no mode of appointment could be devised which I
would entirely exclude political considerations,
and the choice of a particular plan becomes, af-
ter all, a mere choice of evils. To this we must
reconcile ourselves as well as we can. Yet, there
seems to me a wide difference in the amount of
evil involved in different plans, and I am particu-
larly anxious that all gentlemen here, who have
studied this subject, should suggest, for our con-
sideration, such propositions as have occurred to
their minds. That, which I have offered, is not
put forward with any presumption that it is the
best which could be devised, but merely as hav-
ing, in my opinion, fewer disadvantages than
either the old system or the one reported by the
committee, and also as an inducement for to of-
fer plans, which, I hope, may more effectually
accomplish the purposes at which I aim. For
this reason, I shall move to take the question first
upon striking out the provision of the report for
electing judges by the people, so that all other
plans may be open lo us as substitutes. It is
scarcely proper that the principles upon which
our judiciary system is to be based, should be
decided without argument, for, in the adjustment
of this most important of all subjects, the people
are entitled to the benefit of the ability and experience
which many members of this Convention
possess; and those principles cannot be consider-
ed thoroughly discussed when but a single point
has been argued by one gentleman on each side
We have to make a choice of evils, but there
is a wide difference in the amount of evils in-
volved in the different plans. For myself, I have
no hesitation in saying, that I consider the elec-
tion of the judges by the people, as proposed
with the provision for re-eligibility, the worst
conceivable mode of appointment. I believe
this would be the opinion of a large majority
here, were they not running with such haste to
escape from the evils of the present system, as
to be blinded to the precipice that lies before
them. It is not any special want of confidence
in the people which makes me say this. I am
not one of those who pretend to believe that a
number of frail, imperfect human beings can, by
aggregation into a mass called the people, become
divinely pure and infallible.
I have seen in chemical experiments two differently
colored liquids, when poured together
produce a mixture, whose tint was entirely unlike
that of either of its component parts. But men
do not change their nature by combining with
others; and, as part of the people, each man
governed still by his private interests, appetite
and passions, although these may be to a certain
extent modified, sometimes for the better
and sometimes fur the worse, by the excitement
of a common impulse, acting sympatheti-
cally on a great number of individuals. Ever
candid man must admit, that there are great imperfections
in the system of popular election
even for merely political offices, and that its results
are often very unsatisfactory; yet it is better
to suffer these disadvantages, than to lodge
the political power in the hands of a few irresponsible
persons, who not only would be fallible
in judgment like other men, but who would |
be tempted to use their power, not for the good
of society, but to accomplish their own personal
ends. This is all that our faith in republican
government obliges us to maintain, and one is
not less a republican, because he asserts that
men are fallible in the aggregate as well as indi-
vidually. If the relative merits of two opposing
candidates were alone to be decided by popular
choice, in a district where both were equally
known, I should have great confidence in the cor-
rectness of the decision; but such an issue can
rarely be made, for party passions, and interests,
and parly discipline, give an entirely different
aspect to our political contests. Still, it is on
the whole, safest to resort to popular elections to
fill the political offices in the State, and responsi-
bility to the governed is in human institutions
the best check on the abuse of political power.
But the case is far otherwise when we come to
the administration of justice, which acts not so
much upon the community as a whole, as upon
individual men in their mutual relations, and de-
cides on personal rights and injuries between
man and man. Elect a Governor; and not one
man in a thousand has any direct personal inter-
est in the course he may pursue Now, howev-
er, you propose to elect by popular vote the man
who must decide thousands of questions of right
and wrong, involving property, character, and
liberty, among the very persons who have voted,
and who will be called upon again to vote, for or
against him at the polls.
It is true, the objection so often made against
electing the judges by the people, that party
considerations would govern the selection, ap-
plies to the present mode of appointment. But
there is an important difference in the result.
The Governor may beswayed by improper per-
sonal considerations, and may appoint a violent
partizan, in order to reward him for active party
services; but the appointment once made, the
judge is perfectly independent of the appointing
power, and can only be removed by a different
power for incompetency or misbehavior; the
Governor himself has no personal interest in the
matter, that are to be decided before she judge;
and in no case could the same Governor reappoint
the judge, for no one has proposed to make
the term of judge as short as that of Governor,
who under our system is ineligible to a second
term. Elect the judge by the people, and the
controversies to be decided by him are all between
those very men who have exerted themselves
to effect or prevent his elevation to the
bench, and on whom he must depend for retain-
ing his place.
Let us imagine what may be the position of a
judge under the system proposed. In the first
place, he will be nominated by a caucus of one
or the other of the great political parties which
divide our people. There can be no question of
this. It is so in every State where the system
has been adopted, and such has become the established
rule of political action in regard to all
offices which are filled by popular vote. Next,
the two parties will be arrayed against each
other in the canvass; and if the candidates for |
