e whole, there can be no room to doubt that the
Convention acted wisely in copying from the models of those
constitutions which have established _good behavior_ as the tenure of
their judicial offices, in point of duration; and that so far from being
blamable on this account, their plan would have been inexcusably
defective, if it had wanted this important feature of good government.
The experience of Great Britain affords an illustrious comment on the
excellence of the institution."[53]

This is quoted with approval by Story in his Commentaries on the
Constitution and this same line of argument has been followed by legal
and political writers generally. But with all due respect for the
eminent authorities who have placed so much stress on the political
experience of other countries, we may venture to ask if the parallel
which they have assumed really exists. Is the use made of this argument
from analogy warranted by the facts in the case? Are we sure that the
political experience of England proves the wisdom of an independent
judiciary? This can best be answered by referring to the circumstances
which gave rise to the doctrine that the judges should be independent.

In England formerly the Crown appointed the judges and could remove
them. This power of appointment and removal placed the courts under the
control of the King and made it possible for him to use them as a means
of oppressing the people. A striking example of the way in which this
power could be abused was seen in the career of the notorious Jeffreys,
the pliant judicial tool of the cruel and tyrannical James II. To guard
against a repetition of this experience it was urged that the judges be
made independent of the King.

This was done in 1701 by the Act of Settlement which provided that
judges should be removed only on an address from Parliament to the
Crown. This deprived the King of the power to remove judges on his own
initiative and virtually gave it to Parliament. The object of this
provision was to place a check in the interest of the people upon the
arbitrary power of the Crown. It made the judges independent of the
King, but at the same time established their responsibility to
Parliament by giving the latter the right to demand their removal.[54]

The statement so often made and so generally believed that the American
judicial system was modeled after that of Great Britain will not bear
investigation. English judges are not and never have been