case of Justice Lamar had death not overtaken him before Congress could act.

Notwithstanding the provisions thus made by the act of 1869 for the voluntary retirement on full pay of federal judges, some incumbents have retained their places after they have lost the vigor necessary to successful judicial service. Attorney-General McReynolds in 1913 thought the evil which resulted from the presence of superannuated judges upon the bench so great as to require the attention of Congress. He recommended that where a federal judge does not retire voluntarily at the age of seventy, after ten years' service, it shall be the duty of the President to appoint another judge, who shall preside over the court and have precedence over the older judge. This, he thought, would insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court."9

The recommendation of Attorney-General McReynolds was reaffirmed in 1914 and 1915 by his successor, Mr. Gregory, and became the basis of a bill introduced in Congress by 69 64th Cong., 1st Sess., Senate Rpt. 21.

Senator Hoke Smith." The proposal of Mr. Smith sought to give the President discretionary power, "when in his opinion the public good requires," to appoint a new judge to take up the duties of a judge who has become too aged or infirm to perform useful service. The measure was at once challenged by the Republican members of the Senate as a partisan attempt "to create seventeen new judgeships for deserving Democrats. Whatever may be the fate of this and other proposals to place age limits upon the federal judges, the committee investigation has apparently shown that there are more superannuated judges upon the bench than was generally supposed."1

The marked differences in the tenure and mode of selection of State and federal judges has, of course, had a great influence in determining the character of the two judicial systems. It has frequently been assumed that the State courts are much inferior to those of the nation. That this has not always been

70 Record, 64th Cong., 1st Sess., pp. 60, 3154-3158. This proposal affects only the circuit and district court judges, the justices of the supreme court remaining untouched.

71 See also Taft: Popular Government, pp. 158-161.

true has been a matter of some surprise to European observers of our political institutions. The greater importance which attaches to a federal place would lead one to look for the ablest men in the service of the nation. But the federal judiciary has set a standard to which public opinion has compelled the State courts to conform. Neither inefficiency in the administration of the law nor any lapse from judicial dignity will long be tolerated in a community whose people have an honest interest in their government. The influence of public opinion goes far to promote the success of the judiciary in the American States."

72

72 Nerincx: L'Organisation Judiciare aux États-Unis, pp. 414-421; Bryce: American Commonwealth, i, pp. 546-549.

CHAPTER V

CONCLUSIONS

The independence of the judiciary so necessary to the success of government in the United States requires that this department shall rest on the sure basis of the Constitution. Security of tenure, freedom from legislative and executive control and from merely temporary political changes are considerations of great importance. In England the independence of the judicial office is secured because the judges have been brought under the direct control of the Parliamentary sovereignty. They are amenable for any misconduct to the sovereign and may be controlled by whatever procedure Parliament sees fit. The sovereignty of Parliament being undisputed, the judges have no power to stay its judgments. Even though an act of Parliament be against common reason or abridge the fundamental rights of Englishmen, no power vests in the courts to set it aside as

null and void. "True it is," declared Blackstone, "that what the Parliament doth, no authority upon earth can undo.""

In the United States, however, government has been established upon a basis of a separation of powers. Sovereignty rests with the people who delegate the functions of government to three co-ordinate and independent bodies. At the same time the function, not of controlling the other departments of government, but of defining the separation and limits of their power has devolved upon the judiciary, and "this function and duty of the judiciary distinguishes the American system from all other systems of government. The perpetuity of our institutions and the liberty which is enjoyed under them depend in no small degree upon the power of the judiciary to declare null and void all legislation that is clearly repugnant to the supreme law of the land." The judiciary in the United States does not sit as the full representative of the sovereignty but shares with the other branches of the government the exercise of powers delegated to it and restricted by the

1 Commentaries, i, p. 161.

2 Smyth v. Ames, 169 U. S. 528.