Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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JUDICIARY, Elective. The term judiciary is very generally used to designate the collective body of the judges. It is also used to designate that branch of the government in which judicial power is vested, and the officials serving thereunder. In this more comprehensive sense, in which the word will generally be used in this article, it would include sheriffs, coroners, justices of the peace, commissioners of jurors, marshals, constables, bailiffs, and all the clerks and other subordinates of the courts of every grade; and among them would be county clerks, and other keepers of judicial records. The keepers of land titles, as distinguished from the keepers of judicial records, can in no sense, perhaps, be regarded as judicial subordinates; yet it seems plain that the same consideration which should govern the selection of the latter should also prevail in the selection of the former. In a sense it may be said that the sheriff is an executive rather than a judicial officer; for he is to help preserve the peace, which is a part of the duty of the president—to take care that the laws are faithfully observed. The sheriff is also to arrest offenders, which is an executive act and yet the execution of a judicial order. In a similar sense it may be held that the judges themselves are but subordinates of the executive for executing the laws Blackstone, the great commentator on English laws, thus views the matter, presenting the judges as representatives of the king for doing justice Indeed, kings originally dispensed justice in person, and the judges were at first selected as their substitutes. In its last analysis the distinction between executive and judicial officers is lost in metaphysics.


—The arguments for and against an elective judiciary strike deep both into the theory and into the practical effects of government. Mr. Mill declares ("Considerations on Representative Government," London, 1861, p. 31) that "all the difference between a good and a bad system of judicature lies in the contrivances adopted for bringing whatever moral and intellectual worth exists in the community to bear upon the administration, and making it duly operative on the result." With out much considering either theory or experience, we have in later years yielded with equal facility to blind hopes of reform from mere change, and to cunning devices of partisans for attaining their own ends. The consequences have been disastrous. The great contrariety of methods which now prevails for selecting judges, and the serious abuses which exist in our judicial administration, equally illustrate the gravity of the question and the lack of well considered views in regard to it.


—Considered upon theory, a fundamental and radical view of the matter which seems favorable to the election of judges would be this: that each department of the government alike should rest upon the direct approval of the people. The president and the governors, who are at the head of the executive departments, are elected, and they appoint their subordinates. The members of the assemblies and the senates, which are at the head of the legislative department, are elected, and they appoint their subordinates. Why should not the judges of the courts—the heads of the other departments—who appoint their subordinates, be also elected? Yet neither the president nor the members of the national senate are elected by the people; and if the analogy as to the appointment of subordinates is to be followed, all the officials before named, subordinate to the courts, would have to be appointed or nominated by them, subject to confirmation by the senates. which would make appointive many judicial officers who are now elective.


—But the view just considered overlooks other considerations quite as fundamental and far more important. Members of congress and of legislatures are representative officers sent to speak and act in conformity to the interests and opinions of sections and classes which they represent, not forgetting, however, the general welfare; and that because the great body of the people can not appear in their own behalf. These interests and opinions frequently change. The views of the majority must prevail. These views are generally expressed through a party. It is not, therefore, practicable to disregard the political opinion or the party of a representative official. A real representation is manifestly attainable only through popular elections and short terms of office. The representation would be all the more exact and complete if the official term were but a year; or but for six months, as was once the case in Connecticut and Rhode Island; or but for two months, as was for a time the fact in some of the Italian republics. So, too, the president and governors, as to a part of their functions, are representative officers, taking part in making the laws. For that reason they should be elected and for short terms. Other parts of the functions of those officers are not representative, but are strictly executive, and to a large extent are merely ministerial; involving the business details of the great departments, where the tenure of the inferior officers should be irrespective of party polities. The prostitution for party ends in this branch of executive duties has developed the demand for civil service reform. (See the article under this head)


—On these theories our national and all our earlier state constitutions were framed When we come to the judiciary the facts are widely different. There is nothing representative in its functions; nothing dependent upon majorities or party policies: nothing that should conform to mere opinions or interests, whether general or local. To interpret the laws according to their meaning and to adjudicate the controversies on the basis of principle and justice—absolutely, universally, continuously, in every part of the country and for every citizen irrespective of his peculiar opinions and interests—constitute the supreme duty and safety. For a judicial officer, in the discharge of his duty, to yield to the popular majority or to make a compromise based on the conflicting interests and opinions of the people. as a legislator may in many cases fitly do, is the beginning of corruption and despotism. The very nature of such functions, the need of conforming to fixed principles and of resisting all temporary interests and emotions—not less than the need of long experience for giving a steady, intelligent and consistent interpretation to the statutes—proclaim the utility of a stable judicial tenure—of long terms of office, if indeed any fixed term be provided. To stand upon the precedents and to give effect to the statutes according to their legal import, however the majority may clamor and whatever the interest of his section or his party, is the test and the glory of the true judge It is for the public interest, therefore, that the manner of his selection and the influences thrown about him should be such as most tend to develop a judicial frame of mind. and to make him stand more in fear of the common sense, of propriety and justice, than of any party or any combination of private interests. He whose duties require him to be impartial toward all, ought not to be able to see in the members of one party only those who voted for him. and in the other only those who voted against him. For these reasons, if the election of judges is defensible, it can hardly be on any ground of principle, but must be solely because, as matter of experience, the practical effects of that method of choice have been found beneficial—It may be said. irrespective of all such analogies, that to question the capacity of the people to select the highest officials of any kind is to distrust republican institutions. Without here considering what methods republican governments have provided in this particular, it is well to note an important distinction between judicial and other officers In the case of representative officers the decisive question. whether the candidates would be representative of the interests and opinions of the people, is peculiarly one of which the voters are the most competent judges. And whenever the qualifications and duties of an officer are such as fall within the common intelligence and experience of the voters, there are abundant reasons why their selection may be safely trusted to them. Such would not seem to be the facts in the case of judges. No one but well educated lawyers of large practical experience, and of such none but those of a well balanced, candid judgment, (or to use a phrase which in itself illustrates the limitation intended), none but those of a "judicial frame of mind," are fit to be made judges. The wisest choice is limited. first. to the members of a single learned profession, and, next, to that portion of its members which, very generally, have qualities the least likely to arrest popular observation: and of which, persons of a high order of intelligence, who are likely to be presidents, governors and legislators, are (outside of the legal profession itself) by far more competent judges than the average voter. The average citizen may decide, intelligently, whether a given lawyer would be a good representative of his district, or can make an effective speech before a jury, or is a man of good reputation, but he can hardly form a very intelligent opinion as to his having that exact knowledge of the law and that sound judicial judgment which qualify him beyond his fellows for the bench. As a general rule it may be said that the lawyers, above the inferior class, having the more showy endowments by which the average citizens would be impressed, as well as those who are most likely to seek and gain popularity in partisan circles, are precisely those who are least likely to possess the qualities most needed on the bench. Though there are exceptions, yet, as a rule, those lawyers most competent to be judges are those who practice least before juries, where the people are present, and most in the higher courts, where the people are not present.


—Looking at the matter, therefore, in the light of principle, and assuming that neither corrupt motives nor partisan coercion much affect the choice, it would seem that we should be likely to secure the better lawyers for judges by making their selections through appointments rather than through popular elections. When such vicious influences are powerful, the problem becomes exceedingly complicated. It is possible to conceive a state of facts under which, temporarily, the appointing power might be more demoralized than the public conscience, and therefore that unworthy men could be appointed judges when they could not be elected. The nearest approach to that state of facts, perhaps, was under the council of appointment many years since in the state of New York, and again during the domination of Tammany Hall, in New York city. Yet Barnard, Cardozo, McCunn and all the judicial officers of a lower grade, by which New York was disgraced, were elected by popular vote. No judges of capacity or character so low had ever reached the bench until many years after 1846, when judges were first made elective in that state. And if it be conceivable that a governor and legislature, or either acting alone, would have put such men upon the bench, it is certainly impossible that any worse could have been selected. That the wide-spread bribery and corruption of the voters by which, through popular elections, such men reached the bench, were far more disastrous than anything which would have attended the appointment of the same men, can hardly be doubted. And it is not conceivable as a continuing condition, or except under very anomalous circumstances, that the moral tone of those who would control nominations can be lower than that of those who would control the action of the party majorities, by which, after appointments have given place to popular voting, the choice of judges is almost invariably given these officers. Whenever in a community there is such independence of partisan bias and coercion that the voters will leave their party or the judicial candidate of their party. in order to vote for a better candidate of the other party or in order to vote for some better man of their own party than its convention has nominated, it is quite certain that the appointing power must be in worthy hands. The very causes which would produce a bolt from the nomination of a bad candidate. would secure the election of governors and legislators who would not venture to prostitute a power of appointing judges. We are therefore, in this view of the matter, thrown back again upon the relative merits, intrinsically considered, of the two possible methods of selection.


—If from theory we turn to practice, we find that almost the sole experience of an elective judiciary among the more enlightened nations is limited to this country, and to the last thirty-eight years. Yet at an early period most of the sheriffs in England were chosen by the inhabitants of the several counties, though some of them were hereditary. But tumultuous elections caused them to be made appointive in the time of Edward II., and such they have since remained. A statute of Richard II. (well worthy our consideration) provides that no person shall be selected by those having the appointing power for justices of the peace or sheriff, "that sueth either privately or openly to be put in the office, but only such as they shall judge to be the best and most efficient." Office seekers are thus made ineligible. Coroners in England have, from early times, been chosen for life by the freeholders of the county court, and upon this precedent our practice of electing coroners seems to have been based; though in England, as with ourselves, the popular election of such officers has been found as vicious in its effects as it is repugnant to all sound principles. No other judicial officers have been elective in Great Britain.


—The inconsiderate facility with which judicial officers were first made elective in the early years of this generation, is a striking and significant fact in our politics. But the authors of the "Federalist" pointed out that, by reason of the few who can give intelligent consideration to judicial matters changes could be made in the judicial department more easily than in the others. In 1787, when the federal constitution was adopted, each of the thirteen states, except Rhode Island and Connecticut which had retained their charters, were under constitutions of their own creation. The elections of judges, and (with slight exceptions) the elections of judicial officers of every grade, were unknown except in Georgia. In Massachusetts, Maryland and New Hampshire the judges were appointed by the executive. In New York and Pennsylvania the appointments were made by the executive and a council of appointment. In Delaware the executive and the legislature appointed. In New Jersey, Virginia, North Carolina and South Carolina they were appointed by the legislature. In South Carolina the legislature appointed justices of the peace and sheriffs, and in Georgia it appointed justices of the peace and registers of probate. The tenure was generally that of good behavior. The one striking exception to these general principles was the first constitution of Georgia, adopted in 1777, which contains very peculiar provisions. The legislature was a single body. Juries were made judges of both the law and the facts. No person could practice law without a permit from the legislature. The judges of the two higher courts were made elective by popular vote for me year only. This seems to be the first instance of the election of judges by popular vote, or of their being given a fixed term in this country. Two years later the term in Georgia was extended to three years and a state senate was created, but judges were left elective. The elective system did not give satisfaction, and it greatly divided public opinion. Before 1852 judges had become appointive by the legislature. In that year they were again made elective by the people. In 1861 it was provided that the governor should nominate and the senate confirm them; the highest grade holding for a term of twelve years. Georgia has not since made her judges elective.


—The debates pending the adoption of the federal constitution, equally with its provisions, disclose a profound sense of the need of making the bench independent of the pressure of partisan and selfish interests. Neither the president, who is to nominate, nor the senators who are to confirm, are directly elected by the people. The judges are to hold their places "during good behavior," and they are to "receive for their services a compensation which shall not be diminished during their continuance in office." The general purity, efficiency and dignity of the federal courts, the high estimation in which they have been uniformly held by the people, as well as the indisposition to make any change in the method of selecting the federal judges, would seem to be the best test of principles upon which these courts are based. A proposition to make the judges of the supreme and other federal courts elective by popular vote would doubtless be received with something like universal repugnance; and few, probably, would think it could be carried into practice without serious danger to the government.


—The partisan interests and theories which, during the last forty years, have caused so great changes in the judiciaries of the states, have produced obvious effects upon the federal courts. The federal judges in the territories have been made appointive for a term of only four years; there by involving their tenure in presidential elections and tempting them to take part in local politics; a temptation of which it is easy to trace the mischievous consequences in the judicial administration of the territories. It would seem to be plain that such a term of office, illustrating the advance of the spoils system in our politics, is repugnant to the spirit if not to the letter of the federal constitution, which declares that the judges, both "of the supreme and inferior courts, shall hold their offices during good behavior." Is not a territorial court an "inferior" court? The lamentable effects upon the federal judiciary, of bringing party politics upon the bench, and of state judges standing as candidates for politics offices, is further illustrated in the apparent willingness of the late chief justice of the supreme court and of several associate justices in recent years, to be presented as candidates for the presidency. And when, soon after his appointment, Chief Justice Waite refused the use of his name as a presidential candidate, for the reason that it would compromise the becoming independence of his position, he displayed a high sense of duty and propriety which deserves more attention than it has received. When, in his letter of refusal, be inquired whether, "if he allowed his name to be used to promote a political combination," * * "he could, in all cases, remain an unbiased judge in the estimation of the people," and further declared that "there can be no doubt that, in these days of politico juridical questions, it is highly dangerous to have a judge who looks beyond the judiciary to his personal ambition," he acted upon reasons which condemn the whole theory under which popular elections and short terms of office have made the judiciary of so many states responsive to political influence and party majorities. The causes which, in the last thirty-five years, have led to the selection of so many judges by popular elections and for short terms, were of slow growth. They need not be traced here: but see TERM AND TENURE OF OFFICE, and SPOILS SYSTEM.


—Prior to 1820 the subordinate officers of the executive departments (with the single exception of marshals) had no fixed terms. In that year collectors, district attorneys and some others were given a term of four years. The change was made without debate and in obedience to a growing demand for more patronage, re enforced by increasing despotism in party management. Jackson's administration explained the significance of the changes. Under him, in 1832, Marcy of New York proclaimed, in the senate, the doctrine that "to the victor belong the spoils," which shows pretty clearly the spirit that was then being developed in his state. (See SPOILS SYSTEM) In 1836 a four years' term was extended to all postmasters having a salary of $1,000 and over. This increased patronage but emboldened the demand for more places to fill, to which each of those laws was a surrender. Had not the provisions of the federal constitution been in the way, it may well be feared that the offices to which the four years term was extended would have been made elective. But why should not judges as well as postmasters and collectors have short terms? And since a state may be induced to elect them, why should they not, as well as legislators, be elected by the people? This was the logic of the patronage mongers and the spoilsmen. When urged by persuasive orators before popular audiences of farmers and lumbermen in the border states, it is by no means easy to resist. Nor is it much less effective with a large class of voters in the older states, when jointly urged by the lawyers who wish the ways easy and numerous to the bench, and by the politicians who seek more patronage to disperse and more frequent elections to manipulate. Judges were made elective in Missouri in 1820; in Mississippi in 1832; in Alabama in 1833; in each case for short terms; being for the presidential period of only four years in Mississippi. But the latter state, alarmed at the prospect, has since made her judges appointive. These dates indicate the development of those influences which introduced partisan proscription at about the same period into the executive service of the nation. It was natural that New York, where the spoils system was most developed, should be the first of the older states to commit her judiciary to popular elections and short terms. In 1846 she made her judges elective for the first time, and reduced the tenure of good behavior to a term of eight years. Various subordinate judicial officers were also made elective. The state was divided into eight judicial districts, and the judges were declared elective by popular vote separately in each of these districts. To careful observers the injurious effects of the new system very soon appeared, in a vicious partisan activity steadily increased, in judges who were greater politicians and lesser lawyers than had before been on the bench, and in more uncertainty in the law and less respect for the courts. The deplorable corruption in the judiciary of that state to which such abuses finally led, need not be described. The purest and ablest of the judges, lawyers and statesmen of New York, and the great body of her more enlightened citizens, have joined in lamenting this introduction of judicial elections. They made an effort in 1873 to reverse the disastrous experiment, but partisan influence prevailed; though the term has been extended from eight years to fourteen; the districts have been reduced from eight to four; the highest court has been made permanent; and in New York city the elective system for inferior criminal justices was overthrown, and such justices have been made appointive; important steps back toward the original system for which public opinion in that state is steadily growing more favorable.


—On the occasion of the election in 1873 the association of the bar of New York city (composed of more than 700 of the leading members, after full discussion) adopted, by a majority of more than five to one, a statement of reasons why judicial elections had been disastrous and should be abandoned in that state, from which we make the following extracts: "The change to an elective system was not made because the people demanded it, or because the method of appointment in this state or elsewhere had developed any judicial abuses; for there was no such demand; and in the whole period prior to 1846 not a scandal had touched the character of a single New York judge in connection with his judicial functions." * * "When the elective system was submitted to the people in 1846, there was almost no discussion before them." * * "Judicial elections have, in our opinion, as a rule, been unfavorable to the selection of men of the greatest ability and attainments for the bench. and not less unfavorable to the prevalence of courage and fidelity in the discharge of judicial functions. The judicial canvass is in its very nature demoralizing: and the temptation is dangerously strong to make commitments unfavorable to justice. The judge who reaches the bench through a party contest at the polls. where one portion of the people support and the other oppose him, by no means finds it as easy to be impartial, nor do lawyers and suitors find it as easy to believe him impartial, as if he had been appointed by the governor and confirmed by the senate." * * "Such selections have also been prejudicial to learning and character among lawyers. Lawyers of inferior capacity, aspiring to the bench, have been induced to intrigue for caucus and party influence, and thus the more honorable conditions of professional advancement have been disparaged and neglected. Much in the same ratio in which inferior lawyers have been able to reach the bench, under the elective system, persons of small education and uncertain character have made their way at the bar." * * "The election of judges, by giving more offices to be made the subject of bargaining and intrigues by the managers of popular elections, has increased the number and power of those party mercenaries who live by the spoils of elections, and the same cause has aggravated the excessive power of the mere party majority." * * "It has been one of the results of our elective system"—responding to party majorities and local influences—"that our decisions have wanted consistency, and our whole judicial system has been fluctuating and feeble. In the period during which Massachusetts has had only eighteen supreme court judges, or judicial terms, and all England has had only forty-one in her three higher law courts. New York had had one hundred and sixty judges or judicial terms, in her supreme court, and one hundred and twenty in her court of appeals. And our excessive appeals and overrulings and reversals of decisions have been much in the same ratio as compared with those of England and Massachusetts." * * "This system, to the knowledge of all of us, calls to the polls every vicious and criminal voter by all the direct interest he feels in his own safety for the past, and by his hopes of impunity for the future It appeals to the honest and virtuous voter only by a remote interest, or a mere disinterested sense of duty."


—In the work of Mr. Mill, already cited, he says: "Of all officers of government, those in whose appointment any participation of popular suffrage is the most objectionable are judicial officers. While there are no functionaries whose especial and professional qualifications the popular judgment is less fitted to estimate, there are none in whose conduct absolute impartiality and freedom from connection with politicians are of anything like equal importance. The practice, introduced by some of the new or revised state constitutions of America, of submitting judicial offices to periodical popular re elections, will be found, I apprehend, to be one of the most dangerous errors ever committed by democracy."


—Massachusetts, New Hampshire, Connecticut, Vermont, Rhode Island and New Jersey have never adopted the elective system; though Connecticut introduced a term of eight years for her appointive judges. New Hampshire has on two occasions—and apparently only in order to give the dominant party an opportunity to secure patronage—abolished its judicial system and created another into the offices of which the dominant party proceeded to put its favorites by appointment. Pennsylvania was but four years behind New York in yielding to the pressure for the election of judges; exchanging, in 1830, her appointments and her tenure of good behavior for popular elections and a term of eight years. The effects, only a little less disastrous than in New York, caused the term to be extended to twenty-one years in 1874. In 1875 Missouri, the first state after Georgia to adopt the elective system, was compelled for the same reasons to extend her judicial terms from six to ten years. Ohio also has felt the same influences. Her constitution of 1802 made her judges appointive by the general assembly for seven years. In 1851 the term was reduced to five years, and the judges were not only made elective but they were required to be residents of the district where they were elected. These facts sufficiently indicate the causes to which the change of system has been due and its effects, and we have not space for further particulars. It would be instructive, if we had space, to point out the uncertainty in the law, the increased litigation, the greater number of appeals, the loss of respect for the courts, and the incompetency upon the bench, which have been the consequence of these short terms and of popular elections.


—There appear to be twenty-four states in which the judges are now elective by the people. The terms vary in length from two years in Vermont—though Vermont keeps her judges, by reappointments, a long time in office—to twenty-one years in Pennsylvania; the average length being about ten years. In most of the states where the judges are appointed, there is no fixed term, but a tenure of good behavior. Nearly all the recent changes in the judicial system where terms exist, have increased their length. Several states have within a few years returned to the method of appointment. The spirit of reaction against an elective political judiciary appears to be still on the increase.


—There is one part of the system of popular elections, that of electing the superior judges in separate districts, which hardly fails to have a pernicious influence, for, while suggesting to the people the idea that judicial action should be representative, it also brings the judges into a dangerous dependence upon local interests and feelings. They are naturally expected by the people of their district to so interpret the law as to protect their part of the state. Some of the states have even required each judge to be a resident of the district where he is elected; as if he was, in a strict sense. a representative officer. This district system is unfavorable to the election of the abler men whose reputations are known over the whole state. A very ordinary lawyer may secure popularity in a district. It is of the utmost importance that the people should feel that the interpretation of the law and the principles of justice are the same not only at all times but in every part of the state, identical in spirit, uniform in administration, recognizing neither locality nor occupation. This local district system teaches the contrary. There is reason to think that not a few decisions made by these local judges, which have in so many instances been reversed on appeal, can be traced to the bias or the fears which have been caused by such local influences. Between such causes and the effects of short terms and of electing popular lawyers by popular votes, the proportion of appeals and of reversals of decisions in our state courts is not probably approached in the judicial procedure of any other enlightened nation.


—It may be said in defense of the method of popular election, that no people under republican institutions can reasonably expect to secure judges, on the average, above the standard which the people regard as appropriate for the bench, and that, by allowing every man to vote, the result will represent that standard. Abstractly considered, this view has much force. But we have seen that there are peculiar reasons why the people generally are not likely to rightly estimate judicial qualifications. Besides, it follows, almost as a necessity, that the nominations for judges are made by the same party conventions which nominate representative officers, and that the election of both is, for that reason, generally dependent upon the same party management. The better class of voters who desire learned and able judges more than party victories, do not all belong to one party. They are kept from acting together, and their influence is divided and weakened by the very process of putting the candidates in nomination. These facts, besides constantly teaching the people that a judge is both a representative official and a party candidate, tend to cause the members of one party to expect favor and the other to fear injustice from the bench where he presides. The very fact of the nomination being made by one party tends to cause a distrust of the candidate on the part of the members of the other. Many decisions involve, if not party questions yet the interests of party chieftains. Nor are these the only cases in which lawyers and their clients do not disregard the politics of a judge and the obligations implied in his election. In the case of an appointment, it is only a few and not the whole voting population that get heated and prejudiced from the method of the selection. And it is not only the people who by the very methods of election are drawn into distrusts and divisions, but the bar itself. Its members belong to the different parties; and on the platforms and at the polls the elective system divides them into advocates and opponents of the candidates before some of whom they are to ask impartial judgments for their clients, among whom the same divisions have been in the same way produced. That this false teaching has affected the public estimate of the relation which judges should sustain toward politics, can hardly be doubted. Where is the statesman among us who would dare put forward a candidate for a judge who was not of his own party? The nomination even of Mr. Conkling, the most intense partisan of his time, for the supreme bench, has just met with only moderate dissent. But in Great Britain, where an elective judiciary is unknown, Mr. Gladstone has just made Sir John Holker, the tory attorney general of Lord Beaconsfield, a lord-justice of appeal, with the approval of his own party. When the ordinary voter casts his ballot, the fit inquiries he makes are these: Does the candidate uphold the principles of my party? Will he protect the interests of my district? These questions he can properly answer. But, when among the same parcel of votes he finds one the wise and just casting of which requires him to disregard those principles and to rise above those interests, and to answer this question alone: Is this candidate an upright lawyer, having that learning, experience and judicial frame of mind which fit him for the bench? it will be fortunate indeed if he shall have both the freedom from party bias and the special information needed to answer that question properly.


—It seems quite clear that during the period in which there was the strongest tendency to make judges elective and their terms short, there was also a tendency, stronger than ever before, to reduce the period of study and the scrutiny of examinations, required for admission to the bar and for graduation at the law schools. And, on the other hand, since the reaction against popularizing the judiciary, these periods of study have been generally increased and the examinations for admission to the bar have generally been made more severe. The law schools and the rules of court in the state of New York and the law school at Harvard university may, among others, be cited as examples of the true significance of the reaction.


—It can not be doubted that the evils which have attended an elective judiciary, as well as the causes which have enlisted supporters for it, have been in an influential manner connected with the growth of the spoils system in our executive administration. The patronage of bestowing the subordinate appointments under the judges has been a chief object on the part of the partisan managers who have generally dictated the judicial nominations. We have no space for presenting the facts But in New York, and in varying degrees elsewhere, this patronage has been apportioned and made sure of before the nominations have been made. The tender of the nominations has been accompanied with a demand of the patronage, and without the pledge of it the nomination would be withdrawn. In New York the subordinate positions under the judges have been crowded with supernumeraries in order to make places for the dependents of great politicians and for those henchmen who were effective at the polls. The shorter the terms and the more compliant the candidate. the more abundant and valuable is this patronage to the party manipulators. We may be sure this evil and kindred abuses will increase with the growth of cities and the development of luxury. Already in New York there are good reasons for believing that judicial nominations have very recently been made upon the condition of the payment of a large sum into the treasury of the party making them. If the reform methods already shown to be practicable (see CIVIL SERVICE REFORM) shall be introduced, according to which real tests of merit, and not mere official favoritism and partisan influence, will secure entrance to these subordinate places, the zeal of parties for judicial elections would be greatly abated. It would then be far easier to return to the method of appointment, whereby the growing evils of too many elective officers would be diminished, at the same time that some of the most objectionable accompaniments of appointments would be removed. For, it is equally true that the patronage of these subordinate places has been the cause of what has been most objectionable and corrupt when judges have been appointed as well as when they have been elected.


—The method of selecting judges by appointment has not been uniform. In several states they are selected by the legislature alone; in others they are nominated by the governor and confirmed by the senate; in others still they have been nominated by the governor and confirmed by the two houses of the legislature. Changes so frequent and methods so discordant are abundant proof that the whole subject needs careful study; and they make it probable that some better system may yet be devised for separating the judiciary from party politics and active interests, while uniting the better men of both parties in common efforts for advancing the fittest lawyers to the bench.


—Of all departments of the government the judiciary is that which needs to be most selfpoised and most independent of party politics and temporary interests and excitements And yet, if it is not by popular elections made directly dependent upon such influences, it is by appointments made to rest upon the favor of presidents, governors and legislators, by whom those influences are, both in theory and in fact, represented. In other words. our appointments for one department stand upon the two others as a basis. The problem is to give the judiciary an independent foundation, and yet as far as practicable a nonpartisan and non-representative foundation. There is also a great need of a more thorough supervision than we now have of the action of our judicial tribunals—of those of the lowest rank not less than those of the higher; and of the doings of sheriffs, coroners, marshals, constables, jailers, wardens, and of the whole prison system as well—the results of which should every year be presented in full detailed reports. The comparative expense and efficiency under each court and the other several classes of officers should be made public. Such reports would bring to light and hence defeat much extravagance, injustice and inefficiency. They would at the same time increase the official sense of responsibility. We have been treating the administration of justice, and especially the duties of subordinate judicial officers, as if they only concerned the localities. We have allowed something like secrecy and great confusion and injustice in our lower courts. May it not be practicable, especially in the larger states where the need will be greatest, to create a body which, in addition to performing these latter duties of supervision, shall be clothed with the authority (now accorded to governors) of making judicial nominations? It might also have the duty of presenting impeachments of judicial officers now given to legislative assemblies. It is very likely that strong objections will at first be made to so novel a mode of nominations. But it may be hoped that on reflection no objection can be sustained which would not be equally valid against a nomination by a governor, while various objections to the latter would be avoided. If such a body or board could be made up of three or five ex judges of the higher courts, (either to be elected, or to succeed to their places ex officio,) with terms so arranged that changes in the board should be gradual, it would seem that nominations might be made that would be in great measure free from party politics and mere local interests. Men long trained to judicial habits would not bring the political ambition, spirit or dependence of a newly elected governor. It would also be possible, and largely upon the basis of English statutes, to greatly increase the peril of making appointments and removals for unjustifiable reasons. We have thus far treated the power of nomination rather as a perquisite than as a trust, (see REMOVALS), and from this cause have sprung grave objections to the appointment of judges, which it is quite possible to remove by adequate legislation.


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