of the people, as well as to the principles of the constitution. The laws are to be the best the people will bear. In judging, whether between individual citizens, or between private persons and public officers or functionaries, a strict regard is to be had to the very right and justice of the case, agreeable to the laws of the land and the principles of the constitution.

The judges ought not to stand in awe of the frowns of power, or be influenced by the temporary smiles of popular favor. That kind of accountability, therefore, which is supported by popular elections, and which is proper for a member of the legislature, is not proper for a judge. From the interest which men of great property and influence might expect in future decisions, the people might be misled in their judgment of characters. The same observations will hold of a legislative appointment of the judges, in addition to what was before observed of election by the legislature generally, that they excite an idea of dependence on that body, and give rise to intrigues and coalitions, hurtful to public measures. In popular appointments, no one holds himself accountable for the character of the person appointed. In the legislature responsibility is, in a great measure, lost among numbers.

The appointment, or at least the public nomination of the judges ought to be entrusted to the president or head of the executive department. His conduct is constantly, and singly exposed to the public view. He will be holden responsible to the people for the character and talents of those whom he appoints to office, and will sufficiently feel that responsibility. To secure the judges in that degree of independence, that shall place them above a temptation to a bias, they ought to hold their offices during good behavior, and their compensation should be fixed beyond the power of the legislature to alter, at least, to diminish, during their continuance in office. For corruption and mal-conduct in office, although not for mere error of opinion, they ought to be liable to removal by impeachment, as in the case of other officers of the government.

There may, however, be some things in the conduct of a judge, which affect his character and destroy that respectability and public confidence so necessary to produce a ready acquiescence in the decisions of the judiciary, and a prompt obedience

to the laws;—they may nevertheless be of such a nature, that they cannot be made the subject of impeachment, which will reach nothing but official conduct. To remedy this evil, which has sometimes been found a matter of great consequence in government, and to impress on the minds of the judges the necessity of purity and integrity of character,-a provision may be made for the removal of any one from office on an address to the executive by both branches of the legislature. To prevent the effect of intrigue, and any popular excitement of the moment, it ought to be attended with great deliberation. To this end let it be necessary, that at least two thirds of the members of each house concur in the address. These provisions, it is believed, while they leave the judges sufficiently independent, will also hold them sufficiently accountable.

We have mentioned the compensation of the judges only; but it is no less necessary than just for a provision to be made, that every officer, every person employed in the service of the government in every department, should be paid a reasonable compensation for his services;—a stated compensation apportioned to the labor and expense, the respectability and responsible nature of the employment. It would be in vain to expect, and unreasonable to insist on a strict account of services required to be rendered not only without compensation, but often with great hazard and loss.

From what has been said of the powers committed to the three departments and the duties of the functionaries, it is evident that a separation is not intended to produce an opposition, but a mutual co-operation of those powers, without which, there can be neither harmony nor energy in the government. The reason will also obviously appear why they should be committed to different departments in the state, and not be entrusted to one man or body of men. Different knowledge and different abilities are necessary for the making, judging, and executing of laws. They require the exercise of different powers, faculties, and talents. No man, perhaps, ever had a sufficient extent of abilities or versatility of genius to attend to them all at the same time, or in a quick succession. Such a union must frequently occasion a confusion of principles and violation of rights. To commit their exercise to one man

or body of men, constitutes a monarchy or an aristocracy for the time being. By giving them the power of avoiding all constitutional enquiry, it places them above a sense of accountability for their conduct. They have it in their power-either in the enacting, the interpretation or the execution of laws,to screen themselves and every member of their body from account or punishment. The situation itself, suggests to them views and interests different from those of the people, and leaves no common judge between them. It places them in respect to the people in that state of independence which is so often called the state of nature. In such case, the people, hopeless under oppression, sink into a state of abject slavery, or roused to a sense of their wrongs, assume their natural rights in such situation, and take exemplary vengeance on their

oppressors.

In a government so constituted, the frequency of elections can serve only to aggravate the evil. The rulers, with all the powers of government in their hands, will find every instrument of factious violence devoted to their service. They will always have a hope of continuing themselves in the administration. Should there happen a change of men, a change of measures, if attempted, would be of short continuance. The same situation, and the same motives, would sooner or later produce the same fatal effects. It may be further observed, that a separation and precise limitation of the powers of government simplifies the duties of its ministers, their acts are thereby rendered distinct, enquiry facilitated, and abuses readily traced to their criminal sources, the particular agents. In addition to this it gives a degree of energy to public sentiment. Public approbation or censure, when directed to a number of men, some of whom it is known have acted well or ill, but the particular agents are concealed, lose much of their force. The guilty hide their blushes in the crowd. Guilt, or rather the sense of guilt, is diminished in proportion to the number of associates. The better to secure the accountability of individuals in the great departments of government, not only ought the powers of the several departments to be distinctly limited, but the several members should be declared incapable of holding a place in more than one of the departments at the same

time. The members of one department may in general be eligible to a place in another; but the acceptance of the latter ought to vacate the former. A separation into distinct bodies will be of little avail, if those bodies may be composed principally of the same individuals. The division of powers, will, in such case, be only matter of form; they will remain substantially united. It may, however, be unnecessary to extend these distinctions to the lower grade of magistrates. It may be for them sufficient, that any office partaking of a judiciary nature, shall be incompatible with one that is in its nature executive.

CHAPTER V.

Of a Check arising from a Balance of Power, Rotation in Office, and from Accountability.

Most modern writers upon government, who have entertained any just notions of liberty, have contended for a distribution of the powers of government into three departments or branches, which are to constitute the legislature of the state. They would have one body of men representing the commonalty, a smaller body representing the more wealthy and honorable portion of the community, and an executive chief, whether king, president, or governor, representing the sovereignty of the state.

These are to constitute three co-ordinate branches of the legislature, and for the purpose of maintaining an exact balance of the several interests in the state, are to have a mutual negative in passing all laws. The balance is to be supported

between these co-ordinate branches, and the liberties and happiness of the people secured by a mutual opposition of rights, interests and power.

These principles have been adopted from the form of the English government, where hereditary ranks and powers are coeval with the existence of the nation. But we are treating of a government formed by a people, where hereditary ranks and powers are happily unknown. For a people so situated, the first article of whose political creed is, that all men are born equal, and are by nature entitled to equal rights, to admit the necessity of such balance of opposing rights, powers, and interests, is to abandon their principles, and to confess that the laws of nature have indulged to certain classes of men different rights and privileges with distinct interests, and that the maintenance of those rights and privileges distinct and inviolable, is indispensably necessary to secure the liberty and happiness of the whole. This position is, on our principles, wholly inadmissible. There are inequalities among men; some have more bodily strength than others, some more strength of mind. Hence proceeds an inequality in power and in riches. The strong are able to trample on the weak, the cunning to circumvent the simple. But will it be maintained at this day, that they have a natural right to do this? The right of acquisition is equal and common to all. The law of natural justice has laid it under this restriction only,-"so use your own right that you injure not the right of others." My right of property, depending originally on my right of acquisition, is not injured, because another, by the application of greater industry and economy, has brought more of the goods of fortune within his right. If the law give a monopoly of riches, of power, and honors, and secure them to him against my claims of justice and of merit, it is an unjust violation of my rights. These are the darling principles of monarchy and aristocracy. Men are capable of being actuated by these principles. They are also capable of many vices. The one contributes no more to perfection in government than the other in moral conduct,one vice may be made to counteract another, and so one evil principle in government may be employed to divert the pernicious tendency of another evil principle. But surely, where