Page:Inquiry into the Principles and Policy of the Government of the United States.djvu/228

218 it into technical form. If the matter Of the parliament was of more importance than the form given to it by the judges, juries are not the least important judicial bench. By adhering repeatedly to the same verdict, they can force the upper bench to pass judgements against their opinions; they can impose both law and fact on the upper bench, which can impose no fact or law upon them; and they judge really and substantially in every case, whereas the judgement of the upper bench is in most cases a mere formulary prescribed by their verdict. What better title has one judicial bench or chamber, and that the least powerful too, to the epithet "judicial," than the House of Lords in England, or the Senate of the United States, to the epithet "legislative?" Was it intended to erect less than a moiety of judicial power into a political department, and even to endow this fragment with an irresponsible supremacy over the entire legislative and executive departments, by giving it an exclusive power to construe the constitution and annul laws?

Our aokward imitation of English policy, and misconception of its phrase, "judicial independence," is displayed in our lower judicial bench, as well as in the upper. We have made one dependent on a creature of our sovereignty, to avoid the old English errour of its dependence on a portion of theirs; and the other on the president through his marshal, in imitation of its English dependence through the sheriffs. In striving to exalt, we have degraded the judicial character, if it is move honourable to be dependent on the third part than on no part of a sovereignty. This degradation as to juries arises from our having overlooked them as composing a portion of judicial power, because the English overlooked and left them under the influence of the crown, when they placed the judges under the influence of the sovereignty. We contend, that adequate salaries, not to be diminished; a tenure for life, only to be lost by crime or death, and not by folly, ignorance, incapacity, lunacy or idiocy; and a complete exemption from the influence of the sovereign, are all necessary to secure the independence of judges, and we expect the independence of juries, from no Military, an