sumption that our judges, as a general rule, will deserve deposition within the prescribed period-three, four, or five years. But what says experience, both here and in England, even in the case of the perpetual judges? Do we hear of misconduct calling for impeachment, once in a life-time? We remember, ourselves, but one case, in this State, for many years, and that has occurred in a judicatory of the shortest period; showing the futility of this pretended guarantee of responsibility: we allude to the illustrious Job Haskell (a characteristic specimen, by the by, of your politically elective Judiciary.) Is it, then, for this contingency of an age, and a contingency otherwise provided for in the easy method of amotion, that we establish a regulation of constant and the most mischievous operation! There is, we believe, another pretext, but peculiar to this country, for the periodic or temporary tenure: in the political idiom it is called "Rotation of Office." Rotation of office!-as if office were instituted not for the convenience of the public-and especially the judicial office, which keeps the public together but merely to serve as a bribe or a booty for profligate partisanship!! The limitation on the score of age is, in principle, no less irrational. In this State, it is set at sixty years. We have just alluded to the Areopagite as a proverb of judicial excellence. Yet these judges held the office for life, subject only to removal for immorality. More than this: the members of the almost equally illustrious Gerousia, the Supreme Court as well as Council of Sparta, not only continued for life, but were not eligible UNDER the age of sixty-the period at which we, in our modern wisdom, deprive ourselves systematically of the ripened fruits of experience! Here, moreover, we have not the school-boy apology of England, whom we take such care to follow in many of her absurdities. More conclusive still upon us is the example of our own Supreme Court of the Union. But the reader may test the provision by facts It is by it that the country has been deprived, for over twenty years, of the invaluable services, still unimpaired, of Chancellor Kent. In the national tribunal, it would have lost us several (we believe) of the most effi cient years of one of our most eminent. jurists, Mr. Justice Story. In this city, among others, we might mention Mr. Duer, who would, we believe, be precluded by this legal superannuation from becoming an acquisition to the Bench of the State. In fine, any material decay of judicial intellect at the age of sixty seems an assumption unsupported by the natural history of man. Even poets, who, like the cicada they love to sing, are held to be creatures of but a summer-the summer of the intellect-have written some of their most vigorous productions after this age. Sophocles is said to have won the prize of poetry at the Olympic games, at ninety! And Dryden was probably sixty-six when he composed the finest ode in our language. And even if there were some such decline in mental vigor, it would be amply compensated by the acquisition of what is no less essential in a judge-the superior maturity of judgment and weight of character of venerable years. The mental processes of judicature (as do, indeed, the most complex efforts of the intellect) come by frequent use to be, in a great degree, mechanical. The subjects, too, are uniform, with rare exceptions. So that the volatile activity of thirty or forty would, in nine out of ten cases, be exchanged with advantage to the general ends of justice, for the practical wisdom, the habitual caution and the perhaps increased conscientiousness of the sexagenarian mind. But why reason longer against what rests upon little or no reason? Yet the climax is still to come. All this scaffolding has, avowedly, been erected for the purpose of getting rid, ceremoniously (such is democratic courtesy!) of incompetent juges; while we retain another mode or two, besides, for doing the same thing! No: the true causes of these crude contrivances-if we must declare what it would not be patriotism, though it might be "democracy," to dissemble-are these: a meddling propensity of all popular communities to regulate everything, except themselves; a weak jealousy of everything in the shape of independent authority in the State, and the vulgar vanity of exercising our sovereignty. These are the true, however unconscious, motives. They are inherent in our institutions, and the seeds of their : disease. We do not, at the same time condemn these infirmities absolutely exercised with discrimination, they may even pass into virtues. But the misfortune is that they are seldom directed against the real danger, of which the case before us is a signal example; for no real danger ever yet proceeded from the Judiciary in a free State. On the contrary, it has, as already observed, been uniformly the main support of popular governments, until they themselves struck it down. Here, however, our meaning is not to denounce these traits as vices calling imminently for correction, but only to signalize them as tendencies which it is well to watch. We are writing with reference to a project that is not to be the event of a day, or a year. We are properly sensible, we trust, of the responsibility of affecting, by word or omission of ours, even in the slightest degree, results of such magnitude. It is under this solemn impression that we have resigned ourselves, in the preceding observations as in some others of this paper, not to expect acquittal of aristocracy or something equally criminal, save from such of our readers as can see (as some one has expressed it) the full grown man in the child-the oak in the acorn. To the others we shall offer, in conclusion, a more suitable justification-even the great authority of Edmund Burke. The passage-not the less profound in wisdom for being pleasant in form-speaks, it will be perceived, of the regulations in question as applied to a legislative body. But the argument is for this, but à valde fortiori, the more pertinent to our purpose. By the new French Constitution the best and wisest members go equally with the worst into this Limbus Patrum. Their bottoms are supposed foul, and they must go into dock to be refitted. Every man who has served in an assembly is ineligible for two years after. Just as these magistrates begin to learn their trade, like chimney-sweepers, they are disqualified for exercising it. Superficial, new, petulant acquisition is to be the destined character of all your future governors. Your constitution has too much jealousy to have much of sense in it. You consider the breach of trust in the representative so principally, that you do not at all regard the question of his fitness to exercise it." The Fifth Rule concerns the Amotion of the judges by impeachment in cases of misconduct, moral or official, and by some more summary proceeding in case of adventitious infirmity. We have anticipated, under the preceding, all that seems requisite to be said upon this head. The Sixth, which prescribes Judicial Unity, will not allow us to be equally short. In support of the principle of a single judge in each tribunal, much might be argued, and those who would see the matter sounded to its "lower deep" can be satisfied, we suppose, by consulting Jeremy Bentham. We, however, cannot insist upon it here, with even the ordinary hope of winning attention to our sugges tions. Plainly, we think anything of the kind out of the question, in a community where number is the universal criterion of the public reason; and, if it be not presumption to add, also in the actual state of even professional intelligence on the subject. Nor are we prepared to say it would be wise, were it ever so feasible, in the condition of our jurisprudence itself. We shall then content ourselves with showing how safely and advantageously the judges, upon most of our tribunals, may be considerably reduced. Intelligence and integrity, as above remarked, are the two grand attributes to be assured in a tribunal of justice. Of both the one and the other, the responsibility, moral and legal, of the judges is the only, or only adequate, guarantee. The preference, then, between the judicial unity and plurality will belong to that side in which the guarantee shall ap pear to have the more efficient operation. But this is a question rather of arithmetic than of argument. For, with respect to the moral sanction, responsibility, it is well understood, is weakened in proportion to the number concerned; and this proportion moreover progresses geometrically. A bench of even five judges may brave, and bear too, with impunity, an amount of odium before which five times five of them would have shrunk, or would have sunk, if acting singly, and thus set, as it were, in the focus of the public scrutiny. So powerfully does this one-judge system expose the magistrate to the operation of publicity, that it dispenses, in effect, with further concern about his moral, and in a measure too, his professional capacity. "Give me," exclaims somewhere Mirabeau, “give me what judge you please-partial, corrupt, even my mortal enemy-I care not a fig, if only the proceedings are conducted in the face of the public." Give him, instead of one judge, a tribunal of even only five, and they might defy him-even him-and the public together. Nor is the legal sanction much more efficient when the number of the judges becomes considerable. How affix official guilt or incompetency, in a tribunal of thirtyseven, or of twelve, or even of five judges? how ascertain the part of each or of any one? how assign the proportion, for the purpose of penal action? The difficulty would, at least, in the bulk of delinquencies, be equivalent to entire impunity; and this being well understood, nay, felt by a sort of instinct, responsibility, restraint, would, of course, so far as legal punishment was concerned, be completely null. But is it to be supposed, we may be asked, that our judges are not actuated by conscience, by probity, apart from all responsibility to law and opinion? Yes, ours are, no doubt; especially the present. But it is to be borne in mind, nevertheless, that magistrates of this quality, as well as those despotic kings who may be preferable to a constitution, are but "fortunate accidents." Nor does the argument necessarily assume the absence of either conscience or honor in the commission of the delinquencies in question; but only that it is apt to be silenced or outweighed in each member of a numerous tribunal, by the assured sympathy and support of his associates. Sustained by this class-morality, bodies of men have, in all times, committed some of the darkest crimes without compunction or infamy. It is a principle having its root in one of the most universal laws of human nature. Hence, the proverbial "honor" among thieves. Hence, too, (absit invidia) the special codes of political morals which come to prevail in parties in proportion as they are compactly disciplined; and under whose sanction one every day sees reputable and religious men without a scruple commit, for party, enormities which would justly consign them, if done in their private relations, to irretrievable disgrace, if not also to the States Prison. In short, extend the application to a majority of the human race, and you have that "common consent of mankind" which has been held by eminent, and even by Christian, philosophers to be the sole criterion of moral truth-nay, the law itself of morality Plurality of judges, then, tends nume rically to neutralize the securities for It may now, we submit, be fairly concluded as a general truth, that a plurality of judges ought to count, in respect of the intellectual advantages to the administration of justice, as but so many cyphers on the left side of unity. But, when we consider the temptations to partiality, the means of intrigue, the facilities of escape, the waste both of money to the public, and of time to the parties, which are inherent in this system, it is no longer to be regarded as merely use * De la Mennais. less-the excessive members as so many nothings: they are worse than nothing, like negative quantities in Algebra, and turn into the descending series of expense and injustice. There are a hundred other considerations, which must, however, be shut out for want of space to even indicate them. We can only add, upon this point, the testimony borne by experience to our conclusions. The consequence once attached to number in the judicial functions has been rapidly diminishing. The judicial business of the House of Commons-for which it had long been accustomed "to go into" a court (as it still does into "a committee") of the whole, is now transacted by a few members. And the "other House"-though the high Court of Appeals of the Empire-relinquishes such matters to the handful of "Law Lords." In fine, the Chancellor in this State and in England, seems to present a living, longtried example-an experimentum crusis of the unity in question. Has there been heard of more corruption in this court, more suspicion even attached to it with all the disadvantage of a a procedure in great part private, than to the Supreme Court or the Court of Errors? Has there been so much? Has the proportion of its decisions reversed been higher than that of the othertribunals of primary jurisdiction, with their five or three judges? The fact would, we suspect, be found, in all these particnlars, quite the reverse. Rule Eight-that thirty-five years be the minimum age of eligibility to any Judiciary of Record. Not the smallest advantage of a provision of this nature, under a constitution like ours, would be the reduction it would necessarily make in the crowd of competitors for office. It offers a cheap and natural test of competency, on the three-fold ground, of maturity of mind, gravity of character, and professional experience; not an infallible test, to be sure, (nor is it necessary it should be, the scrutiny of the electoral body being still behind,) but at any rate quite as good, perhaps, as the certificate (or rather order) of a political "clique." It diminishes vastly the importance of the trust to the appointing power, at the same time simplifying the exercise of it. Besides its advantages direct and indirect, it would spare us much evil; to mention, here, but the lawyerlings still more in knowledge than years, who now-a-days are scarce within the Bar, than they begin to aspire to the Bench. A boyish judge is to us as disgusting a spectacle as the poet's amorous senility. Nothing, except perhaps the native dignity of genius, or the graces of a high-wrought education, can palliate the indecency. * The Ninth Rule prescribes the principle of Gradual Promotion. This we regard as the most important of the catalogue. Only consider the spirit of emulation, with its consequences, moral and intellectual, which, under this rule, would pervade the whole hierarchy of our Judiciary! The dignity and importance which it would bring to every magistrate in his own and in the public estimation, from the lowest, who behold within the reach of honorable exertion the highest station, to the highest, who enjoyed already the satisfaction as well as honor of having obtained it by means so unequivocal. What a school of judicial discipline and development! This regulation would, moreover, raise another barrier against the solicitations of demagogues, and the importunities of partisan pettifoggers-those "barbarians" whose incursions are to be dreaded for our temples of Justice. It would place election or appointment in the Judiciary, by the popular vote, out of the question: indeed, it would leave it a matter of little consequence to what hands the power might be committed. It would be itself a sort of electoral machine; and so efficient, that if adopted in full, the preceding rule, and perhaps some others, might be largely relaxed. We entreat our readers to meditate this principle thoroughly. For our own part, we are convinced that no modification of our system likely to be adopted in the contemplated reform-no, not all together-would be so effective to render our Judiciary not merely an able, and (with the prunings hereafter to be submitted) an economical instrument of justice, but also an authoritative guardian of the Constitution and Laws, and, in fine, a much desiderated element of stability in the State. The only objection we can conceive to this rule is, that it might exclude talent. But this seems of no force. Our proposition would not make the Judiciary hereditary, an official round-robin, or close corporation. It would continue open at * Turpe senilis amor.—OVID. one end, and, we imagine, by an aperture quite large enough to admit all the available talent at all likely to present itself. The Tenth Rule forbids that degradation of judge and desecration of justice, called "fees, &c." Money is a necessary thing, no doubt; but there are other things too, no less necessary or useful, which yet decency requires us to keep, on certain occasions, out of sight. It was a wisdom no less than the Divine that drove the money-changers out of the Temple of religion. And he who does not feel something of religious reverence for the Temple of Justice; who can behold the high priest of the place turn the very altar into a counter, whereon to truck his wares, and seize the deposited silver with the avid eye and grasp of a Chatham-street Jew-he who can witness this, we say, (and what lawyer of this State, and especially City, does not, daily?) without feeling an emotion of indignant disgust, may well doubt that he is thoroughly imbued with the spirit of an enlightened citizen or an honest man. We do not wish to dwell upon this matter, nor need we. The Bar are, we know, unanimously opposed to it. The judges themselves would, we doubt not, gladly take a salary in exchange. With the people-the third and most important party to the question-the only consideration can be economy, as they understand it. If, then, it be made to appear that the salaries of the judges may be adequately enhanced, without any considerable additional charge upon the public treasury, and through a reduction (hereafter to be specified) of their actual number, while, at the same time, the bill of costs to the client will be very materially curtailedthis, we say, being proved to the public, there will be no difficulty, we presume, in the way of purging the hands of Justice of these foulest of lawful wages; which, if they may not strictly be called exactions in those who receive them according to law, are, it is to be feared, the cover of gross exactions in others, and the temptations to grievous abuses of the instruments of public justice. The foregoing ten rules will apply to the organization of all courts of law, primary and appellate. We are to add one or two of peculiar reference to the latter form of judicature. Our Eleventh rule, then, would require, in strictness, that there should be but one general court of appellate jurisdiction. Yet, in view of existing arrangements in this particular, which give us three or four, and also of the fact that with this file of inferior tribunals, the court of last resort seems to be hardly adequate to its present calendar, it would, perhaps, be too startling to habitual notions to suppose that, under any modifications of our Judiciary, a single tribunal could compass the business, which, at present, engages so many. Yet, would that its adoption depended upon our ability to demonstrate it. However, we should be disposed to retain the appellate jurisdiction of the Supreme Court; only making it concurrent and coördinate in this capacity with the Court of Errors. The one would be resorted to for the highest legal authority; the other for the best popular sanction. But, The Twelfth and last prescribes that the decision upon all appeals, to whichsoever of these tribunals made, (what is a consequence of the preceding rule,) be peremptory and final; and that all causes whatever, without distinction of quality or amount, be appealable, and to either of these sole tribunals, at the option (under proper penalties for abuse) of the plaintiff in appeal. Writs upon the primary business of the Supreme Court to remain, of course, amenable to the Court of Errors Here is theory for you! growls some little proctor in Certioraris, who sees a hemisphere between a country justice and the Court of last resort. But if principle seconded by the commonest sense be heard in preference to blind and barbarous usage, we trust to engage for this theory a particular and popular consideration. 66 وو The system of subordinated appeal we have called "barbarous" only by way of description. It is of the same feudal origin and character as the diversity of primary jurisdictions, condemned under a former rule. Neither, it is well known, was instituted for, however it might have come incidentally to subserve, the convenience of the parties, or the greater security of Justice. The object was widely dif ferent. These appeals were-and still are in several of the Germanic States of Europe-regarded not as the rights of the people, of the parties litigant, but of the baron over his vassals, and of the lord paramount, in turn, over the barons; and so on, through the whole catenation of feudatories. This must be familiar to every lawyer at all acquainted with the history of our adopted institutions. And yet lawyers, every day—such is the force of custom, not to say of "costs "—are |