English authorities on the American side of the question, at least so far as the house of commons is concerned. Lords Brougham and Langdale, Sir Samuel Romilly and Mr. Curran may be mentioned as such. On the other hand, Mr. Bentham was of opinion that there was so little legislative talent in the world that no place fits so well for legislative business as the bench, and that it was suicidal to exclude the judges. The questions we have to answer are these: Does experience teach us that judges, having a seat in the legislature, where they needs must belong to one or the other party, allow themselves to be influenced on the bench? In England, there are striking instances that, in modern times, they may resist their own political bias, in Eldon, Thurlow, Mansfield, and Hardwicke. But this remark extends to common cases only. Were they, or would they have been utterly unbiased in all those trials that may be called political? The pervading character of self-government and independence of the law has certainly given to the English bench a traditional independence. But how long has this existed, and what times may not possibly recur? It appears, throughout the Life and Correspondence of Justice Story, that so soon as he was elevated to the bench he not only avoided being mixed up with politics in any degree whatsoever, but even the mere semblance of it. He seems to have been peculiarly scrupulous on this point.

The second question we must answer is this: How does the judge get into the legislature? Can he do so without electioneering? The more popular a representative government is, the more necessary the immediate contact between the candidate and the constituents becomes. And who wishes to see the judge, that ought to be the independent oracle of the law, in this position?

Mr. Bentham's observation regarding the general unfitness of the world at large for legislative business, and the peculiar fitness of judges for it, requires also some modification. How is it with sanitary laws? Few physicians sit in legislatures, and those that have a seat are not placed there because they are at the head of their profession. We must necessarily trust

to the general influence under which a legislature legislates. As to the fitting of the bench for legislative business, it is undoubtedly true with regard to a large class of that business; but we must not forget that the judge is and ought to be a peculiar representative of conservatism; which nevertheless unfits him, in a measure, for all that business which is of a peculiarly progressive character. Almost all law reforms have originally been resisted by the bench. It is not in all cases to be regretted. The judges are the breaks which prevent the vehicle from descending too fast on an inclined plane; but the retarding force must be overcome in many cases, however serviceable it may be that the action of overcoming the difficulty may have been modified by the very process.

I cannot help believing, then, that upon the whole judges ought to be excluded from the legislature; they certainly ought to be so with us. To allow them a seat in concentrated governments as in France would be calamitous. But this reason is, à fortiori, one why judges ought not to be elected by the people.

We are frequently asked whether the elective judiciary works badly? The answer is, that a ball rolls awhile from the first impulse given to it. So far old judges have generally been elected under the new system; and we would ask on the other hand: Has the former system worked badly? I believe, then, that elective judges are a departure from substantial civil liberty, because it is a departure from the all-important independence of the law.

The foregoing paragraph was written in 1853; and I have now to add, in 1859, that a judiciary elected by the people seems to be, universally and unqualifiedly, considered a serious. failure. I state this, conscientiously to record facts concerning so important a topic. The most attentive observation, extensive perusal of public journals, consultation of lawyers and statesmen, have not brought to my knowledge a single opinion in favor of an elective judiciary. Everywhere it seems to be acknowledged that it was introduced into our constitutions from no dissatisfaction with the existing system, or with the judges,

but simply to satisfy the desire of increasing the power of the power-holder-to be subservient to the sovereign; that in reality it does not increase the power of the people, since persons, if appointed by popular vote, are nominated by a small number of so-called leading politicians, and the people at large can discuss the matter as little as the ecclesia in the agora could discuss; that the confidence of the people in the judiciary has been lessened, and through it the confidence even in the jury system; that if a possible increase of salary is believed to be capable of influencing the judges, for which reason it is prohibited by all our constitutions, it follows, à fortiori, that a reelection by the people, or the losing it, must influence the judge far more; that instances of want of independence have occurred in various states, and the lack of independence has especially and sadly interfered with our penal trials and the salutary operation of the law; that it has in many cases elevated individuals to the bench who had no standing among their fellow lawyers, and whom no governor would have dared to appoint, feeling his responsibility as a trustee, while the electing people are irresponsible, and that in several states it has actually occurred that candidates for judicial seats have been asked in the public journals how they mean to decide if certain questions (e. g. the constitutionality of the New York liquor law) should come before them, in the same way in which certain political questions are put to candidates for the legislature.1

It is necessary to appoint judges for a long period, and the best is probably for life, with a proper provision which prevents incapacity from old age. The experience which is required, and the authority he must have, although unsupported by any

1 The report of the Reform Committee of the New York legislature reveals a state of things which reminds us of the worst state of Athens, while the Louisiana papers copied the most important portions, with strengthening commentaries and illustrations from their state. Numerous individuals, judges, and lawyers, have publicly expressed their disapprobation. We trust so great an evil will soon be redressed.

2 See Political Ethics, under the heads of Judge, Independence of the Judiciary.

material power, make this equally desirable, as well as the fact that the best legal talents cannot be obtained for the bench if the tenure amounts to a mere interruption of the business of the lawyer.' The constitution of the French republic of 1848, so democratic in its character, decreed the tenure of judicial office to be for life.2

It is for a similar reason of public importance that the salary of the judges be liberal, which means that, combined with the honor attached to a seat on the bench, it be capable of commanding the fairest legal talents. The judge must enjoy, as has been stated, proper independence; but he is dependent, and in the worst degree so, if he is conscious that the best lawyers before him are superior to him in talent, experience, learning and character. None but such inferior men can be obtained for an illiberal salary, according to the universal law that the laborer is worthy of his hire, and that he will seek to obtain this hire in the great market of labor and talent. Even the common consideration that every private individual expects that his affairs will be served best by an efficient clerk for a liberal hire, and not by a poorly paid hireling whose incapacity can command no higher wages, should induce us to pay judges, as indeed every one who must be paid, and is worthy of being paid at all, with a liberality which equally avoids lavishness and penury. Liberal salaries are essential to a popular government.

To make judges independent or remove from them the possible suspicion of dependence, it has been ordered in the Constitution of the United States that the "judges of the supreme and inferior courts shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." This principle has been adopted in most, if not in all our constitutions; many have added that it shall not be

1 I would refer the reader, on all these subjects, to Judge Chambers's Speech on the Judicial Tenure, in the Maryland convention, Baltimore,

1851.

2 This constitution will be found in the appendix.

increased either, during continuance in office. But what is the possible dependence feared from an increase or decrease of salary compared to that unavoidable dependence which must be the consequence of short terms of office, and of appointment by election? It will hardly be necessary to mention that a fixed salary, independent of fees and fines, is indispensable for the independence of the judge and the protection of the citizen. Even common decency requires it. Don Miguel of Portugal made the judges who tried political offenders depend upon part of the fines and confiscations they decreed, and we know what was done under James II. and Lord Jef

freys. The hounds receiving part of the hunted game suggest themselves at once.

With a view of making the judiciary independent, the removal of judges from office has been justly taken out of the hands of the executive. The immovability of judges is an essential element of civil liberty. Neither the executive nor the sovereign himself ought to have the power of removing a judge. He can therefore be removed by impeachment only, and this requires, according to the Constitution of the United States, two-thirds of the votes of the senate. In some states they can be removed by two-thirds of the whole legislature.2

Although the principle of arbitration cannot be called a characteristic of liberty, for as a characteristic it belongs rather to the patriarchal government, and courts of arbitration may flourish in despotic states, it will be necessary to consider this topic in the present place. It is very possible that our people would more readily give up an elective judiciary, where it has been established, if the law or the state constitutions directed or admitted of regular courts of arbitration. Wherever they

1 When it has become necessary to increase the salary of judges, the difficulty has sometimes been avoided by the judges resigning, upon the understanding that, after the legislature shall have increased the salary, they should be re-appointed.

2 It seems to me a strange anomaly that, as it would seem by a late resolution of the United States senate, the president has authority to remove judges in the "territories."