CHAPTER V

THE FEDERAL JUDICIARY

No part of our Constitution has received less adverse criticism than that which relates to the powers and tenure of the judiciary. Constitutional writers have almost without exception given it their unqualified approval, claiming that its wisdom is established beyond question by the political experience of the English-speaking race. To express a doubt as to the soundness of this view is to take issue with what appears to be the settled and mature judgment of the American people.

Moreover, the authority of the courts is "the most vital part of our government, the part on which the whole system hinges." This is true for the reason that the Federal judiciary is not only the most important of our constitutional checks on the people, but is also the means of preserving and enforcing all the other checks. To enable the Federal judges to exercise these important and far-reaching powers, it was necessary to make them independent by giving them a life tenure. This provision was in perfect harmony

1 A. Lawrence Lowell, Essays on Government, p. 40.

with the general plan and purpose of the Constitution, a document framed, as we have seen, with a view to placing effectual checks on the power of the majority. As a means to the end which the framers of the Constitution had in view, the independence of the judiciary was an admirable arrangement.

Hamilton says: "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 their judicial offices, in point of duration; 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 affords an illustrious comment on the excellence of the institution."1

This is quoted with approval by Story in his Commentaries on the Constitution and this same line of argument has been followed by legal and political writers generally. But with all due respect for the eminent authorities who have placed so much stress on the political experience of other countries, we may venture to ask if the parallel which they have assumed really exists. Is the use made of this argument from analogy warranted by the facts in the case? Are we sure that the political experience of England proves

the wisdom of an independent judiciary? This can best be answered by referring to the circumstances which gave rise to the doctrine that the judges should be independent.

In England formerly the Crown appointed the judges and could remove them. This power of appointment and removal placed the courts under the control of the King and made it possible for him to use them as a means of oppressing the people. A striking example of the way in which this power could be abused was seen in the career of the notorious Jeffreys, the pliant judicial tool of the cruel and tyrannical James II. To guard against a repetition of this experience it was urged that the judges be made independent of the King. This was done in 1701 by the Act of Settlement which provided that judges should be removed only on an address from Parliament to the Crown. This deprived the King of the power to remove judges on his own initiative and virtually gave it to Parliament. The object of this provision was to place a check in the interest of the people upon the arbitrary power of the Crown. It made the judges independent of the King, but at the same time established their responsibility to Parliament by giving the latter the right to demand their removal.1

1 "The object of the Act of Parliament was to secure the judges from removal at the mere pleasure of the Crown; but not to render them independent of the action of Parliament." Story, Commentaries on the Constitution, Sec. 1623.

The statement so often made and so generally believed that the American judicial system was modeled after that of Great Britain will not bear investigation. English judges are not and never have been independent in the sense in which that word is used with reference to the Federal judiciary of the United States. In making the judges independent of the King, Parliament had no intention of leaving them free to exercise irresponsible powers. To have made them really independent would have been to create a new political power of essentially the same character and no less dangerous than the power of the King which they were seeking to circumscribe.

"In England," says Jefferson, "where judges were named and removable at the will of an hereditary executive, from which branch most misrule was feared, and has flowed, it was a great point gained, by fixing them for life, to make them independent of that executive. But in a government founded on the public will, this principle operates in an opposite direction, and against that will. There, too, they were still removable on a concurrence of the executive and legislative branches. But we have made them independent of the nation itself."1

There is, as a matter of fact, nothing in the political experience of Great Britain to support the belief in an independent judiciary. The 1 Works (Ford's Edition), Vol. X, p. 38.

judges there do not constitute a co-ordinate branch of the government and can not enforce their opinion in opposition to that of Parliament. Instead of being independent, they are strictly dependent upon Parliament whose supreme power and authority they are compelled to respect.

This being the case, it is hardly necessary to observe that the courts in England do not exercise legislative functions. The power to decide upon the wisdom or expediency of legislation is vested exclusively in Parliament. The courts can not disregard a statute on the ground that it is in conflict with the Constitution, but must enforce whatever Parliament declares to be the law. As the judiciary under the English system has no voice in the general policy of the state, the tenure of judges during good behavior carries with it no power to thwart the popular will.

The provision in the Constitution of the United States for the life tenure of a non-elective judiciary serves, however, an altogether different purpose. It was designed as a check, not upon an irresponsible executive as was the case in England, but upon the people themselves. Its aim was not to increase, but to diminish popular control over the government. Hence, though professing to follow the English model, the framers of the Constitution as a matter of fact rejected it. They not only gave the Federal judges a life tenure, but made that tenure unqualified and absolute, the