calls himself "The Lord's Anointed," or by the impudent strut of the multitude legitimizing itself under the title of the Majority," by a similar charter of infallibility-from this moment, popular government, guide and guard and enlighten it as you may, must cease to have any more validity, and will speedily cease to have more value, than that "social compact" imagined by some philosophers as the primitive basis of the civil authority. It was the Areopagus, though but one of its many tribunals, that kept together the miserable democracy of Athens through three-fourths of its convulsive life; and this, not by means of its legal attributions, which the demagogues had reduced to a few, but, mainly, by the moral influence of character. A well constituted Judiciary may give to governments of this fluctuating nature, something of that fixedness which we too know, or ought to know, how vain it is to expect from constitutions. It also presents that point of resistance as indispensable to the human will, as it is to the spring or the lever, to bring out the elastic energy, whether of a nation or an individual But what need of illustration? Government can operate only by laws. Laws are worse than worthless if not duly administered. But this depends entirely upon the possession of competent judges. And good judges are to be secured only by an organization of the judicial system, adapted to guarantee their ability and integrity. We have just intimated an analogy between the office of the fulcrum in mechanics and that which a good Judiciary is calculated to perform, politically, in popular governments. But to give it full efficiency for this, or, indeed, any other purpose of policy or justice, it should, like the fulcrum, be placed outside of the body upon which it is designed to act. The Judiciary should, as it were, be exterior to the sovereign authority; that is to say, it should be independent. This was the meaning of a great statesman, who has described the Judiciary to be the security which the sovereign gives to its justice against its power." 66 This security, the independence of the Judiciary, is important, we repeat, in proportion as other checks are wanting. It is, moreover, in accordance with at least the theory of our constitution, which seems to place the judiciary on a footing with the legislative. The Judiciary is effectually independent in the British constitution, whence ours has transcribed this deviation (if it be one) from logic in favor of policy. Would that its many other aberrations were of this salutary sort! But is the judicial in fact subordinate, even metaphysically, to the legisla tive power? The latter is the sovereign will declaring certain rules; the former the sovereign understanding applying and enforcing them. The authority in both the cases is coequal, the acts distinct and different; and it would be difficult, we imagine, to assign a valid reason why the institutions based upon them should not be coördinate and independent. We have, then, theory both scientific and constitutional; we have example, we have experience; we have in fine necessityarising from the unwritten character of much of our law-all concurring to enjoin this fundamental principle of a judicial system-the absolute independence of the judge. A Judiciary thus conditioned must, of course, owe its defects as its qualities, to intrinsic organization: to this we are now prepared to proceed. Judicature is the instrument or means of putting the laws into execution* when *Here, as in England, the Executive is erroneously regarded not only as a separate power, but as a coordinate member of the sovereign authority; whereas it is merely a part of the judicial office-the act of judging being the principal, as the prior function. This office may be called after either of the parts, Judicial or Executive, as the reader pleases; little matter for the name, when it does not mislead respecting the object. Of course, then, the Executive cannot have the equality assumed in the common division of powers. Nor do the metaphysical considerations whereby we just asserted the independence of the Judiciary, apply here, as may be superficially supposed. The Executive is a mechanical power, and therefore of its nature inferior and dependent. The Judicial and Legislative are, on the contrary, moral powers, and therefore independent and coordinate, of a similar necessity. This remark will appear not unimportant, if we advert to the confusion pervading our constitutioual terminology respecting the nature of the several departments of government, and the proper attributions of each. This want of all precision of idea, is painfully palpable in our political discussions. What is still more serious, it is sometimes visible in our legislation. All, down to the newsboy, can talk to you flippantly of the disputed or violated. From this its object, flow the following principal inferences, which seem to be sufficiently evident without discussion. 1st. That the province of the judge is restricted to the faithful interpretation of the law. True, the more faithful the worse, if the laws be bad. But this is no tolerable reason for allowing a usurpation of the legislative function; and it is, moreover, a sure way, at least in a government like ours, of provoking a speedy remedy, from the legitimate source. 2d. That the aim of the judge, above all things, should be rectitude of decision. And, subordinate to this object, indeed, but scarce less important, 3d. That the end be pursued with all compatible economy and despatch. There are two other preliminaries to be noted, which, however, are not so properly principles, as conditions, of a Judiciary, and which may be termed its numerical and territorial bases. The judges should be adequate in number to the quantity of business; and also, distributed at suitable distances through the state. It will be observed of the above principles, that the first points especially to the intellectual qualifications of the judges and the proper limits of the judicial function; the second, principally to the moral qualities and character; the last, to the manner of exercising both these requisites with reference to the convenience of the litigant parties and the interests of justice, under the laws. Rule I. That jurisdiction be universal as to the subject: that is, every judicatory, local and general, be competent, within its district, alike in civil and criminal causes. II. That jurisdiction be common, or concurrent, between conterminous judicatories, at the consent of both the parties, to be taken in presence of the local judge. III. That the judges be appointed by election—not popular, but representative, by an electoral body-as at present in this State. IV. That the judges be permanent; without other limitation than the contingencies of misbehavior or disability adventitious or natural. V. That they be amovable (much as with us at present) by impeachment in the former contingency, by executive motion in the latter and lighter case. VI. That the judges of each tribunal be made as few as practicable. VII. That no one be eligible to the office of judge in any judicatory of Record, who, besides the professional qualifications, has not attained the age of thirtyfive years. VIII. That all judges be incapable of holding any other office, or exercising any other attribution, at the same time. IX. That appointments be made upon the principle of gradual promotion. X. That the judges be paid by a suitable salary at the public charge, and be inhibited all fees or perquisites whatever, from the parties. The preceding enumeration of the organical principles of a Judiciary will be found, we trust, sufficiently complete; though with more regard to the show of what we are obliged to term practicalness, and less to the substance of things, and the succintness of exposition, it might be much extended, at least by subdivision. But even this we propose to supply by the scholium or commentary, to be offered upon each of the rules-collating and comparing the principal arguments and objections. And here an advertisement or two of a general bearing will be essential. It is to be borne in mind in the appreciation of the reasons, pro and con, in question, that their validity depends greatly, not to say fundamentally, We now proceed to present a body of rules, deduced from those leading objects, and calculated to insure, as well as attain, them, through a juridical organization. No nicety of regard will be paid, in the enumeration, to the order in which they are to be applied. Method is a sort of pedantry (though a rare sort) where it is not useful. Moreover, it would be difficult, were it ever so desirable, to distinguish them completely, most of them bearing that best evidence of their aptness as a body of rules-an intercommunion of applicability to the whole of the subject. They are stated, for the reader's convenience, consecutively and catagorically. Commentary and qualification will succeed, upon each, in the order of statement. Legislative, Executive, Judicial, and Administrative powers; but can even our lawyers always tell " without thinking," (as the children say) to which of these a given public proceeding is properly to be referred? Aye, they may, without thinking, or with the "file," for thus they can tell it "backwards." But demand that their reasons be drawn from the essential character of the subject itself; and let the subject be for instance, the "Pardoning Power." on the form of the particular government, the nature of the civil institutions, and the habits and character of the people; and that they should be admitted or refuted with reference to these considerations alone-not to what they have been rerepresented to us, through that murky medium of confusion and cant, the Common Law writers of England, or as vilified by the flippancy, and varnished by the eulogy, of domestic imitation. A single instance will suffice to evince the propriety of this. In the State of New York, justice is administered in the name of the people. In England, the king (i. e. Henry 8th, or George 4th) was the pure "fountain of civil justice." Ought the constitution of the Judiciary to be the same under both those suppositions? for suppositions they are, and nothing more-impious suppositions. Justice is an emanation neither from king nor people: it is above both. Public justice should be administered in the name of GOD, of whom alone it is the sovereign attribute. The second notice is, that they are submitted-rules and reasonsas general but sure guides, not dictated as peremptory directions. Some of them, we well know, cannot be obeyed to the letter in our actual circumstances; and this impracticability we hope to reduce to its lowest term before we come to a close. We are quite aware that we are not writing (as Cicero said sneeringly of a great contemporary) in the "Republic of Plato "—(non in turba Remi.) But to our commentary. The first rule regards Universality of jurisdiction. The considerations by which this is recommended, are nearly as many and various as the modes of mending and marring the constitution of a Judiciary; for, as observed above of these rules generally, it affects, directly or indirectly, almost every part of the system. To do away with all distinction of legal jurisdiction, (and equitable, we should not hesitate to add, were it " any of our business,") were to reduce by a large proportion the number of judges, and by nearly one-half, perhaps, all that which might be termed the fixed apparatus of our system; and this not only without detriment, but with accelerated dispatch, probably, to the discharge of business. By this you make, of course, a large saving, not alone for the litigant parties, but also for the public treasury in the shape of judges' salaries, court attendance, and other incidental charges. You alleviate the burthen of jury service and expenses. You diminish the frequent inconveniences to the parties on the score of distance. You remove all occasion of doubt, as to the proper tribunal to apply to; and consequently the expense and delay of all that preliminary litigation which is wasted, so often and onerously, upon a question of mere jurisdiction. You give the court a proportionable dignity and importance so much needed, especially to the local judicatories of the country-by uniting upon one tribunal the public attention and respect which had been divided and distracted upon several; thus strengthening that best sanction of all judicature, publicity. But it would be endless to go on. What, now, are the objections which are held to countervail so many advantages? The only we have met with, appear in the indirect form of assertions of the superior convenience, accruing from the division just condemned. Let us take them, then, on their own ground. There is, it is familiarly known, a twofold division of jurisdiction in our system -one, according as the complaint is of a civil or a criminal nature; the other turns upon the amount of the claim. The former is expedient, we are told, because the judge will be more capable, confined to a special branch of the law. But an advocate fully capable in both at once, and sometimes in equity also, is of common occurrence. Would the advocate lose this capacity on becoming a judge? Moreover, the task of a judge is, as a general thing, much more simple, for reasons obvious to a slight reflection. “But England has, not only these distinctions, but, further, a Court of Exchequer, Rolls Court, &c." Aye, there is the rub! England has it!-ergo. Verily, we must protest, once for all, that England is, in these matters, to be excommunicated from the pale of all precedent. If we will be fatuitously filial, why not imitate the qualities of this "mighty mother"-her calm energy of purpose-her dignity of national council and character-her decision in the administration of the lawsher spirit of orderly freedom-rather than the deformities which have been entailed upon her by untoward circumstances and a barbarous education? France, then, it may be objected the methodical, codifying, law-and-equity-uniting Franceretains a special Commercial Tribunal; to which we might reply that the absence of such a court, here and in England, both more commercial countries than France, is a strong presumption that the necessity for it is not very urgent, or its convenience quite obvious. But once adopt it, here or there, and why should there not be a Court of Agriculture, of Manufactures, nay, of the several branches of manufactures? In short, a tribunal for the exclusive cognizance of every question for the trial of which we now require a jury of Experts? Unity of jurisdiction broken, the principle overstepped, where, we ask, is the restingplace on this equable declivity, which leads into the absurdity just indicated or, more strictly, impracticability, which, however, is the absurd, in matters of ac tion? The alleged advantages of jurisdictional division into civil, criminal, commercial, &c., appear then to be few and occasional, if not indeed chimerical, while the inconveniences are numerous, constant and oppressive. Are the reasons for pecuniary demarkation any better? Quite to the contrary-they are much worse. A distinction of this sort tends to distort the nature and degrade the sanctity of justice itself, by making dollars seem the demoralizing measure of its importance. It gives a fallacious consequence to the courts of large amount. More than this, the principle itself turns upon the grossest and most mischievous misapprehension. Why is a plaintiff claiming under fifty or one hundred dollars to be relegated to a " Small Court”? Because the amount is small, says the legislator. Admirable economist! where hast thou found thy measure of pecuniary magnitude? Are you quite so ignorant in your trade as not to be aware that the importance of a given sum is not an absolute quantity, but bears a direct proportion to the circumstances, the revenue, of the claimant? that to the bulk of suitors at these small tribunals, five dollars may be of more importance than five thousand to an Astor? In truth, the relative-that is, the real-importance of these small claims is, in general, much rather in the inverse, than the direct, ratio of the arithmetical amount. And this ratio is, moreover, raised incalculably, where the privation of justice should, as it often must, intrench upon the means of subsistence. The poor claimant of ten dollars may, through the ignorance or partiality of a country justice, be left without bread for his children; the loss of as many millions could not reduce Mr. Astor, for example, to a similar destitu tion. Upon its own avowed principle, then, this criterion-if admitted at allought to operate rather the other way; that is, the smaller the sum, the more competent should be the Court. But, possibly, after all, it is based upon the amount, not of the client's claims, but of the lawyer's costs? We do not, however, take it upon us to say that there should be absolutely no special tribunals. Necessity-that fate, who of yore controlled the gods themselves-will sometimes bend the most imperious principles, and in this case, seems to demand some exceptions; as for example, Courts Martial, Administriative Courts of Impeachment, &c. Nor is it insisted, with respect to the divisions discussed, that the principle we have endeavored to establish the universality of jurisdiction-ought to be adopted into our system entirely and immediately. We do not, we beg the reader to bear in mind, pretend to exhaust this or any other practical question of a subject so manysided-especially not, in the details. Our design is to spread the ground of deliberation comprehensively, while compendiously, before the public, and to describe upon it as minutely as our scale permits the lines which govern and direct the whole inquiry-leaving, generally, the considerations of a merely local or particular nature, (which could not be wisely disregarded,) to be discussed-the more intelligently, perhaps, for the lights thus furnished-by the better statistical information, or the unlimited time and space of the people, the politicians, and the ephemeral press. The Second Rule was Intercommunity of Jurisdiction. The right of choosing one's judge among the several surrounding tribunals may, under a simple restriction, be made fruitful of the happiest results. On the score of distance, and of course expense, it would be convenient to both the parties and witnesses. It would provide a practical remedy where a judge was suspected of partiality, or of incompetency, in the general subject, or the particular cause. With respect to the judges themselves, its effect would be no less beneficial. It would engender a spirit of emulation to cultivate, not only the requisite professional knowledge, but also-what is no less essential, perhaps, to the judge--the affability of manner and probity of character whereby alone could be secured the respect of the bar and the confidence of the public. There can be no doubt that the preeminence of the English judges is largely due to this principle. Their high character as a body dates from the cessation of the memorable conflict-or rather, the scandalous scramble for jurisdiction between the Four Courts, which resulted in the establishment of the principle in question; though, of course, but in an imperfect and unregulated form, proceeding, as it did, from disorder, not design, like almost everything else in the peculiar institutions of that people as well what is right as what is wrong. Rule Third would have the Judiciary Elective: not, however, by the people immediately, but the highest representative body, acting in an administrative capacity. The problem here is, to combine the largest interest in the well-administration of justice with the fewest chances of being misled or mistaken respecting the qualifications of the candidates. Now, while our Senate cannot be supposed at all deficient in the former of these requisites, none, we think, (except it be some reckless demagogue,) will deny it to be immeasurably a safer depository of the other guarantee, than the popular voice, whether general or local; for, taken collectively, this voice will probably be mistaken about a man of whom seveneighths of the voters can have no sufficient knowledge; and in the local department, it is almost certain to be misfed, between personal partialities and political cabals. We could strengthen the argument were we of those who dare to question the competency of the popular intelligence even to judge of a judge. But it cannot be necessary. For who does not see the consequences, awful as inevitable, of making the judiciary dependent npon a universal popular suffrage; that is, (for example,) giving the several thousand vagabonds, in this and other cities, a voice in choosing the judge before whom they must expect to be brought in justice, before he is a week on the bench? Who does not foresee that it would be, in effect, to apprentice an order of men, who should not only be pure in fact, but above suspicion of impurity, to a course of conduct and association directly calculated to extinguish every quality, moral and intellectual, the most particularly requisite for that highest of earthly offices? that, instead of leading the judicial aspirant to rely upon an honorable life and the retirement of his library for advancement, it would be to send him to graduate amid the pollutions of pothouse orgies and the depravities of vulgar, and often villanous, intriguing? that he, who, being lightest in intellect, education and character, mounted of course the highest, and brawled the loudest, would be the first on the popular roll for preferment, and transferred, all reeking, from the political" stump," to desecrate the sanctity of a seat of justice? We have been earnest upon this article, because we deem it vital, and understand that the deprecated innovation is to be urged upon the Convention. We hope not. For the present, however, we leave it, with one admonition to the people, which is the dictate of reason, the lesson of all history, and the warning also of the (as yet, indeed, "still, small") voice of our own experience: :- That our Judiciary be kept as clear as possible from all contact or community of interest, action or feeling with partisan politics and politicians. The Fourth Rule recommends Perpetuity of official tenure: that is, that the judge hold for life, or until incapacitated by misconduct or infirmity. This principle is infringed by us in various ways. Some of our judicatories are temporary; others determine at a certain age. The public detriment of the former limitation is far the greater: the absurdity, we think, is the same in both. An apprenticeship is deemed necessary to make a cobbler: expertness is, it seems, of no account in the most practically complex and important of human functions. But laying experience aside, is that which alone could possibly substitute it, professional knowledge and talent, so abundant as to support this large periodical draft? It is, at present, found impracticable, we understand, to secure them in even the presiding judge of the country counties. Yes; but give the management of these things into the hands of the politicians, and all difficulty will disappear! Multitudes of candidates for the ermine will be seen to issue, at a moment's notice, from the neighboring tavern, and to pass at once into perfect Areopagites, by a modern metamorphosis certainly equal to any in Ovid! Now, what are the arguments, real or apparent, which have been supposed to counterweigh these considerations? for without such the course condemned would be downright fatuity. The only plausi ble one we remember to have seen is this, that it spares the scandal of deposition for misconduct! Now, here is an as |