Judiciary. There is another reason, peculiar to a constitutional republic, why the judges should not hold at the will of the other departments. The judges are to pass between the people and the Legislature, between the people and the Executive. The Constitution is made to protect minorities against majorities, to protect the weak against the strong, to protect the citizen against the ruler. Nay, the people themselves, having full power, have placed themselves under a noble self-restraint. They have declared certain great principles, and made certain great provisions for securing their observance. If there were no power to keep the Legislature and the Executive to the Constitution, it would be only a moral and not a legal restraint. The people have provided a department, a tribunal, for that purpose. That is the Judiciary. It is not a perfect safeguard, nor is it faultless, but it is quite worth our preserving. Patrick Henry said, "It is the highest encomium on this country, that the acts of the Legislature, if unconstitutional, may be resisted by the Judiciary." In England, Parliament is omnipotent. There is no tribunal to vindicate any right against the King and Parliament combined. A few months ago you had a Constitutional Convention in session here, to revise the Constitution, and recommend changes to the people. Imagine such a convention with full power to change the Constitution by its mere vote, and not obliged to submit its vote to the people. Imagine that Convention in perpetual session, and clothed with full powers of legislation, and you have a British Parliament. We have no such power here. Any man, however weak, however odious, has certain rights secured to him by the Constitution. If the Legislature, by accident or design, if the dominant political party, flushed from the contest, have sought to touch the hair of his head, he can appeal from them to the judges; and there is nothing on earth nearer Heaven, than when the judges of the land vindicate the right of such a man, against the popular sentiment, or popular interests of the hour. The great Lord Holt defied both Houses of Parliament in succession, in defence of the right of one man, and when he died, he had a funeral two miles and a half long, stretching out of London. If I were called upon to name the peculiar characteristic of modern, Christian, republican liberty, I should say it was the adequate protection of the few, and the weak, and the unpopular, against the great powers of Legislative and Executive authority.

Now mark, Mr. Chairman, the wisdom of our ancestors. While they declared, in the Bill of Rights (Art. V.) that all

magistrates are accountable to the people, and (Art. VIII.) that the people have a right "at such periods and in such manner as they shall establish by their frame of government, to cause all officers to return to private life," they did, in their frame of government, declare that the judges should hold office during good behavior. The reason they gave for it was, (Art. XXIX.) "It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit." For the ordinary purposes of trials, the mode of tenure may not be important, but in the great contests of political forces, if the judges depended for their existence, or their compensation, on the Legislature, their value as a barrier against legislative usurpation would be nothing. Accordingly, their salaries are secured to them by standing laws. Would it not have been a mockery to prevent the Legislature from holding their salaries at its yearly control, and yet leave the officers themselves at its mere will? I think we shall find, Sir, that, judged as all clauses in the Constitution must be judged, not merely by a literal and verbal criticism of the clause itself, but also with reference to the subject matter, the context, the reason and spirit of the whole instrument, the people do not intend that the judges shall be mere tenants at the will of the other departments. If it were so, what would be the value of the right that the judges shall pass upon the constitutionality of your laws. You have only to remove. from office by address, the judges who differ from you, and you make yourselves the supreme judicature, and the final interpreters of the Constitution.

This question of the power of removal by address, is partly an historical question, and must be treated as such. It is derived from England. In England, the King has the power of appointment and removal. He appointed and removed the judges. The great object of the friends of freedom was to secure the independence of the judges. Why? Because they were to pass between the crown and the subject. After the revolution of 1689, the judges held office so long as they behaved themselves well. If the King was to determine when they behaved themselves well, nothing was gained for liberty. But official misconduct was a fact in its nature to be judicially ascertained. The British Constitution, too, had the ancient characteristic that official misconduct should be judicially ascertained, on impeachment by the Commons, and

trial before the Lords. The true meaning of the clause, then, was, that the judges should hold until they were convicted of misconduct, on impeachment.

By the Constitution of the United States, the President has the power of appointment, and, by a construction too well settled to be disputed now, the power of removal. But it is provided that the judges shall hold during good behavior. Who is to judge of their good behavior? Not the President, nor Congress, nor both together. But, as all agree in the interpretation, it is to be judged of by the Senate, in its judicial capacity, on impeachment by the House of Representatives, two-thirds being necessary for a conviction. In the Constitution of Massachusetts, we have the same provision and the same construction, The general rule is, that the judge is to hold until his misconduct is judicially ascertained, on impeachment.

But the English Constitution still retained the power of the King to remove a judge on the address of both Houses of Parliament. This was not a power conferred on Parliament. Parliament has all power, It was a limitation on the power of the Crown. In our Constitution a similar provision is introduced. After the declaration that the judges shall hold during good behavior, it is added, "provided nevertheless, the Governor, with consent of the Council, may remove them upon the address of both houses of the Legislature."

This power is given in terms unlimited in the clause itself. The clause gives you plenary discretion. Does it follow that there are no rules for the government of this discretion ?

The veto power is unlimited in terms. But if the Governor is to veto every law that he does not like, every law that he would not have recommended or voted for, as a member of the Legislature, he makes himself the supreme legislator. There are, in every instrument, clauses unlimited in terms, which yet are limited by the nature and spirit of the instrument, and by the context. Powers may be given, each unlimited in terms, which, if exercised to the extreme, destroy each other. Or, a single power unlimited in terms, if exercised to the extreme, may violate the declared principles of the instrument.

The pardoning power is unlimited in terms, But the Constitution declares that the Legislature shall make the laws, and the judges interpret them. It also provides that juries shall decide upon guilt and innocence. Now, is it not clear that if the Governor shall refuse to execute every law he does not like, or shall pardon every man convicted under a law which

he does not like, because he does not like it, he virtually "suspends the laws, or the execution of the laws," and impairs the power of the Legislature? Is he to make himself the supreme juror, and set free every man for whose conviction he thinks he would not have voted in the jury room? Is he to make himself the supreme judicatory, and suspend the operation of every criminal law about whieh he differs from the Court? No statesman or jurist contends that, by the spirit and reason of the Constitution, he has this right. No governors have so interpreted the power. Yet the pardoning power, like the power of removal, is unlimited in terms.

We see then, that there may be limitations upon the exercise of powers, drawn from the Constitution. The conflicts of powers require these limitations. Whether you call them strictly legal limitations, or rules for guiding you in the exercise of your discretion, they are equally binding on you as statesmen, being drawn from the nature and necessities of the Constitution itself. True, there is no power which can revise your act, or declare it void, or inquire into your reasons. Nor can any person inquire into the acquittal by a jury, or call the jurors to account. But that does not absolve them or you from a legal or constitutional duty, which you are sworn to perform. Allow me to suggest some limitations on the removing power, drawn from the Constitution itself. As the fact of misbehavior in office is to be ascertained on impeachment, by judicial trial before the Senate, would it not be a violation of constitutional principles to remove a judge by address for alleged misbehavior in office, without trial? Still more, would it not be so, to remove him after he had been tried and acquitted on impeachment? Would it not be in derogation of the great constitutional right of every man to have the judges pass between him and you, if you were to remove a judge because he differed from you, because he held your law unconstitutional? If you were to remove the judges because they held the Maine liquor law unconstitutional, or the law for the annexation of Charlestown, and put in judges who agreed with you, would it not be a violation of the reason and spirit of the Constitution? Nay, more, would you adopt as your rule of conduct, the maxim that the three departments must be a unit, and make the judges your tenants at will, to resign or be removed at your intimation, reducing them to the condition in which the President holds his Cabinet? Yet, if you shut your eyes to all considerations but that of the literal construction of the clause itself, as the manner of some is, you will find a better right to do this in the case of the judges,

than the President can find in the case of the Heads of Departments.

I trust, then, that we are agreed that there are limitations. drawn from the Constitution itself. Indeed, I hope you have anticipated me in this argument, and that I have merely followed a course your own minds have gone over before. The remonstrants, then, may feel confidence,—may they not,—that you will not advise the removal of a judge, if it is to be done in derogation of any of these limitations. But, although some of those who have addressed you, have urged you to remove Judge Loring because you have an unlimited power, and need give no reason, yet that is not the ground on which the case of the petitioners is put by their chief advocate, (Mr. Phillips,) and I am bound to say that on the case as he presents it, I do not think that a removal would be a violation of the limitations drawn from the Constitution.

The grounds upon which Mr. Phillips puts the case are, that though guilty of no impeachable misconduct in office, Judge Loring has shown himself unfit to hold the office; that he has wilfully disregarded the will of the people, as expressed by the Legislature; that he has shown such a want of the judicial qualities, such inhumanity, such corruptness of mind, and so forfeited the confidence of the community, and so incurred its permanent and just abhorrence, that the retaining him in office is a public scandal, and the public interests in the Probate office demand his removal.

If this case is made out, I do not doubt your right to remove him. Constitutional questions are grave questions. More than any others in the field of human science, they demand breadth of mind, reflection, experience, calmness and study. Yet there is no subject on which most men seem to think themselves so competent to decide, on which many men, and not unfrequently the most heated and the most inexperienced, are so confident and so absolute. I approach a constitutional question with more doubt and awe, every day I live. I would give no positive opinion, but I must offer you, in behalf of the gentlemen I represent, the best I cair in the way of opinion or suggestion. I have read the articles on the removing power attributed to the especial friends of Judge Loring, and the language of his remonstrance, and of one, at least, of the public remonstrances. I have not been able to agree to the legal limitations there assigned to the power. can see no limits to it, beyond those rules I have drawn from the Constitution itself, except your own opinion of the public interests. The possibility or probability of abuse is no argu

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