Legal antiquities : $b A collection of essays upon ancient laws and customsWhite, Edward J. (Edward Joseph)
History
Legal antiquities : $b A collection of essays upon ancient laws and customs
White, Edward J. (Edward Joseph)
Criminal law -- History; Law -- History; Law, Ancient; Punishment -- History
This, by the gentleman who reported the bill in Congress for the
organization of the judicial department of the general Government,
demonstrates that those who formed our Government and framed our
Constitution, realized not only that the judgment seat should be
dominated by “the cold neutrality of an impartial judge,” but that this
essential prerequisite to the administration of justice, could not be
obtained by a cringing judiciary, depending upon a vacillating public
sentiment, as an index to its opinions, but would be effectuated only
through the untrammeled judgment of an independent court.
Next to Oliver Ellsworth, the man most active in the establishment of our
Federal Judiciary, was perhaps Alexander Hamilton, and upon the reasons
for an absolutely independent judiciary, this great lawyer, soldier and
patriotic statesman, observed:
“This independence of the judges is equally requisite to
guard the Constitution and the rights of individuals from
the effects of those ill-humors which the arts of designing
men or the influence of particular conjunctures sometimes
disseminate among the people themselves and which, though they
speedily give place to better information, and more deliberate
reflection, have a tendency, in the meantime, to occasion
dangerous innovations in the Government and serious oppressions
of the minor party in the community.”[54]
It was also clearly the object of the original thirteen colonies to
remove the judiciary from politics and thereby establish the independence
of the State Judiciary, as well as that of the Federal Government,
for the Constitutions of each of the original colonies provided for
an appointive judiciary.[55] Georgia alone set the bad example of
providing for an elective judiciary, by direct vote of the people, for
a short term, a practice that historians believe has caused much of the
degradation and humiliation of the state courts, in the past century.[56]
In most of the other states in the United States, the medium was
selected, between the life tenure and the complete independence of the
judiciary upon the one hand, and the recall and disgrace of the judge,
without the formality of a trial, upon the other, and it was provided for
the election of judges, for short terms of office, subject to impeachment
by the legislative branch of Government, in cases of misfeasance in
office.[57]
In one state alone was the English method adopted of appointing the
judges for life, or during good behavior, although four other states have
the appointive judiciary, and it is not strange that in this one state
we find the strongest state court in the United States and the one whose
judgments are received by the various courts of the other states with the
highest degree of respect.[58]
Public-domain text, read in full here on John Shaqi.
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