THE TENURE OF THE JUDICIAL OFFICE. AN ESSAY READ BEFORE THE SOUTH CAROLINA BAR ASSOCIATION, BY JOSEPH DANIEL POPE. The question involving the tenure of the Judicial Office is one of the most important that can address itself to the profession, or to the public. The English Judges anciently held their seats at the pleasure of the King. "It is easy," says Chancellor Kent, "to perceive what a dangerous influence this must have given to the King in the administration of justice." And why? it may be asked. Because the King was the source of power; he had the power to elevate and the power to disgrace. The power to appoint to high Judicial Office and the power to dismiss should never, without some check, be lodged in the same hands, unless it be wished to make the appointee the mere creature of those who appoint. For this reason, at an early day in England, the Judge lived his official life under the Nemesis of the Sovereign's displeasure; or worse still, perhaps, under the seductive influence of the Sovereign's smiles. The honest and unbending spirit of Lord Coke dared, it is true, with manly independence to resist alike the frowns and the blandishments of the Crown. But may it not be said that in his day he stood like the gnarled oak, buffetting the storm until he was finally uprooted by it. Great praise, too, may be spoken of the integrity of Lord Chief Justice Holt who, in his conflict with the Commons (if the report be authentic), replied to the message sent him by their Speaker: "Go back to your Chair, Mr. Speaker, within these five minutes, or, you may depend upon it, I will send you to Newgate. You speak of your authority; but I tell you I sit here as the interpreter of the laws and a distributor of justice; and were the whole House of Commons in your belly I would not stir one foot." This was noble; but it should be remembered that this noble language, if true, was used after the Judges had been emancipated, and held their office during good behaviour. English history before this era is replete with examples of the creeping creatures known as Judges, who crouched at the feet of their wilful and too often capricious master! This dictatorial temper is nowhere more completely illustrated than in the instance of Queen Elizabeth and the unhappy Bishop Cox, for which we have the authority of Hallam in his Constitutional History. The Bishop, it seems, on one occasion was unwilling to obey the commands of the Queen, interposing a scruple of reluctance for conscience's sake, when he received from her Majesty the following characteristic letter: "Proud Prelate, you know what you were before I made you what you are; if you do not immediately comply with my request, by GI will unfrock you;" and the request was complied with! As it was in the Church so it was in the State. The Judges holding at the pleasure of the Sovereign were made to feel the same dictatorial temper at the expense of all independence and all honest judgment. It was not until the time of Charles I, as we are informed, when the Star Chamber was abolished, that this fickle Sovereign informed Parliament that he had granted that the Judges should thereafter hold their places dum bene se gesserint; and Hume says in his History of England that this grant of the Judges' patents during good behaviour, was made at the instance of Parliament, and, as may well be supposed, did not originate with the insincere and changeful Monarch himself. We are informed that in the Settlement Act of William III it was established as a limitation upon the Crown that the commissions of the Judges should run quamdiu bene se gesserint. Still the English Judges, notwithstanding the form of their commission, continued to consider that the decision of the Crown vacated their seats; and it was not until the time of George III that this supposed imperfection was removed by Statute, remarkably enough at the recommendation of that weak and wilful but virtuous old King. The sources of information are not at hand enabling us to speak with certainty as to the Judicial tenure under the Royal Government of the Colonies. That many of the Colonial Judges who held Royal patents were ignorant and worthless beyond description there can be no doubt. Hence the subserviency of the Judges formed one of the principal features in Colonial resistance. Hence, too, the independence of the Judges at an early day, as tending to social well-being and the safety of person and property, lay deep in the hearts of the embryo American Republics, and became completely interwoven with their notions of rational liberty; and hence we find early provisions in the organic laws of the States that the Judicial Office should be held during good behaviour-the thing was then considered wise in principle and safe in practice. We cannot formulate the idea better than Chancellor Kent has expressed it: "In monarchical governments," says he, "the independence of the judiciary is essential to guard the rights of the subject from the encroachments of the Crown; but in Republics it is equally salutary in protecting the constitution and laws from the encroachments and tyranny of faction." The framers of the Constitution of the United States felt this great truth, and in creating a judicial system for a new government they embodied the principle in the organic law: 1st. "That the Judges, both of the Superior and Inferior Courts, shall hold their offices during good behaviour;" and 2d. "Shall at stated periods receive for their services a compensation, which shall not be diminished during their continuance in office." This was wise; and its wisdom has been illustrated in the history of the Republic. It has served as a breakwater against popular pressure; the judiciary of the United States has on more than one occasion felt the clamor and the clash of party; and heretofore it has been bold enough and independent enough in the main to resist the encroachments of party power. We may recall the courage and independence of Chief Justice Taney in the vindication of the Writ of Habeas Corpus in the face of military dictation; and all will remember the first judgment of the Supreme Court declaring the unconsti tutionality of the legal tender Acts. The fact that the judiciary was overborne by the stronger arm of other branches of the government was the misfortune of the country and not the fault of the Judges. With these instances before us, it is by no means difficult to see what must have been the unsteady shifting and unreliable character of the Courts of the United States, and of what untrustworthy material the Courts would have been com posed had they not been protected by these salutary provisions of the constitution. In the course of a century we have had practically but four Chief Justices-Marshall, Taney, Chase and Waite-each having a large and long judicial experience in the administration of justice; each bringing age, great learning, high character and personal dignity into that angust tribunal. Can it be safely affirmed that such men would have accepted the position had the constitution limited their term of office to four, or even six, years; or can human wisdom conjecture who and what the Judges of that great Court might not have been in point of character or learning. Our limits will not permit us to enlarge upon the probable consequences of so great a disaster. Turning then to the judiciary of the several States, we remark that in the beginning of their history each of the original thirteen States seemed anxious carefully to protect its judiciary against the fickle changes or tyranny of the appointing power by providing that the Judges should hold their offices during good behaviour. It may be that the State of Georgia was an exception, and we write under correction as to that fact, in the judicial history of this great Commonwealth. The State of South Carolina at an early day hastened in her first constitution (26th March, 1776,) to ordain "That all judicial officers" (other than Justices of the Peace) "shall be chosen by ballot jointly by the General Assembly and Legislative Council, and except the Judges of the Court of Chancery, commissioned by the President and Commander-in-Chief during good behaviour, but shall be removed on address of the General Assembly and Legislative Council." Such was the first organic law of the State; and the reason, we suppose, why the Judges of the Court of Chancery were excluded may be found in the fact that Chancery powers had, as early as 1721, been exercised by the Governor and a majority of the Council, the judicial office of Chancellor being then regarded as quasi political, which, in fact, it is in England, as applied to the Lord Chancellor down to the present day. This system, however, did not long continue in South Carolina, for by the constitution of 1790, it was ordained "That the judicial power shall be vested in Superior Courts of Law and Equity. The Judges of each shall hold their commissions during good behaviour; and shall at stated times receive a compensation for their services, which shall neither be increased nor diminished during their continuance in office." We venture the opinion that this provision was an improvement on the Constitution of the United States. The subject widens as we proceed, but our time is limited. Let it suffice to say that in the course of time, after the organization of the State government, the encroaching vox populi in many of the States began to creep like a rising flood upon these ancient landmarks. The Sovereign "People" began slowly and cautiously to grasp and re-establish by degrees that vicious control over the independence of the judiciary, which had been such a fruitful source of mischief when lodged in the hands of the Sovereign "King." By what process should "King Numbers," now in turn having the power, sap the independence of the Courts, and as Sovereign Master dictate to timid Judges? The process seemed easy, and was unhappily too often pointed out by designing demagogues within the profession. Curtail, it was suggested, their terms of office, and cut down their salaries to just a little above the starving point. To the credit of Massachusetts be it said, she steadily and stoutly resisted the popular current and has successfully maintained the lise tenure of her Judges. And alongside of Massachusetts stood South Carolina, until unhappy events in the history of the latter State overwhelmed her and her judiciary for a time in a common ruin. In the meantime great changes were wrought elsewhere under the evil influences of ultra-democracy and the teachings of noisy demagogues. These evil counsels bore fruit. In the great State of New York, distinguished for her wealth and her enterprise, the term of the Judge was limited to the age of sixty years, and that illustrious Magistrate, Chancellor Kent, had to retire in the prime of his judicial life from the Bench which he adorned; and of him it might be said, as was said of the elder Tiberius Gracchus, after he had been once Censor, twice Consul, and had twice triumphed, that "he was more renowned and esteemed for his virtues than his honors." Chancellor Kent lived twenty-five years after he had been retired, and during these years he wrote his celebrated "Commentaries." Well did the lamented Hugh S. Legaré remark of this great work, that if it was great as a commentary upon the law, it was greater still as a commentary upon the folly of the New York system. Under the influence of this feeling of unrest, and this unhappy desire for change, |