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
By both the Federal and State Constitutions, in the United States, the
judiciary has always been regarded as an equal and co-ordinate branch of
government, with the legislative and executive. It was accordingly held,
within the past century, that neither the President nor the Governor
could remove a judge, during the term of office for which he was elected
or appointed,[59] but the only way to remove or recall a judge, was by
impeachment for criminal or corrupt conduct.[60]
It is thus a serious question whether the experience of the past century,
in the United States, has vindicated the method followed in so many
states, of selecting judges, for a moderate term, by an elective system,
subject to impeachment for positive misfeasance in office. Many protests,
other than the growing demand for a popular recall of judges, may be
directly or indirectly traced to this method of selecting judges and as
the demands and protests come from states where the tenure to office is
for the shorter terms, it seems that this general policy, when applied
to the judiciary, is condemned both by the examples of history and the
practice and experience of the past century, in the United States.
There is little doubt but that the great Chief Justice Marshall would
have been recalled, after his decision against the Government, in the
trial of Aaron Burr, for treason, if the recall of judges by popular
vote had then obtained, in the United States. The power of Jefferson’s
administration was used, unsparingly, to obtain Burr’s conviction, and
he was already convicted in the forum of public sentiment, for the
populace believed him guilty. The Chief Justice, however, firm in the
consciousness of right, with the true judicial poise, disdained, with
equanimity, the clamor of the populace and refused to sacrifice the
individual, to appease the public wrath.[61] No wonder that through the
genius of this patriot, the Court he presided over was “placed upon a
pedestal of imperishable granite and has become the admiration of the
publicists throughout the civilized world.”[62]
If such a system had then obtained, the country would have been denied
the genius and ability of this just man, for he would never have been
responsible to the fickle flames of a vacillating public sentiment for
the correctness of his opinions. Addressing himself upon the necessity
for an absolutely independent judiciary, Chief Justice Marshall said:
“It is to the last degree important that he should be rendered
perfectly and completely independent with nothing to control
him but God and his conscience.”
Public-domain text, read in full here on John Shaqi.
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