independent in
the sense in which that word is used with reference to the Federal
judiciary of the United States. In making the judges independent of the
King, Parliament had no intention of leaving them free to exercise
irresponsible powers. To have made them really independent would have
been to create a new political power of essentially the same character
and no less dangerous than the power of the King which they were seeking
to circumscribe.

"In England," says Jefferson, "where judges were named and removable at
the will of an hereditary executive, from which branch most misrule was
feared, and has flowed, it was a great point gained, by fixing them for
life, to make them independent of that executive. But in a government
founded on the public will, this principle operates in an opposite
direction, and against that will. There, too, they were still removable
on a concurrence of the executive and legislative branches. But we have
made them independent of the nation itself."[55]

There is, as a matter of fact, nothing in the political experience of
Great Britain to support the belief in an independent judiciary. The
judges there do not constitute a co-ordinate branch of the government
and can not enforce their opinion in opposition to that of Parliament.
Instead of being independent, they are strictly dependent upon
Parliament whose supreme power and authority they are compelled to
respect.

This being the case, it is hardly necessary to observe that the courts
in England do not exercise legislative functions. The power to decide
upon the wisdom or expediency of legislation is vested exclusively in
Parliament. The courts can not disregard a statute on the ground that it
is in conflict with the Constitution, but must enforce whatever
Parliament declares to be the law. As the judiciary under the English
system has no voice in the general policy of the state, the tenure of
judges during good behavior carries with it no power to thwart the
popular will.

The provision in the Constitution of the United States for the life
tenure of a non-elective judiciary serves, however, an altogether
different purpose. It was designed as a check, not upon an irresponsible
executive as was the case in England, but upon the people themselves.
Its aim was not to increase, but to diminish popular control over the
government. Hence, though professing to follow the English model, the
framers of the Constitution as a matter of fact rej