this construction is violated by making it responsible to a
section of one. If it means, that the judicial section of government
ought to be independent of any other section, a
responsibility to the sovereignty is consistent, and a responsibility to a section of the government inconsistent with this
meaning. To one of these interpretations, the idea of
judicial independence must be confined. By the first, judicial power would be made despotick; by the second, a
responsibility to a section of the government is forbidden.
because it makes judicial power dependent on that section,
if a responsibility to the sovereignty would make it dependent on the sovereignty. No mode exists to avoid the dilemma of one of these constructions, but that of making
judges responsible to the sovereignty op its representative,
but independent of every section of the government.
Legislative power could not be independent, if legislators were liable to impeachment before a court for legislative acts; yet it would be equally so with judicial power, liable to impeachment for judicial acts before the senate; .and legislative power is considered as independent, though it is dependent on the sovereignty; demonstrating that the term only implies, an independence of other branches of the government. The independence of judicial power is intended to prevent its being made an instrument of tyranny by another branch, not to make it a tyranny itself. If it is placed beyond the coercion of sovereignty, and made responsible to another branch of a government, it is forged exactly into the instrument intended to be avoided. Its responsibility to the English king, and independence of the parliament or sovereignty of the country, made it such an instrument. Had this responsibility been transferred from the king to the House of Lords, it would have remained such an instrument.
It has been heretofore denied that the judicial power possessed an exclusive privilege to determine the constitutionality of a law; and asserted, that juries and private individuals participate in this right, upon the ground of the
