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.

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: d o successful, then one party Judge would succeed to another d o, oppression and depredation might be in part extinguished, but also in part they would only change sides.

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 d o 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

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