Staunton spectator. [volume] (Staunton, Va.) 1849-1896, 1850-02-27
From the Democratic Review, Of March, 1881
-, ELECTIVE JUDICIARY.


oflate 10 the suhjectof constitutional Reform. The
Constitutions which were adopted by The States
imtnedateEafier lie establishment of our Nation
al Government. have been found defective in many
particulars. Taker, ION lie whole, they exhibit
erea, sagacity and deep knowledge Of the science
OF Government. We are disposed togve their II
ustrous trainers the credit due uhd6ubted patriot
ism and exalted talents yet il is not to be ronceaed,
that there are defects in many, if not all OF The ear
| " Constitutions, which demand that they should De
greatly amended.
| Ia the organization Of two ofthe departments Of
government, the correct principle Of republicanism
has usually prevailed. The Executive and the
Iegislatdre are, for the most part elected by the
people land 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 principal has been adopted in the or
qanisalion Of this department. It's commission is
Sometimes derived from the Legislative, but mostly
from the Executive branch of government. 1t de-
Irives its vitality from one of those two departments
both of which it was especially designed 10 check
and control In lis construction, the vital principle
of a republic-lhe separation and division of powers
sEhas been sporied with and set at naught. Nor is
This all that very branch of the government which
lis the most important of all others-whch gives
force and efficiency to the laws-which administers
Justice between man and man, and keeps the other
departments from shooting mady forth from the
spheres allotted 10 them, is the very one which has
been removed beyond the reach Of all responsible
ity. A -,
and stated terms, are held to accountability before
the people, as 10 insure perfect perpetuaiion Of
the infracion Of the popular principle which is pur-
sued in the appointment of the judges, thejudlclary
are lifted above all responsibility by receiving their
appointments for life As if aware that this depart
ment has been constructed in violation of the true
principle ola republican government, il was deem
ed necessary to give il importance, stability and Sc
curity, 5y throwing around the Judge Tile shield
OF utter responsibility. This departure from prln-
cple, however, has not been left to struggle under
the weight Of term so odious as that of"rrespon-
sibility." 1t has been dignified by the more Pau-
sBle and more popular appellaOn of "the indepen-
dence of judiciary" To talk about rendering this
department subordinate to the popuarauthorliy has
in many quarters been deemed sacrilege-and even
4 now the rash reformer who has the moral courage
10 advocate remedy for known and acknowledged
evils. must be satisfied, should he be denounced as
nothing more than "Radical," "Agrarian," or
"Deslructive" Blu, as we advance in the ivesti-
cation of the subject, it will be well for us 10 tn-
in lis discussion. What then is meant by the term
.sindependent judiciary? 2" From whence was this
term borrowed, and can it have any application in
this country2 These are questions upon which we
propose a 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, originated in England
In that country, the term is pregnant ofsome mean
inc and it has distinct, we'll known Specification,
such as can never be applied to it in this country
In England, il means an independence VI Inc crown
and not an independence Of the people. In the early
history Of that government the Judges were appoint
ed by The sovereign, and held their Offices by no
other tenure than by his will. In that condition Of
things it is moi difficult to perceive that the rights
Of the people were in immediate jeopardy, when
brought in confictwth the prerogative ofthe 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 despotic principal Decessari-
" became subverted. The revolution of 1858,
which placed the second James upon the throne,
accomplished its overthrow, and established in lis
place the more correct and popular principle, that
The Judges should be appointed for life and not re-
movable at the will OF the crown. AS the king
was still left the power appointing to Office, there
was no other mode in which the Judiciary could be
rendered Independent OF the throne, except by the
Appointment for life. This, then, is what is
. uieant in England by an independent Judiciary.
The appointment for life renders the judge trespon
sibe to the crown-and in this very irresponsibity
the English subject finds his only protection from
the exaciions and expressions Of the throne. No
wonder that under these circumstances, the, indie
pendence or responsibility of the Judiciary Is highly
valued OF fondly cung 10 by the people OF England
That there are evils flowing from the Irresponsible
ty, BID, few acquainted with the jurisprudence Of
of England will venture TO deny and dark and re-
voting are some OF the pages of her history. Pow
er, long and arbitrarily exercised, without check or
restraint, has too often transformed her Judges ntoty
rants and instead ofbeng protectors they have become
scourges Of the human race. Her laws have been
sauguinary enough but they have been executed in
spirit of relentless severity, without parallel in
the world s history. Nero and Domitian when sway
ing the iron rod Of EMPIRE never Seem 10 have been
animated by more remorseless cruelty, than have
been exhibited by SOME OF the English judges
even in the palmiest days of her civilization. But
in the British form ofgovernment,a all the evils must
be quietly borne, for they are without remedy from
,he very nature of things. The existence ola mon
arch-the presence ofOne irresponsible power in the
government, creates controlling necessity for the
existence of another. An irresponsible monarch can
only be watched and controlled by an irresponslbleju-
dietary, and as tyranny can only be maintained by
the strung of foree, Hence the necessity to float
large navies and keep lip standing atmies, to give,
even in time Of peace. force and 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 Eng
land, can have no application to this country Ac-
cording to the theory of our government there is no
power 10 the State antagoniscal that Of the peo
ple 1t is true, we have no monarch. no titled no.
bIemeu-no aristocracy Of whom it would be i'm
por,ant to render the. judiciary independent OF
what avail, then, will it be 10 have irresponsible or
independent Judges? Of what, and of whom. are
they to be independent? Are they to be indie
: pendent of the laws and Constitutions or independ-
ent of The Legislative the governor, OF the people
What is meant by this phrase, and in what manner
do you seek to give it proper application?
II is evident we have borrowed what is here
termed the independence ofthe judiciary, from Eng
land. And it is equally plain that the same state
of affairs which caused the establishment of such
svsten in thai government. does not and cannot eX-