Concerning JusticeEmery, Lucilius A. (Lucilius Alonzo)
Philosophy
Concerning Justice
Emery, Lucilius A. (Lucilius Alonzo)
Courts -- United States; Justice; Justice, Administration of
As a consequence of this experience with a judiciary dependent on the
governing power for the tenure and maintenance of its judges, the
Colonies when they set up independent governments of their own
provided a fixed tenure for their judges in every instance but one.
Connecticut in its first constitution made the tenure during good
behavior, as did Delaware, Maryland, Massachusetts, New Hampshire,
North Carolina, South Carolina, and Virginia. Pennsylvania at first
fixed the tenure at seven years, but in 1790 changed it to good
behavior. The same tenure was fixed for the federal judges in the
Federal Constitution. In some instances also, further provision was
made for the independence of the judges by forbidding the diminishing
of their salaries during their term of office.
The people of Massachusetts, which had been the most harried of the
Colonies, declared emphatically the necessity for an independent
judiciary. Article XXIX of the Massachusetts Declaration of Rights
adopted in 1780 is as follows: "It is essential to the preservation
of every individual, his life, liberty and property and character
that there be an impartial interpretation of the laws, and
administration of justice. It is the right of every citizen to be
tried by judges as free, impartial and independent as the lot of
humanity will admit. It is, therefore, not only the best policy but
for the security of the rights of the people and of every citizen that
the judges of the supreme judicial court should hold their offices so
long as they behave themselves well; and that they should have
honorable salaries ascertained and established by standing laws." New
Hampshire, with a similar experience, adopted the same language in
Art. XXXV of her Bill of Rights. The Maryland Declaration of Rights
of 1776 contains this article: "Art. XXX. That the independency
and uprightness of the judges are essential to the impartial
administration of justice and a great security to the rights and
liberties of the people; wherefore the chancellor and judges ought
to hold commissions during good behavior."
It is true that in most of the states the official tenure of the
judges has since been reduced to a more or less brief term of years.
This fact is only another instance of the tendency of the governing
power to lower if not remove all barriers set up against it for the
protection of the individual. Majorities as well as absolute kings
like their own way. The change where made may have given majorities
greater freedom to enforce their will upon individuals, but it has not
increased confidence in the integrity of the judges nor made them more
firm to ascertain and declare only the truth.
Public-domain text, read in full here on John Shaqi.
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