第90章

Even the quality of justice, though necessary to all human beings, and therefore to all electors, is not the inducement which decides any popular election. Justice and impartiality are as little wanted for electing a member of Parliament as they can be in any transaction of men. The electors have not to award something which either candidate has a right to, nor to pass judgment on the general merits of the competitors, but to declare which of them has most of their personal confidence, or best represents their political convictions. A judge is bound to treat his political friend, or the person best known to him, exactly as he treats other people; but it would be a breach of duty as well as an absurdity if an elector did so. No argument can be grounded on the beneficial effect produced on judges, as on all other functionaries, by the moral jurisdiction of opinion; for even in this respect, that which really exercises a useful control over the proceedings of a judge, when fit for the judicial office, is not (except sometimes in political cases) the opinion of the community generally, but that of the only public by whom his conduct or qualifications can be duly estimated, the bar of his own court.

I must not be understood to say that the participation of the general public in the administration of justice is of no importance; it is of the greatest: but in what manner? By the actual discharge of a part of the judicial office, in the capacity of jurymen. This is one of the few cases in politics in which it is better that the people should act directly and personally than through their representatives; being almost the only case in which the errors that a person exercising authority may commit can be better borne than the consequences of making him responsible for them. If a judge could be removed from office by a popular vote, whoever was desirous of supplanting him would make capital for that purpose out of all his judicial decisions; would carry all of them, as far as he found practicable, by irregular appeal before a public opinion wholly incompetent, for want of having heard the case, or from having heard it without either the precautions or the impartiality belonging to a judicial hearing; would play upon popular passion and prejudice where they existed, and take pains to arouse them where they did not. And in this, if the case were interesting, and he took sufficient trouble, he would infallibly be successful, unless the judge or his friends descended into the arena, and made equally powerful appeals on the other side. Judges would end by feeling that they risked their office upon every decision they gave in a case susceptible of general interest, and that it was less essential for them to consider what decision was just than what would be most applauded by the public, or would least admit of insidious misrepresentation. The practice introduced by some of the new or revised State Constitutions in America, of submitting judicial officers to periodical popular re-election, will be found, I apprehend, to be one of the most dangerous errors ever yet committed by democracy: and, were it not that the practical good sense which never totally deserts the people of the United States is said to be producing a reaction, likely in no long time to lead to the retraction of the error, it might with reason be regarded as the first great downward step in the degeneration of modern democratic government.*

* I have been informed, however, that in the States which have made their judges elective, the choice is not really made by the people, but by the leaders of parties; no elector ever thinking of voting for any one but the party candidate: and that, in consequence, the person elected is usually in effect the same who would have been appointed to the office by the President or by the Governor of the State. Thus one bad practice limits and corrects another; and the habit of voting en masse under a party banner, which is so full of evil in all cases in which the function of electing is rightly vested in the people, tends to alleviate a still greater mischief in a case where the officer to be elected is one who ought to be chosen not by the people but for them.

With regard to that large and important body which constitutes the permanent strength of the public service, those who do not change with changes of politics, but remain to aid every minister by their experience and traditions, inform him by their knowledge of business, and conduct official details under his general control; those, in short, who form the class of professional public servants, entering their profession as others do while young, in the hope of rising progressively to its higher grades as they advance in life; it is evidently inadmissible that these should be liable to be turned out, and deprived of the whole benefit of their previous service, except for positive, proved, and serious misconduct. Not, of course, such delinquency only as makes them amenable to the law; but voluntary neglect of duty, or conduct implying untrustworthiness for the purposes for which their trust is given them. Since, therefore, unless in case of personal culpability, there is no way of getting rid of them except by quartering them on the public as pensioners, it is of the greatest importance that the appointments should be well made in the first instance; and it remains to be considered by what mode of appointment this purpose can best be attained.