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AMERICAN LAW REVIEW. ￼
Twenty years ago, in the summer of 1853, a constitutional convention in Massachusetts discussed various questions as to the judiciary,—: should judges be elected by the people, or by the legislature, or continue to be appointed by the executive; should the tenure of their office be during good behavior, or for a term of years; and should their independence be secured by permanent salaries not liable to diminution, or should their compensation be subject to legislative control?
The essential inquiry underlying the whole debate was whether the judicial department ought immediately to reflect the popular will, and the judges to be responsible to the people for their decisions, on peril of losing their offices if they failed to satisfy the majority; or whether they should be "as free, impartial, and independent as the lot of humanity will admit."
On one side, the disciples of Jefferson appealed to him as the highest democratic authority; maintained that an independent court was an aristocratic institution, not consonant with the spirit of Republicanism; and complained of the bad manners of judges, but, in no instance, of their want of learning, integrity, or good morals. They also pointed triumphantly to the example of other states, especially of New York, where this great reform of an elective judiciary was said to be in the full tide of successful experiment. They charged their opponents with fearing to trust the people* and with clinging superstitiously to notions as antiquated
as the cocked-hats, wigs, and small-clothes of their grandfathers. There was no lack of sincerity, ardor, ability, or eloquence, on the part of the advocates of innovation. They were answered by such men as Choate, Dana, Greenleaf, and Parker. The ability shown on both sides was of a very high order, and no student of the questions at issue can afford to omit a careful perusal of the entire discussion. The great effort of Mr. Choate is, perhaps, the finest remaining monument of the transcendent genius of that wonderful advocate and orator. The question was decided in favor of limiting future judicial appointments to a term of ten years, but against any other change.
The revised constitution, submitted by the convention to the people for ratification, was by them in every particular rejected, — a result largely attributable to the proposition to alter the judicial tenure of office. And yet, amidst the rejoicings of those who had prevailed, there was a wide-spread feeling that perhaps, after all, their victory was only for a time; that, if the evil had been postponed during their day, the next generation could hardly expect to escape it. And the defeated party consoled their chagrin by the belief and declaration that they had only to submit to a little delay, and in a few years the most sluggish and conservative would be satisfied to have Massachusetts follow the bright examples of more progressive states. Such apprehensions and such hopes have been shown, by the experience of twenty years, to be altogether erroneous.
There never has been a period in the history of Massachusetts when her people were more nearly unanimous than they are to-day in their content and satisfaction with the judicial system which was adopted in 1780, and under which, for nearly a century, the rights of all to life, liberty, property, and character, have been preserved by an impartial interpretation of the law and administration of justice.
The experiments and experience of other states, which have made judges elective and immediately dependent upon the popular will, have been closely watched by the people of Massachusetts, and with the observation all temptation to inaugurate a similar change has passed away.
New York, by its revised constitution adopted in 1845, made the judges of the Court of Appeals and Supreme Court elective for a term of eight years, and provided that the compensation for their sen-ices should neither be increased nor diminished during their continuance in office. Under that system, the most populous and greatest commercial state in the Union has lived for twentyeight years, and its people are now about to pronounce judgment for or against its continuance.
By a constitutional amendment adopted in 1869, at the general election in 1873 a majority of the electors of New York will decide whether their principal judicial officers shall hereafter be appointed by the Governor, by and with the advice of the Senate, or shall continue to be elected by the people. Important as this question is to the welfare of that state, even there it seems, up to the present time, to have excited less interest than many transient political topics which pass away and are forgotten in a day.
But not only are the people of New York deeply and permanently interested in the decision, it is also indirectly of great importance to the other states of the Union. For the deliberate and considerate judgment of the inhabitants of that great state upon such a question, formed in the light of long experience, will be much respected everywhere else.
Should the empire state retrace its steps and return to the ancient ways, other states which have followed her former example may be persuaded to follow the new one also. And at least such a precedent of the thorough trial and deliberate abandonment of the plan of electing judges by the people will be one of the strongest practical arguments against that method whereever it may be proposed in states still possessed of an appointed judiciary, and in every new state emerging from a territorial condition, and framing its original constitution.
The present time, then, is a fitting one for some observations upon this important constitutional question.
There is certainly no free state, and hardly any civilized nation, in which the functions of government are not distributed amongst three departments, — the executive, legislative, and judicial. In England, during the Stuart dynasty, the judges appointed by the crown held their commissions during the royal pleasure; and they were frequently dismissed from office without any other pretext than that they had not sufficiently promoted the political views of the government. This was a period during which executive power sought to dominate over both the legislative and the judiciary; and, in contests with the judges, the power of removal. ordinarily gave the royal wishes supreme control. The general behavior of the bench was that of infamous subserviency. Without adverting to the familiar instances by which this notorious truth might be illustrated, the very exceptions to it prove the rule. When King James I. called before him the twelve judges to reprimand them for not having obeyed a letter of the Attorney-General, directing a stay of proceedings in a cause between private parties, which was deemed to affect indirectly the royal prerogative, and at the end of the interview put the question, — "In a case where the king believes his prerogative or interest concerned, and requires the judges to attend him for their advice, ought they not to stay proceedings till his Majesty has consulted them ?"— it was Lord Coke alone who made the sturdy and memorable reply: "When the case happens, I shall do that which shall be fit for a judge to do;" but his eleven associates cried, "Yes, yes, yes!" The consequence was that in three weeks he was suspended from the exercise of his judicial functions, and in less than six months was dismissed from office. The inevitable products of such a system were such judges as Scroggs and Jeffreys.
After the Revolution of 1688, the commissions of King William's judges ran during good behavior; and, by the seventh clause of the Act of Settlement, passed in 1700, this was made a permanent constitutional provision, and henceforth judges could be removed from office only by impeachment or upon an address of both houses of parliament.
In the first year of George III. (1761), the independence of the judges was completed by providing that their commissions should not expire on the demise of the crown, and making their salaries a permanent charge on the civil list. The King's message recommended this act of parliament, because " the independence of the judges is essential to the impartial administration of justice, best for the security of the liberties and rights of my subjects, and most conducive to the honor of the crown." All English statesmen and jurists agree that these provisions are among the most important safeguards of English constitutional liberty.
The history of the oppression and cruelty which induced the people of England to demand their adoption was perfectly familiar to the statesmen who were the leaders of the American