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ger that unworthy men would succeed. To treat such observations as have been quoted upon opinions previously written by a candidate for re-election, however unseemly or unjust, as a contempt of court would be indirectly to impair the right of free suffrage.
Political contests cost money, and if judges appear as candidates for popular suffrage they are naturally expected to contribute to the expense. The other candidates on the same ticket do this, and if those nominated for the bench did not, somebody would have to do it for them, thus bringing them under obligations that might have an unfortunate appearance, if not an unfortunate effect. In New York, where some of the judicial salaries are higher than anywhere else in the country, and the terms for the highest places are long (fourteen years), it has been customary for those placed in nomination to contribute a large sum to the campaign expenses of their party. This is tacitly understood to be a condition of their accepting the nomination, and the amount to be paid is fixed by party practice. For an original nomination by the party in power, it is said to be about equal to a year's salary; for a renomination half that sum may suffice.
But a judge holding office by popular election must in any case owe something to somebody for supporting his candidacy. He is therefore under a natural inclination to use his power, so far as he properly can, in such a way as to show that he has not forgotten what his friends have done for him. There is always a certain amount of judicial patronage to be bestowed. There are clerks and messengers, trustees and receivers, referees and committees, perhaps public prosecuting attorneys and their assistants, to appoint. Other things being equal, no one would blame a judge for naming a political friend for such a position. But as to whether other things are equal he is to decide. To the most upright and fearless man the danger of this is great; to a weak or bad man the feeling of personal obligation will be controlling. Justice Barnard of the Supreme Court of New York once observed on the bench that judges had considerable patron
age to be disposed of at their discretion, and that for his part he had always succeeded in life by helping his friends and not his enemies. For this practice, among other things, he was impeached and removed from office; but how many judges are there who yield to this temptation without avowing it?
Most of the old thirteen States in their first Constitutions provided that the judges of their highest courts should hold office during good behavior, or until seventy years of age. New York at first put the age of superannuation at sixty, but after losing by this the services of Chancellor Kent for some of his best and most fruitful years, postponed it to seventy. Georgia was the first to set the fashion of short terms. Her Constitution of 1798 provided that the judges of her highest court should be "elected" for three years, but that those of her inferior courts should be "appointed" by the legislature and hold during good behavior. The legislature construed this as allowing it to frame such a scheme of election as it thought best, and that adopted was for the House to nominate three, from whom the Senate elected one.
In all but three States (Massachusetts, New Hampshire and Rhode Island) at the present time all judges hold for a term of years, and as a general rule those of the higher courts have longer terms than those of the inferior ones. The change from life tenure to that for a term of years was partly due to several instances which occurred early in the nineteenth century, in which it was evident that judges had outlived their usefulness. Judge Pickering of the District Court of New Hampshire lost his reason, and to get rid of him it became necessary to go through the form of impeachment. In 1803, Judge Bradbury of the Supreme Judicial Court of Massachusetts, who had been incapacitated by paralysis, was displaced in the same way, though only a few months before his death. In 1822, an old man who was the chief judge of one of the judicial districts of Maryland was presented by the grand jury as a "serious grievance," on account of his habitual absence from court. His physician certified that his
life would be hazarded if he undertook to attend, but the natural answer was that then he should resign.
At present, for judges of the State courts of last resort, the term in Pennsylvania is twenty-one years (but with a prohibition of re-election); in Maryland, fifteen; in New York, fourteen; in California, Delaware, Louisiana, Virginia, and West Virginia, twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado, Illinois, and Mississippi, nine. The general average is eight, although that particular number obtains in but seven States. In eighteen it is six. The shortest term is two, and is found in Vermont. It may be noted that the original rule in Vermont was to elect judges annually. As compared with the terms of office prescribed at the middle of the nineteenth century, those of the opening of the twentieth are on the average decidedly longer.
62. JURY TRIAL.
The following excellent description of trial by jury as practiced in the several States is taken from Judge Emlin McClain's book on constitutional law:
By some suitable means of procedure twelve persons are secured for the trial of the particular case; they are usually required to be citizens of the state or United States, as the case may be, possessing full mental capacity and in the enjoyment of the faculties of seeing and hearing so that they may rightly and fully comprehend the evidence presented to them. It is usually required that they be selected from the class of persons who are entitled to exercise the elective franchise, but there is no necessary connection between the right to vote and the capacity to serve as juror.
Some classes of persons are as a matter of public policy exempted from the obligation to serve on juries, such exemptions usually extending to physicians, lawyers, teachers, and public officers whose business or public duties are such as to be seriously interfered with to the public detriment if jury service is required of them. It is left discretionary
with the court to excuse in particular instances other persons who by reason of some special emergency would be unreasonably inconvenienced or damaged by such compulsory service; but mere interference with ordinary business or occupation is not regarded as just ground of excuse, for the citizen can be properly required to perform his public duties without regard to the effect upon his private interests.
A juror to be qualified to sit in a case must be, however, not only generally qualified to discharge such duty, but he must also be qualified with reference to the particular case in which he is to sit; that is, he must be substantially without bias or prejudice which would be likely to interfere with his rendering a fair and impartial verdict. Therefore one who has formed or expressed an opinion as to the merits of the case, or is so related to one of the parties that he is likely to be predisposed to favor him, or who occupies a position of hostility towards one of the parties which would predispose him to a decision hostile to such party's interests may properly be excluded. The general and special qualifications of each particular juror are inquired into, and if for any reason he appears to be disqualified the party desiring that he shall not serve as a juror in the trial of the case interposes a challenge for cause, and if the judge considers the objection to be well taken such person is not selected as one of the jurors.
There may be special reasons why a person called as a juror would not be likely to render a fair verdict in a case between the parties, other than the general reasons just suggested, and it is usually provided that each party shall have a number of so called peremptory charges which he may exercise for the purpose of excluding such persons from the jury as he desires to object to, although no legal reason for such exclusion is given. When twelve persons are secured against whom no valid objection is found to exist and to whom no peremptory challenge is interposed, these twelve persons are sworn to render a fair and impartial verdict in the case and become the jury for the trial.
The jurors thus sworn hear the evidence which the trial
judge permits to be offered. In determining what evidence is to be offered and considered the judge applies rules of law and the jury is authorized only to consider the evidence which is submitted to them. They have no right to take into account matters of fact not shown by the evidence, such as particular facts relating to the case which they know or believe as of their own knowledge. They are to try the case under the direction of the court as to what testimony or facts are properly admissible as affecting the verdict which they shall render.
Having heard the evidence submitted to them, the jurors are instructed by the judge as to the rules of law which they are to follow in reaching a conclusion from the evidence that is submitted, and they have no right to exercise their own judgment as to the rules and principles of law applicable to the case. The determination of the law is for the judge in the discharge of his legal duty. But the credibility of the witnesses and the weight of the evidence is for the determination of the jury in the exercise of their discretion, and the judge should not interfere with or control them in its exercise. In some states the statutes very specifically prohibit any comments by the judge as to the credibility of the witnesses or weight of the evidence; in other states and in the federal courts the judge may discuss the evidence for the enlightenment of the jury, though he cannot control the conclusions which they see fit to draw from the evidence properly presented to them (Vicksburg, etc. R. Co. v. Putnam).
After being instructed by the judge as to the law applicable to the case the jurors consider by themselves, without the presence of the judge or any other person, the evidence submitted to them and the instructions given, and if they are able to do so they agree unanimously upon a verdict in favor of one party or the other. If they are unable to agree on a verdict then the case must be re-submitted in full before another jury, for according to the common law no verdict can be rendered one way or the other unless all the jurors concur therein. In some states there are constitutional provisions for