it. In the rest a judge is elected or appointed for a term, varying from two years in Vermont to twenty-one years in Pennsylvania. Eight to ten years is the average term prescribed; but a judge is always re-eligible, and likely to be re-elected if he be not too old, if he has given satisfaction to the bar, and if he has not offended the party which placed him on the bench.

The salaries paid to State judges of the higher courts range from $8500 (£1700), (chief-justice), in Pennsylvania, and $7000 (£1400) + $2000 (£400) for expenses in New York, to $2000 in Oregon. $4000 to $5000 (£800 to £1000) is the average, a sum which, especially in the greater States, fails to attract the best legal talent. Judges of the inferior courts of course receive salaries proportionately lower. In general the new Western States are the worst paymasters, their population of farmers not perceiving the importance of securing high ability on the bench, and deeming $4000 a larger sum than a quiet-living man can need. The lowness of the scale on which the salaries of Federal judges are fixed confirms this tendency.

2

Any one of the three phenomena I have described-popular elections, short terms, and small salaries-would be sufficient to lower the character of the judiciary. Popular elections throw the choice into the hands of political parties, that is to say, of knots of wirepullers inclined to use every office as a means of rewarding political services, and garrisoning with grateful partisans posts which may conceivably become of political importance. Short terms oblige the judge to remember and keep on good terms with those who have made him what he is, and in whose hands his fortunes lie. They induce timidity, they discourage independence. And small salaries prevent able men from offering themselves for places whose income is perhaps only one-tenth of what a leading barrister can make by private practice. Putting the three sources of mischief together, no one will be surprised to hear that in many of the American States the State judges are men of moderate abilities and scanty learning, inferior,

1 Massachusetts, Rhode Island, New Hampshire, Delaware, all of them among the original thirteen. In New Hampshire and Delaware the judge must retire at seventy years of age. In Florida, though the three justices of the supreme court are now (Constitution of 1886) elected by the people, the seven circuit judges are appointed by the governor.

2 Vermont and New Hampshire also pay their supreme court judges only $2500 (£500) and $2700 respectively.

and sometimes vastly inferior, to the best of the advocates who practise before them. It is more hard to express a general opinion as to their character, and particularly as to what is called, even in America where robes are not worn, the "purity of the judicial ermine." Pecuniary corruption seems, so far as a stranger can ascertain, to be rare, perhaps very rare, but there are other ways in which sinister influences can play on a judge's mind, and impair that confidence in his impartiality which is almost as necessary as impartiality itself. And apart from all questions of dishonesty or unfairness, it is an evil that the bench should not be intellectually and socially at least on a level with the bar.

The mischief is serious. But I must own that it is smaller than a European observer is prepared to expect. In most of the twenty-four States where this system prevails the bench is respectable; and in some it is occasionally adorned by men of the highest eminence. Not even in California or Arkansas are the results so lamentable as might have been predicted. New York City, under the dominion of the Tweed Ring, has afforded the only instance of flagrant judicial scandals; and even in those loathsome days, the Court of Appeals at Albany, the highest tribunal of the State, retained the respect of good citizens. Justice in civil causes between man and man is fairly administered over the whole Union, and the frequent failures to convict criminals, or punish them when convicted, are attributable not so much either to weakness or to partiality on a judge's part as to the tenderness of juries and the inordinate delays and complexity of criminal procedure.

Why then have sources of evil so grave failed to produce correspondingly grave results? Three reasons may be suggested:

One is the co-existence in every State of the Federal tribunals, presided over by judges who are usually capable and always upright. Their presence helps to keep the State judges, however personally inferior, from losing the sense of responsibility and dignity which befits the judicial office, and makes even party wirepullers ashamed of nominating as candidates notoriously incapable or tainted men.

Another is the influence of a public opinion which not only recognizes the interest the community has in an honest administration of the law, but recoils from turpitude in a highly placed

official. The people act as a check upon the party conventions that choose candidates, by making them feel that they damage themselves and their cause if they run a man of doubtful character, and the judge himself is made to dread public opinion in the criticisms of a very unreticent press. Democratic theory, which has done a mischief in introducing the elective system, partly cures it by subjecting the bench to a light of publicity which makes honesty the safest policy. Whatever passes in court is, or may be, reported. The judge must give his reasons

for every judgment he delivers.

Lastly, there is the influence of the bar, a potent influence even in the present day, when its role is less brilliant than in former generations. The local party leaders who select the candidates and " run" the conventions are in some States mostly lawyers themselves, or at least in close relations with some leading lawyers of the State or district. Now lawyers have not only a professional dislike to the entrusting of law to incapable hands, the kind of dislike which a skilled bricklayer has to seeing walls badly laid, but they have a personal interest in getting fairly competent men before whom to plead. It is no pleasure to them to have a judge so ignorant or so weak that a good argument is thrown away upon him, or that you can feel no confidence that the opinion given to a client, or a point of law which you think clear, will be verified by the decision of the court. Hence the bar often contrives to make a party nomination for judicial office fall, not indeed on a leading barrister, because a leading barrister will not accept a place with $4000 a year, when he can make $14,000 by private practice, but on as competent a member of the party as can be got to take the post. Having constantly inquired, in every State I visited wherein the system of popular elections to judgeships prevails, how it happened that the judges were not worse, I was usually told that the bar had interposed to prevent such and such a bad nomination, or had agreed to recommend such and such a person as a candidate, and that the party had yielded to the wishes of the bar. Occasionally, when the wirepullers are on their good behaviour, or the bar is exceptionally public-spirited, a person will be brought forward who has no claims except those of character and learning. But it is perhaps more common for the lawyers to put pressure on one or other party in nominating its party candidates to select capable ones. Thus when a few years ago the Republicans of New York State

were running bad candidates, some leading Republican lawyers persuaded the Democrats to nominate better men, and thereupon issued an appeal in favour of these latter, who were accordingly carried at the ensuing election.

These causes, and especially the last, go far to nullify the malign effects of popular election and short terms. But they cannot equally nullify the effect of small salaries. Accordingly,

while corruption and partiality are uncommon among State judges, inferiority to the practising counsel is a conspicuous and frequent fault.

One is obliged to speak generally, because there are differences between the various States too numerous to be particularized. In some, especially in the North-West, the tone of the party managers and of the bar is respectable, and the sense of common interest makes everybody wish to have as good men as the salaries will secure. In others there are traditions which even unscrupulous wirepullers fear to violate. Pennsylvania, for instance, though her legislature and her city governments have been impure, and little under the influence of the bar, still generally elects capable judges. The scandals of Barnard and Cardozo 2 were due to the fact that the vast and ignorant population of New York was dominated by a gang of professional politicians who neither fear the good citizens nor regarded the bar.

As there are institutions which do not work as well as they theoretically ought, so there are happily others which work better. The sale of offices under the old monarchy of France, the sale of commissions in the English army till 1871, the sale of advowsons and next presentations to livings which still exists in the Anglican Church Establishment, the bribery of electors which has only the other day been extinguished in England, were or are all of them indefensible in theory, all mischievous in practice. But none of them did so much harm as a philosophical observer would have predicted, because other causes were at work to mitigate and minimize their evils.

During the last few years there has been a distinct change for the better. Some States which had vested the appointment of judges in the legislature, like Connecticut, or in the people, like

1 Pennsylvania, it is fair to say, pays better than most States, and gives long terms, so she can obtain better men than most.

2 The notorious Tweed Ring judges of twenty years ago.

Mississippi, have by recent constitutional amendments or new Constitutions, given it to the governor with the consent of the legislature or of one house thereof.1 Others have raised the

salaries, or lengthened the terms of the judges, or, like New York, have introduced both these reforms. Within the decade ending December 1886, though twenty-eight States altered their Constitutions, no one, except Florida, took appointments from legislature or governor to entrust them to popular vote. In this point at least, the tide of democracy which went on rising for so many years, seems to have begun to recede from the high-water mark of 1840-1860. The American people, if sometimes bold in their experiments, have a fund of good sense which makes them watchful of results, and not unwilling to reconsider their former decisions.

1 In Connecticut the change was made at the instance of the Bar Association of the State, which had seen with regret that the dominant party in the State legislature was placing inferior men on the bench.