Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-11-11

partments of the power of this
State government, must readily con-
clude that the Judiciary, from the
nature and objects of its functions,
and from the restricted limit of Its au-
thority, as from the character of men who
must compose it, viii always be, not only
the least dangerous to the political rights
of the Constitution because of its inca
pacity TO jeopardize them, but viii always,
under proper system of organization, be
citadel of safety to the vested rights of
the people. If the public functionary Is
the exponent of the people, the representa-
tive of their views-their voice In any
capacity wherein 1t is possible that q ma
jority should eontrol-it is peculiarly In
appropriate that a judge should be so
chosen, every object of which is entirely
foreign to his sphere of duty. Is 1t posi-
BILE for majority to delegate authority
upon abstract principles of lawl If so,
we are curious to know upon what
principles the clause in the Con-
stitution, as it now is, providing
for the election of the judiciary,
is not sustained by one single principle of
its organic philosophy, does not secure,
as it is impossible that it should, more
perfect representation of the popular
viii, and cannot give a more ef1cacious
enforcement of the expressions of its
viii, simply from the TACT that they are
the favorites of the majority, which Is
the only fact indicated by such an cleo
ton. On the other hand, we believe it
to be contrary to the whole spirit and
intention of its founders, that it Is not a
part of the representative principle, and
that there is an entire absence Of reason
for the provision, if such reason is to be
a conclusion from the premises of the
true principle of the government. There
is not only an entire absence OF useful
ness in the means adopted, but as we will
endeavor to indicate, there are many OBJ
jeetiOns necessarily incident to it. so far
from being part of the representative
system, the principal object of the
court Is to bind the wishes of q
majority within the limits Of the
organic law. "The true test of a
good government Is It's aptitude and ten
dency to produce q good administration "
Whatever course viii secure the greatest
good for the greatest number in the
aggregate, and not for a limited period,
viii necessitate its adoption. We do moi
believe that the election of judges by the
people can be effective of this, outside Of
other considerations. The people as 4
mass are not competent judges of the
ability of individuals TO fiji so responsible
a position, where 1t is the man, not meas
ures, that Is wanted. After a long politi-
cal canvass a successful aspirant must
become 50 contaminated and influenced
by affection and prejudice, as to be en-
tirely unfit to preside over the liberty and
property of individuals, and more espeei.
ally to act as checking power upon a
legislature with whom they are the
common opponents of a common con-
stituency. Seeking political favors from
parties or the individuals of one, Is
antangOnisiic TO the purity requisite
for the Judiciary. We may well expect,
in such a state, the corruption OF Lord
Bacon, though never his abilities. The
character of the aspirant and the whole re-
suit of such elections, are sufficient to con-
denim it, The half demsgogue pOliticO-
legal man, who balances between both pro
LESSONS, viii defeat the profound, legal
reasoner, who has devoted his life to his
clients interests and the mastery OF the
science of the law But another view /;
Suppose that the people are competent to
select, and that the selection preserves his
integrity, we insist that in this we lose
sight of the principle of the balance OF
power in the coordinate branches, and
that the government itself is not repre-
sented in its sovereign capacity. The
power of judgment belongs exclusively to
the representative of the State government
under its appropriate restrictions. The
people have no power in their legislative
capacity to interfere with the constituted
government, and the Judiciary, as the
exponent of the sovereignty, is the only
power to secure that primary law. We
maintain that the clause IN the COnStitu-
ton authorizing the election Of the Su-
preTne Judges is contradictory to the spirit
of the ceded powers to the government,
by depriving it of the exclusive power OF
Judgment In this view of the OrganiZa-
ton of the government we are sustained
by 10th authority and reason. The clause
in the Constitution of the United States
which provides for the nomination and
appointment of the Judiciary, we are Of
opinion, if adopted into our State COnsti-
tuition, would meet all requirements. The
Executive "shal have power to nomi-
nate, and by aud with the advice and
consent of the Senate, to appoint, Judges
of the Supreme Court. Nesting the
authority in the STATE Executive, with the
approval of the senate, to appoint the
Judges of the Supreme Court, we believe
would obviate the objections arising from
the elective system, and that such asystem
would be free from any new objection 10
itself. Such a course at once places upon
a responsible agent the responsible
ity arising from selection, and every
one must consent that in the aggre-
gate the court viii be composed Of
men of the finest order of abilities.
Adopting the language of another, we
NAV lay it down az a rule THAT one man
of discernment is better fitted to analyze
and estimate the peculiar qualities adapted
to a particular Office than body of men
of equal or perhaps even of superior dis
cernment With the responsibility upon
one man, he must become awakened to
the keenest sense of duty and to secure
what is to him stronger than affection or
favor, the approval of his people without
regard to party, he will act uninhuenced
BY either Every such appointment viii
be Il living monument Of the integrity,
the honesty and judgment of the appoint
ing Executive The endangertng OF q
reputation, which it has been life effort
to build, will, beyond doubt, secure
the sound judgment of the Executive
No one can question that this is the best
and only plan to secure the best abilities
and talent in the State. The power Of
the Senate to confirm or reject nOmina-
ton would be an additional security
against any imposition that an Executive
might attempt to practice.
To render certain the political integrity Of
Judges, the Constitution ought to provide
that no one should be eligible as Judge OF
the Supreme Court who has ever held OF
been a candidate for any political office IN
in the gift Of the people. Such provl'
sion would prevent the Judiciary from
being supporters Of any party or faction,
and the Executive who appoints, from
being influenced by party considerations.
There needs no argument to convince the
people of this State of the truth OF this.
Our experience, under a judiciary that
have been both appointed and elected
from parties and from party considera-
tons, is not soon to be forgotten. Gladly
would the whole people drop pail Of OBJ
liyion over the men and the measures who
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