H. Louisa Bedford - "The Village by the River"

Frederick Jackson Turner - "The Character and Influence of the Indian Trade in Wisconsin"

G. A. Henty - "With Moore At Corunna"

Alma Lutz - "Susan B. Anthony"

Editorial
This paper argues that discourses of love in Ghanaian market literature for youth offer a view into complex negotiations of agency and empowerment. Drawing on Deborah Durham's notion of youth as "social `shifters'" and Francis Nyamnjoh's conception of the "interconnectedness" of agency, I take Ghanaian market literature as one specific case of how African literature for youth foregrounds questions of continuity and change as African societies enter into increasingly complex global relations. In this literature for youth, received notions of love, often constructed out of impressions from American pop and hip hop music, carry new notions of agency that compete with existing "domesticated" forms. Authors like Ike Tandoh and Evelyn Tay employ discourses of love to offer youth alternative avenues for empowerment in a context of socio-economic disenfranchizement. In a creative process of "straddling", this writing both reveals and reproduces the contradictions that obtain in youth configurations of agency.

The American Judiciary

S >> Simeon E. Baldwin, LLD >> The American Judiciary




Chief Justice Day of Iowa, one of the ablest men who ever sat on
her Supreme bench, in the same way lost a re-election by writing
an opinion of the court, which announced a doctrine that was
legal but unpopular.[Footnote: Koehler _v._ Hill, 60 Iowa
Reports, 543, 603.] His term was soon to expire. He, too, knew
that this decision would prevent his renomination, and it did.

In 1885, Chief Justice Cooley of Michigan, one of the great
jurists and judges of the country, failed to secure a re-election
to its Supreme Court, which he had adorned for twenty-one years,
largely on account of an opinion which he had written supporting
a large verdict against a Detroit newspaper for libel. The
newspaper, upon his renomination, described him as a railroad
judge, and kept up a running fire through the campaign, which
contributed materially to his defeat.

Political contests cost money, and if judges appear as candidates
for popular suffrage they are naturally expected to contribute to
the expense. The other candidates on the same ticket do this,
and if those nominated for the bench did not, somebody would have
to do it for them, thus bringing them under obligations that
might have an unfortunate appearance, if not an unfortunate
effect. In New York, where some of the judicial salaries are
higher than anywhere else in the country, and the terms for the
highest places are long (fourteen years), it has been customary
for those placed in nomination to contribute a large sum to the
campaign expenses of their party. This is tacitly understood to
be a condition of their accepting the nomination, and the amount
to be paid is fixed by party practice. For an original
nomination by the party in power, it is said to be about equal to
a year's salary; for a renomination half that sum may suffice.

But a judge holding office by popular election must
in any case owe something to somebody for supporting
his candidacy. He is therefore under a natural inclination
to use his power, so far as he properly can, in
such a way as to show that he has not forgotten what
his friends have done for him. There is always a
certain amount of judicial patronage to be bestowed.
There are clerks and messengers, trustees and receivers,
referees and committees, perhaps public prosecuting
attorneys and their assistants, to appoint. Other
things being equal, no one would blame a judge for
naming a political friend for such a position. But as
to whether other things are equal he is to decide. To
the most upright and fearless man the danger of this is
great; to a weak or bad man the feeling of personal
obligation will be controlling. Justice Barnard of the
Supreme Court of New York once observed on the
bench that judges had considerable patronage to be
disposed of at their discretion, and that for his part
he had always succeeded in life by helping his friends
and not his enemies. For this practice, among other
things, he was impeached and removed from office; but
how many judges are there who yield to this temptation
without avowing it? A French critic of the
elective judiciary has thus referred to these remarks
of Justice Barnard:

Le Juge Barnard, qui formulait en plein tribunal cette
declaration de principes, fut decrete d'accusation et condamne,
non sans justes motifs. Mais son crime impardonable etait de
proclamer trop franchement les doctrines de la magistrature
elective: il trahissait le secret professionnel.[Footnote: Duc
De Noailles, _Cent Ans de Republique aux Etats-Unis_, II,
232.]

Most of the old thirteen States in their first Constitutions
provided that the judges of their highest courts should hold
office during good behavior, or until seventy years of age. New
York at first put the age of superannuation at sixty, but after
losing by this the services of Chancellor Kent for some of his
best and most fruitful years, postponed it to seventy. Georgia
was the first to set the fashion of short terms. Her
Constitution of 1798 provided that the judges of her highest
court should be "elected" for three years, but that those of her
inferior courts should be "appointed" by the legislature and hold
during good behavior. The legislature construed this as allowing
it to frame such a scheme of election as it thought best, and
that adopted was for the House to nominate three, from whom the
Senate elected one.[Footnote: Schouler, "Constitutional Studies,"
65.]

In all but three States (Massachusetts, New Hampshire and Rhode
Island) at the present time all judges hold for a term of years,
and as a general rule those of the higher courts have longer
terms than those of the inferior ones. The change from life
tenure to that for a term of years was partly due to several
instances which occurred early in the nineteenth century, in
which it was evident that judges had outlived their usefulness.
Judge Pickering of the District Court of New Hampshire lost his
reason, and to get rid of him it became necessary to go through
the form of impeachment. In 1803, Judge Bradbury of the Supreme
Judicial Court of Massachusetts, who had been incapacitated by
paralysis, was displaced in the same way, though only a few
months before his death. In 1822, an old man who was the chief
judge of one of the judicial districts of Maryland was presented
by the grand jury as a "serious grievance," on account of his
habitual absence from court. His physician certified that his
life would be hazarded if he undertook to attend, but the natural
answer was that then he should resign.

At present, for judges of the State courts of last resort, the
term in Pennsylvania is twenty-one years (but with a prohibition
of re-election); in Maryland, fifteen; in New York, fourteen; in
California, Delaware, Louisiana, Virginia, and West Virginia,
twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado,
Illinois, and Mississippi, nine. The general average is eight,
although that particular number obtains in but seven States. In
eighteen it is six. The shortest term is two, and is found in
Vermont. It may be noted that the original rule in Vermont was
to elect judges annually. As compared with the terms of office
prescribed at the middle of the nineteenth century, those at the
opening of the twentieth are on the average decidedly longer.

* * * * *

The compensation of most American judges is a fixed salary.

In some States, courts of probate and insolvency, and in all
justices of the peace when holding court, are paid by such fees
as they may receive, at statutory rates, for business done. As
in the case of sheriffs and clerks, judges under such a system
sometimes receive a much larger official income than any one
would venture to propose to give them were they to be paid for
their services from the public treasury. A clerk of court often
receives more than the judge, and some judges of probate and
insolvency more than the Chief Justice of their State.

In colonial times, judges were sometimes paid in part by fees, in
part by occasional grants by the legislature, and in part by a
regular stipend. This practice of legislative grants from time
to time in addition to their salaries was continued in
Massachusetts in favor of the justices of the Supreme Judicial
Court for a quarter of a century, in the face of a Constitution
which provided that they "should have honourable salaries
ascertained and established by standing laws."[Footnote: Memoir
of Chief Justice Parsons, 228.] It was evidently indefensible in
principle, and to remove judges, as far as possible, from
temptation either to court the favor or dread the displeasure of
the legislature it is now generally provided in our American
Constitutions that their salaries shall be neither increased nor
decreased during the term for which they may have been elected by
any subsequent change of the law. In a few States it is thought
sufficient to guard against the consequences of legislative
disfavor, and the Constitutions forbid only such a decrease of
salary.

The Chief Justice of the Supreme Court of the United States
receives $13,000 a year and his associates $12,500. Circuit
Judges have $7,000, and District Judges $6,000.

In the States, the Chief Judge of the New York Court of Appeals
receives $10,500 and his associates $10,000. The same salaries
are given in Pennsylvania. In New Jersey, the Chancellor and the
Chief Justice each receive $10,000 and the associate judges
$9,000. In Massachusetts, the Chief Justice receives $8,500 and
his associates $8,000. In the other States less is paid, the
average for associate judges in the highest courts being about
$4,350. Only nine States pay over $5,000. The Chief Justice in
many receives $500 more. These salaries are, however, generally
supplemented by a liberal allowance for expenses, and in some
States each judge is provided with a clerk. In New York, this
addition amounts to $3,700; in Connecticut, to $1,500; in
Vermont, to $300.

The salaries for the highest trial court generally closely
approximate those paid to the judges of the Supreme Court, and in
case of trial courts held in large cities are often greater.
Those for the inferior courts are much lower.

The judges of the principal _nisi prius_ court (which is
misnamed the Supreme Court) in New York City are allowed by law
to accept additional compensation from the county, and receive
from that source more than from the State, their total official
income being $17,500. The trial judges in Chicago also receive
$10,000, although the highest appellate judges in the State have
a salary of only $7,000.

It is not surprising that American judicial salaries are no
greater, but rather that they are so large. They are fixed by a
legislature, the majority of the members of which are men of very
moderate income, and when originally fixed in the older States it
was often by men not altogether friendly to the judiciary. It
was a saying of Aaron Burr, which was not wholly untrue in his
day, that "every legislature in their treatment of the judiciary
is a damned Jacobin club."[Footnote: "Memoir of Jeremiah Mason,"
186.] Only the influence of the bar has carried through the
successive increases which have been everywhere made.

The first pension to a retired judge ever granted in the United
States was one of $300 voted in Kentucky in 1803. It was offered
to one of the members of the Court of Appeals to induce him to
resign, but the year after his resignation the statute was
repealed on the ground that it was unconstitutional.[Footnote:
Sumner, "Life of Andrew Jackson," 120.] Since 1869, the United
States have allowed their judges who have reached the age of
seventy, after not less than ten years' service, to retire, at
their option, receiving the full official salary during the
remainder of their lives. Rhode Island gives hers the same
privilege after twenty-five years' service, and Massachusetts and
Maryland have somewhat similar provisions, except that the judges
on retirement receive but part of what they formerly did. The
Connecticut legislature is in the habit of appointing her judges,
both of the Supreme and Superior Court, when retired at the age
of seventy, State referees for life, with an allowance of $2,500
for salary and expenses, their duties being to try such questions
of fact as the courts may refer to them and to report their
conclusions.

Our State Constitutions now generally provide that judges shall
hold no other public office. Some also provide that all votes
for any of them for any other than a judicial office shall be
void.

* * * * *

Occasionally a judge, in order to eke out his official income,
accepts a salaried position, calling for but little of his time,
in a matter of private business employment. This, however, is
rarely done and there are obvious objections to it when the
employer is one likely to have business before the court. Many
of the judges of the higher courts, including several of the
justices of the Supreme Court of the United States, are
professors or lecturers in law schools.

The best mode of appointing judges is that which secures the best
men. Such men are unlikely to accept a place on the bench of one
of the higher courts, unless it carries with it some prospect of
permanence. It does, if it comes to them by way of promotion
after they have served acceptably for a length of time in an
inferior court. But most judges must be taken from the bar and,
save in very unusual cases, will be in large and active practice.
This must be totally abandoned if they take one of the higher
judicial positions; and if they take the lowest, must be made
secondary to it. A lawyer's practice is more easily lost than
gathered. If it is a solid one, it is of slow growth. For one
who has turned from the bar to the bench to expect on retirement
from office to resume his old practice would be to expect the
impossible. He may have achieved a position by his judicial work
which will enable him to take a better position at the bar; but
in that case his clients will be mainly new ones. He is more
likely, particularly if no longer young, to sink into a meagre
office practice and feel the pinch of narrow means, always doubly
sharp to one who by force of circumstances has a certain social
standing to maintain. The leaders at the bar therefore seldom
consent to go upon the bench unless they have property enough to
ensure their comfortable support after they leave it, without
returning to the labors of the bar.

This is one of those evils which carry in some sort their own
antidote. The lawyers, as a body, are always anxious for their
own sake to have an able and independent bench. They do not wish
to trust their causes, when they come before a court of last
resort for final disposition, to men of inferior capacity and
standing. They therefore can generally be relied on to urge on
the nominating or appointing power the selection of competent
men. Their influence in this respect is little short of
controlling. If competent men will not ordinarily go on the
bench of an appellate court, unless by way of promotion, until
they have accumulated a sufficient fortune to make them
comfortable in old age, then as competent men will usually, in
one way or another, be selected, and as few of these are men who
from their youth have been occupying judicial positions, the
judges will usually be possessed of some independent means. A
property qualification almost is thus imposed by circumstances on
those forming the American judiciary in its highest places. The
same thing is true of our higher diplomatic positions. As Goethe
has said, there is a dignity in gold. It is a poor kind of
dignity when unsupported by merit, but if to gold merit be
joined, each lends to the other solidity and power.

Among the men of the first eminence at the bar whom the
meagerness of the salary has kept off the bench may be mentioned
Jeremiah Mason, who declined the position of Chief Justice of New
Hampshire on this account, and William Wirt. Wirt in 1802 was
made one of the Chancellors of Virginia at the age of
twenty-nine. The salary and fees amounted to about five hundred
pounds a year. He married on the strength of it, but in a few
months found that his income was insufficient to maintain his
family, and resigned.[Footnote: "Memoirs of William Wirt," I, 91,
99.]

Dignity and power, however, are strong attractions. Theophilus
Parsons in 1806 left a practice worth $10,000 a year--the largest
in New England in his day--to take the place of Chief Justice of
Massachusetts on a salary of $2,500. After three years he sent
in his resignation, saying that he found that this sum was
insufficient for his support, even with the addition of the
income from such property as he possessed. The legislature
thereupon raised the salary to $3,500, and he remained on the
bench through a long life.[Footnote: "Memoir of Chief Justice
Parsons," 194, 228, 230.] In 1891, Richard W. Greene of Rhode
Island, who then had a practice of $8,000 a year, gave it up for
the Chief Justiceship of the State, though the salary was then
but $750, supplemented by some trifling fees. In a few years,
however, he resigned the office on account of the inadequacy of
the compensation.[Footnote: Payne, "Reminiscences of the Rhode
Island Bar," 75.]

The qualities of a judge are by no means the qualities of a
politician. The faculty of looking at both sides of a question
and the power of forming deliberate and well-considered judgments
do not tell for much in a campaign speech. The politician's
title to support is standing by his friends. The judge's duty
may be to decide a cause against his friends. Many a lawyer of
eminence might accept a nomination from a President or Governor
involving no participation in a political election contest who
would refuse one from a party convention.

The general sentiment of thinking men in the United States is
that judges should never be chosen by popular vote. It is,
however, an unpopular sentiment. The people in general do not
appreciate the difference between their fitness to select
political rulers and to select judicial rulers--to choose out
good men and to choose out good lawyers. And the people make and
ought to make our Constitutions. Rufus Choate once said that the
question at bottom was, Are you afraid to trust the people? If
you answer Yes, then they cry out that "he blasphemeth." If you
answer No, they naturally reply, Then let them elect their
judges.

Jefferson was the first to suggest an elective judiciary, basing
his opinion on a misconception of the usage in Connecticut.
There, he wrote, the judges had been chosen by the people every
six months for nearly two centuries, yet with few changes on the
bench, "so powerful is the curb of incessant
responsibility."[Footnote: Works, VII, 9, 12, 13, 35; letter of
July 12, 1816, regarding a new Constitution for Virginia.] In
fact, the Connecticut judges were chosen annually, and those not
holding judicial powers as an incident of political ones were
appointed by the legislature. The experiment of resorting to
popular election was first fully tried in Mississippi in 1832,
under the influence of Governor Henry T. Foote, but in later life
he expressed his regret at the course which he had taken, and the
belief that it had weakened the character of the bench.[Footnote:
"Casket of Reminiscenses," 348.]

The scheme of popular election may be pursued with reasonable
success if the bar use all the influence at their command to
secure both good nominations originally and the re-election of
all who have served well.[Footnote: It is not uncommon for local
bar associations after the party nominations for the bench have
been made to refer them to a committee, on the report of which
those deemed the best are commended for popular approval. In two
judicial districts in Iowa, the lawyers nominate judges for the
district in a convention of delegates from the bar, and then see
to it that the nominations are ratified by the party conventions.
Simon Fleischmann, "The Influence of the Bar in the Selection of
Judges," Report of 28th annual meeting of the New York State Bar
Association (1905).] A conspicuous instance of its success under
such conditions is shown by the repeated re-election of Judge
Joseph E. Gary of the criminal court of the city of Chicago.
Originally elected in 1863, when it was called the Recorder's
Court, he has been re-elected for successive terms of six years
without a break, and in 1903, when he was 82 years old and still
in active service on the bench, received well-merited addresses
of congratulation from the Chicago Law Institute and the Chicago
Bar Association. Judges of Probate, whose functions are largely
of a business character, and who are brought into close contact
with the people at first hand, are frequently re-elected for a
long period of years with little regard to their party
affiliations.[Footnote: In the Probate District of Hartford in
Connecticut there have been but two judges during the last forty
years, though the elections have been annual or biennial.]

In case of those having long terms of office, a re-election comes
more easily and commonly. A man who has been ten or twenty years
upon the bench has become set apart from the community. The
people have ceased to think of him as one of themselves, so far
as the active political and business life of the day is
concerned. His position and his work, if it has been good, have
given him a certain elevation of station. Men have learned to
trust him, and to feel that his presence on the court helps to
make liberty and property more secure. If he receives his party
nomination, he is apt to secure a majority of votes, whether the
others on the ticket are or are not elected. The opposing party
often nominates him also, and sometimes, if his own gives the
nomination to another, nominates him itself, and with success.

In New York it has been generally the case that a good judge of
the Court of Appeals or Supreme Court is re-elected until he
reaches the age limit set by the Constitution. To accomplish
this, however, it has been necessary for the bar to use constant
efforts to bring the nominating conventions of both parties to
the support of the same man or men, and personal ambition and
party feeling have on a number of occasions set up an effectual
bar. Before a recent election of two judges in that State, in
preparation for which a scheme had been suggested by which one of
the outgoing judges of each party should be re-elected, a third
candidate for the succession, himself a prominent member of the
bar and an officer of the State, published a lengthy statement of
his claims, which concluded thus:

"I am a candidate for nomination to the office of Associate Judge
of the Court of Appeals at the coming Democratic State
Convention. I appeal to my fellow-citizens for their support.
While I do not believe that support for judicial candidacy should
be unduly importuned, I feel that the present circumstances
justify me in making this announcement. I have always stood by
my party in its dark days, when others voted the Republican
ticket in the interest of their business. I have assisted in
endeavors to so shape its policies as to make success possible.
Now that this has been accomplished, I do not think that my
fellow-Democrats will thrust me aside to make way for those who
neither affiliate with the party nor vote its ticket."

As a general rule, in the country at large political
considerations are decisive, both in cases of popular election
and of executive nomination, but as to the latter exceptions are
more frequent. One instance has occurred in which a President of
the United States nominated to the Supreme Court a member of the
party in opposition to the administration,[Footnote: Howell
E. Jackson, a Democrat, was thus appointed by President Harrison,
a Republican, in 1893. President Taft, a Republican, has since
appointed two Democrats, justices Lurton and Lamar, and made a
third Chief Justice.] and the same President, upon the creation
of the Circuit Court of Appeals, when there were a number of new
judges to be appointed, gave several of the places to those not
of his political faith. It is, however, to be expected that the
Presidents of the United States, as a general rule, will place
upon the Supreme Court none whose political opinions are not
similar to their own. It is a court wielding too great a
political power to allow this ground of qualification to be
lightly passed over.

Precisely because of this, the political antecedents of the
justices of the Supreme Court are more apt to be discoverable in
their opinions than is the case in State courts. Professor
William G. Sumner, in referring to the change of character of the
Supreme Court by reason of Jackson's appointments to it, remarks
with some truth that "the effect of political appointments to the
bench is always traceable after two or three years in the
reports, which come to read like a collection of old stump
speeches."[Footnote: "Life of Andrew Jackson," 363.]

In States where the judges are only appointed for a certain term
of years, it is not unusual for the Governor, if he has the power
of nomination, to exercise it in favor of outgoing judges who are
his political opponents. So, also, if there happen to be several
original vacancies to fill, it is the traditional method in a few
States to give one of the places to a member of the opposition
party. If the election belongs to the legislature, a similar
practice prevails in some of the older States. In Connecticut
but six instances of refusing a re-election to judges of the
higher courts for mere party reasons have occurred for more than
a hundred years.[Footnote: Judges Baldwin, Goddard, Gould and
Trumbull were dropped in 1818 and 1819 as an incident of the
political revolution which destroyed the Federalist party in
Connecticut and brought about the adoption of a Constitution,
under which the judges were to hold for life, to replace the
royal charter. Judges Seymour and Waldo were dropped in 1863
during the Civil War, because they were classed with the "Peace
Democrats." Their successors, however, were appointed from the
"War Democrats," though the legislature was Republican.] In
Vermont, where elections to the Supreme Court were annual, Judge
Redfield was placed on the Supreme bench and then re-elected year
after year for twenty-three successive years by legislatures
controlled by the party politically opposed to him.[Footnote:
Edward J. Phelps, "Orations and Essays," 220.]

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