Jenks's Portland gazette., 1802-05-31


nent fhould have viii of e
fequently fhouId be 70 conf}itot
bers Of each fhould have ss k'f&
hle 10 the appointHenr Of the nd &
oshers. This principle rigour ou1y i u
would require that al the sPpointments IL the
teveral departments ihouid be draws from the
Tame fonotsin Of authority, the psople." Blu.
- In the contribution of the Judiciary Depart.
ment i mighs Be eines spejient 10 irfilt rigorou1y
90 the PrireipIe 6ra beea aufs peculiar quali6
cations being efEenlial in the members the pri.
mary confederation ought 20 be to ielea that
mode Of choice which belt fecures thefe quali6.
.casioas; fconoly becaufc the permanent tenure
by which the appointments are held 10 thar de
partment, msR delroy all fenfe of dependence
on the authorisy conferring them"
|" II is equally evident thar the members of
each Department fhould be as little dependent
as poliaie on thofe Of the Others for the emolu
meats annexed to their off Were the
Executive Magifrate or the .7adges not indepen-
dent ct the Legi1ature in Ibis particular, fbeir
Independence - eve.y sfbsr would be nearly nom
inal -" The great fcurity againa concer-
tratioa Of the ieveral powers in the fame Depart
ment coniGs ID giving to thofe who ad dnintter
each Department the asesDdry eoseitationai msans
and tefIos0f metiveS, TO reiR croa,hmen,s Of
the Others" g But il is impofEhl. = e;a>
each depa~sment an e4uai power OF ief-defence
In Republican Governments the Lsgilative
authority neceHarily predomipates."
The means held out as proper TO be employed
for enabling the feveral departments TO keep
each other 10 their proper places, are: !. To
give 70 each fuch An organization as will render
them eGentislly independent Of one another.-
= To fecure TO each Espport which ihall not
be at rhe 6ifcretionary dfpofal of any other
8. To eRabliih between them fuch mutual rein
sions Of aasjosIy as will make one check upon
another. and enable them rsciprocai4y to refift
eneroachmcnts, and son6ne one another within
their proper ipheres. ~r go
To secompliA the 6rR end, ii is deemed
material thar they fhould have as. little agency
as po[1ible in the appointment of one another,
and ihonId all emanate directly from the fame
fountain Of authority people: And that il
being expedient 10 relax the principle, in reipsd
TO the Judiciary Department, with view to a
more Esls6 choice Of its organs this defed in
the creation ought TO be remedied by peyaso
nsns Tenure of office !; which certainly becomes
nominal and nugatory, if the exiRenee of the
officer rets on the plsafure Of the Legislature
The principle that the feveral organs fhould
have as little agency as poflible in the appoint
ment of each other, is direaly oppofed to the
claim in favor of one Of Discretionary agency
to defroy another. The fecond of the propoled
ends is defigned to be effeefed by the proviiions
for fixing the compeniations Of the Executive
and Judicial Departments The third, by the
qualified negative of the Executive, or the acts
of the two Houfes of Congrefs by the right
of one of rhefe Houfes to accufe,--of the other
to try and punifh, the Executive and Judicial
officers and laltly, by the right ofthe Judges,
as interpreters of the laws, 10 pronounce uneon-
ftitu,ional aefs void.
Thefe are the means contemplated by the
contribution. for maintaining the limits aligned
to itfelf and for embracing the REFLECTIVE organs
of the Government to keep cash other in their
proper places, 70 that they may not have il in
their power to domineer the one over the other,
and thereby in efea, though not IN form, to
concentrate the powers in one department,
overturn the Government and eaablilh tyra-
ny. Unfortunate if theie powerful precautions
fhal prove Inefficient to accomplish the end,
and to Rem the torrent of the impolter, lNHo
vArIes, difeuifed in the fpecious garb OF f~'ri-
Hm!
The views which prevailed in the formation
of the conRituton are further liuftrated by theie
additional comments from the fame fource.'
As liberty can have nothing to fear from
the judiciary alone, but would have every thing
to fear from its union with either of the other
departments that as all the effects of fuch an
union mutt enfus from a dependence OF the
former on the latter, notwithstanding nominal
and apparent fepara.ion that as from the nat
ura feeblenefs Of the Judiciary, i IS in contin-
ual jeopardy of being overPowsred, awed or
inAuenced by its co ordinate branches and
that as nothing can contribute 70 mach to its
firmnefs and independence, as permozrncy ~ sses
this quality may therefore be juitly regarded as
an indfpcnfable ingredient in its contribution !;
and in great mealure as the citadel OF the
public jaftice and the public fscurity."
s'The complete Independence of the Courts
of Juaice is peculiarly edential in limited con-
fiitut;on. Limitations can be preferved 10 Prac
tice no other way, than through the medium
of the Courts Of Jufice TO declare all acts con-
IL en- nf ehe ron4sfufs0n