The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1861-01-18

county, of his intention to propose amend
ments to the judiciary clauses of the Con
stitution for submission to, and ratifica-
ton by, the people Powerless as the
Opposition is to prevent any change, how
ever sweeping and however injurious, the
utmost that can be done, either in or out of
the Legislature, is to suggest the true basis
on which the judicial system of all govern
ments should rest, and to trust to the good
sense and patriotism of the peoples repre-
sentatives to make that the foundation of
our system here.
Assuming then, for the further considera-
ton of the subject, that those who have the
power to change our judicial system, will,
as they say they will, exercise that power.
we have the right to hope that the new
system, whatever it may be, will be fully
considered and discussed, before its adop-
ton, and that, if we are to have change,
it may clearly appear whether it is not
better to 60 back rather than forward,
whether it is not wiser to appoint than
elect, and for life, or at least, for long
term rather than short one, and to raise
rather than lower the salaries of our judges.
The question as to the propriety of a
government of checks and balances, is one
thing the most eaectual mode of securing
it, another. The Constitution of the United
States, and of all the States, granting Ger.
tain defined powers to both State and Ma
tional governments, would seem to have
determined the first proposition in favor Of
the checks and balances. This conceded. it
must then be admitted, that, the separate
organization of the judicial departing ut,
State and National, was intended to be, as
it really is, most powerful check on the
other departments of government, and the
only one of practical force. And this being
true, it must be further apparent, that
precisely in proportion as this department
is absolutely independent of all others, will
be its force and effect as practical barrier
against the usurpations Of the others.
In illustration of this position, let US
suppose Our government an absolute monar-
chy, ard that its sovereign should propose
Constitution providing for certain limita-
tions to his own power, and organizing a
judiciary, appointed by himself, and re-
movable at his pleasure. To this tribunal
would be con6ded the duty of constituting
the very limitations he had imposed upon
his own power. The insuf6ciency of such
a guaranty needs no demonstration.
Let US, then, change the illustration.
Suppose a Legislature, controlled by
written Constitution like our own, and
judiciary appointed by, and removable at
the pleasure of, the Legislature. Would
such judiciary be any check upon legis~
lative usurpation?
And, to vary the illustration still more:
Suppose people, having, within the bounds
of their Constitution, power to legislate-
by representatives, or otherwise,-aDd a
judiciary appointed and removable by them.
Would such a judiciary have any permanent
controlling check over popular action? And
would not q judiciary elected for short
terms be substantially the same as that
which was appointed and removable by the
same power? Or, rather, would it not be
more dangerous, as saving the moral blame
that might attach to any party or person
by reason Of judicial removals for political
cause?
Now, when we remember that tyranny,
whether exercised by an individual mon.
arch, or Democratic majority, is tyranny
still, and that, in either case, the only safe
guard for human liberty lies in the proba-
bility that after sufficient calm, earnest dis
cussion, the truth and the right will be ul-
timately discovered and acted upon, it be-
comes plain that a judiciary under the con-
troll either of the monarch or the people, is
no check upon the actions of the one or the
other, but that, on the contrary, it becomes,
to greater or less extent, one Of their very
instruments of oppression. Have we not,
then, by adopting the system of an elective
judiciary, taken step and very long one,
of departure from the admitted substantial
principles and base of our whole theory Of
government?
1t is popular fallacy, that the amount
Of freedom enjoyed is in exact proportion to
the direct participation of the people in the
government, and their direct influence
thereon. Though this is erroneous, it would
still be safe principle under monarchy
But, in Republic, none can be more dan
gerous for the reason that the whole source
Of danger is in the people themselves. In
guarding against tyranny, or an Infringement
of individual rights, danger is, of course, to
be looked for only where power resides. Ir