4183. JUDICIARY (Federal), Curbing. [continued].
There was another
amendment[to the Federal Constitution] of
which none of us thought at the time[when
the Constitution was framed], and in the
omission of which lurks the germ that is to
destroy this happy combination of national
powers in the General Government for
matters of national concern, and independent
powers in the States, for what concerns the
States severally. In England, it was a great
point gained at the Revolution, that the commissions
of the judges, which had hitherto
been during pleasure, should thenceforth be
made during good behavior. A Judiciary,
dependent on the will of the king, had proved
itself the most oppressive of all tools in the
hands of that magistrate. Nothing then could
be more salutary than a change there to the
tenure of good behavior; and the question of
good behavior, left to the vote of a simple
majority in the two Houses of Parliament.
Before the Revolution we were all good English
Whigs, cordial in their free principles, and in their jealousies of their Executive
Magistrate. These jealousies are very apparent
in all our State constitutions; and, in
the General Government in this instance, we
have gone even beyond the English caution,
by requiring a vote of two-thirds in one of
the houses, for removing a Judge; a vote so
impossible, where [266]
any defence is made, before
men of ordinary prejudices and passions,
that our judges are effectually independent
of the nation. But this ought not to be. I
would not, indeed, make them dependent on
the Executive authority, as they formerly
were in England; but I deem it indispensable
to the continuance of this Government that
they should be submitted to some practical
and impartial control; and that this, to be
impartial, must be compounded of a mixture
of State and Federal authorities.—
Autobiography. Washington ed. i, 80.
Ford ed., i, 111.
(1821)
