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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."*
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." jority 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
ground, that it will be expedient also to deprive them of the power of pardon.
Dr. Lieber, at p. 164 of his work above quoted, thus expresses himself on this subject :
• The only case in which our executives have a real vetitive [?] power, is the case of pardon, and most unfortunately it is used in an alarming degree, against the supremacy of law and the stability of right-both essential to civil liberty. I consider the indiscriminate pardoning so frequent in many parts of the United States, one of the most hostile things now at work in our country to a perfect government of law. In the only case, therefore, in which we have a real veto power, we ought greatly to modify it.”
He pursues this question in a paper written by himself, and published by the Legislature of New York, and which he gives in his Appendix.* In this paper
into much detail with respect to the facts in the various States, the opinions of many persons of authority regarding them, and the suggestions made for some alterations which might guarantee the community against so serious an abuse. Also, after referring to the work of MM. De Tocqueville and De Beaumont, in 1832, in which they expose “ the frightful abuse of the pardoning power in the United States in general,” and after quoting a statement “ that the New York Committee had ascertained that there are men who make a regular trade of procuring pardons for convicts, by which they support themselves,” he does not hesitate to add the following grave accusations against the governor of one of the “large” States of the Union :
“ To this statement we have now to add the still more appalling fact, which we would pass over in silence if our
* Pages 390-408.
duty permitted it, that but a short time ago the governor of a large State-a State amongst the foremost in prison discipline--was openly and widely accused of having taken money for his pardons. We have it not in our power to state whether this be true or not, but it is obvious, that a state of things which allows suspicions and charges so degrading and so ruinous to a healthy condition of public opinion, ought not to be borne with. It shows that leaving the pardoning privilege, uncontrolled in any way, to a single individual, is contrary to a substantial government of law, and hostile to a sound commonwealth.” *
To this he subjoins the following note :-
the papers report that the governor of a large State has pardoned thirty criminals, among whom were some of the worst characters, at one stroke, on leaving the gubernatorial chair.”
Among the conclusions which Dr. Lieber proceeds to draw are the following:
“That a wide-spread abuse of the pardoning power sts, and has existed at various periods.
“ That the abuse of the pardoning power produces calamitous effects.
That the Executive in our country is so situated, that, in the ordinary course of things, it cannot be expected of him that he will resist the abuse, at least that he will not resist it in many cases."
The individual States are ever anxious to keep alive the memory of the fact that they are sovereign States. Many of them number upwards of a million of inhabitants; one upwards of three millions. At their head—the type of that sovereignty, the symbol of their independent exist
* Page 397.