CHAPTER VI THE JUDICIARY I THE NATIONAL JUDICIARY Definition and Functions.-The judiciary is that organ of government charged with the interpretation and application of the law. To its part falls the task of deciding disputed points of law, of discerning and protecting the rights and privileges of individuals under the law, of determining infractions of the law and inflicting penalties therefor. The necessity for a department with such functions is due to the nature of government and its relations with individuals, and to the conflicts which inevitably arise between individuals themselves. Notice that the judiciary differs notably from the other two branches of government in that it cannot take the initiative. The judiciary cannot act until a case is directly brought before it for trial. It is inconceivable that any legislative body, however wise and well organized, can foresee and provide for all the changes in social and economic conditions incident to the natural development of the state: it is the function of the judiciary to apply existing law to individual cases resulting from such changes. In states having a written constitution not subject to amendment by the ordinary processes of legislation, as is the case in the United States, it is possible that the legislative body will pass legislation not in accord with the provisions of this constitution: it is the function of the judiciary to determine whether or not legislation is constitutional. In all states the executive is vested with limited powers of inter ference with the liberties and property of the individualpowers necessary and proper if rightly used for the benefit of the whole people: it is the function of the judiciary to afford to any person who feels aggrieved a just and impartial hearing and to determine whether the executive power is legally exercised. In the modern state separate individuals are continually in dispute with one another as to their legal rights: it is the function of the judiciary to settle such disputes according to law. The laws of the state are continually being broken by individuals who try thus to prey upon society for their own. gain: it is the function of the judiciary to try such individuals and to mete out to them such punishment as is fitting within the limits set by law. The judiciary may be said to be the great adjusting force in government, on the one hand upholding the established rights of the individual against encroachment by another individual or against any conscious or unconscious usurpation on the part of the powerful legislative and executive branches of government, and on the other hand curbing the uprisings of individuals or bodies of individuals who rebel against the lawful functions of the legislative or executive branches. The Personnel of the Judiciary Qualifications of Judges.-The nature and importance of the judicial functions require two qualifications for the personnel of this department. The judges must be thoroughly qualified as to mind and character. They must have vast learning and broad legal experience, and must be marked for their integrity, firmness, and independence. Means of Obtaining Judges with These Qualifications.— The existence of a personnel having such characteristics depends upon three factors: the method of selection, the tenure of office, and the rate of compensation. Method of Appointment.-Three methods of choice exist: choice by legislative appointment, by executive appointment, and by popular election. Any one of these is open to theoreti cal objections. (1) The legislative body is hardly equipped to estimate fairly the ability and fitness of a man for judge: it is too liable to be swayed by party prejudice. Furthermore, the election of judges by the legislature tends to give the legislature a power over the judiciary which might foster tyranny. (2) The second of the objections just stated applies equally to the selection of judges by the executive head; this method, it is asserted, tends to place the control of the judiciary under the executive. (3) The method of selection by popular election is to be criticised on the ground that the people at large are not qualified to estimate the highly technical qualities necessary for judges; that they, as the legislature, are too liable to be swayed by party prejudices, and that judges elected by popular vote are under great temptation to temper their decisions to popular sentiment in order to increase their chances of reelection. Of the three methods, the least objectionable is selection by the executive, when the confirmation of the selection is required by another branch, as is the case in our federal judiciary. One man can select better than many; and where confirmation is required by another body there can be little danger of improper appointment. This method is the one used in all great states of the world to-day. Furthermore, selection by the executive prevents the undignified intrusion of party politics. Control by the executive is prevented by the conditions of the tenure of office. Tenure of Office of Judges.-In most of the states of the world at the present time judges are appointed to serve during good behavior. In other words, judges are appointed for life, subject to removal for cause, (i. e., as a result of impeachment proceedings). This provision for the tenure of office offsets the single important objection to choice by the executive head; namely, that such a method of choice gives the executive a degree of control over the judiciary. If the power of appointment and the power of dismissal were both vested in the chief executive, it is evident that he could if unscrupulous in the use |