Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/488

 480 laws from the encroachments and the tyranny of faction. Laws, however wholesome or necessary, are frequently the object of temporary aversion, and sometimes of popular resistance. It is requisite, that the courts of justice should be able, at all times, to present a determined countenance against all licentious acts; and, to give them the firmness to do it, the judges ought to he confident of the security of their stations. Nor is an independent judiciary less useful, as a check upon the legislative power, which is sometimes disposed, from the force of passion, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, as will be shown, hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the constitution, as the paramount law, and the highest evidence of the will of the people." 1 Kent's Comm. Lect. 14, p. 293, 294.

Mr. Tucker, in his Commentaries, makes the following remarks:

"The American constitutions appear to be the first, in which this absolute independence of the judiciary has formed one of the fundamental principles of the government. Doctor Rutherforth considers the judiciary, as a branch only of the executive authority; and such, in strictness, perhaps, it is in other countries, its province being to advise the executive, rather than to act independently of it." "But, in the United States of America, the judicial power is a distinct, separate, independent, and co-ordinate branch of the government; expressly recognized as such in our state bill of rights, and constitution, and demonstrably so, likewise, by the federal constitution, from which the courts of the United States derive all their powers, in like manner, as the legislative and executive departments derive theirs. The obligation, which the constitution imposes upon the judiciary department, to support the constitution of the United States, would be nugatory, if it were dependent upon either of the other branches of the government, or in any manner subject to their control, since such control might operate to the destruction, instead of the support, of the constitution. Nor can it escape observation, that to require such an oath on the part of the judges, on the one hand, and yet suppose them bound by acts of the legislature, which may violate the constitution, which they have sworn to support, carries with it such a degree of impiety, as well as absurdity, as no man, who pays any regard to the obligations of an oath, can be supposed, either to contend for, or to defend.

"This absolute independence of the judiciary, both of the executive and the legislative departments, which I contend is to be found, both § 1615. The considerations above stated lead to the conclusion, that in republics there are, in reality, stronger reasons for an independent tenure of office