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lawyers of ability, gentlemen of unimpeached and unimpeachable integrity, to accept these judgeships for the utterly inadequate salaries which in nine out of ten States we pay them, is little less than marvellous, and speaks volumes for that esprit de corps of our bar which prizes these judicial honors without regard to the meagerness of the compensation.
In an age when the commercial spirit threatens to ignore all fundamental principles in its race for wealth, the courts and the bar so far stand out as a marked and conspicuous exception.
But should we longer take the chances ? Human nature sets small value upon the things that cost little. Is it not high time that the people should be educated to the importance of seeing that their courts are not depreciated because of the niggardliness of their compensation? We are often met with the argument, and I regret to say I sometimes hear it from lawyers, that so long as we get the best or among the best lawyers for our circuit judges at our present low salaries, we need not tax ourselves to increase their compensation; in other words, we ought not to bid against ourselves; a strange misconception of what we owe to ourselves—forgetting that these courts are our courts, and it is our duty to so adjust their salaries that these judges who have the power, and whose duty it is, to decide upon the right to life, liberty and property, should be provided with a support which would at least not suggest temptation, and would leave them free from immediate anxiety concerning the means of a comfortable existence for themselves and their families.
Is it not a strange conception of relative importance, that in many of the States, as in Missouri, in the matter of compensation we place the circuit judge, upon whom is devolved the duty and power of trying the very issues of life and death; of liberty, and the most important and sacred property rights, in districts averaging one hundred thousand souls, on the same level with the chief clerks of the State Auditor, State Treasurer and other executive departments, and below that which we pay our county recorders of deeds, county collectors of revenue, and the Assistant of the Attorney-General, and a third less than we pay our Railroad Commissioners, whose most onerous duty is a trip to the capital to draw their salaries. Is it not time that the bar should speak out and insist on a correction of this outrageous inequality-seeing that self respect forbids these judges appearing at the legislative door and humbly begging for a proper and appropriate compensation for their services.
I rejoice that in many States the trend is now in the direction of more liberal salaries, and I am sure that when all the States adopt the policy of just compensation for their nisi prius judges, and for that matter, for all judges, we will have the most capable lawyers on our circuit bench, and the judiciary will be correspondingly elevated in the estimation of both people and bar. In no State ought the salary to be less than $3,600.00, and in the rich and populous States they ought to receive at least $5,000.00 per annum..
All thoughtful men agree that to insure an effective and satisfactory judiciary the tenure of the office must be long enough to insure the independence of the incumbent. I do not think the term of the circuit judge should be less than six
My recollection is that in Virginia you elect for a term of eight years. In Missouri the term is six years. In each, the judge who proves himself worthy is certain of re-election, so long as he retains his mental and physical capacity to perform the duties of his office.
In Missouri, while largely descendants of Virginia, we have not followed your inethod of electing by the Legislature, but the people elect all judges. We believe that no position in government can be so exalted that its occupant should be exempt from high responsibility to the people in the aggregate, and that a sense of such responsibility in nowise lessens the efficiency or destroys the independence of the judge. We feel that we have demonstrated that the pessimistic opinion so often expressed in the early days of the Republic, that the people could not be safely entrusted to fill these high offices, was without foundation, and that the mistakes of the bar and the people in electing their own judges have been quite as rare as those made by the Governors and Legislatures in other States. Our system has elevated to our supreme bench in Missouri such jurists as William Scott, William B. Napton and Abiel Leonard, judges whose learning and impartiality have enriched not only the jurisprudence of their own State, but of our common country, and we mention with pride that only once in the last fifteen years has the judgment of our Supreme Court been reversed by the Supreme Court of the United States, and in that case by a divided court, and then solely on a question of Federal jurisdiction. This same system has produced a Ryan, in Wisconsin, and a Scholfield, in Illinois, each of whom were Democrats, nominated by Democratic conventions, in strongly Republican States, and triumphantly elected. Mr. Justice Miller, who was a strong advocate of the appointing system, said in his address before the New York State Bar Association in November, 1878, "that it must be confessed that the party conventions have been much more careful in their nominations for judicial offices than in those of any other class.” The elective system now obtains in nearly all the States, Georgia having adepted it in 1895 for the election of her Supreme Court.
In measuring our individual circuit judge, his competency may be tested largely by the character of his court. should visit his court room and find him in his place on the bench, clerk and sheriff on hand, members of the bar present, causes regularly and carefully and courteously disposed of; if, when a notion or demurrer is called for argument, each side is patiently and politely heard, and opposing counsel treat each other candidly and show “the sweet small courtesies” that refine our lives; if, when a jury is demanded, the regular panel step promptly in the jury box, and when a witness is called, he is in waiting, and when he takes the stand, is treated as a disinterested party, and not as a criminal, and is not permitted to be hectored and badgered out of his wits, we at once recognize that we are in a place dedicated to the administration of justice, and we are ready to say, in such a place, and by such a court,
justice will be done and the dignity of the law maintained. But if in another circuit, we find the judge, not on the bench but sitting by the fireplace smoking his pipe; and we discern no apparent restraint on bar, witnesses, jurors or spectators, and when counsel address the court, they remain sitting or in half recumbent position, and when an objection is made, it is the signal for a wrangle and a game of seesaw with the court, and when the objection is overruled, hear the objecting counsel in loud and supercilious manner demand that his exception shall be noted; and if scanning the court room the feet of the bar on the bar tables are the most prominent objects, and these, though not at all diminutive, scarcely discernible in the smoke that rises from cob pipes and villainous cigars, it will require no painter to depict the disgust that such a scene will excite.
For such a court neither bar nor public will have any respect, neither does it deserve any. Mr. President, both sketches have been true to life in some of our greatest States; they are not the figments of disordered imagination.
Thank God we have about left the last to a merited oblivion. I presume you have never seen it in this grand “Old Dominion," and doubtless you never will.
When we consider that it is in the person of the nisi prius judge we expect the dignity of our courts to be preserved; that it is to him we look to preserve at all times the true relation between litigants, counsel, witnesses and jurors in his court; that he is expected to see that crime is punished in his circuit and the innocent protected, notwithstanding the clamor of the rabble; when we demand of him expeditious trials, and to track the law, though surrounded by attorneys burning with zeal and eloquence for their clients, and to hold on to the golden cord of justice in all the mazes and labyrinths into which astute and able counsel seek to lead him, do I announce any heresy when I say that the nisi prius judge ought to be no less learned and equipped than the supreme judge, and that the public weal would be better subserved by having him even an abler, firmer and readier man than the appellate judge? If such he always were, it would prove the most effectual way of relieving the overcrowded dockets of our Supreme Courts, of which we hear so much.
What matters it to the trial judge, that he sees, feels and realizes that by his impartial enforcement of the law, the earnings of a lifetime of honor and industry are to be swept away by his judgment, or worse yet, what is it to him that in a moment of temptation or trial it may be, an act is committed for the perpetration of which, he sees not only the liberty or life of the culprit in the balance, but the hopes and record of generations of honorable men and women about to be forever blasted—the pride of a century devoted to patriotism and virtue brought low: what is it to him that he hears the smothered sob of a broken-hearted wife or mother, or sees a pearly tear, more eloquent than all the speech since Adam's time, trickle and fall; his heart must be steel; his eyes must be "unused to the melting mood," and looking over and beyond human misery, and uninfluenced by former or present extraneous knowledge, he must see the cold, stubborn facts, and seeing them he must write "ita lex scripta est," or be accused forever.
And thus we have seen him, true to the obligations of his oath, with an eye single to the honor of his position, loyal to the law whose representative he was, hold the scales of justice with an unshaken hand, despite the demands of an infuriated populace on the one hand, and the efforts at delay on the other.
At other times, when a thoughtless, and sometimes a venal press have for personal or political reasons assailed him, we have seen him bear himself as only one who is conscious of his own integrity and imbued with a sense of his lofty calling can conduct himself, and perform his duty impartially, feeling and knowing that his vindication would come when passion subsided and reason resumed her sway.
With such conditions an appellate judge has nothing to do. He sees only the cold and inanimate record and is required to look only to see what errors of law, if any, were committed, little