APPENDIX.

Extract from "Review of Captain B. Hall's Travels."

"WITH regard to the judicial establishments of the two countries, he is perpetually referring, in the language of taunt, to the superior firmness of the tenure of office in England. It is plain, from every word he utters, that he is under a complete delusion as to the real state of the fact. In England the judges can be removed by a bare majority of the legislature, without any form of trial, or even an allegation of their having committed any offence. Paley states this with his usual correctness (Principles of Moral and Political Philosophy): 'As protection against every illegal attack upon the rights of the subject by the servants of the crown is to be sought for from these tribunals, the judges of the land become not unfrequently the arbitrators between the king and the people, on which account they ought to be independent of either; or what is the same thing, equally dependent on both; that is, if they be appointed by the one, they should be removable only by the other. This was the policy which dictated that memorable improvement in our Constitution, by which the judges, who, before the revolution, held their offices during the pleasure of the king, can now be deprived of them only by an address from both houses of parliament, as the most regular, solemn and authentic way by which the dissatisfaction of the people can be expressed.' Mr Hallam, in his Constitutional History (vol. i. p. 245), remarks, 'No judge can be dismissed from office except in consequence of a conviction for some offence, or the address of both houses of parliament, which is tantamount to an act of legislature.” And thus the matter rests at the present day. The same casting vote which suffices to pass a law may dismiss the judge whose interpreta

tion of it is not acceptable.

This is not the case in any part of the United States. The judges of the national courts cannot be reached by address at all; they may defy the president and both houses of congress. In the states where this English provision has been copied, it has been rendered comparatively harmless by requiring the concurrence of two-thirds of each branch of the legislature in order to effect the removal.

"Let us suppose, for the sake of illustration, a question to arise on the emancipation bill, as it is called, of last session. The most strenuous supporters of that bill admitted it to be a violation of what they designated as the constitution of 1688. In Mr Peel's speech, less than a year before, he declared, If the constitution was to be considered the king, lords, and commons, it would be subverting that constitution to admit Roman Catholics to the privileges they sought; it would be an important change in the state of the Constitution as established at the revolution.' (Speech in May 1828.) Lord Tenderden, the chief justice of the court of king's bench, in resisting in the house of lords the bill subsequently introduced by Mr Peel himself, declared that he looked upon the proposed measure as leading by a broad and direct road to the overthrow of the Protestant Church.' (Times, April 6, 1829.) Suppose the sergeant-at-arms should thrust back Mr O'Connell on his attempting to enter the house of commons, or any other cause arise bringing up the act: were Lord Tenderden, as a judge, to use any language of an unsatisfactory kind, he might be hurled from his seat by that very legislature, which was induced to pass the law. In the United States the people have denied themselves this power. Mr Chief Justice Marshall might move intrepidly on, where Lord Chief Justice Tenderden must yield or be sacrificed. Congress fairly and equally represents the whole country, yet it has not the power of a British parliament to bring to bear on judges what Paley calls the displeasure of the people.'

"It is a subject of curious reflection, that until the constitution of 1688, or rather until the 13th year of Will. III., judges were, as

Paley remarks, the creatures of the crown. The actual power of judicial appointment at present resides in Mr Peel, the home secretary. He has said that the constitution of 1688 would be subverted by measures which he has since urged through parliament; if so, the king has an unlimited power of making and unmaking judges. Put that constitution out of view, and Lord Tenderden may be dismissed in the same way as his predecessor Lord Coke was, in the time of James the first.

"Captain Hall has sad misgivings; he tells us as to what will be our fate if the supreme court should at any time falter in its duty, and consent to execute an unconstitutional law. Now there is, of course, no end to the hypotheses which an ingenious mind may frame as to the effect of derelictions of duty, by any department of a government. The house of commons may, as Paley remarks, "put to death the constitution, by the refusal of the annual grants of money to the support of the necessary functions of government." So may the judiciary commit some suicidal act. We have given to our judges every motive to a high and fearless execution of their trust; the oath to support the constitution,—absolute immunity,—and, on the other hand, the infamy of judicial cowardice. Human precaution can go no further. But where are we if all these securities prove ineffectual? Just where other countries are which do not intrust to the judge the power of canvassing a legislative act. What was the history of our revolution? Whilst we were a part of the British empire, an attempt was made to tax us in defiance of a common law principle. As the courts stood ready to enforce these odious measures, we were driven to arms. Lord Chatham declared us to be in the right. Mr Fox has subsequently placed on record his opinion that our resistance preserved the integrity of the English constitution, and parliament itself has recognised the justice of our course by a definition of the true colonial principle. Our present position is this:-we have placed our judges in a situation far more independent than the same functionaries enjoy in England. We are a patient, quiet people, and will submit to a great deal even of what we deem injustice, rather than put all these blessings in peril by violence: but, finally, we hold in reserve for intolerable grievances what Blackstone describes, even in England, as the last resort.

"It is the more to be regretted that Captain Hall should have exhibited an absurd ignorance on this subject, as he has thereby diminished materially the chance of our profiting by his criticism, even when better founded. A foreigner is often struck by errors to which the people, amongst whom they exist, are rendered insensible, and his candid and temperate exposure of them may lead to a reformation, which might have been struggled for in vain by those whose motives were more liable to suspicion. Thus, he very justly denounces the practice, in a few of the states, of rendering the judges periodi

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cally elective, thinking that they are thereby exposed to, at least, a suspicion of servility to the government. He thinks that they ought to be placed on the same footing with the judges of the United States, and of the largest states; but unfortunately he has thrown away all his influence as an auxiliary, by seriously pretending to refer these misguided people, in the most triumphant manner, to the case of England, when they are too well aware that an evil of the same character exists in that country, in a form infinitely more odious and alarming, and on a scale altogether stupendous.

"The allusion is, of course, to the high court of chancery. There is a sum at stake in the litigation of that court-nay, actually locked up awaiting its decisions-equal to the value of the feesimple of the states in question, and all their movables into the bargain-a sum more than sufficient to pay off the whole national debt of the United States several times over. Its jurisdiction is of the most diffusive character, and it may be said to reach in some way, either directly or indirectly, the interests or the sympathies of every individual in the community. As no court presents so many temptations to indirect practices, so there is no one in which they may be so readily veiled. A year's delay, to obtain which might be an object of sufficient importance to warrant an enormous bribe, would scarcely excite even suspicion in a court whose procrastinating temper is proverbial. There is no jury to participate in its labours, or to check an improper bias; nor do its proceedings possess that kind of popular interest which attracts to them the supervision even of the readers of the newspapers. What is the tenure by which this almost boundless power over the anxieties and the interests of the community is held? The will of the minister of the day: his breath can make or unmake the lord chancellor. A premier would instantly resign if his declared wish for the removal of this officer should be disregarded: such a refusal would be considered as depriving him of an authority essential to the discipline of the cabinet, and to that concert and cordiality on which the success of its measures must so greatly depend. When it is recollected that within the brief space of nine months, there stood at the head of affairs in Great Britain four different individuals in succession (Lord Liverpool, Mr Canning, Lord Goderich, the Duke of Wellington), it will readily be conceded that the chancellor can never consider himself as altogether safe, since he is liable to be

sacrificed, not merely to any particular scheme of policy, which he is accused of thwarting, but even to those impulses of temper, on the one side or the other, through which Mr Huskisson ceased to be a minister. It seems to be universally agreed that Lord Lyndhurst must have gone out, as the attorney-general did, had he not voted for the Relief Bill of last session.

"If we look back to the history of this court we shall see plainly what has been the practical consequence of this state of things. The mind involuntarily turns to Lord Bacon: the 'greatest, wisest' of mankind, he became lord chancellor only to furnish to the poet a sad antithesis to these epithets. There is nowhere to be found a more mortifying rebuke to the pride of human nature than is furnished in witnessing the influence of circumstances over a mind so wholly without a parallel in modern times, whether we refer to original power and compass, or to extent of acquirement. His appointment, as appears by his own letters, was brought about by Buckingham, the favourite of King James. The abject subjection in which he was held is thus stated by his biographer Mallet. 'During the king's absence in Scotland, there happened an affair, otherwise of small importance, but as it lets us into the true genius of those times, and serves to show in what miserable subjection the favourite held all those who were in public employments. He was on the point of ruining Sir Francis Bacon, the person he had just contributed to raise; not for any error or negligence in their master's service, but merely for an opinion given in a thing that only regarded his own family. Indeed, such was his levity, such the insolence of his power, that the capricious removal of men from their places became the prime distinction of his thirteen years' favour, which, as Bishop Hacket observes, was like a sweeping flood that at every spring-tide takes from one land to cast what it has taken upon another.' And again, nor even thus did he presently regain his credit with Buckingham; the family continued to load him with reproaches: and he remained long under that agony of heart which an aspiring man must feel when his power and dignity are at the mercy of a king's minion, young and giddy with his elevation. They were, however, reconciled at last, and their friendship, if obsequiousness in one, to all the humours of the other, deserves the name of friendship, continued without interruption for some years; while Buckingham went on daily to place and dis