Concerning JusticeEmery, Lucilius A. (Lucilius Alonzo)
Philosophy
Concerning Justice
Emery, Lucilius A. (Lucilius Alonzo)
Courts -- United States; Justice; Justice, Administration of
Nevertheless, despite the lessons of history and the reasons contra,
it is proposed in this twentieth century that the tenure of the judges
shall again be during pleasure only,--this time during the pleasure of
the majority of the electorate. The proposition is not stated so
baldly by its proposers. They phrase it as the right of the people to
remove or recall unsatisfactory public servants, whether judges, or
governors, or other officials. They propose that at the request of a
certain small percentage of the electorate, setting forth their
dissatisfaction with a judge, he may be removed by a majority of the
voters. As precedents for their proposal they point triumphantly to
the provision of the British Act of Settlement that judges should be
removable by the crown upon the request of both Houses of Parliament,
and to similar provisions in many of our state constitutions.
Of course, there should be lodged somewhere the power to remove judges
proven to be unworthy of their high office, or incapable of performing
its high duties, but it should be lodged in a body of men before whom
the accused judge can appear in person or by counsel, hear the
complaints and face the witnesses against him, and adduce evidence and
argument in reply,--and who can on their part see the witnesses and
hear the arguments before deciding. That was the opinion of the
British Parliament in the few cases presented to them, and the state
legislatures in this country have generally entertained the same
opinion. It was also held by Parliament that the address for removal
should state the reasons therefor. In 1855 Governor Gardner of
Massachusetts declined to remove a judge of probate on address by the
legislature because no sufficient grounds were stated in the address.
He said that in every instance then on record full reasons for removal
had accompanied the address.
The constitutional provision for removal by address evidently was not
designed to lessen the impartiality and independence of the judge by
subjecting him to removal at the mere will of the executive and
legislature, but that he might be removed for corruption, neglect of
duty, incapacity, immorality, or other disgraceful conduct, after
notice, hearing, and deliberation. For the executive and legislature,
or even the majority of the people, to remove a judge because they do
not like his opinions as to what the constitution requires or forbids
them to do, would destroy the independence of the judges and thus
deprive the citizen of all security for his rights and liberties under
the constitution,--would be despotism.
Public-domain text, read in full here on John Shaqi.
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