culation, and thereby displace and drive beyond the reach of the community an equal amount of the legal currency created by public authority and for the common use and benefit of all? We do not ask whether he should be deprived of this right, but whether he does or can possess any such right. We contend that he has no such right and cannot have, any more than he can have a right to go to his neighbor's barn, without his consent, and take away a good horse and leave a poor one in its stead.

The fluctuations in the nominal quantity of money produced by paper issues, and the consequent fluctuations in the prices of other commodities is [are] an exhaustless source of revenue to the bankers and of disappointment, disaster, and ruin to multitudes; and we ask again, have individuals, any more than chartered companies, a right to thrust their notes into circulation, expand and contract the currency at pleasure, produce any fluctuations in the market which they please, and fill their vaults and storehouses from the fortunes they have wrecked? To alter a note of hand or to forge a check would be snowy innocence compared with it.

The currency, as before remarked, is a public medium of exchange, and so vitally is every class and interest in society affected by every change, either in its quantity or quality, that in our judgment public authority should frown with penal sanctions upon all private or corporate intermeddling with it, either to dilute or corrupt it.

If our esteemed cotemporaries at Racine and Southport still believe us to be in error we hope they will review our arguments with the utmost freedom, for it is truth, and nothing but the truth, which we are after. Those who are laboring for rational reform should compare notes and counsel each other. Some may be too slow and need encouragement, while others may be too fast and need holding in.

MODE OF SELECTING JUDGES-No. 3

[June 23, 1846]

In the discussion of political questions it is too commonly the case that the advocates of opposite opinions appropriate every plausible ground of argument in support of their respective opinions, with an unscrupulousness which betrays either a want of good, sound, practical common sense, or a greater desire to maintain an assumed position than to arrive at ultimate truth; and it would not be strange if both the advocates and opponents of an elective judiciary should be found faulty in this respect.

Upon the subject now in hand it is assumed, on the one side, with but little show of reason or argument, as appears to us, that to make our judiciary elective would tend to poison the fountains of justice and render the bench little better than a throne of corruption from which favors would be dispensed to political friends, and retribution meted out to political enemies; and on the other side it is contended, with as little strength of reason or argument, that the other modes of selecting judges are antidemocratic, antirepublican, a practical denial of the capacity of the people to govern themselves, and wholly inconsistent with the theory of our government.

Let us examine for a moment the weight of the first-named objection. It is true that a judge elected for a district or county would occasionally have an opportunity in the exercise of his official duties to discriminate between political friends and opponents. But while it is usually the duty of a judge to decide, to a certain extent, between individuals who always belong to one political party or another, it by no means follows that in every case which comes before him he must decide between individuals of opposite political sentiments. The parties in court may both be Whigs, or both Democrats, or they may be attached to opposite par

ties, and they as often stand in one of these political relations as in either of the others. There are, therefore, at least two chances to one that the suitors will be of the same political faith, and whether they had been for or against the judge in the election it could make no difference with the judge nor present any inducement to use partiality.

In popular conventions for the selection of party candidates there is usually as fierce a strife between different candidates for nomination and their respective friends of the same party as there is between opposite parties and their candidates after the nominations are made; and if we know anything of human nature, the successful candidate would be quite as likely to administer judicial vengeance to his opponents in his own party, whose objections to him he must suppose to have been of a personal nature, as to those in the opposite party, from whom he had no reason to expect anything but opposition, and from whose opposition he could infer no personal hostility to himself. Here we may fairly reduce the chances for a motive to favoritism from political considerations one-half, or to one chance in six. Only one chance in six, even supposing the judge to be as corrupt as Lucifer, for so much as a motive to favoritism on political grounds to squeeze into the fight.

Again, the judge does not possess absolute authority over the rights of the parties. He is only the judge of the law, while the facts belong to the jury; and law without facts is about as harmless as facts without law. If, therefore, a secret purpose of political revenge should in one case out of six creep into the breast of the judge, and the vagueness or uncertainty of the law should favor its execution, it would be quite as likely to be frustrated as seconded by the sovereignty of the jury over the facts.

Courts are, moreover, firmly bound in their decisions by existing statutes, rules, and precedents, and these, for the most part, are so plain and well defined that if this motive to injustice should chance to exist in the mind of the judge there would be scarcely one chance in ten for him to indulge

it without exposing himself to common contempt, as being destitute either of competency or of integrity.

Judges of the lower courts with local jurisdiction would, of course, be elected by the votes of their respective districts alone, while the judges of the supreme court would be elected by the general voice of the people and be beyond the influences and out of the reach of the motives which may possibly have beset an inferior court, and should the judge of the inferior court at any time be tempted to make a decision contrary to law he must know that that decision would be liable to be reviewed by the court above, with that severity of criticism which is common to such tribunals, and the evidence of his weakness or perfidy placed on enduring record in the common law reports. There is perhaps nothing upon which a judge prides himself more, or about which he feels greater solicitude, than to have his decisions pass the ordeal of a higher tribunal.

It would seem, then, as if in the few cases in which such a motive to injustice could be supposed to present itself to the mind of a judge, however corruptly disposed he might be, it would instantly be overborne and banished by considerations of paramount importance to himself.

But whether the very best selections of judges could be effected by the elective mode or not, it is not fair to suppose that it would result necessarily in the choice of corrupt men. On the contrary, it is no more than fair to presume that in most cases men could be selected who, whatever might be their other defects, would be above the influence of partisan feelings in the administration of justice. Justices of the peace are now elected among us, and also in many of the states, and although they are frequently quite deficient in other qualifications yet who ever suspected one of deciding against a political opponent from political considerations? Is it reasonable to suppose that, by the same process, the higher judicial tribunals would be any more exposed to the contaminating influence of party prejudice and strife? No man who has the least sense of honor will respect his neigh

bor any the less, or be any the less disposed to do him justice, either in the capacity of a neighbor or of a magistrate, on account of his consistent adherence to his own political faith, but, on the contrary, it is regarded as a virtue and honored and respected by all men in all parties. How preposterous is it, then, to suppose that a man invested with the sacred office of a judge and bound by every consideration of honor and interest to discharge his trust faithfully would deliberately pervert justice to punish a man for that which cannot but command his respect!

We might turn round and inquire, if it were necessary, whether any other mode of selecting a judiciary is not quite as likely to bring political influences to bear upon the decisions of the courts as the elective mode; but having shown, as we think, that under this mode the chances for the entrance of political motives in the administration of justice are, at the first glance, but few, and that when closely analyzed they dwindle down to a minus quantity, comparison with any other mode becomes unnecessary.

A SCHEME OF GOVERNMENT

[June 30, 1846]

TERRITORY OF WISCONSIN, 18th June, 1846.

MR. SMITH: I had expected that some discussion would have been introduced ere this upon the principles upon which our new constitution should be based, and as no person has entered the field with any general views, I submit to you the following synopsis of some of the features that I would like to see incorporated into that instrument:

1. Limits of state to conform to Mr. Martin's second bill. 2. Governor and lieutenant governor to be elected for two years.