control. A judiciary should be able and impartial, but not independent. Its tenure should be contingent upon good behavior; never one of complete independence. Although much is said in the United States about the importance of an independent judiciary, there is nothing in the constitution of the United States to establish judicial independence. It provides that judges "shall hold their offices during good behavior," which is just what the English constitution provides and that has never been interpreted as establishing the judiciary as a distinct and independent department of state. Particulars of judicial behavior are as subject to parliamentary scrutiny as the conduct of any other administrative officer. For instance, in explaining to the house of commons a bill for the better regulation of immigration, the minister in charge of it explained that existing law was sufficient for the deportation of aliens convicted of crime, and the only change it was proposed to make was that a judge failing to certify for deportation a convicted alien should be required to state his reasons. Such assertion of authority over judicial behavior is systematic throughout the British empire. It is a common practice to make the chief-justice a member of the executive council in colonial administration. There are Canadian instances in which judges are required to serve as

police commissioners, in which capacity they appoint the chief constable and prescribe regulations for the discipline of the force. The arrangement insures a concert of action between the courts and the constabulary in the repression of crime which has most salutary results. Such proceedings are of course incompatible with the theory that the judiciary should be an independent branch of the government, but that theory has no secure foundation even in the United States. It is a convenient fiction which now receives influential acceptance because of the dire need of some means of protecting the public against vicious legislation. By the aid of this fiction judicial discretion has been substituted for legislative discretion, and the opinion prevails that it is safer to endure judicial arrogance and incompetency than to allow any sort

1 In an address before the National Bar Association, October 20, 1914, Senator Elihu Root gave this account of the situation:

According to a count made in the Library of Congress, our national and state legislatures passed 62,014 statutes, during the five years from 1909 to 1913 inclusive. During the same five years 63,379 decisions of the national and state courts of last resort were reported in 630 volumes. Many of these statutes are drawn up, artificially, carelessly, ignorantly. Their terms are so vague, uncertain, doubtful, that they breed litigation inevitably. They are thrust into the body of existing laws without anybody taking the pains to ascertain what the existing laws are, what decisions the courts have made in applying and interpreting them, or what the resultant of forces will be when the old laws and the new are brought together."

of interference with the courts, no matter what they do. But if an urgent need arises an obnoxious judge can be got rid of by impeachment, which, although a clumsy means of enforcing good behavior, involves the principle of supervision and control.1

It has been contended that the extraordinary power exercised by American judges over legislation is a necessary incident of a written constitution, and especially a federal constitution. But if so why has no such development generally attended these features of government? Some tendencies in that direction did appear in the German empire, but they were soon checked. The courts refrained from courses that American courts have followed, not so much because of a difference in the legal situation as because of difference in the moral situation. When statutes are known to be a mature and circumspect product of legislative consideration of the subject,

1 According to the constitution of the United States "all civil officers" may be removed from office on impeachment for and conviction of "treason, bribery or other high crimes and misdemeanors." The limitations imposed by these terms made trouble at an early date, when a judge became insane. That was a calamity and not a crime, and it was difficult to find plausible grounds for removing him from an office he was unfit to occupy. But largely owing to rulings made in the impeachment proceedings against Judge Archbald, the doctrine is now pretty well established that the senate, sitting as a court of impeachment, is not bound by ordinary definitions of crime, and may in its discretion rate as a high crime and misdemeanor any sort of conduct unbecoming judicial office.

judges will hesitate to set up a contrary opinion of their own. Some instances of the kind in German courts, in which American precedents were cited, excited such strong and general disapproval from juristic experts, that the courts were deterred from proceeding further on that line. Eventually the principle was judicially enunciated that a constitutional provision is to be understood as a rule for the legislative power to interpret. No such attitude of serious opinion could exist in the United States with regard to the legislative power, as its activities are too crude and irresponsible to command respect. The abnormal exaltation of judicial authority in America is correlated with an abnormal degradation of legislative authority, and will surely disappear if ever the cause is removed.

1 Some particulars are given by Brinton Coxe, Judicial Power and Unconstitutional Legislation.

CHAPTER XI

CONCLUDING OBSERVATIONS

THE movement of liberal thought, which during the nineteenth century strongly supported parliamentary institutions, seems now to be turning against them. The sneers of Carlyle at them in his Latter Day Pamphlets, as government by wind-bags and "constitutional battle of Kilkenny cats," were at the time regarded as the mere whimsies of an eccentric genius whose opinions on the subject did not deserve serious consideration. When read at the present time they seem to have true prophetic quality, and there is now extensive and influential concurrence in his opinion that parliaments and congresses "are, as ruling bodies and sovereign bodies, not useful, but useless or worse." Serious and thoughtful books are now appearing with arguments in favor of substitutes for representative government, which - whether that term be employed or not - are decidedly of the

1

1 The present attitude of Liberal thought in Europe is finely portrayed in an article entitled "Our Bankrupt Parliaments," translated from the Spanish and published in The Living Age for June 16, 1923.