Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/465

 CH. XXXVIII.] led to the vesting of other high appointments in the executive department. The Federalist, No. 78.—Mr. Chancellor Kent has summed up the reasoning, in favour of an appointment of the judges by the executive, with his usual strength. "The advantages of the mode of appointment of public officers by the president and senate have been already considered. This mode is peculiarly fit and proper, in respect to the judiciary department. The just and vigorous investigation and punishment of every species of fraud and violence, and the exercise of the power of compelling every man, to the punctual performance of his contracts, are grave duties, not of the most popular character, though the faithful discharge of them, will certainly command the calm approbation of the judicious observer. The fittest men would probably have too much reservedness of manners, and severity of morals, to secure an election resting on universal suffrage. Nor can the mode of appointment by a large deliberative assembly be entitled to unqualified approbation. There are too many occasions, and too much temptation for intrigue, party prejudice, and local interests, to permit such a body of men to act, in respect to such appointments, with a sufficiently single and steady regard for the general welfare. In ancient Rome, the præetor was chosen annually by the people, but it was in the comitia by centuries; and the choice was confined to persons belonging to the patrician order, until the close of the fourth century of the city, when the office was rendered accessible to the plebeians; and when they became licentious, says Montesquieu, the office became corrupt. The popular elections did very well, as he observes, so long as the people were free, and magnanimous, and virtuous, and the public was without corruption. But all plans of government, which suppose the people will always act with wisdom and integrity, are plainly Utopian, and contrary to uniform experience. Government must be framed for man, as he is, and not for man, as he would be, if he were free from vice. Without referring to those cases in our own country, where judges have been annually elected by a popular assembly, we may take the less invidious case of Sweden. During the diets, which preceded the revolution in 1772, the states of the kingdom sometimes appointed commissioners to act as judges. The strongest party, says Catteau, prevailed in the trials, that came before them; and persons condemned by one tribunal were acquitted by another." 1 Kent's Comm. Lect. 14, p. 273, 274, (2d edition, p. 291, 292.)

§ 1594. The next consideration is the tenure, by which the judges hold their offices. It is declared that "the judges, both of the Supreme and 58