Page images
PDF
EPUB

liberty, an independent judiciary. This exactly, and merely, was the object of the seventh clause of the act of settlement. So the framers of our constitution understood that precedent; and so they interpreted its lessons. No wonder that a provision having such an historical origin, aiming at and marking so brilliant and beneficent a trial of judicial independence, should have been administered uniformly thus far in the spirit of that origin. No wonder that, designed to assure the judges of England that mere disobedience of the king's will shall not forfeit their commissions, it has been uniformly interpreted here to assure our judges that mere disobedience of the gov ernor's will shall not forfeit theirs. No wonder that, introduced there to encourage and to compel the judge to form and utter his own opinions of the law, under his responsibility to conscience and the people, instead of echoing and registering the opinions of others, it has never yet been understood here to make an honest and careful judicial opinion a crime. fore so vast an innovation is hazarded, let us be quite certain that there is something in the constitution of Maine to distinguish it from the general American model, and to warrant a departure from the uniform American practice.

Be

And this conducts me to that instrument itself. In what terms is your power given? In the following:

"Sec. 5. Every person holding any civil office under the State, may be removed by impeachment, for misdemeanor in office; and every person holding any office, may be removed by the governor with the advice of the council, on the address of both branches of the legislature. But before such address shall pass either House, the causes of removal shall be stated and entered on the journal of the House in which it originated, and a copy thereof served on the person in office, that he may be admitted to a hearing in his defence."

This language you say is quite general. Certainly. Taken by itself, and without attention to the whole well-considered and consistent writing of which it is part, it is so. He may remove on address. But for what cause did the people of Maine intend that you should address? Some causes there must be; some causes that may be stated and entered of record, and against which he must be heard in his defence. For what causes then? It does not enumerate them in terms, nor define in terms either the general object, or the particular

limitations. But will any man therefore venture to say that they authorize a removal without cause? Certainly not. If, then, there must be cause, capable of statement on the record, and to which the incumbent must be allowed to defend, it must

be good cause. And how shall we know what the people meant should be deemed a good cause? Shall we say they meant that anything which the legislature of the hour might bring themselves to vote a good cause, is, and becomes a good cause? Why, this would be to give you in this behalf arbitrary power. It would be to give to one branch of government arbitrary power over another branch of government. It would be to authorize two branches to extinguish a third, or turn it into an echo and a shadow of themselves, at their mere pleasure. It would be to place the honor of the judgehis sensibilities, his reasonable expectations, his right to his office guaranteed during good behavior in his turn-at the disposal of whim, passion, pride, partisanship—the humor of the "elective despotism" of the moment. Sir, such power cannot be given, and cannot be taken, by mere implication. It must be given in clear and peremptory terms, or it is not given at all. Do you find it so given? No. Do you find it said, "and the legislature may so address, and the governor may so remove, at their mere pleasure"? No. Then the power is not arbitrary. It is not unlimited. It is limited to the existence of good cause proved on trial. Well, to determine whether any particular cause alleged is what the people meant should be deemed good cause; to determine whether in any particular case they meant you should exercise this power, you are to take the whole constitution together, and to see, upon a careful collation of all its parts, whether so to exercise it, and for such cause, is or is not incompatible with other provisions, whose meaning you cannot misunderstand; whose objects and whose spirit you cannot and would not deny that you perfectly knew. If it is so incompatible, it is not authorized. If it is so incompatible, it is forbidden. And I assert of the proposed removal of this judge for this cause— an honest and able man for an interpretation of the constitution and the statute, which you think mistaken, it is a use of this power absolutely incompatible with the rest of the constitution, with its whole structure and pervading spirit and

[blocks in formation]

general idea, and with numerous particular provisions whose sense and end no man can help seeing. For that reason, I say it is unauthorized and is forbidden. So to exercise the power were to abuse and pervert it. If there is no other department of government to revise and reverse such a proceeding, as I believe there is, there would still be some responsibility to character, to conscience, and to the great popular law-giver behind, which no servant of the public can disregard if he would, or would if he could.

Every power is

It need not be argued to such an assembly as this, that the true rule of interpreting the constitution requires that every provision of it, however general in terms, be so construed as to be made consistent with every other. Each is to be deemed a part of a careful and skilful whole. to be deemed given, and is to be used in trust for all the constitution. And therefore, if of two constructions of a power like this of removing a judge—one construction reconciles it with all the residue of the instrument, and especially its more fundamental provisions and principles, while the other construc tion brings it directly in conflict with them, and would annul or essentially defeat their ends and embarrass their administration of these two constructions, that which harmonizes and executes all, is the true construction. Surely, this is too clear for argument. You construe every writing, however hasty, and however unskilful, by this rule. You presume an intention to make harmonious and consistent work; and you give effect, if you can, to every stipulation and to every word; although to do so you depart here and there from the ordinary use, and here and there limit and restrict the apparent generality. So you would deal with the most inartificial instrument, touching the most trivial concern. But with how much more reason should you so interpret a written constitution of free government? Is there any production of human art, of human will, so prodigious and so grand? Is there any to which more reason, thought, virtue, deeper studies, more fervent prayer to God, have been invoked? Is there any writing of man's hands, in which we may be more certain to find harmony of parts; coöperation of all with each and each with all; the easy and sure play of the auxiliary machinery of order and adjustment; not a conflict of antagonisms? Think how many

[ocr errors]

of our greatest minds have coöperated in this kind of work; how much discussion among the people has preceded and attended and assisted it; in how true a sense it has been the master-work of American reason and virtue, and say if you do not expect to find such a document true to itself? Do you expect to find, that in such a constitution as yours-in which are embodied, not only the thoughts of the Kings, and Holmeses, and Thatchers, and Emerys, and Whitmans, but the thoughts of all who have set their hands to our American public law, from the Declaration of Independence—that in such a constitution the latter end of the commonwealth will be found to have forgot the beginning? Surely here, if anywhere, you will look for consistency and harmony.

And therefore, if of two interpretations, each satisfying the mere words of a clause like this, one is found to execute the whole, and the other to defeat half; one found to carry out certain grand ideas, as separation of departments, and independence of each of the other two; and the other to erase or stifle them if one makes the constitution a system of coöperation, and the other a chaos of conflict, you will not hesitate which to adopt.

And now I submit that there are parts of this constitution, with which such an interpretation of this power, as would authorize the removal of an honest and competent judge for what you are pleased to call a mistake of written law-an honest mistake-is totally incompatible. There are parts of it whose clear sense and acknowledged ends are totally defeated by such an interpretation. If so, it is demonstrated to be false. What are they?

In the first place, there is that provision which, according to the universal doctrine of American liberty under written constitutions, ordains that there shall be a distribution of all the powers of government among three departments — legislative, judicial, and executive; that each shall possess its own; each, as the general principle, within its sphere, be supreme, coördinate with, and independent of, both the rest; and ordains, more precisely, that of the powers thus assigned to the judiciary, shall be that of interpreting and administering the constitution and statutes; and that in that function of interpretation, the judiciary is not only independent of the legisla

tive and executive, but is the supreme power in the last resort, whose determinations are conclusive on all other branches and all other men.

That there is such a provision in your constitution is certain. It forms the matter of article third:

"Sec. 1. The powers of this government shall be divided into three distinct departments- the legislative, executive, and judicial.

"Sec. 2. No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted."

So then, there are three "distinct departments;" each with its own powers; each, and every member of each, forbidden to exercise those of another; each with its own work to do; each to do it all; and neither to usurp; neither to share.

Such is the principle. From what great constitutional examples you borrowed it; by what great masters it comes recommended; how universally it has been adopted into our constitutions; how indispensable it is to liberty and the government of law-you all know. You all know that the American doctrine in this behalf is, that without it there is no liberty. For want of it, the beautiful but headlong and passionate republics of Greece and Italy burned out and fell, successively, from their thrones on high. In the sublime and fine language of Harrington, adopted into the constitution of Massachusetts, we established this separation of departments "to the end it may be a government of laws and not of men." And now, to accomplish such separation, what does the theory, what does the practice of American constitutional liberty demand? Not, certainly, that each department should be totally disconnected from each; for that were impossible and useless, and even calculated to defeat the practical enforcement of the principle itself. But these things are of its essence-that "neither department ought to possess, directly or indirectly, an overruling influence in the administration of the powers of another; "that all be so constituted, as far as is practicable, as to keep each in its proper place;" "that each department have a will of its own; "that each be independent of the others, as far as may be, for its continuance in office as well as the emoluments of office;" and that "each be armed with the necessary constitutional means and personal motives to resist the encroachments of the others."

[ocr errors]
« PreviousContinue »