Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/489

 CH. XXXVIII.] in the letter, and spirit of our constitutions, is not less necessary to the liberty and security of the citizen, and his property, in a republican government, than in a monarchy. If, in the latter, the will of the prince may be considered, as likely to influence the conduct of judges created occasionally, and holding their offices only during his pleasure, more especially in cases, where a criminal prosecution may be carried on by his orders, and supported by his influence; in a republic, on the other hand, the violence and malignity of party spirit, as well in the legislature, as in the executive, requires not less the intervention of a calm, temperate, upright, and independent judiciary, to prevent that violence and malignity from exerting itself 'to crush in dust and ashes' all opponents to its tyrannical administration, or ambitious projects. Such an independence can never he perfectly attained, but by a constitutional tenure of office, equally independent of the frowns and smiles of the other branches of the government Judges ought, not only to be incapable of holding any other office at the same time, but even of appointment to any but a judicial office. For the hope of favour is always more alluring, and generally more dangerous, than the fear of offending. In England, according to the principles of the common law, a judge cannot hold any other office; and according to the practice there for more than a century, no instance can, I believe, be shown, where a judge has been appointed to any other, than a judicial office, unless it be the honorary post of privy counsellor, to which no emolument is attached. And even this honorary distinction is seldom conferred, but upon the chief justice of the king's bench, if I have been rightly informed. To this cause, not less than to the tenure of their offices during good behaviour, may we ascribe that pre-eminent integrity, which amidst surrounding corruption, beams with genuine lustre from the English courts of judicature, as from the sun through surrounding clouds and mists. To emulate both their wisdom and integrity is an ambition, worthy of the greatest characters in any country.

"If we consider the nature of the judicial authority, and the manner in which it operates, we shall discover, that it cannot, of itself, oppress any individual; for the executive authority must lend its aid in every instance, where oppression can ensue from its decisions: whilst, on the contrary, its decisions in favour of the citizen are carried into instantaneous effect, by delivering him from the custody and restraint of the executive officer, the moment, that an acquittal is pronounced. And herein consists one of the great excellencies of our constitution: that no individual can be oppressed, whilst this branch of the government remains independent, and uncorrupted: it being a necessary check by the judges, a tenure during good behaviour, than in a monarchy. Indeed, a republic with a limited constitution, and yet without a judiciary sufficiently 61