The Idaho world. [volume] (Idaho City, Idaho Territory) 1864-1918, 1869-06-03
THE TERRITORIAL JuDGEsHR QUESTION


has recently commissioned the Hon. Da''a
Nozzle of Wisconsin to be Chief Justice ana
tho Hon + C.. Lewis Of Iowa to be Associate
Justice, Of the Supreme Court Of Idaho' r'ce
tho Hon Thos. J. Bowers aud the Hon. X. 1.
Miller. removed. A discussion OF the ques-
ton asked in the heading of this article neces'
sarily involves the power OF the PRESIDENT 10
make such removals, and presents question
of much Importance, the correct solution o'
which can DULY be obtained when we shall nave
ascertained the terms and character OF the
judicial power as established, as we'll under TIC
Constitution as by Congressional legislation
and also the sum of the power vested III the
Executive by the Constitution, and to what eS'
tent such Executive power may be used 10 in-
f,uence and control the Judiciary.
Article III, Section l. of the Constitution OF
the United States reads 1.-The Judicial power
of the United States shall be vested in one
Supreme Court and in such inferior Courts as
the Congress may from time to time ordaln
and establish. The Judges, both OF tho Su-
preme and inferior Courts, shall hold their
Offices during good behavior, and SHALL at stated
times receive for their services compensa-
ton which shall not be diminished during their
continuance in office"
1t would very reasonably appear from this
clause of the Constitution that the intention OF
the trainers of that instrument was that the
Judges of all the Courts which were established
by the Constitution itself, and those which
should thereafter be "ordained and established
by Congress" should hold office during good
behavior, and that such tenure should be aosO-
lutely free from any control whatever save
such as is imposed by the 4th Section OF Arti-
Gle ii of the Constitution which reads: "Ihe
President, Vice President, and all civil officers
of the United States, shall be removed from
office on impeachment for, and conviction OF,
treason. bribery, or other high crimes and
misdemeanors."
That this was the opinion of those who
founded this Government is clearly deducible
from the fact that in the establishment OF
every Territory, from 1877 to 1904, the Judges
were appointed during good behavior. while
all other officers were appointed for term OF
years, "unless sooner remored' Such was
the case in the Territories of Indiana. Illinois,
Mississippi. Michigan and Wisconsin,, and no
one at that time ever dreamed that the Pres-
dent had power to remove the Judges. not
outstanding that. BY the Act OF Congress OF
August 1889, it was provided that the Presl-
dent shall nominate. and BY and with the ad-
vice and consent of the Senate, shall appoint
all officers which, by the ordinance OF 1877,
were to have been appointed by the United
States in Congress assembled, and all officers
50 appointed shall be commissioned by him,
and all cases where the United States in
Congress assembled, might by the same ordl-
nance revoke any commission or remove from
any office, the President is hereby declared to
have the same power Of revocation or re-
moval"
BY the provisions of this Act the same right
of revocation and removal" which might
have been exercised by Congress under the
Confederation by the provisions Of the ordl-
nance Of 1857, was conferred upon the Presl-
+ dent, but it will not be contcndcd that it con-
ferred upon him any power or control whatever
over any officer who was not removable by
Congress under the said ordinance.
Under that ordinance the Judges were ap
pointed during good behavior, as we have seen
: while all other officers were appointed for q
term of years, unless sooner removed,
showing beyond question that it was not the
intention Of Congress to leave the Judges sub
: ject to the control of any power whatever.
In the formation of ever Territory since
1904, with perhaps one or two exceptions, the
Acts of Congress declaring the tenure Of the
Judicial Office has set it absolutely at fouI
years, while every other official has been de
clared to hold for q term Of years, "unlesi
: sooner removed" Such certainly is the Ian
guage of the Act establishing this Territory
and we are at loss to see how there can b.
two opinions upon the question. In the Or
ganc Act establishing the Territory of Idaho
q the provision is that the Judges shall hold thei
Offices "for four years and until their success
y ors are appointed and qualified" and that al
other officers shall hold their Offices "fOr fou