AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR JUSTICE
For the judiciary to be in fact, as well as in theory, the protector
of the constitutional rights of the individual against the government,
and of the legal rights of the individual against the aggressions of
others, it should be made so far as possible free, impartial and
independent. The judges should have such security of tenure, and such
security and liberality of maintenance, that they will have no
occasion nor disposition to court the favor, or fear the disfavor, of
any individual or class however powerful or numerous, not even the
government itself. They should be made free to consider only what is
the truth as to the existing law or fact in question, uninfluenced by
any suggestions of what is demanded by prince, people, or individual,
or by any suggestion of consequent good or evil to themselves. This
proposition to my mind is so self-evident that quotations from eminent
philosophers cannot strengthen it.
The necessity of some independent tribunal between the governors and
the governed was recognized in republican Rome, where it was provided
that the persons of the tribunes should be inviolate, an immunity not
granted to any other officials. The medieval cities of Italy
frequently selected their judges from some other city that they might
be free from any connection with different local factions or
interests. When, however, the empire supplanted the republic in Rome,
and the free cities of Italy were made subject to despotic domination,
the independence of these tribunals was lost. History shows that those
possessing the governmental power have always been unwilling to
maintain an independent judiciary. The only countries today possessing
a judiciary with any considerable degree of independence are the
United Kingdom and some of its "Dominions beyond the seas" and our
own country. The need of it was seen in the experience of the people
of England and of the English Colonies in America under a judiciary
liable to be deprived of office or salary if its opinions were
displeasing to the crown.
Charles I assented to the Petition of Right and promised to observe
it, but no provision was made for any tribunal independent of the king
to determine whether his acts were in violation of any article of the
Petition. Consequently, when afterward in the matter of the tonnage
and poundage tax Parliament remonstrated against the imposition of the
tax as a violation of the royal promise in assenting to the Petition
of Right, the king abruptly ended the session and in his speech of
prorogation denied the right of Parliament to interpret the Petition
and asserted that it was for him alone to determine "the true intent
thereof." Again, the legality of the imposition by the king of the
"ship money" tax without the consent of Parliament was hopelessly
questioned. The king procured from the judges an opinion that he could
lawfully impose such a tax without awaiting the assent of Parliament,
when necessary for the defense of the kingdom, and that he was the
judge of the necessity and proper amount of the tax. But this was not
the opinion of an independent judiciary. The judges at that time could
be promoted, removed, or "recalled" at any time at the king's sole
pleasure, and they well knew the king's obstinate insistence in the
matter. Their opinion simply gave expression to the king's will, and
hence inspired no respect.
Finally, for want of an independent tribunal empowered to determine
authoritatively between king and subject "the true intent" of the
Petition of Right, the legal extent and limitation of the royal power,
the lawfulness of its exercise upon the subject in a given case, the
issues between them had to be submitted to the arbitrament of civil
war, with the result that the monarchical system of government was
overthrown. Its successor, an unchecked parliament, was no less
arbitrary in many of its acts, and was in turn overthrown and the
monarchy restored. The restored dynasty, however, obeying the impulse
of all possessors of governmental powers, soon began again to claim
and exercise autocratic power, to encroach upon the rights and
liberties thought to have been secured to the subject by the royal
assent to the Petition of Right and vindicated by successful
resistance, and also to suspend the operation of the laws at his
pleasure. Unfortunately again there was as yet no impartial,
independent tribunal in England to determine authoritatively the line
between the royal power and the specified rights of the subject. The
judges were still removable at the king's sole pleasure. James II did
not hesitate to use this power to obtain such opinions and decisions
as he desired. Preparatory to the trial of the Quo Warranto case
against the City of London to procure the forfeiture of its charter,
the king removed Chief Justice Pemberton and appointed in his place
the servile Saunders who had drawn the writ in the case and had
conducted all the proceedings in behalf of the crown as its counsel to
the stage where the case was ready for argument in the Court of King's
Bench. The case of the city was thereby made hopeless and the city
itself helpless. In the case of the "Seven Bishops," prosecuted for
libel in presenting to the king a petition for him to recall his order
for the reading in the churches his Declaration of Indulgence, he
seems to have felt tolerably sure of the court as it was already
constituted. Two able and learned justices, however, Holloway and
Powell, ventured the opinion that the petition was not libelous. They
were both promptly "recalled."
Again force had to be used to free the subject and maintain his
"rights and liberties" against the sovereign. James II was driven from
the country and William of Orange called to the throne. This time the
people in settling the new government through parliamentary action
went farther than before in the way of restraint upon the government
and took the necessary step to secure their rights and liberties. In a
new instrument, this time called a Declaration instead of a Petition,
they reiterated the rights of the subject as twice before they had
been formally asserted in the Magna Charta and the Petition of Right.
This instrument, known as the Declaration of Rights of 1688, was
presented to William and Mary, who solemnly engaged to observe and
maintain its provisions. Further still (and this was the new and
effective guaranty of the subject's rights), in the Act for the
settlement of the crown it was enacted by king, lords, and commons
that thereafter the judicial tenure of the judges of the courts should
be during good behavior. Since that time for more than two centuries
"the true intent" of the laws has been determined, not by king or
parliament or people, but by a judiciary made strong and independent.
There has been no need to resort to force to defend the legal rights
of the subject.
But this security for individual rights and liberties was not extended
to British subjects in America. After the Colonies had so increased in
population and wealth that they were deemed worth exploitation, the
government, among other means of controlling them, took over the
appointment of their judges, in many instances with a tenure during
the government's pleasure only. In the circular letter of
Massachusetts Bay Colony to the other Colonies in 1768 they are asked
to consider whether for the judges of the land not to hold their
commissions during good behavior and to have their salaries appointed
for them by the crown did not have a tendency to "endanger the
happiness and security of the subjects." One of the counts in the
indictment of July 4, 1776, against the king's government was that it
had made the colonial judges dependent on the king's will alone for
the tenure of their offices and the amount and payment of their
salaries.
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.
It is true also that in most states now the people have taken to
themselves directly the task of selecting men suitable for judges
instead of entrusting that important duty to the governor or
legislature, as was the practice in the early days of the republic.
I cannot think this has tended to secure better judges, though it may
have secured judges more subservient to majorities. Effectually to
guard the constitutional and legal rights of all alike, the judges
should possess what is called the legal mind and the judicial
temperament. They should be able and learned that they may appreciate
the real meaning, purpose, and scope of the constitution and statutes;
calm and equable in temperament that they may not be influenced by
sympathy, prejudice, or other emotions; strong and courageous in
character that they may resist all pressure other than fair argument.
To find the men possessing these qualities requires extensive and
protracted inquiry and patient consideration, such as are not and
cannot be exercised by the people directly. The task should be deputed
in the first instance to the head of the state, the chief executive.
He has the best means of ascertaining who possesses the requisite
qualifications in the greatest degree. He would feel that he alone was
responsible for a proper selection, and that feeling of responsibility
would tend to make him deliberate and painstaking in his choice. On
the other hand, if the original selection be entrusted to the
legislature or left with the people acting directly, individual
members would have a much lower sense of personal responsibility and
the individual members of the electorate scarcely any at all. True, in
those states where the judges are elected by the people directly,
excellent judges are often and perhaps ordinarily chosen, but I think
I state a truth in stating that upon the whole those courts composed
of judges with a long tenure and appointed by the executive stand
higher in public estimation and their opinions have greater weight.
Such courts are certainly a greater protection to those guilty of no
wrong, but who have been so unfortunate as to incur the displeasure of
an excited community.
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.
The principal argument for lessening the independence of the judges
and making them more subservient to the inconstant majority seems to
be that otherwise the judges will misuse their power and impede the
operation of statutes they do not themselves approve of. The argument
has little or no foundation in fact. Perhaps among the hundreds, if
not thousands, of cases of holding a statute unconstitutional a few
may seem to have been so decided because the judges thought them
unwise and oppressive. Some expressions in judicial opinions have been
unfortunate in that respect, but the courts everywhere in this
country, now if not at first, disclaim any such power. The same Chief
Justice Marshall, who had so convincingly stated the duty of the
judiciary to refuse effect to unconstitutional statutes, later in
_McCulloch_ v. _Maryland_, 4 _Wheat._ 316, disclaimed for the courts
all pretensions to any power to inquire into the necessity of any
statute, or in any way to interfere with the discretion of the
legislature. In strong and explicit language other courts have
disclaimed such pretensions. The Minnesota court in _State_ v.
_Corbett_, 57 _Minn._ 345, held that courts were not at liberty to
declare a statute unconstitutional because it is thought by them to be
unjust or oppressive, or to violate some natural, social, or political
right of the citizen, unless it can be shown that such injustice is
prohibited, or such rights protected, by the constitution. The
Pennsylvania court in _Com._ v. _Moir_, 199 _Pa. St._ 534, used this
language: "Much of the argument and nearly all the specific objections
advanced are to the wisdom and propriety and to the justice of the
statute and the motives supposed to have inspired its passage. With
these we have nothing to do. They are beyond our province and are
considerations to be adduced solely to the legislature." The court of
West Virginia in _Slack_ v. _Jacob_, 8 _W. Va._ 612, said: "That the
judges are convinced that a statute is contrary to natural right,
absolute justice, or sound morality does not authorize them to refuse
it effect." The court of Washington in _Fishing Co._ v. _George_, 28
_Wash._ 200, held that "a statute cannot be ignored by the courts
because leading in its application to absurd, incongruous, or
mischievous results." A few cases may also be cited showing how
relentlessly this disclaimer is applied. The court of New York in
_Kittinger_ v. _Buffalo Traction Co._, 160 _N. Y._ 377, held that the
courts had no power to inquire into the motives inducing legislation
and could not impute to the legislature any other than public motives.
The Pennsylvania court in _Sunbury R.R. Co._ v. _People_, 33 _Pa. St._
278, had urged upon it the argument that the statute in question had
been "passed in fraud of the rights of the people." The court held
that, if true, that fact would not authorize it to refuse it effect.
The Tennessee court in _Lynn_ v. _Polk_, 76 _Tenn. St._ 121, was asked
to declare a statute ineffective because its enactment was procured by
bribing members of the legislature. The court held it could not do so.
The Missouri court in _Slate_ v. _Clarke_, 54 _Mo._ 17, had before it
a statute authorizing the licensing of bawdy houses and was urged to
declare it unconstitutional because against public policy and
destructive of good morals. The court held it had no such power. The
Justices of the Maine Supreme Court in an opinion reported in 103
_Maine_ 508 stated the principle as follows: "It is for the
legislature to determine from time to time the occasion and what laws
are necessary or expedient for the defense and benefit of the people;
and however inconvenienced, restricted, or even damaged particular
persons and corporations may be, such general laws are to be held
valid unless there can be pointed out some provision in the State or
United States Constitution which clearly prohibits them."
Further, it is a maxim of the judiciary, from the beginning and now,
that no statute should be refused effect unless clearly contrary to
some provision of the constitution,--unless the conflict is evident
beyond a reasonable doubt. This is a maxim, a canon of interpretation,
that courts always have in mind and apply in considering the question
of the constitutionality of a statute.
Thus scrupulous are the courts to keep within their proper sphere, to
respect the limits of their powers. If the legislatures would be
equally scrupulous, would themselves refrain from infringing on those
rights and liberties of the citizen guaranteed by the constitution,
there would be less restriction, less friction, less turmoil, less
need of the judicial check, less injustice.
But the complaints against the courts are not all because of their
holding statutes unconstitutional. Many have felt that courts
sometimes erred in having too much respect for the legislative power
and because of that respect have allowed constitutional rights and
liberties to be sacrificed at the behest of majorities and often at
the behest of active, interested minorities more insistent than the
inert majority. The decision of the United States Supreme Court in the
_Charles River Bridge_ case, 11 _Peters_ 420, was mourned by such men
as Webster, Kent, Story, and others as breaking down the safeguards of
the constitution. The decision in the _Slaughter House_ cases was
regarded by many able jurists as ignoring that provision of the XIVth
amendment to the Federal Constitution forbidding any denial to any one
of the equal protection of the laws. The _Elevator_ cases, holding
that elevators were public utilities and therefore subject to public
control as to charges for service, though the owners had no special
franchise, no part of public power, are even now thought to have made
a wide breach in the constitutional barriers against the invasion of
private rights. The decision in the _Chinese Deportation_ cases, 149
U. S. 698, shocked the sense of justice of many. It was to the effect
that Congress could empower the executive to arrest upon its own
warrant any person it claimed to be an alien unlawfully residing in
the United States and to deport him without trial, unless he could
affirmatively prove to the satisfaction of a single judge (to be
selected by the executive), and by a specified kind of evidence only,
that he was not guilty, however ample and probative other evidence
might be adduced and however impossible to produce the specified
evidence. Justices Fuller, Field, and Brewer vigorously dissented on
the ground that such action by the executive, though under the
authority of Congress, was in violation of the constitutional
guaranties against arrest without judicial warrant, against
deprivation of liberty without trial by jury and due process of law.
Justice Brewer after quoting Madison, that banishment is among the
severest of punishments, went on to say: "But punishment implies a
trial. 'No person shall be deprived of life, liberty or property
without due process of law.' Due process of law requires that a man
be heard before he is condemned, and both heard and condemned in the
due and orderly procedure as recognized by the common law from time
immemorial."
In my research I have found more cases where it has seemed to me the
courts have construed constitutional guaranties too strictly, than
where they have construed them too liberally. The tendency has been
rather away from the enforcement of constitutional guaranties and to
allow legislative encroachments upon them. I regard this as a very
dangerous tendency. Perhaps the encroachments have not been at first
perceived, but I think courts should be vigilantly on the watch for
them, otherwise individual rights guaranteed to the people by the
constitution may be gradually weakened and finally destroyed. This
duty of the courts was declared in the case of _Boyd_ v. _United
States_, 116 _U. S._ 616 at page 641--where in refusing effect to a
statute requiring the production of his books and papers by a
defendant in proceedings for forfeiture, the court said: "Though the
proceeding in question is devested of the aggravating effects of
actual search and seizure, yet it contains their substance and
essence, and effects their substantial purpose. It may be that it is
the obnoxious thing in its mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in
that way, namely, by silent approaches and slight deviations from
legal modes of procedure. This can only be obviated by adhering to the
rule that constitutional provisions for the security of person and
property should be liberally construed. A close and literal
construction deprives them of half their efficacy and leads to gradual
depreciation of the right as if it consisted more in sound than in
substance. It is the duty of courts to be watchful for the
constitutional rights of the citizen and against any stealthy
encroachments thereon. Their motto should be _obsta principiis_."
A review of the cases in which the courts have been called upon to
decide whether a statute breaks over the constitutional limitation
will demonstrate to any dispassionate person that upon questions of
expediency, of the general welfare, or even of justice, the judges
rarely if ever oppose their opinion to that of the legislators. The
courts do not obstruct the current of progress; they only keep it from
overflowing its banks to the devastation of the constitutional rights
of the people.