SPEECH ON THE JUDICIAL TENURE.

DELIVERED IN THE MASSACHUSETTS STATE CONVENTION, JULY 14, 1853.

It is not my purpose to enter at large on the discussion of this important subject. That discussion is exhausted; and if it is not, your patience is; and if not quite so, you have arrived, I apprehend, each to his own conclusion. But as I had the honor to serve on the committee to whom the department of the judiciary was referred, I desire to be indulged in the statement of my opinions, abstaining from any attempt elaborately to enforce them.

I feel no apprehension that this body is about to recommend an election of judges by the people. All appearances; the votes taken; the views disclosed in debate; the demonstrations of important men here, indicate the contrary. I do not mean to say that such a proposition has not been strenuously pressed, and in good faith; yet, for reasons which I will not consume my prescribed hour in detailing, there is no danger of it. Whether members are ready for such a thing or not, they avow, themselves, that they do not think the people are ready.

What I most fear is, that the deliberation may end in limiting the tenure of judicial office to a term of years, seven or ten; that in the result we shall hear it urged, “as we are good enough not to stand out for an election by the people, you ought to be capable of an equal magnanimity, and not stand out for the present term of good behavior;" and thus we shall be forced into a compromise in favor of periodical and frequent appointment, — which shall please everybody a little.

I have the honor to submit to the convention that neither change is needed. Both of them, if experience may in the least degree be relied on, are fraught with evils unnumbered.

To hazard either, would be, not to realize the boast that we found the capitol, in this behalf, brick, and left it marble; but contrarywise, to change its marble to brick.

Sir, in this inquiry what mode of judicial appointment, and what tenure of judicial office, you will recommend to the people, I think that there is but one safe or sensible mode of proceeding, and that is to ascertain what mode of appointment, and what length and condition of tenure, will be most certain, in the long run, guiding ourselves by the lights of all the experience, and all the observation to which we can resort, to bring and keep the best judge upon the bench--the best judge for the ends of his great office. There is no other test. That an election by the people, once a year, or an appointment by the governor once a year, or once in five, or seven, or ten years, will operate to give to an ambitious young lawyer (I refer to no one in this body) a better chance to be made a judge -as the wheel turns round-is no recommendation, and is nothing to the purpose. That this consideration has changed, or framed, the constitutions of some of the States whose example has been pressed on us, I have no doubt. Let it have no weight here. We, at least, hold that offices, and most of all the judicial office, are not made for incumbents or candidates, but for the people; to establish justice; to guarantee security among them. Let us constitute the office in reference to its ends.

I go for that system, if I can find it or help find it, which gives me the highest degree of assurance, taking man as he is, at his strongest and at his weakest, and in the average of the lot of humanity, that there shall be the best judge on every bench of justice in the commonwealth, through its successive generations. That we may safely adopt such a system; that is to say, that we may do so and yet not abridge or impair or endanger our popular polity in the least particular; that we may secure the best possible judge, and yet retain, aye, help to perpetuate and keep in health, the utmost affluence of liberty with which civil life can be maintained, I will attempt to show hereafter. For the present, I ask, how shall we get and keep the best judge for the work of the judge?

Well, Sir, before I can go to that inquiry, I must pause at the outset, and, inverting a little what has been the order of

investigation here, ask first, who and what is such a judge; who is that best judge? what is he? how shall we know him? On this point it is impossible that there should be the slighttest difference of opinion among us. On some things we differ. Some of you are dissatisfied with this decision or with that. Some of you take exception to this judge or to that. Some of you, more loftily, hold that one way of appointing to the office, or one way of limiting the tenure, is a little more or less monarchical, or a little more or less democratic than another and so we differ; but I do not believe there is a single member of the convention who will not agree with me in the description I am about to give of the good judge; who will not agree with me that the system which is surest to put and to keep him on the bench, is the true system for Massachusetts.

In the first place, he should be profoundly learned in all the learning of the law, and he must know how to use that learning. Will any one stand up here to deny this? In this day, boastful, glorious for its advancing popular, professional, scientific, and all education, will any one disgrace himself by doubting the necessity of deep and continued studies, and various and thorough attainments, to the bench? He is to know, not merely the law which you make, and the legislature makes, not constitutional and statute law alone, but that other ampler, that boundless jurisprudence, the common law, which the successive generations of the State have silently built up; that old code of freedom which we brought with us in the Mayflower and Arabella, but which in the progress of centuries we have ameliorated and enriched, and adapted wisely to the necessities of a busy, prosperous, and wealthy community, that he must know. And where to find it? In volumes which you must count must count by hundreds, by thousands; filling libraries; exacting long labors,―the labors of a life-time, abstracted from business, from politics; but assisted by taking part in an active judicial administration; such labors as produced the wisdom and won the fame of Parsons and Marshall, and Kent and Story, and Holt and Mansfield. If your system of appointment and tenure does not present a motive, a help for such labors and such learning; if it discourages, if it disparages them, in so far it is a failure.

In the next place, he must be a man, not merely upright, not merely honest and well-intentioned, this of course, — but a man who will not respect persons in judgment. And does not every one here agree to this also? Dismissing, for a moment, all theories about the mode of appointing him, or the time for which he shall hold office, sure I am, we all demand, that as far as human virtue, assisted by the best contrivances of human wisdom, can attain to it, he shall not respect persons in judgment. He shall know nothing about the parties, everything about the case. He shall do everything for justice; nothing for himself; nothing for his friend; nothing for his patron; nothing for his sovereign. If on one side is the executive power and the legislature and the people, the sources of his honors, the givers of his daily bread, and on the other an individual nameless and odious, his eye is to see neither, great nor small; attending only to the "trepidations of the balance." If a law is passed by a unanimous legislature, clamored for by the general voice of the public, and a cause is before him on it, in which the whole community is on one side and an individual nameless or odious on the other, and he believes it to be against the Constitution, he must so declare it, or there is no judge. If Athens comes there to demand that the cup of hemlock be put to the lips of the wisest of men; and he believes that he has not corrupted the youth, nor omitted to worship the gods of the city, nor introduced new divinities of his own, he must deliver him, although the thunder light on the unterrified brow.

This, Sir, expresses, by very general illustration, what I mean when I say I would have him no respecter of persons in judgment. How we are to find, and to keep such an one; by what motives; by what helps; whether by popular and frequent election, or by executive designation, and permanence dependent on good conduct in office alone we are hereafter to inquire; but that we must have him, that his price is above rubies, that he is necessary, if justice, if security, if right are necessary for man, all of you, from the East or West, are, I am sure, unanimous.

And finally, he must possess the perfect confidence of the community, that he bear not the sword in vain. To be honest, to be no respecter of persons, is not yet enough. He must

be believed such. I should be glad so far to indulge an old fashioned and cherished professional sentiment as to say, that I would have something of venerable and illustrious attach to his character and function, in the judgment and feelings of the commonwealth. But if this should be thought a little above, or behind the time, I do not fear that I subject myself to the ridicule of any one, when I claim that he be a man towards whom the love and trust and affectionate admiration of the people should flow; not a man perching for a winter and summer in our court-houses, and then gone forever; but one to whose benevolent face, and bland and dignified manners, and firm administration of the whole learning of the law, we become accustomed; whom our eyes anxiously, not in vain, explore when we enter the temple of justice; towards whom our attachment and trust grow even with the growth of his own eminent reputation. I would have him one who might look back from the venerable last years of Mansfield, or Marshall, and recall such testimonies as these to the great and good Judge:

"The young men saw me, and hid themselves; and the aged arose and stood up.

"The princes refrained talking, and laid their hand upon their mouth.

"When the ear heard me, then it blessed me, and when the eye saw me, it gave witness to me.

"Because I delivered the poor that cried, and the fatherless, and him that had none to help him.

me,

"The blessing of him that was ready to perish came upon and I caused the widow's heart to sing for joy.

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"I put on righteousness and it clothed me. My judgment was as a robe and a diadem. I was eyes to the blind, and feet was I to the lame.

"I was a father to the poor, and the cause which I knew not, I searched out.

"And I brake the jaws of the wicked, and plucked the spoil out of his teeth."

Give to the community such a judge, and I care little who makes the rest of the constitution, or what party administers it. It will be a free government, I know. Let us repose, secure, under the shade of a learned, impartial, and trusted magistracy, and we need no more.