorality. The legislative and executive power of removal will have a most salutary operation when exercised, in the true spirit of the constitution, not to gratify personal animosity or party spirit, but to preserve the purity of the judicial corps. When the motives are correct, and the power is exercised with discretion, there can be little danger from its rigorous exercise on all suitable occasions. Perhaps a power of so high a nature might be subjected to some useful restrictions, such as requiring a formal specification of charges, and guaranteeing to the judge an opportunity to make his defence. Nor can judges complain of the just and energetic exercise of this authority; for a public trial being afforded them, they are exempt from the snares which malice might lay, and being brought in open contact with their accusers, the fairest opportunity exists for their vindication. Ordinary prudence will screen them from assault. There should always be sufficient circumspection in the conduct of a judge, to guard him from unmerited condemnation.
As the uncertainty of the law is one of its greatest evils, the adoption of a temporary tenure, by which it will be increased, is calculated to inflict a serious injury upon the public. The legal knowledge contained in books is immensely extensive, and requires years of indefatigable study to master. The practice also exacts great labour for its acquisition. Principles must be well understood, and be consistently administered. It will be in vain to expect certainty in legal proceedings, if the judiciary be in a constant state of fluctuation. Each new incumbent will display the want of experience. The administration of justice will exhibit the various impressions which the different abilities, acquirements, and prejudices, of its ministers must produce. The intricacies of litigation, and the variety of legal authorities which, under the most favourable circumstances, are of a magnitude to occasion formidable obstacles in the path of justice, will be vastly increased. The clouds which overshadow the law cannot be removed by the delusive expedient of creating a succession of officers, to exhibit for a while their powers, and then to give way to a new race. The commencement of the judicial career will be one of preparation for the duties, even allowing that the favoured officer has no debts of gratitude to occupy his attention. The approach of the time when his commission must expire will be a period of feverish excitement, if it be not occupied with exertions to obtain its renewal. These evils may be qualified by circumstances, or may be obviated by the personal virtues of the incumbent. But in framing a constitution the general motives and features of human nature are to be considered, and not cases of individual excellence. Provision must be made for the ordinary grade of mankind, and to guard as much as possible against improper intluence.
It has already been remarked that judicial tenure during good behaviour, is the most truly republican. The independent administration of the law is essential to the existence of republics. Despotic and aristocratical governments would be shackled by such a regulation. Without dwelling upon the influence of party spirit, and the domination of corrupt demagogues, which so frequently disturb the peace and control the career of the freest and purest commonwealths, the history of human freedom exhibits the frightful abysses of despotism which at all times are open to engulf it. The wisdom of the day may teach us to repose in security, but the lessons of experience prove the necessity of guarding our liberty from assault. An enlightened and independent judiciary is one of the most effectual means of protecting the principles and the rights embodied in a republican constitution. Whilst the storm of party rage or corruption is struggling to undermine the political
system,—whilst the people are agitated by dissentions, and society is rapidly yielding to the power of aspiring demagogues, who does not see the advantage of having the administration of the laws aloof from the turmoil, and under the control of men free from its influence and independent of its power? It has been remarked that, where the crown was not concerned, Jeffries was an impartial and honest judge. His infamous career was partly owing to his dependent condition. Had his term of office been exempt from royal power, his resistance to the despotism of his superiors might have been as conspicuous as the unrelenting spirit which, for the sake of preserving his station, he exercised towards the unhappy victims of monarchical animosity.
The term of office during good behaviour cannot, it is true, make the corrupt heart virtuous, nor the ignorant mind enlightened; but its tendency is to create an honourable spirit, and to stimulate to exertion. The term for a liniited number of years has nothing to recommend it. There is no principle of republican government, that requires an efficient officer to retire from his station merely to make room for another, or to furnish the appointing power with an opportunity to issue a new commission, and place the officer under additional obligations. This power of appointment is, however, an essential ingredient in an unlimited monarchy, for there all official subordination is necessary to the supremacy of the executive. In many offices, the term for a fixed number of years may be proper. Periodically renewing the commission, and receiving the homage of the favoured candidate, add to the power of the government. If judiciously exercised, it may preserve official purity in the inferior departments. But it is difficult to see what good can result to the judiciary from being placed in this condition of subordination, or being subject to these changes. The sole object, in a republic, of conferring appointments, is, that the laws may be properly administered. The mode, therefore, by which this object can be the most safely and efficiently accomplished, is the most truly republican. When a good man is in a judicial office, republicanism requires that he should be sustained ; when a bad man has gained authority, the same creed calls for his prompt removal. That official tenure, therefore, which renders the conduct and qualifications of a judge the criterion by which the duration of his authority shall be measured, is the most truly repablican. It is not a term for life, although the good behaviour of the incumbent may make the official and the natural life coextensive.
The cry that has been raised against the constitution of Pennsylvania, as authorising offices for life, is no more than the exaggerated expressions of party animosity, destitute alike
of truth and reason. That the constitution is in many respects susceptible of improvement, cannot be denied; but they who aim their hostility at the judicial tenure, would do well to consider the perils which may be encountered by not only subjecting the judges to a condition of dependence, but by increasing the patronage of the public authorities wherever the power of appointment may be lodged. Political offices may appropriately be held for limited periods. They are generally of very short duration. Their duties are of a description which require frequent appeals to the judgment of the people, or of the authorities under whose control they are placed. Permanency seldom exists in such cases. The popular will has ample scope; and, being directed upon objects which it is competent to control, the great channels of political authority are kept sufficiently active and pure by the popular currents which unceasingly flow through them.
Whilst the stream moves on, creating periodically the most striking changes; prostrating the lofty, and elevating the humble; not unfrequently effecting an almost entire alteration in the public counsels, and, after a lapse of a few years, leaving scarcely a vestige of those who for their brief space of popular favour exercised a dominant sway over the state, it seems to be peculiarly appropriate that some land-marks should be permitted to remain. Whilst every thing else submits to alteration, the administration of the laws should be firm, and exempt from fluctuation.
In other branches of the government, the excitement of party spirit may exercise a salutary operation ; but if it once ascends the bench, it will be a pestilence to be more seriously dreaded than the scourge which prostrates its victims without mercy or discrimination. Separated from popular excitement, and uncontrolled by men who rule for a time the commonwealth, amenable to a constitutional jurisdiction when incompetent or faithless to their exalted trusts, it is impossible to conceive a wiser or more truly republican judicial tenure, than that which is contained in the constitution of Pennsylvania.
The importance of the duties of the convention cannot be exaggerated. The peace, freedom, and prosperity of a great and growing commonwealth, may be involved in the faithful performance of them. Party spirit, selfish feelings, and temporary interests, should not be allowed to mingle with considerations so deeply important to the community, and to posterity. The result of its deliberations will excite intense interest. Its wisdom and patriotism may powerfully aid in perpetuating the durability of free principles, and the security of social order. Animated by a spirit of forbearance and moderation, and
keeping the permanent good of the state constantly in view, we may confidently hope that its labours will redound to the honour and prosperity of the commonwealth.
Art. XII.-A Narrative of Events, connected with the Rise and
Progress of the Protestant Episcopal Church in Virginia. To which is added an Appendix, containing the Journals of the Conventions in Virginia, from the commencement to the present time. By FRANCIS L. Hawks, D. D. 1 vol. 8vo. New York: Harper & Brothers. 1836.
We received, too late for an extended notice, the above work, which the author modestly entitles the commencement of “Contributions to the Ecclesiastical History of the United States.” The subject was too novel, and the book itself too valuable, to permit its being passed over in silence. The church history of our Union, we refer now to all the different sects in the country, is almost untrodden ground; and certainly no one (to judge from the present specimen) is better fitted to be the pioneer in this interesting and worthy labour, than the author of the History of the Episcopal Church. Of that church he is well known, from his learning and eloquence, to be a distinguished ornament; and, from the time he has devoted to the subject, and the materials which, by patient industry, he has collected, it would appear that no one was more capable of illustrating her annals. The work shows abundant marks of laborious research, and careful investigation and comparison; and, though more peculiarly acceptable to the members of one religious persuasion, yet, from its connection with the general history of our land in its first advances towards nationality, it may present much to engage the attention of all readers. He has commenced, very properly, with Virginia, as being not only one of the earliest settled among the states, but because the planting of the Episcopal church there was coeval with the settlement of the colony; and the rise of the one is therefore connected intimately with the infant struggles of the other. The "old dominion," too, at one time exhibited the spectacle so little agreeable to American modes of thought, of a union between church and state ; the episcopal forms and doctrine being, in fact, for many years, there the “establishment.” Some very important questions of law and