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cancies. I cannot therefore vote to strike out the word "appointment," whatever my views may be with regard to the best system to adopt.
who perhaps may not know how many 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 con sidered proper.
The PRESIDENT. It is to test the sense 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, resignation and removal from office, which meets 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 tested.
Mr. CHAMBERS. I have but a word to say. have heretofore expressed at large my views upon the subject. I have not altered any opinion I entertained since the convention of 1851. But I may be permitted to say that what I considered then as probable, all the mischiefs 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 held, 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.
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, be his opinions upon this question what they may, who would for a moment hesitate, if the house should decide that the court of appeals shall be appointed and the circuit judges elected, to say it is right to make the change in this section necessary to conform to that 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 intimated 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, be
I merely mean now to have my opinion re-lieving that I could attain any ends I might corded as not only unchanged, but confirmed. have in view as well by amendments of secAll the experience I have had is that you tion after section, as the judiciary report have lessened the character of the judiciary; shall be read, as by a minority report. 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 misinterprets 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 certainly adopt a system of appointment, so far as the judges of the court of appeals are concerned. 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 authority is to decide questions of law; the idea 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 reflection upon the qualifications necessary for a judge of the court of appeals,
Although the remark of my friend from Baltimore city who has addressed the convention might at first strike the ear as not 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 learning, than the governor of the State, although it may have seemed to have lit le weight or truth in it; yet reflect: you are to have a man to occupy the bench of one of your circuits. He is either to be chosen by the people or by
the governor. The chances, I presume, of the may be brought into court any day; and selection of a good, and learned, and impar- they know the man who is to decide there tial judge, would depend very much upon the ought to have sound legal learning, ought knowledge which the parties making the to be impartial, fair and just. I verily beselection have of the character and legal abil-lieve that in ninety-nine cases out of one hunities of the party proposed, whether he is to dred they will choose such a man. be appointed or elected. I venture to say that there is not a judicial circuit in the State that has within its limits a man really learned in the law, passionate in the practice of his profession, but what that fact is as notorious to the people of that circuit as any other thing which is a fact.
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 parties, 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 district in which I live, it has been one and the same thing, whether elected or appointed. The present incumbent there has occupied the bench for thirty years. Certainly he has not been re-elected time and again because he was the sort of man to pander to the populace, and to deal with a light hand with crime, rowdyism, profligacy of any sort that came under his judicial notice. It has got to be a saying among the people. who are in the habit of coming into our courts-don't fall into Judge Pryor's hands; if you do he will give you the extent of the law. Why do the people re-elect him? Why have the masses voted for him? Because he was tolerant of popular abuses, rowdyism, drunkenness, rioting, and everything of the sort. No, sir; that is not the secret of the matter; it is because the people who have elected him once and again, have observed for many years his conduct as a judge, and they have faith in his legal learning, faith in his integrity, and know he is just the man to whom they can safely intrust their interests; and the consequence has been that he is now filling by appointment and by election, his third term in that service.
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 hardly 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 knowlter 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 Mr. NEGLEY. I do not intend to say much of his political friends? That is the amount upon this matter, but I am inclined to favor of the governor's knowledge of the man; the amendment of the gentleman from Baltiwhile the knowledge the people possess con- more city (Mr. Abbott.) I do not believe cerning him is that which has grown up that the operation of the elective system of perhaps from an experience of twenty or the judiciary of Maryland for the last fourthirty years' active professional service in teen years has been found to depreciate the the community. 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
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
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 appeals, because they preside over his cases 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.
A State officer is the servant of the entire people of the State, and the entire people of the State have an equal interest in his selection. So I am really on principle inclined to favor the election, both of judges of the court of appeals, and of judges of the district courts. I believe it would be most hazardous to attempt to take away this right of selection from the people.
Is it not a notorious fact that a man can go into any judicial district in the State of Maryland, 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 he 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 legislature, of whom not five men, three men, and perhaps not one man out of the county will know anything about the party to be appointed. The governor and the legislature must rely upon information obtained from others, from the delegates or senator from the county, or they must rely upon personal representations made to them as to the fitness of the party who asks for the office.
I am one of those who are willing to trust the honesty of the people in the selection of their officers at all times. There is just as much corruption, just as much wire-pulling, just as much personal preference in the selection 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 results. 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.
Gentleman in this convention have been speaking much about the apprehension that they might do something to jeopardize the adoption of this constitution. In my humble judgment you cannot more effectually jeopardize the adoption of this constitution than 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, having exercised without any dissatisfaction to 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
ferred higher honor upon his office, either in the court of appeals or on the lower bench, than the justice of the superior court of Baltimore city, Judge Martin.
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 him. But I am decidedly opposed to appointing the court of appeals or the circuit judges; and I shall therefore vote for the amendment. 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 There is another reason for my vote. This of my vote in the convention of 1850, to make is a very important movement. Neither my this system an elective system. In that respect people nor the people at large have ever been my experience differs from that of the gentle- consulted. upon this subject When we were man from Kent (Mr. Chambers.) My experi-sent here as members of this convention, this ence has not assured me that we have lost any-question was not raised before our constituthing from the change; but on the contrary in ency. I hold that I have as much a duty to the judicial district in which I reside my experi- perform to represent my constituency here, as ence has been that we have gained by the if I were in a legislative body. It is my duty to change. 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 system. they held.
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 is true they have been unfortunate in it would probably be the only tenable system. Baltimore city; but it was in the inception of Since I find some of our friends upon the the system when Baltimore city had the mis- other side in favor of an appointive system, fortune to make a selection which probably being very glad to find that it is so, I now they would not have made under a larger ex- say that I am an advocate of the appointive perience. At present the bench of Baltimore system, and will vote for it. 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
me to lose sight of a very important consider- | of Dorchester, Smith, of Worcester, Swope, ation; that in the election of an officer by Thomas, Turner, Wickard, Wooden-51. the large mass of the people, there is no means of fixing the responsibility of the incumbent upon anybody. It is divided among the whole mass of voters; whereas in the appointive system the governor himself is held responsible. The court will, therefore, always be more carefully selected from men suited to the place.
Mr. DAVIS, of Washington said: My vote on this question indicates my individual preference. At the proper time I shall with a great deal of pleasure vote to allow Baltimore city such a system as will suit them best. But with reference to the system for the whole State, I vote "aye."
Mr. STIRLING Said: I do not vote upon this question with any reference whatever to the question of the elective or appointive judiciary; but I think this word ought not to be
be, that the judiciary should be as far removed from the people as compatible. What I mean is this; that there should be no judge placed in such a position or condition that his sup-stricken out, no matter what the convention porters or friends can claim that he should intends to do; and I therefore vote “no.” yield to them a favor which he would not grant to a stranger.
The amendment was accordingly agreed to. Mr. THRUSTON. I move to amend this section by inserting after the word "election," the words "or appointment."
Besides, our government is not a pure democracy. It is not even so far a democracy that the people have a right to elect. It is a representative democracy, it is true; but it has conservative elements in it as well. One of these conservative elements is and should
It is absolutely certain, since judges are but men like all the rest of us, that if there be a highly influential individual in the county or the district, who has zealously supported the individual as a judge, it is natural that that judge should have a leaning towards him and his interests, whereas a judge ought not to know anybody. It would often happen in the election of judges by the people that the most popular man was by far the least qualified for the place. In fact, it is well known that some of the very best men, the men best suited for such a place as judge of the court, would perhaps obtain the fewest possible votes. Instead of pushing himself, and endeavoring to secure votes, probably the most suitable man would be a man who would shrink from being dragged before the public and made a candidate for their suffrages.
It is for these reasons, briefly stated, that I shall advocate the appointive system. I have no objection in the world to exercising every right in voting which I think would conduce to the public good. But as it has well been suggested the office of judge is not a representative office. He ought to stand aloof, far above any communication or political affinity with anybody in his district. These are my reasons for supporting the appointive system, and I shall do so with a great deal of pleasure. The question being taken, the result was yeas 51, nays 19-as follows:
Nays-Messrs. Berry, of Baltimore county, Bond, Brown, Chambers, Daniel, Earle, Hopper, Jones, of Cecil, Lansdale, Miller, Mullikin, Parker, Pugh, Russell, Stirling, Stockbridge, Sykes, Thruston, Todd-19. When the names were called,
Yeas-Messrs. Goldsborough, President; Abbott, Annan, Audcun, Billingsley, Blackiston, Carter, Crawford, Cunningham, Dail, Davis, of Charles, Davis, of Washington, Dellinger, Dent, Duvall, Ecker, Edelen. Galloway, Harwood, Hodson, Hopkins, Jones, of Somerset, Keefer, Kennard, King, Lee, Marbury, Markey, Mayhugh, McComas, Mitchell, Morgan, Murray, Negley, Nyman, Parran, Peter, Purnell, Ridgely, Robinette, Sands, Schley, Schlosser, Smith, of Carroll, Smith,
Mr. THOMAS. What is the object of that amendment, I would ask the gentleman? Mr. THRUSTON. I think the object is very apparent. If we adopt an elective system of judiciary, then in case of vacancies there must be appointments made by the governor for the rest of the term so vacated, or until an election can be held. And the obj ct of my amendment is to provide that the same qualifications shall be possessed by the persons who are appointed to these offices, that are possessed by those who are elected to these offices.
Mr. THOMAS. If that be the object of the amendment, there is a section in the present constitution, which I will submit at the proper time, and which will provide for the very same thing which the gentleman desires to provide for. It is the section in relation to vacancies occurring in consequence of death, resignation, or disqualification of judges. I do not think this is the proper place for this provision, and therefore I shall vote against the amendment now offered.
Mr. STIRLING. The convention has emphatically determined in favor of an elective judiciary, and we may as well make all necessary provisions as we go along. unless you make some such amendment as that proposed by the gentleman from Allegany (Mr. Thruston,) the governor can appoint to fill a vacancy a man who has not resided in the State one day.
Mr. THOMAS. I submit that the better way would be to provide by a separate and distinct section, in relation to vacancies caused by death, resignation, or otherwise, and not mix it up with a section which provides for the election of these officers.
Mr. STIRLING. You are fixing the qualification about residence now.