Page:Debates in the Several State Conventions, v4.djvu/460

444 not an impeachable offence ; still it is the ground by which the judges are to be removed from office. The process of impeachment, therefore, cannot be the only one by which the judges may be removed from office, under and according to the Constitution. I take it, therefore, to be a thing undeniable, that there resides somewhere in the government a power that shall amount to define misbehavior in office by the judges, and to remove them from office for the same without impeachment. The Constitution does not prohibit their removal by the legislature, who have the power to make all laws necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States.

Mr. BRECKENRIDGE. To make the Constitution a practical system, the power of the courts to annul the laws of Congress cannot possibly exist. My idea of the subject, in a few words, is—That the Constitution intended a separation only of the powers vested in the three great departments, giving to each the exclusive authority of acting on the subjects committed to each; that each are intended to revolve within the sphere of their own orbits, are responsible for their own motion only, and are not to direct or control the course of others; that those, for example, who make the laws, are presumed to have an equal attachment to, and interest in, the Constitution, are equally bound by oath to support it, and have an equal right to give a construction to it; that the construction of one department, of the powers particularly vested in that department, is of as high authority, at least, as the construction given to it by any other department; that it is, in fact, more competent to that department, to which powers are exclusively confided, to decide upon the proper exercise of those powers, than any other department, to which such powers are not intrusted, and who are not consequently under such high and responsible obligations for their constitutional exercise; and that, therefore, the legislature would have an equal right to annul the decisions of the courts, founded on their construction of the Constitution, as the courts would have to annul the acts of the legislature founded on their construction.

Although, therefore, the courts may take upon them to give decisions which go to impeach the constitutionality of a law, and which, for a time, may obstruct its operation, yet I contend that such law is not the less obligatory because the organ through which it is to be executed has refused its aid. A pertinacious adherence of both departments to their opinions would soon bring the question to an issue, which would decide in whom the sovereign power of legislation resided, and whose construction of the Constitution as to the law-making power ought to prevail.

Mr. HEMPHILL. I have ever understood that there was difference in opinion on this point: that the general opinion was, that the words in the Constitution rendered the judges independent of both the other branches of the government. This appears, from the debates in the Convention in Virginia, to have been their opinion; it appears also, from the strongest implication, to have been the opinion of the author of the Notes on Virginia.

What is the meaning of the words from time to time? They are used but in three other parts of the Constitution, and, when used, they do not convey the idea of what may be done. Indeed, they are used in cases where it is impracticable to undo what shall have been done. [Mr. Hemphill here read 5th sec. 1st art. No. 3, 9th sec. 1st art. No. 6, and 3d sec. 2d art.] What do these words mean in that part of the Constitution under discussion? The Supreme Court had been mentioned in 2d and 3d art.