Democracy and Liberty. William Edward Hartpole Lecky
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required for electors of the most numerous branch of the State Legislature.’ The second, which was an amendment of the Constitution introduced after the Civil War, and carried at a time when the Southern States were still deprived of their normal political power, is that no one may be excluded from the suffrage ‘on account of race, colour, or previous condition of servitude.' The suffrage, it is true, is not absolutely universal. Besides the exclusion of women, children, criminals, insane persons, and unnaturalised immigrants, some easy qualifications of residence and registration are usually required; but property qualifications have almost wholly disappeared. The actual possession of property is no longer required for a voter in any American election, with the exception, it is said, of the municipal elections in a single district of Rhode Island.35 A tax qualification existed in 1880 in six States, but it has since then been abolished in four of them.36 Some States, however, still exclude from the right of voting those who are so illiterate that they are not able to read, and paupers who are actually supported by the State. With these slight and partial exceptions manhood suffrage generally prevails.
As far as I can judge, it seems to have been brought about by much the same means in America as in Europe. It has not been in general the result of any spontaneous demand, or of any real belief that it is likely to improve the Constitution; but it has sprung from a competition for power and popularity between rival factions. An extension of the franchise is, naturally, a popular cry, and each party leader is therefore ready to raise it, and anxious that his rival should not monopolise it. It is a policy, too, which requires no constructive ability, and is so simple that it lies well within the competence of the vulgarest and most ignorant demagogue. A party out of office, and doubtful of its future prospects, naturally wishes to change the character of the electorate, and its leaders calculate that new voters will vote, at all events for the first time, for the party which gave them their vote. We are in England perfectly familiar with such modes of conducting public affairs, and it is probably no exaggeration to say that calculations of this kind have been the chief motives of all our recent degradations of the suffrage. In one important respect the Federal system has tended to strengthen in America the democratic movement. Each State naturally wishes to have as much power as possible in the Confederation, and an amendment of the Constitution which was forced through during the temporary eclipse of the Southern States provides that while, as a general rule, representatives in Congress shall be apportioned among the several States according to their populations, the basis of representation in a State shall be reduced in proportion to the number of such citizens who are excluded from the suffrage, ‘except for participation in rebellion and other crime.’
The system of popular election has extended through nearly all branches of American life. Perhaps its most mischievous application is to the judicial posts. The independence and dignity, it is true, of the Federal judges are protected by an article of the Constitution. They can only be appointed by the President with the consent of the Senate. They hold their office during good behaviour; and they possess salaries which, though small if compared with those of English judges, enable them to support their position. The Supreme Court is one of the most valuable portions of the American Constitution, and although even its decisions have not always escaped the suspicion of party motives, it is, on the whole, probably inferior in ability and character to no other judicial body on the globe. But in the States another system has spread which has both lowered and tainted the administration of justice. As recently as 1830 the judges in the different States owed their appointment to the governors, or to the State legislatures, or to a combination of the two. In 1878, in no less than twenty-four States they were elected by a popular vote.37 When it is added that they only hold their office for a few years, that they are capable of re-election, and that their salaries are extremely small, it will not appear extraordinary that the judicial body in most of these States should be destitute of the moral dignity which attaches in England to all its branches. Deliberate personal corruption, which for generations has been unknown among English judges, has been in some cases proved, and in many cases suspected, in America, and the belief that in large classes of cases judges will act as mere partisans on the bench has extended much further. The prevalence of lynch law, which is so strangely discordant with the high civilisation of American life, is largely due to that distrust of justice in many States which is the direct, manifest, acknowledged consequence of the system of popular election.
No one, indeed, who knows the class of men who are wirepullers in the different American factions will expect their nominees on the bench to be distinguished either for impartiality or integrity. One of the most extraordinary instances of organised crime in modern history is furnished by the Molly Maguires of Pennsylvania, an Irish conspiracy which, with short intervals, maintained a reign of terror between 1863 and 1875 in the anthracite coalfields of that State. The innumerable murders they committed with impunity, and the extraordinary skill and daring of the Irish detective who succeeded in penetrating into their councils and at last bringing them to justice, form a story of most dramatic interest; but one of the most curious facts connected with them is the political influence they appear to have obtained. They controlled township affairs in several districts; they applied to their own purposes large public funds; they had a great influence in the management of counties; they were courted by both political parties; and they only failed by a few hundred votes in placing one of their body on the judicial bench.38 I can here hardly do better than quote the language of Mr. Bryce, who, writing with ample knowledge of the subject, is evidently desirous of minimising as much as possible the importance of the facts which he honestly but reluctantly relates.
‘In a few States,’ he writes, ‘perhaps six or seven in all, suspicion has at one time or another, within the last twenty years, attached to one or more of the superior judges. Sometimes these suspicions may have been ill-founded. But though I know of only one case in which they have been substantiated, there can be little doubt that in several instances improprieties have been committed. The judge may not have taken a bribe, but he has perverted justice at the instance of some person or persons who either gave him a consideration or exercised an undue influence over him. … I have never heard of a State in which more than two or three judges were the object of distrust at the same time. In one State, viz. New York, in 1869-71 there were flagrant scandals, which led to the disappearance of three justices of the superior court who had unquestionably both sold and denied justice. The Tweed ring, when engaged in plundering the city treasury, found it convenient to have in the seat of justice accomplices who might check inquiry into their misdeeds. This the system of popular election for very short terms enabled them to do, and men were accordingly placed on the bench whom one might rather have expected to see in the dock—bar-room loafers, broken-down attorneys, needy adventurers—whose want of character made them absolutely dependent on these patrons. … They did not regard social censure, for they were already excluded from decent society; impeachment had no terrors for them, since the State legislatures, as well as the executive machinery of the city, was in the hands of their masters. … To what precise point of infamy they descended I cannot attempt, among so many discordant stories and rumours, to determine. It is, however, beyond a doubt that they made orders in defiance of the plainest rules of practice; issued in rum-shops injunctions which they had not even read over; appointed notorious vagabonds receivers of valuable property; turned over important cases to a friend of their own stamp, and gave whatever decision he suggested. … A system of client robbery sprang up, by which each judge enriched the knot of disreputable lawyers who surrounded him. He referred cases to them, granted them monstrous allowances in the name of costs, gave them receiverships with a large percentage, and so forth, they in turn either sharing the booty with him, or undertaking to do the same for him when he should have descended to the Bar and they have climbed to the Bench. Nor is there any doubt that criminals who had any claim on their party often managed to elude punishment… for governor, judge, attorney, officials, and police, were all of them party nominees. … In the instance which made much noise in Europe—that of the Erie Railroad suits—there was no need to give bribes. The gang of thieves who had gained control of the line and were ‘watering’ the stock were leagued with the gang of thieves who ruled the city and nominated the judges, and nobody doubts that the monstrous decisions in these suits were obtained by the influence of the Tammany leaders over their judicial minions.’39
Such is the state of things which flourished a few years ago in full exuberance in the capital