the effect of hasty legislation, and of unjust and partial laws. Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in our courts, as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And everybody must feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.”*

Again, laws necessarily become numerous, and

"To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them."

To acquire a competent knowledge of these laws and precedents, demands long and laborious study.

"Hence it is that there can be but few men who will have sufficient skill in the laws to qualify them for the stations of judges. . . . These considerations apprise us that the Government can have no great option between fit characters; and that a temporary duration in office, which would naturally discourage such characters from quitting a

lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified to conduct it with utility and dignity."*

Also:

"It is obvious that, under such circumstances, if the tenure of office of the judges is not permanent, they will soon be rendered odious; not because they do wrong, but because they refuse to do wrong; and they will be made to give way to others, who shall become more pliant tools of the leading demagogues of the day. There can be no security for the minority in a free government, except through the judicial department. In a monarchy, the sympathies of a people are naturally enlisted against the meditated oppressions of their ruler; and they screen his victims from his vengeance. His is the cause of one against the community. But in free governments, where the majority, who obtain power for the moment, are supposed to represent the will of the people, persecution, especially of a political nature, becomes the cause of the community against one. It is the more violent and unrelenting, because it is deemed indispensable, to attain power, or to enjoy the fruits of victory. In free governments, therefore, the independence of the judiciary becomes far more important to the security of the rights of the citizens, than in a monarchy; since it is the only barrier against the oppressions of a dominant faction, armed for the moment with power, and abusing the influence acquired

under accidental excitements, to overthrow the institutions and liberties which have been the deliberate choice of the people."

The above facts and reasonings are so elementary and familiar, in relation to our constitutional system, that the extracts may have been found somewhat tedious; but they are of importance when it is considered how little effect such judicious expositions of great principles and such earnest and solemn warnings have had, in preventing the wide and growing adoption in the United States of the very practice thus denounced.

When Mr. Justice Story's work was published (in 1833), only five out of the twentyfour States then existing had adopted the principle of submitting the judges to the ordeal of an election, and appointing them for a term of years.

Eleven years later Mr. Justice Kent, in his Commentaries, published in 1844, enumerates twelve States out of the then number of twentynine, in which all the judges were subjected to

the principle of election, and all appointed for terms of years, varying from two and three to seven and eight, and in one instance only for as many as twelve years.

At present (1853) the elective principle in the appointment of judges, and their appointment for short periods, prevails in twenty-two out of the thirty-one States of the Union. In three others the elective principle has been adopted, but the term is during good behaviour; and in two others they are appointed for a term of years by the Governor.

Such an extensive and absolute departure from, and repudiation of principles that have been held by all the public writers and all the statesmen of the civilised world, to be the very foundation of true liberty, and even of the security of life and property, is a phenomenon which, occurring as it has in so short a time, and among a people so versed in free discussion, must be regarded as among the most extraordinary events in constitutional history. Doubtless it has its point of view from which, under peculiar circumstances, its advocates

have derived their confidence in justifying and maintaining it; and to this I shall take occasion to advert in a note. The fact itself cannot be otherwise than one of the most pregnant importance, and its consequences, though they may be slow in developing themselves, will not be the less certain.

The practice in the different States, in 1844, is described by Mr. Justice Kent, in vol. i. p. 294, of his Commentaries, and may be condensed as follows. At that time (as at present), among the older and more settled States of the Union,

"Connecticut, though she appointed the judges of her Supreme Court, and of the Superior Court, during good behaviour, required all other judges to be appointed annually, by the concurrent vote of the Senate and House of Representatives.'

"Vermont elected all her judges annually by the General Assembly.

"Rhode Island, up to the year 1843, elected all her judges annually, but in that year, by an alteration in her Constitution, the judges of the Supreme Court were directed to be elected by the Legislature, during pleasure; all the other judges to be elected for one year.

"New Jersey and Ohio appointed their judges of the Supreme Court and of the Circuit Courts for seven years.