SPEECH
OF
' ' MR. WHITE,'OF SUMNER,
ON
THE JUDICURI
DELIVERED IN THE
CONVENTION OF TENNESSEE,
Oft TIIE
TTH AND ST SI OF JIJLV, 1834.
NASHVILLE:
Printed at the Republican and Gazette office,
1834.
SPEECH.
Mr White submitted the following as an amend¬
ment, in lieu of the amendment of Mr Armstrong,
which provides that Judges shall he elected by both
houses ol the General Assembly, and shall hold their
respective offices for the term of four years:
"The Judges, both of the supreme and inferior
courts, shall hold their offices during good behavior,
but not beyond the age of sixty years. They shall
be elected by the joint vote of both houses of the
General Assembly.
"Judges may be removed from office by a con¬
current vote of both houses of the General Assembly,
each house voting separately; but two-thirds of all
the members elected to each house must concur in
such vote; the vote shall be determined by yeas
and nays, and the names of the members voting for
or against the judge shall be entered on the journals
of each house respectively."
Mr White said—Mr Chairman, the great ques¬
tion that is now presented for our discussion, is with
regard to the organization of the judicial department
. of the government. This is a subjeet of transcend, 'it
interest to the country, and should receive as it de¬
serves the profound consideration of the Convention.
The first question to be considered is with regard to
the tenure of the judicial office—shall the judges be
appointed for a term of years and re-eligible—or
during good behavior with a proper limitation in
regard to age, together with a sufficient check upon
them to secure their responsibility to the country?
I will frankly state to you, Mr Chairman, in the
outset, what you have already discovered from the
resolutions, that I am in favor of the the latter mode
of appointing the judges—I consider it most for the
happiness and prosperity of the country, and that any
other doctrine is fraught with ruin to its best inter¬
ests. I am aware sir it is said,—I have heard it not
only upon this floor but elsewhere,—that this is an
aristocratical doctrine—I pray honorable gentlemen
not to be deluded by names; but to remember that
this is the doctrine of the fathers of the constitution,
of those illustrious men who achieved American lib¬
erty and knew how to defend it as well as we their
children. And allow me to add that in my humble
judgment, this is the best plan, that ever was devised
to secure the rights of the citizen, and perpetuate the
blessings of free government.
We all agree in one thing Mr Chairman that the
object to be accomplished, is an able, upright and
impartial administration of the law—we only differ
about the mode in which that is to be obtained. I
want to see the judge when he pronounces the law,
independent of all influence, save a regard to the
constitution and laws of the country. I would place
him in a situation in which the poor and despised
man, the man who is oppressed, he who is charged
with crime, the widow and the orphan, and even the
slave, can stand up before him with an equal chance
for justice with the proudest and wealthiest man in
society;—but at the same time I would make the
judge responsible for the correct discharge of his du¬
ties, as completely responsible as any other officer of
the government. I would therefore in addition to
impeachment for crime, which exists under our pres¬
ent constitution, provide another mode, by which we
can at all times get clear of an imbecile, profligate
or incompetent judge, without trouble, without trial
and without expense to the country.
I will proceed sir to consider, not on account of
the judges who are taken entirely from the ranks of
the lawyers, (no one cares any thing about them)
but for ourselves, the security of our lives, our liber¬
ties and our property, and I would add our limited
form of government, what mode of organizing this
department is best calculated to effect these objects?
This institution we have borrowed from our English
ancestors, and it may not be unprofitable to take a
alight iev iew of its lnatory. The judges in England
were originally appointed by the crown, and held
their offices at the pleasure of the crown. As early
as the thirteenth century in the time of Henry the
third, an effort was made by the barons of England
to have the judges appointed with consent of parlia¬
ment, and to hold their offices during good behavior.
2d Hall. Mid. Ages, 44. The people of England
however, were notable to effect this for several cen¬
turies;—and the result was, as might be supposed,
that in almo< every instance where the liberty of
the subject, or the prerogative 0/ the crown was con¬
cerned, the judges were found on the side of prerog¬
ative and against liberty. lAvill barely allude to
some of these cases without dwelling upon them. It
had always been deemed the indispensable charac¬
teristic of a limited monarchy, that no money could
be raised from the subject without the consent of
parliament—and yet the judges decided in the reign
of James the first, the king could do it by virtue of
his prerogative. "The courts of justice, in the lan¬
guage of the historian, did not consist of men con¬
scientiously impartial between the king and the sub¬
ject; some corrupt with hope of promotion, many
more fearful ®f removal, or awe struck by the frowns
of power." 1st Hall. Eng., 433, 4. So in the case
of Commendams, as it was called, they prostituted
their integrity and fame, from fear of losing their of¬
fices. 1st do. 473, 4, 5, 6. Loans were demand¬
ed of the subject, and those who refused to make
them were committad to prison—a habeas corpus
was sued for, upon which there was a return by the
warden of the fleet, that they were detained by a
warrant from the privy council, informing him*of no
4
particular cause of imprisonment, but that they were
committed by the special command of his majesty—
(1st do. 623)—the judges decided in favor of the
crown, and against the fundamental immunity ofEng-
glish subjects from arbitrary detention. So the famous
.decision of the judges against Hampden (an illustri¬
ous name) for ship money during the time of
Charles the first,|( 2d do. 23,) which was "flagrantly
and by universal confession a strain of arbitrary pow¬
er without pretext of right." 2d do. 138.
If I had time, I should like to refer to, and to
.dwell upon, the thousand judicial murders which dis¬
figure the annals of English history, and which were
committed at the command of power—it would af¬
ford a pregnant and instructive lesson upon this sub¬
ject. Suffice it however to say, the horrible injustice
of the judges, their brutal manners and iniquitous
partiality, in the time of Charles 2d during that great
national delusion, called the popish plot, when so
much innocent blood flow ed upon the scaffold, and
which has made the names of Scroggs and North
infamous to all future times—the dangerous aggres¬
sion upon public liberty in tire judgment of forfeiture
by the court of king's bench against the corporation
of London and other places—the unjust and illegal
condemnation and execution of Russell and Sid¬
ney—the horrid mockery of trials which followed
Monmouth's rebellion, over which Jeffries chief jus¬
tice of the king's bench'presided, in the reign of James
the 2d, all tended to accelerate their revolution
of 1688, and which placed William of Orange upon
the throne. One of the limitations which was then
placed upon the kings prerogative, was with regard
tp the tenure of the judicial office—it wag provided
by the act of settlement, that the judges should
after that time be commissioned during good beha¬
vior. This has been considered from that day to the
present, by all their writers, both whig and tory, as
one of the most precious fruits of their revolution.
I am aware, Sir, it is said, that these precedents
drawn_from English history, do not apply in this coun¬
try;—perhaps they do not, to the same extent as in
England—but unquestionably they show this, that
whenever you make a judge dependent, he becomes
corrupt; he will follow power, whether in the hands
of the King, the executive, the legiafciture or the
popular demagogue of the day: that instead of look¬
ing alone to the constitution and "the laws, he will
yield himself to that influence, whatever it may be,
that is most likely to sustain bim in his office.
After American liberty was achieved, the first ob¬
ject was to secure it by a written constitution in
which the boundaries of the different departments
of the goyernmen.t, should be marked out and de¬
fined. Those illustrous men that framed our consti¬
tutions both for the General and State governments,
understood well the principles upon which this was
to be clone. They knew it was the first maxim of a
IV.ee state, that the laws should be made by one set
of men and administered by another. rJHiat it was
essential to liberty, that the legislative, executive
and judicial powers, should be kept separate and
distinct, so that neither could encroach upon the
other: that whenever all the powers belonging to the
different departments were concentrated in the same
hands, it was a despotism, although you might have
the exterior fortns of liberty, as the ^English na¬
tion had under the ^protectorate of Cromwell, or the
Ji.om.anf, in the eaVly part of the reign of Augustus.
They knew that power was liable to abuse, there¬
fore both in the General and State governments,
certain powers and rights are reserved to the people,
with which no legislation is to interfere—at the same
time, with regard to the powers which are given,
each department is intended to be a check upon the
other,'and likewise equal and]coordinate in its respec¬
tive sphere.
The executive wields the sword, and in most of
the .states, dispenses the honors and patronage of
office—the legislature enact all the laws by which the
community are to be governed—I had occasion the
other day, before this committee, to specify more
particularly the powers of this department, and shall
not repeat what I then said—suffice it to say that in
this state, almost the whole efficient power of the
country, not only as it regards legislation, taxation &c.
but appointments to office, is in the hands of the
legislature. With regard to the Executive and legis¬
lature thefore, the constitutions of the different states,,
as well as that of the Federal government, prescribe a
short term of office, frequent elections by the peo¬
ple, and a direct responsibility.
And why is this? it is because the representative,
is the servant and agent of the people, entrusted
with power alone for their benefit, and bound to car¬
ry their will into effect according to the constitution-
Ilistoiy is full of instructive examples particularly
that of Rome and France, to show that without this
kind of representation and responsibility, power wilL
always be used to advance the interests of the few
at the expense of the many; but with it, imperfect and
vicious as it may be, as in England, the contest wilL
always terminate in favor of the people. See 2d EH*.
Deb. 45. Indeed without this kind of responsibility in
th^se departments there is no such thing as civil lib¬
erty.
How is it Mr Chairman, with regard to the judi¬
cial power? it exercises alone the faculty of judgment
—it commands neither the purse nor the sword, and
some times requires the assistance of another de¬
partment to carry its judgments into execution. It is
admitted upon all hands, to be the weakest depart¬
ment of the governments-it cannot successfully en¬
croach upon the other two; nor upon the rights and
liberties of the citizen. If an unjust conviction
takes place in the courts, the executive may inter¬
fere and pardon; if an erroneous principle of law is
established, the legislature may change that princi¬
ple in regard to all subsequent cases. The officers
of this department, however, as well as the others,
are the servants of the people and bound to carry in¬
to effect by their decisions, the public will, as it is«ex-
presscd in the constitution and laws.
What mode then, let me ask again, Mr Chairman,
of organizing this department, is best calculated to
secure to the country an enlightened, firm and faith¬
ful administration of the law? Is it to- be found in
the appointment ofjudgesfora term of years, say 4
or 6 or any other period, and making them eligible
to re-election? I think not. Let us consider the du¬
ties of the judges—important questions of property
are settled by them—the estate of any man in the
community may be a ljudicated upon by this tribunal.
We have fifteen or twenty judges—their election
is coming on in 4 or 6 years, or any other period—.
they have causes to decide between rich men and
poor, between men who wield the power and influ¬
ence of the country, and those who arc odious,
5
causes in which there is sometimes great excitement,!
and in which, the whole feelings of the community
may be enlisted—is there no danger under these
circumstances, that the scales of justice, may incline
too much, unconsciously perhaps even to the judge
himself? If the judge is a timid man, or a time serv¬
ing parasite, he will be found on the side of power;
if he is a man of sensibility .and honor, such will be
his dread of unfounded censure and suspicion, that
he may err upon the other side. Sir, the miserable
effects of this system, will be felt through every
portion of society—they will blast and wither like a
mil-dew—the pure stream of justice will be poison¬
ed to its very source. I have known many individ¬
uals in this country, Mr Chairman, so have you, so
have we all, proud, ambitious and tyrannical—aye
and I have known lawyers too of the same descrip¬
tion, deeply inlisted in point of feeling and character
and interest in the result of causes, who would make
one ofjthese temporary judges tremble like a guilty cul¬
prit, upon the bench, if he dared to pronounce the
law against them—would that be a state of things
desirable for the country?
Human nature is the same in every age. Lead us
not into temptation is the teaching of divine philoso¬
phy Yourjudges are generally poor—(profession¬
al men usually are, unless they have made thek for¬
tunes by speculations,)—unless the judge shall be
re-elected, he will consider himself disgraced;—the
bread which sustains himself and his children, depends
upon his re-election, for he cannot return to his pro¬
fessional practice with success, when he has once
lost it; I tell you Sir, that decisions made under
such circumstances, are full of peril, peril to himself
and peril to the community. Let the judge decide
as he might, no matter with hovjr much ability and
purity, his decisions would never have the public
confidence. If he decides in favor of the strong, he
will be charged with subserviency to power;—if for
the weak, with not having firmness enough to do
his duty, lest he should be liable to suspicion. The
bench will never possess that moral influence over
the community, which it is more necessary it should
have than either of the other departments, because its
duties are more arduous and delicate, and it has less
power, where the least suspicion of impurity can at¬
tach to its motives. Besides, it should be remem¬
bered, that public opinion is not, as it is in most other
cases, a corrective for the errors of a judge—it comes
too late, after a man's life has been sacrificed, or
his character or property gone—public opinion can¬
not ho efficacious in this instance, because it will re¬
late to matters, about which, there will be no gener¬
al, pervading interest,—and the means of informa¬
tion, not easily obtained by the great mass of the
community.
Mr Chairman, a judge while he is upon the bench,
should never be an active politician. It is incon¬
sistent with his character and the duties of his station.
The ermine of justice, should not he soiled with the
strifes and conflicts and passions of party. Sir, the
doctrine which I am combating while human nature
remains as it is, will necessarily compel your judges
to become partizans. In order to secure their re-elec¬
tion, they will attach themselves to all the parties in
the state, both personal and political. Seats upon
the bench, will be bestowed, as a reward for party
services—you will then have political judges and
political decisions;—and as either party gains the
ascendant, they will electa different set of judges,from
their respective parties;—and you will see a course
of as envenomed party warfare in the judiciary of the
country, and in their decisions, where every thing
ought to be quiet and tranquil and free from excite¬
ment, as is to be found upon the Hustings. Of all
curses, that ever were inflicted upon any people,
one of the greatest, is that of a dependent, time
serving, electioneering, political judiciary. I pray
that such an evil may be averted from my country.
Sir, there is another danger to be apprehended
from this system, and which is inevitable. Some one
or other is always dissatisfied with the decisions of
the judges. Men of influence, who want particular
decisions made—lawyers who are interested, per¬
haps wish to fill their places, are found arrayed
against the judges—they go to work to change
them—the opinions of other lawyers will be known
who will be candidates—and the result will be, that
men will be placed upon the bench, pledged directly,
or indirectly, to decide in a particular way—every
thing will be unsettled—no stability in the decisions—
speculations, law suits and disorder will be increas¬
ed, and a universal feeling of insecurity will be the
consequence. Sir, it cannot be, that we shall adopt
a plan so full of mischiefs to the country.
Suppose a criminal prosecution for murder or oth -
er offence when the waves of popular and party feel¬
ing run high, and threaten destruction to the accused,
.although he is innocent—how do you want the
judge to act? To yield to the torrent that is about to
overwhelm you—or to stand firm and administer the
law?
"Si fractus illaiatur orbist
Impavidumferient ruina.""
To enable him to do this, you must place him in
a situation where he can stand firm, where he is not
accessible to every kind of influence, of hope and
fear and interest that may operate to deter a man
from his duty. I tell you sir, that ruin and inevita¬
ble destruction will await a man under such circum¬
stances, unless he can array the strongest party in
his favour. What has happened in other countries
and in our own may be expected to happen again.
Look at the case of Russell tried before Pemberton, &
that of Sydney before Chief Justice Jeffries. At most,
they were only guilty, of a conspiracy; but convicted
upon illegal testimony, and executed for treason.—
This will be a reproach to the judicial history of
England through all ages. Pemberton, says the his¬
torian "aware of his precarious tenure in office, did
not venture to check the council for the crown, Saw¬
yer and Jeffries, the most brutal and corrupt of man¬
kind, permitting them to give a great body of hear¬
say evidence—jet he checked Lord Anglesea, when
he offered similar evidence for the defence." 2d
Hall. Eng. 617„ Upon other trials, "The judges ex¬
plained away and softened the palpable contradic¬
tions of the witnesses for the crown, insulted and
threatened those of the accused, checked all cross ex¬
amination, & assumed the truth of the charge through¬
out the wfliole of every trial." 2d ditto 575. How
bright is the contrast in the conduct of the English
judges, since the revolution of 1688, which changed
the tenure of the judicial office! and how gratifying it
is to every American, who regards the fame and
honor of his country as above all price, that both
under the4General and State governments where this
6
mode of tenure, has generally prevailed, there is no
such stain upon our judicial character. The influence
of power, and of popular and party feeling, may be
as dangerous in a republic in state prosecutions, as that
of the King and his Ministers in a monarchy—and
ought as much to be guarded against. (See note to
the case of the State vs Norris in Haywood's N- C.
Reports, where the same idea is suggested by that
great man.) The case just mentioned, might be re-
fered to as a signal illustration of the truth of the re¬
mark, as well as many others, that have occurred in
the judicial history of the different States, and under
the Federal Government. In this case (State vs
Norris) the prisoner was indicted for murder—it was
only a case of manslaughter—public opinion ran high
against the prisoner—he was universally pronounced
guilty of murder, and his conviction demanded. Yes
sir, convicted and executed he would have been,
before one of these contemptible, time serving, peri¬
odical judges, whose official breath and life depend
upon courting the popular gale;—to the everlasting
disgrace of the country and its laws. What was
the noble language of judge Haywood upon that oc¬
casion? "If the whole world were here present to
demand the execution of the prisoner, I would not
refuse him an advantage that should be conceded to
him—whilst I sit here, the public cry shall never se¬
duce or impel me into the adoption of a measure my
judgment disapproves." Sir, this will always be the
conduct and language of your judges, if appointed
during.good behaviour. Let us not upon this great
question, so vital to our dearest rights and interests,
disregard the experience of other countries as well
as our own; and rashly adopt an experiment that
will put every thing at hazard.
What is it, Mr chairman, that is regarded by us all
as of most value in society? It is not fame, nor
honors nor office;—it is the security we feel in the
enjoyment of our rights, of our liberty and proper¬
ty—and our lives, unless forfeited by crime. Let me
tell you sir, that where there are frequent elections of
judges, there is no permanence in the decisions and
consequently no security. And although you may feel
safe to day under the law as it is etsablished by one
set of judges;—to-morrow, when other men come
upon the bench, a different rule will be established,
which will deprive you of all that you possess.
I have already alluded to the weakness of the
judicial power. Courts of justice are rendered neces
sary, in a great measure, to repress the disorders of
society, to punish lawless violence, to protect the
unwary and the innocent, and those who are una¬
ble to protect themselves against cunning, and rapa¬
city and fraud. Rich and powerful men are gener¬
ally able to sustain themselves;—it is the feeble and
defenceless that more particularly require the aid of
the judicial arm, and which ought not to be weaken¬
ed. The opposite doctrine to that for which I con¬
tend, gives strength to the strongjman; but makes the
weak, more feeble and defenceless. Sir, is that the
policy of society?
If it is considered rightly, however, every indi¬
vidual in the community is deeply interested in the
secure administration of the law. Here are no privi¬
leged orders. All are amenable to the law. The
abolition of entails and the equal distribution of Intes-
tates\estates, will always secure a substantial equal¬
ity among our citizens. And the man of wealth,
and talent and influence, may die, and leave the ob¬
jects of his bounty and affection, a prey to the de¬
signing and the'fraudulent.
Is there no danger, sir, that the public interest
might be injuriously affected in another respect by
the adoption of this system? The bench ought al¬
ways to be superior to the bar. The judges should
be selected from the front ranks of the profession. Is
it probable that men of ability and learning and high
professional character and attainments, would be
willing to relinquish Jtheir practice, which to
such men is always worth more than any judicial
salary,—and which when lost, can never be regain¬
ed, and where the highest political preferment is al¬
ways open to them—for a seat upon the bench, the
tenure of which, was so precarious? would it not gen¬
erally be left, for those who find it difficult to get a
living by their profession, to engage in a perpetual
scramble and squabble for the office?
Mr Chairman, there is another consideration upon
this subject which to my mind is irresistible. This
is a government of limited powers. Certain pow¬
ers are delegated to each of the different depart¬
ments, the legislative, executive, and judicial. For
the still greater protection of the citizen, there is
this provision in the constitution. "The declaration
of rights is declared to be a part of the constitution of
this State, and shall never be violated on any pretence
whatever. And to guaid against transgressions of
the high powers which we have delegated, we de¬
clare, that every thing in the bill of rights contained,
and every other right not hereby delegated,is excepted
out of the general powers of government, and shall
forever remain inviolate." In that bill of rights, a-
mong other things you find it declared, "That no
preference shall ever be given by law to any religious
establishment or modes of worship." "That no re¬
ligious test shall ever ba required as a qualification to
any office, or public trust,'under this State." "That
the right of trial by jury shall remain inviolate."—
"That the people shall ,be secure in their persons,
houses, papers and possessions, from unreasonable
searches and seizures, and that general warrants are
dangerous to liberty, and ought not to be granted."
"That no free man shall^be taken or imprisoned,or de¬
prived of his life, liberty or fproperty,but by the judg¬
ment of his peers orthe law of the land." "That in
all criminal prosecutions, the accused has a right to a
speedy public trial, by an impartial jury of the coun¬
ty or district in which the crime shall have been com¬
mitted." "That no person shall for the same offence,
be twice put in jeopardy of his life or lirnb." "That
laws made for the punishment of facts committed pre¬
vious to the existence of such laws, and by them only
declared criminal, are contrary to the principles of a
free government; wherefore no ex post facto law shall
be made." "The privilege'ofthe writof Habeas Cor¬
pus shall not be suspended , unless in case of rebellion
&c. "That all courts shall be open; and every man,
for an injury done him in his lands, goods, person,
or reputation, shall have remedy by due course of
law, and right and justice administered without sale,
denial, or delay," "That the printing presses shall"
be free to every person who undertakes to examine
the proceedings of the legislature, or of any branch
or officer of government ;and no law shall ever be made
to restrain the right thereof." "That no retrospective
law, or law impairing the obligation of contracts shall
be made." "That perpetuities and monopolies are
7
contrary to tjbe genius of a free State, and shall not
be allowed."
Suppose, sir, that from inadvertence, or some
temporary excitement, from any cause, to which all
large bodies are sometimes subject, any of these
rights should be invaded by some legislative act—
the right of trial by jury violated—a religious test im¬
posed—an ea: post facto law, or law impairing the
obligation of contracts, enacted—where is the citizen
to appeal for redress? It is alone to your courts of
justice. From the necessity of the case how must it
be decided? They cannot sustain both, the consti¬
tution and the law. Which then is to govern? They
must exercise the right of independent judgment.—
The legislature cannot interpret the constitution for
the courts—they must do it for themselves. Shall
they then be governed by the fundamental law, the
will of the people as expressed in the constitution—or
by the will of the agents and servants of the people?
Unquestionably by the constitution, the organic law.
This is not upon the ground that the judicial power
is superior to the legislative;—it is because the con¬
stitution is paramount to both, and requires the'judici-
ary to obey the former rather than the latter. This is
the check designed by the constitution against the a-
buse of power, on the part of the legislature, and to
protect the rights of the citizen. It is the only possi¬
ble mode of securing the limitations upon power con¬
tained in our bill of rights;—and when a clear case
bf repugnance intervenes, the courts being a co-ordin¬
ate branch of the government, are bound by their
oaths, and a regard to the liberties and privileges of
the citizens, to decide in favor of the constitution in¬
stead of the law.
This doctrine is to be found in the writings of dis¬
tinguished statesmen, as well as in the decisions of the
judges, from the commencement of our history to the
present time;—and is now admitted by every state
in the Union, and by every political party. Even
Mr Calhoun, the great champion of nullification, ad¬
mits it, whenever the case can be properly brought
before the judiciary. He says "it is a power be¬
longing to all courts, superior and inferior, state and
general, domestic and foreign."
If this be so, Mr Chairman, and the legislature vio¬
late any and every provision in our bill of rights, will
the judiciary be able, depending upon the legislature
for their "re-election and for their bread;—will they
dare to stand up in defence of the rights of the peo¬
ple, and the limitations in our constitution? Never,
sir, never. We may as well expunge the bill of
rights from our constitution. All power will be con¬
centrated in the legislative department, which will
be the very essence of tyranny. "It will be no al¬
leviation, in the language of Mr Jefferson, that these
powers will be exercised by a plurality of hands,arid not
by a single one. One hundred and seventy-three des¬
pots, (and I would add sixty or any other number,)
would surely be as oppressive as one. Let those
who doubt it, turn their eyes on the republic of
Venice. As little will it avail us that they are chosen
by ourselves. An elective despotism was not the
government we fought for; but one which should not
only be founded on free principles, but in which the
powers of government should be so divided, and
balanced among several bodies of magistracy, as that
no one could transcend their legal limits, without be¬
ing effectually checked and restrained by the others."
Jefferson's notes 195.
Need i urge upon this enlightened body the dan¬
ger from legislative encroachments? The very pos¬
session of their immense overshadowing powers ne¬
cessarily leads to abuse. Every State in the Union,
as well as the general government, has been occa¬
sionally convulsed with parties and factions;—and
every iree government always will be—but there is
no danger to liberty on that ground, if there is a pow¬
er in the state, that is firm and stable, and able to
protect the citizen from injustice and oppression,
whether they proceed from private individuals, from
popular commotion, or from tyrannical and uncon¬
stitutional laws. The example of our neighboring
sister, Kentucky, furnishes a useful warning, as well
as light to guide us upon this subject. A few years
ago, that state was almost rent asunder by the vio¬
lence of her parties. It became necessary for her
supreme court to decide that one of the laws, which
had been enacted by the legislature, was unconstitu¬
tional. The legislature could not brook this resis¬
tance to their will. Thgy endeavoured to legislate
their supreme judges out of office, and build up ano¬
ther court from the then dominant party, that would
be more pliant and obsequious. Most fortunately
however for the state and her character, the tenure
of her judges was daring good behaviour, and the
court itself established in her constitution;—and the
cause of order, and well regulated law, and the con¬
stitution, at [last prevailed and triumphed, and was
sustained by the people. And sir, there is hardly a
difference of opinion now upon the subject, from one
end of this union to the other—it i3 in favor of the
old court judges of Kentucky. Suppose, sir,
they had had periodical elections of judges, what
would have been the consequence? Either that the
judges would not have 1'iad firmness and moral cour¬
age to discharge their duty;—or if they had, they
would all have been sacrificed by the ascendant party;
and either event would have proved fatal to the con¬
stitution, and rights of the citizen.
How was it in Georgia three or four years since?
They elect their judges for three years by the legis¬
lature. Judge Clayton "decided one of their laws,
perhaps with regard to the Indian gold mines, to be
unconstitutional. His opinion was in accordance with
that of Chancellor Kent, one of the first American
Jurists; the legislature refused to re-elect him. I
have recently conversed with a distinguished gentle¬
man who has been in that state, and I find the con¬
dition of things there, worse than I had even imagin¬
ed. This state was formerly divided into what was
called the Troup arid Clark parties—now the desig¬
nation is, the union and state rights parties. Such is
the hostility betwee n them, that no individual can be
elected to an office of any description, by the legis¬
lature, unless he be longs to the ruling party. What
is the consequence? Not only that the state is de¬
prived of perhaps one half her judicial talent—that
there will be continual fluctuations upon the bench,
and in their decisions;—but the danger is, that no
matter what injustice, what tyranny and oppression,
the ascendant faction may perpetrate, the judges,
being the mere bre&th of the legislature, will sustain
them in their outrages. I do not wish to be under¬
stood as asserting, that this is the case with regard
to the judicial tribunals of that state;—I only speak
of what as it seems to me must be the inevitable
consequences of th«3 system.
What is passipg ia review before us now in the
8
State of South Carolina ought not to be lost upon this
Convention. Such have been the grievous oppres¬
sions and tyranny of the majority there, that that
State has been at the very verge of civil vVar. An
appeal was made to the judicial tribunals—they have
decided the test oath, which had been imposed by the
legislature, to be unconstitutional—and it is hoped
that rest and peace will now be given to that troub¬
led State. They elect their judges during good be¬
haviour—if the judicial tenure had been different,
will it not occur to every member of the committee,
that a reckless unrelenting majority, would always
take effectual steps to secure a bench that would
be subservient to their purposes? In times of high
party excitement, the judges may be rendered, un¬
der any system of periodical elections by the legisla¬
ture—I do not say it always would be the case—
completely tiie despicable sycophantic tools and
minions of power.
.. We have occasionally had parties in our own state,
and party excitement, and much unconstitutional
legislation. To the credit t>f our judges be it said,
they have been found on the side of the constitution.
In 1819 our legislature passed an act suspendingrex¬
ecution uponjall judgments thereafter to be obtained,
for two years, unless the plaintiff would indorse there¬
on, that Bank notes would be received in discharge.
In 1821, upon a case being brought before them,
Judges Haywood and Emmerson pronounced this
law unconstitutional and void, as contrary to Magna
Charta, and our bill of rights. Who i3 there now,
judge, lawyer, or politician, that will dispute the cor¬
rectness of this decision? In this particular instance,
from the exalted opinion I entertain of the'characters
of both these distinguished men, I have no doubt, their
decision under all circumstances would have been the
same. But ordinarily speaking, from our knowledge
of human nature, how would it be? Here is a decis¬
ion to be made upon a deeply interesting constitution¬
al question—party spirit runs high,—leading politi¬
cians in every part of the state are enlisted in sup¬
port of the law,—they compose-a majority of the leg¬
islature,—the judge,s election is coming on shortly af¬
ter he makes his decision,—he knows if he decides
against the law, he cannot be re-elected,—his office,
in some measure his character and his bread, depend
upon his decision—Sir, is it not a fearful situation in
which to place a man's integrity? Is it not full of dan¬
ger to the country? How easy is it for him to find
reasons according to his interest, and that will satisfy
his conscience? Is it not most likely, that he will
co-operate with the legislature in support of the
unconstitutional law?—And then in tho language of
Judge Haywood, "the constitution and public free¬
dom die together." And what is equally mischiev¬
ous, if he refuses to do it, the probability is, he loses
his election—and his place will be filled by some
supple tool of power, who stands ready and pledged
to carry into effect the unconstitutional edict. That
such would have been the case in this instance, is
proved conclusively by the spirit of the act, of a sub¬
sequent session, making it a misdemeanor in office'
in the sheriff, subjecting him to a fine of $'500, and
imprisonment for six months, if he sold under execu¬
tion, without an endorsement by the party, that he
would receive the .worthless depreciated currency
of the country in discharge of the same. I pray Hon¬
orable gentlemen to pause, before they adopt an ex¬
periment, that may destroy the constitution, that
sacred charter of our country's liberty.
And why shall we do this? It is said that it k t&
put down an aristocratical principle, that is danger¬
ous to liberty. This sounds very loftily and well;—
but it is, ''vox etprceterea nihil,"—"mere sound
and fury, signifying nothing." We have lived under
this kind ofjudicial tenure, nearly forty years,—and
I have never seen any danger to liberty from this quar¬
ter. The judges have not the power, if they had the
will, to commit encroachments. They have no honors
nor offices to bestow; they can dra w no influence
around them; they are merely the servants and agents
of the law, which it is always competent for the leg¬
islature to charige within the pale of the constitution.
Sir4, I will go as far as any man to vindicate the rights
of the people;—and to resist encroachment and op»
pfession from whatever quarter they may come.—
But the very effect of art amendment, that directs the
judges to be appointed for a term of years by the leg¬
islature, and makes them re-eligible, is-not to increase
the powers of the people and give security to their
rights;—but to prostrate the judicial power at the
feet of the legislative;—to augment to an immeasu¬
rable extent, the already overwhelming powers of
that branch of the government;—'tis in effect to con¬
solidate all powers in the legislature;—to destroy all
the checks and balances in our system;—to change
this government from one in which each department
is co-ordinate and a check upon the others,—to one
in which the legislative branch possesses unlimited
powers. What then would become of the rights of
the citizen? Where the security to life, liberty and
property? Sir, this would be creating- an aristocracy
with a vengeance;—it would' bo a fearful and- horri¬
ble tyranny.
Nearly half a century ago, Mr Madison warned
the country against the danger of legislative en¬
croachment. I took the liberty a few days since, to
read to the committee, upon another subject, some
passages from the writings of this great statesman,
which would be applicable here,—which I shall not
repeat—they will no doubt be remembered. [See
Fed. 310-11-12.] In the late Virginia Conventions-
Mr Monroe expressed^imself as follows: "The judi¬
ciary will be independent if they hold their offices
during good behavior. They ought to be maintain¬
ed so. The danger is in the legislative branch.
I should be glad to see a check upon it in the execu¬
tive, as well as in the judiciary." Virg. Deb. 481.
Sir, the opinion of every individual in this commu¬
nity, who has watched attentively the operations of
our state government, must accord with that of these
eminent statesmen,—"the danger is in the legisla¬
tive branch"—never weaken the check which our
present judicial system imposes upon it.
The truth is, Mr Chairman, so far from judicial
tenure, during good behaviour, being anti-republican
in its tendency;—it forms the surest safeguard of
freedom and the rights of the people. It is more im¬
portant in a republic, than in a monarchy. Here,
are no titled families and hereditary distinctions—and'
God forbid there ever should be. This is a govern¬
ment of laws and equal rights and constitutional lib¬
erty. The law should be supreme;—and the courts
placed in a situation, in which they can safely and
with certainty, protect the citizen from arbitrary
power, no matter from what quarter he may be as¬
sailed. In free governments mere than any others*-
9
it is through the courts that powerful men and ascen¬
dant factions, attempt to wreak their vengeance up¬
on their enemies;—every avenue to abuse from this
quarter should be carefully closed and guarded.
There is another objection to periodical elections
of judges by the legislature. Let us see how it will
operate in practice,—particularly in regard to the
circuit court judges. At the expiration of a particu¬
lar period, there will be 17 judges to elect—eleven
upon the circuit court beneh, and as many attorneys
general, besides other officers. The members of the
legislature feel no particular interest in regard to
these elections out of their own circuits. There will
be numerous applicants for each appointment. Sup¬
pose three or four members from a circuit, active
influential men, should want the old judge displaced,
and'a new one elected;—the members from the oth¬
er circuits feel as much interest, in regard to their
elections, or some other matter of general or local
legislation;—reciprocal promises of support will be
given by themselves and their friends;—no matter
how well or ably the old judge may have acted in
his office, he will be beaten. So far, it is principal¬
ly an individual injustice to the judge. But that is
not all. He knows his precarious situation;—from
the first moment of his appointment, he will endea¬
vor to make himself friends;—to enlist strong men,
and powerful parties, and prominent lawyers both in
the legislature and out of it in his support;—to say
this will never have any influence upon the judge's
conduct and decisions, is to argue in favor of that sort
of perfectibility, which I fear is not always to be found
upon the bench nor any where else. A still further
evil, of these frequent elections of judges by the leg¬
islature, will be, their mischievous effects upon the
general legislation of the State;—they Will be more
intensely interesting than other matters, which of
course will be rendered subservient to them.
Another consequence will be, that towards the
expiration of the judge's term, candidates for th'e le¬
gislature, will be found arrayed in favor or against,
the judge, or his competitors for the station—it
will be made a question before the people, upon
which their election is to turn—will it not throw the
whole country into confusion and parties and dis¬
cord, and have an unfortunate influence upon the
purity of the judicial administration?
It is said, Sir Chairman, that this kind of judicial
ten ire indicates a distrust in the capacity of the peo¬
ple for self-government. By no means. It might
be as well said, that the people are not sovereign,
because they have established a representative repub¬
lic, instead of a pure democracy. For wise reasons,
they have entrusted different powers to different a-
gents;—for the same reasons, the better to advance
the ends for which these different powers are delega¬
ted, they have directed the tenure of office to be dif¬
ferent;—but in each case, the people are equally
sovereign. This principle lies at the basis of all our
institutions, and is by me regarded as sacred.
The principle of rotation in office, is farther urged
in opposition to this doctrine. It is said that the Gov¬
ernor, members of the legislature and representatives
to Congress are elected but for two years; the Pres¬
ident of the United States for four; why then should
the judge be elected for a longer period? This prin¬
ciple never did and never could apply to the judicial
department of the government. The distinction is
finely taken in the bill of rights prefixed to the new
constitution of Virginia. It is in these words—
"That the legislative and executive powers of the
o
state should be separate and distinct from the judi-*
ciary; and that the members of the two first may
be restrained from oppression, by feeling and parti¬
cipating the burthens of the people, they should, at
fixed periods, be reduced to a private station, return
to that body from which they were originally taken,
and the vacancies be supplied by frequent, certain
and regular elections, in which all, or any part of the
former members, to be again eligible, or ineligible,
as the law shall direct." By the same constitution
the judges hold their offices during good behavior.—
This is an admirable principle in relation to the ex¬
ecutive and legislature;—and well calculated to infuse
health and vigor into the whole republican system.
That it does not extend further, results from the
character and objects of judicial power, which are,
wholly inconsistent with frequent changes,—and
which have been already sufficiently remarked upon
—and from the qualifications necessary to fill the of¬
fice.
To become an eminent judge, requires a long
course of study and labor and research,—a habit of
patient investigation, accurate judgment, peculiar
qualities of mind and temper, which are by no means
universal in the profession. 'Tis the interest of the
country alone should be consulted with regard to the
possession of an office—not of those who do or want
to fill it. Sir, the longer a man is a judge, the bet¬
ter qualified he is to discharge the duties of the office,
while his faculties continue in their vigor;—the more
abstracted he becomes from the parties and politics
and passions that surrbund him;—the more his tem¬
per and feelings become chastened and subdued;—the
less liable he is to be operated upon by improper in¬
fluences;—the more able to detect sophistry and error;
—and consequently, the better it is for the country.
To elect a judge for a short period, could not but have
an unfortunate influence upon his temper and charac¬
ter and feelings. Instead of his whole mind being de¬
voted with an eye 'single to the faithful discharge of
his duties,—he would be engaged in providing the
means of securing his re-election;—watching the
strength of parties;—seeing the effect his decisions
might have upon the public mind;—and in detecting
and exposing the little plots and intrigues that would
be going on to supplant him in his office.
There has been greater unanimity of opinion upon
this subject, among American statesmen, than upon
any other, that has been debated in our annals. In
the Convention that formed the constitution of the
United States, over which Washington presided, and
of which, Madison and Franklin were members,—
the clause that the judges should "hold their offices
during good behavior" passed unanimously in the
affirmative by all the states. Journal of Fed. Con-
188.
In that celebrated commentary upon the constitu¬
tion of the United States, written by Madiso#,
Hamilton and Jay,—which had more influence m
procuring its adoption, than any other writings of the
time,—and which is regarded with the highest res¬
pect by all political parties, this subject is discussed.
Allow me to quote a few passages. "The standard
of good behavior for the continuance in office of the
judicial magistracy, is certainly one of the most val¬
uable of the modern improvements in the practice of
government. In a monarchy, it is an excellent bar¬
rier to the despotism of the prince; in a republic it
is a no less excellant barrier to the encroachments
and ..oppressions of the representative body. And it
is the best expedient which can be devised in any
10
government, to secure a steady, upright and impar¬
tial administration of* the laws." Fed. 483. Again:
"That inflexible and uniform adherence to the
rights of the constitution, and of individuals which
we perceive to be indispensable in the courts of
justice, can certainly not be expected from judges
who hold their offices by a temporary commission.
Periodical appointments, however regulated, or by
whomsoever made, would, in some way or other,
be fatal to their necessary independence. If the
power of making them were| committed either to
the executive or legislature, there would be danger
of an improper complaisance to the branch which
possessed it;—if to both, there would be an un¬
willingness to hazard the displeasure of either; if
to the people, or to persons chosen by them for the
special purpose, there would be too great a disposi¬
tion to consult popularity, to justify a reliance that
nothing would be consulted but the constitution and
the laws." Ib. 489.
In the different Conventions that ratified the con¬
stitution of the United States, this principle was not
objected to but approved. In the Convention of
Pennsylvania, Mr Wilson expressed himself as fol¬
lows: "The power of the constitution is paramount
to the power of the legislature acting under that con¬
stitution. For it is possible that the Tegislature, when
acting in that capacity may transgress the bounds as¬
signed to it, and an act may pass in the usual mode
&c; but when it comes to be discussed before the
judges—when 'they consider its principles, and find
it to be incompatible with the superior power of the
constitution, it is their duty to pronounce it void: and
judges independent, and not obliged to look to every
session for a continuance of their salaries, will behave
with intrepidity, and refuse to the act the sanction of
judicial authority." 3 Elliot's Debates 245. And
again: "The servile dependence of the judges in
some of the states, that have neglected to make prop¬
er provision on this subject, endangers the liberty
and property of the citizen; and I apprehend that
whenever it has happened, that the appointment has
been for a less period than during good behavior, this
object has not been sufficiently secured—for if every
five or seven years, the judges are obliged to make
court for a re-appointment to office, they cannot be
styled independent. This is not the case with regard
to those appointed under the general government.—
For the judges here shall hold their offices during
good behavior—the consequence of which will be,
that private property and personal liberty, so far as
it is not forfeited by crimes, will be guarded with
firmness and watchfulness." Ib. 273.
In the Virginia Convention, Patrick Henry used
this language—"When I see this last barrier, the
independence of the judges impaired, I am persuaded
I see the prostration of all our rights." "The judi¬
ciary are the sole protection against a tyrannical ex¬
ecution of laws." Again: "If we lose our judiciary,
and they cannot help us, we must sit down quietly
and be oppressed." 2 Ell. 395—Mr Grayson, Mr
Nicholas, and others to the same effect.
This principle has been adopted in the constitu¬
tions of sixteen of the states of the union, including
our own—to wit, four of the New England states,
Maine, Massachusetts, New Hampshire and Con¬
necticut;—six of the middle and'western states—
New York, Pennsylvania, Delaware, Maryland,
Kentucky and Tennessee;—three of the southern
states—Vi.iginia, North and South Carolina;—and
three of the north and south western states—Missou¬
ri, Illinois and Louisiana.
A different rule prevails in the other states. In
Vermont and Rhode Island they have annual jndges;
in New Jersey, Ohio, and Indiana, they are elected
for seven years—in Georgia, three—in Mississippi
their supreme judges and chancellor for six and their
circuit judges for four years—in Alabama, for 6 years.
In which of these states, have they the ablest ju¬
dicial tribunals—and where do we find decisions to
be regarded as precedents? Is it imthe little states of
Vermont and Rhode-Island, with their annual judges?
Is it in New Jersey or Georgia—Indiana or Missis¬
sippi? Is it even in the state of Ohio, distinguished
as she is in other respects,—in her general career of
mprovement? Sir, the decisions in these states, are.
rarely alluded to, and never relied upon as authority
in our courts. It is rather in the supreme court of
the United States,—the great states of New York
and Virginia, Pennsylvania and Massachusetts, North
and South Carolina, Kentucky and the other states,
that we look fot lights to guide us in the path of ju¬
dicial controversy.
Is it safe for us, under any specious theory that
may be assumed, to adopt a system, that in no state
in the Union has produced valuable fruits? A state
is as much illustrated, by the high standing of her
judiciary, as she is by her excllence in any other de¬
partment—by the character of her civil policy, or her
valor in arms. The inevitable tendency of such a sys¬
tem is to lessen the grade ofjudicial acquirements, and
consequently, to degrade jthe character of the bench.
Sir, it has been sometimes said, that this princi¬
ple was confined to the ancient constitutions which
were made at an early period, soon .after we emer¬
ged from the war of the revolution, and before the
science of government was as well understood as it
is at present. The very reverse of that seems to be
the fact. It is the modem constitutions, many of
which have been formed, after an experience of
nearly half a century, that have been most careful
to preserve this feature. The constitution of New
York was made in 1821—of Connecticut in 1818—
ofMaine in 1819—of Massachusetts in 1821—of
Louisania in 1812—oflllinois in 1818—of Mis
souri in 1820—and of Virginia in 1830. These con¬
stitutions were the work of distinguished men. In the
Convention of New York, were to be found her
most eminent jurists and statesmen,, among others,.
Kent, Spencer, Van Buren, and Tompkins. The
Convention that framed the constitution of Virginia
in 1830, was as able a body of men as ever sat in a
deliberative assembly—equal perhaps to the old con¬
tinental congress, cr the Convention that formed the
constitution of the United States. There were Madi¬
son, and Marshall, andMunroe., who had witness¬
ed the operations of the general and state govern¬
ments from their first establishment—who had re¬
ceived the highest honors their country could be¬
stow upon them—to give to that country, the fruits
of their enlightened experience and wisdom. This
subject of the judicial tenure, received the most
thorough, careful, and deliberate consideration of the
convention;—and the result was, as has been sta¬
ted.
Indeed, Sir, the constitutions of most of the states,
where they have periodical appointments of jndges,
are of ancient date. The constitution of Rhode-Is¬
land, is the charter of Charles 2nd—that of New
Jersey was made in 1776—of Vermont in 1793—
of Georgia in 1798—of Ohio in 1802—and of Indi-
i i
Una m 1816—that of Mississippi where the judges
are elected by the .people, is of recent date.
I might here remark in passing—not for the pur¬
pose of claiming for it any more consideration than
it is entitled to—that the opinion of the illustrious
man who is now at the head of this nation, may be
regarded as in accordance with that of other emi¬
nent statesmen. In his message of 1829, amidst all
the changes that he recommends, the limitation of
the Presidential service to a single term, anda direct
election by the people,—where he speaks of rotation
in office, and the propriety of the extension of the
law limiting appointments to four years,—he no
where recommends a change with regard to the ju¬
diciary. On the contrary, so far as any allusion is
made to the judges, he says the judicial office should
be an exception.
I am not aware, Mr Chairman, of a single distin¬
guished name in American history, in favor of peri
odical elections of judges, either by both branches of
the legislature;—or by the executive with the con¬
currence of the Senate. Mr Jefferson in his celebrated
letter to Kerchival, written in 1816, rejects the doc¬
trine of legislative elections of judges to office al¬
together. "Nomination to office, he says, Is an exe¬
cutive function." This great man seems inclined in
favor of periodical elections of judges by the people.
His opinion is very much based upon the example of
the State of Connecticut, where he says, it has been
in successful operation for nearly two centuries. As
a commentary on this opinion of Mr Jefferson, and
which deprives it in a great measure of its force,—-
this State, when she comes to revise her constitution
two years afterwards, in 1818, repudiates this doc¬
trine altogether—directs her judges to be appointed
by the general assembly, and to hold their offices
during good behavior. Mr Jefferson however indi¬
cates two plans with regard to the judges, with either
of which, he wonld be satisfied;—to make them
"elective or amoveable;"—this latter mode I consid¬
er the best. See 4 Jeff. Corr. 288-9
I am therefore for retaining this feature of our con¬
stitution ; that the judges shall hold their offices during
good behavior; at the same time, I am free to admit,
that our constitution is exceedingly defective in re¬
gard to the organization of this department. I am
willing to go as far in my amendments, as any State
in this Union has gone, whose judiciary is entitled to
our regard. I will go as far as the authority of our;
eminent statesmen,—and the example of our sister
states the most distinguished for the excellence of their
institutions, their general policy, or the high standing
of their judiciaries will authorize me" to go. I will
go far enough to remedy the evils and inconvenien¬
ces under which the country has labored, under our
present system—as safe, prudent, practical men, shall
we go further?
One of the evils that we have experienced, is this,
that there was no way of reaching a fudge, except
by impeachment—that you must establish criminal
conduct in a judge, corruption in office, before he
could be removed;—he might be neglectful of duty,
profligate, incompetent, superannuated and yet re¬
main secure in his office. This ought to be reme¬
died. The power ofimpeachment ought still to be
retained in the constitution for high crimes and mis¬
demeanors, if the legislature think proper to resort to
it; at the same time another mode should be provided,
by which every species of official delinquency can
be reached without trouble and difficulty.
The amendment proposed, is, "that judges inay be
removed from office, by a concurrent vote of both
houses of the general assembly, each house voting
separately; but two thirds of all the members elected
to each house, must concur in such vote; the yeas and
nays of the members voting for or against the judge,
shall be entered on the journals of each house respec¬
tively." I am aware, sir, that in several of the States,
as for instance in the new constitution of Virginia,
the cause of removal, is required to be entered on the
journals—notice given to the judge, together with the
causes alleged for his removal &c;—but in other
states of equal authority, New York, Massachusetts
and Connecticut, neither notice, nor specification of
reasons is required by their constitutions. This mode
of removal should be made as simple as possible, un¬
incumbered with any difficulties. The legislature
wiH always have it in their power to take any steps
that they may think proper^ upon the subject. This
amendment does not contemplate a trial. If a judge
shall become so obnoxious from any cause, that two
thirds of both houses of the general assembly, under
the responsibility that they owe to the people—would
be willing publicly to record their votes against him,
let him be displaced. It is true that this power of re¬
moval may be abused,—and so may all human pow¬
er—it is one however that should exist some where—
aud I do not know in whose hands it can be more
safely placed, than in those of the representatives of
the people
The reason that two-thirds, instead of a bare ma¬
jority, have been required in nearly all the States, to
effect the removal of a judge, is to protect him a-
gainst any excitement that may be got up against him
from a thousand causes. The firm and faithful dis¬
charge of his duties will create enemies—he will al¬
ways be obnoxious to one party or other against
whom he decides a cause. Besides, as has been re¬
marked, the' judicial, is a check upon the legislative
power. It might be necessary for the judge, at some
time of high party excitement to decide upon the con¬
stitutionality of a law. If a hare majority could re-*
move him, the danger is that he might become the
pliant instrument of legislative usurpation and op¬
pression, from fear of losing his office—and conse¬
quently no security to the rights of the citizens; or if
he should prove refractory, that he would be imme-
mediately sacrificed by the powerful party. There
would be great danger of the judge being removed
at any time, if he did not belong to the ruling party.
I will, however, say to you, Mr. Chairman, that rath¬
er than haye an elective judiciary, which I should
regard as one of the greatest calamities that could
befall my country, I would be willing that the judg¬
es should be removed by a mere majority of both
houses of the legislature—and would support such a
proposition.
This amendment will be a sufficient check against
^any abuse of power on the part of the judges; it
will be a constant stimulus to their industry and ex¬
ertions; it will make them responsible, and they will
feel their responsibility; it will enable the country at
all times to get clear of a judge who is deservedly
obnoxious, without tiouble or expense—and at the
same time protect him in the correct discharge of hi3
duties.
No case has yet occurred in our history, in which,
under the exercise of this power, the delinquent judge
would not have been removed not only by two-thirds,
but three-fourths—yrs", four-fifths of the legislature.
No case could arise in which it would not be an am¬
ple and sufficient ret lody. Jf the judge was neg-
12
lectful of duty, intemperate, tyrannical or incompe¬
tent, vvoufd it not reach him? There is no plausi¬
bility in the argument, that this is but another mode
ol impeachment. An impeachment is a regular cri¬
minal accusation. There must be an organized couit
—a solemn arraignment of the party—the court itself
as well as the witnesses must be sworn—every charge
must be substantiated by testimony according to the
forms of law—with all the expense and delay incident
to such a course. Not a single step here mentioned,
would be taken under this mode of removal. Every
member of the legislature, under a sense of duty to his
country, the judge and himself, would be at liberty to
form an opinion, from any sources of information,
accessible to him, of the conduct and character of
the judge.
This power of removal by vote or address, exists
in nearly all the States, where the judicial tenure is
during good behaviour. We see the fruits of it, in
the high character of their courts. It has proved sat¬
isfactory every where, so far as 1 have any informa¬
tion. Is it not the part of wisdom in us, to profit by
the lights and experience of other states? They indi¬
cate the path of safety ;fin any other, there is danger.
Another part of the amendment is, that the judges
shall not continue in office beyond the age of Sixty
years. I am willing to admit that a man's intellect
does not necessarily decline from that period; nor
his ability to serve his country. Examples of distin¬
guished excellence, in every department of literature
and science, as well as in the administration of govern¬
ment, may be cited long after that age. And when
such a man as Marshall, or Kent, or Mansfield, was
upon the bench, a considerable loss might be sus¬
tained by the operation of the rule. They would
still, however, be able to serve their country in some
other capacity. Chancellor Kent, by his comment¬
ary upon American law, written since he left the
bench, has erected a splendid monument to his own
fame and that of his country. Such instances are
rare. A State in half a century might not produce
one of these names. No general rule can be estab¬
lished upon such exceptions.
Upon principle, Sir, I am opposed to any man's
retaining a life estate in office. It seems to regard
the office rather as private property, instead of being'
held for the benefit of the people. As regards the
public interest—I am satisfied that more will be gain¬
ed than lost to the country, by this limitation of the
judicial office. Consider the labors your judges have to
perform. The judges of the supreme court are compel¬
led to travel from one end of the State to the other,
once a year, sometimes at inclement seasons;—and
from our geographical position; one court at least, will
always be held in each of the three divisions of the
State, Eastern, Middle and West Tennessee. Your
Chancellors, too, traverse the State in all directions,
twice a year;—the duties of your circuit judges are
very arduous, and require the possession of consider¬
able physical as well as mental powers. Organized
as our courts are, those who fill them, should possess
active energies of mind and body. Occasional in¬
stances of this, are to be found after that period of
life. As a general rule, however, in a vast majori¬
ty of cases, take your seventeen judges as you find
them when they arrive at the age of sixty—you will
be able to get younger men of equal learning and a-
bility, and more capacity for business, to fill their pla¬
ces. The country will be benefitted.
The propriety of some limitation must be admit¬
ted. There is a period in the life of almost every
man, in which his intellect as well as body begin to
decline;—when he becomes less capable of vigorous
intellectual exertions. The evils of a superannuated
bench are intolerable. Some rule should be estab¬
lished;—and although distinguished names may be
referred to, that have retained their fine faculties, to
the age of eighty or ninety;—we know that it is
very rarely the case. In some of the States, the ju¬
dicial tenn is limited to tha age of seventy—in Mis¬
souri it is sixty-five—in New York sixty. J prefer
the latter.
It is true that under the power of removal, you
might'get clear of a superannuated judge. This is
an extreme medicine, and not to be resorted to upon
ordinary occasions. It would be regarded both by
the community and the legislature, as the exercise of
a delicate power, towards any man who had been a
valuable judge;—but whose intellect was In the
wane. The difficulty ought to be avoided by the
constitution.
I had intended, Mr. Chairman, to say something
with regard to ihe'mode of appointing the judges—
whether it should be by the executive with the con¬
currence of the Senate, by the people, or the legis¬
lature—and to give my reasons for preferring the lat¬
ter;—but as there is no proposition at this time before
the committee, for either of the two first plans, it
would be superfluous to engage in that discussion.
Allow me to say, Mr. Chairman, in conclusion,
that I feel as well as other gentlemen, the deepest
interest in the prosperity of my country, and the
success of our free institutions. This State has al¬
ready attained an elevated rank among her sisters
of the Union—and in population, wealth, and gene¬
ral resources, we are a great and flourishing com¬
munity. We have reason to be proud of the pres¬
ent character of our State, both at home and abroad;
and under a wise constitution and laws well adminis¬
tered, to anticipate with confidence our future high
destiny. Shall we rashly put these advantages at
hazard? And for what pqrpose? Because in the
last forty years, we have had two or three incompe¬
tent judges? No one can deny but that in the main, the
administration of the law has been pure and able—
and the rights and liberties of the citizen properly
protected. As plain, practical men, how far is it
safe then, to change our fundamental laws?. No
farther, surely, than to remedy the evils under which
we have labored. The amendments which have
been indicated will do this;—at the same time, the
integrity and independence and healthful administra¬
tion of the laws will be preserved. Let us not, Sir,
in the madness of innovation, level to its base, tin-
whole fabric of the judiciary, under which we have,
so long lived and flourished;—but rather let us add an¬
other column to the building, which while it increas¬
es its strength aud usefulness, will beautify and a-
dorn it.
I feel grateful, Sir, for the kindness and attention
with which the committee have so long honored me
upon this occasion, and will proceed no furthet. I
will beg' leave however before I sit down, most
earnestly, but at the same time most respectfully, to
entreat every member of the committee, to pause and
consider well, the course which he will take upon
this most interesting question—believing as I sol¬
emnly do, that if we take a false step here, and sub¬
stitute a system of periodical elections of judges,-we
shall regret it through all coming time—and that it
will impair essentiiljy onr high character as a com¬
munity.