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Revolution. No men were ever more profoundly learned in English constitutional history than they. Burke said, in his great 6peech on conciliation with America, that " nearly as many copies of Blackstone's Commentaries had been sold there as in England, that all the people were lawyers, and therefore judged of the pressure of a grievance by the badness of a principle, and snuffed the approach of tyranny in every tainted breeze;" and among the measures of conciliation which he proposed was to secure to the colonies a fair and unbiased judicature, by providing that, after the colonial legislatures had granted settled salaries to their judges, their offices should be held during good behavior. How well he comprehended the situation became apparent a year later, when the Declaration of Independence enumerated in its catalogue of grievances that the king had "made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries."
The constitution of Massachusetts was framed and adopted in the midst of the Revolutionary war. Tradition ascribes to John Adams a principal share in its construction. Doubtless he was primus inter pares, though many other lofty spirits, the names of ouly a few of whom have survived to our generation, co-operated in the great work. The Massachusetts declaration of rights asserted, in language as bold and broad as the extremest democrat could desire, the fundamental doctrine that all power resides originally in the people, "and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them." But it also declared "that it is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries, ascertained and established by standing laws.
"In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them, to the end it may be a government of laws, and not of men."
Seven years afterwards, in the Constitution of the United States, it was provided that the President should nominate, and by and with the advice of the Senate should appoint the judges of the Supreme Court, and that the judges both of the supreme and inferior courts should hold their offices during good behavior, and their compensation not be diminished during their continuance in office. This article is said to have been adopted in convention without a dissenting voice. Although "a government of the people, by the people, and for the people," was the desire and aim of our forefathers, yet they recognized the necessity of a system of checks and balances, of the exercise of a certain measure of self-restraint to be put by the people upon themselves in order to the protection of the few or of one against the majority, in order that the real and deliberate will of the majority might ultimately prevail, rather than its transient, fleeting, and fickle voice. They regarded an independent judiciary as equally important in a republic against gusts and waves of popular excitement, as in a monarchy against the usurpations of the crown. Although they did not expect the ship of state to sail against wind and tide, yet they did not mean to have its keel so built or its helm so managed that it could be overturned or turned back from its normal course by every sudden squall.
It is not easy to perceive how, under a written constitution, intended as a fundamental law to restrain, override, and nullify all legislative acts in conflict with its provisions, any other notions could obtain currency. The very idea of such an instrument involves the supposition that there may be a temporary will of the people, expressed by a majority vote, in conflict with their most solemn and deliberate will expressed in the great charter of the constitution. The latter must be changed before effect can be given to the former. Who or what institution shall restrain the execution of the temporary wish until the deliberate purpose can be duly and formally ascertained? There is, and in the nature of things there can be, no other department of government for this purpose than the judiciary. To secure such a breathing time, such opportunity for reflection, for reconsideration, for the deliberate expression of the real wish of the people, a perfectly independent judiciary is even more important in a country like the United States, governed by a written constitution, than it can be in England where the will of parliament is omnipotent. Such were the doctrines of the founders of the federal and state constitutions, and until many years afterwards few traces of different opinions are discernible. Jefferson's letter to Kircheval, written in 1816, and published contrary to the wishes of the writer, which is said to have postponed for thirteen years the holding of a convention to revise the constitution of Virginia, is one of the earliest enunciations in favor of a judiciary elective by the people. In his draught of a constitution for Virginia, prepared in 1783 and first published in 1788, as an appendix to his notes on Virginia, the scheme proposed is an election of the higher judges by joint ballot of both houses of assembly, to hold their offices during good behavior, with salaries not liable either to increase or diminution affecting any one actually in office; and an appointment by the governor, on advice of the council of state, of the judges of inferior courts, who are also to hold office during good behavior, or during the existence of their court. In the part of the notes which describes the existing constitution adopted in 1776, he thus censures it for giving too great power to the legislature: "All the powers of government—legislative, executive, and judiciary— result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one: 173 despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention, which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependent on the legislature for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made, nor, if made, can it be effectual, because in that case they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches." In the Kircheval letter, in case a judiciary chosen by the people should be found unattainable, which he fully expected, a decided preference is expressed for executive appointment over legislative election. Upon this question he says: "Let us at least not adopt the evil and reject the good of the English precedent; let us retain removability on the concurrence of the executive and legislative branches, and nomination by the executive alone. Nomination to office is an executive function. To give it to the legislature, aa we do, is a violation of the principle of the separation of powers. It swerves the members from correctness, by temptations to intrigue for office themselves, and to a corrupt barter of votes; and destroys responsibility by dividing it among a multitude. By leaving nomination in its proper place among executive functions, the principle of the distribution of power is preserved, and responsibility weighs with its heaviest force on a single head."
We have quoted the sentiments of Jefferson not merely for their intrinsic value, but because they have almost the weight of admissions from a hostile quarter. He was not originally particularly zealous for the adoption of the federal constitution. At no period of his life was he suspected of any bias in favor of the judiciary; nor was he ever accused of that distrust of the people, reverence for the past and predilection for English institutions, which are charged, with some degree of justice, upon certain other statesmen of that day.
Whoever desires to 6ee the most complete and masterly exposition of the subject will read the numbers of the Federalist from the lxxvi. to the lxxx. inclusive, the wonderful ability of which justifies the declaration of a British essayist, that "the work altogether, for comprehensiveness of design, strength, clearness, and simplicity, has no parallel among the political writings of men, not even excepting those of Montesquieu and Aristotle." No extracts from these papers can be made without doing them injustice by an imperfect presentation of their compact and philosophical reasoning. Hardly a sentence can be omitted or a phrase altered or dislocated without impairing their power. From every fresh perusal of them we rise with increased admiration.
The particular question, whether a popular election of judges is desirable, is not dwelt upon, because such a project was at that time unknown, and seemed inconceivable. But the argument in favor of executive appointment and permanent tenure of office covers the whole ground. It has been already remarked that the real controversy between those who favor and those who oppose an elective judiciary turns upon the question whether this department of the government ought to be dependent or independent. Under every government, and in every generation, occasions arise when men are charged with crime and put upon trial, against whom violent popular prejudice is excited. That of the demented negro Freeman in New York, whom Mr. Seward volunteered to defend, against the remonstrance of his own nearest personal and political friends, may be instanced as an illustration. Who can fail to perceive that when the voice of the people is crying out for the blood of a victim, he is not likely to have an impartial trial before a judge who is himself speedily to be put upon trial before the same people on the question of his own re-election. And if the judge, as many honorable men would, rises superior to all personal considerations, how impossible it is that the prisoner and his friends should, from the beginning, feel the same confidence in his impartiality as if his continuance in office were not liable to be affected by his leanings during the trial! Public confidence in the impartiaUty of a judge is only second in importance to actual impartiality. A judge is also frequently called upon to administer an unpopular law: will he do that, or be thought to do it, fairly and efficiently on the eve of an election at which he is a candidate for a second term? In civil causes, the rights of a corporation may be at stake which a popular majority, in the excitement of the moment, may feel has no rights that they are bound to respect. Ought such a cause to be determined before a judge who has been, or is liable to be, elected upon such an issue? The litigation maybe between two individuals, one of whom is unpopular or unknown, wholly destitute of influence, while the other is a powerful member of the dominant political party, whose influence largely contributed to secure the original