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its application, as if he were a Governor in the
chair of State, or the man whom the people most
delighted to honor. Sir, in a case like this, the
judge is called upon to decide; and he cannot de-
cline. How is a just and impartial decision to
be ensured? Let us not be told, he is bound to
do right. We are all bound to do right, but we
all fail in some things; fallibility, a liability to
do wrong, is the characteristic of our being; and
by nothing are we more likely to be deceived,
than by our fears and our hopes, oar interests
and our wants. Seeing this, we are bound to
use all the means we have, to guard against the
effect of temptation. What I desire to impress
upon the mind of the Convention, is the fact,
that we must by our provision strenghten on the
one hand, or weaken on the other, the motive of
the judge. If we protect him against the influ-
ence of the powerful antagonist, we silence his
fears, if we place him beyond the reach of favor
we disarm him of his hopes. If, on the contrary,
we leave him in a condition which exposes him
to the effects of that man's power and influence,
for advantage or for loss, above all, for subsis-
tence and reputation; you stimulate every mo-
tive which can disturb the honest and impartial
action of his mind. You do this, by the force
of all the circumstances acting directly on the
hopes and fears of the officer; and you do it to a
further extent by increasing to a higher degree,
the ability to do mischief, on the part of the
influential litigant. The man who knows that
his efforts to destroy the official character and
being of the judge, will be utterly hopeless, does
not make them with the same earnestness and
zeal, as if he knew they would be effectual to
accomplish his object.
But bad as may be the case arising from pre-
judices against the judge; there is another still
worse. Some man has encountered the bitter
prejudice of a community, justly it may be, or
otherwise. Such instances are familiar to us all.
We have known cases in which this feeling has
been wrought up to such determined purpose,
that the bolts and bars of the prison could not
resist the determined attack of the crowd, re-
solved upon vengeance. We have heard of
Lynch law, and every sort of law, which can
designate a popular outbreak. We have wit-
nessed enough to teach us that such popular fury
sweeps every thing before it, as regardless of
opposition from every element in the moral
world, as the tempest in the natural. Yet pop-
ular prejudice against an individual, does not
forfeit his claim to the benefits of the law.
The judge may desire to avoid the interposition
on his behalf, but is not at liberty as others are;
he must act, and cannot disregard the appeal of
the vilest or the most persecuted. His interpo-
sition may delay, and finally defeat, the purposes
of the excited crowd, assemblage, or mob. If he
opposes it, he of course offends it. Is he to yield ?
If so, the law is prostrated in the person of its
minister; and an innocent man sacrificed. And
now, sir, what can you in such a case expect
from your judge "dependant upon the people?"
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Will he as fearlessly, as firmly resist this torrent,
this avalanche of feeling on the part of those
upon whose favor, he relies for his bread, his of-
ficial being, and reputation, as if he knew they
could not affect him in any of these respects?
Nay — not as firmly — but will he confront and re-
sist it at all? Is he independent in any sense,
that enables him to do his duty, as we require
him to do it, and as he ought to do it, — "without
fear, favor, or affection?" He must be more than
man to be altogether free from such influences.
But, admitting the judge will not "do right, " it
is still said, "the people will do right" — "there
is no danger in trusting the people. " I reply,
sir, that both history and philosophy contradict
this. The people consist of individuals, each of
whom is subject to the same passions, the same
prejudices, the same motives of action. The
mass, composed of such elements, must have the
same character. My experience is, that the col-
lection «f men in masses, lessens materially, if
it does not destroy, the; 'sense of responsibility.
It is a truth we have all been taught by observa-
tion, as well as by history. It must be so from
the mere fact that each, to a certain degree, es-
capes from the influence of one very strong mo-
tive to do right; he does not stand out before the
public as the object of their notice, but is pro-
tected to the extent of the combined credit of all
the party. But let us go further. Men every-
where act alike, under like circumstances. Our
people are like each other, and we are like other
people, whenever the circumstances and condi-
tions of being, the motives and influences are the
same. Sir, I find from a newspaper received a
day or two since, that the people of a large city
in Pennsylvania, containing about 80, 000 inhabi-
tants, had elected as their Mayor a very unfit
man, that he had been regularly tried before a
court and jury, and convicted of riot, which is a
gross crime; and when after this he harangued
the people, they cheered him loudly and avowed
their determination to elect him to Congress.
Now, they are just such people as we are, as in-
telligent, as patriotic and as submissive to law
and order; as much so as we would be, if similar-
ly excited. They labor under temporary mania;
prejudice and passion cloud, if they do not blind,
their judgment. And who, I ask, is free from
those influences ? Is there one who hears me
who can say, he has not been the victim of ex-
cited passion ? No, sir, there never has been on
earth, but one man; and He was more than a man.
There never will be another.
Again: — it is said, that, heretofore the judge
has been appointed from political considerations;
and 1 admit that this, or any other argument,
which is intended to show the defects of the pre-
sent system, or mode of appointment, is worthy
of consideration. If that mode which the people,
in the exercise of their proper sovereignty have
prescribed, does not accomplish its object, it is a
fair argument for a change. But it must be per-
fectly clear, that the objection applies merely to
the mode of appointment; and that, as I have con-
stantly maintained, is a secondary consideration.
It does not touch the great and important ques-
tion which I have endeavored to discuss, that of
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