ple. The context of the constitution demonstrates the two first points, which I will read.

"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America."

Here we find the constitution founded upon the will of the people; and the object declared to be the good of the people. Through the whole body of the constitution may be discerned the responsibility of all public agents, either mediately or immediately, to the people. This responsibility results, first, from the division of authority into different departments; second, from a specification and limitation of the authorities of all and each of the departments; third, from periodical appointments of the public agents. The first clause declares there shall be a Congress, to whom the business of legislation is confided. This Congress is to consist of a House of Representatives to be chosen by the people immediately, and responsible to them at the end of every two years; and a senate, to be chosen by the legislatures of the different states, who are chosen by the people; one third of the senators to be chosen every two years, and responsible at the end of every six years. The executive power is vested in a President, who is chosen by electors, who are chosen for the express purpose by the people, and responsible at the end of every four years. The President may be considered as immediately responsible to the people, although chosen through the medium of electors: because it is found in practice that the electors are constrained to avow the vote they intend to give before they are chosen, and the people have generally made their elections with a view to that object.

Thus, then, are formed two departments, their powers specified and defined, the times for extending their

powers fixed, and indeed a complete organization for the execution of their respective powers without the intervention of any law for that purpose. A third department, to wit, the judiciary department, is still wanting. Is that formed by the constitution? How is that to be formed? It is not formed by the constitution. It is only declared, that there shall be such a department; and it is directed to be formed by the other two departments, who owe a responsibility to the people. Here there arises an important difference of opinion between the different sides of this House. It is contended on one side, that the judiciary department is formed by the constitution itself. It is contended on the other side, that the constitution does no more than to declare, that there shall be a judiciary department, and directs, that it shall be formed by the other two departments, under certain modifications. Article third, section first, the constitution has these words:" The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as Congress may from time to time ordain and establish." Here then the power to ordain and establish inferior courts is given to Congress in the most unqualified terms, and also to ordain and establish one supreme court.' The only limitation upon the power of Congress in this clause, consists in the number of supreme courts to be established; the limitation is to the number of one, although that is an affirmative and not a negative expression. The number of judges, the assignment of duties, the fixing of compensations, the fixing of the times when, and places where, the courts shall exercise their functions, &c. are left to the entire discretion of Congress. The spirit, as well as the words of the constitution, are completely satisfied, provided one supreme court be established. Hence, when all these essential points in the organization and formation of courts is intrusted to the unlimited discretion of Congress, it cannot be said that the courts are formed by the constitution.

For further restraints, therefore, upon the discretion of Congress, the remaining part of the same section must be consulted. Here I beg leave to remark, that I have often felt a veneration for the wisdom of the sages who formed this constitution. Considering the difficulties they had to encounter, resulting from the various local prejudices and local interests of the different parts of the United States, and the vast variety of opinions which the subject presented, it is almost wonderful to conceive how they should have hit upon a system so admirably calculated to protect and to promote the general interests, when administered according to its original meaning and intention. I cannot go so far as to say it is perfect. I admit, like other human productions, it is stamped with the common fallibility of man; I wish, however, to see no radical changes in its principles. I wish to hand it down to posterity with those amendments only which experience shall suggest, and which will grow out of the continually varying state of the nation. It is not only remarkable for the wisdom of its arrangements, but the correct and technical mode of expression. The part of the section now to be examined, is an example of the justice of both these remarks. The words are, "the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office."

The first part of this sentence respects the relationship between the executive and the judiciary departments: it respects judges or officers of the courts, who are appointed by the President. The last part of the sentence respects the relationship between the legislative and judiciary departments; it respects the creation of offices, the fixing of the compensation of the officers or judges, and their continuance in office. These are the peculiar attributes of the legislative department. Accordingly, the most correct and technical

words are used in relation to both these objects. The term," hold their offices during good behaviour,” relates merely to the executive department. The term, hold, is the common technical word used to convey the idea of tenure. Tenure requires two parties. The one granting, the other holding or receiving the grant. Let the inquiry be made, of whom do the judges hold? The constitution furnishes the answer-of the President. One of the most obvious rules in the construction of instruments of writing is, that the whole of it must be taken together, and not one particular part by itself. The following words will be found in the second section of the second article of the constitution." And he (to wit, the President,) shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." In the third section of the same article, are these words: "And shall (to wit, the President,) commission all the officers of the United States." These three sentences contain the relationship between the executive and judiciary departments, so far as respects the objects of the present discussion.

To ascertain the real meaning and import of these sentences, they should be read in connexion with each other, excluding therefrom all intermediate words not immediately bearing on the subject. In that case, the constitution would read thus: "He (to wit, the President,) shall nominate and appoint the judges of the supreme court, and all other officers of the United States, and shall commission all the officers of the United States. The judges both of the supreme and inferior courts shall hold their offices during good behaviour." It may be now asked, if this case of the judges of the supreme and inferior courts be not an obvious exception out of the general presidential discretion of appointing and commissioning all officers of the United

States during pleasure? After the government has been in operation above twelve years, and the principle of commissioning all executive officers during pleasure, has been practised upon during the whole of the period by the executive, as well as the legislative department, the propriety of that practice is for the first time now become questionable. It is said that the right to commission during pleasure, is by implication. It is readily admitted, that there are no express words in the constitution to that effect; but the inference, from the words which are there, is almost as strong as the words themselves, if they had been inserted. The President is authorized, without limitation, to "commission all the officers of the United States." The question arises, by what tenure? The reply is, according to his pleasure or discretion. It was not difficult to foresee, that if the President was fully empowered to commission as he pleased, he would please to commission during his pleasure. The legislature has no more control over an officer who holds an executive commission during the pleasure of the President, than over a judicial officer holding his office during good behaviour. The remedy given by the constitution being the same in both cases, to wit, impeachment. Nor is there any reason, why the office of the one should be less subject to the discretion of the legislature, than the office of the other; and it seems to be universally agreed, that although the legislature cannot deprive an executive officer of his office in any other way than by impeachment during the continuance of such office, yet the office itself is always subject to be abolished. The same reasoning will hold with equal force respecting a judge and a judicial office. The reason why the executive is proscribed from the removal of a judge, is to secure to the judge the complete independence of the President, who is not responsible for the discharge of judicial duties; but the removal is perfectly correct in the case of an executive officer, because the President is highly responsible for the due discharge of