504
Interpreting and Preserving the Constitution
But Chief Justice Coke remained true to his convictions. Still on his
knees, he raised his face to the King. ‘‘The stay required by your Majesty,’’ he said, ‘‘was a delay of justice and therefore contrary to law and
the Judges’ oath.’’ ‘‘Mere sophistry,’’ bellowed the King. As the Judges
cowered at his feet, James asked each Judge what he would do if the King
ever again told the Court to stay proceedings. Each replied that he would
do ‘‘as His Majesty commanded.’’
When at last the King turned to Coke and asked him what he would
do, the Chief Justice answered: ‘‘He would do that should be fit for a
Judge to do.’’ It was a statement never to be forgotten, and because of it,
Coke was removed from office. It was ambiguous enough to save his
head, however, and in time he was vindicated. By the end of the seventeenth century, the judges had achieved full independence, and the English Judiciary today, though considerably less powerful than its American counterpart, is no less independent.
It was often difficult for early American judges to retain their independence also, especially in the period immediately following the American
Revolution. Violations of judicial independence occurred not at the national level, for there were no national courts under the Articles of Confederation. Rather, they occurred under the new State constitutions first
adopted in 1776, which were influenced in varying degrees by the principle of legislative supremacy. What early State court judges often feared
was not the encroachment of the executive branch, for the office of governor was usually weak. The principal threat to judicial independence
was the powerful legislative assembly.
Ignoring the concept of separation of powers, State legislatures sometimes treated State courts as mere agencies of the legislature, as if they
were personally accountable to the legislators. Committees of the legislature might summon judges and interrogate them. Occasionally, legislatures actually interfered with court proceedings, reversed court decisions, reduced the judges’ salaries, and removed judges arbitrarily
from office because of disagreement with their views. As late as 1808–
1809, in Ohio, three supreme court justices, three presiding judges of the
Court of Common Pleas, all of the associate justices of the courts of
Common Pleas (more than 100 in number), and all of the justices of the
peace were removed from their offices by a single resolution of the legislature.