History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle FramersCurtis, George Ticknor
History
History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle Framers
Curtis, George Ticknor
Constitutional history -- United States
Mr. Justice Story has taken substantially the same view of
the subject. He says: "The object of the act of Parliament
was to secure the judges from removal at the mere pleasure of
the crown; but not to render them independent of the action
of Parliament. By the theory of the British constitution,
every act of Parliament is supreme and omnipotent. It may
change the succession to the crown, and even the very
fundamentals of the constitution. It would have been absurd,
therefore, to have exempted the judges alone from the
general jurisdiction of this supreme authority in the realm.
The clause was not introduced into the act for the purpose of
conferring the power on Parliament, for it could not be taken
away or restricted, but simply to recognize it as a
qualification of the tenure of office; so that the judges
should have no right to complain of any breach of an implied
contract with them, and the crown should not be deprived of
the means to remove an unfit judge whenever Parliament
should, in their discretion, signify their assent."
(Commentaries on the Constitution, Vol. II. § 1623.)
By describing it as a "qualification of the tenure of
office," the learned commentator probably did not mean that
the power was intended to be recognized as a power to remove
judges against whom no official misconduct or incapacity
could be charged; for the context shows that he was speaking
of the removal of "unfit" judges as a power that it was
proper to recognize and regulate. If he intended to lay it
down as a complete and actual qualification of the tenure of
good behavior, it must have been upon the theory to which he
refers, upon which an act of Parliament can do anything,
either with or without reason. Upon this theory all the
commissions of all the judges in the realm may be vacated
without inquiry into their fitness or unfitness. But if the
true view of the subject is, that the _King's commission_,
which runs _quamdiu se bene gesserit_, cannot be determined
when the crown alone decides that the good behavior has
ceased, or become impracticable, but may be determined when
the whole legislative power has so decided, then in one sense
it _is_ a qualification of the commission; because the latter
emanates from the crown, but after it has issued, it is to be
superintended by Parliament _and_ the crown.
Public-domain text, read in full here on John Shaqi.
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