(1.) Laws prohibiting judges from charging or commenting upon matters of fact.

(2.) Laws requiring all charges to be in writing.

(3.) Laws requiring the judge to give such instructions, and such only, as have been submitted to him by counsel, either with or without modification.

(4.) Laws requiring the court, at the request of counsel, to submit special questions to the jury, to be answered in addition to their general verdict.

193. The Judiciary as the Guardian of Private Rights*

The importance of the judiciary as the guardian of fundamental private rights against encroachments on behalf of special interests was fully discussed in the Maryland constitutional convention in 1851, and during the debate one of the delegates made this argument:

popular con

Now, sir, paradoxical as it may seem to some, I propose to show Dangers in that there is at least as much reason for making the judge indepen- trol of the dent of the people in this country, as there is in England for making judiciary. him independent of the crown. But at every point we are met with the notion, that the people have all power, and ought therefore to have control over the Judiciary. Sir, if the people have power to do wrong, it is the very purpose of government to restrain its exercise; for the only object which men can propose to themselves, by entering into such an association as civil Society, is to secure to themselves the enjoyment of their rights, and protect themselves against wrong. Are the eternal and immutable laws of justice less imperative, upon men when assembled, in large bodies, than they are when acting individually? Masses are but individuals. in combination; and the laws which enjoin the observance of justice, and prohibit violence, or the practice of fraud, are as obligatory in the one case as in the other. Like the Being, from whom they emanate, the Rules of truth and equity are the same to-day, yesterday, and forever. In them "is no variableness, neither shadow of turning."

The judi

ciary to protect fundamental rights.

The judiciary to stand above con

flicting interests.

Why judges should not be elected.

It is obvious, then, in any just view of the matter, that it is our duty to adopt such measures as the faithful execution of the laws requires; and such as will secure to the people their rights of person, of property and of reputation. These are the rights which society and government are instituted to protect, and it is suicidal to maintain for the people, or for the government, a right to destroy or disturb them.

Each portion of the whole has its respective and often divers interests in other words, its wants. The mercantile interest may be greater or less than the agricultural, or those who are laborers may be fewer in number than those who are not; yet each has an undoubted claim to the care and protection which his interests require. And so it is with all portions; but it is emphatically the case with the feeble and the destitute, who have smaller means in every respect to protect themselves, and can look nowhere but to the law and its administrators for protection. Now, then, if all this be as I have stated, it is manifest that your laws must be free of access to all, equal to all, and certain for all. To have them administered with a halting, hesitating step to let them bend one way for this man, another for that, can but encourage, and must sometimes sanction, the doings of the wicked or the passionate or prejudiced, while it will necessarily alarm and discourage and often ruin the victim.

194. The Method of Selecting Judges *

Perhaps no ideal method of selecting judges has yet been devised, but the difficulties of reaching a wise conclusion are indicated by the following passages from a debate in the New York constitutional convention of 1846:

MR. STOW. It has been said that the people have already distinctly decided that judges should be elected directly by their votes. I do not consider that this is so; I do not believe the people have said any such thing, and moreover, I think that the people would be very slow to come to this decision; and that they would pause a great while and deliberate long and cautiously before they made

this great change in a fundamental principle of the government. I do not believe any mere majority of the people either by a direct vote or through their representatives should create the judiciary of the State; the minority (for whose benefit this branch is established perhaps more than for any other) should have a decided voice in the matter; they should be heard. And I hope the people will bear in mind the wide and decided distinction between the executive and legislative powers, and the judiciary. A majority elect the legislature and executive; and the reasons for this are very obvious. But a very different mode of selecting the Judges should be adopted. They are as the shield of the minority, to protect from the oppression (if tried) of the majority.

to elect.

MR. PATTERSON. I am not, for one, prepared to say that the The people competent people of this State are incompetent to elect the judges of their courts. I believe that they are as capable of doing this, as of electing a President or Vice-President of the U.S., or a Governor or Lieutenant-Governor of the State of New York, or any other State. I am opposed to having the judiciary a mere political machine; I want to strip the power of appointing the judges at once and entirely, from the executive; and I will not consent that this power, which has been left in the Governor's hand for 25 years, shall be left there any longer.

How are these judges appointed at present? The Constitution truly confers that power on the Governor and Senate; but do they exercise it, in reality? Certainly not. The judges of county courts are not thus appointed. Practically, they are appointed by a caucus; and this is held in the county where the judges are to officiate; the people there get together in a caucus; make nominations for the office of judges, and then send these names in to the Governor. Well, who ever knew a Governor to refuse to send in these very names to the Senate, to be confirmed? And when have we had a Senate that refused to confirm these caucus nominations, sent to them thus through the Governor? When one political party has the executive, then their friends follow this

Politics in

appoint

ments.

A political joke on the governor.

The English and American systems compared.

plan, and their men are appointed; and so it is when the other party is in power; they make the caucus nominations, and that is, in reality, an appointment.

I remember the case some years ago — in 1834 — (I have told the story to another and smaller body than this, and in this city) — some persons got together, in Franklin county and resolved themselves into a Democratic Republican County Convention. Mr. A. B. was made chairman, and Mr. C. D., Secretary; and after a while it was declared unanimously that Messrs. E. F. and G. H. had a majority of all the votes then present at this great county convention, and they were then unanimously recommended therefore to Governor Marcy for nomination to the Senate. The proceedings came down to him headed, "Proceedings of the Democratic Republican County Convention of Franklin," &c., and so on; and Governor Marcy, seeing the words "Democratic Republican," naturally supposed surely they were all right; that was strong enough recommendation, in all conscience, for him; and so he sent in these two names to the Senate, and they were confirmed. And it turned out afterward, upon inquiry, that they had thus appointed a couple of Whigs, instead of a couple of Democrats. (Much laughter.) And this is a practical illustration of the mode of appointing these judges that has been in operation over 20 years.

MR. BASCOM. The present mode of appointment by the Governor and Senate has received too general popular condemnation and has in my judgment been attended with such results as not to justify its continuance. The judgment and feeling not only in the Convention but throughout the State is against it. The idea is fast being abandoned that any portion of the public servants should enjoy independence of the people whose interests they have in charge, whose business they transact, whose rights they protect or disregard. The idea of the necessity of judicial independence in England is entirely different from that conveyed by the use of the term here. In England, the term means an independence of

the crown, and to preserve it the life tenure of the judges was adopted, while here the advocates of judicial independence are the opponents of judicial responsibility to the people. But we require no such independence here, but rather that mode of selection that shall secure the honest discharge of official duty, by the most direct responsibility.

We have had appointed judges under the present constitution. Appointed judges not How has the system worked? How in your counties, has it been above petty successful in securing the best integrity and ability? Has it even politics. worked well in regard to the judges of your higher tribunals? When was your State more deeply humbled and disgraced, than when the judges of one of your highest courts chaffered on the bench for places of profit within their own power of appointment, when the junior became the chief, when the glitter of small change had greater charms in the eyes of the seniors than the purity of judicial ermine, and they went down to clerks' stools to put lawyers' papers into pigeon holes and keep the dust off them for six cents apiece? These were your appointed judges.

But I have an objection to long terms. I believe as firmly as any one, that in general, this mode of selection would be successful, but it would not always be so. The public ear might be sometimes abused, and incompetent or improper men be placed upon the bench, and I would afford a reasonably frequent opportunity of correcting such mistakes as should be made. Eight or ten years term is proposed by some, but I cannot see the propriety of making the judicial term four or five times as long as the gubernatorial or senatorial term. It would not give the opportunity that ought to be afforded for correcting the mistakes that might be made.

195. Roosevelt on the Recall of Judicial Decisions

In his speech delivered before the Ohio constitutional convention on February 21, 1912, Mr. Roosevelt advanced his plan for the recall of judicial decisions. These extracts are from his speech on this occasion.

The reasons

for short

terms.