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in proportion as ultra-democracy extends its dislocating and disturbing influences; and while “ elevating the military state above the civil” in opinion, will lay the sure foundations of its predominance in real power.
NOTE V. (TO CHAPTER XV.)
The great constitutional check upon the tyranny of majorities (the independence of the judiciary), referred to by Mr. Justice Kent in the following passage, has since, as we have seen, been entirely abolished in more than fivesixths of the individual States, and is threatened in the Constitution of the United States, by the course of events and of public opinion :
"M. De Tocqueville is of opinion, that if the free institutions of America are to be destroyed, it will be owing to the tyranny of majorities driving minorities to desperation. The majority constitutes public opinion, which becomes a tyrant, and controls freedom of discussion and independence of mind.
This is his view of the question, and English writers on the institutions of society in this country have expressed the same opinion. If there was no check upon the tyranny of legislative majorities, the prospect before us would be gloomy in the extreme. But in addition to the indirect checks of the liberty of the press, and of popular instruction, and of manners, religion, and local institutions, there are fundamental rights declared in the constitutions, and there are constitutional checks upon the arbitrary will of majorities, confided to the integrity and independence of the judicial department. M. De Tocqueville seems to be deeply impressed with the
dangers in a democracy, of the corrupting and controlling power of disciplined faction, and well he may be. The most dangerous and tyrannical of all crafts is party or political craft. The equal rights of a minor party are disregarded in the animated competitions for power, and if it were not for the checks and barriers to which I have alluded, this would fall a sacrifice to the passions of fierce and vindictive majorities."*
“ Without independent judges,” says Mr. Justice Story, “ the Constitution would become a democracy with unlimited powers." +
Professor Lieber, in his work above referred to, Civil Liberty and Self-Government,” denounces the practice of the election of judges by the people in the terms which it deserves :
“As to the election of judges by the people themselves, which has now been established in many of the United States, it is founded, in my opinion, on a radical errorthe confusion of mistaking popular power alone for liberty, and the idea that the more the one is increased, in so much a higher degree will the other be enjoyed; as if all power, no matter what name be given to it, if it sways as power alone, were not absolutism, and had not the inherent tendency, natural to all power, to increase in absorbing strength. All despotic governments, whether the absolutism rests with an individual or the people (meaning, of course, the majority), strive to make the judiciary dependent on themselves. Louis XIV. did it, and every absolute democracy has done it.” “Where the people are
I the first and chiefest source of all power, as is the case with us, the electing of judges, and especially their election for a limited time, is nothing less than an invasion of the necessary division of power, and a bringing of the judiciary within the influence of the power-holder."*
* Kent's Commentaries, vol. i. p. 450. † Story, vol. i. p. 482. Edit. of 1853. # Page 184.
Against the practice of electing them for short periods only, and paying them “illiberal salaries,” Professor Lieber directs some strong arguments, tending to prove
that the result, however it may for a time be delayed, must ultimately be the inferiority of the character and abilities of those who occupy the judicial bench, the consequent jeopardy of true freedom, and the loss of that protection which every honest citizen has a right to expect from the upright and able administration of the law.
By chapter 9 of the Acts of Massachusetts, 1843, the Senate and the House of Representatives concurred in reducing the salaries of the principal public officers of the State, and among them, those of the judges of the Supreme Court (together with the State judges): the Chief Justice to 3000 dollars (£600), the Associate Judges of the Supreme Court to 2500 dollars.
In the inaugural address of Governor George N. Briggs for 1844, His Excellency dwells at some length, and with many expressions of public congratulation, on the great progress in wealth made by the small and naturally barren State of Massachusetts, especially in recent years, and he
then turns, “from a sense of official duty,” to the reduction of salaries made by the Act of the previous year. He refers to the 29th Article of the Bill of Rights, which says, that “it is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit;” and accordingly, that " the judges of the Supreme Court should hold their offices as long as they behave themselves well, and that they should have honourable salaries, ascertained and established by standing laws.”
The Governor then proceeds to show, that, “ by the established laws of the Commonwealth,” the above salaries had been respectively 3500 and 3000 dollars, and he argues with great energy, that “permanence in their appointments,” and “honourable salaries,” were both essential to the freedom and impartiality of judges, and that low and inadequate salaries are not “honourable" salaries. Their salaries, he says, had been left unchanged for sixty years, by "more than sixty * different Legislatures."
His Excellency warns the Legislature against the consequences of yielding to this "false economy," and intimates that it has its origin in party feeling and in motives of faction. “When the open and manly champions of equal and just laws sink into the designing advocates of party, and the divided masses range themselves under their selfish leaders,
the morals of the community suffer, and liberty itself is endangered." . . "A majority which uses its power for mere party purposes, and
* Constitution of Massachusetts, March, 1780. First Act passed 28th November, 1780.
disregards the interests and tramples on the rights of the minority, is a despotism. It is no less odious and oppressive because it is wielded by many, instead of one hand.”
In 1853 the salaries of the judges in twenty-one States ranged from 1200 to 2000 dollars (£250 to £400); in five, from 2000 to 3000 dollars ; in four, from 3000 to 6000 dollars; in California, from 2000 to 10,000 dollars.
NOTE VII. (TO CHAPTER XV.)
The excuse which I have commonly heard assigned for the increasing practice of taking away the appointment of judges from the Executive in the individual States, and giving it to the Legislature or to the people, is, that the power of appointment by the Executive was abused for political purposes or personal objects, and that the Executive could not, as a rule, be trusted to make these appointments with fairness, and with a paramount regard to the fitness of the individual for the duties of so important an office.
If this general imputation was unfounded, a great political wrong has been educed from great personal injustice. If it was true, it is a lamentable proof that political intrigue had, in many instances, placed in the position of the Executive of a State, men whose moral qualities rendered them undeserving of that high trust.
But the power of appointing judges is not the only power in reference to the administration of justice, of which it is sought to deprive the Executive in many of the individual States. A strong opinion appears to be gaining