McCully v. State

*596 DISSENTING OPINION.

Snodgeass, Ch. J.

This case was instituted in the Circuit Court of Sbelby County, under the statutes authorizing such proceeding (Shannon’s Code, §§ 5165, 5187) to restrain defendant from exercising the functions of the office of Chancellor of Part II. of the Chancery Court of said county. By bill and amended bill two questions were made: (1) That the Court had been abolished by an Act of the Legislature passed February 25, 1899, approved February 27, and defendant’s term of service as Judge thereby ended, and (2) that defendant had been removed from office by a joint resolution of the House of Representatives and the Senate, adopted April 20, 1899, and approved on the twenty-first. Answer was filed denying the constitutional validity of both Act and resolution. The Circuit Judge, L. H. Estes, heard the case on the issue thus presented, and decided against defendant, enjoining him from exercising the functions and powers of Chancellor, and defendant appealed and assigned errors.

It is obvious that the judgment is incorréct if both propositions of defendant are successfully maintained, and correct if he fails in. either; for if the Court is legally abolished, he could not continue to hold it, whether he did or did not cease to be a Judge, and if he has been under the resolution legally removed from office, he could not hold the Court, though it did not cease to be a Court by virtue of the abolishing Act.

*597 It is necessary, therefore, to consider and determine both questions. Before doing so, however, it is proper to determine one or two questions, and suggest certain consequences necessarily deducible; and, first, whether the officer can exist when the office is legally destroyed. We think that this question is not susceptible of debate. It would be an unintelligible jargon to employ words to express how an official existence was continued, when the office, the thing which was constituted only as a place and reason for such existence, was extinct. From this a consequence is deducible that, in . one aspect, might make the consideration of the legislative resolution unimportant or irrelevant. If the Act in controversy was constitutionally passed when approved on February 27, defendant, Thornton, was no longer Judge, and the Legislature had no authority whatever to proceed against him for removal in any way, whether that taken was correct in form or substance, being wholly immaterial, for it will be remembered that the resolution was adopted on April 20, after the Act abolishing the Court had taken effect, which, by its express terms (not heretofore stated), was “from and after the first Monday in April, 1899.” Another obvious conclusion is that if the power to remove a Judge when the office had not been legally abolished is exercised, the effect of it would only be to get rid of the particular 'incumbent, for, the office remaining, the *598 Governor would have to fill the vacancy, and no purpose even of economy could be subserved.

In order, therefore, that the resolution could have any force or effect, it is essential, to establish the invalidity of the Act; and the legislative resolution first adopted, and which was to be, and was in fact, served as notice upon the defendant, did assume (not merely, as it would be held by implication to do, when • it proposed a removal from office, that the office existed) in express words that the office was then existing. This resolution was adopted on April 7, four days after the Act, if it took effect at all, had taken effect.

The resolution, which was the first in the series leading to final removal, is as follows:

“ House Joint Resolution No. 105. — Whereas, The public welfare requiring the removal from office of the following named official, to wit: Lee Thornton, Chancellor of Part II. of the Chancery Court of Shelby County, Tennessee; and,

“Whereas, Such necessity for the removal from office of the aforesaid official arises from the reasons and causes that there is not sufficient business to require or justify the retention in office of said official; and,

‘ ‘ W hereas, It is necessary for the welfare of the State that the judicial circuits and chancery divisions of the State should be redistricted, and the aforenamed official removed from office, to the end *599 that the said circuits and divisions may be property redistricted and the public welfare subserved; and,

“Whereas, There no longer exists in the State any reason or necessity for the services of said official, or the continuance in office of said official, or the further continuance in existence of his said office as now existing, and the public welfare requires a reduction in the number of Circuit Judges and Chancellors and Attorneys-general in the State, to the end that a reduction may be had in the judicial expenses of the State, and for the promotion of economy in the administration of public justice," and testifying to and emphasizing the eminent abilities, fidelity, purity, and faithfulness of the above-named official in private and public life; therefore, be it

‘‘ Resolved, by the House of Representatives of the State af Tennessee, the Senate concurring, (1) That the Clerk of the House and Senate, each, at once make, issue and deliver to the Sergeants-at-Arms of the respective houses correct copies hereof for service upon the aforesaid official, duly certified by such Clerk.

"q(2) That the said Sergeants-at-Arms are hereby authorized and directed to proceed at once to deliver , to said official one of said copies, and, to carry into effect and execute this resolution, each of such Sergeants-at-Arms is authorized to appoint a sufficient number of deputies speedily to execute this order. Such Sergeant-at-Arms or his deputy will *600 make return of the time at which he delivers such copy to the said official.

“(3) That in pursuance of, and in accordance with, the provisions of Sec. 6, Art. VI., of the Constitution of the State of Tennessee, the House of Representatives and Senate proceed, as therein authorized, on the eleventh day after the service of copy of this resolution upon such official, to remove said official from the office held by him as Judge of said Court, for the State of Tennessee, to this end and for this purpose that the proceedings be had and continued from day to day until finally and fully acted upon, and disposed of in accordance with the aforesaid provisions of the Constitution.

“(4) That the service of a copy of this resolution on such official shall be service of notice as required in the aforesaid section, and that the removal from office shall be for the causes stated herein.

“Adopted April 7, 1899.

“ Joseph W. Btknes,

“ Speaker of the House of Representatives.

“Seed Waddell,

“ Speaker of the Senate.

“Approved April 7, 1899.

‘1 BeNtoN McMillin, Governor. ’ ’

It has already been observed, and as is therein recited,, that this was to serve as notice of the “causes of removal” contemplated by the Constitu *601 tion, and it will have been seen that it not only does not recite, or give notice of such £ ‘ cause ’ ’ (that is, that his office had been abolished), but it, among other things, recites that it “is necessary that the judicial circuits and chancery divisions of the State should be redistricted,” etc., and that there no longer exists £ £ any reason or necessity for the services of said official, or the continuance in office of said official, or the continuance in existence of his said office as now existing,” and that on the eleventh day after the service of a copy of this resolution upon such official, the two houses will proceed £ £ to remove said official from the office held by him as Judge of said Court.” This resolution also provided that the removal shall be £ £ for the causes stated herein.” It was followed by another giving brief time for all Judges and all Attorneys-general proceeded against to be heard, but this it is not necessary to copy.

When the final resolution of removal came to be adopted, it was inserted, among other £ £ causes of removal,” that the Court had been theretofore abolished. That resolution is as follows:

“Ah. 56. — Whereas, The public welfare requires the removal from office of the following named official, to wit: Lee Thornton, Chancellor of Part II. of the Chancery Court of Shelby County, Tennessee; and,

“Whereas, Such necessity for removal from office of the aforesaid official arises from the *602 reasons and causes that there is not sufficient business to require or justify the retention in office of said official; and,

“Whereas, It is necessary for the welfare of the State that the judicial circuits and chancery divisions of the State should be redistricted, and the afore-named official removed from office, to the end that the said circuits and divisions may be properly rearranged and redistricted and the public welfare subserved; and,

“Whereas, There no longer exists in the States any reason or necessity for the service of the said official, or the continuance in office of said official, or the further continuance in existence of said office as now existing, and the public welfare requiring a reduction in the number of Circuit Judges, Chancellors, and Attorneys-general in this State, to the end that a reduction may be had in the judicial expense of the State, fot the promotion of economy in the administration of public justice, and to this end the present General Assembly, • by appropriate legislation, has abolished the Court of which the aforenamed official was the Chancellor, thus making it unnecessary that he should longer remain on the pay-roll of the State, and testifying to and emphasizing the eminent ability, fidelity, purity, and faithfulness of the above-named official in private and public life, and' it appearing that notice has been given to the aforesaid Lee Thornton, Chancellor of Part II. of the Chancery Court of Shelby County, accompanied with *603 a statement of the canses for his removal from office, as provided and contemplated in Sec. 6, Art. YI., of the Constitution of the State of Tennessee, after hearing and due consideration hereof; therefore, be it

‘ ‘ Resolved hy the Senate of the State of Tennes see,, the Rouse of Representatives coneiorring, That aforesaid Lee Thornton be, and is hereby, removed from the office of Chancellor of Part II. of the Chancery Court of Shelby County as aforesaid, for the causes mentioned and set forth hereinbefore.

“Adopted April 20, 1899.

“ Skid Waddell,

‘ ‘ Speaker of the Senate.

“Joseph W. Byenes,

‘ ‘ Speaker of the Rouse of Representatives.

“Approved_ April 21, 1899.

£ ‘ BeNTON McMilliN, Governor. ’ ’

It is clear, therefore, that while the Legislature could only remove if in office, and that it so recognized the scope of its power and did assume in the notice given that the office yet existed notwithstanding the Act, and that in the final, resolution it inserted this cause of removal (that is, the former abolition of the office as a cause which was not specified in the notice given), and left it open to the objection that defendant was or may have been removed for a cause of which he was not notified nor had a hearing, yet this is only noticed by way *604 of enforcing and illustrating other observations yet to be made upon the resolution itself, because in the view we take of it, the whole matter is immaterial; for, treating the office as not abolished, we are of opinion that the attempted removal is utterly void, for the ■ clearest constitutional reasons embodied in the plain terms and necessary implications of the constitutional clauses bearing on that subject.

Waiving the question of the form of these proceedings^ — a joint resolution notifying defendant that he was to be removed as an already determined fact, and reciting in the resolution, fixing a time for his appearing, that they would then “proceed to remove him,” and of a final removal by joint resolution of the ordinary character (but of requisite majority), adopted by the two houses and approved by the Governor, when the Constitution makes no mention of a . resolution for such purpose, or any action at all by the Governor, but contemplates some sort of an accusation by or before the Legislature, and a proceeding by it; of a trial, and a recorded vote of necessary majority of the members of each House, for and against the Judge, and for the purposes of the argument, treating this, as a' method by which the result contemplated by the Constitution could be reached — we proceed to inquire if in its substance it is a constitutional result.

The constitutional provisions bearing on the question are as follows: After making provision for the impeachment of Judges for the “commission of crime *605 in their official capacities” (Art. Y., Sec. 4) it then proceeds to provide for another form of removal from office. It declares that ‘£ Judges and Attorneys for the State may be removed from office by a concurrent vote of both houses of the General Assembly, each house voting separately; but two-thirds of the members to which each house may be entitled must concur in such vote. The vote shall be determined by ayes and noes, and the names of the members voting for or against the Judge or Attorney for the State, together with the cause or causes of removal, shall be entered on the journals of each house respectively. The Judge or Attorney for the State against whom the Legislature may be about to proceed, shall receive notice thereof, accompanied with a copy of the causes alleged for. his removal, at least ten days before the day on which either house of the Generel Assembly shall act thereupon.” Art. VI., Sec. 6.

It would, seem clear, from the express terms of this section, that no general mower was vested in the Legislature to remove these officials whenever it appeared desirable to them or for whatever reason they assumed proper, for in that event the requirement that “cause” or “ causes” of removal should be entered on the journals of each house, and an official proceeded against should have at least ten days’ notice of the proceedings, and of the causes of removal alleged, before either house could act thereon, would be nugatory. If it was intended to *606 vest in the General Assembly the power to remove c ‘ for the general welfare, ” or “to subserve the public good,” or “ to promote economy in the administration of justice,” or “to exercise the power of redistricting the State,” surely it would not have been accompanied with requirement that any such official included in the provision should have notice of such ‘ ‘ reasons ’ ’ for removal, or that such notice should, by at least ten days, precede the authority of the Legislature to act in the premises. These are matters of general public concern, with which the officer has no more to do than any other citizen. They are addressed alone to legislative consideration and discretion. What answer could any official make to such an assumption of the Legislature, not to a charge against him, but the recital of a public necessity or desirability for the vacation of his place? Why give him notice, and timely notice, of a proceeding against him, for reply, when in the very nature of things there can be no reply. He cannot say, ‘ ‘ I deny .your right to determine what the public welfare requires;” he cannot say, “You cannot judge what is promotive of the public good and economy in the public service or whether the State needs redistricting.” These are all suggestions made to him, and made not only with the knowledge that they are not issues tendered which he can accept, and on which he can make a contest, but they are the recital of assumed conditions not susceptible of outside contest, because addressed alone to the wis *607 dom and discretion of the Legislature. And the Legislature did not do its intelligence the injustice to pretend to think differently on this subject, for it did not invite the official to contest them. It assumed and assured him in the notice that they were settled and that he was merely notified that he, because of their existence, would be removed. He was not invited to a trial, or to take issue on a “cause” of removal averred against him in a proceeding in stituted for cause, and which he might show did not exist. He was merely notified that certain £ ‘ reasons ” for his removal existed in the judgment of the Legislature, which alone could determine, not on evidence necessarily, but as the legal representatives of the people vested with power to entertain and determine them as matters of pure discretion. So that it comes to this, either the two houses of the General Assembly have, upon the requisite two-thirds vote, the power of removal without cause, and at their unlimited discretion, or they have no such power, however they attempt to exercise it, and their action is open to objection whenever and wherever the right of the official is taken away without cause personal to himself. But here it is urged that, granting there must be cause personal to the official, such as unfitness, incapacity, neglect of duty, or want of moral character, or immoral conduct, or other causes justifying removal,, and which can be charged against him, and on which charge he can take issue and offer evidence, still the Legislature is *608 the final judge of what the cause or causes are, and that they have settled it in this case. This being sc, it is argued, even though they were wrong, there is no remedy. This specious and plausible argument is wholly unsound. If a “cause of removal,” like a cause of impeachment, had been presented and tried and determined by the Legislature, though erroneously, its action would have been final. But before it can ■ become so there must be a proceeding such as is contemplated in the Constitution. There must be an issuable averment of a l>ona fide cause of removal which may be traversed, and, before the just legislative judges, may be successfully met or established; until this is done there has been no legitimate action by the Legislature, and this, like all other acts, is subject, on this ground, to the reviewing control of this Court.

We come,, then, to the merit of the argument that “cause of removal’-’ means anything the Legislature may assume to be such, which is pressed with great urgency upon us. We are told that the Legislature might remove because a Judge, acting in good faith and with most loyal convictions of' duty, had decided, or was about to decide, a case a particular way, and the argument is enforced by the illustration that if the Legislature of 1881, existing when this Court passed adversely on that Act, had concluded that the noted statute (called the 100 and 3 Act) was about to be declared unconstitutional, it might have resoluted the prospectively offending Judges *609 of this Court, singly or as a body, out of office, under this provision of the Constitution, or that it might have done so afterward if it had been so disposed, and thus have wreaked its vengeance on the Court or any of its members for doing its constitutional duty, but adversely to the legislative will. The argument is not strained. If it be a sound' precedent position that the Legislature has unlimited power of removal for any ‘ ‘ reason ’ ’ it treats as a ‘ ‘ cause ’ ’ of removal, it was in its power to have removed that Court before that decision and had it reconstituted by an executive favorable to the measure, and it was in its power to have removed its-members after the decision for no other cause or reason than that they did their duty as they saw it in the fear of God, and, as it happened, .in the favor of the public. The State is much pressed for reasons when it must rely, to sustain the legislative action and uncontrolled legislative authority over the judicial department, upon argument which leads to such monstrous conclusions as this. , Instead of having a sensible Constitution, sustaining in all its parts, by plain words and necessary implications, three distinct, independent departments, we would have one which made the judicial so dependent and so humiliatingly subservient that its personal representation would be in the unrestrained hands of the legislative department — • its overawed ally or its cringing dependent in every contest on great questions of public interest, or in the wild outbreaks of public passion. The Judges of *610 the several Courts, too, would be under a far more despicable subserviency. From term to term of the Legislature, recurring every two years, they would be fighting for existence against the strife of politics, the demands, real and fictitious, of economy, and the claim of each agitator of retrenchment in the name of reform. They would be forced to defend against the antagonisms of • local enemies, disappointed suitors, and desperate victims of their administration of law. Lives would be made intolerable in anxieties and apprehensions to the good and the well-meaning men of the inferior Courts, while they would be made existencies of crawling shame to the weak or willing tools who yielded to such domination. This is the consequence if the ‘‘cause of removal ’ ’ in the Constitution means anything assumed to be “ reason ’ ’ for removal by the Legislature, or if its assumption of “reason of removal ” as “ cause ’ ’ is not disputable in the Courts.

To give the Constitution its plain meaning, no such condition can- result. No honest Judge can fear or need fear legislative deprivation of office ‘ ‘ for cause. ’ ’ He will give no j ust cause, and he can trust any body of legislative Judges to shield him> from the shame to itself of robbing him of his rights, in a trial where .an issue must be made as to his conduct or character, and where in open day the-.public must see him condemned and hear his sentence. But if the Constitution be so construed as ■ to mean that it is all a matter • of legislative discre *611 tion, and how long he shall exist, and for what reasons he shall go, are questions for the Legislature as his superior to determine, then the Constitution is no protection to him, and a legislative Act is not objectionable, though it remove and destroy him, if it may be done under the properly construed provisions of the Constitution. The record itself could always be made to wear the appearance of sanctity; the proceeding could take on the robe of economy or the garb of piety, and the work be done 1 ‘ properly, ’ ’ being done under the Constitution. Nevertheless the Judge would be, instead of a distinct, independent servant of the people by whom he was elected (and by all of whom he was elected, as the individual members' of the other departments were not), an easily destroyed victim of legislative disfavor, without independence in his place or his conduct, and without protection under the Constitution and law he was created to construe and sworn to enforce.

It is said, however, that the constitutional provision for removal is not to be for ‘ ‘ specific ’ ’ cause, and it is, therefore, assumed to be for ‘ ‘ any ’ ’ cause which the Legislature may elect to so treat, and going a step farther, that any £ ‘ reason ’ ’ the Legislature gives must be treated as “cause,” if they so treated it, because the Constitutional Convention of 1870 rejected certain amendments which were, offered, attempting to specify particular . ‘ ‘ causes ’ of removal in the constitutional provision, or to re *612 quire their specification by law; and on this point the journal of the Constitutional Convention is quoted, and likewise the argument (made in this case in the Court below) of a member of the Constitutional Convention, and later Attorney-general of this State, referring to the journal of the Convention, and also to his scrap-book of the daily papers, showing more to the same effect. In that argument it seems, by reproduction here, that several eminent men yet living, who were also members, had views antagonistic to his of. what took place in the Convention on that subject, and of the intent and purpose of the Convention, as indicated by expression of sentiment. All this disagreement of recollection and controversy as to views are reproduced heie in argument, and much of it printed in the briefs. It only is sufficiently important as evidencing the views of good and worthy men who figured in that great work to justify its statement. It is really a mere word playing now. Whose memory as to those proceedings is good or bad, and with which one time has dealt most hardly, is of no consequence. Both from the plain reading of the Constitution itself, as well as from the journal and from the newspaper account (treating it as verity) it appears that “cause” of removal was required. “Cause” which must be specified to the accused or 11 proceeded against ’ ’ official, and to which he must have ten days to get ready, and against which he could defend. This is all clear. It only makes it *613 the more so, and the more materially so on the construction that can alone be properly placed upon it, that none of the Constitution makers undertook to eliminate the word “cause” or “causes” of removal already in the section. No amendment was offered to change or strike it out. The Convention refused to specify or provide for the specification of particular causes, and rejected all efforts to do so, by amendments, because there would be many covering possibly impeachable, and certainly nonim-peachable offenses, and other faults and conditions not susceptible of easy enumeration, and for the same reason not deemed proper to be reduced by special classification or limitation on the general terms employed. Having said that the officials might be removed for 1 ‘ cause, ’ ’ and only for “cause” as is absolutely implied as shown, and having set forth that it was to be for cause assigned in a proceeding against the official, where there was to be a triable issue, which could be met by defense; and to get ready for which he was to be notified sufficiently in advance, and having set forth that in that proceeding or trial, and upon the causes for removal charged and entered of record, there were to be votes in both houses for and against the official on these charges, the convention manifestly deemed it had done enough to require a proceeding on personal causes of removal, and as there might be a great many of them, would not and did not limit them in number or character by *614 indication or enumeration of a few, of by a specific limitation on a general statement. This is. all there was of it, and it is matter of surprise that it should be used for more, or to prove the very thing it in fact disproves.

But the argument is made that this wholly baseless view finds support in the fact that the removal clause of our Constitution is borrowed from the English law, under which a Judge might be removed on address of Parliament, and that in States where this unlimited consequence is not to follow, it has béen guarded against by specifying for what “causes” removals may be made.

It is not true, in the first place, that the proceeding is so borrowed. It is not the English proceeding. j "There, on such “address” the King could remove. In some of the American States this was almost' immediately copied. The Legislature could address' the Governor and he could remove, as the King in England. But no such course was taken in our Constitution. The Governor has nothing to do with removal. Again, in England the removal might be with or without cause (if Parliament, which was omnipotent, so willed, and addressed) because Acts of Parliament practically make what, is farcically called the Constitution of England, for they have no Constitution in the sense that we have, or in any other except theoretically, but our Constitution, which is written, fixed, and permanent, left no such scope for the removal of Judges. It gave only *615 the power of removal, to the Legislature, coupled with condition that it must be for cause, for cause of which notice must needs be given, and to which there could be defense, and, of course, successful defense, interposed, for no . American lawmaking-body ever yet went through the form of calling a citizen to a trial, requiring that he should have notice, and yet cut him off from a trial or defense that might be successful, that was intended to be successful, if made out. It is therefore not true that any support of this legislative resolution is derived from its English semi-prototype or the contemporary constitutions of this country. Some of the latter in terms specified what ■ the ‘ ‘ causes ’ ’ should be. Some said for any or certain ones not sufficient to amount to impeachable causes, but no single one ever required a “cause” to .be assigned, as- ours does, which did not mean' one personal to the Judge to his acts, habits, or character. No one ever did recognize as ‘£ cause ’5 anything over which he had no control, or which did not have personal relation to his discharge of duty, and no single case can be found to the contrary.

Having devoted so much space to this question because of its supposed serious and final effect bn what was concededly a doubtful result, so far as the Acts abolishing the office of Judges were concerned (for the resolution of removal was treated, legislatively, as a method to ‘ ‘ clinch, ” as' was there said in argument, the abolishing Act), we come to *616 that question and proceed to its consideration with .the elaboration it deserves, at the risk of being ¡tedious, for the question is one of the most important that ever arose for final decision in this State, •and upon its determination hangs, as we think, not .only tbe independence but the existence of the judicial department of the State. government. As already stated, ,our government, State and national, is .divided • into three distinct and independent departments, legislative, executive, and judicial. Such, too, is, in substance, the .divisions .of all the other State governments, and it may well be .practically termed the form which republican governments have taken in these United States, and which the Constitution thereof guarantees to every State in the Union. (Art. IV., Sec. 4.) 0.ur own Constitution, based on that, and substantially that original of 1796, which had Mr. Jefferson’s .commendation as one of the best ever framed, after providing that “all power is inherent in the people,” proceeded to declare how the people would have it exercised, to distribute into departments and to vest in each such as the people wished each to exercise, and to put upon each the limitation which was deemed essential to confine it within the scope of the authority the people vested, and beyond which they intended to restrain. It is sometimes said that the Legislature is omnipotent and its authority unlimited,' except when restrained by the Constitution of the títate or the Federal government. It is treated' as a great residuum of power not other *617 wise constitutionally disposed of or restrained. This is sul) modo true, generally, in the .cases in which it has been uttered, but it is wholly inaccurate when given the general application to which 'its formulation would lead. All that is .meant by it .is that, following the English rule as to parliamentary power, the Parliaments or Legislatures of the . States of • the Union, as legislative representatives of the people, have all legislative power, not expressly or by necessary implication limited, that the English Parliament did. Smith v. Normant, 5 Yer., 272 -3. So far as this question is involved here, it may be dismissed with a mere suggestion. The power of creating or abolishing Judges never did, and does not now, abide in the Parliament of England. The English theory was that the King was the Judge in England. Later this kingly power was delegated by him to others appointed by him. They existed with him (subject to his power of removal) and officially died with him, if not before removed. Yet later, on recommendation of the King, the last feature was changed by Act of Parliament, and the tenure of the office of each incumbent was extended beyond the death of the King, and the office was ultimately held during good behavior, which, of course, meant during life, if not forfeited by misconduct. But still to this was 'added a right of removal by the King upon what was■ termed an address of both houses of Parliament, and which, it *618 is said, was made in the form of a resolution. Enc. Br. (9th Ed.), Vol. 13, 763.

Never, therefore, did the power of appointment or removal of a Judge vest in the Parliament of England. It was not a legislative power there, and is not here, unless the people have made it so. If it was a legislative power, and was not constitutionally limited, it would remain a legislative power. If it was not, and was never made so constitutionally, it would remain in our system one of the powers, amid those all of which are “inherent in the people,” and not to be exercised except as they organically will it to . be.

It- is necessary, therefore, to see what our Constitution provides on that subject, and how it regulates the creation and abolition of. Courts. Without going on this question beyond our present Constitution, except for the purpose of illustrating the view of the public, we would call attention to other utterances of the people as indicative of the purpose they had and the proper construction of the view expressed in that Constitution. It will be remembered by all students of history that the course of dependent Judges, rendered, truculent by control and made infamous by subservience, had created for the English people a more insupportable condition of legal tyranny and authorized oppression than had ever found existence in the wildest usurpation of pretenders or the most abominable license of established despots. This, among all the grievances which *619 caused revolution -and advanced the cause of freedom there, and gave it absolutely here, was the result of such disregard of popular rights and liberties by dependent creatures of the Crown called Judges. It is to be remembered that one of the complaints of the American colonies against the King was that “he has obstructed the administration of justice by refusing his assent to laws for the establishment of judiciary powers. He has made Judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries.” Dec. Ind., 8th and 9th complaints. When the struggle for independence under this declaration was successful, and a form of government came to be adopted, these evils complained of were remedied.

An independent judiciary, in an independent government, was secured by constitutional provisions giving a fixed tenure of office-and prohibiting a reduction . of salary. In the federal government the tenure was for life (or what may be the same thing, and must be, to a faithful and irreproachable official), during good behavior, and there was a provision against decreasing judicial salaries. In the Constitution of this State the same course was taken, with an improvement, at least in one respect. The tenure was fixed, not for life, but fixed, at eight years, and the provision against decreasing was extended' to prevent increase of salaries. Specifically our Constitution provided on this subject that “the powers of the government shall be divided into three *620 .distinct departments, the legislative, executive, and judicial.” Art. II., Sec. 1. “No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to .either of the others, except in .the cases herein directed or permitted.” Sec. 2.

After thus distributing the powers of government into these three distinct and independent departments, the people in this Constitution proceeded to vest .them, so far as the question now involved is concerned: “The judicial power of the State is vested in one Supreme Court and in such Circuit, Chancery, and other inferior Courts as the Legislature ■ shall from time to time ordain and establish, in the Judges thereof and in Justices .of the Peace. The Legislature may also vest such jurisdiction in corporation Courts as may b.e deemed necessary. Courts to be holden by Justices of the Peace may also' be established.” .Art. VI., Sec. 1. “The Judges of the Supreme Court shall be - elected by the qualified voters of the State. Term of service shall be eight years.” Section 3. “The Judges of the Circuit and Chancery Courts and of other inferior Courts shall be elected by the qualified voters of the district or circuit to which they are to be assigned. Term of .service shall be eight years.”' Section 4.

“The Judges of the Supreme or inferior Courts shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall *621 not be increased or diminished during the time for which they are elected.” Section 7.

This fixed tenure of office and unchangeable salary were the methods devised to secure judicial independence, as they have ever been in the American Constitutions. The provision vesting judicial power, among other Courts, in Circuit and Chancery Courts, was intended to preserve (whatever else might be added) the system of Circuit and Chancery Courts. So was and is its plain purport. In like manner it has been held to be the constitutional object to preserve the County Court as a part of our Court system upon like recognition, but in yet other sections of the Constitution. Pope v. Phifer, 3 Heis., 683.

These three Courts thus recognized as preserved by the Constitution, in addition to the Supreme Court, have been protected in theory since the adoption of the Constitution, always and in all opinions. They have been in fact protected in all the cases up to 1875, notably and powerfully in the Pope case in 3 Heis., 683. Like other constitutional offices, it has been held that legislative control of their existence must be denied, and that, even as to duration of their terms, the legislative power could not be exercised.

In 1875 it was held that, though true in theory that Circuit Courts and Chancery Courts must be maintained, it was not so in fact — the Legislature could abolish any it chose. Coleman, v. Campbell, *622 3 Shan., 355 . Of coarse if it could abolish any, it could abolish all, as it was not and is not pretended that any one or more of them enjoyed a special immunity from legislative control.

This case was based upon the theory that the power to establish involved necessarily the power to abolish — a theory wholly inconsistent with the constitutional provision for the establishment and continuance of the Circuit and Chancery Court system. For if. one or both is ‘‘ established ’ ’ it can and ‘‘shall” exist or have jurisdiction vested in it under the Constitution, and thus be kept alive and preserved, -against. legislative power, as a part of the Court system, as a constitutional Court, but if the power to establish includes the power to destroy, such cannot be the result, and there is no protection to either Circuit or Chancery Court system thus recognized and attempted to be preserved and protected by the Constitution. It happened that in the particular case cited (Coleman v. Campbell) and case heard with it (Verene v. Williford) the Courts, as well as those preceding them, Circuit and Chancery, had been created by special Acts, so that, dealing with them, Judge Nicholson said: “If the Legislature had the power to enact the law, it must be either because the ordaining or establishing of Courts is a legitimate legislative power necessarily involving the power to abolish as well as to ordain and establish, and that the Constitution has' placed no restriction upon the exercise of this power in *623 consistent with the action of the Legislature in the present case, or because the Constitution, expressly orsby necessary implication, has vested in the Legislature the power to ordain and establish Courts, and that this power carries with it the power of abolishing existing Courts.”

Taking this proposition, which was the question-in issue, for granted, the Judge delivering the opinion proceeded to the conclusion that necessarily the Legislature could abolish and could establish, but, by the Constitution of 1870, it was prohibited from disregarding the provision to establish Circuit and Chancery Courts, and must keep those systems in existence in connection with any other inferior Courts it. might establish. That this conclusion is so incorrect, not to s.ay transparently erroneous, as to be perfectly demonstrable, appears from the simplest statement. If the Legislature must preserve Circuit and Chancery Courts and yet may abolish them; if! it is true also, as it constitutionally is, that it may also establish other inferior Courts and vest in them such jurisdiction as it chooses, why could it not abolish all Circuit and Chancery ■ Courts and then establish other inferior Courts in whom it might-vest all inferior jurisdiction? Who would say, and what (but the Constitution) could say how many, if any, Circuit Courts or how many' Chancery Courts, if any, it should preserve ? It is so clear that the power to establish does not include, as against-this preservative provision of the Constitution, the- *624 power to destroy any or all of them, that it is wonderful to us that the contrary view could have ever prevailed for a moment. To say nothing of the provisions which make constitutionally the term of all the Judges of all these Courts eight years, and prevent changing their salaries during the time for which they were elected, it seems so manifest that the power to destroy one or all of those Courts, when created, is against the preservative clause of the Constitution respecting the Circuit and Chancery Courts as only to need suggestion to demonstrate its nonexistence. If the Legislature can abolish one, it can abolish all. Which shall it reestablish, and how can it be required to re-establish any one of them, ° and if so, which, especially in view of its power to establish other inferior Courts and vest them with any jurisdiction it pleases?

It is a vain thing to say it can abolish as it pleases, but must retain or recreate the same tribunals. The concession of the power to abolish one, coupled with the declaration of constitutional necessity for the retention of the system (which the Court holds in that case must be done), is a patent impracticability, not to say absurdity.

The only argument for the preservation of the system is its constitutional establishment over and against the power of the Legislature to abolish it when established during the existence of any term. It is not a question of trusting the Legislature not to do it; it is a question of its power to do ' it *625 against the positive provision that these Courts must exist by the preservative clause vesting in them the jurisdiction when created. No other conclusion meets this difficulty, and no argument has been made or could be made which obviates it. We would just as well say it must exist, but may not exist, as to assert the proposition contended for, or put two and two together and say they shall not make four, as to assert that the Constitution preserves this system of Courts against the power of the Legislature, and then say it may destroy it by destroying the Courts severally or m toto. The principle herein contended for was conceded by the same Court which decided the Coleman case, and still that case was in part adhered to’ in Halsey v. Gaines, 2 Lea, 316 , 319. In that case it was conceded (page 326) that an Act abolishing a circuit with intent to destroy a Judge would be void.

This concession can mean nothing else than that an Act destroying a Judge by abolishing a circuit or division, would be void, because it had been before, and has repeatedly since been, decided that the personal motive or intent of the Legislature in passing an Act cannot be inquired into, and the only intent which can be considered is the legal one determined by the effect of the Act. If the Act is to destroy the Judge, the intent appears and the Act . is void. If this is not so, the concession is meaningless and misleading, not to say frivolous.

For almost the same reasons are the other infe *626 rior Judges protected from legislative interference. They are to be men of the same age, the same term of service, with the same unchangeable compensation, and elected by the same voters in the same district or circuit where they serve. Art. VI., Sec. 4. The word “district,” it must he remembered, was once (and then) used for the county or counties embi’aced in a section where one Court was held for one or more counties. Hence our old statutes referred to a chancery district, one of them providing that certain bills should be filed in the chancery ‘ ‘ district, ’ ’ etc. The manifest constitutional object was to permit the establishment of Courts for any circuit, division or district composed of one or more counties, or specific territory, and then make their existence during a term equally inviolable for such term, and to secure both and in the same way the compensation of the Judge was to be unchangeable, not during any ‘£ term of service, ’ ’ but ‘£ during the time for which he was elected.” To this conclusion this Court came in the case of State v. Leonard, 2 Pickle, 485 , and we used language there which we thought could by no possibility be misconstrued. In this connection we said:

" The Constitution, in fixing the terms of the Judges of inferior Courts elected by the people, at eight years, intended not only to make the judiciary independent, and thereby secure to the people the corresponding consequent advantages of Courts free *627 from interference and control, and removed from all necessity of being subservient to any power of the State, but intended also to prevent constant and frequent experimenting with Court systems, than which nothing could be more injurious or vexatious to the public.

‘ ‘ It was intended when the Legislature established an inferior Court, that it should exist such a length of time as would give opportunity for mature observation and appreciation of its benefits or disadvantages, and that the extent of its duration might discourage such changes as were not the result of most mature consideration. Realizing that a change, if made so as to constitute an inferior Court, would fix that Court in the system for eight years, a Legislature would properly consider and maturely settle the question as to the propriety and desirability of such change or addition to our system, and conscious of the impropriety and the hazard of leaving the judicial department of the government at the mercy and whim of each recurring Legislature, 'itself elected but for two years, the framers of the Constitution, wisely guarded against these evils by the section referred to. Properly construed and enforced it is effectual for that purpose. Disregarded or impaired by such interpretation as leaves it to exist in' form, without force or substance, and we have all the evils and confusion of insecure, changing and dependent Courts, frequent and constant experimenting with systems, provided in haste, tried in *628 doubt, and abolished before their merits or demerits are understood. It would be a mortifying reflection that our- organic lawmakers intended any such result in their avowed effort to make a government of three distinct and independent departments, ■ and still more humiliating if we were driven to the conclusion that, while they did not intend it, they had been so weak and inapt in phraseology adopted as to have accomplished it.” When a Court whose Judge is-elected by the people of one or more counties in a district or circuit is constituted by the Legislature, and an election had, and the officer commissioned and qualified, it is not in the power of the Legislature to take from him the power and emoluments of office during the term of eight years by devolving them intact upon another, or otherwise. If it can abolish in this way the office of County Judge, it can abolish the office of any inferior Judge, as all are protected, or not protected, by the clause of the Constitution referred to (Art. V). For the honor of the framers of our Constitution, the best interests of our people, the independence of the judiciary, and the security and order of our Court system against rash and constant experiments of legislation, it affords us much satisfaction' to give the Constitution its plain, natural, and unobscure effect to invalidate legislation of this character, and to be able to say that nothing as yet decided by our Court stands as an obstacle in the way of our doing so. But if there were, it *629 would afford us pleasure to remove it.” State v. Leonard, 2 Pickle, 485 .

The cases supposed to stand in the way were Coleman v. Campbell and Halsey v. Gaines, and, after saying that we did not wish to be understood as assenting to the correctness of the conclusion reached in them, and rejecting their reasoning, we showed that, though erroneous, they did not need to be in terms overruled, because the exact question of the Leonard case was not decided there, but we wholly repudiated them, and gave the Constitution an opposite construction.

Giving the Constitution this construction harmonizes the entire section quoted, makes the judiciary department in fact, and not merely in fiction, inde pendent, and harmonizes all the other cases before and since on this subject. See Smith v. Normant, 5 Yer., 270 ; Pope v. Phifer, 3 Heis., 682; State v. McKee, 8 Lea, 128 ; Crass v. Mercer, 16 Lea, 486 ; Rembo v. Maloney, 8 Pickle, 68 ; State, ex rel., v. Cummins, 15 Pickle, 674 .

It had been before, as was in the Leonard case, decided, that when the Constitution fixed a term, if the Legislature created the office and abridged the term, that part of the Act creating the office was valid, but the abridgment was void. Brewer v. Davis, 9 Hum., 208 ; Keys v. Mason, 3 Sneed, 9 . This was repeated in the Leonard case. It was before this, but later than the Coleman case, decided that a legislative Act which might destroy a *630 Judge’s right to hold his office was inoperative, although the Judge was neither a Circuit Judge nor Chancellor. State, ex rel., v. Ridley, MS., Nashville.

And yet later it was, we .thought, affirmatively and forever settled in the case of State v. Cummins, 15 Pickle, 674 , where we held that if the Constitution merely named an officer (as Sheriff) without defining his duties, it was impossible to destroy his office, or take from him the substantial emoluments and functions of the office and confer them upon another on any pretext whatever. This case proceeds upon the same grounds and cites the same authorities which controvert the view of the Court in Coleman v. Campbell and Halsey v. Caines.

It should be noted here that all the cases in this Court have gone upon the theory generally .recognized in the American Courts, that when the Legislature makes or creates an office without a tenure, or independently of constitutional provision, it can abolish it, or change its tenure or its compensation at pleasure, but that when it creates a constitutional office, that is, one- directed or authorized under the Constitution or recognized by it, and for which the Constitution has provided a tenure, the Legislature cannot abolish the office, abridge its term, or destroy its substantial functions or emoluments. 12 Am. & Eng. Enc. L., 18, 19. We quote in full:

“It is a general rule that when an office is created by statute it is wholly within the control of the Legislature creating it. The length of term and *631 mode of appointment may be altered at pleasure, and the office may be abolished and the compensation taken away from the incumbent, unless forbidden by the Constitution. There is' no vested right in an office against the public. The Legislature, may abolish a judgeship where the right to the office is not secured by the Constitution. Nor do public offices constitute contracts, protected as such from violation. And even though a Judge’s office be created by the Constitution, if his tenure and compensation are left to the Legislature they may control and alter in these respects, saving that they cannot virtually abolish the office as under pretense of reducing or taking away compensation. The Legislature in such cases is moreover bound to respect an intendment of the Constitution that Judges shall be elected. It cannot, in effect, do away with this right of the people by making terms of unreasonable length. The Legislature has no more power to enlarge a judicial term fixed by the Constitution than it has to abridge the - same.

“Abolition or change of Courts: The tenure of the office, as has been already stated, does not rest on contract, and is not protected by the contract provision in the United States Constitution. The General Assembly cannot, directly or indirectly, abolish any £ constitutional office ’ — that is, one whose tenure is defined by the Constitution; but it may, directly or indirectly, abolish any ‘ legislative office ’— that is, one created by the General Assembly itself. *632 But the power of the Legislature to alter the territorial jurisdiction of Justices of the Peace necessarily arose from the power to create new counties; and out of the legislative power to reorganize and regulate the Courts grows the power to divide a judicial district or to diminish the aggregate duties by creation of an assistant. But the Legislature cannot take away altogether the authority of a Judge, the grant and tenure of whose office are fixed by the Constitution. Modifying a judicial office in regard to titles and duties and continuing the former official in the new Court, is not depriving the officer of his office.” Citing cases from Virginia, Louisiana, Illinois, New York, Pennsylvania, Arkansas, Minnesota, Ohio, Wisconsin, Nevada, Iowa, Michigan, Missouri, Massachusetts, and North Carolina.

Nothing is better settled in this State at this time -than this proposition. It is equally well settled that the Legislature may, as in the Sheriff’s case we held (State v. Cummins), diminish or increase the duties, and in the case of Circuit, Chancery, and other established inferior Courts it may diminish or increase the jurisdiction, enlarge or contract the territory of their work, .but it cannot destroy either the officer or the office in toto, and it cannot, therefore, abolish a circuit or chancery division, because that would destroy the Judge. The line must be drawn somewhere. We undertook to draw it in the Cummins case. We had before decided that duties could be changed and compensation could be *633 changed. The Constitution said the office must exist. It gave no salary and defined no duties. If the line was not properly drawn, the constitutional office meant nothing, because • we had held it might be made to carry limited or enlarged burdens and be compensated by greater or less fees. If we said it should carry no burden, discharge no duty, and receive no compensation, the constitutional office was a farce which construction had destroyed. There must be a line, a reasonable line, drawn somewhere, which permitted the law to regulate the office but recognized and continued its constitutional existence. We drew the only one possible.

It applies in the same way to the Judges. The legislation has been the same. The Constitution is even more specific as to them, for it directs the vesting of jurisdiction, and requires a fixed territory for service and an unchangeable compensation. • The rule is the same — must necessarily be the same; legislation may increase or diminish the jurisdiction of constitutional Judges; it may add territory or take it away, but it cannot take all jurisdiction or all territory away. Enough must be left to preserve the substantial jurisdiction and functions of the office. Nothing less than this is reasonable to the law; nothing more is agreeable to the Constitution. To show how clear this is from another standpoint, we consider what appears in the Constitution as to the Supreme Court and our construction of it. The Constitution says our jurisdiction shall be appellate *634 only, £ ‘ under such restrictions and regulations as may be from time to time prescribed by law.” Art. VI., Sec. 2.

Under this clause we have recognized the right of the Legislature to take from us and confer on other Courts (notably the Court of Chancery Appeals) certain jurisdiction. But we did not mean, the Constitution could not mean, that the Legislature could take it all away. If so, there need be no Supreme Court. Here, too, the line must be drawn. We must have jurisdiction. The Legislature may reasonably limit; it cannot, therefore, destroy. If so, it can destroy this Court. The Cummins case declares the sound principle on which all constitutional offices must be sustained, and upon it the Courts with all others. There is no principle of general law proportioned according to name or importance of the office. One rule must prevail. We had in this State two cases apparently to the contrary, Coleman v. Campbell (1875) and Halsey v. Caines (1879). During the reconstruction period, from 1865 to 1870, an Act was passed- creating certain Courts and another abolishing them. These cases arose on construction of the last Act. They in principle were contrary to preceding cases cited in this opinion, and the reasoning upon which they were based was 'directly rejected and repudiated in the Leonard case already quoted. In the Leonard case the Court announced that it was not necessary to overrule them, as the Leonard case was not the *635 same, but every line of it was in hostility to the theory on which they were based, and in conclusion of that case it was announced that if it had been the same they would have been overruled. They were not in terms overruled then, because, not being identical with the case considered, they could not be, but their doctrine was repudiated, as it has been throughout the United States whenever similar constitutional provisions were involved. See cases cited in reference to 12 Am. & Eng. Enc., pp. 18, 19, from many States. And see, especially, Commonwealth v. Gamble (Pa.), 1 Am. Rep., 422 ; Reed v. Smoulter (128 Pa.), 5 L. R. A., 517, 534; Fant v. Gibbs, 54 Miss., 396 ; State, ex rel., v. Friedly (Ind.), 21 L. R. A., 634; Foster v. Jones, 52 Am. Rep., 638 ; People v. Dubois, 23 Ill., 547 ; Attorney-general v. Jochim, 23 L. R. A., 703; State v. Messmore, 14 Wis., 177 ; Ex parte Meredith (Va.), 778; Hoke v. Henderson, 25 Am. Dec., 675 ; King v. Hunter (N. C.), 6 Am. Rep., 754 ; State v. DeGunther (Wis.), 7 Am. Rep., 89 , note; 7 Lawson’s Rights & Remedies, Sec. 3817, note; Throop on Public Officers, Secs. 19, 20 (Mr. Throop cites a Louisiana case as authority to the contrary in Sec. 20 —State v. Wilts, 11 La., 438—but this ruling is reversed — 38 La., 861 — as appears by citation in lg Am. & Eng. Enc. L., p. 19, note 4); Cooley on Con. Lim (6th Ed.), p. 80.

All the cases, so far as they are to be found not herein cited, will be found in notes to sections *636 in 12 Am. & Eng. Enc. L., cited, and in the briefs of counsel and citations of the Courts and in notes to cases referred to in American Decisions and Lawyers’ Reports Annotated. It is confidently asserted that no direct case can be found, outside of Tennessee, on precisely similar constitutional provisions, going as far to sustain legislative action in abolishing Courts as the Tennessee cases of Coleman v. Campbell and Halsey v. Gaines .

As supposed to the contrary of this great weight of authority four cases are cited. They are Aikeman v. Edwards, 30 L. R. A., p. 149; Crozier v. Lyons, 72 Iowa, 401 ; VanBuren Co. Sup. v. Mattox, 30 Ark., 566; Hoke v. Henderson, 25 Am. Dec., 627 .

In the case of Aikeman v. Edwards, 30 L. R. A., the question as to the power of the Legislature to interfere with a judicial tenure of office was not involved. Butler and Greenwood Counties composed the said twenty-sixth judicial district. The Legislature transferred these counties to the thirteenth district, thereby indirectly abolishing the twenty-sixth district. The Act providing for transfer of jurisdiction also provided that it should not be construed so as to deprive any Judge of his salary. After the passage of this Act, Aikeman was nominated in a party convention as a candidate for the office of Judge of the said twenty-sixth district, which had been abolished by said transfer of its jurisdiction. A certificate of his nomination was given him by the chairman and secretary of the convention, which was by him pre *637 sented to the Secretary of State, with the request to file the same. This request was refused by the Secretary of State, on the ground that the said two counties composing the twenty-sixth district had been by said Act transferred to the thirteenth district. Thereupon, Aikeman sued out a writ of mandamus to compel the issuance of the certificate. The relator had no claim or right to the office. His contention was based upon the broad proposition that the .Legislature had no power to abolish a circuit by transferring its jurisdiction to another circuit, and that, this being so, the office of Judge of said circuit was still in existence. Upon this contention he claimed the right to become a candidate.

The salary of the Judge incumbent having been preserved by the Act, and said incumbent Judge making no contention, the sole question before the Court was whether the Legislature had the power, under the Constitution, to abolish said circuit, by transferring the counties composing it to another circuit. The Court, in its opinion, distinguished the oase from one involving the right of an incumbent Judge, saying: 11 We might say, in this connection, that the plaintiff in this does not claim any vested right in an office, and that no question is presented by the record before us as to the' right of the Legislature to deprive a district Judge of the compensation allowed by law. In the Act under consideration, the Legislature has seen fit to provide that the Act shall not be construed to deprive any Judge *638 of bis salary for the full term for which he was elected. The claim of the plaintiff in this case rests on the broad proposition tha,t the Act in its entirety is void. We need not discuss the question, argued at some length in the brief, whether there can be a Judge without a district, or without a Court over which to preside, as the plaintiff in this case has no interest in that question.” 30 L. R. A., 153, 154.

The Act in question abolished four districts by transferring their jurisdiction to other districts. As is shown in the opinion of the Court, this was done upon economical grounds, and to dispense with extravagant and useless Courts. The fact that, under these circumstances, the Legislature reserved to the Judges of the abolished Courts their salaries for their full terms of office, furnishes the evidence that the Legislature considered that the Act would be unconstitutional unless such reservation was made. The Constitution referred to in this case provided that Judges should hold their offices for a term of four years. But it- must be admitted that the opinion of the Court indicates that it intended to maintain the view for which it is cited. We have pointed out, however, the facts and different constitutional provisions.

The case of Crozier v. Lyons, 72 Iowa, 401 , has no bearing upon the question in the case at bar. The Constitution of Iowa (1857) provided that the judicial power should be vested in a Supreme Court, *639 District Court, and such other Courts inferior to the Supreme Court as the General Assembly may from time to time establish. It further provided for a fixed term of office as to' the Judges of the Supreme Court and District' Court, and for an undiminished compensation during the term for which they were elected. It further provided for the reorganization by the Legislature of judicial districts and an increase of Judges of the Supreme Court, but that this should be done so as not to remove a Judge of said Court from office. As to inferior Courts which were not embraced in the classes of Courts before named, said Constitution contained no provisions for a fixed tenure of office, nor for an undiminished compensation during continuance in office, nor any prohibition against' removal from office. In law the prohibition in said Constitution against removal from office of one class of Judges conferred the implied power to remove the other class — the Judges of the inferior Courts constituting said class. It will be seen from said Constitution that the class of Courts designated in the same as inferior Courts were intended to be creatures of the Legislature, subject to its will, and for this reason no constitutional limitations were thrown around such Courts. It is obvious, from the terms of said Constitution, that no question of legislative interference with a constitutional tenure of office arose in said case. Iowa Const., Art. V., p. 382.

The case of VanBuren County Supers. v. Mattox, *640 30 Ark., 566, was grounded upon express provisions of the Arkansas Constitution, and is not in point. The Constitution Of Arkansas (1868) provides, n Sec. 5, Art. VIL, as follows: “The inferior Courts of the State, as now constituted by law, except as hereinafter provided, shall remain with the same jurisdiction as they now possess, provided that the General Assembly may provide for the establishment of such infei’ior Courts, changes of jurisdiction, or abolition of existing inferior Courts, as may be deemed requisite. The Judges of the inferior Courts herein provided for, or of such as may hereafter be established by law, shall be appointed by the Governor, by and with the advice and consent of the Senate, for the term of six years, and, until such time, the General Assembly shall not interfere with • the term of office of any Judge.” Hough Amer. Const., Vol. 1, p. 101. In this case an inferior Court was abolished by an Act of the Legislature, and the Judge of the Court instituted a mandamus proceeding to compel the payment of his salary. The Court holding adversely to the contention, said: ‘‘Where the Court is abolished, as was the case in' this instance, there was no longer an office to fill, no officer, no service to render, and no fees due.” It will be seen that said Constitution expressly conferred upon the Legislature the power to abolish inferior Courts. The constitutional limitation upon the Legislature that it should not interfere with the term of office of a Judge is to be construed in connec *641 tion with the provision conferring the power to abolish. This limitation was construed by the Court —that while the office existed only during this time, the term of office should not be interfered with. It is' therefore evident that the Court based its conclusion upon the theory that said limitation did not control the provision conferring ' the express power to abolish, and that the limitation was subordinate to this provision. So, therefore, the case is grounded on an express constitutional provision conferring upon the Legislature the. power of abolition, this power of abolition necessarily carrying with it the power of deprivation of office.

The case of Hoke v. Henderson, 25 Am. Dec., 677 , involved the tenure of office of a clerk — an office recognized by the Constitution of ■ the State, but as to which there was no 'tenure of office prescribed in that instrument, such tenure being left to the will of the Legislature. 25 Am. Dec., 684 . Chief Justice Ruffin, in that case, said: "There is no reason why a public office should not be given during good behavior. • The services are what concern the country, and they may be expected to be. best done by those whose knowledge of them from time and experience is most extensive and exact. Some offices can, under the Constitution, be granted: or conferred for no other term but that of good behavior. Such is the provision respecting the office of a Judge and Justice of the Peace. Certainly that is not introduced solely for the benefit of the; *642 persons holding those offices, but upon the great public consideration that he who is to decide controversies between the powerful and the poor, and especially between the government and an individual, should be independent, in the tenure of his office, of all control and influence which might impair his impartiality, whether such control be essayed through the [frowns of a bad man or through the adulation of an artful one, or such influence be produced by the threats of the government to visit nonconformity to its will by depriving him of office or rendering it no longer a means of livelihood. For these reasons the. Constitution has fixed the tenure of the judicial office to be during good behavior. The people have said that the liberty, and safety of the citizen required that it should not be held upon any other tenure. □ It is 'clear, therefore, that our ancestors did not [entertain the notion that such a tenure was not. [consistent with our Constitution generally. It is .[true thatS.it does not put clerks upon the same basis. There was not the same reason for it. The public} interest did not require that any law should be laid'[down to the Legislature as to the tenure of those [offices, but it was left to their discretion as expediency might, from time to time, require it to be altered.” 25 Am. Dec., 694 , 695.

Notwithstanding these declarations of the Court • in that case, it is cited in the brief of the Attorney-general, in this, as sustaining his contention, .that the Judges of our inferior Courts are mere legisla *643 tive creatures, to be dealt with as the Legislature pleases. In his brief he sets out a quotation, taken from an isolated portion of the case, which he italicizes. It is as follows: “So also it is yielded, for the like reason, that the office itself, when it ceases to be required for the benefit of the people, may be abolished. There is no obligation on the Legislature or the people to keep up an useless office, or pay an officer who is not needed. He takes the office with the tacit understanding that the existence of the office depends on the public necessity for it, and that the Legislature is to judge of that.”

As this quotation omits the language of the Court immediately following the same, we add this language to the quotation, viz.: “But, while these postulates are conceded, the conclusion drawn from them cannot be admitted. They are, that there cannot be private property in the public offices, and if there be that the officer may be discharged at the discretion of the Legislature. Neither of these propositions is believed to be -correct.” 25 Am. Dec., 693 .

The language quoted from that case in the brief of the Attorney-general, was, as will appear from an examination of the case, intended to apply only to offices which were subject to legislative will, and not to offices the tenures of which are constitutionally defined. On the contrary, the case expressly declares that the Legislature is powerless to interfere with offices the tenure of which is constitution *644 ally prescribed. The case is a direct authority against the proposition contended for, and sustains the view herein taken, and so is the case of State v. Jordan, 33 S. E. Rep., 139 , subsequently de-dided in the same State.

Having shown that the two Tennessee cases (out of line with former and subsequent cases on the same principle), directly against the holding in Pope v. Phyfer, 3 Heis., 682, repudiated by three cases since, precisely in point [State, ex rel., v. Ridley, State, ex rel., v. Leonard, State, ex rel., v. Cummins), never should have been controlling, I wish to present the original question against the merit of these opinions per se, and in this connection I would refer, first, to their inherent want of weight, by reason of the fallacious doctrine upon which they are rested. It is, first, the assumption that “ whatever the Legislature could establish it could destroy.” The authorities already cited and quotations made wholly overturn this assumption. It is clear that when a thing is established by the Legislature, and exists only by virtue of that authority, the authority may be withdrawn and the thing itself destroyed. It is equally clear in reason, and we think we have demonstrated it to be so in authority, that when it is established by virtue of constitutional direction, and to exist and take power and duration, with unchangeable salary, from the Constitution, it is imbedded in the Constitution and beyond legislative control. This principle is ■ enunciated and *645 argued, we may say established, in so many of the cases cited that to repeat them here would be not only superfluous but inexcusably tedious.

The second fallacy upon which it was based was the lack of independence of the judicial department. The republican form of government, which we, in common with other States, had adoptéd, in theory embraced three independent departments, the legislative, executive, and judicial, each supreme in its own sphere and independent of the others. This theory had been assumed to be correct, and this condition of independence actually existing in fact from the adoption of our earliest Constitution, until the case of Halsey v. Gaines, in 1879, when it was announced, in words, by this Court that the independence of the judicial department was only “a fiction of law,” and that it- could not exist without the assent of the Legislature. We quote the language of the opinion on this point: “Much has been said as to the necessity of maintaining the independence of the judiciary, especially to maintain the Courts free from legislative interference. -There are provisions of the Constitution intended to promote, in some degree, their independence; and those provisions should be upheld, but independence in fact is ‘ a fiction of law. ’ While the Legislature cannot rightfully subvert the judicial department, it possesses many powers against which the Courts have no protection except the integrity of the Legislature itself and of the people. The taxing power belongs *646 to the Legislature, and if that body refuses to levy the necessary taxes to support the government, the Courts would be powerless.” Halsey v. Gaines, 2 Lea, 826 .

This fallacious argument, based on supposed revolutionary action of the Legislature, is so fully met and overthrown by Chief Justice Kuffin, in the case of Hoke v. Henderson, 25 Am. Dec., 698 , that we cannot forbear quoting. He said:

“The argument is, therefore, unsound in this, that it supposes (what cannot be admitted as a supposition) the Legislature will designedly violate the Constitution in utter disregard of their oaths and duty. To do indirectly, in the abused exercise of an acknowledged power, not given for, but perverted to, that purpose, that which is expressly forbidden to be done directly, is a gross and wicked infraction of the Constitution, and the more so because the means resorted to deprive the injured person, and are designed to deprive him, of all redress, by preventing the question becoming the subject of judicial cognizance. But that is not the only test of the constitutionality of an Act of the Legislature. There are many laws palpably unconstitutional which never can be the subjects of legal controversies. Not to allude to the causes which have been recently the themes of the bitterest political controversies, several instances of much simplicity may be adduced from our State government. The Constitution of this State provides that the Governor, At *647 torney-general, Treasurer, and other officers shall be elected by the General Assembly by ballot, and that certain of them shall have adequate salaries during their continuance in office. Suppose the Legislature to refuse to elect these officers or to give them salaries, or, after assigning them salaries in a statute, to. refuse to levy taxes or to collect a revenue to pay them. All these would be plain breaches of constitutional duty, and yet a Court could give no remedy, but it must be left to the action of the citizens at large to change unfaithful for more faithful representatives. Yet no one will say that the Legislature can by law remove the Governor, or a Judge, or any other head of a department, because they can unconstitutionally refuse to provide salaries for them and the Courts cannot compel the raising of such salaries. Nor can it]5be said because there cannot be such compulsion, that, therefore, the law is constitutional. All that can be said is that such is the imperfection of all human institutions, that it is not possible to anticipate and provide against all vices of the heart more than all errors of the head, and that after every precaution much reliance must be placed in the integrity of our fellow-men, and that such confidence is liable to be abused. But I think it may safely be assumed, as is done in the Constitution, with all the responsibilities of the legislative representatives to their constituents under frequent elections, with all the clear declarations of the rights of the citizens *648 in that instrument, with the division of the powers of government made in it, whence arise the powers and the. duties of the judiciary to ascertain the conformity of a statute with the Constitution, that with all these guards against - abuse, the danger of a willful and designed violation is never to be apprehended. No arguments, therefore, in favor of the necessity of executing a particular Act, apparently inconsistent with the Constitution, can be drawn from any supposed ability of the Legislature to effect the same end by indirect means which are beyond the cognizance and control of the judiciary.”

The Halsey case had been preceded, in 1875, by that of State, ex rel. Coleman, v. Campbell (MS. Jackson, now reported in 3 Shannon, 355), in which it had been held that a Court, Circuit or Chancery, established under the Constitution, might be abolished by the Legislature. The first named case was never published until after the present controversy arose, but the last referred to and was based upon ■ it, going no further in fact, but broadly announcing the principle upon which it was based to be the want of independence of the judicial department under our Constitution. These cases were presented and decided when the question seemed practically to be of minor importance, because they involved but the little interest and the few dollars of the salary of a single Judge, and though apparently earnestly considered and decided after a division and dissenting opinion, we think the scope, *649 importance, and vicious extent of the ruling was never properly appreciated by the Court or the bar at that time, and is hardly so now, when we have only the destruction of eleven constitutional judicial offices and officers (counting Judges and. District Attorneys), before us, and never will be perhaps until some less envied successors of ours shall have before them the destruction of the entire judicial department. We are sure the extent and consequence of such a construction was never contemplated then. They were faintly perceived in the last case, and an intimation given that legislation to abolish a circuit or division, for the purpose of destroying a Judge, would be unconstitutional, but the Court dealt with this great question like it was to be disposed of on fictions, and, if correct, struck a death blow to the department of the government on whose security and independence the best interests, the lives, liberty, and property of the citizens have always rested in pride, and heretofore in security. The Legislature, however, never deemed it wise until recently to follow this invitation and invade the department which the Constitution made the permanent administrator of justice. In a minor case or two, never of consequence and never noticed until the Leonard case, the Legislature may have asserted the right so conceded, but that department seemed not to desire to adopt the construction given the Constitution. It let Judges go, as they had always gone, uncontrolled by any *650 assumption or assertion of general legislative power or control. When the Leonard case arose to again test the power to abolish and establish Courts, it was upon the passage of a County Court bill abolishing the Judge of a single county, about which the majority of the Legislature could care little and know less. It was a local matter, purely, affecting only a single officer in one county. Naturally, it attracted no general notice from the Legislature or from others. It passed under these conditions. When it came before this Court, we then recognized in it a great question, and we treated it ■ as such. We distinctly and in the most unmistakable terms rejected and repudiated the principle and the argument on which the Coleman and the Halsey cases were founded. We dissented most earnestly from the statement formulated in the last case, that judicial independence is a fiction of law, and asserted our rejection of the whole doctrine of those cases in terms so clear that we did not think them susceptible of misapprehension or misconstruction, and we asserted that judicial independence was a constitutional fact, plainly existent in the Constitution, and not to be construed away on any pretext whatever. We asserted that when a Court, under the Constitution, was created, it was to be for the full constitutional term, and could not be abolished. We said this was intended to prevent experimenting with Courts; to cause the Legislature to be careful in creating them, because they could not be destroyed sooner. We *651 said it was to give the people opportunity to try them on their merits that the term must be so long. We said it was to make the Judges independent of all apprehension of loss of office by legislative or other interference. We said everything that could be said to mean all this, and thought nobody could mistake it. We said, additionally, that while the Coleman and Halsey cases, with which we did not concur, were not in the way, and could not be overruled because not so, we would overrule them if this case had been like them, and they had therefore required overruling. There can be no doubt of what we then said and meant. We are not the same individuals now, and may not agree, but let us not find differences which do not exist, and which all the world will say do not exist. The same is true of the Cummins case. In principle it is with the Leonard case, and inconsistent with the other two. We can make nothing else out of it, and nothing else can be made out of it. We propose in this dissent to stand by them. They are right, and always were, as the others which they repudiated never were.

Now, as to the object of making three independent departments, and of giving fixed tenures and salaries, it is agreed throughout the United States that this was to secure judicial independence. On this question, and its importance, ' 1 cannot forbear some quotations, though, to the legal profession at least, .they may be regarded as trite and superfluous. *652 The subject is well presented in the able brief of defendant’s counsel, in argument and citation, and we can state it no better than by liberal extracts therefrom:

652

“To secure the independence of the judicial department, the Constitution provides that the term of the service of a Judge should be for eight years, and that his salary should not be diminished during his term of office, this being the only method by which such independence could be preserved to those who exercise the functions of this department. These constitutional provisions guarding the tenure of office and salary of the judiciary, were expressly intended as limitations upon the power of any other department to disturb these safeguards of an independent department. They were intended to be fixed and unalterable, subject alone to one limitation — that is, by the removal of a Judge from office for causes of his own creation, or arising from his personal condition. This limitation is expressed in the provisions for an impeachment or removal from office for cause by a two-thirds vote of both houses. To intefere with the judicial department by any other mode than under the grant of power to remove by impeachment or by a two-thirds vote of both houses, violates the limitations expressed in the provisions securing the judicial tenure of office. There can be no intermediate ground for implication or construction.

“The Legislature can only act under this grant *653 of power of removal; any other mode is prohibited. This grant of power of removal by impeachment, or for cause by two-thirds vote, precludes the idea of removal by any other method — abolition or reorganization of Courts or otherwise. ‘ If the power of removal by abolition or reorganization of Courts was intended, there was no need of these methods of removal. Eemoval could be accomplished by the simple and easier method of a majority vote abolishing or reorganizing Courts, and the establishment of new Courts or circuits. The constitutionally defined methods of removal of themselves afford conclusive evidence of the intendment that no other mode could be exercised. ‘ When the means for the exercise of a granted power are given, no other or different means can be implied as being more effectual or convenient. ’ The granted power must be exercised in the prescribed manner. Every other mode of executing the power is prohibited. Norment v. Smith, 5 Yer., 272 ; Cooley Const. Lim. (6th Ed.), p. 78.

"' The affirmation of a distinct policy upon any .specific point in a State Constitution implies the negation of any power in the Legislature to establish a different policy. Every positive direction contains an implication against anything contrary to it, or which would prevent or disappoint the purpose of that provision.’ State v. Halleck, 33 Am. Rep., p. 551; Cooley on Con. Lim., 6th Ed., 80.

"That the tenure of office provisions of the Constitution were expressly intended to secure the term *654 of office and. the Judge the office during the tenure, subject alone to the defined grant of power of removal, is firmly established in the light of history and the conditions which led to the establish-' ment of our Federal and State forms of government. When we look to these, we find the full import of the framers of our organic law ‘ hammered and crystallized ’ in the few brief words which define and secure judicial independence by a fixed tenure of office, and an undiminished compensation during that tenure.

“The struggle for judicial independence has been a long and eventful one. In England the appointment of Judges was a prerogative of the Crown, and their tenure of office at the pleasuree of the Crown. Prior to the reign of James II. this prerogative had been abused by the Stuarts to some extent, but it was abused by James II. so largely and arbitrarily that it became one of the causes of the revolution. Macaulay gives this account of his arbitrary removals of Judges: “Judge after Judge had been stripped of the ermine for declining to give decisions opposed to the whole common law and statute law. Decisions at variance with the spirit of the Constitution had been , obtained from these tribunals by turning out Judge after. Judge until the bench had been filled with men ready to obey implicitly the directions of the government.”

‘1 These many abuses of power are too numerous to detail. They were characterized by judicial mur *655 der, emphasized by tyranny, corruption, and oppression. History was made odious with the bloody assizes of Jeffreys and the execution of Sydney; with the revival of the Star Chamber and the oppression of the High Commission. The efforts of • the King to secure from his pliant tools upon the High Commission the conviction of the bishops who dared to disobey his will set England aflame. Then came the revolution, and with it it was made a part of the unwritten Constitution of England that the Judges should hold quamdiu se lene gesserit — that is, during life or good behavior, instead of durante plácito— that is, at the discretion of the Crown, and that they should not be removed from office except upon the address of two-thirds of both houses of Parliament. This establishment of the judicial tenure was first secured, though imperfectly, in the bill of rights following the revolution; then by the statute of 13 William III., defining the judicial tenure in the terms stated, and prohibiting removal from office by the Crown except upon the addresses of two-thirds of both houses of Parliament. But, under the laws, the office of the Judge expired with the demise of the King. Afterward, by statute in the reign of George III., it was provided that the Judges should hold during good behavior, notwithstanding the demise of the King; and also by this statute their full salaries were secured during their continuance in office. In recommending this Act, the King said ‘ ‘ he looked upon the independence and uprightness *656 of the Judges as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects, and as most conducive to the honor of the Crown.” Story on Const., Secs. 1608, 1623, 1624; Hallum’s Const. His., 391, 401; 12 Green’s Hist. of Eng., Hawthorne Ed. Nations of the World, 80; 2 Macaulay’s Hist. of Eng., 62-65, 160, 208, 209, 210, 261, 287, 319, 320, 262 eb seq., Vol. 4, p. 147; Impeachment Williams, 336.

“‘In England- the complete independence of the judiciary has been considered, and has been found the best and surest safeguard of true liberty, securing a government of known and uniform laws, acting alike upon every man. ’ ‘ Judge Hopkinson, Defense of Chase; note Story Const., Sec. 1619.

‘; ‘ Indeed, since the independence of the Judges has been secured by this permanent duration of office, the administration of justice has, with one exception, flowed on in England with an uninterrupted, pure, and unstained current. It 'is due to' the enlightened tribunals of that nation to declare that their bearing, integrity, and impartiality have commanded the reverence and respect of Europe as well as America.’ Story on Const., Sec. 1608.

‘ ‘ ‘ Such was the memorable history of the struggle for the establishment of the independence of Judges in England, and its engraftment into the unwritten. Constitution of that country. This independence can now only be terminated by ‘an address from both *657 houses of Parliament, as the most regular, solemn, and authenticate way by which the dissatisfaction of the people can be expressed.’ Dr. Paley (Story on Const., note, Sec. 1609).

‘ ‘ While the Parliament of England is omnipotent, the necessity of judicial independence as a protection of life, liberty, and property, is so firmly imbedded in the English, mind that no Parliament has assumed to interfere with the tenure of office of a Judge except upon the gravest of réasons, and only in matters personal to the Judge. The adequate' salaries ■ paid the Judges of England, in view of the purposes for which they are paid — to secure the best of judicial service — the salaries can have no place in the consideration of Parliament as a cause to address to the Crown for removal.

“Arbitrary removal by the King of Judges from office in the colonies was one of the causes which led to the declaration of our independence. In that instrument it is recited: ‘ He has made Judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries. ’ In the light of this antecednt history the Constitution of the United States was framed by the Convention of 1787. In addition to its intelligence this body was characterized by thorough knowledge, information, and research, as to political economy, the government of republics, democracies, and the institutions of the mother country. Its purpose was to frame a written instrument to control a great *658 people upon the theory of three separate, independent, and co-ordinate departments of government, the executive, judicial, and legislative. Judicial independence was intended to be secured by the provision that ‘the Judges of both the Supreme and inferior Courts shall hold their offices during good behavior, and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office.’ Art III., Sec.. 1. This Convention was held with closed doors, and there seems to be no record of its debates, except a few brief minutes of Mr. Yates. After the formation of the Constitution, it was submitted to the. respective Conventions of the States for adoption. The records of the debates in some of these Conventions have been preserved, and have been compiled by Mr. Elliott.

“These debates establish beyond controversy that said clause of the Federal Constitution was intended to put the tenure of office of the entire Federal judiciary beyond any legislative interference whatever, except by impeachment. In fact, this was urged upon the State Conventions as one of the main reasons why the Constitution should be adopted. There were objections urged to the provisions as to the judiciary on other grounds, but none upon the matter of independence of the judiciary as secured by a fixed tenure of office. It is clear from these debates that the Constitution was considered as intending that the tenure of office and salaries of *659 Judges should not be disturbed during good behavior, and that a breach of the condition of good behavior should only be considered by means of an impeachment. We quote pertinent extracts from the debates in the State Conventions:

‘£ ‘ MASSACHUSETTS CONVENTION-MR. THACKER.

‘ ‘ ‘ In this proposed form each branch of power is derived either immediately or directly from the people. The lower houses are elected directly by those persons who are qualified to' vote for .the Representatives of the State, and at the expiration of two years these become private men, unless their past conduct entitles them to a future election. The Senate is elected by the Legislature of the different States, and represents their sovereignty.

‘ ‘ ‘ These powers are a check on each other, and can never be made either dependent on one another or independent of the people. The President is chosen by the electors, who are appointed by the people. The High Courts of Justice arise from the President and the Senate, but yet the ministers of them can be removed only upon bad behavior. The independence of Judges is one of the favorable circumstances to public liberty, for when they become the slaves of a venal, corrupt Court, and the hirelings of tyranny, all property is precarious and personal security at an end.’ Elliott’s Debates, Vol. 2, 153, 154.

*660 "' CONNECTICUT CONVENTION-MR. ELSWORTH, A MEMBER OE THE FEDERAL CONVENTION.

“‘This Constitution defines the extent of the powers of the general government. If the G-eneral Legislature should at any time overlap its limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void, and the judicial power, the national Judges who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the States go beyond their limits, if they make the law which is an usurpation upon the general government, the law is void, and upright, independent judges will declare it to be so.’ Ibid., 198, Yol. 2.

-£ £ £ PENNSYLVANIA CONVENTION-MR. WILSON, A MEMBER

OE THE FEDERAL CONVENTION.

£££Sir, it has often been a matter of surprise, and frequently complained of even in Pennsylvania, that the independence of the Judges is not properly secured. The ' servile dependence of the Judges in some of the States that have neglected to make proper provisions on this subject, endangers the property and liberty of the people, and I apprehend that whenever it has happened the appointment has been for a less period than during good behavior— for if every five or seven years the Judges are obliged to make court for their appointment to office, *661 they cannot be styled independent. This is not the case with regard to those appointed under the general government. For the Judges shall hold their offices during their good behavior.’ Ibid., Vol. 2, 446.

“‘Now, I proceed to the judicial department, and here, Mr. President, I meet an objection I confess I had not expected, and it seems it did not occur to the honorable gentleman (Mr. Finley) who made it, until a few days ago. He alleges that the Judges, under this Constitution, are not rendered sufficiently independent, because they may hold other offices, and • though they may be independent as Judges, yet their other offices may depend upon the Legislature. I confess, sir, this objection appears to me to be a little wire drawn. In the first place the Legislature can appoint to no office, therefore the dependency could not be on them for the office, but rather on the President and the Senate; but, then, these cannot add the salary, because no money can be appropriated but in consequence of a law of the United States. No sinecure can be bestowed on any Judge but by the concurrence of the whole Legislature and the President, and I do not 'think this an event likely to occur.’ Ibid., Vol. 2, p. 475.

1 ‘ £ VIRGINIA CONVENTION — EDMOND RANDOLPH, A MEMBER OE THE FEDERAL CONVENTION.

£tiIf Congress wish to aggrandize themselves by oppressing the people, the judiciary must first be *662 corrupted; no man says anything against them; they are more independent than in England.’

‘ ‘ ‘ VIRGINIA CONTINUED — -PENDLETON.

‘ ‘ ‘ It will make no difference as to the principles on which the decisions will be made, whether it will come before the State Court or Federal Court. They will be both equally independent, and ready to decide in strict conformity to justice. I believe the Federal Courts will be as independent as the State Courts. I shall no more hesitate to trust my liberty and property to the one than to the other. Whenever, in any country in the world, the Judges are independent, there property is secure. The existence of Great Britain depends on that purity with which justice is administered.

‘£ £ This clause also secures an important point— the independency of Judges both as to tenure of office and fixing salary. I wish the restraint had been applied to increase as well as to diminish.’ Ibid., Vol. 3, pp. 290, 472.

£ £ £ VIRGINIA CONTINUED-JOHN MARSHALL.

££ ‘Gentlemen have gone on the idea that the Federal Courts will not determine the causes which may come before them with the same fairness and impartiality with which the other Courts decide. What áre the reasons of this supposition ? Do they draw them from the manner in which the Judges are chosen, or the tenure of their office? What is.it *663 that makes us trust our Judges? Their independence in office and manner of appointment. Are not the Judges of. the Federal Court chosen with as much wisdom as the Judges of the State government? Are they not equally, if not more, independent? Though it may not in general be absolutely necessary, a case may happen, as has been observed, in which a citizen of one State ought to be able to recur to this tribunal to recover a claim from the citizen of another State. What is the evil which this can produce? Will he get more than justice there? The independence of the Judges forbids it. But, says the honorable member, laws may be executed tyrannically. Where is the independence of your Judges? If a law be exercised tyrannically in Virginia, to what can you trust; to your judiciary? What security have you for justice; their independence ? Will it not be so in Federal Courts?’ Vol. 3, pp, 501, 502, 505, 508.

‘ ‘ ‘ VIRGINIA CONTINUED — MR. MADISON, A MEMBER OP THE FEDERAL CONVENTION.

Having taken this general view of the subject, I will now advert to what has fallen from the honorable gentleman who presides. His criticism is that the judiciary has not been guarded from an increase of the salary of the Judges. I wished myself to insert a restraint on the augmentation, as well as diminution, of their compensation, and supported it in the Convention. But I was overruled. I must *664 take the reasons which were urged. They had great weight. The business must increase. If there was no power to increase their pay according to the increase of business, during the life of the Judges, it might happen that there would be such an accumulation of business as would reduce the pay to a most trivial consideration.’ Ibid., Vol. 3, p. 489.

‘£ £ VIRGINIA CONTINUED- — -MR. HENRY.

"I consider the Virginia judiciary as one of the best Qbarriers against strides of power; against the power which, we are told by the honorable gentlemen, has threatened the destruction of liberty. Pardon me for expressing my extreme regret that it is in their power to take away- that barrier. Gentlemen will not say that any danger can be expected from the State Legislatures. So small are the barriers against the encroachments and usurpa-tions jjjof Congress, that when I see this latter barrier, the independency of the Judges, impaired, I am persuaded I see the prostration of all our rights. In what situation will your Judges be when they are sworn to preserve the Constitution of the State and of the «general government? If there be a concurrent dispute between 'them, which will prevail? They cannot serve two masters struggling for the same object. The laws of Congress being paramount to those of the- States, and to their Constitutions also, whenever they come in competition, the Judges must decide in favor of the former. This, instead. *665 of relieving or aiding me, deprives me of my only comfort, the independency of the Judges. The judiciary are the sole protection against a tyrannical execution of the laws. But if by this system we lose our judiciary, and they cannot help us, we must sit down quietly and be oppressed.’ Ibid., Vol. 3, p. 591.

‘£ £ VIRGINIA CONTINUED-MR. GRAYSON.

£ £ £ Something has been said of the independency of the Federal Judges. I will only observe that it is on as corrupt a basis as the art of man can place it. The salaries of the Judges may be augmented. Augmentation of salary is the only method that can be taken to corrupt a Judge.’ Ibid., Vol. 3, pp. 511, 512.

£ £ £ VIRGINIA CONTINUED — MR. GEORGE NICHOLAS.

£££It has been observed, sir, that the Judges appointed under the British Constitution are more independent than those to be appointed under the plan on the table. This, sir, like other assertions of honorable gentlemen, is equally groundless. May there not be a variety of pensions granted to the Judges in England so as to influence them, and cannot they be removed by a vote of both houses of Parliament? This is not the case with our Federal Judges — they are to be appointed during good behavior, and cannot be removed, and at stated *666 times are to receive a compensation for their services.’ Ibid,., Vol. 3, p. 526.

“ ‘NORTH CAROLINA CONVENTION-MR. STEELE.

‘ ‘ ‘ Will the members of Congress deviate from their duty without any prospect of advantage to themselves ? What interest can they have to make the place of elections, inconvenient? The judicial power of the government is so well constructed as to be a check. There was no check in the old confederation. Their power was, in principle and theory, transcendent. If the Congress make laws inconsistent with the Constitution, independent Judges will not uphold them, nor will the people obey them.’ Ibid., Vol. 4, pp. 93-94.

“‘The intention of permanency in the judicial tenure of office is also conclusively shown by articles of Alexander Hamilton in advocacy of the adoption of the Federal Constitution by States. These articles of Mr. Hamilton (a member of the Convention) published in the Federalist, set out the intention of the Convention in adopting the judicial tenure of office clause, and in them he shows conclusively that this clause was framed expressly to secure the Federal judiciary from any interference, direct or indirect (except by impeachment), on the part of any co-ordinate department of the government. These articles (approved by Story) are too lengthy to quote in full, and we therefore refer the Court to them for the full context, all bearing with great force *667 upon the question of judicial independence. Mr. Hamilton says:

“ ‘According to the plan of the Convention, all the Judges who may be appointed by the United States are to hold their offices during good behavior, which is conformable to the most approved of the State Constitutions,' among the rest, that of this State. The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.

“ ‘ Whoever attentively considers the different departments of power, must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution, because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community; the Legislature not only commands the purse, but prescribes the rules by' which the duties and rights of every citizen are to be regulated; the judiciary, on the contrary, has no influ *668 ence over either the sword or parse; no direction either of the strength or the wealth of society, and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive for the efficacious exercise even of this faculty. This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is, beyond comparison, the weakest of the three departments of power; that it can never attack with success either of the other two, and that all possible care is requisite to enable it to defend itself against their attacks.

‘ ‘ ‘ It proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such an union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as from the natural feebleness of the judiciary it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may, therefore, be justly regarded as an indispensable ingredient in its constitution; and, in a great measure, as the citadel of the public justice and of the public security, the complete independence of the Courts of justice is peculiarly essential in a limited Constitution.

*669 “ ‘If, then, the Courts of justice are to be com sidered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the Judges which must be essential to the faithful performance of so arduous a duty.

“‘This independence of the Judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and a more deliberate reflection, have a tendency in the meantime to occasion dangerous innovations in the government and serious oppressions of the minor party in the community, for it is easy to see that it would require an uncommon portion of fortitude in the Judges to do their duty as faithful guardians of the Constitution where legislative -invasions of it had been instigated by the major voice of the community.

‘ ‘ ‘ That inflexible and uniform adherence to the rights of the Constitutions and of individuals, which we perceive to be indispensable in the Courts of justice, can certainly not be expected from Judges who hold their offices by temporary commission.

‘ ‘ ‘ There is yet a further and weighty reason for the permanency of judicial offices, which is deducible. *670 from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid arbitrary discretion in the Courts, it is indispensable that they should be bound down by strict rules and precedents, which servé to define and point out their duty in every particular case that comes before them, and it will readily be conceived, from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of these precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the station of Judges; and making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These conditions apprise us that the government can have no great .option between fit characters, and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able and less well qualified to conduct it with ability and dignity.

*671 ‘ ‘ ‘ Upon the whole, there can be no room to doubt that the Convention acted wisely in copying from the models of those Constitutions which have established good behavior as the tenure of judicial offices in point of duratidn, and that so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government. The experience of Great Britain is an illustrious comment on the excellence of the institution.” Federalist, Nos. 78 and 79, p. 362 to 371.

“Another evidence of this purpose of the Federal Constitution is to be found in the rejection, by the Convention framing the same, of two propositions. One of these propositions was to make the Judges removable by the President upon the application of the Senate and House of Representatives; the other to authorize the removal of Judges on account of their disability to discharge the duties of their offices. That these propositions were rejected for the reason that they might effect judicial independence is shown by Mr. Story in his work on Constitutions. Story on Con., Secs. 1622, 1623, 1624, 1625, 1626.

‘ ‘ The j udicial tenure of office clause in the Constitution of 1796 is to be interpreted in connection with antecedent history. It was in the light and knowledge of the fierce struggle which took place in England to secure judicial independence; of the solemn protest of the Declaration of Independence against the interference of the King with the tenure *672 of officials, the colonial Judges and their salaries; and of the history of the formation and adoption of the Federal Constitution and the engraftment into the same of a fixed tenure of office paramount (except by impeachment) to any legislative will, that the first Constitution of the State was framed in 1796. This Constitution provided that Judges should ‘ hold their offices -during their good behavior. ’ The meaning of these words is to be interpreted in the light of the history and conditions preceding the formation of the Constitution. So interpreted, it seems beyond controversy that this provision was intended to secure to the Judges a tenure of office safe from any legislative interference or abridgment, direct or indirect, except for causes for which the Judge might become responsible by -breaching the condition of good behavior, this being provided for by impeachment. Cooley on Cons. Lim., 6th Ed., p. 80.

‘ ‘ It is evident that the j udicial tenure of office provided for in the Constitution of 1796 was modeled after the Federal Constitution, and was intended to bear the same meaning and construction.

“Under these conditions-, and with'these preceding events in the knowledge of the Convention, it seems wholly unreasonable to suppose this tenure of office clause was intended to be in any way abridged or limited by the clause in said Constitution providing that the judicial power of the State ‘ shall be vested in such superior and inferior courts of law and *673 equity as the Legislature shall from time to time direct and establish.’ If the tenure of office clause in said Constitution of 1796 was intended to be paramount to said last clause, the tenure of office clause in the Constitution of 1870 must also be construed as paramount to the clause providing that the Legislature shall £ ordain and establish inferior coui’ts. ’

“The Convention of 1796 framed an organic law (said by Jefferson to be ‘the least imperfect and most republican ’ of any then framed) to govern a free people. Its every intent and purpose must have been to erect every barrier to oppression and to provide every possible safeguard for the protection of the people. With the dangers which attended a judiciary dependent upon the King, and the protest of the Declaration of Independence in its knowledge, it seems incredible that this Convention intended to submit judicial independence to abridgment and destruction by legislative will, thus transferring dominion from an executive power to a legislative power — a change from one to many masters. The authority of said Convention given to the Legislature to ‘ordain and establish courts,’ viewed in the light of history, could not have been intended to permit the destruction of the judicial tenure expressed in terms, and thus by a mere implication permit the power to interfere with judicial independence by the abolition of courts.

“Story, Tucker, and Kent fully sustain the con *674 tentions we make. These masters of constitutional law forcefully, clearly, and exhaustively give conclusive reasons why the judicial tenure of office expressed in the terms £ during good behavior, ’ expressly protect against all legislative interference except by impeachment. They are too lengthy to quote in full; only extracts can be given, and the Court cited to the full version. 1 Kent’s Com., 13 Ed., 293 to 295; Story Const., Secs. 1607 to 1613.

‘ ‘ Mr. Kent, after referring to the importance of judicial independence, so that the Judges might stand against all improper influences, says:

11 ‘To give them the courage and the firmness to do it, the Judges ought to be confident of the security of their salaries and station. The provision for the permanent support of the Judges is well calculated, in addition to the tenure of their office, to give them the requisite independence. It tends also to secure a succession of learned men on the bench, who in consequence of a certain undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station.” 1 Kent, 294-5.

“’Mr. Story:

“ ‘The reasons in favor of the independence of the judiciary apply with augmented force to republics, and especially to such as possess a written Constitution with defined powers and limited rights. It is obvious that, under such circumstances, if the tenure of office of the Judges is not permanent, *675 they will soon he rendered odious, not because they do wrong, but because they refuse to do wrong; and they will be made to give way to others who shall become more pliant tools of the leading demagogues of the day. There can be no security for the minority in a free government, except through the judicial department.

“‘‘In the next place, the independence of the judiciary is indispensable to secure the people against the intentional as well as unintentional usurpation of the executive and legislative departments. It has been observed with great sagacity that power is perpetually stealing from the many to the few; and the tendency of the legislative department to absorb all the other powers of the government has always been dwelt upon by statesmen and patriots as a general truth, confirmed by all human experience.

‘ ‘ ‘ Thus, in the free government of Great Britain, an Act of Parliament, combining as it does the will of the Crown and of the Legislature, is absolute and omnipotent. It cannot be lawfully resisted or disobeyed. The judiciary is bound to carry it into effect at every hazard, even though it should subvert private rights and public liberty. But it is far otherwise in a republic like our own, with a limited Constitution, prescribing at once the powers of the rulers and the rights. of the citizens. This very circumstance would seem conclusively to show that the independence of the judiciary is absolutely *676 indispensable to preserve the balance of such a Constitution. In no other way can there be any practical restraint upon the acts of the government, or any practical enforcement of the rights of the citizens.

“‘Does it not follow that to enable the judiciary to fulfill its functions it is indispensable that the Judges should not hold their offices at the mere pleasure of those whose acts they are to check, and if need be to declare void ? Can it be supposed for a moment that, men holding their offices for the short period of two or four or even six years, will be generally found firm enough . to resist the will of those who appoint them and may remove them ?

‘ ‘ ‘ The truth is, that even with the most secure tenure of office during good behavior, the danger is not that the Judges will be too firm in resisting public opinion and in defense of private rights or public liberties, but that they will be too ready to yield themselves to the passions and politics and prejudices of the day. In a monarchy the Judges in the performance of their duties with uprightness and impartiality, will always have the support of some of the departments of the government, or at least of the people. In republics ■ they may sometimes find the other departments combined in hostility against the judicial; and even the people for a while, under the influence of party spirit and turbulent factions, ready to abandon them to their fate. Few men *677 possess the firmness to resist the torrent of popular opinion, or the content to sacrifice present ease and public favor in order to earn the slow rewards of a conscientious discharge of duty, the sure but distant gratitude of the people, and the severe but enlightened award of posterity.

‘ ‘ ‘ The considerations above stated lead to the conclusion that in republics there are in reality stronger reasons for an independent tenure of' office by the Judges, a tenure during good behavior, than in a monarchy. Indeed, a republic with a limited Constitution, and yet without a judiciary sufficiently independent to check usurpation, to protect public liberty, and to enforce private rights, would be as visionary and absurd as a society organized without any restraints of law.

“ 4 In human governments there are but two controlling powers — the power of arms and the power of laws. If the latter are not enforced by a judiciary above all fear and above all reproach, the former must prevail, and thus lead to the triumph of. military over civil institutions. The framers of the Constitution, with profound wisdom, laid the cornerstone of our national republic in the permanent independence of the judicial establishment. Upon this point ’their vote was unanimous.

‘ ‘ 1 The main security relied on to check an irregular or unconstitutional measure, either of the executive or the legislative department, was, as we have seen, the judiciary. To • have made the Judges, *678 therefore, removable at the pleasure of the President and Congress, would have been a virtual, surrender to them of the custody and appointment of the gurdians of the Constitution. It would have been placing the keys of the citadel in the possession of those against whose assaults the people were most strenuously endeavoring to guard themselves. It would be holding out a temptation to the President and Congress, whenever they were resisted in any of their measures, to secure a perfect irresponsibility by removing those Judges from office who should dare to oppose their, will. Such a power would have been a signal proof of a solicitude to erect defenses round the Constitution for the sole purpose of surrendering them into the possession of those whose acts they were intended to guard against. Under such circumstances, it might well have been asked where could resort be had to redress . grievances or so overthrow usurpations ?

‘£ ‘ The next clause of the Constitution declares that the Judges of the Supreme ■ and inferior Courts shall, at stated times, receive for. their services • a compensation which shall not be diminished during their continuance in office. Without this provision the other, as to the tenure of office, would have been utterly nugatory, and, indeed, a mere mockery.

‘ ‘ ‘ It is almost unnecessary to add that although the Constitution has, with so sedulous a care, endeavored to guard the judicial department from the overwhelming influence or power of the other co *679 ordinate departments of the government, it has not conferred upon them any inviolability or irresponsibility for an abuse of their authority. On the contrary, for any corrupt violation or omission of the high trusts confided to the Judges, they are liable to be impeached (as we have already seen), and, upon conviction, removed from office. Thus, on the one hand, a pure and independent administration of public justice is amply provided for, and, on the other hand, an urgent responsibility secured for fidelity to the people.’ Story Const., Secs. 1610, 1612, 1613, 1614, 1619, 1621, 1624, 1628, 1635.

“He further says, quoting from Mr. Justice Wilson: ‘In the United States this independence extends to Judges in Courts inferior as well as supreme. This independency reaches equally their salaries and their commissions. In England the Judges of the superior Courts do not now, as they did formerly, hold their commissions and their salaries at the pleasure of the Crown, but they still hold them at the pleasure of the Parliament; the judicial subsists, and may be blown to' annihilation, by the breath of the legislative department. In the United States the Judges stand upon the sure basis of the Constitution, the judicial department is independent of the department of the Legislature. No Act of Congress can shake their commission or reduce their salaries. The Judges, both of the supreme and inferior Courts, shall hold their offices during good behavior, and shall, at *680 stated times, receive for their services a compensation which shall not be diminished during their continuance in office.’ Story Const., Sec. 1632.

‘ ‘ See also the remarks of Judge Hopkinson upon the independence of the judiciary, made in defense of Mr. Chase upon his impeachment (Story Const., Sec. 1619, note 3),' and see Mr. Tucker’s views, expressed in his Commentaries on Blackstone, in which he says, among other cogent expressions: ‘This absolute independence of the judiciary, both of the executive ' and the legislative departments, which I contend is to be found both in the letter and spirit of our Constitutions, • is not less necessary to the libertyand security of the citizen and his property in a republican government than in a monarchy. Such an independence can never be perfectly attained but by a constitutional' tenure of office, equally independent of the frowns and smiles of the other' branches of the government. And herein consists one of the greatest excellencies of our Constitution, that no individual can be oppressed whilst this branch of the government remains independent and uncor-rupt, it being a necessary check upon the encroachments or usurpation of power by either of the other. And as from the natural feebleness- of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches, who have the custody of the purse and the sword of the confederacy, and as nothing can contribute so much to its firmness or independence *681 as permanency in office; this' quality, therefore, may be justly regarded as an indispensable ingredient in the Constitution, and in a great measure as the citadel of the republic, justice, and the public security.’ 1 Tuck. Black. Com. App., 354-356 to 360.

‘ ‘ ‘ Whatever, then, has been said by Baron Montesquieu, De Lolme, Judge Blackstone, or any other writer, on the security derived to the subject from the independence of the judiciary of Great Britain, will apply at least as forcibly to that of the United States. We may go still further. In England the judiciary may be overwhelmed by a combination between the executive and the legislative. In America (according to the true theory of our Constitution) it is rendered absolutely independent of, and superior to the attempts of both to control or crush it: first, by the tenure of office, which is during good behavior; these words (by a long train of decisions in England, even as far back as Edward III.) in all commissions and grants, public or private, importing an office or estate for the life of the grantee, determinable only by his death or breach of good behavior. Secondly, by the independence of the Judges in respect to their salaries, which cannot be diminished. ’ Story on Cons., Sec. 1620, note 2; Sec. 1627, note 1.

But it is said by the majority that if the Coleman and Halsey cases in Tennessee, the cases referred to, be not overruled in terms, they are stare decisis, and should be adhered to. The answer to that, in the first place, is that they have *682 not been adhered to. The Leonard case and the Cummins case directly overturn them — that is, they repudiate them in principle. It is not necessary that they be declared overruled. It is sufficient if later cases be inconsistent with them in principle. In some Courts this is the only practice of overruling. It is so in the Supreme Court of the United States. That Court never says it overrules a case. It merely proceeds on an antagonistic principle to decide some other. But the cases never were stare decisis.' £ ‘ Erroneous decisions under the Constitution as to the tenure of a Judge’s office will be overruled as not within the doctrine of stare decisis, which does not apply to questions of constitutional law.” 12 Am. & Eng. Ene. L., 18. I quote literally; the cases are cited in the notes. But it is said some other statutes like this in exceptional cases may have been passed. To this I wish to answer in the language of a great Judge of this State deciding a similar case. He said:

“It is said by counsel that the Legislature has passed many statutes similar to this, and various cases are referred to. I acknowledge the force of the authority of adjudication upon analogous cases. It sometimes presents a forcible and conclusive argument. But it is a sufficient answer to the argument upon this point to say that the cases and decisions referred to, though analogous, were not made in this precise case, and I can never follow precedent in the line of analogy when it leads to an infraction of the *683 Constitution. Hence the necessity of a frequent recurrence to first principles. If we follow precedent and move on according to the analogy of cases, we shall be led from step to step until the Constitution itself will be lost amid the subtleties of' the law. When precedent is established in the construction of statute or common law, I concede the propriety of following it, unless flatly absurd or unjust. But every Judge, and other public officer, when called on to do an official ■ act, must judge of the Constitution for himself, for no precedent however grave and no adjudication however respectable can warrant a violation of that sacred instrument.” Bank v. Cooper, 2 Yer., 622 .

This was the language of a Judge who, in uttering it, denied his right to sit upon another Court and take another salary.

The truth is, the judiciary is marked for sacrifice. The ’ Constitution established three, and only three, great departments — the legislative, the executive, and the judicial. The other two have remained intact. Other departments, boards, bureaus, and commissions, with consequent great expense, have been grafted on the government. Schools, asylums, and State institutions generally, have called for more and more. Tax-bearing has become a grievous burden, and the people are to be taught that the judicial department is its cause. The attention of the country is turned to the Courts, and the abolition of one of the constitutional departments demanded. Three departments *684 are too many for the Constitution. Five or six may not be for government, but three are too many there. One must, therefore, be destroyed. The judicial is singled out for destruction. If this Act is valid it is gone, and with what resultant benefits to the people ? The saving of one and a half cents each to our population, or of five cents annually to each voter of the State, and not the hundredth part of a cent on the taxable valuation of its property. This, it would seem, is a poor return for the destruction of constitutional Courts, and constitutional Judges and District Attorneys, and confusion of public business and the general impediment of public justice, and the deprivation of eleven citizens of constitutional rights they had spent their lives in acquiring fitness to exercise and years of struggle in acquiring the positions from which they are ejected. No other constitutional department has ever been assailed or impaired. The executive has been fostered and protected. The legislative has been honored and preserved. No legislative • representative has ever been denied his legal tenure of office, and in all the legislative redistricting the membership has been increased, but never has one been denied the right to his office during his constitutional tenure. We solemnly protest against this invasion of the judicial department as the establishment of a ruinous precedent, and that this Court should be constrained to lend its sanction to that destruction and see prostrate before it the wreck of its department.

*685 It is finally said, however, we have a legislative precedent in the Federal Government of long standing, and it should be looked to. In 1801 the Federal Congress created sixteen circuit judgeships. The Act passed to enable him to do so, and Mr. Adams made the appointments of the Judges on the last day of his term. When Mr. Jefferson came in, with the Congress of 1802, attention was called to this Act in his message, and ready partisans offered bills to repeal it. It was repealed during the session of 1802 by a partisan vote, after one of the greatest debates ever made in Congress, in which the notable device of ‘ ‘ taking the office from the Judge,” when the Constitution did not permit you to ‘£ take the Judge from the office ’ ’ was invented. It worked, and served its purpose,' and the Courts were never invoked to test its constitutionality. It made a bad precedent, which no Congress has followed, and the invalidity of it, in consequence of the indisposition of the Judges at that early day to enter into a struggle with the other departments of the government, and who retired without contest, was, therefore, never embalmed in judicial records. But it was in judicial disesteem and disapprobation. It was condemned by all the great Judges and law authors. I append a few of them, worthy to' be perpetuated, and which should always be recalled whenever and wherever a controversy on the same question arises.

Mr. Story, speaking of it, says: ‘‘ But, unfortu *686 nately, a measure was adopted, in 1802, under the auspices of President Jefferson, which, if its constitutionality can be. successfully vindicated, prostrates in the dust the independence of all inferior Judges, both as to the tenure of their office and their compensation for services, and leaves the Constitution a miserable and vain delusion. In the year 1801 Congress passed an Act reorganizing the judiciary and authorizing the appointment of sixteen new Judges, with suitable salaries, to hold the Circuit Courts of the United States in the different circuits created by this Act. Under this Act the Circuit Judges received their appointments and performed the duties of their offices until the year 1802, when the Courts established by the Act were abolished by general repeal of it by Congress, without in the slightest manner providing for the payment of the salaries of the Judges, or for any continuation of their offices. The result of this. Act, therefore, is (so far as it is a precedent) that notwithstanding the judicial tenure of office of the Judges of the inferior Courts is during good- behavior, Congress may at, any time, by a mere act of legislation, deprive them of their offices at pleasure, and with it take away their whole title to their salaries. How this can be reconciled with the terms or the intent of the Constitution is more than any ingenuity of argument has ever, as yet, been able to demonstrate. The system fell, because it was unpopular with those who were then in possession of power, and the vie- *687 tims have hitherto remained without indemnity from the justice of the government.

“Upon this subject a learned commentator has spoken with a manliness and freedom worthy of himself and of his country. To those who are alive to the just interpretation of the Constitution; those who, on the one side, are anxious to guard against the usurpation of power injurious to the State, and those who, on the other side, are equally anxious to prevent a prostration of any of its great departments to the authority of the others, the language can never he unseasonable, either for admonition or instruction, to warn us of the facility with which public opinion may be persuaded to yield up some of the barriers of the Constitution under temporary influences, and to teach the duty of an unsleeping vigilance to protect that branch which, though weak in its powers, is yet the guardian of the rights and liberties of the people. It was supposed,” says the learned author, ‘ ‘ that there could not be a doubt that those tribunals in which justice is to be dispensed according to the Constitution and laws of the confederacy; in which life, liberty, and property are to be decided upon; in which questions might arise as to the constitutional powers of the executive, or the constitutional obligation of an Act of the Legislature, and in the decision of which the Judges might find themselves constrained, by duty and by their oaths, to pronounce against the authority of either, should be stable and permanent, and *688 not dependent upon the will of the executive or Legislature, or both, for their existence; that, without this degree of permanence, the tenure of office during good behavior could not secure to that department the necessary firmness to meet unshaken every question, and to decide as justice and the Constitution should dictate, without regard to consequences. These considerations induced an opinion, which, it is presumed, was general, if not universal, that the power vested in Congress to erect from time to time tribunals inferior to the Supreme Court, did not authorize them at pleasure to demolish them. Being built upon the rock of the Constitution, their foundation was supposed to partake of its permanency, and to be equally incapable of being shaken by the other branches of the government. But a different construction of the Constitution has lately prevailed. It has been determined that a power to ordain and establish, from time to time, carries with a discretionary power to discontinue and demolish; that although the tenure of office be during good behavior, this does not prevent the separation of the office from the' officer by putting-down the office, but only secures the officer his station upon the terms of good behavior, so long as the office itself remains. Painful, indeed, is the remark that this interpretation seems calculated to subvert one of the fundamental pillars of free government, and to have laid the foundation of one of the most dangerous political schims that has ever *689 happened in the United States of America.” Story’s Const., Secs. 1633-4.

The commentator here referred to was Mr. Tucker, who, in his commentaries, says: “The Act gave rise to one of the most animated debates to be found in the annals of Congress, and was resisted by a power of argument and eloquence which has never been surpassed. These debates were collected and printed in a volume at Albany, in 1802, and are worthy of the ■ most deliberate perusal of every constitutional lawyer. The Act may be asserted, without fear of contradiction,. to have been against the opinion of a great majority of all the ablest lawyers at the time, and probably now, when the passions of the day have subsided, few lawyers will be found' to maintain the constitutionality of the Act. No one can doubt the perfect authority of Congress to remodel their Courts, or to confer or withdraw their jurisdiction at their pleasure. But the question is whether they can deprive them of the tenure of their office and their salaries after they once become constitutionally vested in them.” See Tuck. Black Comm., 22-25.

The judiciary is the weakest of all the departments of the government. “The legislative is the greatest and the overruling power in all free governments. It has been generally recognized by the students of our constitutional law that the danger' to judicial independence lies in the legislative department. • The safeguards against legislative power are *690 only two — tenure of office and a fixed compensation while in office. Destroy these, especially the first, and the inevitable result is judicial dependence, with its evils.” Story Const., Secs. 531-542.

This danger must have been known and recognized by the authors of our Constitutions. Therefore every constitutional limitation upon legislative power must be given the fullest force and expression, and must have been so intended. It is argued that, prior to the Constitution of 1870, our Court, though not deciding the question, has used expressions which acquiesce in the power of the Legislature to deprive a Judge of his office by the abolition of his Court. This proposition cannot be maintained. No case can be found prior to the Constitution of 1870 which invoked any judicial declaration, either directly or indirectly, as to the • legislative power to abridge or terminate a judicial tenure of office. The cases in which expressions have been used as to the power of the Legislature to abolish Courts in nowise involved the tenure of office of ■ a Judge. The Legislature has the power to add to or withdraw a part of the territory or jurisdiction of an inferior Court, provided the office of the Judge is left intact. It may also abolish an inferior Court, to take effect at the end of the judicial term of office. The expressions used in the case relied on to show such acquiescence are referable to the legislative power of reorganization or abolition, when such action may be legitimately exercised without *691 interference with any constitutional limitation, but the legislative power to abolish a Court so as to destroy the tenure of office of the Judge is a different question. We refer to the cases above, upon which said claim is based. They are' three in number, viz.: In the case of the Bank v. Cooper (1831) the Court used the expression that the Legislature may abolish a Court. In that case no question of the judicial tenure of office was in issue, nor anything to direct the attention of the Court to the same, the question involved being the constitutionality of an Act constituting existing Judges a special tribunal for the disposition of suits comm'enced by the Bank of Tennessee. 2 Yer., 600 , 601. But in this very case there are words used by the Court which of themselves carry the implication that the legislative department could not interfere with the judicial department, so as to affect the independency of this department. The Court says: “The framers of the Constitution never dreamed of admitting the arbitrary exercise of power of any department of the government. The legislative, executive, and judicial departments are three lines of equal length, balanced against each other, and the framework becomes stronger the more its parts are pressed.” If the tenure of office is destroyed, that destroys the triangle.

In the case of Miller v. Conlee (1858), 5 Sneed, the Court held as unconstitutional an Act transferring cases from the Chancery Court to the Supreme *692 Court, when they had been twice continued on account of the incomperency of the Chancellor. The Court, in holding that the Supreme Court was an appellate Court established by the Constitution, uses these words: “The people have trusted to this department supreme judicial power, and placed it and its jurisdiction beyond the legislative power. Neither one can interfere with or control the other in the proper discharge of its functions. Under the old Constitution this was not so. This department was by that entirely the creature of the Legislature.” Th.e Legislature may destroy its judicial creation by the exercise of power not limited by the Constitution, and in this sense . inferior Courts are its creatures, but this does not mean that in the exercise of legislative power a constitutional office may be destroyed and its incumbent removed from office. 5 Sneed, 432 .

In Moore v. State (1857), the question was whether the Legislature had the power to create the office of County Judge for particular counties without the law applying to all the counties in the State. In deciding this case the Court used this language: “It was with the Legislature to determine how many and what kinds of Courts are required for the administration of justice, and what shall be the character and limits of the jurisdiction of each.” The expression “to determine how many Courts are required in the administration of justice, and what shall be the character and jurisdiction of each,” is not *693 to be construed as meaning that the Legislature had the power to lessen the number of Courts by abolishing the same, when to do so would operate to abridge the tenure of office. None of said cases bear the construction that the Legislature may exercise the power of abolition or reorganization of Courts where the tenure of office of the incumbent would thereby be affected. 5 Sneed, 510 , 511.

But there are cases in Tennessee, decided prior to the Constitution of 1870, which substantially declare that the Legislature has no power to abridge the term of office of a Judge or a constitutional officer, and as we have seen, there are four decided since, declaring that the Legislature has no power to destroy a constitutional Court (Pope v. Phifer, 3 Heis., 683), or a constitutional Judge (State v. Ridley, State v. Leonard, 2 Pickle, 485 ), or a constitutional officer (State v. Cummins, 10 Pickle, 667 ).

The Constitution of 1834 provided Justices of the Peace should be elected for the term of six years. Davis in 1852 was elected a Justice of the Peace, to fill a vacancy occasioned by resignation from office of an incumbent whose term would have expired on February 2, 1854. On that day Davis ran for Justice of the Peace and was defeated. In 1833 an Act had been passed providing in case of vacancies an election should be held to “fill out the time for which his predecessor was elected, and no longer.” Davis, though defeated in said election, claimed the office; that said Act was void under said *694 Constitution providing his term of office as a Justice of the Peace should be for six years, and that the Legislature had no power to shorten the term by said Act. The Court so held, saying, with reference to the Constitution: “The term is there fixed at six ' years, under all circumstances and without exception, and no power is given to the Legislature to abbreviate it, but only to provide for the mode and manner of keeping the office filled. This is the extent of the power delegated, and it does not reach the term of service; that is unalterably fixed at six years ' by the highest law, and it is not competent for the Legislature to shorten any more than it is to lengthen it.” This case was decided in 1855. Keys v. Mason, 3 Sneed, 8 , 10.

If a constitutional term of office cannot be shortened by the Legislature in advance of the term, can it shorten it after the term begins ? “It is not competent for the Legislature to shorten the term of an office prescribed by the Constitution, and any enactment to that effect is void.” Rambo v. Maloney, 8 Pickle, 68 ; Brewer v. Davis, 9 Hum., 213 ; Powers v. Hurst, 2 Hum., 24 .

In 1827 an Act was passed providing that the Governor ' should appoint a special Judge to hold Courts in case the regular Judge should, on account of disability, be unable to hold his Courts. The Supreme Court (1833) held this Act unconstitutional, on the ground that the Constitution of 1796 having provided the tenure of office of Judges should be *695 ‘£ during good behavior, ’ ’ said Act was in violation of this constitutional provision, and that the Legislature was by the same prohibited from interfering with this tenure. The Court says: “Why was it provided by the Constitution that the Judges appointed should hold their respective offices during their good behavior ? Our Declaration of Independence tells us, when enumerating the usurpa-tions of the British King authorizing the separation, ‘he has made Judges dependent on his will alone for the tenure of their offices, and the amount of their salaries. ’ Of course dependent upon his pleasure, and subject to be used as instruments so long as they were obedient, and, when they were otherwise, subject to be turned off and more pliant ones put in place. Were this commission sanctioned, we might presently fall on the old evil. The Legislature has just as little right to change the appointing power of one of its own members.” Here we have an express judicial declaration that the constitutional tenure of office shall not be interfered with, even though the public interest required it. Smith v. Norment, 5 Yer., 273 , 274.

These two cases expressly decide the tenure and term of office fixed by the Constitution to be unalterable constitutional limitations, which prohibit any legislative violation of the limitations. The case of Pope v. Phyfer, 3 Heis., 682, expressly decided that the Legislature could not abolish a constitutional Court. The office of Judge of an inferior Court, the Judges *696 selected to exercise and enforce the judicial power invested in the Court, and the term of office, are all constitutional creations which form a constitutional part of the Court, and are not subject to legislative control other than by a constitutional grant of power authorizing legislative control. In the absence of any constitutional limitation, the Legislature would have the power to create Courts, to abolish such Courts, abridge terms of office, and deprive Judges of their offices. Therefore, whenever such legislative power is made the subject of constitutional provisions, such provisions are necessarily to be construed as intended to be a limitation upon or regulation of the legislative power. In such cases, to qualify or abridge such limitation requires a constitutional grant of power.

The Legislature, under the Constitution, has the power to ordain and establish inferior Courts — that is, to designate the same, and define their jurisdiction, and regulate the salary of the incumbent previous to his incumbency. But when this power is exercised— the power to either create the office of Judge, or fix the term of office, or to designate the mode of selection of the incumbent, or to regulate his salary during his incumbency, or to invest him with judicial power — all these are constitutional creations, and derive their existence solely from the Constitution.

These constitutional creations are guarded by express provisions of the Constitution limiting legislative power, viz.: (1) Term of office shall be eight years. (2) The Judge shall hold the office for *697 eight years. Shall hold his office until his successor is elected or appointed and qualified. (3) His salary shall not be diminished during his continuance in office. Const., Art. VI., Sec. 4-7; Art. VII., Sec. 5.

These limitations on legislative power were made a part of the Constitution to secure judicial indepen-dency. ‘ ‘ When once we know ■ the reason which determined the will of the lawmakers, we ought to interpret and apply the words used in a manner suitable and consistent to that reason, and as will be best calculated to effectuate the intent.” Cooley Const. Lim. (6th Ed.), p. 80.

- The intention of these provisions is not disputed, but they are sought to be evaded on the theory that they were not intended to cover cases of the abridgment of the term of office, or destroying the office, or' depriving the Judge of his office and diminishing his salary, where the same is effected by abolishing a Court. The proposition is, that while a Judge cannot, by an' Act, be constitutionally removed from office, the office may be, by an Act, . constitutionally removed from a Judge, and that, by removing the office from the Judge, no constitutional limitation is violated. If this be true, these constitutional creations, which form a constituent part of the Court, are made subservient to legislative control, implied from the power to designate and establish Courts, the judicial powers of which, with the office of Judge, his term of office, and his compensation, are derived from the Constitution.

*698 “An Act repealing in toto a statutory provision for the salary of an Assistant Clerk of a separate orphan’s Court, appointed by the Clerk of such Court pursuant to authority conferred upon him by the State Constitution, without making other provisions for such salary, is unconstitutional, its effect being to abolish the office of Assistant Cl®rk. ” The Legislature cannot, except by constitutional authority, remove a constitutional officer, “because the power to remove is limited to the power to create.” The proposition contended for, if sustained, not only deprives a constitutional officer of his salary, but also of his office. Reed v. Smoulter (Pa.), 5 La. Ann., 517 , 518; Attorney-general, ex rel. Jochim, 25 L. R. A., 703.

The constitutional clause providing that inferior Courts should be ‘ ‘ ordained and established ’ ’ by the Legislature, was intended to meet conditions which might arise and require the establishment of tribunals necessary to the administration of justice. It was impracticable, in framing a Constitution, to create such Courts and define their jurisdiction. These were the reasons for leaving this matter to the Legislature. But in doing so it was not intended to make Courts created by the Legislature, under said provisions, sole creatures of the Legislature, which it might at its pleasure, and without regard to constitutional limitations, destroy, under the theory that the power to create conferred the power to destroy.

The Legislature cannot confer judicial power upon a Court. When it creates a Court it is the Con *699 stitution which invests the Court and Judge with judicial power, and makes the Court a constitutional tribunal. As soon as the Court thus becomes a constitutional tribunal, the Constitution intervenes and imposes a barrier to any legislative interference with the term of office, its tenure, or the salary of the Judge, and this barrier is intended to be a prohibition of any legislative exercise of power, except by the constitutional grant of the power of removal by impeachment, or a two-thirds vote for cause.

If this is not the correct theory of our Constitution, the provisions securing the independency of the Judge, and the constitutional grant of the power to remove Judges by methods expressed in the Constitution, are all made subordinate by implication to a clause which was merely intended to provide for needs which might arise in the administration of justice, and not intended to be construed as conferring the power to abolish Courts when such exercise of power would operate to destroy prescribed constitutional limitations.

Regretting our inabilty to avoid the result reached in this case, Judge Beard and I dissent from the views of the majority, and respectfully but earnestly insist that they are in error.