Popular misgovernment in the United States

by Alfred Byron Cruikshank

He further declares that at that time there were on the bench in New York City, bar room loafers, broken-down Tombs attorneys, needy adventurers, whose want of character made them absolutely dependent on their patrons. “They did not regard social censure, for they were already excluded from decent society. Impeachment had no terrors for them, since the state legislature, as well as the executive machinery of the city, was in the hands of their masters. It would have been vain to expect such people, without fear of God or man before their eyes, to resist the temptations which capitalists and powerful company could offer.” And further:

“A system of client robbery had sprung 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 at the time 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. The police, it was said, would not arrest such an offender if they could help it; the District Attorney would avoid prosecuting; the court officials, if public opinion had forced the attorney to act, would try to pack the jury; the judge, if the jury seemed honest, would do his best to procure an acquittal; and if, in spite of police, attorney, officials, and judge, the criminal was convicted and sentenced, he might still hope that the influence of his party would procure a pardon from the governor of the State, or enable him in some other way to slip out of the grasp of justice. For governor, judge, attorney, officials, and police were all of them party nominees; and if a man cannot count on being helped by his party at a pinch, who will be faithful to his party?” (American Commonwealth, Vol. II, pp. 637, 639, 640.)

Although this extremely degraded judiciary has passed away, yet the whole story is as pertinent today as it ever was, for the vileness Bryce describes was the result of the operation of manhood suffrage in a large city; and the same causes are still in existence. In practice in the great cities the higher state judges are usually selected by the political bosses; and the election is often a mere form, or at most a contest between rival bosses in which the public takes but a languid and futile interest. When the boss is a rich man as often happens in a great city, he gets to know some able lawyers and sometimes makes fairly good selections for the higher judicial vacancies. This is far better than the populace would be likely to do if left to themselves. Another means of protection for judicial honor has been the influence of an educated bar, endeavoring to enforce the traditions of the past, and the examples of other civilized countries to the effect that judges should be exempt from political influence and bias. But when all is said and done it is largely a matter of luck even in the highest courts whether the judges are fit or otherwise. That the highest judges are still “bossed” is not a mere vulgar notion. How can they escape? In the election for judges of the highest New York courts in 1919, the charge that certain judicial candidates were “bossed” was publicly and persistently made by ex-judges and leading lawyers.

Of the California judges in 1877, Bryce says:

“The judges were not corrupt, but most of them, as was natural, considering the scanty salaries assigned to them, were inferior men, not fit to cope with the counsel who practised before them. Partly owing to the weakness of juries, partly to the intricacies of the law and the defects of the recently adopted code, criminal justice was halting and uncertain, and malefactors often went unpunished. It became a proverb that you might safely commit a murder if you took the advice of the best lawyers.” (American Commonwealth, Vol. II, p. 430.)

The most determined efforts of the lawyers of our great cities to make a manhood suffrage constituency understand a judicial election have been complete failures. It is sometimes amusing to see the straits to which lawyers and their intelligent friends are driven to keep the judiciary from degradation. In New York, for instance, where the judges are elected for fourteen-year terms, the lawyers hit upon the plan of demanding that sitting judges whose terms expire should always be renominated by the bosses, on pain of active opposition to the entire ticket, including their proposed successors. This really involved a violation of the spirit of the constitution, for it aimed at a life tenure for judges instead of the fourteen years fixed by that instrument, to which these lawyers had sworn allegiance. It further involved the absurdity of allowing the boss to select a judge, but never to drop him, no matter what his record; and it resulted that a candidate might be opposed by the bar the first time, but if elected would certainly be supported by them the next time without in either instance any real investigation of his record, character or attainments. All this absurdity has been and is committed by intelligent lawyers in their efforts to avoid the risk of manhood suffrage popular elections of high judges. The reader can judge from this how lively the fear of popular judicial elections must be in the hearts of the lawyers of the city of New York.

There is of course something repulsive in the very thought of a judge of a high court being selected in an election contest, and of his owing his place to the suffrages of a low populace. And then, there is the practical objection to an elective judiciary, that a judge’s qualities are special and such as can only be ascertained upon personal acquaintance and by men of superior attainments. The office is properly an appointive one, but with manhood suffrage in play, some of the worst selections for the bench have been made by state governors, in order to reward followers or venal newspapers. There is really no remedy and no way of taking the judiciary out of politics while either the judge himself or the appointing power is created by manhood suffrage. The trail of the serpent is over everything that comes from that quarter. As for the lower courts, the selections of their judges have been scandalous; men have been put on the bench who were ignorant of the first principles of law; drunkards, reckless politicians, ignorant, dishonest, uncouth, unmannerly specimens who have sought judicial office because they had no taste for hard work, or because their ignorance or habits were such that they were unable to earn an honest living at the bar. Some of them are notoriously owned by politicians. Senator Breen says that “After being whispered about among a coterie of closest friends it becomes well-known that this particular politician owns a certain judge and can get him to do anything.... The miserable creature who is robed in judicial honors reposes in perfect ignorance of the ignominy which his acts of dishonor are bringing on his name. This has been the fate of many a judge.” (Thirty Years in New York Politics, p. 25.) A New York newspaper in the Tweed days said that there was no quarter of the civilized world where the name of a New York judge is not a hissing and a byword. The New York bench has on the whole improved since 1871 when this was written; but it is very far from being what it ought to be, and its attainment of a high standard is impossible under manhood suffrage.

Taking the judicial system of the United States as a whole for the last three quarters of a century it must be said that the administration of justice has been inefficient; a large percentage of the judges have been and are unfit for their places; clerks and sheriffs corrupt and incapable; there have been chronic and intolerable delays; juries almost everywhere carelessly selected, and usually incompetent and morally weak or dishonest; inferior magistrates corrupt and unfit; many of the trial judges weak and slow and referees and masters grasping and extortionate. Congress and the several states have adopted the stupid policy of underpaying the bench, apparently on the theory that any lawyer is capable of being a judge; and of employing as few judges as possible in order to save some of the money elsewhere so wickedly squandered. These foolish economies to offset reckless waste are characteristic of the lower classes; they are given effect by universal suffrage, and harmonize with the whole inefficient outfit. The result is that in many cities important cases are on the trial calendars for months and even years waiting to be heard because there are not judges enough to hear them promptly; erroneous decisions of weak and ignorant judges keep the appellate courts busy ordering reversals and granting new trials; and a controversy that ought to be disposed of in a few months may drag along for years and until some of the witnesses have disappeared or died and others have forgotten all they once knew about the case. Mr. Bryce, in his American Commonwealth, treats the subject of the judiciary with great circumspection, and with an evident desire to speak well of the American bench, but is unable after “careful inquiries” to answer even in the matter of honesty for more than “nearly all the northern and most of the southern and western states.” He says that “In a few states, probably six or seven in all, suspicions have at one time or another within the last twenty years attached to one or more of the Supreme judges,” and has “never heard of a state in which more than two or three judges were the objects of distrust at the same time.” It is worth while to stop to realize what this amounts to: from twelve to twenty dishonest judges of the highest state courts in the United States, actually sitting day after day, dealing out infamy under the name of justice; criminals put on the bench by the election machinery; a judiciary in six or seven states so tainted that the foul smell reached the nostrils of a visitor from other lands. This state of things makes one suspect a low standard for the entire judiciary, or at least for that of each of those six or seven suspected states, for it indicates the unscrupulous power of politics. In a state where even two or three judges sell or barter justice for politics, who will not suspect that others, promoted by the same bosses, or by the same system, are incompetent, careless or otherwise unfit?

The third class of public officers, being that which is generally styled administrative, ought not, any more than the judiciary, to be affected by politics and should therefore never be chosen by popular election. The function of the legislator is to enact new measures in accordance with the progressive needs of the people, and he should therefore to a certain extent consult their wishes in framing legislation. But the administrative official is there to obey and to enforce the law as it exists; his duty is merely that of an honest, painstaking expert, and his office should be appointive and should never be treated as political. This distinction between legislative and administrative officials is plain and wide to the vision of any man with the least knowledge of government; and yet in preparing the constitutions and laws with which they deign to provide us, it is frequently ignored by politicians in pursuit of political power and patronage; the pretense being the furtherance of democratic institutions and the rule of the people. And so in the great state of New York the attorney general, the state engineer and surveyor, the secretary of state and the state treasurer have been made and are elective officials; and since female suffrage has been established in that state we have the edifying spectacle of those important offices being filled and their incumbents chosen, not by the governor of the state, nor by any body of experienced lawyers, engineers, business men or others somewhat acquainted with the workings of the respective offices and candidates, but by four millions of miscellaneous people; including motormen, hod carriers, servant maids, seamstresses, society ladies, firemen, boiler makers, farm laborers, gamblers, loafers, etc., of whom ninety-nine out of a hundred have no idea what an attorney general or a state engineer is, nor what are the duties of any of these officials, and would be unable the day after election even to name the candidates for whom they voted for those offices. In fact the gross ineptitude of the institution of manhood suffrage is nowhere more strikingly apparent than in the election of state officers in the Empire State.

Nowhere in private life is the principle of popular election applied to the choice of administrators or managers; such folly is confined to public affairs. The merchant service and the army and navy are not conducted upon the principle of universal suffrage; neither the crew nor the passengers, nor both united, are permitted to select the officers of a ship; nor are the rank and file permitted to vote for their officers in any navy, or in any well-disciplined army. The sick man does not choose his physician, nor the business man his lawyer or broker by taking the votes of his neighbors or friends. In all these instances, and in every similar case of necessary care in making a choice of an agent, the prerequisite which is insisted upon as first indispensable and controlling is efficiency; and such efficiency can only be obtained by intelligent selection. Administrative officials should always be possessed of character, experience, intelligence and other qualities which go to produce efficiency. Such possessions can only be recognized by those who are personally acquainted with the candidates and are competent to pass upon these qualities. Their selection should preferably be made by those who are to supervise their conduct in office, and to keep them up to the standard required. An appointing body is able to consider all the candidates who present themselves or whose friends present them; the electorate can only consider two or three to any advantage. The appointing body can examine personally all the candidates; the voters are incapable of properly examining any, and have neither the means nor the leisure for the careful scrutiny needed to estimate professional or expert qualifications. All administrative officers should therefore be placed in office by appointment of their superiors or supervisors who are to be held responsible for their conduct in office, and never by popular election at the polls. Of course, the politicians may reply, though they are not likely to do so, that the election of these state officers is a sham; that they are usually far from being the nondescripts whom the populace might choose if left unbossed; that they are really selected in secret long before election, by a political autocracy, which taking advantage of the ignorance and indifference of the mass of voters, sees to it that the powers and patronage of these offices go in the direction of selected favorites of the machine, not destitute of ability. This is at least partly true, for the tendency of manhood suffrage is to turn the elections into mere formal ratifications of the will of the bosses. And a machine appointment to an administrative office usually results much better for the public interest than a choice by manhood suffrage, especially where there are spoils in sight and where rival organizations sharpen their claws, as for instance in a mayoralty contest in a large city. Then ensues a real struggle, heightened by newspaper lies and clamor, with a tendency to give the victory to that one of the factions whose managers are most artful, impudent and mendacious. In the American Popular Science Review, February, 1918, p. 121, Edgar Dawson, speaking of the election of a city mayor, an office which under any rational system is treated as administrative, says: