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than for the supremacy of the law in all conditions and circumstances. He would not move a soldier to suppress the Whiskey Insurrection of 1793 in Western Pennsylvania until the Judge of the United States District Court had certified that the Marshal was unable to execute his warrants. The more we emulate the character and follow the example of George Washington the more progress will we make towards the attainment of Sir William Jones' ideal State formed by
men, high- minded men.
Men, who their duties know,
To appreciate fully the importance of the end indicated by the title of this paper, it will be desirable to consider briefly some of the more patent evils of the partisan judiciary; because it follows, almost without saying, that, from a partisan selection, a partisan judiciary results. The rule is perhaps not absolutely universal, but exceptions to it are so rare and attract such marked attention from gentlemen of the bar that they may be assumed to prove the rule.
The partisan decision of political questions is most prominent in the minds of men in viewing the evils of a partisan judiciary. The human mind is so constituted that it must act upon the lines of its preconceived ideas and training. This law is not changed in the judicial mind. Upon the great and cardinal principles which have always, and to some extent at least will always, divide political parties in this country, every man fit at all to be a judge will, of necessity, have a fixed opinion before he comes to the bench. On such questions it is not to be expected that argument at the bar will change the views of the court; and on such questions the decisions have been, and will continue to be, upon partisan lines.
The trend of Marshall's views of the federal constitution and its relation to state governments and the proper construction of that instrument in reference to the political questions which harassed the country during the first half of the century, could no more have been changed by argu
ment of counsel in special causes than could those of Taney who succeeded him; and the opinions of the one great judge, as well as the other, become, in a great measure and of course, the enunciation of party tenets. A more striking instance of the inability of even great minds to disassociate their judicial or quasi judicial action from partisan demands is seen in the Tilden-Hayes Electoral Commission.
This kind of partisanship in our judges cannot be corrected by any method either of appointment or election. It has root in the organization of human nature and must be endured. Neither do I think it specially dangerous. The great questions of policy or politics must be determined in other forums and by other than judicial methods, and the courts in great measure but register the decrees of the nation with respect to such controversies.
When, however, the courts begin to abjudicate upon questions of real or supposed party interest purely as such; questions in which is involved no great political principle, but only party or factional exigency; a party judiciary becomes an evil iutolerable to be borne.
Now and then in these latter days, we find judges rising above consideration of party and party strife. Occasionally, courts owing their places and honors to the caucus and party Shiboleth, will deal with questions involving party, or over controversy into which parties and factions have been drawn, from a purely legal standpoint. But attention to our modern reports will, I think, convince the most hopeful that the tendency is the other way. Certainly too often, if not generally, the judicial eye is closed and the political eye wide open; and the real or supposed behests of the controlling power in the nominating convenion are more cogent than the most clearly enunciated legal principle or best reasoned authority.
This fatal tendency, to use a mild phrase, has attacked the judiciary of our own state with alarming vigor. I believe that there is not a gentleman present who has not felt its influence and witnessed its workings. In the four years of our statehood we have seen a partisan judiciary
sometimes override just and careful constitutional restrictions, and by strained and hypercritical construction lay other constitutional hedge-guards prostrate at their feet. It is not necessary and therefore not becoming that I should specify instances which are known and read of all lawyers, and, I believe, approved by few, or none.
The second great evil of the partisan selection of our judges to which I would call attention is corporate influence in the courts. In state after state, from the Atlantic to the Pacific, it has been seen that the great corporations of the country have exercised over the courts an undue and unjust, and too often a corrupt, influence; and at the present time, I consider this the greatest of the evils resulting from a partisanly selected judiciary. Day after day, year after year, here a little and there a little, these soulless and breathless creations of the genius of modern enterprise are extending their influence, their demands and their greed. They never die; they never tire; they never sleep.
While the demands of the private individual at the bar of the courts of his state or his nation are rare and temporary, the great railroads are always in court. Their suits. are without number, and, in some of the courts of this state, so common have become these corporations as parties litigant, that names of several of them are printed upon the dockets by the clerk to save time. Naturally, of course, represented as they are by able counsel, these institutions would always have at the bar a respectful and considerate hearing, but it is too patently true that they have come not to depend upon these resources.
Their emissaries are in every caucus,
local convention and at every state gathering of the party clans.
As a rule, I believe it will be found that to the great railroad and trust companies of these United States it matters but little which of the political forces by which judges are nominated at conventions succeed at the polls; the nominations in both have been dictated by their agents. Both parties are desirous of securing the railroad vote, as
it is called, and the railroad influence; the managers of every convention are too anxious for railroad favors and railroad patronage to defy the wishes of the corporation on such insignificant matters as the selection of judges. Therefore, it has come about that in every convention the judicial nomination is the great trading ground from which swaps for other places on the ticket are made. In such a condition, it could not but happen that the corporations will generally select their own judges.
So great a legal periodical as the American Law Review a few months since called attention to the decision of the courts in a large number of states upon a variety of questions arising out of modern legislation, in which were involved directly the interests of the railroad companies. The learned editors of that magazine penned to their professional brethren warning that in the great anxiety of corporate courts to serve their masters, the foundations of too many of our rights and liberties were being sapped and destroyed.
Supposing, however, every improper influence to be absent, the manner in which a political nominating convention conducts its proceedings, the manner in which it is organized makes it impossible to secure decent judicial nominations. Filled by delegates selected from the caucus, around which for weeks—and it may be for months -has raged a contest over purely political places and for purely political honors. What care they for the judiciary? The convention meets and the contest over other offices goes on; the last and the least thought of places to fill are the judicial nominations. Some of us within the last half decade have seen judicial nominations made by a successful and powerful political party upon the principle of giving every defeated candidate a place upon the ticket, and if perchance every one were not eligible to the bench, to dictate who hould take his place.
Is it any wonder that in such a system, the complaints concerning our courts are loud and long; that their opinions are couched too often in bad grammar, nearly always in