Republican vindicator. [volume] (Staunton, Va.) 1849-1857, 1850-01-28
From the Democratic Review, of March 1S4S
Elective judiciary.

| The public attention has been forciblv attract.
ed OF late to the subject OF Constitutional Reform
The Constitutions which were adopted by the
States Immediately after the establishment of our
National Government: have been found defective
IN many particulars. Taken on the whole thew
exhibit great sagacity & deep knowledge Of the
science OF Government. Weare disposed to give
their iustrouS f.amers the credit due to undoubt.
ed patriotism and exalted talents; vet it is not to
be concealed, that there are defects in many, il
not all OF the early Constitutions, which demand
that they should be greatly amended
| The organization of two of the departments
of government, the correct principle of republic
canism has usually prevailed. The Executive &
the Legislature are, for the most part elected by
the people, and by being subjected to the test of
| frequent elections, are made responsible to the
controlling power OF public opinion. Not so with
the judiciary-a different principle has been a.
dopted in the organization Of this Department.
It's commission is sometimes derived from the
Legislative, but mostly from the Executive
branch OF the government. 1t derives its vtali-
ty from one of hose two departments, both OF
whom it was especially designed to check and
control. In its construction, the vital principle
of republic-the separation and division of
powers, has been sported with and set at na,loht.
Nor is this all that very branch of the govern
ment which is the most important of all others
which gives force and efficiency to the laws
which administers justice between man and
man, and keep the other departments from
shooting madly forth from the spheres allotted to
them, is the very one which has been removed
beyond the reach of all responsibility.
While the Executive and Legislative. al short
and stated terms, are held TO accountability be-
fore the people, as if to insure perpetuation of
the infraetion Of the popular principle which is
pursued In the appointment of the Judges, the
1ifte1 a1o1., all
receiving their appointments for life. As if a.
ware that this department has been constructed
in violation OF the true principle ola republican
government, it was deemed necessary to give it
Importance; stability and security BY throwing
around the Judge the shield of utter irresponsi-
bility. This departure from principle, however,
has not been lett to struggle under the weight
of term so odons as that of 'irresponsblity =
II has been dignifed by the more plausible and
more popular anpella,ion of the independence
partment subordinate to the popular authority,
has in many quarters been deemed sacrilege-
and even now, the rash reformer who has the
moral courage to advocate remedy for known
and acknowledged evils, must be satisfied. should
he be denounced as nothing more than a
Radical an 'Agrarian,' or 'Destructive' But
as we advance in the investigation of the SUBJ
ject, it will be well for us to understand the ey-
act meaning Of the terms employed in its discus
sion. What, then, is meant by the term :inde-
pendent Judiciary 2 From whence was this
term borrowed, and can it have any application
in this country? These are questions upon hich
we propose few observations.
1t is known TO every one familiar with the
history OF the past, that this opinion about the
Importance OF an independent judiciary, origi-
mated in England In that country, the term is
pregnant OF some meaning, and it has ii distinct
well-known and wel-defined signification. such
as can never be applied to it in this country In
England, it means an independence of the crown,
and not an independence of the people. In the
early history OF that government, the Judges were
appointed by The sovereign, and held their Off
ces by no other tenure than by his will. In that
condition ofthings it is not difficult to perceive
that the rights of the people were in immediate
jeopardy, when brought in conflict with the pre-
| negatives of the throne. The Judiciary was, in
truth, nothing but the reflex mirror of the royal
will. AS liberty advanced, and as light and
knowledge became diffused among the people.
this unjust and despotc principle necessarily be-
came subverted. The revolution of 1888, which
placed the second James upon the throne, accom-
plished its overthrow, and established in its
place the more correct and popular principle.
should not be removable at the will of the crown
As the king was still left the power of appoint
ing to office, there was no other mode in which
the Judiciary could be rendered independent of
the throne, except by comforting upon them their
offices for life This, then, is what is meant in
England by an Independent judiciary. The ar-
pointment for life renders the judge irrespons-
Bile to the crown-and in this very Irresponsible
ty, the English subject finds his only protection
from the exaciions and expressions of,he throne
No wonder that under these circumstances, the
;n,lo bll.t, r. ~
is highly valued or fondly chung to by the people
of England. That there are evils flowing from
this irresponsibiity, but few acquainted with
the jurisprudence Of England will venture to de-
ny and dark and revolving are some OF the pa
ges of her history. Power, long and arbitrarily
exercised without check restraint, has too of
ten transformed her judges into tyrants, and in.
stead OF beng protectors they have become
scourges OF the human race. Her laws have
been sanguinary enough, butthey have been e1-
ecuted in spirit OF relentless severity, without
a parallel in the worlds history. Nero and
Domitian when swaying the iron rod of empire,
never seem to have been animated by more re-
morseless cruelty, than have been exhibited by
some of the English Judges, even in the pamiest
days of her civilization. But in the British form
OF government, all the evils must be quietly
borne, for they are without remedy from the
very nature Of things The existence of a mon
arch-the presence OF one Irresponsible power in
the government, creates controlling necessity
for the existence of another. An irresponsible
monarch can only be watched and controlled by
an irresponsible Judiciary, and as tyranny can
only be maintained by the strong arm of force
hence the necessity to float large navies and keep
up standing armies, TO give, even in time of peace
force aud efficiency to the laws and authority of
the government.
But this principle, which renders the creation
of an irresponsible Judiciary an act of necessity
in England, can have no application to this
country. According to the theory of our govern
ment, there is no power in the State antaeonis
teal to that of the people. 1t is true, we have
no monarch, no titled noblemen-no arstocra-
cy OF whom it would be important to render the
Judiciary Independent Of what avail, then, will
II be to have irresponsible or independent judges
Of what, and of whom, are they to be indepen-
dent Are 1hev To ha indonaa.laa. Of IL, i,,rs