The legislature of Rhode Island in 1842, during "Dorr's Rebellion," by a Public Act put that State under martial law until further order, or until its termination should be proclaimed by the Governor. A squad of militia broke into the house of a private citizen to arrest him as an abettor of Dorr, and were afterwards sued in trespa.s.s before the civil courts.

The cause finally came before the Supreme Court of the United States, where (one justice only dissenting) it was held that the Act could not be p.r.o.nounced an unjustifiable exercise of legislative power under any provision of the federal Const.i.tution.[Footnote: Luther _v._ Borden, 7 Howard's Reports, 1, 45.] Whether the courts of Rhode Island could have taken a different view, under the fundamental laws of the State, was not decided.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 2, 129.]

On the other hand, there are States in which the Const.i.tution explicitly provides that "the military power shall always be held in an exact subordination to the civil authority and be governed by it."[Footnote: Const.i.tution of Ma.s.sachusetts, Declaration of Rights, Art. 17. _Cf._ Const.i.tution of Colorado, Art. 2, Sec, 22.] It is a serious question whether, under such provisions, a legislative or executive declaration of martial law in time of peace, in order the better to cope with some local disturbance, is to be regarded as an expression of the will of the civil authority, by virtue of which the civil courts lose the power of discharging on _habeas corpus_ one restrained of his liberty by military command. That it is such an expression was held in Colorado in 1904, but by a court composed of only three judges, of whom one, in a dissenting opinion, observed that the decision of his a.s.sociates "is so repugnant to my notions of civil liberty, so antagonistic to my ideas of a republican form of government, and so shocking to my sense of propriety and justice that I cannot properly characterize it." A similar question arose, but was not judicially determined, in Arkansas in 1874. There was a contest over the election of Governor. The Const.i.tution provided that such contests should be decided by the joint vote of both houses of the legislature. Baxter, the candidate who was elected on the face of the returns, was declared elected by the President of the Senate and took the oath of office. Brooks, the other candidate, presented a pet.i.tion for a contest to the lower house, which refused to grant it. He then applied to the Supreme Court on _quo warranto_ proceedings, which threw out the case for want of jurisdiction.[Footnote: State _v._ Baxter, 28 Arkansas Reports, 129.] A similar suit was then brought in a _nisi prius_ court, on which judgment was rendered in his favor,[Footnote: This judgment was reversed on appeal. Baxter _v._ Brooks, 29 _id_., 173.] and he was put in possession of the executive chambers by an armed force which he a.s.sembled. Baxter then declared martial law in the county in which the capital was situated, and arrested two of the judges of the Supreme Court on their way to attend a special session called to take action in _mandamus_ proceedings brought in behalf of Brooks. They were rescued after a day or two by United States troops and proceeded to join their a.s.sociates. The court then gave judgment for Brooks in his third suit, directing the State Treasurer to pay his warrants. At this point the legislature applied to the President of the United States for protection against domestic violence, under Art. IV of the Const.i.tution of the United States, and his compliance by a proclamation officially recognizing Governor Baxter and ordering the Federal troops to support him closed the history of this disgraceful incident.[Footnote: McPherson, "Hand-book of Politics for 1874," 87-100.]

CHAPTER XXII

APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES

The oldest which survives of our American Const.i.tution, that adopted by Ma.s.sachusetts in 1780, requires the appointment of judges to be made by the Governor of the State, with the advice of the Council, and for good behavior.[Footnote: Const.i.tution of Ma.s.sachusetts (1780), Chap. I, Art. 9; Chap, III, Art. 1.]

This plan was substantially followed in framing the Const.i.tution of the United States. That was planned for a small number of States, perhaps only nine, certainly at first not over thirteen.

The Senate, therefore, would be a body small enough to serve as an executive council. Its necessary enlargement by the admission of new States has long made it but ill-suited for this purpose, and has thrown the power of confirming or rejecting an executive nomination for judicial office largely under the control of the Senators from the State to which the person named belongs, although this control is much weakened if they do not belong to the party of the administration. The principle that the greater the concentration of the appointing power, the greater will be the sense of individual responsibility for every appointment made, makes this result of a Senate of ninety members not wholly unfortunate. The President now consults a council of two.

Thirteen States in all originally gave to the Governor the power either of appointing or of nominating the judges of the higher courts; fourteen gave their election to the legislature; the rest preferred an election by the people.[Footnote: 'Baldwin, "Modern Political Inst.i.tutions," 58, 59.] If we compare the original practice in each State with its present practice, we find that there are now fewer in which the Governor appoints or nominates; fewer in which the legislature elects; more in which the people do. Legislative elections have been found to imply a system of caucus nominations, and have often led to a parcelling out of places among the different counties in which geographical considerations told for more than did fitness for office. In one State[Footnote: Conn. Const.i.tution, Twenty-sixth Amendment.]

since 1880, the legislature has elected on the Governor's nomination. In practice they have never failed to act favorably upon it.

Mississippi, which, in 1832, became a leader in the movement toward the choice of the judges by popular election, in her latest Const.i.tution (of 1890) follows the plan of the United States, the Governor nominating and the Senate confirming.

The action of the confirming or electing body when unfavorable in any State has generally been unfortunate. It is apt to be affected by local or personal political influence to which the chief executive would be insensible. A large number of able men have thus, from time to time, been deprived of a seat on the Supreme Court of the United States who would have added to its l.u.s.ter. In 1867 Ma.s.sachusetts lost a Chief Justice of the first rank in this way by the defeat of Benjamin F. Thomas. The council refused, by a majority of one, to confirm his nomination because, though of the same party with them, he was of a different wing.[Footnote: Proceedings Ma.s.s. Historical Society, 2d Series, XIV, 301.]

In most of the States the judges are now elected by the people.[Footnote: In thirty-three. In one other (Florida) the people elect the judges of the Supreme Court, and the Governor, with the advice and consent of the Senate, appoints those of the superior courts. The Governor nominates in Delaware, Mississippi and New Jersey, and in the four largest New England States. In Rhode Island and Vermont, South Carolina and Virginia, the legislature elects.] This makes the choice more a political affair. The nominations are made by party conventions, and generally in connection with others of a purely political character. It also, in case of a nomination for re-election, places a judge on the bench in the disagreeable position of being a candidate for popular favor at the polls and an object of public criticism by the political press.

In 1902 a justice of the Supreme Court of Michigan was nominated for re-election. There was an opposing candidate, some of whose friends published a statement that in the nine years during which the justice had already served he had written opinions in 68 railroad and street railway cases of which 51 were in favor of the companies. He was re-elected, but some time afterwards this fact was reprinted in a local periodical accompanied by the remark that "we must conclude that either the railroad and railway companies--4 to 1--had exceptionally good cases from the standpoint of law and justice or his Honor's mind was somewhat warped in their favor.... You can't expurge mental prejudice from judicial opinions any more than you can from the reasonings of theologians and atheists.... To imagine a justice deciding a case against his personal interests is too great a stretch of imagination for us to appreciate."

A less brutal but more dangerous attack, made in 1903 by a religious newspaper, ill.u.s.trates the same evil. The Supreme Court of Nebraska has decided that under their Const.i.tution the Bible cannot be used in the public schools. It was, of course, a pure question of the construction of a law, for the policy of which the court had no responsibility. The newspaper in question[Footnote: The Boston _Congregationalist_ of Oct. 3, 1903.] which, though published in the East, had some circulation in that State, printed this paragraph:

"The Supreme Court judge of Nebraska who wrote the decision that the State const.i.tution prohibits the use of the Bible in the public schools is standing for re-election, and the fact that he made such a decision is not forgotten by the Christian voters."

In States the control of which by one of the great political parties is a.s.sured, the real contest is for the nomination, and here there is even more license for unfavorable comment on the judicial record of one who seeks it. In a Southern State there was such a struggle in 1903 for the nomination of the prevailing party for Governor. The person who then held that place desired it. So did one of the justices of the Supreme Court. It is said that the friends of the former circulated a cartoon representing the five justices together as five jacka.s.ses, and another in which the justice whom they were trying to run off the field was caricatured in the act of setting aside a verdict in favor of a child injured by a railway accident. The two candidates subsequently met upon the platform for a joint discussion of the issues before the people. The Governor sharply criticised the character of the Supreme Court. The judge caught him by the collar and was about to strike him when friends intervened, and an explanation of the remarks was made which was accepted as satisfactory.

In the heat of a political campaign men do not always stop to measure words or weigh questions of propriety. The personal character and public acts of an opponent are a legitimate subject of description and comment. Sharp attacks must be expected as a natural incident of such a contest, and by candidates for judicial office as well as others. The public record of all for whom votes are asked at a public election must be the subject of open criticism, or there would be danger that unworthy men would succeed. To treat such observations as have been quoted upon opinions previously written by a candidate for re-election, however unseemly or unjust, as a contempt of court would be indirectly to impair the right of free suffrage.

If a.s.sertions published as to acts done or words said are false, it does not follow that they are libellous. An honest mistake may be a defense for such a misstatement.[Footnote: Briggs _v._ Garrett, 111 Penn. State Reports, 404; 2 Atlantic Reporter, 513.]

Judges of trial courts, when candidates for re-election, may expect the publication of similar attacks on rulings which they have made. The following dispatches, which appeared in the same issue of a local newspaper in Pennsylvania in 1903, when a county election was soon to occur, will sufficiently ill.u.s.trate this:

HOT JUDICIAL FIGHT PROMISED FOR MERCER.

COUNTY WILL BE SCENE OF AN INTERESTING STRUGGLE FOR SEATS IN THE LEGISLATURE.

Sharon, Pa., Dec. 25.--From present indications the coming judicial fight in Mercer County will be a bitter one. Public interest centers in the efforts of Judge S. H. Miller and his friends to secure a re-election, and the attempts of his opponents to place A. W. Williams of Sharon on the bench instead. While the sole topic politically is on the judgeship, the twenty or more candidates for a.s.sembly are not losing the opportunity of fixing their fences. They, too, have a.s.sumed a reticence in regard to the matter of the judgeship. It is expected that on the last lap of the race Williams and Miller will be the only two men remaining. There are three other candidates for the Republican nomination who have thus far announced themselves. They are: W. J. Whieldon of Mercer; W. W. Moore of Mercer, and L. L. Kuder, burgess of Greenville.

Judge Miller and A. W. Williams are the closest of friends.

JUDGE MILLER ASKS FOR MODERATION. BARS PURE FOOD PROSECUTIONS BY REFUSING TO SENTENCE THOSE CONVICTED.

Harrisburg, Pa., Dec. 25.--State Dairy and Food Commissioner Warren has been confronted with a new proposition in his crusade in Western Pennsylvania against violators of the pure food laws. Judge S. H. Miller of Mercer County, before whom several oleomargarine dealers were recently convicted for the illegal sale of "oleo," has refused to sentence them on the ground that the procedure of the State Pure Food Bureau is persecution and lacking in equity. He takes the position that grocers and saloon keepers, not being expert chemists, should at least be warned previous to arrest, and be given a chance to determine whether the foods they are handling are pure or adulterated. Judge Miller's position is a serious impediment in the way of the enforcement of the law, and Commissioner Warren is preparing to take action that may compel him to punish offenders convicted before him.

Not infrequently in the judicial history of the United States there has been presented to a judge the choice between rendering a decision according to his opinion of the law and the facts and losing his seat, and rendering one according to public opinion, or the public opinion of his party friends, and keeping it.

A judge of the High Court of Errors and Appeals in Mississippi was one of the earlier martyrs in the cause of judicial independence. The State had incurred a heavy bonded debt, which she found it inconvenient to pay. The Governor, who had approved the bills under which over $15,000,000 of the bonds had been issued, concluded in 1841, after the issue, that it was forbidden by the Const.i.tution of the State, and issued a proclamation declaring them void. In a suit in chancery this question came up for decision in 1852. Meanwhile the policy of "Repudiation" had been made a political issue and the people had given it their approval by electing its advocates year after year to the highest offices. The chancellor upheld the validity of the bonds, and on appeal his decision was unanimously affirmed.[Footnote: State _v._ Johnson, 25 Mississippi Reports, 625; Memoir of Sergeant S. Prentiss, II, 268.] A few months later the term of office of one of the judges who had concurred in this opinion expired, and the people put a successor in his place who held doctrines better suited to the public sentiment of the hour.

In the days preceding the Civil War, the validity of the laws enacted by Congress to secure the recapture of slaves who had fled to the free States was frequently attacked in the press and on the platform. The Const.i.tution expressly provided for such proceedings, and the Supreme Court of the United States in 1842 had p.r.o.nounced the "Fugitive Slave law" of 1793 to be valid in all respects.[Footnote: Prigg _v._ Pennsylvania, 16 Peters'

Reports, 539.] The principle of this decision plainly covered the later Act of 1850, but as public sentiment in the North became more and more uncompromising in its hostility to the existence of slavery under the flag of the United States, the State courts were not always strong enough to withstand the pressure to disregard precedents and let the Const.i.tution give place to what the phrase of the time called a "higher law."

In 1859, a citizen of Ohio was convicted in the District Court of the United States and sentenced to jail for rescuing a fugitive slave who had been recaptured in Ohio by an agent of his master, to whom he had been committed in proceedings under the Act of Congress. He was imprisoned in an Ohio jail, the United States then having none of their own, but placing all their convicts in State jails or prisons under a contract with the State to keep them for a certain price. His counsel applied to the judges of the Supreme Court at chambers for a writ of _habeas corpus_ against the Ohio jailer. He produced his prisoner and submitted a copy of the warrant of commitment from the District Court. The public were extremely interested in the outcome of the proceedings. The Attorney-General of the State a.s.sisted in presenting the pet.i.tioner's case. The Governor was one of the mult.i.tude present in the crowded court room. The Attorney-General declared that the position that the Supreme Court of the United States had the power to decide conclusively as to the const.i.tutionality of the laws of the United States and so tie the hands of the State authority was untenable and monstrous. "Georgia," he said, "hung Graves and Ta.s.sel over the writ of error of this same Supreme Court. G.o.d bless Georgia for that valiant and beneficent example."[Footnote: _Ex parte_ Bushnell, 9 Ohio State Reports, 150.] It was, he continued, "a sectional court composed of sectional men, judging sectional questions upon sectional influences."[Footnote: _Ibid._, 161.]

Of the five judges, three held that the const.i.tutionality of the Fugitive Slave law was settled conclusively by repeated decisions of the Supreme Court of the United States, and that the State courts could not release the prisoner. Chief Justice Swan gave the leading opinion. Its positions were thoroughly distasteful to the people of Ohio. He knew they would be. His term, which was one of five years, expired in the following February, and the vacancy was to be filled at the State election in October. On the day before the judgment was announced he told his wife that this would be fatal to his re-election. "If the law makes it your duty to give such an opinion," said she, "do it, whatever happens." He gave it, and what they antic.i.p.ated occurred. The convention of his party declined to renominate him. He resigned his office immediately after the election and retired to private life at an age and under circ.u.mstances which made it impracticable for him to re-enter the bar with success, but with the consolation of knowing that he had acted right.

Chief Justice Day of Iowa, one of the ablest men who ever sat on her Supreme bench, in the same way lost a re-election by writing an opinion of the court, which announced a doctrine that was legal but unpopular.[Footnote: Koehler _v._ Hill, 60 Iowa Reports, 543, 603.] His term was soon to expire. He, too, knew that this decision would prevent his renomination, and it did.

In 1885, Chief Justice Cooley of Michigan, one of the great jurists and judges of the country, failed to secure a re-election to its Supreme Court, which he had adorned for twenty-one years, largely on account of an opinion which he had written supporting a large verdict against a Detroit newspaper for libel. The newspaper, upon his renomination, described him as a railroad judge, and kept up a running fire through the campaign, which contributed materially to his defeat.

Political contests cost money, and if judges appear as candidates for popular suffrage they are naturally expected to contribute to the expense. The other candidates on the same ticket do this, and if those nominated for the bench did not, somebody would have to do it for them, thus bringing them under obligations that might have an unfortunate appearance, if not an unfortunate effect. In New York, where some of the judicial salaries are higher than anywhere else in the country, and the terms for the highest places are long (fourteen years), it has been customary for those placed in nomination to contribute a large sum to the campaign expenses of their party. This is tacitly understood to be a condition of their accepting the nomination, and the amount to be paid is fixed by party practice. For an original nomination by the party in power, it is said to be about equal to a year's salary; for a renomination half that sum may suffice.

But a judge holding office by popular election must in any case owe something to somebody for supporting his candidacy. He is therefore under a natural inclination to use his power, so far as he properly can, in such a way as to show that he has not forgotten what his friends have done for him. There is always a certain amount of judicial patronage to be bestowed.

There are clerks and messengers, trustees and receivers, referees and committees, perhaps public prosecuting attorneys and their a.s.sistants, to appoint. Other things being equal, no one would blame a judge for naming a political friend for such a position. But as to whether other things are equal he is to decide. To the most upright and fearless man the danger of this is great; to a weak or bad man the feeling of personal obligation will be controlling. Justice Barnard of the Supreme Court of New York once observed on the bench that judges had considerable patronage to be disposed of at their discretion, and that for his part he had always succeeded in life by helping his friends and not his enemies. For this practice, among other things, he was impeached and removed from office; but how many judges are there who yield to this temptation without avowing it? A French critic of the elective judiciary has thus referred to these remarks of Justice Barnard:

Le Juge Barnard, qui formulait en plein tribunal cette declaration de principes, fut decrete d'accusation et cond.a.m.ne, non sans justes motifs. Mais son crime impardonable etait de proclamer trop franchement les doctrines de la magistrature elective: il trahissait le secret professionnel.[Footnote: Duc De Noailles, _Cent Ans de Republique aux Etats-Unis_, II, 232.]

Most of the old thirteen States in their first Const.i.tutions provided that the judges of their highest courts should hold office during good behavior, or until seventy years of age. New York at first put the age of superannuation at sixty, but after losing by this the services of Chancellor Kent for some of his best and most fruitful years, postponed it to seventy. Georgia was the first to set the fashion of short terms. Her Const.i.tution of 1798 provided that the judges of her highest court should be "elected" for three years, but that those of her inferior courts should be "appointed" by the legislature and hold during good behavior. The legislature construed this as allowing it to frame such a scheme of election as it thought best, and that adopted was for the House to nominate three, from whom the Senate elected one.[Footnote: Schouler, "Const.i.tutional Studies,"

65.]

In all but three States (Ma.s.sachusetts, New Hampshire and Rhode Island) at the present time all judges hold for a term of years, and as a general rule those of the higher courts have longer terms than those of the inferior ones. The change from life tenure to that for a term of years was partly due to several instances which occurred early in the nineteenth century, in which it was evident that judges had outlived their usefulness.

Judge Pickering of the District Court of New Hampshire lost his reason, and to get rid of him it became necessary to go through the form of impeachment. In 1803, Judge Bradbury of the Supreme Judicial Court of Ma.s.sachusetts, who had been incapacitated by paralysis, was displaced in the same way, though only a few months before his death. In 1822, an old man who was the chief judge of one of the judicial districts of Maryland was presented by the grand jury as a "serious grievance," on account of his habitual absence from court. His physician certified that his life would be hazarded if he undertook to attend, but the natural answer was that then he should resign.

At present, for judges of the State courts of last resort, the term in Pennsylvania is twenty-one years (but with a prohibition of re-election); in Maryland, fifteen; in New York, fourteen; in California, Delaware, Louisiana, Virginia, and West Virginia, twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado, Illinois, and Mississippi, nine. The general average is eight, although that particular number obtains in but seven States. In eighteen it is six. The shortest term is two, and is found in Vermont. It may be noted that the original rule in Vermont was to elect judges annually. As compared with the terms of office prescribed at the middle of the nineteenth century, those at the opening of the twentieth are on the average decidedly longer.

The compensation of most American judges is a fixed salary.

In some States, courts of probate and insolvency, and in all justices of the peace when holding court, are paid by such fees as they may receive, at statutory rates, for business done. As in the case of sheriffs and clerks, judges under such a system sometimes receive a much larger official income than any one would venture to propose to give them were they to be paid for their services from the public treasury. A clerk of court often receives more than the judge, and some judges of probate and insolvency more than the Chief Justice of their State.

In colonial times, judges were sometimes paid in part by fees, in part by occasional grants by the legislature, and in part by a regular stipend. This practice of legislative grants from time to time in addition to their salaries was continued in Ma.s.sachusetts in favor of the justices of the Supreme Judicial Court for a quarter of a century, in the face of a Const.i.tution which provided that they "should have honourable salaries ascertained and established by standing laws."[Footnote: Memoir of Chief Justice Parsons, 228.] It was evidently indefensible in principle, and to remove judges, as far as possible, from temptation either to court the favor or dread the displeasure of the legislature it is now generally provided in our American Const.i.tutions that their salaries shall be neither increased nor decreased during the term for which they may have been elected by any subsequent change of the law. In a few States it is thought sufficient to guard against the consequences of legislative disfavor, and the Const.i.tutions forbid only such a decrease of salary.

The Chief Justice of the Supreme Court of the United States receives $13,000 a year and his a.s.sociates $12,500. Circuit Judges have $7,000, and District Judges $6,000.

In the States, the Chief Judge of the New York Court of Appeals receives $10,500 and his a.s.sociates $10,000. The same salaries are given in Pennsylvania. In New Jersey, the Chancellor and the Chief Justice each receive $10,000 and the a.s.sociate judges $9,000. In Ma.s.sachusetts, the Chief Justice receives $8,500 and his a.s.sociates $8,000. In the other States less is paid, the average for a.s.sociate judges in the highest courts being about $4,350. Only nine States pay over $5,000. The Chief Justice in many receives $500 more. These salaries are, however, generally supplemented by a liberal allowance for expenses, and in some States each judge is provided with a clerk. In New York, this addition amounts to $3,700; in Connecticut, to $1,500; in Vermont, to $300.

The salaries for the highest trial court generally closely approximate those paid to the judges of the Supreme Court, and in case of trial courts held in large cities are often greater.

Those for the inferior courts are much lower.

The judges of the princ.i.p.al _nisi prius_ court (which is misnamed the Supreme Court) in New York City are allowed by law to accept additional compensation from the county, and receive from that source more than from the State, their total official income being $17,500. The trial judges in Chicago also receive $10,000, although the highest appellate judges in the State have a salary of only $7,000.