HKB
NOTE ON THE JUDICIAL TENURE.
The English historians and juridical writers have not given a very satisfactory account of the purpose for which the power of removal on the address of the two Houses of Parliament was incorporated with the provision which gave the judges their commissions during good behavior. It is obvious that, if the power of removal is to be regarded as an unqualified power, to be exercised for any cause, or without the existence of any cause, the office is held during the pleasure of the legislative and executive branches of the government, and not during the official good conduct of the incumbent. In this view of it, therefore, the provision is inconsistent with the declared tenure of the commission. On the other hand, if the power of removal is not to be regarded as a limitation upon the tenure of the office, but the process of removal is to be considered as a mode in which the unfitness or incapacity of the incumbent is to be ascertained,--treating it as a substitute for impeachment, to be used in cases of palpable official incapacity or unfitness,--then it is not repugnant to the tenure of good behavior. In support of this view of the subject it is to be observed that, in the statute of 1 Geo. III. c. 23, the tenure of good behavior is made the leading and primary object of the enactment. The motives for it are set forth with great point and emphasis. The King is made to declare from the throne to the two houses of Parliament that he looks upon the independency and uprightness of judges as essential to the impartial administration of justice, as one of the best securities to the rights and liberties of the subject, and as most conducive to the honor of the crown. The enacting part of the statute, which follows this recital, provides anew that the judges' commissions shall be and remain in force during their good behavior, notwithstanding a demise of the crown; and the power of removal by the King, on the address of both houses, follows this enactment as a proviso. If, therefore, a not unusual rule of construction is applied, the power embraced in the proviso should be so construed as to make its operation consistent with, and not repugnant to, the great purpose of the statute, which was to establish the tenure of good behavior. In this view the rightful exercise of the power may be confined to cases where the individual is no longer within that tenure, or, in other words, where the good behavior has ceased, or become impossible. Upon this construction the power of removal can only be rightfully exercised when a cause exists which touches the official conduct or capacity of the incumbent.
In the Constitution of the State of Massachusetts, formed in 1780, the power of removal by the executive, on the address of both houses of the legislature, was adopted from the English statutes, and it was introduced as a proviso after the tenure of good behavior had been emphatically declared for all judicial officers, just as it stands in the act of 1 Geo. III.