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 Chambers 
 
 Speech of Judge Chambers, 
 on the Judicial Tenure, in 
 the Maryland Convention, 
 April, lb51
 
 THE LIBRARY 
 
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 THE UNIVERSITY 
 
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 O N T H E 
 
 JUDICIAL TENURE, 
 
 IN THE 
 
 MARYLAND CONVENTION, 
 
 APRIL, 1851. 
 
 BALTIMORE: 
 PRINTED BY JOHN MUIIPHY k. CO 
 
 PATENT ROTARY PRINTING MACHINE, 
 
 JNo. 178 MARKET STREET. 
 
 18 5 1. 
 
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 *¥
 
 SPEECH 
 
 O F 
 
 JUDGE CHAMBERS, 
 
 ON THE 
 
 JUDICIAL TENURE, 
 
 I N T H E 
 
 MARYLAND CONVENTION, 
 
 APRIL, 185 1, 
 
 BALTIMORE: 
 PRINTED BY JOHN MURPHY & CO 
 
 PATENT ROTARY iPRINTING MACHINE, 
 
 No. 178 MARKET STREET. 
 185 1.
 
 ■XM 
 
 
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 SPEECH OF JUDGE CHAMBERS. 
 
 Judge Chambers, after alluding to various statements made by 
 Mr. Bowie, and several other gentlemen, in reference to the sup- 
 posed state of public opinion on the subject of the Judiciary, in 
 different parts of the State, proceeded to say : — 
 
 Mr. President: — My solo purpose, in reviewing those allega- 
 tions, is to show, that the argument of the important question, upon 
 which we are called to act, should be based upon other grounds 
 than such statements of opinion — that they, in fact, prove nothing. 
 The gentleman, indeed, after alluding to them, admits this; and 
 properly enough says, we ought to give tone to popular sentiment. 
 We are here, not as the mere creatures of a particular party or 
 class of men, to be driven against our convictions, by a supposed 
 current of public sentifiient running, in this direction, or in that. 
 We are placed here, to perform high and solemn duties — duties 
 which are to aflcct the interests, the security, the well-being of so- 
 ciety, in all respects, and for all time. In discharging these duties, 
 the most sacred obligations demand, that we exercise our grave and 
 deliberate judgments. The responsibility we owe to the community 
 cannot be met by adopting a course approved by others; if it be 
 not commended to our own judgments, by a conviction of its 
 propriety. 
 
 My object then, in alluding to the remarks, T have noticed, is 
 to express my humble opinion, that such considerations ought not 
 to disturb the operation of our minds, in coming to conclusions, 
 upon this subject. There are, in my view, far higher, greater, and 
 more important considerations. According to my judgment, there 
 has not been, there is not, nor will there be, any question before 
 this body, which can in any degree, be compared with this, in the 
 ■^ magnitude, in the extent, in the duration of its results and con- 
 ^ sequences, for good or for evil. I wish I could flatter myself, with 
 
 1503105
 
 the expectation of drawing the attention of the House, to the 
 views, I would present. I am sensible, that very strong impres- 
 sions have been indulged by many; and equally sensible, that 
 tliese deep-seated and long indulged opinions are hardly to be 
 changed. Still I feel it my duty to give the result of my best and 
 most anxious reflections. 
 
 In the discussion of this subject, I am quite willing to follow 
 the lead of the gentleman, who has opened the debate ; and com- 
 mence with the original, elementary, universally acknowledged 
 principle, recognized by the Declaration of Rights, as the doctrine 
 of our Fathers, and worthy of acceptation, for all time, as the 
 foundation of a republican Creed. The first Article of that Instru- 
 ment declares, and the whole Constitution assumes, " that all gov- 
 ernment of right originates from the people, is founded in compact 
 only, and instituted solely for the good of the whole." The 
 second declares, that the people ought to have the sole and exclu- 
 sive right of " regulating " and controlling the governinent. No 
 man in this State, no one in this body, or out of it, will avow, as 
 his own, or propose to another, any other political Creed. All, 
 every where, admit the sovereign power of the people, to control 
 their own government. Now what is the government, which the 
 people can thus regulate? What are its objects — what its de- 
 signs? The error of the gentleman's argument — a very com- 
 mon error — is, that the Government is designed, solely to pro- 
 tect the rights of the majority of the people, at any given pe- 
 riod. That is not the spirit of our Declaration of Rights; nor 
 is it consistent with the true theory of government. The doctrine 
 of the Declaration — and the sound doctrine — is, that Government 
 is designed for the good of the " whole," not of a " majority." 
 Government is a system of restraints, not of indulgences. Man, 
 without its restraints, is thrown for protection upon his own 
 strength ; with no arbiter of his rights, but his own will, and his 
 own passions; and no means to enforce them, but violence. Of 
 course, in proportion to his physical ability, there is peril to the 
 rights of those, who are unable to protect themselves. The 
 prejudices and passions of men, excited, and operated upon, by 
 motives of interest, ever have, ever will, and necessarily must, 
 occasion conflicting opinions, with regard to their rights and 
 claims. Without government, these conflicts must be determined 
 by force; there is no other appeal. The object of government, 
 is to substitute, for this force, a system of rules or laws, by which 
 all such conflicts may be determined ; to establish an authority,
 
 before which a fair investigation can be had; and by which, means 
 are devised to give effect to the decisions which shall be made, 
 according to these rules ; founded, as they profess to be, upon 
 great principles of Truth, and Justice. The peculiar objects of 
 the protection and care of government, are those, therefore, 
 who, without it, would be exposed to wrong, and violence. The 
 strong man armed, needs no aid- He can determine, for himself, 
 his own rights ; he can defend, and enforce them. It is to the 
 feeble, to the oppressed, that government is necessary. It is the 
 conviction of this necessity, which causes men to associate, to 
 form societies for mutual protection, and to establish settled govern- 
 ments. Majorities are strong: they are able to redress their sup- 
 posed wrongs, and enforce what they consider their rights. The 
 restraints of government are felt by them, and required to control 
 them. The rules of government — rules, which protect the rights 
 of all — are required for the protection especially of the humble, 
 the obscure, and the impotent — of those, in other words, who 
 constitute the minority of a community. 
 
 Another view, which has been presented by the gentleman, of 
 the doctrine of our Declaration of Rights, has no foundation 
 in truth. The idea is, that the people — meaning thereby, a nu- 
 merical majority — have the right to control the government, by 
 becominor the actual agents in its administration, without the in- 
 tervention of officers, agents, or trustees, by and through whom, 
 their delegated powers are to be exercised. 
 
 If a community of men choose to form such a government, 
 one, by the terms of which, the whole mass is to be assembled, 
 on every occasion, for the exercise of the functions of govern- 
 ment, and in such mass meetings, and such alone, to decide upon 
 every question which may arise; doubtless, they have the power 
 to do it. But what I maintain, is this : — I maintain, that such is 
 not the spirit nor the letter of our system ; neither countenanced 
 by the Declaration of Rights, nor by the Constitution ; nor was it 
 thought of, by those, who constructed these noble monuments of 
 political wisdom ; nor indeed by any one since their day. 
 
 If the imputed and admitted sovereignty of the people is to be 
 vindicated, in such a case as the one before us, (the selection of 
 a judicial department) only by taking into their own hands (the 
 hands of a majority) the immediate and direct appointment of that 
 department; — if (as is alleged) it be a deprivation, in any degree, 
 of the rights of that sovereignty, to delegate the power of selec- 
 tion, to agents appointed for that purpose; — why is not this sov-
 
 ereignty assailed, and impaired, by delegating to agents the power 
 to perform any other duty, which the people themselves can do 
 when assembled in mass? The direct and legitimate result of 
 such a theory is. to require a dissolution of all society into an 
 absolute, unqualified, unmixed democracy, such as can exist only 
 in a community composed of some few families of men. If such 
 a doctrine be at all tenable; then, in short, the people are not id 
 elect a Judge. No, Sir, they — that is, a mojority of the people — 
 must act, as Judge. If the people's sovereignty is made to con- 
 sist, not in organizing and forming their own government, dis- 
 tributing their powers between the different departments required 
 for its administration ; if to delegate power to agents, and offi- 
 cers, whether that power be to make appointments of other agents, 
 or to perform any other duty; if this be to abridge the rightful 
 power of the people — then the delegation of the power to 
 judge and decide upon questions, which constantly occupy the 
 Courts, and form the subjects of their ordinary jurisdiction, is 
 equally — equally — an infringement of the people's rights. Yes, 
 Sir. And then also are we here, usurping the just rights of the 
 people. For we too are delegated by the people to perform at 
 least, in part, a duty very much more appropriately within the 
 sphere of action suited to the viass of a community, than the ap- 
 pointment of a judicial officer, or the exercise of judicial func- 
 tions. Such a doctrine would impeach every act and measure of 
 the government not only of Maryland, but of every other State in 
 this Union ; yes. Sir, of every civilized government, that has ever 
 existed I In all, it has been, and ever will be, found necessary to 
 organize departments; and to vest them with appropriate adminis- 
 trative powers; executive, legislative, and judicial. The American 
 Doctrine is, not only that the sovereign power of the people is 
 adequate to direct — '^regulate" — control this distribution of 
 power; not only that the sovereignty of the people is the fountain 
 of all power; — but that the people have "the sole and exclusive 
 right of regulating it," — according to the letter of our well ex- 
 pressed Bill of Rights. It is the "government,'' they are to 
 "regulate ;'' it is not for them to execute, {in mass,) the duties 
 and offices created by the government. Government is the 
 compact, or system agreed upon, or (if you prefer the term) 
 devised by men associated in Civil Societies ; which, in a coun- 
 try blessed like ours, with a written Constitution, prescribes 
 certain organic laws, or rules, as fundamental articles of asso- 
 ciation ; and provides the machinery necessary to execute, and
 
 enforce these organic laws, and such others, as may be found 
 essential. The machinery, without which an administration 
 of these laws would not be possible, consists of the various 
 departments, and their incidental details. Tiie organization 
 must be complete; the machinery must be of a character to 
 operate effectually. When it is found defective, the sovereign 
 power — the people — may re-model, may again organize, again 
 "regulate" the "government;" and having done so, again 
 leave it to be worked out, in all its completeness, by the adminis- 
 trative branches constructed, for that purpose, by their agents and 
 officers. To require the sovereign power — the people in mass — 
 to perform these duties of administration, would dispense with 
 the necessity of government altogether. If such a thing were 
 indeed practicable, all Constitutions, all Laws, all formal Govern- 
 ments could no longer exist. If we suppose their existence pos- 
 sible, they would at least be useless! 
 
 The sovereign power of the people would be embodied, when- 
 ever action was to be had, and neither Constitution nor law could 
 resist or op-pose their sovereign will ! That will vvould be Consti- 
 tion and law above all restraint; and include, in itself, legislative, 
 executive, and judicial authority. Sir, is this theory attractive, 
 which yields results so full of mischief? But fortunately, it is as 
 impracticable, as it is mischievous. The government of the United 
 States originates from the supreme sovereign power of the people 
 of the United States. They are as supreme and sovereign in 
 relation to that government as the people of Maryland are in rela- 
 tion to our State government. There is as much moral and poli- 
 tical propriety in respecting their rights, as there is in repecting 
 the rights of the people of Maryland. If it be a gross violation 
 of ritrhts to deleofate powers of government in the one case, it is 
 equally so in the other. And now. Sir, fancy such a thing, as an 
 attempt, on the part of the good people of this great Nation 
 of almost boundless extent, reaching from the borders of China 
 to the Gulf of St. Lawrence — fancy this mass of human beings 
 scattered over this extended area, claiming to exercise, in person, 
 those functions of administration which they insist are a por- 
 tion of their jusi prerogative — claiming, in the language of the 
 gentleman, " a restoration" of their rights! "a restorntion!" 
 Why, Sir, when have the people ever exercised such rights? 
 Never — never! The claim now preferred is a novelty, and one 
 of late date too. How did our Fathers understand it? I have 
 attempted to explain what our Bill of Rights declares, what
 
 8 
 
 our Maryland Fathers designed ; but it will require no elucida- 
 tion, to show what was the understanding of the Sages, who 
 declared the Independence of the Nation, as well as the Rights 
 of the people ; and who subsequently poured out their treasure 
 and their blood in defence of those Rights. In the very first 
 clause enumerating the causes of separation from the British 
 government, and setting forth what are inalienable Rights, it is 
 declared, that " /o secure those rights, governments are instituted, 
 deriving their just powers from the consent of the governed ;^' 
 that is, the people; — "and whenever any form of government be- 
 comes destructive of these ends, it is the right of the people to 
 abolish it and" — to do what, Sir? — administer it, themselves? Not 
 at all. What they wished to do, in such case, was " to institute a 
 new government " — " organizing its power, in such form, as to them 
 shall seem most likely to effect their safety and happiness" — " to 
 provide new guards for their future security." Here, Sir, is the 
 true theory. Government is an " Institution." The right of the 
 people — their inalienable right — is to " organize" it : not to adminis- 
 ter it. Pursuant to this theory, the whole government of the 
 United States was organized; and its Constitution is nothing but 
 a delegation of authority to officers, and agents, to administer it; 
 and amongst other means, to nominate, and appoint other officers 
 and agents, to aid in its administration. 
 
 And now, Sir, I must guard against the attempt to misapply, or 
 the danger of misapprehending what I have said. I do not at all 
 mean to question the power, or the right of the people to provide, 
 by the Constitution, for the election of Judges. Quite the reverse. 
 The very object of a written Constitution is to parcel out those 
 portions of the sovereign power, which the people find it necessary 
 to delegate for good government. They may rightfully determine 
 what shall be done ; how, and by whom it may be done. 
 They may determine, that a Judge, or any other officer, may be 
 elected by all the voters in the State, by voters in particular dis- 
 tricts, by the Executive, by the Legislature, or by a college of 
 electors. No doubt of this. They may do so, by providing for 
 the selection of all officers in one way ; or by directing that some 
 of ihem be selected in one way, and some in another. But what 
 I maintain is, they no more divest themselves of any inalienable 
 rio-ht, by prescribing one mode ; than they do, by prescrib- 
 ing any other, If the sovereign power authorizes the executive 
 to appoint a Judge, or any other officer; the executive acts, in 
 obedience to the lawful mandate of the sovereign power. If the
 
 Constitution directs the Judire or other officer to be created by 
 the votes of the people of the State, or any portion of it; then 
 the election is in obedience to a mandate equally lawful, and ema- 
 nating from the same sovereign power. The real question, then, 
 to be considered, and the only one, is a question, not of " n'^g-A^," but 
 of " expediency.^' What is the method of proceeding most likely to 
 attain the object w-e have in view? This is the subject for our 
 consideration ; and we are not to be enlightened, as to our con- 
 clusions, on this point, by the notion of a "restoration" to the 
 people, of any rights, of which they have been deprived. Resto- 
 ration is a relative term. It imports the return of an object to the 
 person, from whom it has been taken. Where, and when, did the 
 people exercise this inalienable right? Where, when, and by 
 whom, was it taken away? The Constitution of the United 
 States — the Mandate of the people of the United States — vests 
 the appointment of the Judiciary, in the President and Senate. 
 Our State Constitution, from its origin, has vested this power of 
 appointment, in the Executive. There is no aggression upon the 
 rights of the people. And any argument, which professes to show 
 any invasion of such rights, must be without the shadow of a 
 foundation. 
 
 The Judiciary is a branch, a necessary and important branch of 
 government. It is, — at least it is intended to be, — a most available 
 ao-ent, in effecting the ends of government. What the end of 
 government is, we have already heard from the highest authority: 
 — "to secure our rights, amongst which are life, liberty, and the 
 pursuit of happiness:" — to protect every man who needs protec- 
 tion, in the enjoyment of his rights of person, his rights of pro- 
 perty and of reputation. It is not to protect a majority against a 
 minority of the community ; but for the protection of each indi- 
 vidual citizen against a violation of his rights by any other indivi- 
 dual, or number of individuals. It does not provide a remedy for 
 such as suffer no wrong; or relief for those, who have sustained 
 no injury. On the contrary, the redress, it promises, is only to 
 him, whose rights have been invaded ; all its protection is promised 
 to him, who may become the victim of force or fraud. Those who 
 are peculiarly exposed, whether by reason of infirmity of charac- 
 ter, physical or moral; from the want of pecuniary means, or 
 popular favor; or from any other cause; aye, even from defor- 
 mity or depravity of moral principle — all, who are especially 
 obnoxious to the excited passions or prejudices of others — are 
 the objects of protection. All, on the other hand, who would 
 2
 
 10 
 
 offend against these, (for the vilest even, still have rights,) are the 
 subjects, not of its protecting, but of its restraining power. All, 
 who would offend must be restrained; or the very first and vital 
 end of government will fail. Whether they be powerful, abounding 
 in wealth and influence ; or elevated in political power, and place ; 
 whether acting individually, or in masses ; all, who offend, must 
 be alike amenable to the laws. Now, Sir, it is a fact, as well 
 known, in the history of human beings, as the fact, that when 
 respiration ceases, death must be the consequence — a fact of uni- 
 versal observation — that the possession of power, without some 
 adequate restraint, begets a disposition to abuse it. No body can 
 doubt that. It has been a part of the infirmity of our being, since 
 the fall of Adam ; and doubtless will be so, to the end of time. 
 The object of the law, which is the mandate of government, is to 
 restrain that propensity. The object of all law is, to guard and 
 secure every citizen, however humble, in the enjoyment of all the 
 privileges guaranteed to him. Unfortunately, however, the law, 
 though ffood and wise, cannot execute itself. If a man suffer ac- 
 tual injury in his person, or in his property; it is of small account, 
 to tell him there is an act of Assembly on the statute book, which 
 says you shall have ample redress. If he cannot go beyond the 
 reading of the statute, if no mode of enforcin^f his claim to redress 
 be provided; he will not be the better, for the statute. There must 
 of course be some agency, some machinery, to carry the law into 
 effect. You must then have wholesome laws, and you must have 
 courts and Judges to afford the means of executing them, and of 
 bringing them within the reach of those for whose protection they 
 are made. This proposition will be admitted on all hands. If there 
 be one of them disputable, I am not aware of it. We must have 
 a government of force, to be administered by a military arm, or 
 a government of laws ; if the latter, we must have Judges. Of 
 course, the Judge should execute the duties of his station, so as to 
 accomplish the great end of his being. He should apply the law, 
 according to the purposes, for which it was enacted; to the protec- 
 tion of the weak against the strong; to the punishment and re- 
 straint of those who would commit wrong ; and to the redress and 
 security of those, who are exposed to it. 
 
 Hence arises the great question for our solution. What sort of 
 Judge, in this state of things, is most likely to perform the functions 
 of the office effectively and faithfully ? What are the elements 
 necessary, in the character of an officer, who is thus to be the 
 representative, and exponent of the law ? My answer is, that
 
 11 
 
 the very first and indispensable constituent, in the character of 
 such a man is a consciousness of perfect independence ; a free- 
 dom from all motive to do wrong; an exemption from all fear to 
 do right. This truth, to my mind, results from the very nature of 
 the fact, that he is to perform an odious duty; odious to an influ- 
 ential opposition, in direct violation of its strongest feelings and 
 dearest interests. In any other matter, if you desired a man to 
 perform a given duty; you would certainly, as far as possible, 
 remove from him all motive to neglect or abuse his trust; espe- 
 cially would you guard against his being made to suffer for its 
 fiiithful discharge ; you would, if possible, so arrange matters, as 
 that advantage, and not loss, should be the consequence of his 
 fidelity. Any other course would be as contrary to the common 
 usage of prudent men ; as it is to the philosophy of our nature. 
 Man is a creature of motive. You might as soon expect an en- 
 gine of the most perfect mechanical construction, to perform its 
 intended operations, without the guiding and controlling hand 
 of the engineer; as expect the mind of a human being to give 
 existence to words or actions, without some motive to act upon it. 
 Experience, in every department of human life, demonstrates, that 
 such is the character of every sane mind, and ever has been. Tt 
 is also true that the very instincts of our nature prompt us to re- 
 gard, with peculiar interest, considerations of personal advantage, 
 or injury. Man, in his best condition, is to some extent selfish, — 
 wisely, perhaps — nay, perhaps, necessarily — but certainly such. 
 If his existence is in peril, he is instinctively impelled to avoid the 
 danger; and he will obey the impulse, unless it be counteracted 
 by some other of a higher and more imperative character. It is 
 the same, in regard to evils of a nature less fatal, but in their de- 
 gree quite as unwelcome. It may be the impurity of our animal 
 nature ; it may be disowned by our purer intellectual being. We 
 certainly share it, in common with the brute creation. The horse 
 you ride, will be shy of the ditch, which looks too wide for him 
 to leap ; until the spur overcomes the dread, and urges him for- 
 ward to his best attempt. Sir, the man and the brute do not 
 differ, in that particular. 
 
 Let us then, Mr. President, consider what are the motives (and 
 what their force) which are likely to operate upon the mind, and 
 regulate the action of the Judge, we are about to create ? I will 
 not treat of him, as an abstraction ; but as a Judge here, in Mary- 
 land, in the nineteenth century. This is the time, here is the 
 place, — and the theatre, — for the exercise of his duties. We need
 
 12 
 
 notindul.^e in general speculations and theories, based upon an as- 
 sumed perfection of individual character, and an elevated condition 
 of society; or upon any other assumption. We have to deal with 
 a practical question ; and I hold the propriety of acting, with an 
 eye to the actual condition, in which we find men and matters. 
 We must consult our judgments, enlightened by our experience 
 and observation ; and answer the question, which I have so often 
 said should ever be the object of our solicitude — " What will prac- 
 tically produce the greatest good to the greatest number V The 
 Judge then will be but a man, a better man it is to be hoped, than 
 many others ; but still subject to the universal law of his being, 
 influenced by motives, perhaps of a higher order; but neverthe- 
 less yielding to those, which are most influential, in human con- 
 duct. Let us then inquire, what are the motives which are likely 
 to be presented to his mind. Doubtless in this enlightened age, 
 when public sentiment is to some extent controlled and instructed 
 by the precepts of a pure Religion and a sound morality, there 
 is no man, who would not obey his sense of propriety, in the 
 absence of any inducement to do wrong. He would therefore do 
 right (that is to say, what he honestly thought right) if no tempta- 
 tion existed. Of course, I do not speak of one, who by indulgence 
 in a dissolute, vicious course of life, has demoralized his feelings ; 
 and blinded, or blotted out his moral sense. Such a man could 
 not be considered, as an index of the character of the officer; and 
 any other would perform his duty, in the absence of any strong 
 motive, to induce a neglect or violation of it. There is nothing 
 in the character of his duties to bias, or warp an honest mind. 
 He has no patronage, to whet the avarice or excite the ambition of 
 friends or relatives. He confers no office. Candidates for such 
 honors must look elsewhere. His duty is only to act judicially, in 
 coercing an officer to the performance of his duty : or in restraining 
 him, in any attempt to exercise it oppressively. He acquires no 
 power for himself. His business is, to determine when others 
 abuse theirs. He acquires no riches, by the exercise of his func- 
 tions. He decides upon the contested rights of others; but 
 whether his judgment shall be in favor of A or of B, no matter 
 how large may be the amount involved, not one farthing of it is 
 to go, in any event, into his own pocket. If a case occurs, in 
 his Court, in which his own interests are involved directly or re- 
 motely ; he must retire from the Bench ; and leave its decision to 
 an impartial tribunal, before which the judge is merged in the 
 suitor. He is to decide exclusively on the rights of others. He
 
 13 
 
 does this, by no voluntary act on his part. He never goes in 
 search of an opportunity to exercise his authority; he asks no 
 man to come before him for judgment. But, while he cannot do 
 this, if he would ; he is as much the slave of necessity, on the 
 other hand. He cannot, if he would, avoid the exercise of his 
 duties, whenever they are put in requisition. He is bound, 
 whenever offences are charged, or injuries alleged, to interpose 
 his jurisdiction ; and — often, very, very often under the most pain- 
 ful circumstances — to hear, and decide upon the fiercest, bitterest 
 contests. There he sits, however. The more tender feelings of his 
 heart may excite his anxiety ; or his refined moral sense may feel a 
 disgust. But there he must sit, calm and unmoved, with no li- 
 cense to indulge either; but compelled to consult the stern dic- 
 tates of his judgment and knowledge. To these, every man may 
 appeal, who chooses to think himself injured ; whether he be so, 
 in fact, or not. However unreasonable his complaint; whom- 
 soever it may affect; the Judge must listen; he must examine, 
 and decide it. Any one may appeal to him ; but as the exponent 
 of the law, he must give the same response to all. The law is 
 made for all, who come within its provisions; and all are en- 
 titled to its equal, impartial, and prompt administration. It 
 prescribes the line of his march ; and his feelings, his reputa- 
 tion, and his peace of conscience, will not allow him to stag- 
 ger, to halt, or to turn aside, merely from a desire to do wrong. 
 Such then is the condition of the Judge, if temptations, induce- 
 ments to do wrong, be kept out of the way. And that the]/ should 
 be, as far as practicable, I now assume as an admitted proposition. 
 To enable us to guard asrainst them, we must understand what 
 they are likely to be? — those occasions, which disturb the 
 regular current of impartial justice — whence are they likely to 
 arise ? Now, to all controversies, there are at least two parties. 
 It may, it often does so happen, that one of them is rich, power- 
 ful, and influential ; the other poor and despised. The one has 
 the distribution of patronage, or favor, which enables him to con- 
 trol, if not the opinion, at least the voice of a large circle of 
 expectants, or dependants ; the other is without influence, or 
 friends. Here is a case that appeals to the infirmities of the Judge. 
 Yet the rules of law are the same precisely, as if the character of 
 the parties were exactly reversed, or exactly alike ; and therefore 
 its even current should not, iti any respect, be disturbed. The 
 humble man has the law, on his side ; the powerful man has 
 misconceived his rights, or has intentionally encroached upon
 
 14 
 
 those of his poor neighbor; or the point is a difficult or a nice 
 one. But, in any event, a decision in favor of the opulent, popu- 
 lar litigant, will ensure commendation and favor for the Judge; 
 while a decision against him, will excite the censure and condem- 
 nation, not only of the great man himself, but also of all those who 
 speak and act as he directs. The despised litigant, on the other 
 hand, can neither accelerate nor retard the progress of the Judge 
 towards reputation, honor, and social enjoyment. Is there not, 
 then, an obvious temptation here ? I do not put the case of a Judge 
 tempted to an act of wilful corruption. It is not necessary for my 
 argument. I take the case of a Judge just as honest as those we 
 shall find, in the class, from which we must select. Yet he bears 
 about him the infirmities of our nature; its weaknesses; its fol- 
 lies, if you please. He, like all men, has his prejudices and his 
 partialities; he, like them, must to some extent, find his judgment 
 under the dominion of his passions, of his appetites, or of his 
 self-regard. Thus tempted from the line of his duty, he must have 
 some counteracting influence, to fall back upon. What is it and 
 how is it to be supplied ? Sir, human invention may be scanned in 
 vain ; imagination's widest, wildest range may be traversed, to find 
 any other effective means to accomplish the necessary object — one 
 and one only can be found — a conscious independence of the 
 Judge. He must have this ; and having it, he has all that is 
 necessary to quiet his apprehensions ; to subdue his prejudices 
 and partialities ; and to leave him in the indulgence and expression 
 of opinions formed under that high sense of the responsibility, which 
 he owes to Him who gave him his being. This is the rock of his 
 safety. On this, he looks with no fearful concern for his security; 
 although the waves dash furiously at its base. He knows, and 
 feels, they cannot harm him ; and he treads, with as firm a step, 
 as if the sea before him were calm and unruffled. 
 
 Now let us consider the opposite hypothesis ; let us so arrange 
 matters, as that the influence of the man of wealth and power shall 
 be broucrht to bear directly upon the most important items in the 
 comfort or convenience of the Judge ; in fine, upon his very official 
 existence ; and then how may we expect the arrangement practi- 
 cally to work? I do not mean to say, there are not men proof 
 against all such opposing causes ; men who would jeopard their 
 lives, in the strict performance of duty ; and become Martyrs to 
 their principles. We have had Martyrs — men who have rushed to 
 the stake, to vindicate the truth of their opinions. Religion can 
 make men Martyrs. We have had Warriors and Heroes, to take
 
 15 
 
 the advance in a forlorn hope, and with fearful and countless odds 
 against them, to plunge into danger and death, to rescue a na- 
 tion, or an army. Why are Martyrs at the stake the objects of our 
 veneration ? Why are Warriors and Heroes, who have poured out 
 their blood on the battle-field, celebrated in history, and cherished 
 with admiration ? Sir, it is because they are rai'e. If every man 
 was a Saint, or a Hero, the character would lose its charm. But, 
 again, let us consider the wide difference, in the cases. The Saint 
 on earth is sustained, and borne through his fiery ordeal, by the 
 strong hope, that he is presently to be a Saint in Heaven ; and 
 to receive an ample reward for his sufferings here. The Hero 
 knows, that he is to acquire perennial fame ; while the habits of 
 his life, his passions and feelings make him regard all things as un- 
 worthy even of comparison with so high an object. How is it with 
 the poor Judge ? He is assailed by the influential adversary, with 
 charges of incompetency or misconduct. His destruction being 
 the object, the means most effective will of course be resorted to. 
 If his ability be well established, his purity must be attacked; if he 
 has more character for integrity than for talent, then the latter must 
 be defamed. Once get him into bad odor; and the business of 
 thrusting him still lower and lower, will not be difficult for such 
 agents. And what is the result to him ? Honor and fame and 
 immortality amongst men ? No, Sir. Infamy, disgrace, oblivion, 
 — these are his portion, when those who riot in the ruin of his 
 character, have accomplished their ends. Few can, still fewer 
 will, examine minutely into his history. He is a degraded judge ; 
 offensive to those who lead and control the sentiment of the 
 community ; charged with numerous delinquencies ; and by that 
 community, condemned. You first compel him to decide ; and- 
 then for deciding conscientiously, you doom him to a hopeless 
 degradation, robbed of his reputation, and probably thereby depriv- 
 ed of the means of future acquisition, either of character or pro- 
 perty. 
 
 I am aware. Sir, of the attempt which some persons make 
 to obviate these difficulties, which they cannot but feel and ac- 
 knowledge ; an attempt, by which, I believe they do actually 
 deceive themselves. They say, they admit the necessity of having 
 the Judge independent ; and they wish to make him such. I was 
 quite amused, the other day, to hear one of the gentlemen across 
 the Hall, full of zeal, in what he regards a "reformation" of our 
 judicial system ; and repeating the phrase — "An independent judge 
 dependant upon the people!" It shows the fact, at which I rejoice,
 
 16 
 
 that there is a deep-seated conviction of the great truth, that a 
 Judge should be independent, — even with those who have been 
 inoculated wi(h the virus of pseudo-reform, — of change in every 
 thing. Sir, it is an inbred element in the constitution and 
 character of the Saxon — this respect for law, and for the purity of 
 its administration; and as essential to it, the independence of the 
 minister of law. Now, Sir, paradoxical as it may seem to some, 
 I propose to show, that there is at least as much reason for mak- 
 ing the judge independent of the people, in this country; as there 
 is, in England, for making him independent of the crown. It cer- 
 tainly is the boast of the English Constitution, that the Judges 
 there are no longer tenants, at the will of the Crown. It was a 
 brilliant achievement in favor of liberty — a great popular triumph. 
 The measure was, to a very considerable degree, effected by the 
 13th William III ; and it was completed by 1st George III, which 
 was the first to enact that the commission should not expire with 
 the demise of the king; and which also made his salary perma- 
 nent. Every man, at all acquainted with the history of Jurispru- 
 dence, or indeed with political history, appreciates the inestimable 
 blessinofs ofuaranteed to the citizen — to the humblest, the most 
 persecuted citizen — by this independence of the Judge, under the 
 British government. Yet I hope to satisfy those, who will listen, 
 and will allow the argument to have its fair effect — that all therea- 
 sons which make it valuable and necessary there, apply with all 
 their force ; and some of them, with much greater force, to our con- 
 dition here. Let us go back a little way into English history. 
 Before the Independence of the Judiciary, the system was 
 virtually a tyranny. And why? Because the rights of the indi- 
 vidual citizen were held, at the will of the Sovereign, uncontrolled 
 by fixed and known rules of law. That is the very definition of 
 tyranny. It may exist in a monarchy, in an aristocracy, or in a 
 democracy ; but in either form, if the will of the sovereign power 
 is not controlled by settled laws, which secure the rights of person 
 and of property; the government is essentially and emphatically 
 a tyrannical government. The sovereign, in England, was 
 the king; and the king, without the control of law, was there- 
 fore the tyrant. I do not mean to say, that he constantly 
 acted out the character. A man may have power, which he 
 rarely or never exerts ; but it is the amount of power, in the 
 hands of the government — not the personal character and tem- 
 per of the monarch — which constitutes the idea of tyranny. 
 The King of England did not habitually exert his power; but
 
 17 
 
 wlienever his passions or his cupidity were excited, he did exert 
 it. The government was ordinarily administered by the authority 
 of acts of parliament, in the making of which, the people, throucrh 
 their representatives, participated. But as I have before said, 
 these statutes of parliament could not execute themselves; the 
 Courts and the Judges administered them; but the King was vir- 
 tually the Judge. He might not have said to the Judge in words, 
 but he made him understand sufficiently well, that in a particular 
 case, in which his hatred or his avarice was enlisted, the judg- 
 ment should be such as he desired ; or he would provide another, 
 who would feel no difficulty in gratifying him. Take, for an in- 
 stance, the celebrated case of the Corporations, where an English 
 monarch to gratify his cupidity, resolved upon their destruction, 
 and made a tool of his Judge for the express purpose of effecting 
 his object — yes. Sir, and as my friend near me (Mr. Crisfield) 
 reminds me — that tool ! — his Attorney General, who had prepared 
 all the pleadings and arranged the matter, as the lawyer, and then 
 took his seat on the bench, to consummate as Judge the act of 
 lawless injustice! Here was a case of removal by the hand of 
 power, for the faithful, firm adherence to duty. No such case can 
 occur now. And why? Simply because the Judge now is inde- 
 pendent; he was not so then. But he was independent, in one 
 sense; and, in the sense intended by the class of persons to 
 whom I have alluded. Nominally he was independent ; and he was 
 so, in fact, of every one, except the king. All the rules of law, and 
 all the forms of law, were prescribed for his government, and these 
 required him in the one case, to pass a fair and honest judgment, 
 just as much as they did in the other. But what was the practical 
 effect? Why you find, the King had control of the law, because he 
 had control of the man who administered the law. In such a state of 
 things, the government and the law cease to afiord protection to 
 the rights of the citizen ; and it is precisely this want of certain 
 effectual protection, which distinguishes tyranny from free govern- 
 ment. Liberty is but the term, by which we designate our rights. 
 It consists essentially in the enjoyment, the certain and undis- 
 turbed enjoyment of rights, personal, social, and political. Rights 
 cannot practically exist, where there is a power to control them 
 at will. We can have no certain enjoyment of privileges, civil 
 or religious; if the sovereign power may protect them at plea- 
 sure. It is not important, whether through the forms of law or 
 in defiance of the forms of law, this arbitrary or sovereign will 
 exerts its power. The practical consequences are the same. It 
 3
 
 18 
 
 is a lawless government; an arbitrary, a tyrannical government, 
 the moment the regular course of law is disturbed ; and the citizen 
 is thrown upon the whim, the favor or even the sense of justice of 
 the sovereign. This sovereign power, I repeat, may consist of 
 one, or of many. It is not the number of individuals, who rule, 
 that is to make it more or less a tyranny. It is the absence of 
 restraint upon its will; it is the failure to ensure a just, regular, 
 and impartial administration of the law, so as to redeem the pro- 
 mises and pledges, by which it guarantees to every individual in 
 the community, from the highest to the lowest, and to all alike, 
 the safe and certain enjoyment of all the rights and privileges, 
 with which they are invested; it is the unwillingness, or inability 
 to enforce engagements, to restrain vindictive passions, and vio- 
 lence whenever exerted against the weak, to secure property to 
 its rightful owner when an attempt is made to wrest it from him 
 by force or fraud — it is, I repeat, the failure, unwillingness, or in- 
 ability, in these respects, which constitutes the defects of Gov- 
 ernment; and they follow — as logical sequences — making up the 
 character and the curse of a Despotism. 
 
 But at every point we are met with the notion, that the people 
 have all power, and ought therefore to have control over the Judi- 
 ciary. Sir, if the people have power to do wrong, it is the very 
 purpose of government to restrain its exercise; for the only ob- 
 ject which men can propose to themselves, by entering into such 
 an association as civil Society is, to secure to themselves the en- 
 joyment of their rights, and protect themselves against wrong. 
 Are the eternal and immutable laws of justice less imperative, 
 upon men when assembled, in large bodies, than they are when 
 a.ct\ng individually? Masses are but individuals in combination ; 
 and the laws which enjoin the observance of justice, and prohibit 
 violence, or the practice of fraud, are as obligatory in the one case 
 as in the other. Like the Being, from whom they emanate, the 
 Rules of truth and equity are the same to-day, yesterday, and for- 
 ever. In them "is no variableness, neither shadow of turning." 
 To say, then, that it is the right of the people to control the judi- 
 ciary, and this right ought to be exercised, is only to leave the 
 question as we found it. The duty still remains, to decide how, 
 in the exercise of this admitted right, can they control and or- 
 ganize the judiciary, to the best advantage of the community — 
 the best advantage in fact of themselves — the people — the 
 "whole" people — for whom all the benefits of government 
 are designed. If, as I maintain, il be not only most useful, but
 
 19 
 
 absolutely necessary to the attainment of the objects designed, 
 that your Judges should be independent; then, according to the 
 theory assumed by those who are so jealous of encroachment 
 upon the people's rights, it is proper to use those rights in the or- 
 ganization and regulation of the government, so as best to secure 
 the design. If amongst the powers of the people, were included 
 the power to do wrong, or to cause others to do wrong either to 
 themselves, or any portion of themselves, (a proposition which I 
 deny;) still they ought not to desire to do it; nor should we, as 
 their representatives, so exert the power. It is obvious, then, in 
 any just view of the matter, that it is our duty to adopt such mea 
 sures, as the faithful execution of the laws requires; and such as 
 will secure to the people their rights of person, of property, and 
 of reputation. These are the rights, which society and govern- 
 ment are instituted to protect ; and it is suicidal, to maintain for 
 the people, or for the government, a right to destroy or disturb 
 them. Men, whose moral feelings are depraved, require re- 
 straint, because they will otherwise, intentionally, commit injuries; 
 and others under the influence of passion or prejudice may do the 
 same. And knowing this, the government — the power of the peo- 
 ple — should guard and protect those, who would otherwise be the 
 victims of such persons. The latter are a part of the people ; 
 and government is as much designed for them, as for others; in- 
 deed, more so. Each portion of the whole has its respective 
 and often divers interests; in other words, its wants. The 
 mercantile interest may be greater or less than the agricultural ; 
 or those who are laborers may be fewer in number than those 
 who are not ; yet each has an undoubted claim to the care and 
 protection which his interests require. And so it is with all 
 portions; but it is emphatically the case with' the feeble and the 
 destitute, who have smaller means in every respect to protect 
 themselves, and can look no where but to the law and its ad- 
 ministrators for protection. Now, then, if all this be as I have 
 stated, it is manifest that your laws must be free of access to all, 
 equal to all, and certain for all. To have them administered with 
 a halting, hesitating step ; to let them bend one way for this 
 man, another for that, can but encourage, and must sometimes 
 sanction, the doings of the wicked or the passionate or preju- 
 diced ; while it will necessarily alarm and discourage, and often 
 ruin, the victim. The consciousness of certain defeat or punish- 
 ment, will generally restrain m3U from fraud or force ; while a
 
 20 
 
 chance of success or escape, will operate as a premium to hazard 
 the experiment. 
 
 But can the Judges be expected to do their duty, when their 
 very existence depends upon doing otherwise ? You will not 
 allow a Judge to act, when his near relative has an interest in 
 his decision ; but to decide when his own rights of person, pro- 
 perty^ or reputation are the subject of controversy, would shock 
 every man's sense of propriety. Why is this? The answer is 
 obvious. His partialities would bias his judgment, if his integrity 
 were proof against temptation ; and the reason is abundantly suffi- 
 cient to justify the rule. But does not the same reason apply, with 
 all its force, when his official existence, which may be his means 
 of subsistence, when even more than this, when his reputation 
 and fair character are, not (it is true) the subject of the controversy, 
 in terms; but deeply involved as consequences resulting from the 
 particular manner in which he may decide the case ? If the value of 
 one dollar of his property be at stake in the issue, he is disqualified, 
 for assumed partiality; and yet, when consequences utterly ruinous 
 to himself may grow out of the decision, you are asked to disregard 
 their influence. Now, Sir, my proposition is, that he be placed 
 in a condition to exempt him from these consequences, from all 
 fear of them. Let him be defended against any such influence, 
 and against all other influences, but that of a high and moral obli- 
 gation, to do his duty faithfully, and firmly — yes, Sir, in one word, 
 make him " indepeiident." And the way to do this, is to make 
 his tenure of office to depend, not on the frowns or the smiles of 
 those upon whose rights he may pass judgment, but upon his faith- 
 fulness and firmness — upon his "good behaviour." This, Sir, is 
 what the " rights of the people " require ; this is what all the peo- 
 ple ought to desire; and, I have no doubt, do desire. They ought 
 to demand it, because the wants of those for whom Courts and 
 Judores are provided demand it; because the pledge and promise 
 of protection and security made them by the people, will other- 
 wise be false and delusive. If it were only to those, who are 
 suitors in your Courts that these pledges of protection are bro- 
 ken, it would be unpardonable. But to suppose that, is to com- 
 mit a great error. The man, who fulfilling, in all things, his obli- 
 gations as a peaceable, quiet citizen, has had the good fortune to 
 escape collision with his neighbor; who has never had occasion 
 to consult a lawyer, or invoke the interposition of the Court; who 
 in all his life has never had a controversy — he, too, has a deep 
 interest in this matter. Sir, it is the sure and certain administra-
 
 21 
 
 tion of the law; it is the known definition of his rights; the moral 
 certainty that they will be enforced by the Courts; it is this, that 
 has saved his rights of property from aggression, his person from 
 outrage, and his character from defamation. Let the restraints of 
 the law be withdrawn ; and the quiet and peaceful men will find 
 others in the community, who only need encouragement to invade 
 their rights. Yes, Sir, a withdrawal of restraint will make the 
 latter offenders, if they are not such already. It is then due to 
 all, that the law should be faithfully and fearlessly administered, 
 and that, to this end, the Judge should be '^independent.'^ To what 
 else can men look for safety? In a despotic government, the will 
 of the monarch is enforced by the bayonet. That is a very simple 
 mode, most assuredly, of administering what is there deemed 
 justice. But such justice does not exactly comport with our 
 republican notions ; and we are not likely to have either a despot 
 to decide the law in the same breath which creates it, or a military 
 corps to enforce his edicts. We are thrown entirely upon the 
 power of the law. There, and no where else, must every man 
 apply for a remedy. If my neighbor attempt to take my property — 
 if he abuses my person — if he villifies my character — I ascertain 
 the law. It is fixed and settled. I can demand the aid of the 
 Court. It is open to all. I claim the sentence of the Judge, in 
 conformity with that fixed law, regardless of his prejudices or his 
 partialities — of the favor or affection of my adversary, however in- 
 fluential. 
 
 Reverse the case : and what is the value of your law ? What 
 avails your Court? It admits the suitor within its halls, but it 
 mocks his effort to obtain redress. Is it amongst the " rio-hts 
 of the people," thus to make a mockery of law and justice? 
 Is this a right, which it is desirable to "restore" to them? 
 Sir, I say again, the people have the right, in one sense of that 
 term; they have ihe power to do it; they are sovereign. They 
 may assemble in their majesty, and expressly say to their Judge : — 
 "You have given a righteous judgment, a judgment consistent 
 with the laws and with the rules of honesty and equity ; but it is 
 not consistent with our feelings, and therefore as we have the 
 power, so we resolve to remove you from your seat to make way 
 for one who will consult our wishes." They can do this, and the 
 Judge, driven from his seat, has no redress. But is it therefore 
 proper? is it therefore desirable to do it? or to do any thincr, 
 which will encourage the exercise of such a power? No, Sir; 
 the innate sense of propriety common to all, would denounce
 
 22 
 
 such a proceeding as iniquitous, in the highest degree ; and in the 
 more legitimate sense of the term I deny that the people have 
 any such right. Now, Sir, what I maintain is, that when you 
 make the Judge the puppet of the people, you virtually encourage 
 and often will cause this iniquity; that there is no real secu- 
 rity, but in the independence of the Judiciary. Sir, the word 
 "joeojo/e" is with us, a word of very large import — of flexi- 
 ble and indefinite import. It is said here, that the ^'people are 
 eternal and immoiial." They are certainly as immortal as the 
 government. No doubt of that. But they have some other attri- 
 butes, which the public speeches of those who flatter them, are 
 not so apt to describe or descant upon. The abstract theory of 
 the honesty and purity of the people is all very well, in political 
 harangues intended to court their favor. But is it wise to regard 
 those attributes alone, in framing a government and providing for 
 the administration of law ? We do not thus act, in regard to other 
 matters; we make laws to punish vice, and all sorts of mischief; 
 and we expect them to be enforced. Against whom, are they di- 
 rected ? Are not those, who are the objects of these criminal 
 provisions, to be found amongst the "people?" — not the people 
 to be sure in their aggregate, nor in their abstract character. The 
 "people," in the sense in which we practically come in contact 
 with them, means that portion of them, who have an immediate 
 and direct interest, or agency, in a particular transaction. We 
 must then have respect to the number, class, and character of 
 the individuals, with whom we have to deal, in considering what 
 is the object of the proposed provision in our Constitution ; we 
 must take things as they are, as we know them to be ; we must 
 stand on the platform, where the scene is to enacted, and view 
 it, in actual exhibition. Well, Sir, let us see how this proposed 
 measure is practically to work. The people, — thereby meaning 
 those who are thus alluded to in the expression, "a Judge depen- 
 dant upon the people" — act, by their votes — the only mode, in 
 which they can act, or are supposed to act. How are those 
 votes obtained? Will it be pretended, much less will it be be- 
 lieved, that each man for himself, investigates the facts of 
 the case ; and with a full understanding of them, and of the 
 oblii^ations of the law, calmly decides upon the moral con- 
 duct of the Judge, and regulates his vote accordingly? Will 
 any man say this? Sir, every man knows, that the decision 
 will be the result of prejudice, or interest, of excited feelings 
 and passions, and a thousand motives not, at all, likely to en-
 
 23 
 
 lighten the judgment or inform the understanding. And then, 
 whose votes are they? Are they the votes of the individuals who 
 deposite their slips of paper in the ballot-box ? Yes, Sir, in one 
 sense they are: so far as the mechanical operation of placing 
 them there is concerned, they are so; but the mind, the will, the 
 end and object expressed by the ballot, are those of another. We 
 all know this. We all know that one man often controls five, ten, 
 twenty, aye, fifty votes. He does not liiernlly put that number 
 of ballots into the box ; but does it virtually by the influence he 
 exerts over those who do put them there. We know this to be 
 the case every where ; we see it here in this body. It is the 
 necessary consequence of that very feeling of our nature, against 
 which I would guard your Judges ; it is the effect of that wealth, 
 intelligence, activity, courtesy, and persevering energy, which 
 give controlling influence to individuals, and enable them to 
 advance or impede the interests of those around them. It results, 
 in short, from the partial state of dependance upon others. 
 
 And, Sir, who are those men thus controlling the popular 
 sentiment through the ballot-box? Not your easy, quiet, home- 
 staying folks, who meddle with nobody's business; but men 
 of exactly opposite character; men who actively participate 
 in public affairs ; who take part in all the neighborhood and 
 county transactions, make themselves useful, or at least busy, 
 by advising and counselling those around them, in their busi- 
 ness affairs ; who take the lead in giving tone to all questions of 
 interest, and use every effort to impress their opinions upon 
 others; either naturally excitable, or made so by participating in 
 all the excitement within their reach; men of exactly that class, 
 who are as apt as any other to be litigants themselves; or if not, 
 almost certainly the warm advocates and partizans of those who 
 are. Let us picture to our minds the case of such a man — an 
 opulent, influential, popular leader, full of ardor in his opinions, 
 and very ample means to induce others to adopt them — in the 
 attitude of a claimant in court, against some unfortunate person 
 who is the reverse in all respects ; with a mean spirit and 
 ill-contrived temper that make him the object of general dislike. 
 Let these be antagonist parties. Now the mean man, whatever 
 may be the infirmities of his character; however poor, and humble, 
 and despised he may be — is as much entitled to a faithful adminis- 
 tration of the law — of that law which knows neither rich nor poor, 
 neither high nor low — of that Justice which is appropriately re- 
 presented as blind — as the most powerful or most popular man in
 
 24 
 
 the land. If one part even of his pittance be taken from him, or 
 indignity and injury be inflicted upon his despised person; he has a 
 claim to redress as certain, and as safe, in 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 decline. 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 character- 
 istic of our being ; and by nothing are we more likely to be deceived, 
 than by our fears and our hopes, our interests and our wants. 
 Seeino- 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 pro- 
 vision strengthen on the one hand, or weaken on the other, the 
 motive of the Judge. If we protect him against the influence of 
 the powerful antagonist, we silence \ns 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 subsistence and reputation; you stimu- 
 late every motive which can disturb the honest and impartial action 
 of his mind. You do this, by the force of all the circumstances 
 actinor 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 prejudices against the 
 Judo-e; there is another still worse. Some man has encountered 
 the bitter prejudice of a community, justly it may be, or other- 
 wise. Such instances are familiar to us all. We have known 
 cases, in which this feeling has been wrought up to such de- 
 termined purpose, that the bolts and bars of the prison could 
 not resist the determined attack of the crowd, resolved upon ven- 
 geance. We have heard of Lynch law, and every sort of law, 
 which can designate a popular outbreak. We have witnessed 
 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 popular prejudice
 
 25 
 
 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 
 interposition 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 per- 
 son of its minister; and an innocent man sacrificed. And now, 
 Sir, what can you in such a case expect from your Judge " depen- 
 dant upon the people ?" 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 oflicial 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 resist it at all ? Is he inde- 
 pendent in any sense, that enables him to do his duty, as we re- 
 quire him to do it, and as he ought to do it, — " without fear , favor , or 
 affectionV 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 phi- 
 losophy 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 ele- 
 ments, must have the same character. My experience is, that the 
 collection of men in masses, lessens materially, if it does not 
 destroy, the sense of responsibility. It is a truth we have all 
 been taught by observation, as well as by history. It must be so 
 from the mere fact that each, to a certain degree, escapes from 
 the influence of one very strong motive to do right ; he does not 
 stand out before the public as the object of their notice, but is 
 protected 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 conditions of being, 
 the motives and influences are the same. Sir, I find from a news- 
 paper received a day or two since, that the people of a large city 
 in Pennsylvania, containing about 80,000 inhabitants, 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 lo elect him to Con- 
 4
 
 26 
 
 gress. Now, they are just such people as we are, as intelligentj 
 as patriotic and as submissive to law and order ; as much so as we 
 would be, if similarly 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 excited 
 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 I admit that this, or any other 
 argument, which is intended to show the defects of the present sys- 
 tem, 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 perfectly clear, that the objection 
 applies merely to the mode of appointment ; and that, as I have 
 constantly maintained, is a secondary consideration. It does not 
 touch the great and important question which I have endeavored 
 to discuss, that of the tenure — the question which involves the 
 essential element, in the character of the office — that is, the "in- 
 dependence" of the Judge. But while I admit the propriety of 
 considering the defects of the existing system, I cannot omit — 
 what must occur to every intelligent mind — the further propriety 
 of inquiring how far the proposed remedy will meet the objection, 
 and remove the evil? I do not know however the history of all 
 the Judges. I do not know that Judge Hanson was a politician ; 
 or that Judge Chase was a politician. Every man, it is true, of 
 any character and standing, will belong to one political family, 
 or the other, when the whole country is divided into two great 
 parties ; and if that be a reason, why he should not be appointed 
 to office, you will be obliged to select from a class of persons, who 
 are below the ordinary grade of intellect. But let the objection, 
 be applied to politicians in the broadest sense of the term — the 
 question recurs — Will there be a greater probability of excluding 
 such politicians, upon the gentleman's plan of proceeding? If 
 not, the objection proves nothing. It is to propose a dose of 
 medicine, which will certainly add its sickening influence to the 
 discomfort occasioned by the disease, and the result of which, 
 after the sickness has gone off", is either the death of the patient, 
 or at best, a condition certainly not improved. I confess, I have 
 no taste for such practice.
 
 27 
 
 ^pril 18. Judge Chambers resumed. 
 Mr. President: 
 
 My chief effort has been to show, that an independent Judi- 
 ciary is essential to the well-being of the government — meaning 
 thereby the people of the State — and emphatically that portion of 
 them, for whose benefit and protection, that branch of the govern- 
 ment is designed. I incline to believe, from what I have heard 
 from every quarter, since my remarks of yesterday, that this, as a 
 general proposition, will not be denied. It is true, the gentleman 
 from Prince George's pronounced it a British doctrine, not conso- 
 nant to the genius of American institutions. From other parts of 
 his remarks, however, I infer that his denunciation was directed, 
 not against the principle of Judicial Independence, but against the 
 " tenure during good behaviour." Mr. President, it is scarcely a 
 sufficient reason for condemning a principle, to say, it is of English 
 origin. Where did we obtain our notions of Civil Liberty, of the 
 Rights of property, of person, and of conscience — nay, all the 
 rights we claim? From whom did we derive our affection for the 
 fundamentals of a Government of law, the habeas corpus and the 
 Trial by Jury? Did not these and other principles, dear to us all, 
 come from our Anglo-Saxon ancestors ? They are as old, as 
 American principles, as the American branch of the Anglo-Saxon 
 family ; and I trust, they will endure, so long as the race continues. 
 Yes, Sir, it is an English doctrine — this doctrine of Judicial In- 
 dependence — and by some of the best and wisest men here, and 
 in every portion of the civilized world, it has been regarded as a 
 glory to the nation. Allow me. Sir, to read from a distinguished 
 author — "every inch an American,'' — the view he entertains upon 
 this subject. Yesterday I gave an instance of the practice, under 
 the old system, by which the King made the law and its ministers 
 bend to his will. Now hear what Judge Story says, has occurred, 
 during the hundred and fifty years since the abolition of that 
 system: — "Since the independence of the Judges has been se- 
 " cured by this permanent duration of office, the administration of 
 "justice has, with a single exception, flowed on in England, with 
 " an uninterrupted, and pure and unstained current. It is due 
 " to the enlightened tribunals of that nation to declare, that their 
 "learning, integrity and impartiality, have commanded the rever- 
 " ence and respect, as well of America, as of Europe." In a 
 note to this strong commendation, the author gives the names of 
 several distinguished writers, who fully concur with him.
 
 28 
 
 Sir, I propose to show further, that this English doctrine, as the 
 gentleman terms it, has been transplanted ; has here found a more 
 appropriate location, and has flourished with renewed vigor ; and 
 that it is more in harmony with republican Institutions, than with 
 any other on the face of the globe. I yesterday ventured this 
 assertion ; and with the advantage of the recess, I have been able 
 to procure some authority to sustain it. First, in order, and first 
 in authority, I will quote the opinions of the wise and great and 
 good men, who announced our separation from the parent country 
 — a class of men, whose wisdom will not, I fear, be surpassed by 
 that of any age we are to witness ; whose patriotism, (if I could) 
 I would, with all my heart, hope to see equalled ; and whose sole 
 motive and object was the good of the whole country. Among 
 the causes of complaint, upon which they based their opposi- 
 tion to the British government ; and upon which they urged an 
 eternal separation, stands prominently this: — " 7%e king had 
 made Judges dependant on his will alone, for the tenure of their of- 
 fices, and the amount and payment of their salaries." Yes, Sir, it 
 was, in part, to secure the fixed and settled tenure of the Judi- 
 ciary, that the war of ihe Revolution was waged. But they did 
 not stop at such a declaration, in their Bill of rights — the Decla- 
 ration of Independence. They were as practically wise and 
 thoughtful, as they were patriotic. They were as sensible of the 
 necessity of providing a remedy useful, and efficient, as they were 
 sagacious in discovering the defect. Hence, one of the most con- 
 spicuous elements, in the Constitution of the United States, is the 
 perfect Independence of the Judiciary, firmly guaranteed by a 
 permanent tenure. In the third Article, means are used to secure 
 this necessary principle. It contains the genuine English doctrine, 
 improved, transplanted, and incorporated with other cherished 
 principles, which will last while freedom has a home. The lan- 
 guage is as follows : — " The Judges, both of the Supreme and in- 
 ferior Courts, shall hold their offices during good behaviour ; and 
 shall, at stated times, receive for their services, a compensation which 
 shall not be dimiiiished during their continuance in office." Sir, 
 there is not, in the wide world, a written Constitution containino- 
 so noble and perfect a truth, as is implied — indeed, it may be said, 
 expressed — in this language. It goes beyond the English system ; 
 and goes beyond ours in Maryland. There is no removal, by the 
 address of any, or all the other departments of the government. 
 Nothing but misconduct, a charge of misbehaviour in office, sus- 
 tained by proof, will remove a Judge of the United States. And
 
 29 
 
 how, Sir, was this received by men thoroughly imbued with that 
 American spirit, that love of republican liberty, which forms the 
 best security for our hopes? The Federalist — not only one of 
 the ablest publications, but decidedly the ablest of that day, com- 
 ing, as it did, from the pen of Mr. Madison, and other patriots — 
 considers this, as one of the brightest gems in the Constitution of 
 the United States. (Judge Chambers here read, from the Federalist, 
 several passages to the point.) The most distinguished American 
 jurists, (he said,) have concurred in the opinion. Wilson, Tucker, 
 Story, all, who have deeply and thoroughly investigated the subject, 
 all concur, in regarding this j)rinciple, as the great sheet anchor, 
 by which our national ship of state is secured. (He here read 
 several of these authorities, and said:) — I would invoke, Mr. 
 President, for these opinions, the most devoted attention. I 
 do not claim it for the sake of my own argument, but because 
 it is the written recorded counsel of men, who were ornaments 
 of the age in which they lived — men of undoubted intelligence 
 and wisdom, and of undoubted purity. Sir, I speak from no 
 motive to obtain approbation from any quarter; I speak from a 
 deep, a solemn, and abiding conviction, that I am addressing 
 men about to perform a duty, the consequences of which will be 
 felt for weal or for wo, through all time, by every portion of our 
 community. If the question were merely to take one man from 
 the bench, and put another in his place, it would be compara- 
 tively insignificant. But here the highest possible obligations 
 teach us to regard ourselves, as the guardians of all the immense 
 interests involved in this great subject. An experiment, which is 
 tried to-day, and, if it fails, leaves us to-morrow to return to our 
 condition, is a trifle. If it affected only our pecuniary interests, 
 they might be repaired ; if it operated, only upon matters of party 
 dominion ; it might be submitted to, for a time. But here is a 
 step proposed, which can never be retraced; here are interests 
 far beyond the temporary possession of political power, or wealth ; 
 interests dear to every human being in society, in every relation 
 they bear to each other, and for all coming time. The rights at 
 stake are the rights of person, the rights of property and of re- 
 putation. And pray. Sir, what other rights, as citizens, can we 
 have? All we hold dear, is included. I disclaim, with disdain, 
 all political influences. Upon other occasions I have felt them, 
 nor have I disguised them ; but on a great subject like this, affect- 
 ino- all portions of the State, party considerations sink into utter 
 and absolute insignificance. Parties will rise and rule, and pass
 
 30 
 
 away ; but the administration of law and justice, and the protec- 
 tion and security of all our rights, civil and social, should be per- 
 petual. I hope every gentleman here will forget not only his po- 
 litical interests, but his political prejudices and antipathies, if he 
 has indulged any. The poor, the injured, the oppressed, the help- 
 less — the orphan — the desolate widow — all, who are objects of the 
 care and concern of government, — all appeal to us, as the guar- 
 dians of their interests ; all, who now or who may hereafter occupy 
 a place in these classes, in the long line of generations yet to 
 succeed us ; all call upon us to provide for their security. If you 
 fail to provide for them, and to do it now ; the neglect can be 
 repaired by no human power. They can look for it no where, but 
 in the firm and unbending course of the law ; and, if now, by our 
 action, that course be checked ; if the fountain be now polluted, 
 or its stream disturbed; no time, no power hereafter can restrain 
 the erratic current, or purify its source. 
 
 We have seen the opinion of the sages who framed our admi- 
 rable system of government for the United States. Let us now, 
 for a moment, attend to the lesson taught us, by those distinguish- 
 ed men, who framed our own State institutions. Veneration and 
 respect have universally been accorded to them. Their devotion 
 to free principles of government was unbounded ; their intelli- 
 gence unquestioned. Their work, and all we know of them, 
 commend them to our highest regards. Above all, they lived at a 
 period, and under circumstances, which led them to employ all 
 their noble faculties, without any mixture of sectional, personal or 
 party feelings, or interests. All were patriots ; all pursued one 
 common object — the common good. Ambition, and the love of 
 office, had not exerted their evil influence, upon their passions and 
 prejudices, nor warped their judgments. All were governed by the 
 high and holy sense of duty to the State. I am not to be told, Mr. 
 President, of the progress of the age, the change in men and 
 things since their day. It is most true, we have witnessed aston- 
 ishincr changes, such as our ancestors, even in '76, never thought 
 of, in the wildest dreams of fancy. But, in what departments 
 are those changes ? Surely, not in the eternal laws of truth 
 and morals. These are co-existent with the Deity. They 
 are eternal, as his throne. They came down to man, with the 
 immortal spirit, which his Maker breathed into him, as his life. 
 Proo-ress may be made, in arts ; in science ; in the various appli- 
 cations of the great principles, which govern matter ; in the dis- 
 covery of new principles, if you please, as well as in the modifica-
 
 31 
 
 tion and application of such as are known : and in all inventions, 
 which adapt such principles to the use of our race. But the laws 
 of moral truth and moral propriety are immutable. You may 
 adapt the great principle and power of Steam to the propulsion of 
 the car; or you may adopt the still more wonderful, but subtile 
 power of the electric fluid, in the transmission of thought. But 
 the obligations of the moral law are the same amid all these vast 
 changes. Consider, fpr a moment. Sir, how palpable this is. 
 Because we now travel across the Atlantic in less than ten days, 
 instead of occupying forty ; is it therefore less a violation of the 
 moral law, to seize our neighbor's property or abuse his person ? 
 These immutable laws are modified and applied to varying circum- 
 stances as they arise, and Infinite Wisdom has made them capable 
 of adaptation to every condition that can occur. But they are 
 the same moral truths by which all human action must be con- 
 trolled ; the same now, as they were in 1776, and ever must be. 
 The great truth which the Bill of Rights declares, is in these 
 terms:— "The independency and uprightness of judges are es- 
 sential to the impartial administration of justice, and a great secu- 
 rity to the rights and liberties of the people." Mark this strong 
 word, Sir — " essential." This was true in the time of William III ; 
 equally true 1st George III ; true in 1776 ; is true now ; and ever 
 will be true, just so long as justice is administered ; just so long 
 as lust and pride, avarice and ambition, and other evil propensities 
 afilict human beings and require restraint. Now, Sir, the next 
 clause, in this sentence, has a volume of instruction. It shows, 
 beyond all cavil, what these framers of our Constitution under- 
 stood by this essential — "independence." Let me read: — 
 " Wherefore the Chancellor and Judges ought to hold com- 
 missions during good behaviour." There is no mistaking this. 
 Judges must be independent — that is assumed as the premises; 
 wherefore they must have a tenure, during good behaviour — this is 
 the direct, the necessary conclusion ; and never w as one more 
 just. The Article, in the Constitution of the United States, 
 received the vote of every member of the body, that framed 
 it; nor is there, in the history of the Convention of 1776, as far 
 as I have been able to trace it, the least reason to believe, it was 
 adopted in Maryland, with less unanimity. 
 
 Now, Mr. President, I wish to show that some, indeed, all 
 our ablest jurists, have concurred in the opinion, that the pecu- 
 liarities of our republican Institutions are precisely those, which 
 most emphatically require a persevering adherence to this old,
 
 32 
 
 and venerated truth. (Judge C. here read extracts to show the 
 opinions of Professor Wilson, in his Lectures — Chancellor Kent, 
 in his Commentaries — Mr. Rawle, in his Treatise on the Consti- 
 tution — Judge Tucker — Judge Hopkinson — and Judge Story.) 
 Indeed, Sir, (said Judge C.,) until lately, since a spirit of change 
 has become so rife in our midst, there was no name high on the 
 roll of fame, so far as I am informed — there was no one, who 
 doubted on this subject, except Mr. Jefferson ; and he was an 
 exception, only in his later days. His Notes on Virginia speak a 
 different language, and more in harmony with his cotemporaries, 
 and associates. I do not mean to assert that the reasons for his 
 change of opinion were of a personal character ; but I may be 
 permitted in this connexion, to relate an incident, as I received 
 it from the lips of President John Quincy Adams. Every man 
 knows the permanent influence upon his current of thought 
 produced by a particular fact, made especially impressive by ac- 
 companying circumstances; like the traveller, in the Knicker- 
 bocker, who, passing through New Jersey, was annoyed, at some 
 stopping-point, by a drunken democrat and a vicious dog; and 
 who for ever thereafter held both dogs and democrats in utter ab- 
 horrence. Mr. Adams did not assert that the incident was the cause 
 of Mr. Jefferson's change of opinion, nor do I. Every one may draw 
 what inference he thinks justified by the facts, which are these : — 
 When Judge Chase's impeachment was first determined upon, 
 it was the intention of Mr. Jefferson to have him convicted ; 
 and, if this beginning was well received, to follow it up by 
 impeaching others on the Bench. It so happened, that dur- 
 ing that session of Congress, Mr. Randolph had acquired more 
 popularity and power in the House of Representatives, than any 
 man before or since. Many instances to prove this, could be 
 given. Mr. Randolph had an ambition to fill the chair of Chief 
 Magistrate ; and to strengthen his pretensions, it was important 
 to show that his influence and power were felt, in the Sen- 
 ate, as well as in the House. He accordingly had himself 
 put in the very conspicuous position of chairman of the man- 
 gers or committee of impeachment. Mr. Jefterson had very 
 different views about the succession. He had determined, that 
 Mr. Madison must be the man ; but began to perceive the 
 danger which might arise from the brilliant and successful career 
 of Mr. Randolph. From that time, said Mr. Adams, Judge 
 Chase's acquittal was resolved upon — Mr. Randolph's discomfiture 
 and Mr. Madison's success followed ; and Mr. Randolph never,
 
 33 
 
 to the day of his death, forgave Mr. Jefferson, whose whole plan 
 he perfectly understood. "And," said Mr. Adams, "if you will 
 examine the votes, you will find amongst those for acquittal some 
 of the warmest personal, as well as political friends of Mr. Jeffer- 
 son ; for instance, Giles of Virginia, Jackson of Georgia, and 
 others." It was certainly late in life, when Mr. Jefferson changed 
 his opinions. Mr. Justice Story, who was one of his warm friends 
 and admirers, whom Mr. Jefferson appointed to office — one of the 
 most useful acts of his life, by the way — in speaking of the hos- 
 tility of Mr. Jefferson to the judicial department, stated, that he 
 wrote on the subject "apparently with the feelings of a partizan, 
 and under influences, which his best friends will most regret." 
 With this one exception, we have the uniform sentiment of a host 
 of wise, experienced and honest men, and patriots, testifying to 
 the truth of the ancient creed ; and assenting to the further truth, 
 that of all conditions of human society, that of a free republican 
 government like ours, is especially that condition, in which it 
 operates with the best effect, and where it is in the highest sense 
 essential. Our institutions require, that the judicial arm should 
 be strong enough to resist the onslaught of factious and turbulent 
 associations, or any pressure from popular movements, as well as 
 the machinations of intriguing politicians and demagogues ; and 
 to control, within Constitutional bounds, the action of the legis- 
 lative, and executive departments. 
 
 In speaking of popular feeling, a piece of instructive his- 
 tory occurs to my mind illustrative of the difficulty of ascertain- 
 ing what this feeling is; and of the facility of mistake upon the 
 subject. Allison, in his History of Europe, says, that of the one 
 hundred thousand spectators who silently consented to the 
 death of Louis XVI, there were not one hundred who would not, 
 most willingly, have saved him from destruction. This illustrates 
 the idea which I have endeavored to urge — that what is often 
 regarded as popular opinion, is a factitious affair; the mere 
 clamor of a few prominent, and mischievous individuals. I do 
 not mean to say, that Louis XVI did not violate his duties; he 
 may have deserved expulsion; so far as my argument is con- 
 cerned, he may have deserved capital punishment; but what I 
 say is, he was in fact murdered, and that the notion of submit- 
 ing his case to trial and the verdict of a whole people, was a 
 mockery of justice, and a false assumption of popular sentiment. 
 Robespierre was taken, as the embodiment of public opinion ; and 
 5
 
 34 
 
 yet when Tallien, impelled by the knowledge that his own exe- 
 cution had been decreed in conclave, ventured in full conven- 
 tion to denounce that monster in human form, that personation 
 of all that is fiendish ; and to seize him as a traitor — what was 
 the result? Why, Robespierre was hurried to the same guillo- 
 tine, from which he had caused rivers of blood to flow; and be- 
 headed amidst thundering shouts of applause, from the thousands 
 whose homes had been made desolate, without the sympathy of 
 one earthly being. Sir, nothing is more dangerous, than to as- 
 sume readily what is the popular sentiment; and there is nothing, 
 in the condition of this country, to make mistake, on this subject, 
 impossible. The people of France, and especially of Paris, were 
 in the possession of means not inferior to those of other na- 
 tions, for the cultivation of their intellectual and moral as well as 
 political capabilities. They considered themselves in advance of 
 the rest of the world. I may be permitted to give, in proof of 
 this, a conversation I had with a very distinguished man, who was 
 an actor in the scenes of the French Revolution ; a man, whose 
 memory is, as it should be, and as I hope ever will be, very dear 
 to every American; a man to whom, in his own country, the honor 
 and distinction to which he was justly entitled were never ren- 
 dered, only in consequence of the dread and jealousy of Bonaparte. 
 On the memorable occasion of the visit of La Fayette to this country, 
 some five and twenty years since, by the invitation of the Congress 
 of the United States, it was the good fortune of my friend, who sits 
 before me (Gen. Howard) and myself, to be the Committee appoint- 
 ed by our Legislature to attend upon him, during his visit to Anna- 
 polis as the guest of this State. In the conversation which occurred 
 in the stage, on our return to Washington, allusion was made to 
 the political schools in Germany, where, I supposed, many young 
 men after receiving sound notions of free institutions, would incul- 
 cate them, to an extent greater perhaps than they had obtained in 
 any other part of Europe. The old patriot answered with marked 
 spirit and promptness: — "No, Sir, 'lis in France, that the large 
 body of enlightened men best understand the true principles of 
 rational, civil and political liberty, and there the first successful effort 
 will be made to introduce a government, securing to men their 
 proper rights." Yet, in France were exhibited the scenes we have 
 reviewed. But, Sir, we need not go abroad to find instances of 
 popular delusion. What do we witness at this moment — passing
 
 35 
 
 around us— -amonsst our own fellow-citizens — on American soil — 
 by American people ? What are we deploring as an awful cala- 
 mity? What makes us tremble for the very existence of our insti- 
 tutions and all the inestimable blessings involved in their perpe- 
 tuity? Is it not the delusion, the excitement, the frenzy, the 
 madness of our people? Not of this one, that, or the other, but 
 of immense masses, whole communities, rushing with an impetu- 
 osity that seems to defy resistance, not only to their own destruc- 
 tion, but to the destruction of that stupendous fabric which has 
 cost so much precious blood and so much anxious toil and care 
 to construct and preserve ? What is abolitionism doing, at this 
 moment? Do we not know what has been passing in Boston, in 
 Springfield, and in various other places, and what is still passing 
 in the North? Are we justified in assuming that scenes of a like 
 character, though doubtless from different motives, will never be 
 enacted in Maryland? Are we more enlightened — or better edu- 
 cated — or more deeply versed in the science of government? 
 Until fanaticism deranged those men, they had as just conceptions 
 as we have, of political, moral, and religious obligations; the love 
 of liberty, and the love of law, were as deeply inscribed upon their 
 minds and hearts as upon ours; patriotism flourished and was 
 cherished no where, more than in the old Bay State, and around 
 Faneuil Hall; and yet, in despite of all, a phrenzied impulse has 
 made havoc of every sense of duty, they owe to their Country, 
 and its laws. Yes, Sir, they were true men and will be so again. 
 This madness cannot last. No, Sir, no. We have not yet so 
 sinned, as a nation, as to deserve the curse of ruin, the curse of 
 disunion. It is an impeachment of the great attributes of mercy 
 and of justice which belong to the Deity, to say or to think so. It 
 is a condition, not of idiotcy but of lunacy ; and a lucid interval will 
 recur, a long and lasting interval, I hope. But upon the theory of 
 an " independent judge dependant upon the people" — how would 
 it work in the interim ? Fortunately for the Country, we have 
 had a Sprague, a Woodbury, a Nelson, a Grier, and other such 
 firm and faithful men, independent of all popular clamor ; holding 
 their "commissions during good behaviour;" who standing on the 
 rock of real independence, have fearlessly opposed the storm. 
 This you could never rationally expect from one, who depended, 
 for his official life, and character, upon popular favor. Such a man 
 would have trembled and quailed before the infuriated mob, as a 
 captive slave before his master. Mr. President, while speaking of 
 the influence of an excited multitude on the administration of
 
 36 
 
 justice, on this holy day (Good Friday,) I cannot help thinking of 
 a case which occurred more than 1800 years ago ; and which the 
 Church, of which I am a most unworthy member, the Episcopal 
 Church, this day commemorates, with the highest solemnities. 
 An illustrious victim 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 refuge as it was,) of his freedom from the 
 crime of murdering an innocent man. But, Sir the infuriated 
 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 chil- 
 dren ?" 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 argument, as I have said, is not so much directed against 
 a.ny 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 oflicers. The latter are chosen 
 expressly 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 aggre- 
 gate, are too numerous to allow me to attend to minutely. I 
 have several farms, and want an agent or overseer for each. I 
 require him to consult my judgment; and to conform to it, in 
 regard to the character 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 mem- 
 ber of a Board of Visitors, I want a Professor in the College. He
 
 37 
 
 is to perform the duties appropriate to his station — say, to teach his 
 pupils Latin and Greek, according to the most approved 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 investiorated. 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 determine their progress ; and a thorough investigation 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 instructions, 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 to know 
 it. He is to exercise his judgment, not theirs — to express his 
 opinions, not theirs. Political officers 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 Judere ; 
 his position is perfectly the reverse, in all these particulars. Above 
 all, it differs in one other most important 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 politician before, he will 
 surely become such, by serving 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 poli- 
 tician before, he is sure to cease to be such, in a very short time 
 after he 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 objection 
 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 dis- 
 tinguished not only for profound legal learning, and for all the 
 varied accomplishments and acquirements professional and intel- 
 lectual, which would entitle them to the first rank amongst jurists ; 
 but for unblemished integrity, for unspotted purity, for every thinor 
 which can enter into the composition and character of a Judo-e.
 
 38 
 
 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 allegiance. Are they less 
 useful to the country, on that account? Do their decisions evince 
 an infection of political prejudice or partiality? No, Sir. And to 
 a Judge, who is placed upon the bench during good behaviour, 
 you will ever look in vain, for the evidence of such infection. 
 Why should he yield himself an instrument of wrong and injus- 
 tice ; 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 im- 
 peachment, and be dismissed and disgraced. 
 
 Mr. President, if in any thing I have said, there may be sup- 
 posed by any, to have been a zeal in any degree arising from my 
 personal connexion with the office in question ; I beg to assure 
 them, that such a suspicion does great injustice to my position. I 
 have served in a high judicial station, for more than seventeen 
 years, with what success or usefulness, I am the last of all, who 
 are acquainted with my history, to pronounce. This I can say — it 
 has been my purpose and desire to discharge the important trust 
 confided to me, with fidelity and impartially, and to the best of 
 my poor abilities. I am willing to abide the verdict of those, who 
 shall come after me, for the correctness of my judicial life. For 
 the honor, altoo-ether unmerited, and the flattering confidence of 
 my friends and the community, evinced by placing me in this and 
 other elevated public stations, I owe a lasting debt of gratitude ; 
 a debt I can never repay. I have always been, and ever shall be, 
 ready and willing to acknowledge it. But, as to a mere matter of 
 pecuniary concern — so far as the account of dehtor-and-creditor is 
 involved — I deny that any balance is justly chargeable against me. 
 I have returned to the State, in labor and service, such as I had 
 contracted to render; the best I have been able to render; the full 
 value of every dollar I received. I have passed annually most 
 of my days, in tedious, laborious devotion to my duties; and 
 for a long succession of nights, have kept my head from my pil- 
 low, at unseasonable hours, in severe mental eflfort, to enable me 
 to do more usefully and faithfully my whole duty. A kind Provi- 
 dence has possessed me with a competency to afford all the com- 
 forts of life which my habits require ; and with a better spirit than 
 that which regards great wealth, as the end and object of human
 
 39 
 
 desire, or the source of human happiness. The office is one of 
 extreme labor and extreme responsibility. I have arrived at a pe- 
 riod of life, when there is but one consideration to commend it 
 to my acceptance. I have, from early life, been an active, work- 
 ing man. Of all things, I dread a life of indolence. I have seen, 
 on more occasions than one, the disastrous effect of a sudden 
 withdrawal from active labor, by men in advanced life, to enjoy, 
 as they had hoped, a quiet old age. I have seen it produce dis- 
 comfort, impotency, disease and premature death. To those 
 around me yet in younger life, and with less experience, I venture 
 a word of advice — Mever cease to exert the faculties of mind or 
 body which Providence has given you, until the decree of that 
 same Providence shall deprive you of these faculties. They 
 are talents given to us, to be usefully and actively employed ; and, 
 if buried, will rust and decay. But to a man able and willing to 
 be employed, there are always avenues open ; and there is nothing 
 so attractive, in a seat on your Supreme Court bench, either as it 
 is now organized, or will be, under any of the various provisions 
 before us, as to make it the particular object of ambition. So 
 far as concerns my associates, with whom I have acted so har- 
 moniously, possessing, as they do, (I have no doubt,) and justly 
 possessing, the confidence and respect of the community ; and 
 to whose elevated intelligence, purity, and devoted application, 
 I can bear that testimony, which would be endorsed by all 
 who have had the opportunity to appreciate their character — I 
 have only to say, that whatever may be their feelings, or their 
 wishes — and I do not profess to be informed — they are considera- 
 tions not to be thought of, in a matter of such vast magnitude as 
 this. In providing for the interests of a whole community, for all 
 time, it is of comparatively small moment, to estimate the effect 
 to be produced, upon the convenience of half a dozen individuals, 
 or thrice that number. With regard to mere party considerations, 
 I am urging a course, which, of necessity, for the present, and for 
 a long, long time, must prevent the elevation of those with whom 
 I have poliiically been associated, to any judicial station. This, 
 too, is a minor consideration. One party may be put out, and 
 another put in ; but if the means are devised to secure good con- 
 duct from each, the State is safe, the rights of the citizen are safe. 
 In a little time, your party men will cease to be such, if you ap- 
 point them with the proper tenure of office; and without this, you 
 cannot have a good judge, from either party. With this fixed tenure,
 
 40 
 
 his party expectations, and his party aspirations are at an end ; 
 and with them, his party feelings. I am influenced, therefore, by 
 no considerations of a personal, social, or political description ; 
 but from a deep and solemn conviction, that this question should 
 be determined, by infinitely higher and more enduring considera- 
 tions. The step proposed to us, if once taken, can never be re- 
 traced, whatever may be the mischiefs it entails upon us. Revo- 
 lutions never go back. We have lived happily and safely under 
 our present system ; then why change it? The dangers of a new 
 system cannot be fully anticipated, obvious as some of them are; 
 why hazard them ? I have been in States, where this change has 
 been made; and I could tell of some things, which might produce 
 effect; but I will not, because I am unwilling to be personally 
 unkind, or seem to be so. But I will say that the result of my 
 experience is, that the judiciary has lost the respect of the com- 
 munity in the proportion, in which it has departed from this fixed 
 tenure. The principle of respect for the law, in the character of 
 the Anglo-Saxon, may carry us on well enough for a season, but 
 this impetus will cease, after resistance from disturbing causes. 
 It is like a locomotive. You may remove the motive power, and the 
 car will run on for a while ; but the resistance from friction and other 
 causes, will produce a continually decreasing speed until it comes 
 to a stand still. Sir, it must be so ; these temporary appointees will 
 lose their character. The loss of that respect, which is essential to 
 their usefulness, will follow ; and their ability to be useful, will then 
 soon be succeeded by a condition of things, in which they will be 
 positively mischievous. It may not, nay I hope will not occur, 
 Mr. President, in your day or mine; but why should we gratuit- 
 ously impose upon our children, and our posterity a yoke, which 
 we cannot, and which I fear they never can, bear? 
 
 Sir, I have now performed the duty, I had proposed, so far as 
 my own views of this subject are concerned. In conclusion I 
 propose to oflTer those of o>fE, whose sound intellect, whose ripe 
 judgment, whose great experience and profound wisdom, entitle his 
 opinions to infinitely more attention than any I could offer. The 
 accomplished and eloquent author of the eulogy, from which I read 
 —the distinguished Horace Binney, declares : — " These sentiments 
 are worthy of the profoundest consideration. They were the last 
 legacy of his political wisdom, from an incorruptible patriot, and one 
 of the wisest of men. Standing as it were on the verge of life,
 
 41 
 
 free from all mixture and stain of selfish motive, having nothing 
 to hope, nothing to fear from men, they are the parting testimony of 
 his pure and disciplined reason. They are worthy of being written 
 on the tables of the heart; and if elsewhere they maybe disregarded 
 in the spirit of change, or in the lust of experiment, let them ani- 
 mate us to preserve what we have, and to transmit it to our chil- 
 dren." Such is the character of the last counsel given to 
 the assembled rulers of the land of his birth, his home, his affec- 
 tions : of the land, in which he was soon to close his loner and use- 
 ful life. And here are the words he uttered, " with the fervor and 
 almost with the authority of an Apostle" — the words of Chief 
 Justice Marshall: — 
 
 " The argument of the gentleman (he said) goes to prove not only 
 that there is no such thing as judicial independence, but that there 
 ought to be no such thing: — that it is unwise and improvident to 
 make the tenure of the judge's office to continue during good 
 behaviour. I have grown old in the opinion that there is nothing 
 more dear to Virginia, or ought to be more dear to her statesmen, 
 and that the best interests of our country are secured by it. Ad- 
 vert, sir, to the duties of a judge. He has to pass between the 
 government and the man whom that government is prosecuting, — 
 between the most powerful individual in the community, and the 
 poorest and most unpopular. It is of the last importance, that in 
 the performance of these duties, he should observe the utmost 
 fairness. Need I press the necessity of this .'' Does not every 
 man feel that his own personal security, and the security of his 
 property, depends upon that fairness. The judicial department 
 comes home in its effects to every man's fire-side ; — it passes on 
 his property, his reputation, his life, his all. Is it not to the last 
 degree important, that he should be rendered perfectly and com- 
 pletely independent, with nothing to control him but God and his 
 conscience." " I acknowledge that in my judgment, the whole 
 good which may grow out of this convention, be it what it may, 
 will never compensate for the evil of changing the judicial tenure 
 of office." " I have always thought from my earliest youth till 
 now, that the greatest scourge an angry heaven ever inflicted upon 
 an ungrateful and a sinning people, was an ignorant, a corrupt, or a 
 dependant judiciary." 
 
 In the language of this venerated man, I unite most devoutly, 
 in the prayer to a merciful God, to spare us from that "greatest 
 scourge an angry Heaven ever inflicted upon an ungrateful and a 
 sinning people." 
 6
 
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