Note 236 — MEMOIR OF THE LIFE OF DAVID RITTENHOUSE; CONTINUED, FROM THE TIME OF HIS SETTLEMENT IN PHILADELPHIA.

The judiciary is the only department of government, in a republic, the officers of which ought (conformably to the principles of that form of government) to be permanent in their stations. Judges, in order to secure their independence, and thereby enable them to administer justice faithfully and impartially, should hold their offices quamdiu se bené gesserint: and, should they violate the condition of this tenure, the constitution should provide, as that of Pennsylvania, in conformity to those of the union as well as her sister states, does, that they should no longer continue in office. Thus, this branch of the government would have formed the only safe and effectual check, against such unconstitutional attempts as might be made upon the chartered rights of individuals or the public, by either the legislative or executive power. But, unfortunately, the dependent nature of the judiciary, under the constitution of 1776, rendered it incompetent to that end. Hence, as was noticed by the writer of these memoirs on a former occasion,[236a] “the framers of the first constitution of the state of Pennsylvania discovered the indispensable necessity of providing some tribunal for preserving the constitution entire. They accordingly instituted a periodical body, in the nature of a judicial inquest, and styled the council of censors; whose duty it was, “to enquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty, as guardians of the people, or exercised other or greater powers, than they were entitled to by the constitution.” “This censorial tribunal was, however, ill calculated to answer the purposes of its institution. It was, itself, a temporary body, appointed immediately by the people. In the alternation, and casual ascendency, of different parties in the country, a contingency inseparable from the nature of a popular government, the council of sensors became the representatives of the passions, the prejudices, the political interests, of whatever party might happen to be the predominant one at the moment of their election. If this should prove to be the same party with that which had borne the sway, during the seven years immediately preceding their election, they would be disposed to sanction the proceedings of that party: otherwise, they would be likely to censure and pronounce unconstitutional, the official measures of an adverse party, without just cause, impelled thereto by a spirit of party-hostility.

“Under a government thus constituted, all would be uncertain and insecure. From the deficiency of one stationary and independent department in its administration, the rights of the people and the best interests of the state would, eventually, become the sport of opposite and contending parties; these rights and interests would be sacrificed at the shrine of some desperate and unprincipled faction; the constitution itself, destitute of any steady disinterested support against their machinations, would be overthrown: till, finally, the people, having no longer any rallying point of security for their persons or property, would be driven from anarchy and licentiousness into the arms of despotism.

“It is further worthy of remark, that the council of censors was an inefficient and a nugatory tribunal, in one most important particular: Numerous unconstitutional acts of the legislature might have been carried into effect, and have had their complete operation, attended by the most unjust and ruinous consequences, before they could be even pronounced unconstitutional.”