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1823. May 26
Constitut. Code
Ch. Judges
S. Location
1.
Question- Location of
Judges- why not in con
stitutive, nor Legislative,
nor Executive, but in Justice
Minister?
2.
Answer. Reasons.
I Why not in Constitutive.
1. Want of time: as in
case of Executive Chief
3.
2. Want of moral aptitude.
For locating members of
Legislative, aptitude sufficient:
for by location
of one member, no Constitutive's
sinister interest
could be served
without concurrence of
a majority: which, as above,
is not probable.
Not so for locating singly
acting Judges.
By league with a candidate
for the Judgeship,
a single leader might in
the event of his success,
acquire means of gratification for sinister interest
to an indefinite extent.
4.
Connected thus with
and dependent on, the
head of a party, the undue
favor of the Judge
might thus be all along
shown to every member
of that party, his unjust
disfavor to the opposite
party.
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Ch. Judges
S. Location
5.
That in these hands
the dislocative with regard
to the situations in
question should is
proposed. But,
with the two exceptions
here noticed (namely
Legislative and Ministerial)
it is essential
that the locative and dislocative
function be not
in the same hands: at
any rate, not exclusive
dislocative in the
same hands with the locative.
For if yes, what
ever particular and sinister
interest, places tho
functionary in the situation
will, how bad so
ever his conduct, be
disposed to keep him
there
6.
True, under a Government
arranged
in other respects, sooner
or later, mischief from
this, as from every source
would find remedy:
viz from Public opin.
Tribunal.
But to the application
of the remedy in this case,
a constant party struggle
would be necessary
The locating party successful,
redress none: do successful,
then one party
Judge would succeed to
another do, oppression
and depredation might be
in part extinguished, but
also in part they would
only change sides.
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Ch. Judges
S. Location
7.
Against such evil,
insufficient would be
the remedy by Appeal:
for
1. By the inseparable expence
vexation & delay,
the application of the
remedy would be limited
8.
2. The from
party influence, applies
also to the Appellate
Judicatories.
9.
3. Want of intellectual aptitude.
On this point, constitutive
in altogether debarred
from corrugating with
Justice Minister.
See the list of his functions.
10. art.
II Why not in Legislative?
Reasons same in kind
as those applying to Constitutive:
only not so
strong: yet sufficient
[vs Quere if not stronger?]
11. art.
III. Why not in Executive
Chief?
Answer. Reason
see do applying to situation
of Justice Minister.
For the functions Executive
Chief would have
to look to the exercise of,
in addition to his own
and those of his subordinates
the Minister, see
Justice Minister's functions.
12. or 2.
Amongst functionaries
of the administrative department,
as to what regards
official duty, contestation
is neither desired
nor expected: for im
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impartiality there is
therefore no demand.
Not so in the situation
of Judge: this contestation
is certain: and only for
the termination of it, is
the office instituted.
Here there is the demand
for impartiality: and for
independence as towards
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