The end of both doctrines is to destroy the best pledges for
civil liberty, namely, division of power, and responsibility to
nation.
Independence of one agent of another, was not invented to strengthen, and so render power insubordinate to the national will; but to weaken it, for the exact contrary purpose. To glide the judicial power, under a misapprehension of this single word, into a state of insubordination to publick will, into a sovereign power over law and constitution; and into a dependence on executive power, contrary to the policy the word has been used to impress, is one of those errours, overlooked on account of its excessive visibility.
A sovereignty over the constitution, objectionable as it would still be, would be safer in the legislature, than in the judiciary, because of its duennial responsibility; and because it would not naturally devolve flour the legislature upon the president; but an excessive power in weak hands, inevitably becomes vicarious.
But if judicial power can be erected into a political department, capable of restraining deviations from the constitution by the legislature, it would probably contribute towards the preservation of our policy. Publick opinion is now the only legitimate guardian of obedience to the constitution; its sloth and inattention, invites and overlooks aberrations from it, amounting to a tendency, which a watchful political judiciary would detect and control; whilst publick opinion would still retain its sovereignty unimpaired. and act as forcibly as at present. And a division of the national confidence between the legislature and judiciary, would carry a degree farther the principle of dividing power; but this can never happen, so long as one is subordinate, and the other insubordinate to national will.
There is a manifest distinction between a political and municipal department; and judicial power, to constitute either, must have its attributes. An origin from the sovereignty and independence of any other department, are attributes of a political department; but a nuuiicipal depart-
