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disputed or violated. From this its ob Rule I. That jurisdiction be universal ject, flow the following principal infer as to the subject : that is, every judicaences, which seem to be sufficiently evi- tory, local and general, be competent, dent without discussion.
within its district, alike in civil and 1st. That the province of the judge is criminal causes. restricted to the faithful interpretation of II. That jurisdiction be common, or the law. True, the more faithful the concurrent, between conterminous judiworse, if the laws be bad. But this is catories, at the consent of both the parties, no tolerable reason for allowing a usurpa- to be taken in presence of the local judge. tion of the legislative function; and it is, III. That the judges be appointed by moreover, a sure way, at least in a go- election—not popular, but representative, vernment like ours, of provoking a by an electoral body-as at present in this speedy remedy, from the legitimate source. State.
2d. That the aim of the judge, above IV. That the judges be permanent; all things, should be rectitude of decision. without other limitation than the conAnd, subordinate to this object, indeed, tingencies of misbehavior or disability adbut scarce less important,
ventitious or natural. 3d. That the end be pursued with all V. That they be amovable (much as compatible economy and despatch. with us at present) by impeachment in the
There are two other preliminaries to former contingency, by executive motion be noted, which, however, are not so pro- in the latter and lighter case. perly principles, as conditions, of a Judici. VI. That the judges of each tribunal ary, and which may be termed its numeri- be made as few as practicable. cal and territorial bases. The judges VII. That no one be eligible to the of. should be adequate in number to the fice of judge in any judicatory of Record, quantity of business; and also, distributed who, besides the professional qualificaat suitable distances through the state. tions, has not attained the age of thirty
It will be observed of the above prin- five years. ciples, that the first points especially to VIII. That all judges be incapable of the intellectual qualifications of the judges holding any other office, or exercising and the proper limits of the judicial func- any other attribution, at the same time. tion ; the second, principally to the ÍX. That appointments be made upon moral qualities and character; the last, the principle of gradual promotion. to the manner of exercising both these X. That the judges be paid by a suitarequisites with reference to the conven ble salary at the public charge, and be ience of the litigant parties and the inter- inhibited all fees or perquisites whatever, ests of justice, under the laws.
from the parties. We now proceed to present a body of The preceding enumeration of the orrules, deduced from those leading objects, ganical principles of a Judiciary will be and calculated to insure, as well as attain, found, we trust, sufficiently complete ; them, through a juridical organization. though with more regard to the show of No nicety of regard will be paid, in the what we are obliged to term practicalenumeration, to the order in which they ness, and less to the substance of things, are to be applied. Method is a sort of ped- and the succintness of exposition, it antry (though a rare sort) where it is not might be much extended, at least by subuseful. Moreover, it would be difficult, division. But even this we propose to supwere it ever so desirable, to distinguish ply by the scholium or commentary, to be them completely, most of them bearing offered upon each of the rules-collating that best evidence of their aptness as a and comparing the principal arguments body of rules-an intercommunion of and objections. And here an advertiseapplicability to the whole of the subject. ment or two of a general bearing will be They are stated, for the reader's conve- essential. It is to be borne in mind in nience, consecutively and catagorically. the appreciation of the reasons, pro and Commentary and qualification will suc. con, in question, that their validity deceed, upon each, in the order of statement. pends greatly, not to say fundamentally, 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, jury service and expenses. You diminish the nature of the civil institutions, and the the frequent inconveniences to the parties habits and character of the people; and on the score of distance. You remove that they should be admitted or refuted all occasion of doubt, as to the proper with reference to these considerations tribunal to apply to; and consequently alone—not to what they have been re the expense and delay of all that prelimi. represented to us, through that murky nary litigation which is wasted, so often medium of confusion and cant, the Com- and onerously, upon a question of mere mon Law writers of England, or as vili- jurisdiction. You give the court a profied by the flippancy, and varnished by portionable dignity and importance—so the eulogy, of domestic imitation. A much needed, especially to the local judisingle instance will suffice to evince the catories of the country-by uniting upon propriety of this. In the State of New one tribunal the public attention and reYork, justice is administered in the name spect which had been divided and disof the people. In England, the king tracted upon several; thus strengthening (i. e. Henry 8th, or George 4th) was the that best sanction of all judicature, pubpure “ fountain of civil justice.” Ought licity. But it would be endless to go on. the constitution of the Judiciary to be the What, now, are the objections which are same under both those suppositions ? held to countervail so many advantages ? for suppositions they are, and nothing The only we have met with, appear in more-impious suppositions. Justice is the indirect form of assertions of the suan emanation neither from king nor peo- perior convenience, accruing from the diple: it is above both. Public justice vision just condemned. Let us take should be administered in the name of them, then, on their own ground. God, of whom alone it is the sovereign There is, it is familiarly known, a twoattribute.-The second notice is, that fold division of jurisdiction in our system they are submitted-rules and reasons -one, according as the complaint is of a as general but sure guides, not dictated civil or a criminal nature; the other turns as peremptory directions. Some of upon the amount of the claim. The forthem, we well know, cannot be obeyed to mer is expedient, we are told, because the letter in our actual circumstances; the judge will be more capable, confined and this impracticability we hope to re to a special branch of the law. But an duce to its lowest term before we come to advocate fully capable in both at once, a close. We are quite aware that we are and sometimes in equity also, is of common not writing (as Cicero said sneeringly of occurrence. Would the advocate lose a great contemporary) in the “ Republic this capacity on becoming a judge ? of Plato”—(non in turba Remi.) Moreover, the task of a judge is, as a But to our commentary.
general thing, much more simple, for reaThe first rule regards Universality of sons obvious to a slight reflection. “But jurisdiction. The considerations by which England has, not only these distinctions, this is recommended, are nearly as many but, further, a Court of Exchequer, and various as the modes of mending and Rolls Court, &c.” Aye, there is the rub! marring the constitution of a Judiciary; England has it !-ergo. Verily, we must for, as observed above of these rules gen- protest, once for all, that England is, in erally, it affects, directly or indirectly, these matters, to be excommunicated from almost every part of the system. To do the pale of all precedent. If we will be away with all distinction of legal juris. fatuitously filial, why not imitate the diction, (and equitable, we should not qualities of this “ mighty mother”—her hesitate to add, were it " any of our busi- calm energy of purpose her dignity of ness,”) were to reduce by a large propor- national council and character-her decition the number of judges, and by nearly sion in the administration of the lawsone-half, perhaps, all that which might be her spirit of orderly freedom-rather than termed the fixed apparatus of our system; the deformities which have been entailed and this not only without detriment, but upon her by untoward circumstances and with accelerated dispatch, probably, to the a barbarous education? France, then, it discharge of business. By this you make, may be objected—the methodical, codiof course, a large saving, not alone for the fying, law-and-equity-uniting France, litigant parties, but also for the public retains a special Commercial Tribunal; treasury in the shape of judges' salaries, to which we might reply that the absence court åttendance, and other incidental of such a court, here and in England, charges. You alleviate the burthen of both more commercial countries than
France, is a strong presumption that the tion. Upon its own avowed principle, necessity for it is not very urgent, or its then, this criterion-if admitted at allconvenience quite obvious. But once ought to operate rather the other way; adopt it, here or there, and why should that is, the smaller the sum, the more there not be a Court of Agriculture, of competent should be the Court. But, Manufactures, nay, of the several branch- possibly, after all, it is based upon the es of manufactures? In short, a tribunal amount, not of the client's claims, but of for the exclusive cognizance of every the lawyer's costs ? question for the trial of which we now We do not, however, take it upon us require a jury of Experts ? Unity of to say that there should be absolutely no jurisdiction broken, the principle over- special tribunals. Necessity—that fate, stepped, where, we ask, is the resting- who of yore controlled the gods themplace on this equable declivity, which selves—will sometimes bend the most imleads into the absurdity just indicated perious principles, and in this case, seems or, more strictly, impracticability, which, to demand some exceptions; as for ex. however, is the absurd, in matters of ac- ample, Courts Martial, Administriative tion ?
Courts of Impeachment, &c. Nor is it The alleged advantages of jurisdic- insisted, with respect to the divisions distional division into civil, criminal, com cussed, that the principle we have enmercial, &c., appear then to be few and deavored to establish--the universality occasional, if not indeed chimerical, while of jurisdiction-ought to be adopted into the inconveniences are numerous, con our system entirely and immediately. stant and oppressive. Are the reasons We do not, we beg the reader to bear in for pecuniary demarkation any better? mind, pretend to exhaust this or any other Quite to the contrary--they are much practical question of a subject so many
A distinction of this sort tends sided—especially not, in the details. to distort the nature and degrade the sanc. Our design is to spread the ground of detity of justice itself, by making dollars liberation comprehensively, while comseem the demoralizing measure of its im- pendiously, before the public, and to deportance. It gives a fallacious conse scribe upon it as minutely as our scale quence to the courts of large amount. permits the lines which govern and direct More than this, the principle itself turns the whole inquiry-leaving, generally, upon the grossest and most mischievous the considerations of a merely local or misapprehension. Why is a plaintiff particular nature, (which could not be claiming under fifty or one hundred dol. wisely disregarded,) to be discussed—the lars to be relegated to a “ Small Court" ? more intelligently, perhaps, for the lights Because the amount is small, says the thus furnished—by the better statistical legislator. Admirable economist! where information, or the unlimited time and hast thou found thy measure of pecuniary space of the people, the politicians, and magnitude ? Are you quite so ignorant the ephemeral press. in your trade as not to be aware that the The Second Rule was Intercommunity importance of a given sum is not an ab- of Jurisdiction. The right of choosing solute quantity, but bears a direct pro- one's judge among the several surroundportion to the circumstances, the revenue, ing tribunals may, under a simple restricof the claimant? that to the bulk of tion, be made fruitful of the happiest resuitors at these small tribunals, five dol- sults. On the score of distance, and of lars may be of more importance than course expense, it would be convenient five thousand to an Astor ? In truth, the to both the parties and witnesses. It relative—that is, the real—importance of would provide a practical remedy where these small claims is, in general, much a judge was suspected of partiality, or of rather in the inverse, than the direct, incompetency, in the general subject
, or ratio of the arithmetical amount. And the particular cause. With respect to this ratio is, moreover, raised incalcula- the judges themselves, its effect would be bly, where the privation of justice should, no less beneficial. It would engender a as it often must, intrench upon the means spirit of emulation to cultivate, not only of subsistence. The poor claimant of the requisite professional knowledge, but ten dollars may, through the ignorance also—what is no less essential, perhaps, or partiality of a country justice, be left to the judge--the affability of manner and without bread for his children ; the loss probity of character whereby alone could of as many millions could not reduce Mr. be secured the respect of the bar and the Astor, for example, to a similar destitu. confidence of the public. There can be
what is wrong.
no doubt that the preëminence of the to graduate amid the pollutions of potEnglish judges is largely due to this prin- house orgies and the depravities of vulgar, ciple. Their high character as a body and often villanous, intriguing? ihat dates from the cessation of the memorable he, who, being lightest in intellect, educonflict-or rather, the scandalous scram cation and character, mounted of course ble—for jurisdiction between the Four the highest, and brawled the loudest, Courts, which resulted in the establish- would be the first on the popular roll for ment of the principle in question; though, preferment, and transferred, all reeking, of course, but in an imperfect and un from the political “ stump,” to desecrate regulated form, proceeding, as it did, from the sanctity of a seat of justice? We disorder, not design, like almost every. have been earnest upon this article, be. thing else in the peculiar institutions of cause we deem it vital, and understand that people—as well what is right as that the deprecated innovation is to be
urged upon the Convention. We hope Rule Third would have the Judiciary not. For the present, however, we leave Elective : not, however, by the people it, with one admonition to the people, immediately, hut the highest representa- which is the dictate of reason, the lesson tive body, acting in an administrative ca of all history, and the warning also of the pacity. The problem here is, to combine (as yet, indeed, “ still, small”) voice of the largest interest in the well-adminis our own experience :— That our Juudiciary tration of justice with the fewest chances be kept as clear as possible from all contact of being misled or mistaken respecting the or community of interest, action or feeling qualifications of the candidates. Now, with partisan politics and politicians. while our Senate cannot be supposed at The Fourth Rule recommends Perpetuity all deficient in the former of these requi- of official tenure: that is, that the judge sites, none, we think, (except it be some hold for life, or until incapacitated by reckless demagogue,) will deny it to be misconduct or infirmity. This princiimmeasurably a safer depository of the ple is infringed by us in various ways. other guarantee, than the popular voice, Some of our judicatories are temporary; whether general or local; for, taken col- others determine at a certain age. The lectively, this voice will probably be public detriment of the former limitation mistaken about a man of whom seven is far the gieater : the absurdity, we eighths of the voters can have no suffi- think, is the same in both. An appren. cient knowledge ; and in the local de. ticeship is deemed necessary to make a partment, it is almost certain to be mis. cobbler: expertness is, it seems, of no led, between personal partialities and account in the most practically complex political cabals. We could strengthen and important of human functions. But the argument were we of those who dare laying experience aside, is that which to question the competency of the popu- alone could possibly substitute it, profeslar intelligence even to judge of a judge. sional knowledge and talent, so abundant But it cannot be necessary. For who as to support this large periodical draft? does not see the consequences, awful as It is, at present, found impracticable, we inevitable, of making the judiciary depen- understand, to secure them in even the dent npon a universal popular suffrage; presiding judge of the country counties. that is, (for example,) giving the several Yes; but give the management of these thousand vagabonds, in this and other things into the hands of the politicians, cities, a voice in choosing the judge be. and all difficulty will disappear! Multifore whom they must expect to be brought tudes of candidates for the ermine will in justice, before he is a week on the be seen to issue, at a moment's notice, bench? Who does not foresee that it from the neighboring tavern, and to pass would be, in effect, to apprentice an order at once into perfect Areopagites, by a of men, who should not only be pure in modern metamorphosis certainly equal to fact, but above suspicion of impurity, to any in Ovid ! a course of conduct and association di Now, what are the arguments, real or rectly calculated to extinguish every qual- apparent, which have been supposed to ity, moral and intellectual, the most par- counterweigh these considerations? for ticularly requisite for that highest of without such the course condemned would earthly offices ? that, instead of leading be downright fatuity. The only plausithe judicial aspirant to rely upon an hon- ble one we remember to have seen is this, orable life and the retirement of his library that it spares the scandal of deposition for advancement, it would be to send him for misconduct! Now, here is an as
sumption that our judges, as a general cient years of one of our most eminent rule, will deserve deposition within the jurists, Mr. Justice Story.* In this city, prescribed period—three, four, or five among others, we might mention Mr.
But what says experience, both Duer, who would, we believe, be prehere and in England, even in the case of cluded by this legal superannuation from the perpetual judges? Do we hear of becoming an acquisition to the Bench of misconduct calling for impeachment, once the State. In fine, any material decay of in a life-time? We remember, ourselves, judicial intellect at the age of sixty seems but one case, in this State, for many an assumption unsupported by the natuyears, and that has occurred in a judica- ral history of man. Even poets, who, tory of the shortest period ; showing the like the cicada they love to sing, are held futility of this pretended guarantee of re to be creatures of but a summer-the sponsibility: we allude to the illustrious summer of the intellect-have written Job Haskell—(a characteristic specimen, some of their most vigorous productions by the by, of your politically elective Ju- after this age. Sophocles is said to have diciary.) Is it, then, for this contingency won the prize of poetry at the Olympic of an age, and a contingency otherwise games, at ninety! And Dryden was provided for in the easy method of amo- probably sixty-six when he composed tion, that we establish a regulation of the finest ode in our language. constant and the most mischievous ope And even if there were some such deration! There is, we believe, another cline in mental vigor, it would be ampretext, but peculiar to this country, for ply compensated by the acquisition of the periodic or temporary tenure: in the what is no less essential in a judge—the political idiom it is called “ Rotation of superior maturity of judgment and weight Office.” Rotation of office !-as if office of character of venerable years. The were instituted not for the convenience of mental processes of judicature (as do, inthe public—and especially the judicial deed, the most complex efforts of the inteloffice, which keeps the public together, lect) come by frequent use to be, in a great but merely to serve as a bribe or a booty degree, mechanical. The subjects, too, for profligate partisanship !!
are uniform, with rare exceptions. So The linitation on the score of age that the volatile activity of thirty or forty in principle, no less irrational. In this would, in nine out of ten cases, be exState, it is set at sixty years. We have changed with advantage to the general just alluded to the Areopagite as a pro- ends of justice, for the practical wisdom, verb of judicial excellence. Yet these the habitual caution and the perhaps injudges held the office for life, subject only creased conscientiousness of the sexageto removal for immorality. More than narian mind. But why reason longer this: the members of the almost equally against what rests upon little or no illustrious Gerousia, the Supreme Court reason? Yet the climax is still to come. as well as Council of Sparta, not only All this scaffolding has, avowedly, been continued for life, but were not eligible erected for the purpose of getting rid, UNDER the age of sixty-the period at ceremoniously (such is democratic courwhich we, in our modern wisdom, deprive tesy !) of incompetent juges; while we ourselves systematically of the ripened retain another mode or two, besides, for fruits of experience! Here, moreover, doing the same thing! No: the true we have not the school-boy apology of causes of these crude contrivances—if we England, whom we take such care to fol. must declare what it would not be patriotlow in many of her absurdities.
ism, though it might be “ democracy,” to More conclusive still upon us is the dissemble—are these: a meddling propenexample of our own Supreme Court of sity of all popular communities to regulate the Union. But the reader may test the everything, except themselves; a weak provision by facts It is by it that the jealousy of everything in the shape of country has been deprived, for over independent authority in the State, and the twenty years, of the invaluable services, vulgar vanity of exercising our sovereignstill unimpaired, of Chancellor Kent. In ty. These are the true, however unconthe national tribunal, it would have lost scious, motives. They are inherent in us several (we believe) of the most effi our institutions, and ihe seeds of their
* It is a melancholy, if not a very “curious” coincidence, that the death of this gentleman should have had place on the same day—the same hour, we believe that the text was penned; the writer being ignorant of even the venerable judge's indisposition.