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years of age, are rendered naturally incompetent, both in mind and body, to discharge the judicial functions. It is assumed, that according to the ordinary course of nature, the mind is weak and unsettled at that age,—that its light burns with a faint and sickly flame, or hangs fitfully and tremblingly over its socket, if indeed it be not quite extinguished. If this really were a universal rule, or if it were sufficiently general to approximate to a universal rule, there could scarcely be found an individual who would undertake to oppose for a moment the contemplated change in our judicial tenure;--for Judges were created certainly for the immediate interest of communities, and when they fail to subserve this purpose, they should not be allowed to occupy situations which might enable them to do irreparable mischief. The present, however, is one of those matters, in which, above all things, we should not act hurriedly or unadvisedly. We should pause awhile and reflect, that we would be depriving ourselves of the advantage of the matured wisdom and experience of such men as Chief Justice Marshall, Mr. Justice Story, Mr. Chancellor Kent, and others, by the operation and terms of so sweeping and indiscriminating a rule as that which has been proposed. It is true we have precedent, in this respect, furnished us by several of the States of the Union,-Maine, New Hampshire and Connecticut have severally limited the tenure to the period of seventy years, and the Judges of the Supreme Court and of the inferior Courts of Common Pleas of the several counties of New Jersey, are only suffered to enjoy their office for the space of seven years. There are, however, other sections of the Union, in which, as with us at present, the only tenure is that of good behaviour. The States of Pennsylvania, Delaware, Maryland, Virginia and Kentucky, for a long series of years have experienced no disadvantage from this feature of their Constitution, and would show that this panic exists nowhere but in the imagination. Indeed, we all naturally look upon old age as the period of wisdom. We reflect that at that time of life, our reason is not blinded by our passions,—that the general temperament is more calm and sober and equable. The ancients justly regarded it as a season of life peculiarly entitled to reverence and authority. It has been said, Temeritas est videlicet florentis ætatis, prudentia senescentis. * With regard to the opinion, that a
. Cic. de Senec., cap. 6.
man of advanced years is incompetent to discharge the duties of a public station, we will beg leave to make use of some historical facts and biographical reminiscences, which may perhaps induce us to speak less disparagingly of this period of life. It is related, that among the Lacedemonians those who had filled the highest magistracies, as they actually were, so they were styled old men. The same author goes on to say, that, with regard to foreign States, it will invariably be discovered that they have been ruined by the young, and sustained by the wisdom and experience of the old. Again,-whatever space of time was appointed to elapse before the commencement of the period of old age,
the career of honours was always commensurate, and its extreme was more enviable than any intermediate portion, in this respect, that more authority and less labour was awarded it. But the summit of old age was ever crowned with supreme authority. It is said of Paulus, Africanus and Maximus, that not only were their sentiments and opinions entitled to the greatest weight and authority, but even the very nod of their heads was pregnant with wisdom. And we cannot but admire the prudence of the Grecian general's prayer, that he might have ten such sons as the wise old Nestor, instead of the vigorous Ajax, for he did not doubt that such a circumstance would seal the fate of Troy. With regard to the question, therefore, whether or not the mental faculties are impaired by age, we apprehend that no general rule advocating the affirmative can be laid down, which does not conflict with philosophy and experience. There is no man who will undertake to say that there exists so intimate a connection between the mind and the body, that the one is necessarily affected by the decrepitude of the other. We do not deny that this is the case with some individuals, especially such as have not had the advantage of education and mental cultivation. Our modern treatises on insanity abound with instances of bodily ailments disordering the faculties of the mind, but the case we are at present considering is that of men who are only objected to in consequence of a natural incompetency to discharge their usual duties, which time is supposed to induce. We have said before that no general rule could be prescribed with regard to this matter; for let us look for a moment at the ordinary occupations of life, which require no unusual mental capacity,—will any one say at what time a man should stop business. Have we not frequently seen men
far advanced in years, presenting to the rising generation the most admirable and instructive lessons of unremitting industry. How often have we listened to the familiar but truthful saying, that an individual is just fit to commence the world when he is going out of it! Have we any thing at all to justify our belief, that the mind necessarily wanes with the body ? On the contrary, does not Bishop Butler insist upon the circumstance, that on the bed of sickness and of death, the mind is frequently clear and unclouded, as a practical refutation of materialism, and a convincing proof of the soul's immortality.
It is said of Cyrus, according to Xenophon, that in his last moments, being then at a very advanced stage of life, he remarked, that he was never able to perceive that his old age was in any degree more imbecile than his youth. And we read, moreover, of a certain Appius, who, although old and blind, conducted his affairs with wonderful success, and commanded universal respect and adıniration. Did old age dampen the ardor and enthusiasm for their studies, in the bosoins of Homer, Hesiod, Simonides, Stesichorus, Isocrates, Georgias, or those princes of philosophers, Pythagoras, Democritus, Plato, or Xenophon, or after them, Zeno, Cloanthus, or the stoic Diogenes?'We frequently find, that far from languishing and decaying, a prudent old age is busy in adding to its previous knowledge. Solon prided himself on his verses, and boasted that though stricken in years, he continually increased his store of information ; and Cato Major says of himself, that in his old age, he commenced the study of the Greek, which he seized upon with all the eagerness of one desirous of satisfying a daily thirst,—that when he heard Socrates perform upon the lute, he was desirous of trying the same instrument also. We have the same authority for the position, that extreme bodily vigor is not indispensable to the efficient discharge of the highest and most important duties, and such as require the most patient and laborious exercise of the mind. In labours of this description, he says, “I experience no great necessity for bodily strength. I seek the society of my friends, and frequently visit the senate chamber, and there of my own accord propose measures re. quiring long and serious meditation, but these I defend with the faculties of my mind rather than the body." The same author passes a beautiful eulogy upon this period of man's life. We cannot, he says, all be Scipios or Maximi, and
call to mind our storming of cities, our numerous engagements by sea and land, our wars and triumphal honors. There is beside all this, a placid and tranquil old age, consequent upon a properly spent youth; such for instance as we hear, was that of Plato, who wrote at his eighty-first year ; or that of Isocrates, who informs us that he composed the work, entitled Panathenaicus, in the ninety-fourth year of his age, and lived for the space of five years after, whose master Leontinas Georgias, completed his hundred and seven years, and did not relax in any degree in his labors; and when he was asked by his pupil
, how he could possibly wish to live so long, replied that he was unable to find any fault whatever in old age. It is therefore not altogether correct to say, that at this period, we are not fit for the discharge of the responsible duties of life; we might with equal propiety, deny the usefulness of the pilot to the labouring vessel, who, whilst some are climbing the masts, others running along the deck, and others busy at the pumps; sits quiet at the stern with helm in hand. He does not, indeed, perform the same duties as the more youthful, but fur greater and more important duties. These matters which are really great, are accomplished not so much by the strength and activity of the body, as by the wisdom and experience of the mind, of which, old age so far from being deprived, usually abounds. At this period of life, we cerlainly are unfit for engaging in the jostling occupations of the world; and these, together with the ordinary pleasures and amusements, present but little attraction ; but gravity and authority, as consequent upon presumed wisdom, have ever belonged peculiarly to this season.
We have thus far noticed the objection, that the individual who is advanced in years, is necessarily incapacitated from the proper discharge of his duties, in consequence of that circumstance. We have seen the sentiments of one of the most learned and philosophic minds of antiquity, on the subject, a mind that must ever command the admiration of the world, for its profound and varied acquirements; its extensive observation, and intimate acquaintance with human nature in all its phases; as well as for the ethical precepts it has inculcated; which as a code of natural justice and inorality, although originating from the light of unaided reason, constituted the most unexceptionable rule of human action.
We would not be supposed to believe, that cases might
not occur, where the removal of a Judge from office in consequence of a debilitated intellect, would be highly necessary. We only suggest, that in our humble opinion, no general rule can be laid down, which would not be almost as prejudicial as beneficial in its operation, and banish the matured wisdom of the sage, equally with the drivelling nonsense of the dotard. We are told by Cato Major, that at the very age, when it is supposed the mental powers are declining, with a firm voice and unabated strength, he advocated the Vocenian law. When therefore, such mischief is to be apprehended from the operation of the general rule, we should pause and consider, whether so rigorous a measure was by any means indispensable. Besides, we should bear in mind, that the Judicial honors are of the highest dignity; and that distinguished abilities are not to be made use of and carelessly laid aside, whenever it pleases us to suppose them no longer serviceable. We should reflect, that such treatment could scarcely be otherwise, than prejudicial to the Bench itself; for we would simply ask, with the author of the Letters with which we have headed our article, what member of the Bar, qualified by learning and ability to be raised to the Bench, and enjoying a lucrative business, would accept the appointment of Judge, when he was liable to be removed from office at sixty-five years of age, with the legal intendinent that he was an imbecile, and unequal to the discharge of his official duties. What authority or influence would a Judge have over the Bar, or what respect in the eyes of the community at large? Suppose for instance, that he was a poor man, with the cares and responsibilities of a numerous family, what must he do after his return from office? Return to the Bar ? Would such a practice, if established, have the effect of rendering him an independent character? We doubt it very much indeed. There always necessarily exists a well recognized line of demarcation between the Bench and the Bar, and it is perfectly correct it should be so; but under the state of things alluded to, the fear of the ridicule of the jealous and disappointed among their former associates, the consciousness of the comparative insignificance of their "little brief authority,” operating upon their minds, together with the natural bias of their feelings towards those, whose fuiure favors, they hoped to conciliate, should make us doubt the policy of the proposed change. There is an old and vulgar, but 34
VOL. VII.—NO. 14.