COLLINS, DANIEL J. (Indep. League, 15th Dist., Kings) – Introduced 5 bills:

Making it a felony to sell morphine, opium or cocaine without prescriptions; two-cent ferriage on Greenpoint ferry; three-cent fares on elevated, subway and street cars between 5 A.M. and 8 A.M. and 5 P.M. and 8 P.M. in New York City; amending primary election law generally; abolishing offal docks in certain wards in Brooklyn.

RECORD: Inconspicuous and a cipher in legislation.

COLNE, WILLIAM W. (Rep., 11th Dist., Kings) - Introduced 3 bills:

Extending jurisdiction of Brooklyn Church Society of Methodist Episcopal Church; prohibiting trust companies from establishing branches, except trust companies in New York City may establish branches in any part of the State, with the consent of the Superintendent of Banks; erecting monument of John C. Fremont in Rockland Cemetery.

RECORD: Fairly useful and attentive; has not improved over record of last year.

DONNELLY, JOHN H. (Dem., 13th Dist., Kings) — Introduced 1 bill:

Providing for fixed salary and uniforms for City Marshals.
RECORD: Inactive; useless.

The effect of short terms on

judicial independence.

The mode of selection considered.

CHAPTER XXVI

THE JUDICIAL SYSTEM

192. The Independence of the Judiciary*

THE problem of what constitutes judicial independence and legislative incroachments upon it is thus treated by Mr. Henry B. Brown, in an address delivered before the American Bar Association in 1889:

There is a clear distinction between the independence of the judiciary as a governmental power, and the independence of the several judges composing it. There is here all the difference between a theoretical and practical independence — in other words, between independence in law and independence in fact. Thus the election or appointment of judges for short terms does not trench in any way upon the judicial functions; but it subjects the judges, as men endowed with the ordinary weaknesses of humanity, to temptations wholly inconsistent with that consciousness of independence, which lends such powerful encouragement to a fearless discharge of duty. Judges ought not only to be removed from temptation, but as far as possible from suspicion. If their reappointment or re-election is made at frequent periods, dependent upon the popularity of their decisions, to that extent their independence is subjected to the whims of the executive or the prejudices of the people.

I certainly do not intend to enter upon any wholesale denunciation of the system of electing judges. It has been in vogue in most of the states for about forty years, and, except in a few of the largest cities, has not been attended by disastrous results. If it has not fully met the expectations of its friends, it has certainly not justified the evil prophecies of its enemies. I have known excellent judges

who owed their seats to a political caucus and a popular election; I have known men of inferior calibre who owed their appointments to executive favor. If the people occasionally elevate men to the bench who have little to recommend them beyond the ability to pull wires at a caucus, the choice of the executive is sometimes determined by other considerations than the public interest. Upon the whole, except in large cities, the system of election may be said to have worked reasonably well, although I believe the judiciary as a rule stood higher under the old method of appointment. The ideal mode of choosing judges has perhaps yet to be discovered. In my view more depends upon the permanency of the judicial tenure than upon the particular method of selection.

The most ardent advocate of the right of the people to choose their own magistrates would hesitate to submit a fifty thousand dollar lawsuit to a judge who held his seat by annual election, if a strong personal or political friend of the judge were retained against him. If the judge were elected but once in four or six years, of course his hesitation would be correspondingly diminished, but the principle remains the same. The tenure should be during good behavior or for so long a term as to beget in the mind of the judge a habit of independence strong enough to overcome all considerations of fear or friendship. If to this long term be added ineligibility of re-election we have the strongest possible guaranty of independence. In this connection there should always be reserved a provision for the removal of incompetent judges (from whatever cause such incompetence may arise) upon the address of two-thirds of each house of the legislature.

It is not altogether easy to define the term judicial independence, or to determine what is and what is not an invasion of, or encroachment upon, it. Upon the one hand, we shall all agree that the legislature cannot remove a judge without cause (though it seems it may do this indirectly by abolishing the court), nor reduce his salary, nullify his judgments or set at naught his decisions. Upon the other hand, it will be conceded that it possesses unlimited power to determine the jurisdiction of courts, when and in what

The imporlength of

tance of the

term.

The judiciary and th legislature.

The relation

to the jury.

manner suits shall be begun, and to regulate the practice, pleadings and forms and modes of proceeding prior to the trial and, with some exceptions, subsequent to the verdict. It may to a certain extent control the trial itself by fixing the causes for which jurors may be exempted or challenged, prescribing rules of evidence and laying down principles of law which the court is bound to accept and enforce. Manifestly, however, this power is subject to certain limitations suggested by the provision contained in all our constitutions, that the right of trial by jury shall remain inviolate.

The question, however, which concerns us most directly in this of the judge connection is, whether the judge is a constituent part of a jury trial at common law. I have never seen nor heard of a jury trial in which there was not a judge who presided and took a more or less active part, and yet in the ordinary definitions of jury trial given by the lexicographers and elementary writers, he is ignored as completely as if he were a mere supernumerary. Even the judges themselves seem to assume that it is only the jury and the parties to the suit who are entitled to the constitutional protection. The question is one of no little importance. If the judge be the mere spokesman of the law, he is bound to a blind obedience to the will of the legislature in all that concerns the trial; on the other hand, if he be an indispensable and constituent factor in that proceeding known to the law as trial by jury, it is difficult to see why he is not as much entitled to protection against legislative interference in the discharge of his common law duties, as is the jury in the exercise of its proper functions.

Statutory restrictions

on judicial power.

These remarks are suggested by a series of statutes which have become fashionable in the southern and western states, (for there are fashions in legislation, and even in judicial opinions, as well as in dress) the object of which is apparently to secure the unbiased and unadvised opinion of the jury upon the facts, and an easy and accurate settlement of bills of exceptions, but the effect of which is to shear the judge of his proper magisterial functions and to reduce him to the level of a presiding officer, or the mere mouthpiece of counsel. These statutes are of the following classes:

(1.) Laws prohibiting judges from charging or commenting upon matters of fact.

(2.) Laws requiring all charges to be in writing.

(3.) Laws requiring the judge to give such instructions, and such only, as have been submitted to him by counsel, either with or without modification.

(4.) Laws requiring the court, at the request of counsel, to submit special questions to the jury, to be answered in addition to their general verdict.

193. The Judiciary as the Guardian of Private Rights*

The importance of the judiciary as the guardian of fundamental private rights against encroachments on behalf of special interests was fully discussed in the Maryland constitutional convention in 1851, and during the debate one of the delegates made this argument:

Now, sir, paradoxical as it may seem to some, I propose to show Dangers in that there is at least as much reason for making the judge indepen- trol of the popular condent of the people in this country, as there is in England for making judiciary. him independent of the crown. But at every point we are met with the notion, that the people have all power, and ought therefore to have control over the Judiciary. Sir, if the people have power to do wrong, it is the very purpose of government to restrain its exercise; for the only object which men can propose to themselves, by entering into such an association as civil Society, is to secure to themselves the enjoyment of their rights, and protect themselves against wrong. Are the eternal and immutable laws of justice less imperative, upon men when assembled, in large bodies, than they are when acting individually? Masses are but individuals in combination; and the laws which enjoin the observance of justice, and prohibit violence, or the practice of fraud, are as obligatory in the one case as in the other. Like the Being, from whom they emanate, the Rules of truth and equity are the same to-day, yesterday, and forever. In them "is no variableness, neither shadow of turning."