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D E B A T ES

OF THE

CONSTITUTIONAL CONVENTION

OF THE

STATE OF MARYLAND,

Assembled at the City of Annapolis, Wednesday, April 27, 1864 :

BEING A FULL AND COMPLETE REPORT OF THE DEBATES AND PROCEED-
INGS OF THE CONVENTION, TOGETHER WITH THE OLD CONSTI-
TUTION, THE LAW UNDER WHICH THE CONVENTION

ASSEMBLED, AND THE NEW CONSTITUTION.

OFFICIAL:

WM. BLAIR LORD, REPORTER-HENRY M. PARKHURST, ASSISTANT.

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Mr. ABBOTT. It does not accomplish the office by a constituency, are not the highest object which I have in view, which is to test recommendations for a judge. I think the the question at once.

experience throughout the country, wherever Mr. THRUSTON. I will withdraw the amend- it has been tried, is that the independency of ment for the present.

the judiciary is better promoted by a system Mr. MORGAN demanded the yeas and nays such as is here recommended. I shall thereupon Mr. ABBOTT's amendment, and they fore vote against the motion which has been were ordered.

made by iny colleague. Mr. STOCKBRIDGE. I do not know that there Mr. Thomas. I am as much indisposed as is any object to be attained by taking up the my colleague (Mr. Stockbridge,) to make any time of the convention by any discussion of extended remarks in relation to the proposithese two great systems. They have been lion submitted by the gentleman from Balbefore the country a great many years; and timore city (Mr. Abbott) to strike out the probably every member of the convention has word "appointment." And I am as fixed in his judgment fully matured upon the subject. my opinion as to the expediency and justice I shall therefore not take up the time of the of the election of judges as of all other officers convention by any disoussion. I have my of the people, as he is in relation to the apown opinion npon the subject, very clearly pointment. I will say here in relation to defined, what is best for the people, and what those opinions that they are not newly born. is best for the State. That opinion is embo I have held them from the time I was a boy; bied in the report. I am satisfied that the from the time I first commenced to mix and plan bere presented for the consideration of mingle among the people of the State. While the convention is the one which in the end the gentleman says that he believes that a will give most satisfaction to the people of great portion of the people of the State die in Maryland. I am satisfied of it upon general favor of the appointment system. principles, and as the result of observation Mr. STOCKBRIDGE. I did not say that. during the last fifteen years in the State, un- Mr. THOMAS. Then

Then I beg pardon; but I der both systems, first the one and then the assert that in so far as my immediate conother. But there are other gentlemen present stituency is concerned, that portion of the who have perhaps had the same opportunities State which I represent, being the working for observation that I have. I am satisfied men of the State, they are unwilling to give that all the essential qualities of a judge, as up this right of the election of judges by the set forth by us in two of the sections of the de- people. claration of rights, can better be attained un- The gentleman has read from the bill of der the system reported here than by the adop- rights in relation to the uprightness and intion of the proposition of my colleague (Mr. tegrity of judges. I suppose that he wants Abbott.) We have said :

to argue from that that the people cannot "Art. 18. That every man, for any injury elect good and upright judges. We have had done to him in his person or property, ought an experience of fourteen years in the State to have remedy by the course of the law of of Maryland under the elective system; and I the land, and ought to have justice and right assert without any fear of contradiction from freely without sale, fully without any denial, any quarter, that as a general thing the judiand speedily without delay, according to the ciary of Maryland this day is as good as could law of the land.'

be selected for the price you pay to the men We have said also :

put in office. There is another principle in "Art. 32. That the independency and up- the bill of rights which is as much to be rerightness of judges are essential to the impar- garded by this convention, in the prorisions tial administration of justice, and a great se- which they will put into this new constitucurity to the rights and liberties of the peo- tion, as the section which the gentleman bas ple.

read. The first article of the bill of rights In the adoption of these two cardinal prin says that all government of right originates ciples, I believe we are all agreed. The only in the people; and the second section says question which divides us is, which of these that the people of the State have the sole and systems will best conduce to the great ohjects exclusive right of regulating the internal govthere specified and aimed at. I have no doubt, ernment and police thereof. upon that subject.

The gentleman says that the judicial power It should be borne in mind that the judicial of the State is not a representative power. office is in no sense a representative office. I will admit it; but still it is a power of the Wherever the people are to be represented State. It is the most important power of the through their agents, it is undoubtedly best State. Your legislature, which is to be the that the people should freely and intelligently immediate representative of the people, might exercise their choice. But this is one of the go to work and pass its laws; and if those offices which calls into requisition higher laws are unconstitutional they are to go bequalities than wbat are supposed to constitute fore the court of appeals, and their constituthe popular man in the community. A flu- tionality is to be decided by that court of ent tongue, and a knack of getting elected to appeals. So far as that is concerned, your

ments.

court of appeals does represent the people, be- rated it into the constitution, where it stood cause the judiciary is the check upon that until the days of reform swept it away--bebrunch of the government, to prevent their lieving this, it is my candid opinion that if passing illegal and unconstitutional enact- any other system were to be incorporated in

to the constitution than an elective system The judicial power of the State acts more of the judiciary, it would injure the consticlosely upon the people than any other de- tution before the people and it is this which partment of the government. I assert that induces me to support the amendment of my the poor man, the man of bone and sinew, friend from Baltimore city (Mr. Abbott.) the real working man of the State, looks and Mr. Thruston. I think this is a question feels as strongly towards this principle of upon which we are all bound to give our the election of judges and sheriffs and clerks, testimony so far as we can with regard to as to the election of the man who is to repre- which is the preferable system. The people seut him in the legislative balls. I deny that whom I in part represent are made up mostly if the people are competent, as they are, to of mechanics and laboriny men. I have elect the governor, and members of the gene- | taken great pains to converse with them ral assembly, that they are not as fully com- whenever an opportunity occurred, and I petent to elect their judges. There may have have found them almost universally in favor been abuses in the elective system; and under of an appointive system. They have lived what system have there not been abuses ? under both systems. We find that the elective You cannot change human nature by the sys- system does not secure judges as unbiased tem of appointment. The governor of the and free from prejudice as the appointive State is a mere man; and when he exercises system, of which my constituents, I am sure the right which the constitution gives him, in a large number of them, are in favor. I am appointing men to office, in nine cases out of sure that if we incorporate that system into ten he will appoint his own political friends. the constitution it will secure in that neighIt is not the same way with the people of borhood additional support to it. your State. The people of your State, as a gen- Men are not fitted from mere personal popueral thing, when they can get hold of an hon- larity to fill the judicial offices. So far as my est man for judge, will elect him in preference experience goes, we rather find men who are to a dishonest one; and they cau more easily sometimes unpopular even more fitted for discriminate among the men who live in their such offices tban those who have attained own neighborhoods, as to who is honest and great personal popularity—those who seek who is dishonest; who is learned in the law, popularity for their own purposes. We and who is unlearned in the law, than the know further that seeking for popularity and governor of your State. There have been electioneering for office creates a state of evidences of partisanship under an appointed mind wholly inconsistent with the proper judiciary that we have not seen under an elec- exercise of the judicial functions. I am sure tive judiciary. It is but the other day that that the appointive system will gain strength I heard it asserted by a gentleman in my city to the constitution in the county which I that the supreme court of the United States represent, and so far as my own experience in making its decision in the Dred Scott case, goes, having practiced under both systems, had acted as a partisan court; and he made I have not a shadow of doubt that the apo a good argument to prove it. That is one pointive system gives the greatest satisfacof the illustrations of the appointive system; | lion. and it is one of the evidences to show that Besides, the people do in fact elect the the appointive system cannot change human judges even under that system, for they elect nature. Wherever you find human nature the man who has the appointing power. you will find it subject to sympathies and They control the party who appoints the bias. The mere appointment or election of a judges, and it throws such a guard around man to an office cannot take away from him the appointment that it may be said that the that sympathy or that bias.

people do practically elect. I am confident Believing therefore as I do that the people that the appointive system is most popular in of the State will not consent to give up this my section of the State. power they have exercised for fourten years, Mr. STIRLING. It seems to me that this a.power which the convention of Maryland amendment is rather premature. I do not in 1851 gare them in good faith, and which think it will settle anything; for the next they of right ought not to be deprived of, section says that the judges shall be apbecause it is a right which they have exer-pointed by the governor. cised fourteen years and should have exer- The PRESIDENT. That can be stricken out. cised erer since 1776, and in my opinion Mr. STIRLING. It seems to me that the mowould have done it if it had not been that tion of the gentleman from Allegany (Mr. the old convention of 1776 were acting un- Thruston) ought not to have been withder the old prejudices derived from the colo-drawn, because whether you adopt the apnial government, and derived this idea of the pointive system or the elective system, there appointive system from Eogland and incorpo. will certainly be judges appointed to fill va

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