"AGRICOLA'S" VIEWS ON THE JUDICIARY

BERIAH BROWN ESQ.

[March 20, 1847]

SIR: In my last communication upon the constitution my arguments were confined to the article on exemption from forced sale of the homestead, etc. I propose in this to examine the article on the judiciary.

To this article much opposition is made, and still more is entertained, especially by designing and intriguing men. There are, it is true, but few who are bold enough openly to attack the election of the judges by the people; and although this is the principal ground of their opposition, they endeavor to raise some side cut or collateral issue in order the more effectually to oppose this article. Hence it is said in one place that "the same judges who try the causes at the circuits are to constitute the supreme court for the rehearing of appeals or certiorari brought from their own decisions." In another place it is said that "the tenure of the office is too short," being but five years; while in a few instances only is it openly avowed that "the people are incapable of selecting good and competent judges"; though, as stated above, it is believed that this last reason is the one upon which all real opposition is founded. Entertaining this view of the case I shall endeavor to examine it somewhat in detail.

The broad basis upon which all our institutions are founded, if understood correctly, is this: That the government is vested in the people, is instituted for them, and that each individual in the community has naturally and inherently vested in him an equal share in that government, subject only to such accidental causes as may happen either with or without his own exertions to place him in a more or less prominent position among the people. If these premises are correct, it follows as an irresistible conclusion that all agents or officers to be selected to carry on the government should be selected directly by the people themselves. If this be denied, and any other mode of appointment or selection advocated, it must be upon the ground that "such other mode is safer and better." What is this but an assertion that "certain persons to be designated by the people and holding an official station are presumed to know better than the people themselves who are the most proper men among them for judges of their courts!" If this be admitted, it then follows, neces

sarily, that the people are incapable of self-government; and our whole structure of free and republican government is overthrown and blown to the four winds of heaven; for, if the principle be yielded in one case, it is enough to destroy the whole.

It is conceded by all that the people should elect their governor, members of the legislature, and various other officers. "But," say these opponents to the election of the judges, "this proposition alters the case," thus assuming the language of "the Lawyer,' on another occasion where his interest was involved. If it is right and proper to give the election of the governor to the people, why should the election of the judges be denied them? He is the supreme executive officer and in addition has legislative and even judicial duties to perform. Will not the same objections apply in the one case as in the other? It is impossible to make a satisfactory distinction. This opposition to the election of judges can only be entertained by the opponents of a republican and free government. It is an argument against all the principles of Democracy. It is the same as has been used in all ages of the world by the advocates of monarchy. To sum the whole up in one line, it amounts to this and nothing less: that the government of man is an intricate science, unknown to the mass of the people, understood only by those who have peculiar qualifications which fit and qualify them to be judges or to hold any or every other office in the government. With those who hold this opinion I have no community of sentiment; nor do I believe the great body of the people of this territory entertain any such notions.

I will now advert to the objection that "the same judges are to sit in the supreme court, on review, that hold the circuits." This in point of fact is true; yet the circumstances in which the judge is placed and with which he is surrounded entirely remove all the objections to it. In the first place, he is associated with the other judges, is compelled to hear a new argument, is referred to authorities, has time for examination and reflection before he is called upon to give an opinion in the supreme court, besides having the advice and counsel of the other judges. And in the second place, the history of the proceedings in other states where a similar provision has existed is full of instances where many of the ablest judges have upon a review of their own decisions declared against their previous opinions. The reasons why such change of opinion has occurred and will always be likely to occur are multifarious indeed. At the circuit a question is suddenly started requiring a prompt decision in order that the cause may proceed, when sufficient time cannot be allowed

for a thorough and careful investigation of a grave subject. Hence any opinion pronounced under such circumstances must not be regarded as capable of binding the conscience or warping the judgment of an upright and just judge. But even suppose that this consideration should have an influence upon the mind of one of the five judges. How is it to reach the other four? It is said by way of "deference to each other's situation." And thus it is assumed that because there are appeals pending in the supreme court from the decision of each one of the judges, made at some circuit, they, the judges all of them-are to enter into a corrupt conspiracy to sustain each other's decisions without regard to equity or justice. This is indeed a "supposable case," but in my judgment it is not a probable one.

It would rather appear to me that this very fact of passing in review their own previous decisions would of itself create and beget a spirit of emulation among them in order to see which one of them had generally succeeded best in the circuits and therefore would be likely to secure the highest reputation. This is my conclusion; this is natural and common in like cases.

The other most common objection to the election of judges is that "the term of five years is too short." This I am aware is a spurious objection; but I am also aware of another fact, long ago established in my judgment, and that is this-that every question has two sides. On the one hand, suppose the people have elected a good and well-qualified judge who executes and performs the duties of his office with credit to himself and manifest benefit to the public; when his term of office expires, will not the same people be likely to reëlect him and thus secure his services for another term? Most certainly such will be the usual course, though I admit it is not certain. Now suppose, on the other hand, that it should be found after an election that the judge was unfortunately an improper and unfit person for the station-I ask, is not five years full long enough for him to serve? Most surely everyone must admit that it is.

This then, is not an objection to the principle of election but to the expediency of the term of office. It is presumed that few, very few, who favor the principle will oppose the constitution on this ground. It is not tenable and is only resorted to as a makeweight by those who are opposed to the principle itself. Let no friend, then, allow himself to be drawn aside by this side-cut argument. Depend upon it, whoever dwells upon this objection is an opposer of free

principles, an advocate of aristocracy, and a fit subject for a monarchical government.

Most respectfully yours,

AGRICOLA

VIEWS OF "HOME" ON EXEMPTION

[March 27, 1847]

MR. BROWN: To whom should I address a few thoughts in favor of the fourteenth article of the constitution if not to him who was the first editor in Wisconsin to advocate the principle of homestead exemption?

Ours is one of the few constitutions that present a shelter for the wife and children in every difficulty that may environ the steps of an unfortunate but an industrious husband in his course through life. Every [all] female [s] in the territory should be zealous and, I hope, convincing advocates of an instrument that will save to them if married a home to them and their children. Under this constitution every man may in reality (and not in fiction of law) call his home his castle, since no enemy can dispossess him of his stronghold. A man who has a house to live in or forty acres of ground can keep his family together. If he has debts to pay he will be more able to discharge them than one that has had his house sold from over his head and his wife and children driven for support to an uncharitable world. No woman should consider that husband a prudent or humane one, who refuses to have secured to him and his family during his life and his family after his death a home to live in, in defiance of the heartless prosecution of unfeeling creditors.

No man can in justice to his family say he stands so perfectly safe against all pecuniary difficulties in the future as to be able to risk the reputation and happiness of those that Heaven has made dependent upon him for sustenance and support. No man who properly estimates these obligations can insist that he has the right to vote away the homestead of his family, that would otherwise enure to his widow and his orphans after his decease. Fathers and mothers should alike understand this article-she and the common children of both have an interest in the homestead. The father has a life estate; the reversionary interest belongs to the widow and children. Can any father in justice to himself and those that he loves better than himself deprive the children of "the spot where they were born" and virtually commit the distress which this constitution strives to prevent?

The homestead is not the homestead of the father. To use the words of the constitution it is "the homestead of the family" that it designs to secure. It allows them a house and home for the wife and children to live in as long as there is one of the family to reside in it-and at a time when the weaker sex and more helpless infants require more especial aid. No man can be worthy of confiding woman's love who would be so regardless of her comfort, health, and happiness, as by his vote to declare she should not at his death be constitutionally protected. Will parents consider these things? To them we commend a calm consideration of the article and of their relative interests therein.

HOME

THE BANK ARTICLE

[March 27, 1847]

The contest on the constitution has at length resolved itself into the great issue of bank or no bank. All the other objections drawn from imagination and urged by false issues and misrepresentation have become untenable as they come to be discussed, and the country is now flooded with handbills, circulars, pamphlets, and newspapers filled with essays upon banking. We are gravely assured by these economists that the farmer will suffer by the adoption of the constitution a depreciation of twenty-five per cent on the price of his wheat; that all real property in the territory will decrease at least fifty per cent; in fine, that the business of the country cannot be done without bank paper. The sophistry of this reasoning may be easily shown by both argument and fact. In the western part of the territory it is well known that for the last five years bank paper has been little known in the business of the country, and specie has been found so safe, convenient, and readily obtained that advocates of banking in either of the political parties are as scarce almost as white blackbirds; and yet we well recollect and all in the mines at that time will recollect that bank paper was the only circulation in the country before this revolution was effected; and that the same reasoning was used and the same deductions drawn by the lead buyers, the speculators, and merchants to convince the miners that the loss would all fall upon the producer and that very heavily by attempting to do business with specie alone as a circulating medium as is now used by the wheat speculator and bankers through the East. But the headstrong diggers had been swindled enough and would try a change. The result proved as it will everywhere prove