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Proceedings and Debates of the 1850 Constitutional Convention
Volume 101, Volume 2, Debates 482   View pdf image
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ter. Mr. President, while speaking of the in-
fluence of an excited multitude on the adminis-
tration of justice, on this holy day. (Good Fri-
day,) I cannot help thinking of a case which oc-
curred more than 1800 years ago; and which the
Church, of which I am a most unwhorthy member,
the Episcopal Church, this day commemorates.
with the highest solemnities. An illustrious vic-
tim of popular rage was brought before Pontius
Pilate, who heard the proofs and pronounced him
guiltless—faultless. "I find no fault in him,"
said he, and washed his hands in token (poor re-
fuge as it was,) of his freedom from the crime of
murdering an innocent man. But, Sir, the infu-
riated crowd would not forbear; and they were
wont to be indulged. What signified the innocence
of the meek, but august prisoner? Sir,
that fiend-like cry went forth. "Crucify him."'
"crucify him!" rent the air. "His blood be upon
us and upon our children!" And all that was
human of the Saviour of the world, was put to a
shameful death. Mr, President, human passion
will now and here disarm human judgment, just
as it did in the days of Pontius Pilate, at the city
of Jerusalem.
I am aware, Sir, that it is said the people are
competent to elect other officers; and if so, why
not to elect judges? Now, in the first place my ar-
gument, as I have said, is not so much directed
against any particular mode of appointment, as it
is to prove the necessity of a tenure during good
behaviour. It is this "essential" feature, which
I regard as above all other considerations. But,
Sir, there are ample reasons in my judgment to
distinguish this case from that of the election of
political officers. The latter are chosen express-
ly to represent the political opinions of those who
elect them; to give their vote, as they would give
theirs; to represent their opinions, wishes and
feelings. They can require them to do all this,
and, if they fail, they will, and do dismiss them;
and elect others. Take an illustration—I want
an agent to perform for me some portion of my
current duties, which, in the aggregate, are ton
numerous to allow me to attend to minutely, I
have several farms, and want an agent or over-
seer for each. I require him to consult my judg-
ment; and to conform to it, in regard to the char-
acter of the crops he is to rear, the field he is to
cultivate, and even the details of the duty he is
to perform. If he fails, I institute no process of
judicial inquiry; conduct no formal investigation.
I put him away at the end of the year, and get
another. He does not represent my wishes, nor
execute my plans. That is the sort of relation
which a representative bears to his political
constituency. Now take another case. As a
member of a Board of Visters, I want a Profes-
sor in the College. He is to perform the duties
appropriate to his station—say to teach his pu-
pils Latin and Greek, according to the most ap-
proved system; a duty which I could not perform
myself, and of course the last thing I desire, is,
to have him do what I would do, if I were myself
present if complaint be made of his failure, the
matter must be investigated, I cannot forthwith
consent to dismiss him, because this boy or that
tells me he does not perform his duty. The pupils
must be examined by competent persons, to de-
termine their progress, and a thorough investiga-
tion only will enable me to decide upon his
merits, or his qualifications to do that which I
cannot do myself. If he were to ask me for in-
structions, I could not give them. I should say
to him—"You have been employed for this duty
precisely because you were supposed to know
how it could best be done."
Now this is the relation in which the judge
stands to the people. The judge is supposed to
know the law; the people are known not in know
it. He is to exercise his judgment, not than—
to express his opinions, not theirs. Political of-
ficers are usually elected for a very short term,
and in reference to particular, distinct, well
understood questions. They have a certain line
of duty, and everybody understands what it is.
But it is not so in the case of the judge; his posi-
tion is perfectly the reverse, in all these particu-
lars. Above all, it differs in one other must im-
portant respect. In a political officer, you look
for a politician; you expect him to act for those
who elected him, and if he never were a politi-
cian before, he will surely become such, by serv-
ing a while as the representative of the people.
Just the reverse is it with the judge. He must
not act the politician; he must not know one party
from another in the discharge of his duties; and
if he had been ever so ardent a politician before,
he is sure to cease to be such, in a very short
lime after be is placed upon the bench.
The objection that the Governor has usually
selected politicians for the bench, is entitled to
little weight. Let us maintain, as I have already
intimated, the right sort of tenure; and the objec-
tion falls to the ground. Experience proves this.
We have been proud of such men as Marshall
and Story—we are proud of the present Chief
Justice Taney. These men will be regarded by
all, as distinguished not only for profound legal
learning; and for all the varied accomplishments
and acquirements professional and intellectual,
which would entitle them to the first rank amongst
jurists; but for unblemished integrity, for unspot-
ted purity, for every thing which can enter into
the composition and character of a judge. Yet, sir,
these men, who at an earlier period of life, had
been in the political arena, had mingled in the
strifes and collisions of party differences; were
appointed by those who were at the head of the.
political party to which they professed allegi-
ance. Are they less useful to the country, on
that account? Do their decisions evince an in-
fection of political prejudice or partiality? No,
sir. And to a judge, who is placed upon the
bench during good behavior, you will ever look
in vain, for the evidence of such infection Why
should he yield himself an instrument of wrong
and injustice; and soil his conscience, with a foul
stain? He gains nothing by so doing—can gain
nothing. He will scarcely commit wrong for
the mere sake of wrong. If so vile, as to act
thus, he will be wicked enough to bring himself
within the penalties of impeachment, and be dis-
missed and disgraced.

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Proceedings and Debates of the 1850 Constitutional Convention
Volume 101, Volume 2, Debates 482   View pdf image
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