make them in any sense, independent of the peo-
ple.
Now, if you wish to engraft this theory of an
independent judiciary upon our Constitution, that
they are to be above the people, and independent
of the people, you do that which does not exist
even as a theory in England, much less in any
of our American Constitutions, in our American
common law, or in any theory of law or govern-
ment to be found on this side of the Atlantic. I
wish never to see the day, when the American
judiciary is made to derive its power from any
other source than the will of the people. I nev-
er wish to see a judiciary in this sense, indepen-
dent of the people.
Sir, "there is no such word in our vocabula-
ry," there never was, and I pray to God there
never may be. I wish to see them independent of
corrupt motives, of improper influences, of parti-
zan feelings—independent of any thing and every
thing that is base, and dishonorable. I can un-
derstand this meaning of the term independent.
In no other sense am I willing to apply it to an
American judiciary.
I want to make the judges independent, but
not independent of the people, not independent
of that wholesome restraint and moral sense
which belongs to public opinion, and ever will
belong to it. He who wants to make them inde-
pendent of that, is no republican, in my judg-
ment, and never can be. You may as well at-
tempt to change the Leopard's spots, or the
Ethiopian's skin, as to convert such a man into a
republican statesman.
Let the judges be elected by the people, and
my word for it, you throw them before an ordeal
through which alone upright: and honest men
can pass. There will be no trickery, no resort
to artifices, no appeals to political combina-
tions.
They will be apt to elect men who have had
among them and we know only by their elevated
character, and by their straight-forward course
through life—men in whose opinions the people
have confidence, in whose judgments they rely and
to whose uniform course of conduct throughout
life, they are willing to trust their lives, their
fortunes and their destinies. Give me a system
by which the people will be allowed to vote for
such men, and I will show you a system of judi-
cature that will promote the good and happiness
of the people.
Mr. President—I have said now more than I
intended to say in this stage of the discusssion,
if I were to undertake to go through the details
of this bill, I should inflict a speech upon this
Convention of too great length. I do not mean
to do so. The great battle to be fought here, in
the first instance, is between those who are the
friends of an elective judiciary, and those who
are its opponents. That question is raised in
the section now under consideration, When we
shall have discharged our duties in this respect,
when we shall have engrafted that important
feature of reform upon this report, it will be
time enough, I think, to look to more wholesome
measures of detail.
59 |
In regard to the tenure of office, a question
arises, upon which there may be and will be a
great diversity of opinion. If I held the theory
that in establishing a judicial system, we should
pay more regard to the independence of the
judges, than to any thing else, I should still bold
that the mere mode of appointment was a matter
irrelevant to the question. Sir, the mode of ap-
pointment has no more to do with the indepen-
dence of the judiciary than light has to do with
darkness, or virtue with vice. It is not the mode
of appointment, but the tenure of the office,
which constitutes an independent judiciary. If
after their appointment the judges are placed be-
yond the reach of sudden, violent, or capricious
removals, their independence of all corrupting
influences from the appointing power is effectu-
ally secured, and the mere mode of appointment
degenerates into a matter of secondary consider-
ation. When the judges in England held their
appointments at the pleasure of the crown, they
were liable to be removed from office at the will
of the King. and were, therefore, dependant
upon his caprice. They consequently became
the corrupt and venal instruments of the crown.
But when the tenure of their offices was secured
to them during good behavior, notwithstanding
the appointing power remained the same, they
became independent of all control or influence
from that quarter. So it will be here. Let the
term of office be long enough to place the judges
beyond the influences of popular caprice, and
their independence will he as effectually secured
when elected by the people, as if they were ap-
pointed in any other mode. Now, I am free to
admit, in securing to the people this right of
appointing their own officers, that in the selec-
tion of judges, the elections ought to be at long
intervals. I think it would be wise; indeed ne-
cessary, to make the tenure of office long enough
to place the judges in the discharge of their du-
ties, beyond the influences of a vicious public
sentiment, or a capricious popular commotion.—
But I think this may be done as well by a tenure
for a term of years as by a tenure for life. The
argument which asserts that nothing short of a
life tenure will secure an independent and up-
right judiciary, assumes the very proposition in
dispute, and does not seem to me, sir, to be
founded upon a correct knowledge of the prin-
ciples of human nature, or to be sustained by
any well considered theory of reason.
If the independence of a judge consists in his
security against the arbitrary and capricious
will of the appointing power—his freedom
from all apprehensions of sudden and violent
removal from office, whenever this capricious
will, this arbitrary power of removal is limited,
and cannot be exerted against the judge, during
the continuance of his term of office, it follows
that, for the time being at least, he is as far re-
moved from such influences, as if he held his
office by the life tenure, I hold this to be clear
and incontrovertible. The true question directs
itself, not so much to the extent or duration of
the tenure, as it does to the nature and charac- |
