sonally every man fit to be a judge of either of our higher courts; and let us have the confidence to suppose that any individual who will be put into that place will make a judicious selection. The selection may be no better, perhaps not so good, as the people would make, but if it is as good, or nearly as good, will it not be safer to leave it there and try it until we can see whether our new system works well elsewhere? But, I declare, that when there is no existing evil or abuse which needs a remedy, when there is no necessity to make an experiment, under existing circumstances, I choose to wait and see how the system works in other places, and rely upon the wisdom of the court, and upon that of the executive, who is in a position to gain all the information he may need to enable him to fill up such vacancies as may occur. For these reasons, I feel constrained to vote against every proposition which is about to touch the judiciary of the Commonwealth. Mr. HALLETT. There are seven minutes left before the question must be taken, and I desire to occupy them for the simple purpose of giving my testimony, as a member of the bar, against what I regard as an anomaly in our institutions, a life tenure of office to any subject of the Commonwealth. While, at the same time, I have expressed myself here, and continue to express myself, in favor of leaving the present mode of judicial appointments as it stands in the Constitution, because it is not now expedient to change it, and also because it being done by the annual agents of the people it is only one remove from the mode of appointment by the people themselves; yet I desire to say, as a member of the bar, and one who has had some little experience in this matter of a judiciary independent of the people, that, in my judgment, if there is any one correction important to be infused into the fundamental law of this Commonwealth, in order to make it republican, in order to make it harmonious with all other institutions and agencies where the people govern, and in order to dispense justice impartially and courteously, as well as wisely, it is that you should limit the life tenure of your judges. Sir, the eloquent gentleman who addressed us this morning, (Mr. Choate,) and with whom I agree on the subject of the appointment, and disagree on the subject of the tenure,-referred us, as if it were an authority, to the opinions of Alexander Hamilton, which I find, on examination, are given in the Federalist, No. 78, where, in 1788, he advocated the life tenure of the judges of the United States Court. I do not accept Mr. Hamilton as an authority on republican govern [July 14th. ment, and yet it may be well to recollect that afterwards, in 1804, the same Alexander Hamilton, as an advocate, defended Harry Croswell in a prosecution of "The People vs. Croswell,” for a libel upon Thomas Jefferson, and maintained the right to give the truth in justification. And it was on that occasion that Alexander Hamilton said, very differently from what he said in the "Federalist," that it was only by the abuse of the forms of justice that this people could ever be enslaved. "An army," said he, "can never destroy our liberty. It is to be subverted only by a pretence of adhering to all the forms of law, and yet breaking down the substance of our liberties." And no judiciary could ever usurp arbitrary power, or break down our liberties by subverting laws and Constitution, through false interpretations, except by judges holding office for life, irresponsible to the people. That was Mr. Hamilton's sound conviction and after-thought, when he was practising at the bar; and that is the conviction very often wonderfully enforced-much oftener than openly expressed-on the minds of members of the bar when engaged in practise before our courts. That eminent counsellor may not have felt this so much as others have, and yet I think he has felt it. On another point, the learned gentleman inquired if there was any want of integrity in the judges? Let me answer that at once. No, Sir. There is no doubt about the integrity of the present judges. But the question is not present personal character, but the principle of life tenure in a democratic government. Again, the gentleman asks, Is there any doubt about their ability? No, there is no doubt of that, as a general proposition. But neither honesty nor ability entitle men to hold office for life. I wanted to ask him one other thing, which he omitted; is there courtesy in the judges? and the gentleman might have answered that, from observation, at least, if not experience. Now, Sir, I say forcibly, I want to give to our judiciary the grace of courtesy; I want not only to have the fortiter in re, but I also want the suaviter in modo; and where are you to get it? Only in the creation of a future bench without a life tenure, and whose periodical reappointment shall lie in the power of the people. Sir, when I was a student at law, I remember to have heard said what I have never forgotten, by a very eminent professor of that day, Mr. Ashmun, one of the first professors of the Law School at Cambridge, when he had been contemplating some of these evils that grow out of an irresponsible judiciary—“ give me” said he, “a court for the correction of errors, if it be but a body of selectmen!" And so say I; give me accountability; give me some body behind your judges, if it be but a town council or a board of selectmen, who can somewhere at sometime or other say that the hour of accountability has come. The gentleman cited Hamilton for life tenure. I prefer the opinion of Thomas Jefferson, who, in his letter to Mr. Kircheval, July 12, 1812, upon the subject of an independent judiciary, in answer to one of these old, worn out arguments about the appointment of judges for life, in England, to make them independent of the crown, said that this was an argument that an American lawyer should never utter in an American assembly; because, the question of dependence was entirely different where the appointing and removing power was in the hands of an hereditary executive, like a king,-then it was a great point gained to have the office continue for life, "but in a government founded on the public will, this principle [of life tenure] operates in an opposite direction, against that will." The reason changes, for, says he, while in England they make the judges independent of the king, here by appointing them during life "you make the judges dependent on none but themselves!" There is the difference, Mr. President. Our judges with life tenures are dependent upon nobody but themselves; and that enables them to be independent of what? Not only independent of the people, but independent of good manners; independent, if they choose to be, of their own consciences and convictions; independent of any errors which they may make in judgment; independent of the grossest partiality, in fact of everything but crime, while they may be dependent upon, and may, unconsciously and honestly yield to the political and social influences that surround them-these cliques, these clubs, those circles that are drawn around them as men and politicians before they are judges, and under the influence of which they go upon the bench. They may be perfectly honest, I have no doubt of that, and yet they are imbued with the atmosphere of local and social sentiment, and interest, and they find it, the best and purest of them, in giving opinions upon religious freedom and similar matters, very much as the distinguished jurist who preceded me in this argument, (Judge Morton,) found it, when he was on the bench. I refer to a grave question of religious freedom, wherein that local and social influence was so strong upon him that he found him * Commonwealth es. Kneeland, 20 Pickering, 206. [July 14th. self constrained, although he gave his opinion right, to give his judgment wrong; and therefore, and for all that I have said, and much more I might say, give me accountability in the judges by at least periodical returns to private life. Mr. Hallett here yielded the floor at the request of Mr. MORTON, of Taunton, who moved that the vote be reconsidered by which the hour of four o'clock was assigned for taking the question, and that it be fixed at ten o'clock to-morrow morning, remarking that, as was apt to be the case, he had consumed so much time himself, that he had deprived others who wished to be heard, of an opportunity to speak. Mr. BUTLER, of Lowell. I would inquire if the gentleman from Taunton is one of those who voted with the majority. The PRESIDENT. The rules of this Convention do not require that. The hour has arrived, at which the Convention has ordered the question to be taken. Mr. BUTLER. I hope that the motion to reconsider will not prevail. This matter has another stage to pass through, and while it is not so important that we should have farther discussion now, I think it is important, for various reasons that I might suggest, that we should come to a vote. At the present time I think the most important thing which this Convention can do is to vote and go home. Mr. HALLETT. I trust that the Convention will not, from any considerations personal to myself, reconsider this motion. I should much rather prefer that they would bring this matter to a close now, than that they should, out of mere courtesy to me, extend the time beyond what is necessary in order that the vote may be taken understandingly. The question was taken on the motion to reconsider the order, and it was not agreed to. The Convention proceeded to vote upon the pending question. The question being upon the amendment of the gentleman from Fall River, to the amendment reported from the Committee, the yeas and nays were taken, with the following result-yeas, 101; nays, 226: Thursday,] Butler, Benjamin F. Clarke, Alpheus B. Day, Gilman Dean, Silas Kingman, Joseph Mason, Charles YEAS Morss, Joseph B. Crittenden, Simeon Davis, Solomon [July 14th. Hobbs, Edwin Kinsman, Henry W. Knight, Hiram Knight, Jefferson Knight, Joseph Knowlton, Charles L. Kuhn, George H. Morton, Elbridge G. Parker, Adolphus G. Parsons, Samuel C. Parsons, Thomas A. Penniman, John Hathaway, Elnathan P. Pomroy, Jeremian Hapgood, Seth Harmon, Phineas Phinney, Sylvanus B. Haskins, William Plunkett, William C. Hayden, Isaac Powers, Peter Hayward, George Preston, Jonathan Heard, Charles Prince, F. O. Putnam, George Rice, David Richardson, Nathan Richardson, Samuel H. Rockwood, Joseph M. ABSENT-HALLETT· - BUTLER — BATES Viles, Joel Vinton, George A. Walcott, Samuel B. ABSENT. Huntington, George H. Banks, Nathaniel P., Jr. Jenks, Samuel H. Barrett, Marcus Kellogg, Martin R. Huntington, Charles P. Underwood, Orison So the amendment to the amendment was rejected. The question recurred on the amendment reported from the Committee of the Whole. Mr. HALLETT, for Wilbraham, moved to amend by striking out the words, "but in no case to continue in office after attaining seventy years of age." The question was taken, and upon a division, there were ayes, 148; nays, 98. So the amendment was adopted. Mr. BUTLER, of Lowell, moved to amend by striking out "ten" and inserting "seven." The question was taken, and by ayes 88, noes 180, the amendment was rejected. Mr. BATES, of Plymouth, moved to amend by striking out the following words: "Said justices to be ineligible to reappointment.” The amendment did not prevail. The question recurred upon concurring in the amendment reported by the Committee. Mr. BIRD, of Walpole, moved that when the question was taken upon the amendment, it be taken by yeas and nays. The motion was agreed to, and the yeas and nays were ordered. Mr. COLE, of Cheshire, moved to amend by adding, after the word " appointed," the words by the governor of the Commonwealth by and with the concurrence of the Senate." Thursday,] Cross, Joseph W. Davis, Isaac Day, Gilman Deming, Elijah S. Giles, Charles G. Giles, Joel Graves, John W. Griswold, Josiah W. Hapgood, Lyman W. Hapgood, Seth Haskins, William Hayden, Isaac Heath, Ezra, 2d YEAS Moore, James M. Newman, Charles Richardson, Daniel Hathaway, Elnathan P. Sumner, Charles Hewes, William H. Hurlbut, Moses C. Taft, Arnold Thayer, Joseph Vinton, George A. Knowlton, William H. Warner, Marshal NAYS. Ballard, Alvah Eustis, William T. Hersey, Henry [July 14th. Hewes, James Hillard, George S. Hinsdale, William Lothrop, Samuel K. Lowell, John A. Marvin, Theophilus R. Rockwood, Joseph M. Tileston, Edmund P. Tyler, William Upham, Charles W. Upton, George B. Walcott, Samuel B. |
