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acter of the functions of a judge of probate. I guided him, in a discourse to a member of his contend that that office requires a particular train- family, says: “If there came before me, on the ing and a measure of learning such as ordinarily one side my father, whom of all men I most love cannot be acquired except in the legal profession. and honor, and on the other the devil, whom of It is no answer to tell me that here and there a all beings I most hate and abhor, yet if the justice man of an uncommon legal understanding be- of the case lay with the devil, he should have comes qualified to perform the duties of that right at my hands.” I do not suppose that the office.
devil will ever appear before a court of probate, Mr. SUMNER, for Otis. If the gentleman either in person or by attorney; but I do submit will allow me, I will state that I said it required that there may be occasions which put the virtue a member of the legal profession to perform the of a judge of probate to something of a severe test. duties of judge of probate in the cities, and espe- I will suppose that on the one side there is a cially in the city of Boston; but that in the rural widow, poor, friendless and unprotected ; and on districts a man who was not a member of the the other side a man of powerful influence in the legal profession could discharge the duties of the party which has put that judge into office. I will office acceptably, and I gave an illustration to suppose further, that the day of re-election is near show that this had been done.
at hand, and that his circumstances are such that Mr. HILLARD. I cannot perceive the differ- it is of great importance to him that he should be ence in principle; the only difference is in the re-elected. He may have a son at college; he extent of the field on which the accomplishments may be about to marry a daughter; he may be and training are to operate, and therein there is building a new house or refurnishing an old one, no difference in principle. I say that in ordinary so that the abstraction of his salary may be felt to circumstances a measure of legal learning such be a great inconvenience. With that pressure as cannot be acquired except by practice at the upon him, perhaps the judge will not yield; if he bar, is requisite for a proper discharge of the func- be an angel he certainly will not yield, but we tions of a judge of probate; and, Sir, I do not put cannot have angels for five, six, or seven hundred the scale of general qualifications so low as many dollars a year. Being a man, with the infirmities gentlemen are disposed to do. I think that the and liabilities to temptation of humanity, although action of a judge of probate is important within I should look forward to the result with somehis sphere; that sphere, to be sure, is not the very thing of hope, yet it would also be with somehighest. I admit that you do not want eloquence thing of fear. -you do not want original genius or profound But further, Mr. President, I contend that in learning, although the more learning in a man is devolving the selection of the judges of probate better, other things being equal; but what you upon the executive, we do no more than follow do want is good sense and experience-you want out the analogy which runs through the whole conscientiousness, and above all you want firm- of life, in all our business relations and in our ness and independence. Now, Mr. President, I political administration; and that is this: wheresay that the qualifications which enable a man to ever peculiar functions are required, wherever a discharge the functions of a judge of probate are peculiar training is necessary for the proper disnot those which win popular favor and which are charge of the duties of any office, the selection of likely to secure to a man a liberal harvest of votes. that office is devolved upon a smaller bodyPopularity is the result of a facile character and a either upon a particular individual or upon bodies flexible nature. That man is a popular mai of two or three or more. Take, for instance, this whose sympathies are ready but not deep—who very Convention, with regard to the selection of has no deep and strong convictions, such as read- the committees, to whom we are intrusting all ily yield to the touch of outward circumstances. these important questions. Should we have done A popular man is a man who has no enemies, so wisely if we had elected them all ourselves ? and in my opinion a man who has no enemies We never could have attained a satisfactory redeserves to have no friends. Independence and sult; but we chose you, Mr. President, and one firmness, Mr. President, are the cardinal virtues of the motives that induced us to vote for you of a judge, whether he be judge of the supreme was the confidence that we reposed in the discrecourt or judge of probate. Independence is to a tion which you would exercise in the selection of judge what courage is to a man, and what chas- these committees. By so doing we have done far tity is to a woman; it is the guardian virture that more wisely than if we had elected them ourkeeps watch over all the rest, and without which selves. How is it managed in a bank? The we have no security in any other one. The great shareholders come together and choose a board of Sir Thomas Moore, speaking of the motives which directors, because their functions are such as most Friday,]
HILLARD — BUTLER.
men can discharge; but they do not choose a at least, they will not pause and retrace their teller or book-keeper, because peculiar qualifica- steps. tions are required for those stations. The selec- Mr. BUTLER, of Lowell. I wish to say a few tion of these officers is devolved upon the direct- words upon this subject, and but a few, because ors, and by them it is usually given to a smaller it is a subject that needs not from me, certainly, committee, upon whom personal responsibility is much talk; but the premises being granted brought as it were to a focal point; the stock - from which, the gentleman from Boston will exholders in a bank would act with a great want of cuse me if I say, he suggests that men ought to wisdom if they were to take such things into their act, I will agree with him that judges ought not own hands. So it is with a railroad corporation. to be elected by the people; but, the radical difThe shareholders select the board of directors, and ference between us is, that we disagree upon the the directors themselves choose the engineer be- premises. He sets out, if I understand himcause his functions require peculiar qualifications. and I would not do him injustice—with the beSo, if we should want to select an artist to paint lief that men ought to act in conformity with the a picture or to carve a statue, would the legisla-desire of “the hands that feed them.” Sir, that ture be wise to make the selection themselves ? puts an end to all independence. I do not set out No! they would devolve it upon a smaller body, with that belief, and, therefore, I think that judges and throw such responsibilities upon them as may be independent, although elected by the peowould compel every man of the committee to give ple—and much more independent than if they his mind seriously and exclusively to the sub- were appointed; but, even if I agreed with him ject.
that a man ought to look to those who feed him I am arguing now, upon the supposition that for his rules of action, I should still be unwilling this is a question between the executive and the to have this judge appointed; for, although I people; but, Mr. President, it is no such thing. would not expect to have him an angel, yet I I wonder that any man can ever maintain, with think that, on the other hand, a man should have a sober countenance, that such is the case. If the what has been not inaptly expressed a "supremaexecutive were to nominate a committee com- cy over his accidents,"—that he should stand up posed of discreet men in each town and county, wholly independent of, and looking beyond any that they should come together and choose a judge considerations of what may be about him; and of probate, I might yield some of my objections. believing, Sir, that men will do so, I am conBut we know perfectly well that the result of this strained to believe that judges of probate may be thing will be that the judge of probate will be elected, and yet be reasonably independent men. nominated by a caucus, and we know perfectly But, Sir, there seems to have been one thing overwell that the men who will compose that caucus looked by the gentleman for Manchester in his will be men not remarkable for their discretion, argument; and that is, that the judge of probate not remarkable for their judgment, not remark- is but a subordinate office after all, and in case of able for the amount of interest which they have corruption, partiality, or any undue influence at stake, but rather remarkable for their zeal and being allowed to control his actions, those who activity, and for the personal interests they have feel themselves aggrieved can at any time make it in serving as apprentices and journeymen in the the subject of an appeal to the supreme court, as great trade of politics. I submit that if you de- a supreme court of probate is always open and volve the nomination of this officer on a body like the decision can at once be corrected. On the that, which merely sends forth its edicts and they other hand, his acts of discretion are so guarded are conformed to by the people, you will be that no injury can be done. My friend, who is abandoning an excellent system, one which has so well “posted up" in all these matters, to use always worked well, for one which contains too a cant phrase which I know I ought to be ashamed many dangerous elements for any wise State to of–my friend, who so well understands this adopt it.
thing, speaks of the approval of bonds as an inI do not know that I have anything further to stance of the exercise of this discretion. Now, say. I concur entirely in what has been said by Sir, what earthly inducement can a judge of the gentleman for Manchester. I suppose that probate have to approve a bad bond? Will you the result is a foregone conclusion ; but in view tell me, Sir, where you can conceive a motive for of the fact that no petition has come up from any his doing it? I hold that men will not act part of the State for a change, but all are content wrongly unless they have a motive for it; and it with the present system, and in view of the dan- should be constantly remembered that if a judge gers which lie in trying any new path, I will ask of probate should be guilty of any improper act this Convention whether, in regard to this officer in regard to the administration of estates, every Friday,]
decree he may make is examinable in the su- temper, and a disposition to be obliging as well as preme court, and subject to be reversed by that just, are among the great prerequisites in any tribunal.
judge, whether high or low. I have seen in my Another thing my friend from Boston seems time—and who amongst us has not seen the same to be afraid of, is that if you make the office of thing :- judges who marred their great ability by judge of probate elective, it will be an office which their want of these qualities, whose lack of them will at once come into the political arena, and was as notorious as their legal attainments were which will always be subject to change in the in- great; so that while we almost worshipped the cumbency on the occasion of every election. lawyer, almost all of us despised the gentleman. These fears may do very well to speak about, but These qualities, are doubly requisite in a judge of it so happens that we rarely see them realized ; probate. Why, Sir, the judge of probate in our because in this case particularly, the people in county has quite spoiled all business in relation the election of such a judge, are looking imme- to the administration of the estates of the dediately and at once to their own interests. Let ceased—so far as the profession of the law is me speak a little from experience in regard to this concerned-by taking it into his own hands ; that matter. In the county of Middlesex, in which, is to say, he is ever ready to give the best advice to as gentlemen know, we carry politics quite as far administrators and widows in regard to their as is good for ourselves, and certainly a little too duties. He takes care of the whole of it; does far for the benefit of our opponents, the best and everything honestly and pleasantly; so that, in most lucrative office in the gift of the people- that business a lawyer is like a fifth wheel to a that of county treasurer-has been held by one coach. He sees to it that all the business is propman as long as I can remember, and the office is erly done, and the legal profession find nothing elective annually.
whatever to do in his court. The gentleman is A MEMBER. There have only been two no particular friend of mine, and there are cercounty treasurers in Middlesex during the last tainly no personal reasons subsisting between us, thirty years.
why I should pay him a compliment; but what Mr. BUTLER. I am reminded by a friend I have said is but just. He is a man of very near me that there have only been two treasurers accomplished manners, and of gentle and obliging in that county during the last thirty years. At disposition; and hence, this is added to business all events, as long as I can remember, that office habits and strict integrity. If he has these qualhas been filled by one man; and, pecuniarily con- ities, and having to appeal to the electors for their sidered, it is the best office in the gift of the people suffrages, his re-election would be always a matof Middlesex. It would be the highest prize in ter of certainty. Besides all this, Sir, I cannot point of remuneration, that a man could win in but think that one of the best methods of polishour county elections; and, although there have ing the manners of some of our judges is to subbeen from time to time, nominations of opposition ject their office to the popular vote. While I am candidates, these nominations have been formal, far from believing that it would alter their integmerely, as the nominees could not secure an elec- rity, I cannot but think it would have the effect tion.
of rounding off some of their rough corners, or, So, also, in regard to our register of deeds; the to speak in more polished phrase, to smooth some result at elections has been precisely similar. of the asperities of their conduct. I would not When the people get a good man, they keep him sleep less soundly o' nights, nor sell any piece of in office; and so unquestionably it would be property I might possess, one cent cheaper, even with judges of probate. If he is a bad judge the if our supreme judges were subjected to the ordeal widow and the orphan will be his accusers ; if he of a popular election annually. I should have is a good judge they will be his friends, and his no fear of consequences in regard to the common re-election will be secured. If he should abuse welfare, if all our judges from the highest to the his office, then there would be no hope for him, lowest, were made elective—but I have a little and there ought to be none. He does not and fear of the arguments of my friend, (Mr. Dana,) cannot separate himself from the people.
for Manchester. (A laugh.] Now, I agree with what was said by the chair- Now, to show how much we differ, I will say man of the Committee—that good manners and that I think there is a good deal more danger in urbanity are requisites which strongly appertain making the office of sheriff elective, although that to a judge of any court. I am almost inclined does not appear to strike my friend from Boston, to say that they are the first and most essential (Mr. Hillard,) as being the case. Yet even in requisites—and above all in the case of a judge of regard to sheriffs, I have no objection to their probate. Urbanity, good manners, kindness of being made elective. Still he is strictly an exFriday,]
BUTLER - BISHOP.
ecutive officer. He has to execute the hard sen- not only to the people for the faithful discharge of tence of the law. On him devolves the duty, his duty, but amenable also to a higher tribunal under the decisions of our courts, not unfre- to which appeal may be made. Being then a quently to turn the widow and the orphan from local officer, whose jurisdiction is limited by their homestead ; to seize not only the property, county lines, the question is, where does the sometimes the persons of men; and, there is in proper legitimate appointing power reside-by my mind much more danger that he might be whom should it be exercised ? Should he be apsubject to influences and biases in the discharge pointed by the people, or by the executive? The of his duty, in order to secure his re-election than Committee thought, and I concurred with them there is in the case of a judge of probate, or any entirely, that the proper legitimate appointing other judge. I trust, therefore, that the motion power is the people of the county over which he to reconsider will not prevail if the only object has jurisdiction and should be by them exercised; of the motion is that intimated by the gentleman and for this reason, the people of the county are from Boston, to move to amend by making the supposed to be intimately acquainted with every office of the judge an office for life, or even as prominent individual within the county qualified desired by my friend for Manchester, to make for the office. They are presumed, and not withthe tenure of the office a tenure of six years. I out good reason, to know the qualifications of do not see that even this latter suggestion would those who may be proposed as candidates for the mend the matter at all ; for, during the last three office; and I venture to say, that there is not a years the judge would be in precisely the same county in this Commonwealth whose inhabitants position in which we place him by the resolution are not intimately acquainted with the character as it now stands.
and learning, integrity and accuracy in business, In neither case do I think there is any danger of any individual who may be proposed as such in trusting the people with the election of those candidate. The executive is not, and from the officers who are to protect their liberties, and take very nature of things cannot be, thus well adcare of their estates. The people themselves, are vised of the most fit and suitable persons to fill most interested in these matters, and are the best such positions. He may be a wise and good man; judges of whom it is proper to trust in the dis- his acquaintance with the people of the Commoncharge of these important duties.
wealth may be extensive; he may be acquainted Mr. BISHOP, of Lenox. The question before with all the prominent professional men in the the Convention is two-fold; or, rather I should Commonwealth ; and possibly may be better able say two questions have been presented by the than the people to select judges of the supreme gentlemen who are opposed to the election of the court, and other judges having general jurisdiction, judges of probate. In the first place they are op- but I deny that this is the case in reference to judges posed to the election of these officers by the people; of probate. The people of the several counties and in the few remarks which I intend to submit know the qualifications of their men for this office to the Convention I shall confine myself strictly better than anybody else can know them; they to the election of this judicial officer. This matter know better than anybody else who is competent was fully and deliberately considered by the Com- to discharge the duties of this office--and I admit mittee which had it in charge.
that these duties are very important ones—thereMr. DANA, for Manchester. Will the gentle- fore, I contend that the appointing power is well man from Lenox allow me to interrupt him one and wisely left to remain in the people themselves moment for the purpose of explanation ?
-in other words, the power being originally in Mr. BISHOP. Certainly.
its full extent with them, this is a proper case in Mr. DANA. I did not put my motion on the which they should directly exercise it. ground of election in the first ins:ance, but on the One word further? What is the objection to question of re-election at the expiration of three this? It is this-judges made elective are deyears.
pendent. I deny this. It is an unsupported Mr. BISHOP. That question has been fre- assertion. No connection between the premises quently discussed, and I may say, perhaps, more and conclusion is shown. On the contrary, I freely than any other connected with this topic. contend that, if they are made elective, they are I was stating that this matter had been under the made independent, so far as the discharge of their careful consideration of the Committee, and was
duties and the maintenance of their integrity are not passed upon by them until they had entered concerned. I do not admit that they must necesinto the most scrutinizing investigation of the sarily be “ popular men ” in the low sense which subject. Sir, what is a judge of probate ? He is has been given to that phrase by my friend from an officer of limited jurisdiction, and is responsible | Boston. They must most certainly be popular
men; but in order to this they must be inde- and become the death warrant of any judge of pendent. They should be anything but “facile probate shown by it to have departed from the or obsequious" men-for I can assure my friend right line of his duty. that “ facile and obsequious” men are not popu- Sir, gentlemen mistake in regard to this matter. lar with the people. The independent men, who Place the judge of probate under the supervision are the friends of the people, and whom the people of the people of his county. Make him answerbefriend. The independent, who are such be able to them, and not to an executive who is cause they are firm and intelligent, are the men nominated by a caucus, and elected by a party ; who command the people's votes—the men who make him answerable to those whose business he stand true to their principles. These are the men is transacting ; make him answerable to the widow who are respected and supported by the people, who has strength in her tears, to the orphan who and the
are the men whom the people has strength in his weakness, and to the friends despise, and whose honesty they distrust and of both, who feel bound by every consideration whose services they reject-men quite as little of consanguinity and duty to look to their intertrusted and quite as much despised by the people ests. And election ahead, and his eligibility to reas they would be by my friend from Boston him- election, will form the strongest inducement which self. No, Sir, these men will never become the can be presented to the judge of probate, not to elect of the people. The firm and independent pervert judgment, but to show himself the fearmen will be their elect-men who discharge their less, uncorrupted and incorruptible friend of the duty fearlessly. The slight acquaintance which I widow and the fatherless. have with the people justifies and vindicates this I go further, Sir. The people of their cwn opinion; and, if my friend from Boston will counties know their own men full well. There mingle a little more with the people, my word for is no one of prominence enough to be selected for it, he will exercise a more charitable and just view any county office, who is not either well known in relation to them.
personally, or by reputation, by every man of the Now, Sir, what further? It is said that in the county. His capacity, integrity, and fitness for probate courts the strong and the weak come in the office for which he is selected, will be thoroughconflict with each other. I do not understand ly canvassed, examined and discussed. Close inwhat is meant by the strong and the weak in this quisition will be made, and if he cannot stand its respect; but I admit that the widow is weak; scrutiny, he will be rejected—certainly, inevitably that the orphan is weak; and that the guardian rejected. There are no political services which and administrator may be strong and influential he may have rendered, that will save him. The
If these parties come in conflict, any indi- | people see clearly the difference which often exvidual who is to judge between them thinks to se- ists between the wishes of partizan leaders and cure himself in his office by yielding to the tempta
their own interests,-between the claims of polititions which may be offered him by the stronger, I cal adventurers, and their own right and claims can assure him who thinks by such yielding to re- to be faithfully and ably served. They will never main quietly in place, that he will find himself most stop to inquire whether the candidate has been an deplorably mistaken. Everything officially done active organ of his party, till after they have dein his office is placed upon the record; and if a terinined whether he be fit to serve them in the widow is wronged by an executor or administra- important work of the office. False, dishonest, tor, that wrong becomes known, and that widow and incapable men, never have been, and never is stronger in her wrongs, than the strongest man will be popular favorites. They may occasionally armed. Let it once be known that she is injured steal the march of the people, but are sure of by unrighteous judgment, and she immediately being reached and sent back again to obscurity, if acquires a strength and power which neither not disgrace. In almost every county in the wealth nor influence can impart. If she is State, will be found officials, who have sat wronged these records show it; and weak as the quietly in their places amidst all the shifts and widow and the orphan may be, their interests are violence of party; caucus nominations and chinot only under the supervision of their guardians canery have never been able to displace them. and administrators, but of their friends and rela- The approbation and confidence of the people have tives, who watch those guardians and adminis- been their safeguard and reward, as I trust they trators, and will soon discover and understand always will be, of inflexible uprightness and tried full well if any injustice has been done; and, if capacity. When the people shall have been beit has been done, the whole matter will be on the reft of the love of virtue and intelligence, and the record ; and that record will be disclosed to the intuitions which perceive, and the sound sense people, and known by every-body interested, which justly estimate them, then, and not till