Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1825-10-28

nreyarting freedom from con,roul as Independence,
which, 10 my humble apprehension, is a self-evi- |
dent truth.
Shal be told that it is not enough, that do not
fad power over one department expressly CON
ierred Oh ano,her--that legislative power, from
its nature, implies power over all things except
where restrained by the Constitution and DeclIa
ton of Rights. To this answer, that there Is
one thing which be the subject OF legislative
power, by implication, without transferring 10 the
legislature the sovereignty OF the pcople-and that
is the GovERNMENr. Government was not in
stituted To give laws to Government. Govern
ment, in all its departments, in the very nature OF
things can only be subject to the laws OF its
ton, and TO the power that gave it existence.
Each department has its peculiar function assigned
TO it by the people-each derives its existence and
its power from the people--and each is answ cradle,
either mediately or Immediately, to the people.
Is there danger that some department will TAIL in
its duty, unless there be experimenting and con-
trouliug power! And shall the legislature, there
lore. volunteer assume that power over its equdt
The people have not been unnndiul OF this danger
and they have provided for it in that mode which
seemed TO then. most expedent. There is SUI
| perintendng power provided by the constitution,
without this legislative usurpation. Not public
| opinion oEly-but regularly organized and APP
| pointed tribunals, for the trial and punishment
of the Chief Magistrate Judges, and Others offend
| ing against the state by INSTRUMENTATION, cor
uption, or other means. These tribunals may, un-
| der tie Constitution, remove uniaithiul Judge
from office, and punish him for msbehsviour. The
people have subjected the Judiciary 10 this power,
! and 10 10 other.
| To bring this idea of Legislative controul over
| the Judiciary more strctlyto the test; we will sup
pose Judge impeached for msbeliavour in office,
in having neglected reused to do an act, which,
| by act oil the Legislature, he was commanded TO
do. Would he be adjudgel guilty of msbehaviour
in Office for having failed to do the act commanded,
merely because the Legislature had commanded it !!
OF, would he be adjudsed guilty, because the act
IN itself, and without the command OF the Lee
gslatue essential the due and faithful discharge
of the duties of his Office! II he could be found
guilty, it seems 10 me he could, ON the latter
ground alone, would not the act OF the Legislature
be mere nullity-an act OF supererosation having
no force or effect whatsoever! But If 1t be said
that he may be found guilty the former ground
alone; that is, merely because The Legislature had
commanded hun 20 do the act, whether it was, or
was not, in itself, essential the due and faithful
discharge of the duties of his office; then it Is mani
fest that the decision OF the Legislature would be
conclusive, and that the Legislature, and the
tribunal OF impeaclnnent, would decide the question
what should constitute msbehay Jour in Office
| under the constitution. Judgr, under the con-
6ehdui0ur." Is it the province of the Legislature,
or of the tribunal OF Impeachment, 10 interpret this
clause of the constitution? Unquesionably the
latter They Try the Judge under ihis clause;
and mus,, of necessity, interpret tie clause, and
decide, whether, according 10 the true intent and
meaning OF the constitution, lie has broken this
condition of Office. 10 say that the Legislature
may make that msbehaviour in Office, which, in
the nature of things is misbehavour, is 10 say
a.,
tenure OF Office and decide cOctuSiUety question,
which belongs exclusively to the tribunal for the
trial of mpeachments-and consequently, that they
may haIrass an obnoxious Judge, ut their pleasure,
with useless and vexatious acquisitions, in wise
essential to the due and faithful performance of The
duies of his Office, until they have accomplished
their object of driving him from Office. 1t by no
means follows, that a Judge may, with IMMUNITY,
fail in his duty, unless he is kept in leading
by the Legislature; nor is it to be supposed he
cannot know his duty, unless dictated TO by them.
If Judge fails in his duty, there is constitution
al tribunal to punish, and dismiss him, un-
worthy servant. Though independent upon the
Legislature, there is yet a experimenting power
over hm--an independent and impartial tribunal,
who will judge him, according TO his merits de-
merits
The independence ofthe Judiciary upon the Lee
gisature, is also deducible from the fundamental
principle, on which it has been expressly provided
that the tht &c departments OF government shall Ire
SEPARATE and distinct a Judiciary under the
controul of the Legislature, would be productive
Ofthe great political evils; which the trainers
of the constitution intended guard against, by the
adoption OF this fundamental principle. sc If, &C
cording to Montesquieu the members OF the egisla-
ture also members of the Judiciary, the same
man would as legislator make tyranuical law, and
then Judge enforce il tyrannicsy this union j;
is evident would produce complete despotism. 1t
is therefore, fundamental principle, not only of
constitution, but acknowledged by all intelligent
writers to be essential to liberty, that such union
should not take place. Would not the same con-
sequence just as necessarily flow, from Judiciary
subordinate TO, and under the conlroul OF the legs
lature, and consequently subseryient 10 its will ?
hold 1T, therefore, a sacred principle of our
government essential TO liberty, that the Judiciary
is independent upon the Legislature, and Sub
iec only TO the laws ofts creation" and the power
which gave it existence. mean real, substan-
tial, and absolute independence free from all legs-
lative cOntroul mot mere shadow without the
substance-a vague indefinite and undefnable idea !,
the Editors of the Wing would have il; which
means any thing, nothing; or which can only be
said to be unlike something else, but what 1t IS itself
cannot be told.
The Editors Of the Wing still profess to entertain
the opinion, that this doctrine of the independence
of the Judiciary, is calculated 10 '' impede
pend all the operations of the Government" There
is no danger--it is of the great barriers which
defend the rights of the peope-and the officers
pure, faithful, and intelligent, any concern
ed in the public administration Not being able 10
" discover" the heads of the argument urged by the
Editors of the WING, must content myself with
a few de.uliory remarks on the prominent obec-
tons thrown out in their last article. When
" man receives the commission of Judge" they
say, SC he should discharge the duties Of his Office
&c 10 such way to advance he great objects
g for which il was designed.---The convenience