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I can give no new reason for opposition to the election of judges by the people. I have therefore contented myself with furnishing you with what I believe to be the best old reason against the election of judges by the people. I trust that it may be of interest to you.
Under the Constitution of 1861, Judges of the Superior Court were appointed by the Governor, and under the Constitution of 1865 they were elected by the people of the circuits.
Again in the Constitution of 1868 it was provided that their selection should be by appointment by the Governor, and under the Constitution of 1877 they were required to be elected by the General Assembly, and by an amendment to the Constitution of 1877; ratified in 1898, judges were required to be elected by the people.
QUALIFICATION OF MAGISTRATES.
“Every one can see that although the work of legislation is a most important matter, yet if a well ordered city super-add to good laws unsuitable officers, there will be no use in having the good laws. Not only are they ridiculous and useless, but the greatest political injury and evil accrues from them. In the first place, you will acknowledge that those who are duly appointed to magisterial power, and their families, should severally give satisfactory proof of what they are from their youth upward until the time of their election.
THE QUALIFICATION OF THE ELECTORS. “In the next place, those who are to elect should be trained in habits of law and be well educated that they may have a right judgment and may be able to select or reject men whom they approve or disapprove as they are worthy of either. Now when we consider this, how can we imagine that those who are brought together for the first time, and are strangers to one another and also uneducated, can avoid making mistakes in the choice of magistrates ?”
THE EFFECT OF POPULAR ELECTION UPON THE JUDGE. It is the saying of Livy that “It results from the nature of the human mind, that he who addresses the public with a view to his own particular benefit, is studious of rendering himself more generally agreeable than he who has no other object but the advantage of the public".
I repeat, that this is a mild statement of objection to popular election of magistrates, stating the possible reaction of such election upon the officer elected. These are the best reasons for a modern statement of the case that I have been able to discover, and I conceived it the performance of my duty on this occasion to reproduce them. (Applause.)
SHOULD THE SUPREME COURT AND THE COURT
OF APPEALS BE CONSOLIDATED?
The answer involves practical as well as theoretical considerations so intimately interwoven that it is difficult to disentangle them.
The first consideration which presents itself is practical and must be solved from the standpoint of expediency.
The litigants of this State have been educated to a system of cheap appeals with quick results. If the litigant be solvent the cost of appeal is so insignificant that he does not hesitate to incur the expense upon the hazard that the Court having the last say may determine in his favor. If he be insolvent, or solvent, and has an elastic conscience, by a pauper's affidavit he may set the entire machinery of the Appellate Courts into operation and secure the same result of chance and delay as his more solvent and conscientious brother.
These facts present a situation which is fundamental.
Either the number of appeals must be reduced by restriction as to amount, requirements as to printing rec. ords and briefs, adopting other impediments improvised in other jurisdictions; or by furnishing machinery sufficient in amount to grind out the mass of material consequent upon the disagreements necessarily arising among the populace of a rapidly growing and litigiously inclined commonwealth.
The most limited experience with the General Assembly of Georgia will demonstrate that the demand for cheap appeal is so deep seated in the minds of the people of this State that any attempt to abridge it is met not only with sturdy, but with zealous and successful resistance.
The practical condition then is that this commonwealth under its system of cheap and easy appeals has before its Appellate Courts from year to year as many appeals to be disposed of as the States of West Virginia, Virginia, North Carolina and South Carolina together; I have not made an actual count, but I venture to say that a casual review of the tables of cases in the current pamphlets of the Southeastern Reporter will prove that I under, rather than over, estimate the number.
We are therefore confronted with the problem of providing machinery for disposing of this enormous mass of matter.
Under our system of prompt decision the disposition of this material is a mechanical, as well as a practical matter.
Its proper disposition is one of theory.
The first necessity which this condition presents is a Supreme Court. In speaking of a Supreme Court I do not use the term in an arbitrary sense. I mean a Court which is the final arbiter of controversies between litigants. Experience of more than one hundred years teaches not only that expediency requires, but that the people demand a Court, by whatever name called, removed from local influence, which shall be the final arbiter of legal differences.
The next condition follows:
Can a single Court properly function if it has before it the miscellaneous mass of material which our cheap and easy system of appeals produces ?
Until 1896 a single Court of three judges disposed of the appeals from the lower courts. The number of appeals having largely increased, the people by constitutional amendment doubled the number of judges (in passing we might say that this resulted in the creation of two divisions of the Supreme Court, each division nearly approaching a separate court).
In 1906 the number of appeals had so far increased that
it became necessary to establish the Court of Appeals with three judges, the jurisdiction of the Court making it substantially a co-ordinate Supreme Court. By 1915 the number of appeals had so far increased that it became necessary to re-arrange the judicial system by a reorganization of the Appellate System, preserving the Supreme Court as a Court of last resort, and re-organizing the Court of Appeals by adding three judges and dividing it into two divisions, to all practical intents and purposes, two Courts.
Thus far our Appellate System has developed along a definite line of evolution.
The topic under consideration necessarily involves the question as to whether we shall continue by process of evolution or by reversion. Suppose we revert by consolidating the two Courts. We will then have one Appellate Court with twelve judges. How will such a Court function? Experience shows that any Court with an even number of judges will divide into divisions. This is a psychological as well as a physical fact. The Supreme Court of six judges has ever since the increase divided into two divisions of three judges each. Six minds could not meet as quickly as three, hence two divisions. Twelve minds cannot meet as quickly as six, consequently an increase of the Supreme Court with twelve judges will result in four divisions of three each with a machinery so ponderous as to prohibit co-ordination, for the desultory consultations of the entire Court upon the many matters before it could of necessity be no more than mechanical . and ministerial.
This condition would have the practical effect of establishing four Supreme Courts with the annoyance and inconvenience of conflicting decisions, necessarily incident to Courts of co-ordinate jurisdiction having no superintending power above them.
As against such condition what have we now?