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STATE OF MARYLAND,
Assembled at the City of Annapolis, Wednesday, April 27, 1864 :
BEING A FULL AND COMPLETE REPORT OF THE DEBATES AND PROCEED-
WM. BLAIR LORD, REPORTER-HENRY M. PARKHURST, ASSISTANT.
Mr. ABBOTT. It does not accomplish the object which I have in view, which is to test the question at once.
Mr. THRUSTON. I will withdraw the amendment for the present.
Mr. MORGAN demanded the yeas and nays upon Mr. ABBOTT'S amendment, and they were ordered.
Mr. STOCKBRIDGE. I do not know that there is any object to be attained by taking up the time of the convention by any discussion of these two great systems. They have been before the country a great many years; and probably every member of the convention has his judgment fully matured upon the subject. I shall therefore not take up the time of the convention by any discussion. I have my own opinion upon the subject, very clearly defined, what is best for the people, and what is best for the State. That opinion is embo bied in the report. I am satisfied that the plan here presented for the consideration of the convention is the one which in the end will give most satisfaction to the people of Maryland. I am satisfied of it upon general principles, and as the result of observation during the last fifteen years in the State, under both systems, first the one and then the other. But there are other gentlemen present who have perhaps had the same opportunities for observation that I have. I am satisfied I am satisfied that all the essential qualities of a judge, as set forth by us in two of the sections of the declaration of rights, can better be attained under the system reported here than by the adop-rights in relation to the uprightness and intion of the proposition of my colleague (Mr. tegrity of judges. I suppose that he wants Abbott.) We have said: to argue from that that the people cannot elect good and upright judges. We have had an experience of fourteen years in the State of Maryland under the elective system; and I assert without any fear of contradiction from any quarter, that as a general thing the judiciary of Maryland this day is as good as could be selected for the price you pay to the men put in office. There is another principle in the bill of rights which is as much to be regarded by this convention, in the provisions which they will put into this new constitution, as the section which the gentleman bas read. The first article of the bill of rights says that all government of right originates in the people; and the second section says that the people of the State have the sole and exclusive right of regulating the internal government and police thereof.
The gentleman says that the judicial power of the State is not a representative power. I will admit it; but still it is a power of the State. It is the most important power of the State. Your legislature, which is to be the immediate representative of the people, might go to work and pass its laws; and if those laws are unconstitutional they are to go before the court of appeals, and their constitutionality is to be decided by that court of appeals. So far as that is concerned, your
"Art. 18. That every man, for any injury done to him in his person or property, ought to have remedy by the course of the law of the land, and ought to have justice and right freely without sale, fully without any denial, and speedily without delay, according to the law of the land.''
We have said also:
(( 'Art. 32. That the independency and uprightness of judges are essential to the impartial administration of justice, and a great security to the rights and liberties of the people.
office by a constituency, are not the highest recommendations for a judge. I think the experience throughout the country, wherever it has been tried, is that the independency of the judiciary is better promoted by a system such as is here recommended. I shall therefore vote against the motion which has been made by my colleague.
Mr. THOMAS. I am as much indisposed as my colleague (Mr. Stockbridge,) to make any extended remarks in relation to the proposition submitted by the gentleman from Baltimore city (Mr. Abbott) to strike out the word "appointment." And I am as fixed in my opinion as to the expediency and justice of the election of judges as of all other officers of the people, as he is in relation to the appointment. I will say here in relation to those opinions that they are not newly born. I have held them from the time I was a boy from the time I first commenced to mix and mingle among the people of the State. While the gentleman says that he believes that a great portion of the people of the State are in favor of the appointment system.
Mr. STOCKBRIDGE. I did not say that. Mr. THOMAS. Then I beg pardon; but I assert that in so far as my immediate constituency is concerned, that portion of the State which I represent, being the working men of the State, they are unwilling to give up this right of the election of judges by the people..
The gentleman has read from the bill of
In the adoption of these two cardinal principles, I believe we are all agreed. The only question which divides us is, which of these systems will best conduce to the great objects there specified and aimed at. I have no doubt upon that subject.
It should be borne in mind that the judicial office is in no sense a representative office. Wherever the people are to be represented through their agents, it is undoubtedly best that the people should freely and intelligently exercise their choice. But this is one of the offices which calls into requisition higher qualities than what are supposed to constitute the popular man in the community. A fluent tongue, and a knack of getting elected to
court of appeals does represent the people, be- | rated it into the constitution, where it stood cause the judiciary is the check upon that until the days of reform swept it away-bebranch of the government, to prevent their lieving this, it is my candid opinion that if passing illegal and unconstitutional enact- 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.)
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 represeut 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 honest 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;│tion. and it is one of the evidences to show that the appointive system cannot change human 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 fourteen 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 England and incorpo
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 judges 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 popularity to fill the judicial offices. So far as my 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 satisfac
Besides, the people do in fact elect the judges even under that system, for they elect the man who has the appointing 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 people 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 motion of the gentleman from Allegany (Mr. Thruston) ought not to have been withdrawn, because whether you adopt the appointive system or the elective system, there will certainly be judges appointed to fill va