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nomination of the judge, and who is able to control his renomination and re-election: in such a case will there be, or will there be thought to be, a fair determination of the merits of the controversy?
The court may be called upon to perform that most solemn and responsible duty of adjudging to be unconstitutional a statute passed by a unanimous legislature, and upon much popular urgency. Is an elective judiciary for such a purpose a tribunal as impartial as the lot of humanity admits? No doubt a majority of cases will be heard and decided with entire fairness, however judges are chosen; and so they would be if they were selected by lot. But the question is, what is the best and wisest system, the one likely to produce the most perfect results on those occasions which try men's souls?
Furthermore, which method of selection is best calculated to secure for the judicial office men who, by character and attainments, are fittest for the adequate performance of its difficult and important duties? By that of executive appointment the choice devolves upon one man, the governor of the state, who must usually be a person of considerable experience, of fair character, and of reasonable ability. In only a few instances can he have any strong motive to be controlled by individual favoritism. He must know, or have the means of knowing, personally or by reputation, the quaUties of all within the natural range of candidates. An improper nomination will be a lasting injury to himself, while one conspicuously successful will always redound to his credit. To have placed on the bench a Marshall, a Story, a Kent, or a Shaw, is a great public benefit, not likely to be forgotten in estimating the services of a president or governor, either during his life or after his death. Besides the negative, upon an improper selection, possessed by the council or senate, always operates to make the executive careful in his choice, and to correct any error into which he may accidentally fall. It would be difficult to name any case in which the advantages of individual responsibility are greater, or in which it is surer to produce satisfactory results.
The next alternative is a choice of judges by the legislature. The arguments against this plan may be found in the lxxvii. number of the Federalist, and seem to us sufficiently cogent, both theoretical and practical. Nevertheless, this method must be admitted to have j^roduced tolerably satisfactory results in many of the states, especially in those as small as Connecticut and Vermont. But, in principle, it is indefensible in the view of those who believe in an independent judiciary; while it has few practical recommendations to that class who desire to have judges immediately reflect the popular will. By the sincere believers in either theory it must be rejected as a lukewarm and unattractive arrangement. We regard it as a mere compromise, unlikely to be disturbed where it exists, but unworthy to be adopted by those who consider the question as one of the greatest in American constitutional law.
No one has yet proposed, on this continent, the introduction of the Athenian practice of a plebiscite or popular vote upon the question of banishing or putting to death a particular obnoxious citizen. The nearest approach to such delightful democratic simplicity would seem to be to have a popular majority choose judges for the shortest possible term, so as to secure their direct and immediate responsibility to the people. Except on the score of convenience, we do not know why any one who favors a popular election of judges ought not to prefer, whenever it is attainable, a direct popular vote upon any question to be judicially determined. If vox populi est vox Dei, why weaken its power by an indirection which can only cast doubts on the divinity of its origin? But there are those, even at the present day, who believe that there ought to be a government of laws and not of men. To their minds, there is something shocking in the spectacle of a struggle in caucus or convention over a party nomination to a high judicial office, followed by a heated campaign between the political parties into which voters are divided, accompanied by the newspaper abuse and personal vituperation sure to ensue ; the position of a judge finally elected, after such an ordeal, seems to them an introduction as unfavorable as possible to the duties of bis office.
The two systems have been conspicuously tried for many years past in different states; indeed in every state which has adopted an elective judiciary the two have existed side by side within the same territorial limits, the federal judges being appointed by the President and the state judges chosen by the people. We appeal to the candor of all intelligent observers, to say under which of the two methods justice has been administered with the greater degree of purity, impartiality, energy, intelligence, and learning? How have those courts been constituted whose decisions are cited with respect here and in England, and how those which are a byword and reproach throughout Christendom? We do not propose to point the moral by citing instances either of praise or of obloquy. To every one there will occur conspicuous examples of great and venerable magistrates who have enjoyed the respect and reverence of all men, and, on the other hand, the names of judges who have clothed themselves with infamy as with a garment. By which system has each class been produced? Or, if it be said that extreme illustrations are unfair, under which system has there been the larger proportion of conscientious, laborious, painstaking, careful, and learned judges; and under which has the tendency been to a slovenly, superficial, slipshod performance of judicial duties? Which has tended to superiority, and which to mediocrity or inferiority? By their fruits let the two systems be judged.
It is seldom that a man or community consents voluntarily to surrender the immediate exercise of any accustomed power. Even its delegation to agents requires a considerable exertion of moderation and self-restraint. If the people of New York shall deliberately resign the power of electing their judges, and return to the ways of ancient wisdom, they will, in our opinion, evince a high degree of political intelligence, and furnish to the world a striking proof of their fitness for self-government, and their capacity to profit by the lessons of experience.
THE DISTRIBUTION OF THE GENEVA AWARD.
The Field of the Cloth of Gold is a bright spot in history, not from its outward displays of imperial and military magnificence, but because it marks a step forward in the progress of European civilization. The day had not so long passed when the respective princes of France and Burgundy, proposing to confer together, had thought it prudent to have strong barriers erected between them before they came within their two lances' length of each other. But the higher instincts of humanity had now begun to assert their superiority, and the public recognition of this great circumstance by the three young monarchs who then wielded the destinies of Europe filled with joy the hearts of men, and made the day of their friendly meeting for ever memorable.
Modern civilization has in our own time made another stately stride. Two of the foremost nations in the world, laying aside false pride and subduing the promptings of passion, have consented to submit differences of opinion of the gravest character, and which had deeply stirred both pride and passion, to the arbitrament of five men, eminent in various ways, but chiefly for wisdom, learning, and probity, and who were chosen because they possessed those qualities. And the two nations, to represent their respective views before this august tribunal, sent advocates well selected from among their leading minds.
The actors proved worthy of the splendid ldrama;1 and the losing party submitted to the award with dignified acquiescence. It remains now to be seen whether the statesmanship of the successful country, thus far so temperate, intelligent, and hightoned, will be found, in new hands, adequate to deal wisely and well with what remains for it to do, before the history of this great transaction is concluded, — whether, after this sublime appeal to the great principle of justice as the arbiter between nations, the government of the United States will be seen to
1 No American should take much to heart the singular conduct of " the representative of Great Britain " upon the Tribunal, since it has served more than any thing else as a foil to the high demeanor of his colleague jrom our own country.
respect that principle, to understand its dictates clearly, and to execute them promptly when it becomes itself a high tribunal to adjudicate upon the rights of its citizens as against itself.
An able writer, in the last January number of this Review, has given, under the title of " The Geneva Arbitration, And Its Results," So accurate and lucid a history of the main facts relating to this subject that, for the present purpose, scarcely more is needed than to refer to that article. It is, however, proper to add to the facts there presented one which, though not needed in that connection, is very important here, and that is that President Grant, in his message to Congress of December 5th, 1870, used this striking language: —
I regret to say that no conclusion has*been reached for the adjustment of the claims against Great Britain, growing out of the course adopted by that government during the Rebellion. The Cabinet of London, so far as its views have been expressed, does not appear to be willing to concede that Her Majesty's government was guilty of any negligence, or did or permitted any act during the war by which the United States has just cause of complaint. Our firm and unalterable convictions are directly the reverse.
I therefore recommend to Congress to authorize the appointment of a commission to take proof of the amount and ownership of these several claims, on notice to the representatives of Her Majesty at Washington, and that authority be given for the settlement of these claims by the United States, so that the government shall have the ownership of the private claims, as well as the responsible control of all the demands against Great Britain.
It cannot be necessary to add, that whenever Her Majesty's government shall entertain a desire for a full and friendly adjustment of these claims, the United States will enter upon their consideration with an earnest desire for a conclusion consistent with the honor and dignity of both nations.
It is proper to add, also, that it had been the habit of the Department of State to forward with promptness to our minister at the Court of St. James every claim made upon the British government by our merchants, ship-owners, and underwriters, for injuries and losses inflicted by vessels of the description of the Alabama, with instructions to present the same to the British government; and it was equally the habit of that minister calmly to present them accordingly, although they were received with sufficient discourtesy. And, after the ratification of the treaty, "a circular was issued, under the immediate direction of the