UNIV. OF

CHAPTER·I:

ESTABLISHMENT OF A FEDERAL JUDICIARY

The judiciary in the United States has become an institution of paramount importance, enjoying a security of tenure and a scope of influence elsewhere unknown among modern governments. It has been said that in this country we have no law until the courts have had opportunity to pass upon the validity of legislative enactments and have admitted them to be in harmony with the Constitution. Yet this great power lodged in the courts flows from fundamental principles and is, indeed, a cornerstone of American government.

That the courts of the United States may be competent to exercise the great functions laid upon them, involving as they do a check upon legislative action, judicial independence is peculiarly essential. Such independence demands that the judges shall not only

be free from executive and legislative control, but that they shall be free from the political vagaries of the people themselves, in order that within. their sphere of government the courts may move unhindered and without fear. To secure such conditions has been the conscious effort of civil polity throughout the history of our nation.

I

The colonial judiciary had been the subject of bitter complaint. One of the grievances cited in the Declaration of Independence against George III was that "he has made judges dependent upon his will alone for the tenure of their offices and the amount and payment of their salaries." This, moreover, was contrary to the practice in England where one of the reforms of the Long Parliament had been the establishment of judicial commissions during good behavior.1 The same tenure had been granted the colonial judges down to 1761 when the King, acting upon the advice of the Board of Trade, altered the commissions to a tenure during the royal pleasure on the ground that 1 Cobbett: Parliamentary History, ii, p. 702.

2

the state of learning in the colonies was so low that it was with difficulty that men could be found competent to administer the judicial offices. In August, 1772, the King, finding that the want of a fixed allowance in the colonies for the administration of justice made judicial office very unattractive and prevented the establishment of an effective judiciary system, granted a salary to the judges of the superior court of Massachusetts, forbidding them to receive the customary grants from the House of Representatives, and the Council and Governor. This action of the King aroused much opposition, and a discussion in the public press followed in which John Adams in a series of essays condemned the subjection of the colonial judiciary to the crown. Popular resentment rose to such heights, indeed, that an attempt was made in 1774 to impeach Chief Justice Oliver before the assembly, and grand jurors and petit jurors refused to take their oaths in his court.1

3

2 N. C. Colonial Records, vi, pp. 582-586. 3 Adams: Writings, iii, p. 513 et seq.

4 Ibid., i, pp. 315-317.

II

As a result of this experience, the colonists embarked upon the business of establishing judicial departments in their first State constitutions with no little concern. In theory it was universally agreed that the judges must be independent, and to this end the usual tenure in the early constitutions was during good behavior. This was the tenure provided in the constitutions of Massachusetts, Delaware, Maryland, Virginia, North Carolina, South Carolina, and in those drawn up in New Hampshire and Vermont. New York had the same tenure, except that there the judges retired at the age of sixty years." In Pennsylvania and New Jersey the appointments were for seven years.' In Connecticut and Rhode Island, where they did not frame constitutions but continued their charter governments, the judges were still appointed annually by the legislature. In Georgia the people elected their judges annually.

8

5 Thorpe: Charters and Constitutions, pp. 564, 1689, 1905, 2466, 2791, 3246, 3746, 3817.

6 Ibid., p. 2634.

7 Ibid., pp. 2596, 3088.

8 Horace Davis: American Constitutions, J. H. U. Studies, Series 3, p. 507.

But the principle of legislative supremacy, which in 1776 was so dominant both in England and in the colonies, caused much influence over the judiciary to be exercised by the assemblies. In most of the States the legislature controlled the appointment of the judges. In Connecticut, Rhode Island, New Jersey, Virginia, North Carolina, and South Carolina the legislature appointed directly." In New Hampshire, Massachusetts, Pennsylvania, and Maryland the appointments were made by the Governor and Council, while in New York the Governor acted with a special Council of Appointment.10 Judicial appointments in Delaware were made by the legislature and the executive.11

On the other hand, the theoretical basis on which the revolutionary state governments rested was a separation of the powers of government as laid down by Montesquieu, and on paper this doctrine was well defined. In practice, however, the case was very different. The Massachusetts constitution of 1780 declared that:

9 Thorpe: pp. 533, 2596, 2791, 3218, 3246, 3817.

10 Ibid., p. 2633.

11 Ibid., p. 564.