The Online Library of Liberty

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• United States Prefatory Note
• Chapter XXXVIII: The Beginnings of Democracy In North America
• Chapter XXXIX: The Frame of Government : State, Local, and Federal Constitutions
• Chapter Xl: the Party System
• Chapter Xli: the Actual Working of the National and State Governments
• Chapter Xlii: the State Governments In Their Working
• Chapter Xliii: the Judiciary and Civil Order
• Chapter Xliv: Public Opinion
• Chapter Xlv: Recent Reforming Movements
• Australia
• Chapter Xlvi: Australian History and Frame of Government
• Chapter Xlvii: Australian Legislatures and Executives
• Chapter Xlviii: the Executive and the Civil Service
• Chapter Xlix: Australian Parties and Policies
• Chapter L: Questions Now Before the Australian People
• Chapter Li: Labour Policies and Proposals
• Chapter Lii: Characteristics of Australian Democracy
• New Zealand
• Chaptee Liii: the Country and Its First Half Century of History
• Chapter Liv: Richard Seddon and His Policies
• Chapter Lv: Compuisoby Aebiteation In Tbade Disputes
• Chapter Lvi: the Working of the Government
• Chapter Lvii: Results of Democratic Government
• Part Iii
• Chapter Lviii: the Decline of Legislatures
• Chapter Lix: the Pathology of Legislatures
• Chapter Lx: the Executive In a Democracy
• Chapter Lxi: Democracy and Foreign Policy 1
• Chapter Lxii: the Judiciary
• Chapter Lxiii: Checks and Balances
• Chapter Lxiv: Second Chambers
• Chapter Lxv: Direct Legislation By the People
• Chapter Lxvi: the Relation of Central to Local Government
• Chapter Lxvii: Comparison of the Six Democratic Governments Examined
• Chapter Lxviii: Types of Democratic Government
• Chapter Lxix: the Money Power In Politics
• Chapter Lxx: Responsibility
• Chapter Lxxi: Democracy and the Backward Races
• Chapter Lxxii: the Relation of Democracy to Letters and Arts
• Chapter Lxxiii: the Results Democratic Government Has Given
• Chapter Lxxiv: Democracy Compared With Other Forms of Government
• Chapter Lxxv: Oligarchies Within Democracies
• Chapter Lxxvi: Leadership In a Democracy
• Chapter Lxxvii: the Later Phases of Democracy
• Chapter Lxxviii: Present Tendencies In Democracies
• Chapter Lxxix: Democracy and the Communist State
• Chapter Lxxx: the Future of Democracy

CHAPTER LXII

the judiciary

There is no better test of the excellence of a government than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizen than his sense that he can rely on the certain and prompt administration of justice. Law holds the community together. Law is respected and supported when it is trusted as the shield of innocence and the impartial guardian of every private civil right Law sets for all a moral standard which helps to maintain a like standard in the breast of each individual. But if the law be dishonestly administered, the salt has lost its savour; if it be weakly or fitfully enforced, the guarantees of order fail, for it is more by the certainty than by the severity of punishment that offences are repressed. If the lamp of justice goes out in darkness, how great is that darkness!

In all countries cases, sometimes civil, but more frequently criminal, arise which involve political issues and excite party feeling. It is then that the courage and uprightness of the judges become supremely valuable to the nation, commanding respect for the exposition of the law which they have to deliver. But in those countries that live under a Rigid Constitution which, while reserving ultimate control to the people, has established various authorities and defined the powers of each, the Courts have another relation to politics, and take their place side by side with the Executive and the Legislature as a co-ordinate department of government. When questions arise as to the limits of the powers of the Executive or of the Legislature, or — in a Federation — as to the limits of the respective powers of the Central or National and those of the State Government, it is by a Court of Law that the true meaning of the Constitution, as the fundamental and supreme law, ought to be determined, because it is the rightful and authorized interpreter of what the people intended to declare when they were enacting a fundamental instrument.1 This function of Interpretation calls for high legal ability, because each decision given becomes a precedent determining for the future the respective powers of the several branches of government, their relations to one another and to the individual citizen.

Capacity and learning, honesty and independence, being the merits needed in a judge, how can these be secured? Three things have to be considered: the inducements offered to men possessing these merits to accept the post, the methods of selecting and appointing persons found to possess them, and the guarantees for the independence of the judges when appointed. The inducements are three: salary, permanence in office, and social status, this last being largely a consequence of the other two. The modes of choice tried have been three: Nomination by the head of the Executive, Election by the Legislature, Election by the Citizens generally at the polls. The differences in the practice of the free governments examined in Part II. yield instructive results.

In France the salaries of the higher judges are low compared to the style of living which a judge is expected to maintain, but as the position is permanent and carries social consideration, men of approved abilities and solid learning are glad to have it The highest Court of Appeal enjoys great respect, and so do the chief judges in the great cities. All are selected by the Executive. Although party influences may sometimes affect the choice, the normally lifelong tenure of the office has practically secured judicial independence. Once, however (in 1879–83) what was called a “purification” of the Bench was effected by the removal of a good many judges whose loyalty to the Republic was suspected, a step which, though possibly justified by special circumstances, set an unfortunate precedent.2

Switzerland pays small salaries both to Federal and to Cantonal judges. All hold office for terms of years, but as they are usually reappointed if they have given satisfaction, the tenure is virtually permanent. The members of the Supreme Federal Court are chosen by the Federal Legislature for six years;1 those of the Cantonal Courts are elected by the people. No one proposes to alter the practice though some disapprove it. It is ancient, and is deemed the natural thing in a democracy. Most of the Cantons are so small that the electors are usually able to estimate the honesty and good sense of a candidate.

In the United States the Federal Judges are appointed by the President with the consent of the Senate, and are irremovable except by impeachment. They receive salaries small in proportion to the income which an eminent counsel can earn at the bar, but the dignity of the office makes the best lawyers willing to accept it. In five of the States the judges are appointed by the State Governor, in two they are chosen by the State legislature, in all the rest they are elected by the people for terms of various lengths, with salaries varying in amount, but almost always insufficient to attract the highest talent. The result has been to give an excellent Supreme Federal Court, a high average of talent in the other Federal Courts, a good set of judges in the States where appointment rests with Governor or Legislature, and in nearly all of the other States judges markedly inferior to the leading counsel who practise before them. In some States it is not only learning and ability but also honesty and impartiality that are lacking. The party organizations which nominate candidates for election for the Bench can use their influence to reward partisans or to place in power persons whom they intend to use for their own purposes. If the results are less bad than might have been expected, this is generally due to the action of the local Bar, which exerts itself to prevent the choice of men whom it knows to be incompetent.

The three British self-governing Dominions — Canada, Australia, and New Zealand — have followed the practice of the Mother Country. In all of them the judges are appointed by the Executive, hold office during good behaviour, i.e. practically for life, and receive salaries sufficient to attract leading lawyers. In all alike the posts are filled by competent men who enjoy the confidence of the community, a fact the more remarkable because the persons appointed have often been party politicians. It is the independence which life tenure gives, and the custom, inherited from England, which prescribes perfect impartiality and abstention from all participation in politics, that have made the judiciary trusted.

Why does popular election which the Swiss do not condemn give bad results in the States of the American Union? Mainly because in the former the matters that come before the Courts are comparatively small, whereas in the latter it may be well worth the while of a great railway or other incorporated company to secure the election of persons who will favour its interests when they become the subjects of litigation, and such a corporation can influence the party organization to nominate the men it wants. In small communities, moreover, such as are nearly all of the Swiss Cantons, a large proportion of the voters have some direct personal knowledge of the candidates, so that no party guidance is needed or would be tolerated, and can watch their behaviour in office, while in communities which count their population by millions the bulk of the voters have no such knowledge, and follow the lead given by the party organizations, each of which has its own friends to reward or axe to grind, and cares more for the subservience than for the merits of a candidate.

It may, however, be asked, Why should popular election produce a worse Bench than appointment by an Executive, seeing that the Executive is in the countries named (except Switzerland) an officer, or a Cabinet, chosen by a political party and disposed to serve its interests. Why then should a Prime Minister be any more likely to make good appointments than is a party organiaztion? If the Boss of an American State party organization is a party man, so is a State Governor, so is the President of the United States himself. The explanation is that the President is responsible to the Nation, and the Governor to his State. Either official would damage himself and his party if he made bad appointments, whereas the party Machine has no official character, and cannot be made responsible for what is legally the act of the voters when they elect a person whom the Machine has put forward as a candidate. The choice is theirs, for they need not have obeyed the Machine. Except in small communities such as boroughs or counties, the average elector has no means of knowing which of several candidates, with names probably all unfamiliar, has the talent needed, or the character, or the special attainments. Law has become a science, and a modern judge needs to know his own science just as much as does a professor of chemistry, the voters being no more fitted to choose the one than the other.

So much for the modes of appointment. As respects salaries and tenure, the moral of the facts stated needs no pointing. Where the inducements offered are scanty, capable men will not offer themselves. Unfortunately the average citizen has not, in some democracies, realized that the qualities needed must be well paid for, nor that a judge who has not to think of his re-election or promotion finds it easier to be independent.

There are three of the countries described in Part III. in which apprehensions are at present entertained regarding the status of the judiciary. In France the power of the Executive to promote men from lower to higher posts is thought to influence the minds of some magistrates who wish to stand well with the ruling party. In the States of the North American Union the displeasure of those eager to see Labour legislation promptly carried out, a displeasure evinced by the proposals for the Recall of judges or of decisions,1 may deter State judges from giving effect in their interpretation of State laws to those provisions of State Constitutions which inhibit the legislatures from interfering with rights of property and freedom of contract. In Australia the creation of a Court of Arbitration empowered to fix rates of wages and conditions of labour has made the selection of a person to discharge this delicate function a matter of keen interest to employers and employed alike, so that the Executive which appoints the judge is liable to be secretly pressed by persons belonging to one or the other class to choose a man whose proclivities they think they know, yet whose moral authority will suffer if those proclivities are believed by the public to have affected the choice.

A review of the judicial branch of government in the countries already examined, suggests, except as regards some States of the American Union, nothing to discredit democratic government, for it has provided justice, civil and criminal, at least as good as did any of the European monarchies or oligarchies, and better than did most of them. In Canada and Australasia public opinion has been vigilant. Barristers promoted from politics to the Bench have, when once they take their seat there, breathed an atmosphere so saturated with the English traditions, now two centuries old, of judicial impartiality and independence that they have very seldom yielded to partisan sympathies or party pressure. It has also been a benefit that in these countries they have been invariably selected from the Bar, with their former associates in which they maintain social relations, undisturbed by political differences, and to whose good opinion they are sensitive. Nor has the Bar been without its influence on the Government of the day in deterring it from appointing, in satisfaction of party claims, persons whose capacity or character fell below the accepted standard.

The new States that lately have been or are now being formed in Europe have not, nor had the republics of Spanish America, the advantage of like traditions and of an equally watchful opinion. In none of the now liberated countries, and least of all in those that had suffered from Turkish tyranny, were the Courts entirely trusted. It is much to be desired that they should regard the organization of the judiciary on a sound basis as one of the most important among the tasks that the creation of constitutional governments presents, seeing that nothing does more for the welfare of the private citizen, and nothing more conduces to the smooth working of free government than a general confidence in the pure and efficient administration of justice between the individual and the State as well as between man and man.

[1]See as to this Vol. I. pp. 89–91. The new constitution of Germany appears to leave to the Supreme Court the decision of legal questions arising between the Reich (the Federation) and the States within it, but not the decision of the question whether a law infringes the Constitution. The Constitution of Czecho-Slovakia provides (§ 102) that “judges in passing upon a legal question may examine the validity of an Ordinance; as to a Law they may enquire only whether it was duly promulgated.”

[2]See Vol. I. p. 305.

[1]The (recently enacted) Constitution of the Esthonian Republic vests the election of the State (Supreme) Court in the Assembly, and the appointment of lower judges in the State Court.

[1]See Vol. II. pp. 162–167, ante.