rarely or never exerts; but it is the amount of
power in the hands of the government—not the
personal character and temper of the monarch—
which constitutes the idea of tyranny. The King
of England did not habitually exert his power ;
but whenever his passions or his cupidity were
excited, he did exert it. The government was
ordinarily administered by the authority of acts
of parliament, in the making of which the peo-
ple. through their representatives, participated.
But as I have before said, these statutes of
parliament could not execute themselves; the
courts and the judges administered them, but the
King was virtually the judge. He might not
have said to the judge in words, but he made him
understand sufficiently well, that in a particular
case, in which his hatred or his avarice was en.
listed, the judgment, should be such as he desired ;
or, he would provide another who would feel no
difficulty in gratifying him. Take, for an in-
stance, the celebrated case of the corporations,
where an English monarch to gratify his cupidi-
ty, resolved upon their destruction and made a
tool of his judge for the express purpose of ef-
fecting his object—yes, sir, and as my friend
near me, (Mr. Crisfield,) reminds me—that tool
—his Attorney General, who had prepared all
the pleadings and arranged the matter as the
lawyer, and then took his seat on the bench to
consummate as judge the act of lawless injustice.
Here was a case of removal by the hand of pow-
er for the faithful, firm adherence to duty. No
such case can occur now. And why? Simply
because the judge now is independent; he was
not so then. But he was independent in one
sense, and in the sense intended by the class of
persona to whom I have alluded. Nominally, he
was independent; and, he was so, in fact, of eve-
ry one except the King. All the rules of law
and all the forms of law were prescribed for his
government, and these required him, in the one
case, to pass a fair and honest judgment, just as
much as they did in the other. But what was
the practical effect ? Why, you find, the King
had control of the law, because he had central of the
man who administered the law, in such a state of
things the government and the law cease to afford
protection to the lights of the citizen, and it is
precisely this want of certain effectual protec-
tion which distinguishes tyranny from free go-
vernment. Liberty is but the term by which we
designate our rights. It consists, essentially, in
the enjoyment, the certain and undisturbed en-
joyment of rights, personal, social and political.
rights cannot practically exist where there is a
power to control them at will. We can have no
certain enjoyment of privileges, civil or religious,
if the sovereign power may protect them at plea-
sure. It is not important, whether through the
forms of law or in defiance of the forms of law
this arbitrary or sovereign will exerts its power.
The practical consequences are the same. It is
a lawless government, an arbitrary, a tyrannical
government, the moment the regular course of
law is disturbed, and the citizen is thrown upon
the whim, the favor or even the sense of justice
of the sovereign. This sovereign power, I re- |
peat, may consist of one, or of many. It is not
the number of individuals who rule that is to
make it more or less a tyranny, it is the absence
of restraint upon its will; it is the failure to en-
sure a just, regular and impartial administration
of the law, so as to redeem the promises and
pledges, by which it guarantees to every individu-
al in the community, from the highest to the low-
est, and to all alike, the safe and certain enjoy-
ment of all the rights and privileges, with which
they are invested; it is the unwillingness, or, in-
ability to enforce engagements, to restrain vin-
dictive passions, and violence whenever exerted
against the weak, to secure property to its right-
ful owner when an attempt is made to wrest it
from him by force or fraud—it is, I repeat, the
failure, unwillingness, or inability, in these re-
spects, which constitutes the defects of Government
; and they follow—as logical sequences—
making up the character and the curse of a Des-
potism.
But at every point we are met with the notion,
that the people have all power, and ought there-
fore to have control over the Judiciary. Sir, if
the people have power to do wrong, it is the
very purpose of government to restrain its exer-
cise; for the only object which men can propose
to themselves, by entering into such an associa-
tion as civil Society is, to secure to themselves
the enjoyment of their rights, and protect them-
selves against wrong. Are the eternal and im-
mutable laws of justice less imperative, upon
men when assembled, in large bodies, than they
are when acting individually ? Masses are but
individuals in combination; and the laws which
enjoin the observance of justice, and prohibit vio-
lence, or the practice of fraud, are as obligatory
in the one case as in the other. Like the Being,
from whom they emanate, the Rules of truth and
equity are the same to-day, yesterday, and forev-
er. in them "is no variableness, neither shadow
of turning" To say, then, that it is the right of
the people to control the judiciary, and this right
ought to be exercised, is only to leave the ques-
tion as we found it. The duty still remains, to
decide how, in the exercise of this admitted right,
can they control and organise the judiciary, to
the best advantage of the community—the best
advantage in fact of themselves—the people—the
" whole " people—for whom all the benefits of
government are designed. If, as I maintain, it
be not only most useful, but absolutely neces-
sary to the attainment of the objects designed,
that your Judges should be independent; then,
according to the theory assumed by those who
are so jealous of encroachment upon the people's
rights, it is proper to use those rights in the or-
ganisation and regulation of the government, so
as best to secure the design. If amongst the
powers of the people, were included the power
to do wrong, or to cause others to do wrong eith-
er to themselves, or any portion of themselves,
(a proposition which I deny;) still they ought
not to desire to do it; nor should we as their re-
presentatives, so exert the power.
It is obvious, then, in any just view of the
matter, that it is our duty to adopt such mea- |
