conscience; in a real and effectual sense to the public judgment; and responsible to no other department and to no combination of departments. And to this end, the tenure of good behavior during the prescribed official term was provided; so that while he continues to be of good behavior; so long as you cannot charge on the record, and establish by proof, after hearing, some act of bad behavior-something which, in the received and the proper sense of the language, may be so charged and so established no other department, during his prescribed official term, can touch a hair of his head. The object of the third class of provisions was, that when he ceased, in the received and the proper sense of that language, to be of good behavior, and that fact could be charged and proved on trial, he may be removed, by impeachment, if it amounted to misdemeanor in office; and by address, if it did not. In a general way, then, of stating it, the intention of the people by the grant of this power was to enable and secure the removal of a judge for bad behavior, not being a misdemeanor, in office, a judge who in some way, by crime, by intemperance, by mental imbecility, by manifested ignorance and incompetency, by incurable indolence, by cruelty, by corruption, by loss of character,- should come to dishonor or cumber the bench, and to bear the sword of justice in vain. But if he is honest, competent, a conscientious seeker of truth, of character unspotted, of gentle and dignified manner; if his official life hitherto has been such as to win the approval and love of his associates, and the regard of the bar; if all that his accusers dare put on the record against him; all that they dare summon him to defend is an alleged single instance of mistake in the interpreting of a written law, confessedly not so clear, and in the absence of all evidence showing the least degree of incompetence, or any other failing unbecoming a good judge, in such case the people did not intend to authorize you to remove him. In their sense of the language, there is no bad behavior. And without that, they declare him independent of you. - This, then, is my general statement of the objects and the limitations of this power. Let it be examined. On a question of the objects and the limitations of a power contained in almost all of our American constitutions, and on a question whether for one decision of a good judge at nisi prius, thought by the legislature to be erroneous, they may declare him of bad behavior, and that he thenceforth holds office, not by the tenure of independence, but at their will, — on these questions, the general sense of our country affords high evidence of the people of Maine. And permit me therefore to remind you, first, that you can find no case, no, not one! — in the whole history of constitutional liberty, in which a legislature has used this power, and construed this language, as you must use and construe it, if on this record and these proofs you remove this judge. I doubt if you can find a case of an attempt to do it. Courts have been sometimes abolished, by a repeal of the law creating them. Judges have been removed for mental imbecility. The legislature of Maine once displaced a justice of the peace who had counterfeited money. Incumbents of inferior and semi-judicial jurisdictions, county commissioners and the like, have been displaced, too. But for the removal of a judge of the highest judicial tribunal in the State, for the single cause that he declared his own opinion, instead of the opinion of a governor or a legislature, on the interpretation of a law, for this, thus far, in the maddest and briefest hour of party excitement, there has never yet been found one precedent under the written constitutions of America. If gentlemen have such a precedent, will they produce it? If your memories or your studies supply one, will you refer me to it here and now? No, Sir, it is a portentous novelty, and this alone may well give us pause. On this point I do not rely exclusively on my own researches. I am able to avail myself of the far more exact and thorough examination of this branch of the question, by which Mr. Dana, of the Massachusetts bar, prepared himself at the last session of her legislature, to resist the attempt to remove Judge Loring. In that memorable exigency, elevating himself above the claims of his political connections; submitting even his personal sympathies and personal antipathies to his love of truth and sense of duty; standing alone against his friends, he produced an argument and an appeal against that folly and madness, of which any man might be proud; skilfully reasoned and eloquently urged in all parts, but particularly instructive in its treatment of the history and the practical interpretation of this power. With the results of his inquiries I am attended, and I repeat, that for such a proceeding as here is threatened, the file affords no precedent. Why, he tells us that even the leaders in the attempt against Judge Loring or the more prudent and better taught of these leaders did not venture to maintain a doctrine so novel and so outrageous, as that the legislature could remove an honest and competent judge for the reason that they thought he had erred conscientiously in the interpretation of a statute. Even in the madness of that hour; even in the presence of that flushed and frantic majority, they shrank from this extravagance. In his argument on that occasion, Mr. Dana remarks, "The grounds upon which Mr. Phillips puts the case are, that though guilty of no impeachable conduct 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." That was the case on which they pretended to press his removal. If such a case had been proved, it might have constituted the "bad behavior" of the constitution, and might have come within the power. Such a case that fanatical majority was brought to feel had been proved, and therefore, not so much in violation of law, as under the blindest and wildest misapprehension of facts, they voted the address. You know the rest. The governor refused to remove. The sober second thought of Massachusetts, although she has "conquered none of her prejudices" against the fugitive slave law, and those who administer it, sustained him, and has pronounced the courage, the sobriety of mind, the correct appreciation of facts, and sound exposition of the constitution, which he then and thus displayed, the true honor of his public life. Sir, this long and uniform practical interpretation of this power by the States, is high evidence of the meaning of their constitutions. It is high evidence of the meaning of your own. The recorded debates in the several conventions which framed or adopted these constitutions, throw some light, though less than could be wished, on the objects and limitations of this power, and on what is really meant by continuing or ceasing to be of good behavior. But the contemporaneous and subsequent usage, so uniform and so emphatic, more than supplies the deficiency, and more than completes the a priori demonstration. Taken in connection with the actual structures of the constitutions themselves, to which I shall in a few moments address myself, it places the meaning of the people beyond all doubt. It proves that they never intended nor imagined, by this power, to impair the true independence of the judiciary, as a separate and coequal department of government, supreme in its sphere over both the others, no, nor of any single judge, in the least degree. It proves that they never intended to establish the tenure of good behavior in terms, and yet to establish the tenure of mere legislative will, in effect. It proves that they never intended that the legislature, or the governor, or both together, should have power to compel the supreme court to utter their opinions, instead of its own, on a matter of judicial cognizance, on peril of deprivation of office under the scandalous charge of bad behavior. It prepares us to find when we come critically to inspect the constitutions themselves, that they are harmonized and consistent systems; every part co-working with every other; each and all capable of complete and reasonable execution; demanding only to be administered in the spirit and from the point of view in which they were constructed. In this connection it may not be undeserving of notice, that the source from which we perhaps adopted this provision for the removal by address, and the history of its origin there, afford some additional ground of presumption, a priori, that we did not design it as a means of impairing judicial independence, and help to explain perhaps, to some extent, the sparing and special use we have always made of it. The framers of our constitutions found it existing in that of England. They knew how it came there, and why it came there. They knew, therefore, that it had its origin in no intention to make the judge dependent on the mere pleasure of any body; in no intention to enable king or parliament, or both, to compel a court, in banc or nisi prius, to accept the executive, or the legislative exposition of statutes, in place of its own; in no intention to nullify the fundamental maxim of liberty which prescribes the separation of executive, legislative, and judicial powers. They knew on the contrary, that the parliament which first incorporated this provision into the public law of England, at that very moment, and by a system of provisions of which this very one was part, was designing and accomplishing that last and not the least grand and beneficent result of the revolution, to which even William yielded late and reluctantly, a true, practical, and safe judicial independence. It was one of a scheme of measures, not aiming to make the judge dependent on parliament, but to make him independent of the king. Its precise object was to secure him in office while his official behavior was good; to make known that the simple and conscientious refusal to interpret a statute, or do anything else, against his own convictions, and for the pleasure of the king, was not bad official behavior, per se; and to guaranty to him that until the justice and honor of both houses of parliament should authorize it, no power in the constitution might remove him from his place. Its object was not to enable parliament, but to restrain the king. Always the two houses could petition for anything. This clause acquired no new rights for them. It was not intended to do so. It was diverso intuitu. It was to give to the people of England what before they had never had, or had by happy accident only, a judge who knew no master but the law, and no distinctions but of rights. Before the Revolution of 1688, judges held office at the pleasure of the crown. They had been therefore, with glorious and rare exceptions, the instruments, say rather more plainly, if you do not think too concisely, the tools of the crown. Such, under such tenures, the British statesmen of the revolution foresaw they must ever continue; and while they should continue such, they discerned that they had achieved the revolution in vain. In the year 1700, therefore, in the final act of settlement, entitled "An act for the further limitation of the crown, and better securing the rights and liberties of the subject," they consummated their work by substituting the tenure of good behavior, for the tenure of the pleasure of the king; thus giving to the people of England, through all their generations, that indispensable and that vast security of right and |
