Page:Inquiry into the Principles and Policy of the Government of the United States.djvu/222

212 ment, is a mere detail of law; and a strict submission to law, its inseparable qualify. The attribute of a political department is destroyed, by an origin from or an influence by another department ; and the quality of a municipal department is destroyed by an independence of the legislature and sovereignty: a judiciary thus situated, is a non-descript legal or political being. The independence of a political department, cannot exist in an executive creature; nor can a genuine and useful enforcement of law, flow from an independence of the sovereign power.

Let us illustrate the idea by a supposition. The English sovereignty is lodged in the parliament. The sovereignty and the legislature is the same. Judicial power is considered as a mere municipal detail. It is therefore subject to the will of this sovereign legislature, and has no power to disallow a law, or change the constitution. Here is consistency. But suppose this sovereignty and legislature could neither appoint nor remove judges; that they were approved and tried by the House of Commons, being nominated by their speaker ; and that they could repeal or make law and constitution by precedents : are not the consequences apparent? The English parliamentary sovereign would lose the power of self government j the judges would cling to the commons, they would undermine the sovereignty of orders, and would gradually convert it into a representative democracy. Such is our case. Neither national sovereignty, nor legislative power, nor popular representation, appoints, has a power over, or influences the judges. They are under no responsibility to act according to the will of our sovereignty, or of our legislature. They are nominated by the president, and approved and tried by the senate; and they make or repeal law and constitution by precedents. Therefore they are under the same influence to undermine the popular sovereignty, as the supposed judges would be to undermine a monarchical sovereignty, or a sovcreignty of orders. Can a judicial independency of the American sovereignty, prevent the introduction of monar-