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question of the organization of the courts and distribution of jurisdiction principally to the legislature. In the beginning of our history, the judges of the higher courts were universally appointed, and held their offices during good behavior. Most of our constitutions, however, now provide that judges shall be elected by popular vote, usually for short terms. Only a few states have retained the ancient system.
In some of the newer states, we find radical departures from the traditional Anglo-Saxon legal doctrines. For example, in Oklahoma, prosecution by grand jury has been partially set aside in favor of prosecution by information; in county courts and courts not of record the petty jury is to consist, not of twelve, but of six men; and in civil cases and criminal cases involving crimes less than felony, unanimous verdict is not required, but three-fourths of the whole number of jurors may render a verdict. The ancient rule of law that a person is not required to give evidence tending to incriminate himself when testifying against any other person or corporation is abrogated in Oklahoma; and every person accused of violating or disobeying an injunction out of the presence or hearing of the court is entitled to trial by jury the right of a hearing being guaranteed in all cases before the imposition of any penalty or punishment for contempt. In order to expedite judicial business, a few states have resorted to the drastic device of refusing to pay the supreme court justices until they have finally decided the cases before them; and Oklahoma provides that they must render an opinion in every case within six months after it has been submitted.
The Multiplication of Elective Offices
We began our political history with a small number of elective offices - a short ballot. Under the first constitution of New York (1777), the governor, the lieutenant-governor, and the members of the legislature were the only state officers elected by popular vote; all others were selected by the council of appointment, consisting of the governor and four senators chosen by the assembly. Even sheriffs, county judges, and other county officers were appointed in the same manner. The first constitution of Virginia vested the choice of the members of the legisla
1 Readings, pp. 87 ff.
ture in the voters; the governor and other state officers were elected by joint ballot of the legislature; the justices of the peace were appointed by the governor; the sheriffs and coroners were appointed by the respective courts. Under the Massachusetts constitution, at first the governor, the lieutenant-governor, and the members of the legislature were elected by popular vote; the leading state officers were chosen by the legislature, and the minor state officers and some local officers were appointed by the governor. This general plan was adopted in the western states also. The Ohio constitution of 1802 provided that only the governor and the legislature should be elected by the people, and that the other state officers should be chosen by joint ballot of both houses.
As indicated above, our institutions underwent a democratic revolution, or what purported to be a democratic revolution, during the first half of the nineteenth century. Property and religious tests were swept away; the suffrage was extended to nearly all white males; and a multitude of appointive offices were made elective. The whole process is illustrated in the constitutional evolution of New York. The constitutional revision of 1821, which aimed to abolish the council of appointment rather than to democratize the entire system, left the leading state officers, except the governor and the lieutenant-governor, appointive, and gave the appointing power to the legislature.' The great revolution came in 1846, when the governor, lieutenantgovernor, secretary of state, comptroller, treasurer, attorneygeneral, state engineer and surveyor, canal commissioner, inspector of state prisons, the judges of the court of appeals and the justices of the supreme court, were made elective. A similar revolution occurred in all except a few states. New Jersey, for instance, escaped the tidal wave; the constitutional revision of 1844 left the judges and nearly all the state officers appointive.
It is commonly supposed that this great democratic upheaval was due to the leaven of French political philosophy working through Jeffersonian democracy. It is true that the notion of elective government was prominent in the philosophy of many French publicists; it was inherent in Rousseau's popular sovereignty, and found its way with a vengeance into the revolution
ary constitution of 1791, until the poor clodhopper's head, as Napoleon put it, was addled with elections. It is likewise true that Jefferson included elective government among the cardinal principles of his system. "We believed," he said, "that man was a rational animal, endowed by nature with rights and with an innate sense of justice; and that he could be restrained from wrong and protected in right by moderate powers confided to persons of his own choice and held to their duties by dependence on his own will." It is also true that the doctrine of an elective administration was propagated with great zeal by democratic enthusiasts during the sixty years that followed the establishment of our independence - propagated with such zeal that the people were converted and the notion was hardened into a political dogma.
Nevertheless there were potent forces besides "political principles" which precipitated this revolution. It requires no very deep research to discover that the appointive system worked badly in a large number of cases. A study of the debates of the state conventions which overthrew the older system yields abundant evidence in addition to that afforded by the controversial literature of the time. The early constitution-makers did not adopt a system that would fix responsibility. They were too much afraid of the governor, not merely on account of their republican ideas, but on account of their practical experience with the colonial governor, to intrust him with a considerable appointing power. In New York (1777), his appointive authority, as we have seen, was shared by a council of appointment, constructed by the following process. Once a year the assembly selected a senator from each of the four great districts into which the state was divided, and the four senators with the governor constituted the council; the governor was the presiding officer and had a casting vote only. In actual practice each member of the council claimed a nominating power equal to that of the governor, and until its abolition in 1821 this body was the centre of notorious partisan intrigues over patronage.
In denouncing the system in his message of 1820, Governor De Witt Clinton said: "The offices in the gift of this council are remunerated by salaries or fees to the amount of a million
1 Readings, p. 93.
dollars annually. Combinations will be formed to obtain control of this enormous patronage. And they will attempt to influence, in the first place, the elections of the people, by dictating under the forms and discipline of party; secondly, the selection of the appointing power; and thirdly, the operations of that institution. . . . With this principle of irritation in our constitution, the hydra of faction will be in constant operation, endeavoring to make its way to power sometimes by open denunciation, at others by secret intrigue, and always by artful approaches. The responsibility of public officers is essential to the due performance of their trust, and is demanded by the properties of delegated power and the best interests of the community. The council as constituted is almost destitute of this essential attribute. The political tranquillity of the state demands a different arrangement of the appointing power.1" In short,
it is difficult to imagine a system better calculated to introduce obscurity into the administration of a state.2
In the other commonwealths the appointing power was vested in the legislature or in the governor and senate, or distributed in such a way as to confuse responsibilities, entangle the legislature in administrative functions, and prevent the leading state offices from falling wholly under the control of any person or body of persons. The natural consequence seems to have been, in nearly every case, that the appointing power passed from the public authorities in which it was vested by law into the hands of organizations unknown to the law and only slightly or not at all subject to the pressure of public opinion. Appointment by the legislature on a large scale was a new experiment in American politics, for the power had not been generally exercised by colonial legislatures; and it required very little experience to demonstrate that appointment by a numerous assembly was about the most successful way of destroying responsibility that could have been devised.
The recognition of this fact is apparent in the debates of the mid-century conventions that overthrew the appointive system. The experiment, tried under the New York constitution of 1821,
'Cited in Lincoln, The Constitutional History of New York, Vol. III, p. 615. 2 See Gitterman, "The Council of Appointment in New York," in the Political Science Quarterly, Vol. VII, pp. 80 ff.
3 Except in New England.
of allowing the legislature to select some officers and the governor and senate to select others did not work much better than the old council of appointment; for an extra-legal machine known as the "Albany regency" sprang up and controlled all appointments by secret operations in the legislature. Appointment to office by the legislative department, said Mr. Williams in the Ohio convention of 1850, "has tended to embitter party spirit and convert the general assembly into a mere political arena, and to some extent corrupt the pure fountain of legislation.
is very certain that the principle which gives directly to the sovereign people the sole power of appointments to office is gaining ground." i
This view is confirmed by Rufus King in his work on Ohio. The legislature, he writes, "overloaded with the appointing power which had been taken away from the executive, became so much depraved in the traffic of offices, that in an assembly where there was a tie vote between the Democrats and Whigs, two Free Soilers held the balance of power and were permitted to choose a United States Senator in consideration of giving their votes for every other appointment to the party which aided them in this supreme exploit of jobbery." The transformation of the legislature into a chamber of intrigue for office-hunters also occurred in Illinois.3 In short, it seems to have happened in every state that tried the system.
This unhappy experience with a variety of appointing schemes, and certain prevalent theories of democracy brought our state constitution-makers gradually to the acceptance of the plan of popular election as the remedy for the evils which had sprung up and also as the goal of our political development. One after the other the old offices were made elective, and, as newer state offices of importance were created, the principle was applied as a matter of course. When it was suggested in a convention or legislature that the governor might appoint a state auditor or engineer or veterinarian, some advocate of fundamental democracy was sure to plead in tremulous tones the rights of the people. "I believe the voters of this commonwealth are competent to
1 Debates and Proceedings of the Convention for the Revision of the Constitu tion of the State of Ohio (1850-51), Vol. I, p. 87.
'King, Ohio, p. 291.
Davidson and Stuvé, History of Illinois, pp. 297 ff.