representative government-第54章
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ring an interval which might amount to years； would have any legal means of ridding itself of the other。 To get through such a period without a coup d'etat being attempted； on either side or on both； requires such a combination of the love of liberty and the habit of self…restraint as very few nations have yet shown themselves capable of： and though this extremity were avoided； to expect that the two authorities would not paralyse each other's operations is to suppose that the political life of the country will always be pervaded by a spirit of mutual forbearance and compromise； imperturbable by the passions and excitements of the keenest party struggles。 Such a spirit may exist； but even where it does there is imprudence in trying it too far。 Other reasons make it desirable that some power in the state （which can only be the executive） should have the liberty of at any time； and at discretion； calling a new Parliament。 When there is a real doubt which of two contending parties has the strongest following； it is important that there should exist a constitutional means of immediately testing the point； and setting it at rest。 No other political topic has a chance of being properly attended to while this is undecided： and such an interval is mostly an interregnum for purposes of legislative or administrative improvement； neither party having sufficient confidence in its strength to attempt things likely to promote opposition in any quarter that has either direct or indirect influence in the pending struggle。 I have not taken account of the case in which the vast power centralised in the chief magistrate； and the insufficient attachment of the mass of the people to free institutions； give him a chance of success in an attempt to subvert the Constitution； and usurp sovereign power。 Where such peril exists； no first magistrate is admissible whom the Parliament cannot； by a single vote； reduce to a private station。 In a state of things holding out any encouragement to that most audacious and profligate of all breaches of trust； even this entireness of constitutional dependence is but a weak protection。 Of all officers of government； those in whose appointment any participation of popular suffrage is the most objectionable are judicial officers。 While there are no functionaries whose special and professional qualifications the popular judgment is less fitted to estimate； there are none in whose case absolute impartiality； and freedom from connection with politicians or sections of politicians； are of anything like equal importance。 Some thinkers； among others Mr。 Bentham； have been of opinion that； although it is better that judges should not be appointed by popular election； the people of their district ought to have the power； after sufficient experience； of removing them from their trust。 It cannot be denied that the irremovability of any public officer； to whom great interests are entrusted； is in itself an evil。 It is far from desirable that there should be no means of getting rid of a bad or incompetent judge； unless for such misconduct as he can be made to answer for in a criminal court； and that a functionary on whom so much depends should have the feeling of being free from responsibility except to opinion and his own conscience。 The question however is； whether in the peculiar position of a judge； and supposing that all practicable securities have been taken for an honest appointment； irresponsibility； except to his own and the public conscience； has not on the whole less tendency to pervert his conduct than responsibility to the government； or to a popular vote。 Experience has long decided this point in the affirmative as regards responsibility to the executive； and the case is quite equally strong when the responsibility sought to be enforced is to the suffrages of electors。 Among the good qualities of a popular constituency； those peculiarly incumbent upon a judge； calmness and impartiality； are not numbered。 Happily； in that intervention of popular suffrage which is essential to freedom they are not the qualities required。 Even the quality of justice； though necessary to all human beings； and therefore to all electors； is not the inducement which decides any popular election。 Justice and impartiality are as little wanted for electing a member of Parliament as they can be in any transaction of men。 The electors have not to award something which either candidate has a right to； nor to pass judgment on the general merits of the competitors； but to declare which of them has most of their personal confidence； or best represents their political convictions。 A judge is bound to treat his political friend； or the person best known to him； exactly as he treats other people； but it would be a breach of duty as well as an absurdity if an elector did so。 No argument can be grounded on the beneficial effect produced on judges； as on all other functionaries； by the moral jurisdiction of opinion； for even in this respect； that which really exercises a useful control over the proceedings of a judge； when fit for the judicial office； is not （except sometimes in political cases） the opinion of the community generally； but that of the only public by whom his conduct or qualifications can be duly estimated； the bar of his own court。 I must not be understood to say that the participation of the general public in the administration of justice is of no importance； it is of the greatest： but in what manner？ By the actual discharge of a part of the judicial office； in the capacity of jurymen。 This is one of the few cases in politics in which it is better that the people should act directly and personally than through their representatives； being almost the only case in which the errors that a person exercising authority may commit can be better borne than the consequences of making him responsible for them。 If a judge could be removed from office by a popular vote； whoever was desirous of supplanting him would make capital for that purpose out of all his judicial decisions； would carry all of them； as far as he found practicable； by irregular appeal before a public opinion wholly incompetent； for want of having heard the case； or from having heard it without either the precautions or the impartiality belonging to a judicial hearing； would play upon popular passion and prejudice where they existed； and take pains to arouse them where they did not。 And in this； if the case were interesting； and he took sufficient trouble； he would infallibly be successful； unless the judge or his friends descended into the arena； and made equally powerful appeals on the other side。 Judges would end by feeling that they risked their office upon every decision they gave in a case susceptible of general interest； and that it was less essential for them to consider what decision was just than what would be most applauded by the public； or would least admit of insidious misrepresentation。 The practice introduced by some of the new or revised State Constitutions in America； of submitting judicial officers to periodical popular re…election； will be found； I apprehend； to be one of the most dangerous errors ever yet committed by democracy： and； were it not that the practical good sense which never totally deserts the people of the United States is said to be producing a reaction； likely in no long time to lead to the retraction of the error； it might with reason be regarded as the first great downward step in the degeneration of modern democratic government。*
* I have been informed； however； that in the States which have made their judges elective； the choice is not really made by the people； but by the leaders of parties； no elector ever thinking of voting for any one but the party candidate： and that； in consequence； the person elected is usually in effect the same who would have been appointed to the office by the President or by the Governor of the State。 Thus one bad practice limits and corrects another； and the habit of voting en masse under a party banner； which is so full of evil in all cases in which the function of electing is rightly vested in the people； tends to alleviate a still greater mischief in a case where the officer to be elected is one who ough
