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INDEPENDENCE OF THE JUDICIARY.*
REGRETS are vain for what is past; yet I hardly know how it has been thought to be a regular course of proceeding to go into committee on this subject, before taking up the several propositions which now await their final readings on the president's table. The consequence is, that this question comes on by surprise. The chairman of the select committee is not present; many of the most distinguished members of the convention are personally so situated as not to be willing to take part in the debate, and the first law officer of the government, a member of the committee, happens at this moment to be in a place (the chair of the committee of the whole) which deprives us of the benefit of his observations. Under these circumstances, I had hoped the committee would rise. It has, however, been determined otherwise, and I must therefore beg their indulgence while I make a few observations.
As the constitution now stands, all judges are liable to be removed from office by the governor, with the consent of the council, on the address of the two houses of the legislature. It is not made necessary that the two houses should give any reasons for their address, or that the judge should have an opportunity to be heard. I look upon this as against common right, as well as repugnant to the general principles of the government. The commission of the judge purports to be, on the face of it, during good behavior. He has an interest in his office. To give an authority to the legislature to deprive him of it, without trial or accusation, is manifestly to make the judges depend. ent on the legislature.
* Remarks made on the 30th of December, 1820, in the Convention, upon a Resolution to make Judicial Officers removable by the Governor and Council upon the Address of two thirds (instead of a majority) of each Branch of the Legislature.
The question is not what the legislature probably will do, but what they may do. If the judges, in fact, hold their offices only so long as the legislature see fit, then it is vain and illusory to say that the judges are independent men, incapable of being influenced by hope or by fear. The tenure of their office is not independent. The general theory and principle of the government are broken in upon, by giving the legislature this power.
The departments of government are not equal, coördinate, and independent, while one is thus at the mercy of the others. What would be said of a proposition to authorize the governor or judges to remove a senator or member of the House of Representatives from office? And yet, the general theory of the constitution is to make the judges as independent as members of the legislature.
I know not whether a greater improvement has been made in government than to separate the judiciary from the executive and legislative branches, and to provide for the decision of private rights in a manner wholly uninfluenced by reasons of state, or considerations of party or of policy. It is the glory of the British constitution to have led in the establishment of this most important principle. It did not exist in England before the Revolution of 1688, and its introduction has seemed to give a new character to the tribunals. It is not necessary to state the evils which had been experienced in that country from dependent and timeserving judges. In matters of mere property, in causes of no political or public bearing, they might perhaps be safely trusted; but in great questions concerning public liberty or the rights of the subject, they were, in too many cases, not fit to be trusted at all. Who would now quote Scroggs, or Saunders, or Jeffreys, on a question concerning the right of the habeas corpus, or the right of suffrage, or the liberty of the press, or any other subject closely connected with political freedom ? Yet on all these subjects the sentiments of the English judges since the Revolution, of Somers, Holt, Ireby, Jekyl, and others like them, are, in general, favorable to civil liberty, and receive and deserve great attention whenever referred to. Indeed, Massachusetts herself knows, by her own history, what is to be expected from dependent judges. Her own charter was declared forfeited, without a hearing, in a court where such judges sat.
When Charles the Second, and his brother after him, attempted the destruction of chartered rights, both in the kingdom
and out of it, the mode was by judgments obtained in the courts. It is well known, that after the prosecution against the city of London was commenced, and while it was pending, the judges were changed; and Saunders, who had been consulted on the occasion, and had advised the proceeding on the part of the crown, was made chief justice for the very purpose of giving a judgment in favor of the crown; his predecessor being removed to make room for him. But since the Revolution of 1688, an entire new character in this respect has been given to English judicature. The judges have been made independent, and the benefit has been widely and deeply felt. A similar improvement seems to have made its way into Scotland. Before the union of the kingdoms, it cannot be said that there was any judicial independence in Scotland; and the highest names in Scottish jurisprudence have been charged with being under influences which could not, in modern times, be endured. It is even said, that the practice of entails did not extensively exist in Scotland till about the time of the reigns of the last princes of the Stuart race, and that it was then introduced to guard against unjust forfeitures. It is strange, indeed, that this should happen at so late a period, and that a most unnatural and artificial state of property should be owing to the fear of dependent judicatures. I might add here, that the heritable jurisdictions, the greatest almost of all evils connected with the administration of justice, were not abolished in Scotland till about the middle of the last century; so slowly does improvement make progress when opposed by ignorance, prejudice, or interest.
In our own country, it was for years a topic of complaint, before the Revolution, that justice was administered, in some of the Colonies, by judges dependent on the British crown. The Declaration of Independence itself puts forth this as a prominent grievance, among those which justified the Revolution. The British king, it declares, “ had made judges dependent on his own will alone, for the tenure of their offices.” It was therefore to be expected, that, in establishing their own governments, this important point of the independence of the judicial power would be regarded by the States. Some of them have made greater and others less provision on this subject; the more recent constitutions, I believe, being generally framed with the best guards for judicial independence.
Those who oppose any additional security for the tenure of judicial office have pressed to know what evil has been experienced, what injury has arisen, from the constitution as it is. Perhaps none; but if evils probably may arise, the question is, whether the subject be not so important as to render it prudent to guard against that evil. If evil do arise, we may be sure it will be a great evil; if this power should happen to be abused, the consequences would be most mischievous. It is not a sufficient answer to say that we have as yet felt no inconvenience. We are bound to look to probable future events. We have, too, the experience of other States. Connecticut, having had judges appointed annually, from the time of Charles the Second, in the recent alteration of her constitution has provided, that hereafter they shall hold their office during good behavior, subject to removal on the address of two thirds of each house of the legislature. In Pennsylvania, the judges may be removed, “for any reasonable cause," on the address of two thirds of the two houses. In some of the States, three fourths of each house are required. The new constitution of Maine has a provision, with which I should be content; which is, that no judge shall be liable to be removed by the legislature till the matter of his accusation has been made known to him, and he has had an opportunity of being heard in his defence. This seems no more than common justice; and yet it is much greater than any security which at present exists in the constitution of this Commonwealth. It will be found, if I mistake not, that there are not more than two or three, out of all the States, which have left the tenure of judicial office at the entire pleasure of the legislature.
It cannot be denied, that one great object of written constitutions is to keep the departments of government as distinct as possible; and for this purpose to impose restraints designed to have that effect. And it is equally true, that there is no department on which it is more necessary to impose restraints than the legislature. The tendency of things is almost always to augment the power of that department, in its relation to the judiciary. The judiciary is composed of few persons, and those not such as mix habitually in the pursuits and objects which most engage public men. They are not, or never should be, political men. They have often unpleasant duties to perform
and their conduct is often liable to be canvassed and censured, where their reasons for it are not known, or cannot be understood. The legislature holds the public purse. It fixes the compensation of all other departments; it applies, as well as raises, all revenue. It is a numerous body, and necessarily carries along with it a great force of public opinion. Its members are public men, in constant contact with one another, and with their constituents. It would seem to be plain enough, that, without constitutional provisions which should be fixed and certain, such a department, in case of excitement, would be able to encroach on the judiciary. Therefore is it, that a security of judicial independence becomes necessary; and the question is, whether that independence be at present sufficiently secured.
The constitution being the supreme law, it follows of course, that every act of the legislature, contrary to that law, must be void. But who shall decide this question? Shall the legislature itself decide it? If so, then the constitution ceases to be a legal, and becomes only a moral restraint on the legislature. If they, and they only, are to judge whether their acts be conformable to the constitution, then the constitution is admonitory or advisory only; not legally binding; because, if the construction of it rest wholly with them, their discretion, in particular cases, may be in favor of very erroneous and dangerous constructions. Hence the courts of law, necessarily, when the case arises, must decide upon the validity of particular acts. These cases are rare, at least in this Commonwealth ; but they would probably be less so, if the character of the judiciary were less respectable than it is.
It is the theory and plan of the constitution to restrain the legislature, as well as other departments, and to subject their acts to judicial decision, whenever it appears that such acts infringe constitutional limits. Without this check, no certain limitation could exist on the exercise of legislative power. The constitution, for example, declares, that the legislature shall not suspend the benefit of the writ of habeas corpus, except under certain limitations. If a law should happen to be passed restraining personal liberty, and an individual, feeling oppressed by it, should apply for his habeas corpus, must not the judges decide what is the benefit of habeas corpus intended by the constitution, what it is to suspend it, and whether the acts of