Daily Kennebec journal., 1882-02-25
Aailp &nrntbtf SDurnal.
Augusta. Saturday Morning, Feb. 25.
vpdeuendence of the Judiciary

vital importance IT, the people of the State.
Justices of the Supreme Court may be
ever so learned and able. but t.is avails
nothing unless they can freely and fear
lessly declare the law as they understand
IL. In the case of the refusal Of Gov.
Plaisted to .re-appoint Judge Libbey a
blow is struck at the independence of the
Judiciary. 1t became the duty of Judge
Libbey and his associates upon the Bench
to declare their opinions upon certain
questions propounded to them in regard
to the proceedings in the count-out at
tempted by Gov. Garcelon and his Coun-
ell. This solemn duty they could not
avoid if they had desired to do so. That
fact is set forth very plainly in the opinions
they rendered upon that occasion, in the
following words: I'VE cannot decline an
..answer if we would. In case like the
s.present, the remark Of Chief Justice
Marshall, in Cohens ~. Virginia, Is pc
"culiarly applicable. 1t is most true,
.he saws. that the Court will not take
.iurisdiction, if it should not, but 1t Is
"eaually true that il must take jurisdic-
'.tion. if it should"
The Judiciary cannot, as the Iegisia
..ture may, avoid a measure because 1t
approaches the confines OF the
"constitution. We cannot pass II
.by. because it is doubtful. With
..whatever doubts or whatever diff
equities case may be attended. we must
..decide 1t, if il be brought before us.
1--WE have no more right to decline the ex-
"ercise Of jurisdiction, which is given,
..than to usurp that which is not given.
1.-The one or the other would be treason
10 the constitution. Questions may occur
(which we would gladly avoid, but we
'.cannot avoid them
Acting under the obligations so faith
fully and forcibly described in the above.
Judge Libbey gave his opinions, with
the other Justices of the Supreme Court,
upon the questions presented to them for
answer But the answers were not agree
able to Gov. Plaisted, and SO as
Judge Libbey's term is about to
expire, the Governor instead OF re-
appointing him. as his upright, hon
orable and faithful service to the State and
usage demand sets him aside and nomi-
mates another to take the place which de-
servedly belongs to Judge Libbey. The
act is intended as punishment to Judge
Libbey for expressing his honest convic-
tons as part of the Supreme Court upon
an important case, in which were involved
vast interests concerning the peace and
welfare of the State Had there been any
complaint from the public. from the law
yers of any bar in the State, from those
who have business at our courts, from any
unprejudiced source whatever, that
Judge Lbbey Is unworthy or in
competent to retain place upon the
Bench, then the Governor might have had
cause for setting him aside and nominat-
ing a new man. But no such complaints
have been made On the contrary there
is the widest and most universal opinion
among the ablest and best lawyers of the
State. without distinction of party, in favor
of making Judge Libbey his own success
sor. They Look with dismay upon the
attempt to trample upon Judges for de-
claring their honest opinions rs in duty
bound. What will a Judiciary be worth,
thev seriously and Indignantly inquire, if
it must be utterly subservient to the APP
pointing power? 1t is indeed a matter of
great consequence to them whether their
causes shall be fairly tried before an inde-
pendent Judiciary. or whether the Judges
before whom they may appear shall be
but the puppets and tool of the appointing
power which stands behind them
But some of Gov. Plaisted's apologists
inquire. .'Ilas not the Governor the power
and right to nominate whom he pleases ?"
lie most certainly has the power to nomi-
nate. but that does not give him the right,
which he assumes in setting Judge Libbey
aside. to strangle and destroy the indie
pendence Of the Judiciary. When he at
tempts the latter he abuses his high trust,
and prepares the way for such men upon
the Bench as Jeffrevs was. who
when about to receive merited punish
ment for his awful crimes pleaded in ex-
tenuation of his great offences, that they
were not his own acts but the acts of his
master. the king. who controlled him.
The setting aside of Judge Libbey is a
blow at the independence Of the Judiciary
that and nothing more or less. In the
national government the Judges of the Su-
preme Court hold their offices during good
behavior. This provision in the cons,itu-
ton was strongly urged by The Federal
ist, on the ground that it was necessary to
the independence of the Judiciary. In
Maine, reappointment of Judges has been
the rule followed. and this has preserved
their independence until the present time.
If this rule is now to be east aside. in the
case of Judge Libbey. and the new rule
adopted that the Judiciary must make