Certainly the result of all that I have been able to gather is a general and strong opinion against the new system; and in favor of a return, if to return were possible, to that which we are yet proud and privileged to call our own. But the evidence is too loose for the slightest consideration. My friend for Manchester read letters yesterday from persons of high character, as he assured us, in New York, deploring the working of her new system; and I have no doubt that the witnesses are respectable, and the opinions perfectly sound. But other gentlemen guess that very different letters might be obtained, by applying to the right quarters; and the gentleman from New Bedford, [Mr. French,] is quite confident that the people of that great State - the two or three millions—are in favor of the change, because one, if not two, or even three individuals have personally told him so. And, therefore, I say, we have not here now so much evidence of the practical working of their recent systems anywhere, even as far as it has gone, that any honest lawyer would advise his client to risk a hundred dollars on it.

But, on the other hand, are there not most weighty opinions; is there not the testimony of the widest, and longest, and most satisfactory experience, that executive appointment for good behavior yields the best judge?

What is British opinion and British experience to the point? On the question what tenure of office promises the best judge, that opinion and that experience may well be adverted to. Whether a particular mode, or a particular tenure, is consonant to the republican polity of government, we must settle for ourselves. That is another question. Monarchical and aristocratical principles we will not go for to England or elsewhere, nor buy even learning, impartiality, and titles to trust, at the cost of an anti-republican system. But to know how it practically operates to have the judge dependent on the power that appoints him; dependent for his continuance in office; dependent for his restoration to it; dependent on anything or on anybody but his own official good behavior, and that general responsibility to the legislature and public opinion, "that spirit of observation and censure which modifies and controls the whole government we may very well consult British or any other experience. The establishment of the

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tenure of good behavior was a triumph of liberty. It was a triumph of popular liberty against the crown. Before the revolution of 1688, or certainly during the worst years of the Stuart dynasty, the judge held office at the pleasure of the king who appointed him. What was the consequence? He was the tool of the hand that made and unmade him. Scroggs and Jeffreys were but representatives and exemplifications of a system. A whole bench sometimes was packed for the enforcement of some new and more flagrant royal usurpation. Outraged and in mourning by judicial subserviency and judicial murder, England discerned at the revolution that her liberty was incompletely recovered and imperfectly guarded, unless she had judges by whom the boast that an Englishman's house is his castle, should be elevated from a phrase to a fact; from an abstract right to a secure enjoyment, so that, although that house were "a cottage with a thatched roof which all the winds might enter, the king could not." To that end the Act of Settlement made the tenure of good behavior a part of the British Constitution; and a later amendment kept the judicial commission alive, as my friend for Manchester yesterday reminded us, notwithstanding the demise of the sovereign, and perfected the system. Sir, the origin of the tenure of good behavior—marking thus an epoch in the progress of liberty; a victory, so to say, of individuality, of private right, of the household hearth of the cottager, of the "swink'd hedger," over the crown, and still more, its practical workings in the judicial character and function, may well entitle it to thoughtful treatment. Compare the series of British judges since 1688 with that before, and draw your own conclusions. Not that all this improvement, in impartiality, in character, in titles to confidence and affection is due to the change of tenure; but the soundest historians of that Constitution recognize that that is one element of transcendent importance. With its introduction she began to have a government of laws and not of men.

I come to other testimony, other opinions -the lights of a different experience. There is a certain transaction and document called the Federal Constitution. Consult that. In 1787, that Convention, — assisted by the thoughts and discussions of the five years of peace preceding it, upon the sub

ject of national government, to be constructed on the republican form of polity—into which were gathered all, or almost all, of our great men, in our age of greatness; men of deep studies, ripe wisdom, illustrious reputation, a high spirit of liberty; that Convention, upon a careful survey of the institutions of the States of America, and of those of other countries, and times past and present; upon, I think we cannot doubt, a profound appreciation of the true functions of a judicial department; of the qualities of a good judge; of the best system of appointment and tenure to obtain them-of the true nature of republican government-and how far, consistently with all its characteristic principles and aims, the people may well determine to appoint to office indirectly, rather than directly, and for good behavior, rather than for a limited term, when the great ends of the stability of justice, and the security of private right prescribe it-incorporated into the great organic law of the Union the principle that judges shall be appointed by the executive power, to hold their office during good behavior.

The gentleman from Lowell [Mr. Butler] last evening observed, referring, I believe, to the time when our Constitution was adopted, that it was long before the age of the steamboat and railroad and magnetic telegraph. It is true; but do we know better than they knew, the nature of man; the nature of the judicial man; what he ought to be to discharge his specific functions aright; how motives, motives of ambition, of fear, of true fame, of high principle, affect him; whether dependence on another power is favorable to independence of the wishes and the will of that other power? Do we know more of republican government and true liberty, and the reconciliations of personal security under due course of law with the loftiest spirit of freedom, than they? Has the advancement of this kind of knowledge quite kept pace with that of the science of the material world?

I wish, Sir, the time of the Convention would allow me to read entire that paper of "The Federalist," the seventy-eighth I believe, in which the principle of the independence of the judiciary is vindicated, and executive appointment, during good behavior, as the means of attaining such independence, is vindicated also. But read it for yourselves. Hear Hamilton

and Madison and Jay; for we know from all sources that on this subject that paper expressed the opinions of all, on the independence of the judiciary, and the means of securing it, — a vast subject adequately illustrated by the highest human intelligence and learning and purity of principle and of public life.

Sir, it is quite a striking reminiscence, that this very paper of The Federalist," which thus maintains the independence of the judiciary, is among the earliest, perhaps the earliest, enunciation and vindication, in this country, of that great truth, that in the American politics, the written Constitution—which is the record of the popular will is above the law which is the will of the legislature merely; that if the two are in conflict, the law must yield and the Constitution must rule; and that to determine whether such a conflict exists, and if so, to pronounce the law invalid, is, from the nature of the judicial office, the plain duty of the judge. In that paper this fundamental proposition of our system was first presented, or first elaborately presented, to the American mind; its solidity and its value were established by unanswerable reasoning; and the conclusion that a bench, which was charged with a trust so vast and so delicate, should be as independent as the lot of humanity would admit of the legislature, of the executive, of the temporary popular majority, whose will it might be required thus to subject to the higher will of the Constitution, was deduced by a moral demonstration. Beware, Sir, lest truths so indissolubly connected-presented together, at first; -adopted together should die together. Consider whether, when the judge ceases to be independent, the Constitution will not cease to be supreme. If the Constitution does not maintain the judge against the legislature, and the executive, will the judge maintain the Constitution against the legislature and the executive ?

What the working of this principle in the national government has been, practically, there is no need to remind you. Recall the series of names, the dead and living, who have illustrated that Bench; advert to the prolonged terms of service of which the country has had the enjoyment; trace the growth of the national jurisprudence; compare it with any other production of American mind or liberty; then trace the

progress and tendencies of political opinions, and say if it has not given us stability and security, and yet left our liberties unabridged.

I find a third argument for the principle of executive appointment during good behavior, in this: that it is the existing system of Massachusetts, and it has operated with admirable success. It is not that it exists; it is that it works well. Does it not? Sir, is it for me, or any man, any member of the profession of the law most of all, to rise here, and now, and because our feelings may have sometimes been ruffled or wounded by a passage with the Bench; because we have been dissatisfied by a ruling or a verdict; because our own over-wrought brain may have caused us, in some moment, to become forgetful of ourselves; or because a judge may have misunderstood us, and done us an unintentional injury — is it for us to disclaim the praise, so grateful, so just, which the two eminent gentlemen, one of them formerly of New-Hampshire [Mr. Parker], one of them formerly of Maine [Mr. Greenleaf], speaking without the partiality of native sons, and from observations made by them from a point of view outside of us, and distant from us - have bestowed on our Bench and our law? Theirs are lips from which even flattery were sweet; but when they concur in reminding you with what respect the decisions of this court are consulted by other courts of learning and character; how far their reputation has extended; how familiar is the profession of law with the great names of our judicial history; how important a contribution to American jurisprudence, and even to the general products of American thought, our local code composes-do we not believe that they utter their personal convictions, and that the high compliment is as deserved as it is pleasing?

If it has worked well, it is good. Do men gather grapes of thorns, or figs of thistles? If it has continued to us a long succession of men, deeply learned, wholly impartial, deserving, and clothed with the trust, love, and affectionate admiration of all parties of the community, does it not afford a reasonable ground of inference that there is something in such a mode of appointment, and in such a tenure, intrinsically, philosophi cally adapted to insure such a result?

Some criticism has been made on the practical administra