Valley), New Mexico, and Nebrasca, are, from territories, erected into States, which must happen in the course of a few years, the proportion of States which will have adopted this principle, as compared with those which have not, will be thirty-two out of thirty-six. It is to be expected also that the ultrademocratic principles will before long gain the ascendancy in the few older States which have hitherto withstood them. Kentucky yielded to them in 1850, and Virginia in 1851. Even Massachusetts, where old associations, hereditary property, a more settled population, accumulated and rapidly-accumulating wealth, and a high standard of general education, have for the most part maintained the Whig party in the ascendant,

-even Massachusetts, where, if anywhere in the Union, the anticipations of the founders of the republic have been answered, in combining the greatest latitude of popular power with social culture, intellectual progress, and firm government,-even that State is threa

tened with the approaching triumph of the democratic party; the propositions of the late Convention for certain alterations in their Constitution, in accordance with the principles of that party, having been only lost, as above adverted to, on the recent trial of strength, by (in round numbers) 5000 out of a total of 130,000 votes.

Already a large majority of both Houses of Congress belong to the democratic party. It may be anticipated, therefore, that by either mode of proceeding-either by the concurrence of "two-thirds of both Houses of Congress," or "on the application of the Legislatures of two-thirds of the several States"-it will soon be perfectly within the power of that party in the Union to force an amendment of the Constitution, which shall deal with the independence of the judiciary of the United States as they have already dealt with it in their own several States.

It is clear, indeed, that they have now the power of doing so. And it is equally in ac

cordance with their principles, with their well

known energy and perseverance, with the interests of their party, and their presumed belief that they are doing what is best for their country, that they will not be long in endeavouring to exercise that power with effect.

When they have done so, the judiciary of the United States will be no longer what it now is, "a co-ordinate power in the State," "the balance-wheel of the Constitution," "the only check upon the invasions of faction," and "the safeguard of the rights and liberties of the people against the tyranny of majorities."* It will be none of these things, and there will remain none in the then form of government of the United States.

Under another point of view, also, the way is being prepared for this change, which is effecting the destruction of the independence and lowering the position of the judiciary in those numerous States abovementioned. It is from among the general body of the legal profession that the President and Senate of the United States * § 1621.

must look for men of learning, integrity, and firmness, to fill the high and important functions of the Supreme Court, and the circuit and district courts of the Union. On this subject Mr. Justice Kent says, in the 1st vol. of his Commentaries, p. 443:-" The United States are fairly entitled to command better talents, and to look for more firmness of purpose, greater independence of action, and brighter displays of learning, in the judiciary of the United States' Courts," than can be expected by those individual States "where the tenure of office of the judges is uncertain, and a liberal and stable provision is not made for their support." But if in those States, now so numerous, and likely to become more so, the position of the judge is degraded, the estimation of the whole legal profession will be altered, and men of ability, acquirements, and high feeling will not be found to devote themselves to it, as a career of honourable ambition as well as a means of arriving at wealth or competence. When this takes place, and when the standard of learning and the tone

of independence and honour has been lowered in that profession, where will be found the men to set public opinion right on points which require study, thought, and elevation of mind to master; to make a stand against propositions which they see will be fatal to true liberty; or to act with fearlessness against public clamour? And where will then be the remembrance of the fact, that in the celebrated "Declaration of Independence" of the 4th of July, 1776, one of the principal articles of complaint made against the Sovereign of this country was, that "he made judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries"?*

* Since the above was written, an ominous confirmation has come under my notice, of the tendency of public opinion in the United States in this particular. Professor Lieber, in his work on Civil Liberty and Self-Government (Boston, 1853), p. 190, thus adverts to a recent fact regarding it :—“ It seems to me a strange anomaly that, as it would seem by a late resolution in the United States' Senate, the President has authority to remove judges in the 'Territories."

999

The principle is the same, whether acted upon in the "Territories" or the States. The independence of the judges is equally threatened. To this subject Professor Lieber devotes a chapter