THE Convention, then, for Constitutional Reform in this State, is destined, it appears, to be held-let those dislike it who may. Whether we are of the number of the dissident or not, it is therefore not so material now to declare. What seems to remain for prudence, as well as patriotism, is to contribute our efforts towards averting the abuses and insuring the benefits which are apprehended by the opponents, or expected by the friends, of this delicate and important

movement.

We may remark, however, that these anticipations, both the one and the other, are probably exaggerated, but exaggerated only in as far as misplaced. They attach themselves, we understand, mainly to the political features of the project, to the bearings of the result upon the interests or the objects of party. But, without reference to the comparative merits of these interests, or inquiry into the objects, we are content to rely, at least for the present, for prevention of any serious consequences in the political section of the Reform, upon the neutralizing effects of this competition of purposes-a principle, for the rest, which is the constant and, it would seem, a providential protection to the common weal, against the excesses of adverse parties; which, when they degenerate into factions, organically or occasionally, are like the blades of a pair of scissors, of use only by acting in the teeth of each other.

But there is an article on the programme of the proposed Convention which can find as little security, direct or incidental, from a partisan conflict, as it needs and merits much from the patriotic solicitude of the citizen. The subject, moreover, is one which demands, in the treatment of it, a degree of general knowledge, together with a species of experience which are sufficiently rare perhaps apart, but

still rarer in combination. Besides these claims on the score of danger and difficulty, there is also its importance to the State; which it is not immoderate to pronounce-either for good or for evilnot inferior to all the rest together. Here, indeed, the fears and the hopes of the most sanguine may be realized. To this topic, accordingly, we propose to address ourselves. It is a cause without a party, for the reason that it is the cause of all parties, the cause of the people; and yet one which the people cannot assume to manage by themselves without incurring, almost inevitably, the proverbial penalty of becoming one's own lawyer. Nor, in this selection of an object of universal, rather than partisan concernment, are we undutiful, we are very sure, to Whig principles. With the Whig party, too, we cannot but be quite in accord, while approaching the discussion in the spirit of that true conservatism which operates not by indiscriminate resistance to change, but by the intelligent and seasonable combination of Order and Improvement.

The subject in question, the reader foresees, could be but the Judiciary.

The Judiciary! The word is short, the idea sufficiently simple; yet what a tissue of complexity and confusion does the thing itself exhibit to a mind thoughtfully acquainted with its organization, in this State. Here, it comprehends in fact several distinct or integral systems; some intertwined, some involved, to a certain (or rather an uncertain) degree, one in another-"cycle in epicycle," &c. There is the Chancery system-coördinate, though supplementary-which is not only distinct in jurisdiction, but radically dif ferent in constitution and procedure, from the Common Law Judiciary; then, what we shall term the Police or Correctional system, which is special and subordinate, but hardly inferior in importance,

and certainly not, in the need of reformation, especially in this city, to any of the others. Now, a detailed exposition of all this, with a discussion item by item of what ought to be expunged, and what to be assorted-a discussion, of course, involving, moreover, a survey of the principles, the philosophy, of the institution itself this, it is evident, would extend to a volume: nay, in the hands of a modern manufacturer of law-books, it would be matter good for half a dozen. Yet such, we conceive, should be the scope, and this the method, of any writer who, aspiring above newspaper disquisition, would make himself of any substantial use to the contemplated reform. It is the people who are to be addressed, to be informed, to be influenced. But the people-though the contrary is, strangely, the common notion, even among their flatterers-the people desire and particularly need the aid of theory: that is, they desire to know the reasons of those things which they have not had the occasion of learning practically in their uses; they need principles, especially in matters at all technical or complicate, to give significance to forms and phrases which are but too apt to appear to them unmeaning or unnecessary; they need method, to give order and unity to a multitude of particulars which, for want of seizing them comprehensively, of being able to take in together their main and mutual bearings, the uninitiated are led to look upon as but a system of professional legerdemain, in which the only visible uniformities are fraud and fees.

Mindful of this and our limited space, we have to narrow still our ground, in order to be able to go the higher and the deeper. The Chancery and Correctional Courts must be excluded from our direct consideration. But the necessity of this omission we have the less to regret, that it can affect only matters of mere detail, or what might be called the statistics of the subject. The principles to be established being those of the judicial agency and organization in general, and the defects to be exposed in the main system of our Judiciary with, of course, the remedies to be suggested, concerning as they do, in like manner, the affiliated or other departments--it must be, that what we shall have said will prove as aptly, and perhaps not less obviously, applicable to the condition of the latter, than if they too had been made objects of specific consideration.

Nor does the omission, at all events, remain unsupplied. The defects and abuses of the Correctional Judiciary, at least in this city, do not subsist for want of public information, actual or easily accessible, of their pernicious prevalence. And as to the Court of Chancery, the "monster" of abuse, we are happy in being able to refer, for a thorough "overhauling" of it, to a tract on the subject, published, we think, in 1838, by Mr. Theodore Sedgwick of this city. Nothing, it appears to us, could well be more complete and satisfactory than this pamphlet. With reference to this department of the judicial objects of the Convention it ought to be re-read throughout the State, and made accessible to the people at large, by re-impression in some convenient form. It is written in the popular manner-lively and lucid-of the accomplished author. Moreover, besides diffusing information, it seems to be eminently calculated to disabuse the popular mind of a prejudice which might prove seriously unpropitious to the reform in question-we mean the wellknown popular distrust of professional guidance. Only let the people see what has been thought and published upon judicial abuses, by a New York lawyer and solicitor, and one, too, whose practice is as extensive as it is well-merited, in both the departments.

We are then reduced by the foregoing process of elimination, or arrangement, to the Common Law Judiciary of the State; comprising the Court for the Correction of Errors, the Supreme Court with its Circuits, the County Judicatories, and lastly, the Town or Justices' system.

The mother vice of this whole fabric we conceive to lie in the organization; or rather it is, that its proper organization has been dislocated, and distorted from the feudal purposes for which it had been admirably contrived, to subserve another and, with us, quite opposite state of things. The changes whereby this adaptation was sought, successively, to be effected, were made without nice reference to the general subject or to one another, and scarce under any other rule than the present exigency-the original type, which could have been the only proper guide, of course rather repelling us by its royal stamp, towards the opposite extreme. Of such a situation, and mode of proceeding, the necessary consequence was, an ever recurring necessity of

amending, or altering; and farther, that this everlasting amendment should operate much according to Dryden's venal opinion of the Lutheran Reformation which deformed the more, the more it "reformed." Here, we submit, is a clue to that medley of practical sense and logical absurdity, of theoretical justice but effectual iniquity, which we have inherited from feudal England, under the name of a judicial system. And this explanation of its character is quite adequate, without superficially resorting to the cupidity of lawyers, or even the incompetency of legislators. The utility of any particular reform is not a question as to the immediate or proper effects of it merely; but embraces a survey of the whole of the system to which the subject belongs, and thence a calculation of the general result. Now this, however obvious and elementary a precept, is what would seem never to have entered the head of a" Law reformer," either here or in England; whose method, with few exceptions, would seem to have been typified, by Butler, in that of Cerdon, (the cobbler" of law as well as leather :)

"A rectifier of wry law, Who would make three to cure one flaw."

They proceed by piecemeal, content if they but stop the running leak, and careless whether they do not spring, or prepare, half a dozen by the concussion. They may all of them abound in the best intentions, and, in England, do not lack even the soundest science of the day. But science, employed upon this patchwork mode of reform, instead of lending any security against error and mischief, has a natural tendency to promote them. The straighter we pursue a divergence, the far ther do we wander from the end. Accord ingly the cry still, from year to year, is "Legal Reform," and this reform proceeds precisely like the dropsy described by Horace: "Crescit indulgens sibi dirus hydrops· Nec sitim pellit, nisi causa morbi Fugerit venis," &c.

Now, in view of the preceding we earnestly ask, is the next attempt to be of the old mole-sighted, manipulating, mischief-making character? Or will we not abandon a mode of treatment which only aggravates the malady, and address ourselves to the eradication, once for all, of the disease, to the expulsion of the causa morbi, from the veins of the judicial patient? But how is this to be done? Why, first, by putting by the " file,"

which has so long misled us; by turning for light to the advanced juridical science of the day, instead of still poking among the British Parliamentary Journals of half a century old; by making, from this elevated point of view, a bold and broad survey of the whole ground; by constructing, however moderate the scale you may find it prudent at first to proceed upon, the plan of reform with some attention to system, so as to secure the cooperation of the parts to a unity of end, a harmony of effect-not leave them the usual jumble of fragmentary expedients, at eternal war with each other, like the atoms of Epicurus; in short, by, once for all, laying a basis of PRINCIPLE, which, through the joint operation of its own natural development and the guidance it will meanwhile lend, the nucleus it will serve, to subsequent reformation, cannot failand ALONE cannot-certainly, safely, and speedily, too, to renovate the whole fabric of our judicial system.

"A theorist!" exclaims one of those fireside sages who call themselves" practical men." "A temporizer!" mutters, on the other hand, the radical "Reformer." No, gentlemen-neither; but one who thinks you both the worst enemies (involuntarily such, no doubt) of all that is valuable in conservatism and progress. The thing happens in this way.

In all times, probably-though they are supposed, especially by themselves, to be peculiarly a production of the modern

march of mind"-there have appeared, on the social stage, a description of absolute intellects, men of one idea, (as they have been termed,) who fasten upon some single principle, whether of action or speculation, to which they would have all nature beside to submit. Taking what is really their narrowness for a compass of mind above the crowd, they are placed incurably by conceit beyond all counsel and correction. Simplicity, with them, is a synonym for science, for wisdom. These men do not know that the simplicity, which is in fact the sign and the effect of wisdom, is the simplicity, not of individuality, bnt of combination. They do not dream of any such agency as a modifying or a counteracting cause, in nature. Of course they are conveniently ignorant that the phenomena of the moral world, like most of those in the mechanical, depend upon a certain science expressively termed the

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Composition and Resolution of Laws or Forces" with this difference, moreover, that the political or social problem

is almost infinitely implicated, by the eccentric agency of the human Will, by the disturbing element of voluntary Action, whether spent in events or embodied in institutions. No matter; astride upon his jaded idea our philanthropist dashes on through the inclosures erected by wisdom, equally as the fastnesses accumulated by abuse, over the common of human affairs. If he tumble, he is laughed at for a fool; if he gain the goal, he is denounced for a" destructive." There, cry the "Practicals"-who, without a pulse of the humanity (perhaps) of the Reforming Quixote, are quite as self-sufficient in their ignorant wisdom as he is in his wise ignorance-there is the consequence of following your theories. The pleasant alternative-madness or mischief! "None of your principles, then." "Down with the principles !" echo the multitude -the lettered as well as the illiterate. And down, accordingly, they go, and stay for years, perhaps centuries, after. In some such way as this we believe it is, mainly, that theory has been stigmatized, truth often strangled, the intelligent and systemic application of science to the social relations of mankind so long discredited and retarded, "by and between" (as the lawyers have it) the self-styled reformers and conservatives of every community—which commonly means, a few half-illuminated enthusiasts, (when not designing adventurers,) on the one hand, and on the other, the far more numerous party, the well-to-do and the contentedwith-things-as-they-are: the great mass, the dupes of both by turns, playing the part of mutes in the comedy, constituting a dead weight, ballast-ready to roll to either side, as the wind may veer or the vessel of state may verge, whether now to support, or anon to sink, her.

But it hardly need be said that it is ignorance, not knowledge, of principles, of "theory," that occasions the one and the other of these excesses. The intelligent reformer, who really possesses this knowledge, is well aware that one of its first precepts is to take account of the nature and the circumstances of his subject; but he also knows that it is still more imperative not to move a step without the light of this knowledge. Without it indeed, it were wiser, in general, to endure abuses than adventure change. Without it to apply, in fine, these reflections to the present case-the judiciary "reorganization" talked of must, inevitably, be disorganization; and alteration,

however slight, would not be wisely hazarded, in a frame now grown so frail from the joint ravages of quackery and old age. With these views of reform in general not unusefully declared, perhaps, to "define our position," if nothing morewe now proceed to the subject before us; which it will be convenient to distinguish into the following heads:

1st. Having noted, as a general position, the nature and effects of the judicial power in a state, we will thence deduce the rules which should govern whatever is essential in the organization of a judicial system.

2d. These rules will be discussed severally, their reasons assigned, and the common objections to them considered, whether as relating to their general merits or merely their local inexpediency.

3d. The criterion thus established, the subject to be reformed will next be analyzed. And as from a simple application of the one to the other, both the defects to be remedied, and their specific correctives must result at once, and in all the precision compatible with the nature of the subject, we shall content ourselves, in conclusion, with giving a mere memorandum of the points to be amended-preceded, perhaps, if space permit, by a glance at some of the principal plans already before the public.

To urge upon the people of the State of New York the importance of a wellconstituted, well-guarded Judiciary may be regarded as a piece of very superfluous solicitude. We might be met with the reply of the honest Spartan to the rhetorician who proposed to pronounce a panegyric upon Hercules. "On Hercules! who ever thought of disparaging Hercules?" But, though duly impressed with the private and practical benefits of an efficient administration of the laws, it may yet be doubted that the body of the people are equally sensible of its political and moral consequence, in a government of the constitution and conditions of ours. It certainly cannot be too often repeated-in view, especially, of certain tendencies of the times-that the Judiciary is, in the strictest sense, the bulwark of our present political organizations. While our courts of justice are revered, while the judges are respected and respect themselves, our institutions, let demagogues do what they can, will keep their ground. But history warns us that if once this sanctuary is profaned-no matter whether by the stealthy pace of the despot who