Jenks's Portland gazette. [volume] (Portland [Me.]) 1799-1802, 1802-04-26

other parts Of theconfitutional inarument, Or
certain general principles Of constitutional law
or policy. hich ought to control the literal and
lubltitute adifrrsnr meaning
As 20 preltmPt:ols of iHrenti1n different from
the import Of the terms, there i not a fylIable
in the inltru rnent from which hey can be infer
red on the contrary, the latter member of the
clauie cited, affords very atong preIumPtion
the other way.
From TIE injunction, that the compensation of
rhe Judges lhall not be diminithed, it is manifeR.
that the contribution intends TO guard the inde-
pendence Of thofe officers againlt the legislative
department. Becaule, TO this d. partment aloas
would have belonged the power Of diminilhip1
their compensation.
When the contribution is thus careful 10 tie
Up the legilature, from taking away part Of the
compensation, is it pohibe to fuppoTe that it
can mean to leave that body At full Liberty to
take away The whole The affirmative imputes
Ito the conlltuton the manifelt abfurdity hold
ing to the Legislature this language, g You fhalf
not cUeaksn the independence Of the judicial
| charter, by exerciLlng the power OF l9saiug his
emoiumcat, but you may dgfrey it altogethers
by exercitlRg the greater power Of 6raibilatiar
the recoNpence with the ofEice'' 10 mortal can
be 70 blind as not to fee, that by fuch cor
trudion, the retraint intended to be laid upon
the Legislature BY the injunction not to leiTen
the c0mPsniations, becomes absolutely nugato-
ry,
In vain is publication Of It fought in that
part of the fame article which provides thar
"The judicial power Of The u. States fhall be
veited in one fupreme court and in f1ch infer
ior courts as the Cougrels may from time 70 time
ordain and efabliIh." The petition that the
Discretionary power TO ir9itute inferior courts
includes virtually power to abolifh them, if
true, is nothing to the purpole The abolition
OF court does not necefArily imply that of us
judges. In contemplation of law,th court and
the judge are diaina things. The courr may
have legal exiaence, though there may be no
Judge to erercile its powers. This may be the
cafe either at the original creation Of courr,
previous 10 the appointment of Judge, or feb.
iequently BY his death, refgnation or removal.
la the lat cafe, il could not be pretended that
| the court had become extina By the event IN
like manner, the Office of the Judge may fubGe,
| though the court in which he is to oficiate may
be lulpended OF deltroyed. The duties Of
Judge, as the officeis defined III our iRrifpru-
| dence, are two fold-iudicial and nniniRerial
The latter may be performed out of courr, and
often without reference TO it. As coAfervator
Of the peace, which every judge is Ok ofFci0 ma
| ny things are done not connected with judicial
conIrovetfy. or to fpeak techinally, with a rs
pendent. This ferves 10 illultrate the idea, that
the office is fsmething different from the court
which is the place or ltuation for its principal
action, yet not altogether eGental to its activity.
Beides, Judge Is not the lels Judge when
out of court than when in court. The law does
not fuppole him TO be always in court, vet IL
| does GuPpofe him to be always 10 office in va.
cation as well as in term. He has ALTO pro-
perty or interelt in his office, which entities him
to civil actions, and TO recomPence in damages
for injuries that affect him in relation TO his Of
| flee but he canaot be fai1 TO have property
or interelt in the court of which he is member.
| All theie considerations confirm the hypothesis,
that the court and the Judge are diGind legal
entities, and therefore may exit the enc indepen.
IDENTIFY of the other.
| IF it be replied, that the Office Is an incident
TO the court and that the abolition OF the prin.
cipal includes that of the incidents the anfwer
to this IS, that the argument may be we'll found.
ed as TO all 1ublequent appointments but not
as to thole previouAy made. Though there Be
no office to be filed in future, it will not follow
that one already veRed in an Individual By
| regular appointment and commifion, is thereby
vacated and divehed. Whether this fhall or
lhall not happen mutt depend on what the con.
| Ritution or the law has declared with regard to
the tenure of the Office Having pronounced
that this fhsll be during good behaviour, il viii
prelerve the Office, to give effea TO that tenure
for the benefit of the poGeGor. To be eonGa-
ent with itlef, it will require and prefcribe fuch
modification and contribution Of it's own acts,
as will reconcile its power over the future, with
the rights which have been conferred as to the
pat.
Let il not be faid that an Office Is a mere truft
for public benefit, and excludes the idea Of a pro-
perty or veRed intereR in the individual The
firf part of the proportion strue-the lat fafe.
Every Office combines the two ingredients Of
an n.ereR i@the podegor, and truf for the
public. Hence it is that the law alo-s. the Of.
6cer redrefs by civil action for an injury in re-
ation to his Office, which pre- fupLoies property
or interet I This intereR may De defcaible AZ