the United States, for them to have secured the election of a partisan who was in sympathy with that principle which it is said he was appointed to secure.

But, again, we have another very happy example of this, in my opinion, a little nearer home, and in the city of Philadelphia. We have in the United States district court in that city a gentleman who was appointed during good behavior or for life, and 1 leave it to every candid man within the sound of my voice in this Convention, who knows anything of the facts, to say whether in all questions they ever saw that distinguished judge waver or falter in any particular for any favorite, under any circumstances, or in any cause. It could not be safely asserted of him that the decision was anticipated before the case was heard. He may have his peculiarities; he may have certain idiosyncracies that may be distasteful to some; but it is the universal opinion of the people in this county and of all who go before him, that his decisions are ever stamped with that impartiality and honesty that should always characterize a judge'saction. You never hear it discussed in a lawyer's office to his client, "that likely the judge will be against us on this because he is of a different party from us." I know that it is distasteful to remind some lawyers of Philadelphia of this fact; but I appeal to some of the older heads to know whether they have not sat in their offices, when questions of a quasi political character were to be decided, and attempted to reason with their clients upon the fairness of the judge. Aye, as was said this morning by the distinguished gentleman from Philadelphia, (Mr. Woodward,) the people all over the State are asking and making anxious inquiries as to whether the judiciary cannot be relieved from the party politics of the country as they now exist.

I have said, Mr. Chairman, about all that I desired to say upon this section. As I have intimated, when the sixth seo tion comes to be discussed, I desire to give some of the gentlemen who are overly tenacious on this subject warning now, that I propose to be fortified with figures and dates. It is a part of the argument here, it is a part of the argument under the section now before us for consideration; but it will more properly come up under the sixth section, and I expect, then, to argue to this committee that under the present judicial system of a portion of this Commonwealth, as I stated a 49-VOL. III.

moment ago, not only hundreds, but thousands upon thousands of dollars have been unnecessarily taken from the estates of decedents and placed at the disposal of the favorites of the bench of Philadelphia, for the purpose of assuaging, if you please, the sentiments of the bar in favor of the judiciary. It is a cry as universal as the populace of this city, wherever you go, ́ that the system of auditing accounts by the judges of the orphans' court has become an abominable nuisance, and that men who could not make an honest living outside of the auditing of accounts, have fattened into opulence and extravagance, time and again, because of the partisanship of the judges, or that species of favoritism of which I have been speaking. I say, Mr. Chairman, this is a disgrace to the community, and if these be words which do not fall welcomely upon the ears of some, even if they be the means of bringing upon my head judicial wrath, let it be so. I would rather be right upon a question of this kind than be wrong or silent, and be one of the recipients of judicial patronage.

I say, Mr. Chairman, that for the reasons which I have expressed I shall vote for the amendment. I desire to say one word, in conclusion, and that is this: If there was but one valid objection to the present system, everything else being equal, the manner in which political questions are generally determined by our courts, it would be sufficient reason to lift our judiciary above the party politics, of the country and place it where it naturally belongs, independent of the bar, beyond favoritism, and, if you please, so far independent of the people as to place a barrier between the masters of the people and the judiciary of the land. Let the judicial ermine be spotless and pure; strip our judges of all extra judicial power; appoint them during good behavior and prohibit them, forever, from holding other offices under the laws of this Commonwealth-and the rights of the people will be protected, and they will not consider it a forfeiture of their rights. I contend, sir, that the judge should be above suspicion, because

"Index est lex loquens."

I firmly believe, sir, that if justice can prevail between man and man, there can no danger, though all the functions of government should stand still.

Mr. MACVEAGH. Mr. Chairman: I do not purpose to delay the committee very long upon this matter; yet as it happens

to be one of those subjects upon which 1 have more definite views than perhaps upon any other likely to engage their attention, I should like their patience while I explain the grounds upon which I shall vote for the amendment of the gentleman from Philadelphia, (Mr. Woodward,) incorporating the doctrine of the appointment of the judiciary into the organic law of the Commonwealth. I trust, whatever considerations weigh with me, the accidental character of this or the other judge will not weigh with me. Whether under one system a wise selection was made by the authority endowed with the privilege of selecting, or not, is to me a matter of very little consequence. Whether anybody anywhere is a candidate for judicial office who ought not to be in the opinion of anybody else, certainly ought not to weigh as a feather in the balance of this great argument. Gentlemen, if we cannot forget the personal characteristics of the men who happen to be occupying the judicial positions in Pennsylvania to-day, if we cannot forget the accidental characters of those who occupied them in days gone by, if we cannot find some ground of reason, of principle upon which we can range ourselves on this question, we shall decide it badly, however we decide it.

I trust the Convention will gravely consider three things: First, the peculiar relation of the judiciary to a free State; secondly, the best method of securing efficiency in that department of the government; and thirdly, the very great danger which always menaces a deliberative body, of exaggerating the desire of the people for the immediate control of patronage.

Gentlemen, I trust you will never forget that the judiciary is in no sense whatever a representative department of the government. It is not intended in its very nature, it is not possible for it by its very constitution, to represent any interest, any party, any combination whatever. As it is not a representative department, so it ought not to be, by the very nature of its life, a political department. It is not that politics are degrading. We may be degraded politicians; but with the memories of the great men who have served States since the race had a history, I believe it is not true that politics are degrading. It is not less noble to serve the State than to serve yourself in the accumulation of private fortune by means fair or foul. Accidents have degraded some of the surroundings of American politics; but it is not that political action, political sym

pathy, political partisanship, in a free State, is necessarily degrading. There is no truth in the idea; and the ermine of the judge is not to be soiled because of the degrading character of political associations. We owe it to our fathers who "builded better than they knew," and they knew they were building wisely, to utterly discard and repudiate any such idea. But the judiciary is degraded by being made a political department of the government; not because political action and political service are of a degrading character; but because the judiciary is in no sense whatever a representative body, and therefore, having no representative functions, it ought not to be, and cannot with safety be, a political body. Your Executive department is a political department, and ought to be controlled by political considerations. Your legislative department is a political department, and ought to be controlled by like considerations. But your judicial department is nothing of the kind. Its function is not representative. Its function is not initiative. It develops itself in the confidence of a free people simply by the faculty of judgment, and of judgment not upon abstract considerations, not upon general issues, but upon particular causes. In that is the philosophy of the conviction that mantles each man's face with the blush of shame when he remembers that he knows in advance the decision of his judge in a politi cal cause. It is no matter of shame for me that, upon political questions, I know I am in sympathy with my Governor, and in sympathy with my President. It is a source to me of honest pride that it is so It is not a matter of shame, but of gratification, that I am in political sympathy with the majority of either House of the National Congress and of the State Legislature; but it is a source of undisguised mortification that I should ever find myself knowing in advance that I am in political sympathy with the majority of a bench of judges.

Gentlemen, do not let us belittle this great question. Do not let us lose sight of the cardinal considerations which ought to control it, in discussing whether that man had better have been nominated, or the other man made a president judge. Let us, as far as we can, strip it of these considerations and go to the root of this matter and answer, yea or nay, shall our judges be politicians? That is the question upon this amendment, and nothing else. I tell you not only they will be, but I tell

you they ought to be, if you continue this abominable system any longer. Whoever is dependent for his nomination, his election, and the approval of his conduct, upon a political convention of political partisans, in the very logic of things, ought to fill a political partisan office,and there is no reason why he should not. If this is a representative department of the government, if this is a political department of the government, I ought to vote for a man of my political views, and if I am in the majority he ought to represent my views, or the views of the men who elect him. I would regard with utter scorn a man who would secure my suffrage for a representative or political office, and the morning afterward say coolly to me, "why you are entirely mistaken; you voted for me upon a ticket of your political party; but now that I am in office, in a political office, nominated and elected by partizan conventions, I propose to forget the party to which I belonged up to last night."

I grant you that thus far your judges, as a general rule, have been better than they were under the old system, perhaps, or as good. I have nothing to say about that. The traditions of an unstained judiciary are powerful for twenty years. The traditions of an unstained profession are powerful for twenty years. But already your harness has joints of weakness in it. Already your panoply will not protect you. Already your elective system is not only upon trial, but it is, as sure as you live, my friends, in process of condemnation. And why should we continue it? It is contrary to all logic, it is contrary to the whole current of thought upon the question.

There is not, from Aristotle to John Stuart Mill, a single writer upon the subject worthy of quotation before thoughtful men, who has not accepted the statement that you must train a body of men, an exclusive profession, for the administration of justice. And as you must train the advocate, so you must, from the body of trained advocates, select the judge. That is a part of the division of labor far older than Adam Smith. It is a separate profession to which they belong. It is a monopoly; it is a close corporation, if you choose; it is anything you please to call it, except a representation of the entire body of the people. That it is not. That, in the very nature and logic of events, it never can be, and you do injustice to your own intelligence—I say it with great deference, for I know many men

far more thoughtful than I am, and far more experienced, differ from me-I say, with due deference, that you do injustice to your intelligence when you submit to the ordeal of political selection a separate and trained profession set apart for the work of judges, not of politicians, for the decision of individual cases, not for the discussion of abstract principles, for the settlement of controversies between one man and another, to hold scales, into neither of which has been cast the burden of partisan prejudices or convictions.

I do not care how good the fruits may be for a little while. Bad systems may bear good fruits for a while. You cannot get rid of the impulsion given to good government by changing the method of it, for a life time or for a generation, except, indeed, when the system is subjected to great pressure, to very great pressure. Let me ask thoughtful Americans how many more years of your civil war would your elective judiciary have endured the strain? I belong to a political organization that had no cause to complain of the decisions made during the war; but how many more years could American liberty have endured the peril of an elective judiciary? That peril cannot be exaggerated. It cannot be magnified. The judiciary is an office separate and apart from political consideration. It is not a matter in which the people desire to judge as partisans. They desire to retain power in their own hands, and let me warn gentlemen here, that no man is needed as a bulwark for the American people. Do not be in the least alarmed about that. There is not the danger that my eloquent young friend from Philadelphia (Mr. Dallas) supposed this morning, that they may be bound, hand and foot, and delivered over to any tyranny. They are masters, as I had occasion to say the other day, of all persons, natural or artificial or political, in any sense, in the American Union, and they will have their way in all such matters, as they ought to have it. Whether they will secure an independent and non-partisan judiciary or not is a question for them to decide; and how any gentleman who rises to argue the question can attempt to state the function of the judiciary in a State like ours, can attempt to state the duty that is devolved upon it, and then can hope to argue with the slightest prospect of success that he will secure those qualitie necessary for such a judiciary in the discharge of such a duty by a popular nomi

nation and a popular election, I cannot imagine. It is futile for him to point to a good judge here and a good judge there; it is futile for him to point to the system of elections, the purest and the most undefiled. It is not a good election, it is not a good nomination, it is not the good man that is elected, that is in question here. It is that it makes your judiciary a political department of the government. Oh, I beg you, my friends, to trust the common sense of the American people! It is far wiser than any of your statutes. It is more thoughtful than the most thoughtful of your statesmen. It knows more law by instinct than your learned profession learns in a hundred years. This question has been tried whether the judiciary can be a political institution or not, and I rejoice in the result to-day, but not on partisan or political grounds. Not many years ago the august tribunal of last resort in the American Union arrayed itself in the interest of a political dogma. Not very long ago the Supreme Court of the United States announced certain conclusions of law that were intended to bind with iron bands the political action of the American people. And how they broke the fetters in their disdain and almost broke the court in their contempt. They did not want politics from the bench. They did not want, therefore, politicians on the bench; and they do not now want your judges nominated and elected by your political machinery.

And now one thing more. Trust the people! Give them a chance to retrace their steps! Why, gentlemen, in the vast aggregations of individual wealth that are now going on in this country, it is indispensable for the safety of the future to have a judiciary beyond reproach and without fear. And I beg you to be lieve that you must have permanency of tenure and utter, absolute, final independence of political dictation, in the selection of your judges as far as that can be obtained. Politics, political arrangements, the division of the departments of government, are all matters of expediency, of compromise, of doing the best thing attainable. Everybody learned that long ago from Burke, if he did not learn it from those who preceded him. In this matter it is absolutely necessary that we should do the best attainable thing, not the best thing; and as in a political organization, which all human government is, the power of appointment must reside somewhere, rest it in your Chief Execu

tive, and hedge it about with the approval of a non-partisan majority of the Senate. What more can you do? Whoever will suggest a better plan shall have my vote. Whoever will take the judiciary further out of the political range of the government shall have my vote. But whoever brings them closer to it, whoever tends to make them politicians, not only in the bad sense but in the good, shall never have it. I am not of those who believe that this state of things will go on from bad to worse; that the elections of the great cities will become more corrupt; that frauds upon the ballot-box will multiply and increase. I hope rather that, as we emerge from the inevitable discouragements to morality, public and private, engendered in the course of a long war, so we are coming into a purer atmosphere, a better and a higher public life, and that our elections are yet to be pure, that our representatives are yet to be honest, and that this poison which seems to be creeping into the heart of the body politic in America, the corruption of the great representative bodies, shall be first stayed and then extirpated.

But even out of the pure elections of the good time coming, which my faith in American democracy requires me to cherish the hope of, out of the pure elections of those better days, I purpose to give my voice and my vote, God helping me, to lift the judiciary of my native State, because it is not and never was intended to be, and never safely can be, a political department of the government. But out of the pollutions of to-day, out of the strifes of partisan politics now, who will not help to lift the judges? Who will compel them to attend the ward meetings in person or by proxy? Who will tell the judges of your last resort, that they must seek their support where the assessor and the collector of taxes seek theirs; that they must have friends to help them, as they will have enemies to oppose them; because no man dreams that amid the corruptions of great American cities, the judiciary, if required to struggle for the prizes of that corruption, can themselves remain pure. It is utterly unphilosophical, it is utterly contrary to all experience, to all reason, to expect it; and if we cherish any such fond illusion we shall be rudely awakened from our dream.

Gentlemen talk much in these days of disregarding party obligations, of overstepping party lines. I am not of that