the other plans proposed a fixed term, ranging from eight to fourteen years, coupled with a prohibition of re-eligibility after the longer terms. It was stated in the course of the debate that the term of fourteen years was suggested because it appeared that fourteen years was the average term of service in the courts of this state, of other states, and of the United States, where the tenure during good behavior had prevailed.

Several delegates advocated briefly the plan proposed by the majority of the judiciary committee, but the principal argument was made by William M. Evarts. That great lawyer had been absent during the first part of the debate, but, on his return to the Convention, entered the contest with the enthusiasm which marks the earnest advocate of a great cause, and expressed his views in a speech which exhibited in a conspicuous degree the breadth of learning, logical skill, and felicity of language which characterized his great forensic addresses, and made him so long a distinguished leader of his profession. He believed in the life tenure, because it established a permanent court, in which the state was sure to receive the best service of which the judge was capable, free from embarrassing considerations concerning another election, or the return to the ranks of the legal profession after a separation of many years; and which would give the state the benefit of his ripening talents, as he grew and developed in judicial learning and experience. He said, among other things, that the judicial office should be established on the principle of good behavior, "during what may be expected to be the period of judicial usefulness in respect to age and faculties. By fixing the age at seventy years as the period of judicial life, we avoid at once some difficulties which have been felt, and others which have been imagined, as resulting from the prolongation of the term of office beyond the continuance of the powers of

mind and body necessary for the performance of its duties. Establishing that as the term of judicial life, we then give to the incumbent the security, and to the public the advantage, of the continuance in office of a judge during that period. The judiciary is the representative of the justice of the state, and not of its power. The judge is not to declare the will of the sovereignty, whether that sovereignty reside in a crowned king, in an aristocracy, or in the unnumbered and unnamed mass of the people. Justice is of universal import, of universal necessity, under whatever form of government." The judges are to declare the law, and not impose it. They are not to take the place of the legislature. They are to declare the law of the land, and not the will of any power. The judges are not personally accountable to members of the community who are affected by their action. No action lies against a judge for anything that he does in the judicial office, but he may be removed for misconduct. He said the plan of electing judges for short terms did, in effect, introduce the element of accountability for judicial acts, and it also involved the element of holding office at the pleasure of the people. "Short terms and renewable judicial authority represent, under the form of an election, the intolerable vices both of accountability, and retaliation for judicial action, and of holding during pleasure because the office is renewable at pleasure." Noting the similarity between the plan submitted by the committee, and the minority plan, as modified by Judge Comstock's amendment, he said the substantial difference was in the length of term. The majority proposed to permit the judge to serve continuously from his election until seventy years of age, while the minority proposed to permit him to serve only fourteen years, in any event; also practically terminating his service at seventy years. "If there is anything that is fundamental, anything that is

worth preserving in our political system, it is the principle that a public office is for the public service, and not for the private advantage and possession of the incumbent." He thought that we had departed very widely from this practice in our politics; men held office simply because it was convenient to do so. He said that the experience of England and of this state and country "was that courts built upon the plan of a judicial tenure during good behavior, up to a period of age designated, give the best judges;" that, as a rule, he did not think it for the public interest to select for judges men who were more than forty or forty-five years of age. After describing the qualities which should be possessed by a lawyer selected by the state for service in its highest judicial tribunal, the losses he sustains by abandoning his chosen profession, with its emoluments and opportunities, and the sacrifices he often makes in accepting a judicial position, especially when the service is for a limited term, at the end of which he must return to the profession, or find a new vocation in which to exercise the energies of his declining years, Mr. Evarts said that "by a less durable tenure than for good behavior, without any just compensation for what is sacrificed, you lose the great part of the essential ideas of commanding the best men and at the best age for the public service. You thus lose all that makes up the difference between a judge standing above all embarrassments, and a judge who is left undefended by your institutions 3gainst the operations of the ordinary influences that betray the frailty of our human nature." He expressed the opinion that the people would not be satisfied with the work of the Convention unless it presented a judicial system in which they could "see the judiciary as it stood before them in the past,-clothed with all the majesty of justice, and endued with all the strength that it is in the power of men to place about those whom they desire to

honor, and whom they are willing to intrust with final authority. Let us have the reflex influence of an independent judiciary upon an independent bar. Let the power-governor or the people-which fills the place, understand that it is for a durable tenure, and that a whole generation is to sit under the shade of that authority which is raised over them."

It is impossible to present in a few fragments the full scope and power of this address. It should be read by every student of our political system who wishes to understand the true foundation of our early judicial system, under which the jurisprudence of New York had been established. Here Mr. Evarts was at his best, and every one familiar with his great career knows what that means; he was contending against an order of things. which, during the radical days of the Convention of 1846. had been created in a spirit of revulsion from the old order, so destitute in many essential respects of the real elements of popular government; but the new plan of an elective judiciary, holding for short terms, had been given a twenty-year trial, and it had been demonstrated that the people were capable of selecting judges fully competent to maintain the high judicial standard which New York had reached under the former system. Mr Evarts did not oppose this part of the new system, but he believed, and in this he and his associates were in accord, that the judicial term should be extended. The final difference on this question was one of degree; namely, between a fourteen-year tenure or a tenure during good behavior, both with an age limit. Mr. Evarts presented what he believed was the ideal system, and he brought to the support of his views the experience of history and the philosophical principles which should underlie every well constructed judicial system. The reader of to-day cannot fail to appreciate the masterly array of facts, logic, and illustra

tion which Mr. Evarts presented with persuasive eloquence as he traversed the subject of the best judicial system for New York. Even now, reading the speech after thirty-five years, we fall under the spell of the orator, and can readily understand how, as he rose to the height of that great argument, the Convention hesitated, and almost decided to abandon a fixed judicial term, and restore the ancient tenure during good behavior, with an age limit, which had prevailed in the colonial days, and through the first seventy years of our state history.

Joshua M. Van Cott also made a very able speech on the same side. After referring After referring to the length of the executive and legislative terms already established by the Convention, and the long judicial term proposed, he pointed out the differences between the executive and legislative functions on the one hand, and the judicial on the other. The distinction between the two is that the function of the judge has no relation to policy. "The legislative authority determines the policy of the state." "The function of the executive is merely to see that the laws are faithfully administered." The function of the judge is fixed and absolute. It does not depend on his ideas of policy, nor on his will or discretion. He is there as a magistrate, to read, interpret, and apply the law. The will of the people is expressed in the policies adopted; but this will has nothing to do with the solemn functions of justice. "The executive cannot approach the court, although it has the whole military power of the state at its back." The legislature cannot approach the court except in the form of statutes. He advocated a life tenure, saying, among other things, that a judge chosen under this tenure would enter at once upon his duties. "knowing that his life is entirely changed, and his character entirely fixed." He has no interest except the interest of administering justice wisely and well.