court of appeals does represent the people, because the judiciary is the check upon that branch of the government, to prevent their passing illegal and unconstitutional enact ments. rated it into the constitution, where it stood until the days of reform swept it away-believing this, it is my candid opinion that if any other system were to be incorporated into the constitution than an elective system of the judiciary, it would injure the constitution before the people and it is this which induces me to support the amendment of my friend from Baltimore city (Mr. Abbott.) Mr. THRUSTON. I think this is a question upon which we are all bound to give our testimony so far as we can with regard to which is the preferable system. The people whom I in part represent are made up mostly of mechanics and laboring men. I have taken great pains to converse with them whenever an opportunity occurred, and I have found them almost universally in favor of an appointive system. They have lived under both systems. We find that the elective system does not secure judge; as unbiased and free from prejudice as the appointive system, of which my constituents, I am sure a large number of them, are in favor. I am sure that if we incorporate that system into the constitution it will secure in that neighborhood additional support to it. Men are not fitted from mere personal popu The judicial power of the State acts more closely upon the people than any other department of the government. I assert that the poor man, the man of bone and sinew, the real working man of the State, looks and feels as strongly towards this principle of the election of judges and sheriffs and clerks, as to the election of the man who is to represent him in the legislative halls. I deny that if the people are competent, as they are, to elect the governor, and members of the general assembly, that they are not as fully competent to elect their judges. There may have been abuses in the elective system; and under what system have there not been abuses? You cannot change human nature by the system of appointment. The governor of the State is a mere man; and when he exercises the right which the constitution gives him, in appointing men to office, in nine cases out of ten he will appoint his own political friends. It is not the same way with the people of your State. The people of your State, as a general thing, when they can get hold of an hon-larity to fill the judicial offices. So far as my est man for judge, will elect him in preference to a dishonest one; and they can more easily discriminate among the men who live in their own neighborhoods, as to who is honest and who is dishonest; who is learned in the law, and who is unlearned in the law, than the governor of your State. There have been evidences of partisanship under an appointed judiciary that we have not seen under an elective judiciary. It is but the other day that I heard it asserted by a gentleman in my city that the supreme court of the United States in making its decision in the Dred Scott case, had acted as a partisan court; and he made a good argument to prove it. That is one of the illustrations of the appointive system; and it is one of the evidences to show that the appointive system cannot change hum in nature. Wherever you find human nature you will find it subject to sympathies and bias. The mere appointment or election of a man to an office cannot take away from him that sympathy or that bias. Believing therefore as I do that the people of the State will not consent to give up this power they have exercised for fourte n years, a power which the convention of Maryland in 1851 gave them in good faith, and which they of right ought not to be deprived of, because it is a right which they have exercised fourteen years and should have exercised ever since 1776, and in my opinion would have done it if it had not been that the old convention of 1776 were acting under the old prejudices derived from the colonial government, and derived this idea of the appointive system from Eugland and incorpo experience goes, we rather find men who are sometimes unpopular even more fitted for such offices than those who have attained great personal popularity-those who seek popularity for their own purposes. We know further that seeking for popularity and electioneering for office creates a state of mind wholly inconsistent with the proper exercise of the judicial functions. I am sure that the appointive system will gain strength to the constitution in the county which I represent, and so far as my own experience goes, having practiced under both systems, I have not a shadow of doubt that the appointive system gives the greatest satisfaction. Besides, the people do in fact elect the judges even under that system, for they elect the man who has the appoint ng power. They control the party who appoints the judges, and it throws such a guard around the appointment that it may be said that the pop e do practically elect. I am confident that the appointive system is most popular in my section of the State. Mr. STIRLING. It seems to me that this amendment is rather premature. I do not think it will settle anything; for the next section says that the judges shall be appointed by the governor. The PRESIDENT. That can be stricken out. Mr. STIRLING. It seems to me that the mơtion of the gentleman from Allegany (Mr. Thruston) ought not to have been with drawn, because whether you adopt the appointive system or the elective system, there will certainly be judges appointed to fill va cancies. I cannot therefore vote to strike) who perhaps may not know how many out the word "appointment," whatever my views may be with regard to the best system to adopt. The PRESIDENT. It is to test the sense of the convention. Mr. STIRLING. It will test it wrongly then, if it leads us to strike out what ought to be in there. Mr. THRUSTON. I only withdrew my amendment temporarily. I shall renew it afterwards. Mr. RIDGELY. I do not see the slightest necessity for the amendment suggested by the gentleman from Baltimore city (Mr. Stirling) There is a special section which provides for the case of death, res gnation and removal from office, which mes that difficulty. Here the word first occurs, and this is the appropriate place, it strikes me, in which the sense of the house ought to be tested. judges sit there, or whether there is such a court at all; the idea of calling upon such a man to elect a judge to the highest judicial tribunal of the State, is one which I hope will not be considered proper. If you undertake to decide the question of the election of the judiciary as an abstract question, and preferable to their appointment, you embarrass those who intend to make this distinction. I suggest, therefore, that this is a merely verbal alteration. Undoubtedly if the house shall at a future time decide that the court of appeals shall be appointed, and that the circuit judges shall be elected, nobody will hesitate to turn back to this section and add the necessary words to meet that state of the case. The gentleman from Baltimore will therefore perceive that he has been in great haste to make this change, because there is not now the slightest necessity for it. There is not a man here, certainly, Mr. CHAMBERS. I have but a word to sy. I be his opinions upon this question what they have heretofore expressed at large my views may, who would for a moment hesitate, if the upon the subject. I have not altered any house should deci le that the court of appeals opinion I entertained since the convention of shall be appointed and the circuit judges 1851. But I may be permitted to say that what elect d, to say it is right to make the change I considered then as probable, all the mis-in this section necessary to conform to that chiefs I foresaw have not only been realized but have been experienced to an extent far beyond my anticipation at that time. I hold, as I always have he d, since I have had any intelligence upon the subject, that the tenure for life or for good behavior, and the system of appointment are both important, and the former I deem still more important than the latter. decision Mr. SANDS. I do not purpose now to argue the comparative merits of the two systems, appointive and elective. I should not have risen at all had I not some days ago in imated that I might perhaps as a member of the judiciary committee, submit a minority report. Circumstances induced me to alter my mind with regard to that matter, believing that I could attain any ends I might have in view as well by amendments of section after section, as the judiciary report shall be reid, as by a minority report. I merely mean now to have my opinion recorded as not only unchanged, but confirmed. All the expe ience I have had is that you have lessened the character of the judiciary; and I was going to say, you have abolished There have of course to my mind, as well the respect to the organs of the law, which as to the minds of other gentlemen, been reathose organs have in former times universally sons suggested for and agains both systems. experienced at the hands of the people. But I know that the judiciary power of our sysupon my opinion I do not deem it necesssary tem of government is perhaps the most imnow to enlarge, or the reasons for it. I un-portant branch of the government; because it derstand that opinions have been formed. does not matter what laws you have upon your statue book, if your judiciary misinter prets or misconstrues them. We are all satisfied of the necessity of wise, learned and impartial judges. The question of course with us all is how best to obtain hem. How shall we best obtain the man for the place? But I rise now for the purpose of suggest ing the fact that this proposal is out of time. There are persons upon this floor who will advocate the appointment of a portion of the judiciary, and the election of another portion of it. I shall vote that way. I now believe that a majority of this body will cer- Although the remark of my friend from tainly adopt a system of appointment, so far Baltimore city who has addressed the conas the judges of the court of appeals are convention might at first strike the ear as not cerned. The idea of giving to the men in a distant part of the State the appointment of a judge of the court of appeals, whose sole au hority is to decide questions of law; the ide of giving to the man who lives at the remotest distance in the State, whose habits have never claimed the exercise of one moment's refl ction upon the qualifications necessary for a judge of the court of appeals, containing the truth of the matter, that the people of the judicial district or circuit were better qualified to judge of the man as to his moral character, and as to his legal lea ning, than the governor of the State, althou. h it may have seemed to have lit le weight or truth in it; yet refl ct: you are to have a man to occupy the bench of one of your creuits. He is either to be chosen by the people or by dred they will choose such a man. the governor. The chances, I presume, of the way be brought into court any day; and The qualifications of a lawyer are something that cannot be hidden, or his disqualifications at the bar. If he is successful, if he is learned, if he is able, if he is eloquent, the men who are called upon to select him are constant witnesses of his professional career; and I do not know one fact more certain than this, that the popular appreciation of a judge's character and ability, is its very best test. It is that teaching which is attained by experience. He has practiced for years in the courts of his circuit, and the people having causes there have intrusted them to him. They witness his management of their causes, and of the causes of other partis, and there is nothing more certain than this, that when a party has a suit to be brought in any court of the State, he knows exactly the man best qualified to try it, and he will go to him. Practically to the people of the circuit or On the other hand, the governor of the State appoints a man whose face perhaps he I did not propose to say as much as this. has not seen a dozen times, or half a dozen These thoughts suggested themselves to me. times; and appoints him how? It would I do believe that the people are the best judges bardly be dignified for the gentleman to go of the character and qualifications of their and solicit the appointment. He would bet-judges, and they have such intimate knowl ter solicit it at the hands of the people than edge of the men at all times and under all at the hands of the executive. How does the circumstances, personally, morally, and progovernor hear of him, or what does the gov-fessionally, that they know into whose hands ernor know of him, except through the re- to intrust themselves and their welfare. commendations of his personal and perhaps of his political friends? That is the amount of the governor's knowledge of the man; while the knowledge the people possess concerning him is that which has grown up perhaps from an experience of twenty or thirty years' active professional service in the community. This being the case, who is the best qualified to judge what man can best occupy the bench, the governor who knows him only from the recommendations of his personal and political friends, or the people who have been the witnesses of his course of conduct for twenty or thirty years? I say the people are the best judges And the people have a very just appreciation of the importance of the judicial office. They know that their property, perhaps their lives, their interests of every character, are under his especial guardianship. They know that not only upon his impartiality but upon his legal wisdom perhaps depend the positions they hold. They Mr. NEGLEY. I do not intend to say much upon this matter, but I am inclined to favor the amendment of the gentleman from Baltimore city (Mr. Abbott.) I do not believe that the operation of the elective system of the judiciary of Maryland for the last fourteen years has been found to depreciate the character of the judges, in the circuits at least. In our own district we have on the bench a man who was on the bench under the appointive system, and I think altogether as competent and as good a judge as it would be possible for the legislature or for the governor to give us; because I believe that the people of the district are the best judges of the integrity and legal capacity of the man to be selected for the office. The constitution provides that the citizens shall not go out and select A, B and C, without any reference to their integrity or legal capacity. The constitution restricts the selection to men learned in the law. With that restriction, I think that the people of the several districts are abundantly capable of making the selection | tricts is not proper, because every man in every for themselves. portion of the State has an equal interest in the selection of the judges of the court of and determine them. The judge of the court of appeals does not decide the cases that arise particularly in the district in which he is chosen, but he sits in judgment upon cases that come to him from districts that have no voice in his selection. There is injustice in that; and as a State officer he ought to be elected by a State ticket. Is it not a notorious fact that a man can go into any judicial district in the State of Ma-appeals, because they preside over his cases ryland, into any county of the State of Maryland, and inquire of the most ignorant man he can find there, who is their best lawyer, and le will immediately be told. In our own county the little boys, the children in the streets, can point out the best lawyer in the county. So that the parties who are to make the selection in our county are better qualified to do so than the governor or the A State officer is the servant of the entire legislature, of whom not five men, three people of the State, and the entire people of men, and perhaps not one man out of the the State have an equal interest in his s lection. county will know anything about the party So I am really on principle incline to favor to be appointed. The governor and the leg- the election, both of judges of the court of islature must rely upon in'ormation obtained appeals, and of judges of the district courts. from others, from the delegates or senator I believe it would be most hazardous to atfrom the county, or they must rely upon per-tempt to take away this right of selection Bonal representations made to them as to the fitness of the party who asks for the office. from the people. by attempting to take away a right which the people know that they possess. The people are jealous of being deprived of power they once possessed. You would a thousand times better never have given it to them at all; there would then not be so much difficulty in withholding it. But having possessed it, hav Gentleman in this convention have been I am one of those who are willing to trust speaking much about the apprehension that the honesty of the people in the selection of they might do something to jeopardize the their officers at all times. There is just as adoption of this constitution. In my humble much corruption, just as much wire-pulling, judgment you cannot more effectually jeopjust as much personal preference in the se-ardize the adoption of this constitution than lection of judicial officers by the governor and the legislature, as there is among the people; and more so. They are appointed through the representations of personal friends; and there is just as much liability to get incompetent men as there is by allowing the selection to be made by the people. After all, these things are to be judged by their re-ing exercised without any dissatisfaction to sults. The elective feature has been adopted, I believe, in most of the States; and I have yet to learn that the bench in the States is now more corrupt or less competent than it was under the appointive system. themselves or any detriment to justice throughout the State, they will be very loth to give it up. If gentleman are sincere in their disposition to insert nothing in this constitution that may jeopardize its passage, I think they would better be very careful about attempting to take away from the people this privilege. Therefore I am in favor of the election of the judges by the people, not only in the circuits, but in the court of appeals also. It There are a few of the lower officers of the has been argued that the man in a distant State, such as constables, road supervisors, county of the State has no interest in the se- and perhaps magistrates, whom there may be lection of a judge for the court of appeals.- some ground for appointment; at least the He is as much an integral portion of the constables and road supervisors. But as to State of Maryland and of the population of the higher officers, the judiciary, I am not Maryland, living in the county of Allegany, inclined to touch them, or to change the as if he lived in the heart of Baltimore city; principle concerning them which now exists and he has just as much right, and perhaps in our constitution. The people have not sufjust as much interest to the extent of his fi- fered. The complaint in our county is not nances, in the selection of a judge of the about the circuit judge, or not about the court court of appeals as the man who lives in the of appeals particularly, except that they think heart of Baltimore city. The man whose ju- they ought to have a chance to assist in the risdiction extends all over the State, over election of officers who preside over their cases every part of it, is as much the officer of the if they are elected at all; but it is with regard individual who lives on the top of the Alle- to these little petty offices where they have ganies, as of the man who lives on the shores suffered. But there is no complaint; there of the bay; and the one citizen is just as is no wish or desire, I believe, among the peomuch interested in the selection of that officer ple to have a change in regard to the mode as the other; and it is just as right and proper of selecting circuit judges or judges of the orthat he should vote for him. Hence the pro- phans' court. There may be some difference priety of electing judges of the court of ap- of opinion with regard to these lower offices; peals by general ticket. This system of select- and I am not so very particular about ing judges of the court of appeals by dis-them, whether you elect the magistrate, or With this experience and this observation, I am unwilling to turn back to the point where we stood in 1850. I find the opinion I entertained in 1850 confirmed and sustained by the past. give to the circuit judge the power to appoint ferred higher honor upon his office, either in him. But I am decidedly opposed to appoint- the court of appeals or on the lower bench, ing the court of appeals or the circuit judges; than the justice of the superior court of Baland I shall therefore vote for the amendment. timore city, Judge Martin. Mr. RIDGELY. I shall follow the example of my friend from Baltimore city who opened this debate (Mr. Stockbridge.) He occupied a very short time. The experience which I have had in the last fourteen years has confirmed in my mind the fitness and propriety of my vote in the convention of 1850, to make this system an elective system. In that respect my experience differs from that of the gentleman from Kent (Mr. Chambers.) My experience has not assured me that we have lost any thing from the change; but on the contrary in the judicial district in which I reside my experience has been that we have gained by the change. There is another reason for my vote. This is a very important movement. Neither my people nor the people at large have ever been consulted upon this subject When we were sent here as members of this convention, this question was not raised before our constituency. I hold that I have as much a duty to perform to represent my constituency here, as if I were in a legislative body. It is my duty to reflect what I believe to be the wants and the will of that constituency. Never having specially discussed this question, it never having been particularly brought before the people, we are asked, without any sort of information upon this subject, boldly, at once to cut loose from the system which in general has worked well, and to fall back upon the old system which we know in the experience of the past, did not work well. It may be that we have not in general obtained judges so profound in judicial learning as we had under the former system; but we have obtained judges who have in the opinion of our people met the wants of the people.It is not per se judicial learning, learning in the law, that makes up all the elements of character necessary to constitute a good judge. There are other elements of character besides that of profound legal learning; and they Just turn to our experience anterior to 1850, have been eminently displayed in my judicial and see what was the condition of the judidistrict. We have had two judges under this ciary under the appointing system. I happen system; the one the lamented Alfred Consta- to be cotemporaneous with that system, and ble; and the other the present judge, John H. know something about it, and I here chalPrice. The business habits of those gentle- lenge, with the exception of the court of apmen, their accessibility, their irreproachable peals, a comparison between the associates upprivate character, superadded to a reasonable on the bench under the old system with the amount of judicial learning, has eminently bench of the circuit courts now under the new fitted those gentlemen for the positions which they held. system. For these reasons I am unwilling to vote to change the mode of selection, and to return to the old system of appointment anterior to the adoption of the present constitution. Mr. BOND. I have no doubt that it is the wish of every member of this convention to adopt that mode, whether appointment or election, which is most conducive to the public good. The only difference between us seems to be, that some think that the public good would be better promoted by the elective system; and some on the contrary think it would be better promoted by the appointive system. Nor have I observed that in other quarters of the State there has been any lessening of the amount of judicial learning or fitness for the position upon the bench, among the various incumbents of the bench. If you will look around through the various circuits, beginning at Allegany, who is upon the bench there under the elective system? Look again at Frederick and Carroll; who are upon the bench there under the elective system? Passing by the district in which I live, and of which I have just spoken, to the Eastern Shore, we come to Judge Carmichael, who was succeeded by judge Ricaud; and in the lower district, judge In the early part of the session I had the Spence. I put it to the convention whether honor to submit to the consideration of the the bench has fallen very far below what it judiciary committee the outline of a system was under their predecessors? In my opinion in which I proposed an elective judiciary. I they level up fully to the standard of their am free to say it was not because I regarded predecessors as a whole. it as the best system; but I really supposed it would probably be the only tenable system. Since I find some of our friends upon the other side in favor of an appointive system, being very glad to find that it is so, I now say that I am an advocate of the appointive system, and will vote for it. It is true they have been unfortunate in Baltimore city; but it was in the inception of the system when Baltimore city had the misfortune to make a selection which probably they would not have made under a larger experience. At present the bench of Baltimore city, generally speaking, is highly respectable. Indeed I know of no judge who has con These gentleman who have occupied the floor in favor of the elective system, seem to |
