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disease. We do not, at the same time misconduct, moral or official, and by condemn these infirmities absolutely : some more summary proceeding in case exercised with discrimination, they may of adventitious infirmity. We have aneven pass into virtues. But the misfor- ticipated, under the preceding, all that tune is that they are seldom directed seems requisite to be said upon this head. against the real danger, of which the case The Sixth, which prescribes Judicial before us is a signal example; for no Unity, will not allow us to be equally real danger ever yet proceeded from the short. In support of the principle of a Juliciary in a free State. On the contra- single judge in each tribunal, much might ry, it has, as already observed, been uni- be argued, and those who would see the formly the main support of popular gov- matter sounded to its “ lower deep” can ernments, until they themselves struck it be satisfied, we suppose, by consulting down. Here, however, our meaning is Jeremy Bentham. We, however, cannot not to denounce these traits as vices call- insist upon it here, with even the ordinary ing imminently for correction, but only hope of winning attention to our suggesto signalize them as tendencies which it tions. Plainly, we think anything of the is well to watch. We are writing with kind out of the question, in a community reference to a project that is not to be the where number is the universal criterion event of a day, or a year. We are pro- of the public reason ; and, if it be not preperly sensible, we trust, of the responsi- sumption to add, also in the actual state bility of affecting, by word or omission of even professional intelligence on the of ours, even in the slightest degree, re- subject. "Nor are we prepared to say it sults of such magnitude. It is under this would be wise, were it ever so feasible, solemn impression that we have resigned in the condition of our jurisprudence itourselves, in the preceding observations self. We shall then content ourselves as in some others of this paper, not to with showing how safely and advantageexpect acquittal of aristocracy or some. ously the judges, upon most of our trithing equally criminal, save from such of bunals, may be considerably reduced. our readers as can see (as some one has Intelligence and integrity, as above expressed it) the full-grown man in the remarked, are the two grand attributes to child-the oak in the acorn. To the be assured in a tribunal of justice. Of others we shall offer, in conclusion, a both the one and the other, the responsimore suitable justification—even the great bility, moral and legal, of the judges is authority of Edmund Burke. The pas- the only, or only adequate, guarantee. sage-not the less profound in wisdom The preference, ihen, between the judifor being pleasant in form-speaks, it cial unity and plurality will belong to will be perceived, of the regulations in that side in which the guarantee shall apquestion as applied to a legislative body: pear to have the more efficient operation. But the argument is for this, but à valde But this is a question rather of arithmetic fortiori, the more pertinent to our pur. than of argument. For, with respect to pose.

the moral sanction, responsibility, it is By the new French Constitution the well understood, is weakened in proporbest and wisest members go equally tion to the number concerned; and this with the worst into this Limbus Patrum. proportion moreover progresses geometriTheir bottoms are supposed foul, and cally. A bench of even five judges may they must go into dock to be refitted. brave, and bear too, with impunity, an Every man who has served in an assem- amount of odium before which five times bly is ineligible for two years after. Just five of them would have shrunk, or as these magistrates begin to learn their would have sunk, if acting singly, and trade, like chimney-sweepers, they are thus set, as it were, in the focus of the disqualified for exercising it. Superfi- public scrutiny. So powerfully does this cial, new, petulant acquisition is to be one-judge system expose the magistrate to the destined character of all your future the operation of publicity, that it disgovernors. Your constitution has too much penses, in effect, with further concern jealousy to have much of sense in it. You about his moral, and in a measure too, consider the breach of trust in the repre- his professional capacity. “Give me,” sentative so principaily, that you do not at exclaims somewhere Mirabeau, “give all regard the question of his fitness to me what judge you please-partial, corexercise it."

rupt, even my mortal enemy-I care not The Fifth Rule concerns the Amotion of a fig, if only the proceedings are conductthe judges by impeachment in cases of ed in the face of the public.” Give him,

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instead of one judge, a tribunal of even rically to neutralize the securities for
only five, and they might defy him—even judicial probity. Its influence upon the
himand the public together. Nor is intellectual requisite is not much less
the legal sanction much more efficient prejudicial. Are we likely to find more
when the number of the judges becomes application, more dispatch, more talent,
considerable. How affix official guilt or more information, in many than in one
incompetency, in a tribunal of thirty- judge? With regard to the first of these
seven, or of twelve, or even of five judges? qualities, we need but remind the reader
how ascertain the part of each or of any of the trite apothegm, “what is every-
one? how assign the proportion, for the body's business is nobody's; " and then
purpose of penal action? The difficulty as to dispatch, the interminable speech
would, at least, in the bulk of delin- (or “opinion”) making which all of us
quencies, be equivalent to entire impuni- are too familiar with to need description.
ty; and this being well understood, nay, Not more talent, surely,—talent being the
felt by a sort of instinct, responsibility, exception, and alas ! a rare one, among
restraint, would, of course, so far as legal men. Not more of information, all that
punishment was concerned, be complete- is pertinent to the case-law, facts, and
sy null. But is it to be supposed, we may evidence-being, presumably, furnished
be asked, that our judges are not actuated by the consent of the parties. But“ two
by conscience, by probity, apart from all heads are better than one,” oraculizes
responsibility to law and opinion ? Yes, the vulgar saw. Calves' heads, we ad-
ours are, no doubt; especially the pre- mit; but judges' heads are valued upon a
sent. But it is to be borne in mind, different principle. “ Divide power and
nevertheless, that magistrates of this you control ii,” says an old political
quality, as well as those despotic kings axiom. To which we reply, all-suffi-
who may be preferable to a constitution, ciently, divide responsibility and
are but a fortunate accidents.” Nor does nihilate it. This is known, moreover, to
the argument necessarily assume the ab. be the device of days of political des-
sence of either conscience or honor in the potism and star-chamber procedure, con-
commission of the delinquencies in ques. trived for the very purpose of creating
tion ; but only that it is apt to be silenced some portion of this responsibility, of
or outweighed in each member of a nu- opening a chink for the eye of publicity
merous tribunal, by the assured sympa- to pry through; the judges were multi-
thy and support of his associates. Sus- plied to increase the chances of a vir-
tained by this class-morality, bodies of tuous treachery. True, the “wisest of
men have, in all times, committed some mankind” has said, “ There is safety in
of the darkest crimes without compunc- a multitude of counselors.” But this
tion or infamy. It is a principle having seems satire : he does not say, There is
its root in one of the most universal laws justice, &c. In fact, the negative advan-
of human nature. Hence, the proverbial tage just explained seems to have been
“ honor” among thieves. Hence, too, that here too intended ; and, moreover,
(absit invidia) the special codes of politi- Solomon probably meant a deliberative or
cal morals which come to prevail in par. legislative body—to which, in order to
ties in proportion as they are compactly obviate all possible misapprehension, we
disciplined; and under whose sanction take this occasion to observe that the dis-
one every day sees reputable and religious cussion cannot in any manner apply.
men without a scruple commit, for party, It may now, we submit, be fairly con-
enormities which would justly consign cluded as a general truth, that a plurality
them, if done in their private relations, to of judges ought to count, in respect of
irretrievable disgrace, if not also to the the intellectual advantages to the admin-
States Prison. In short, extend the ap- istration of justice, as but so many cy-
plication to a majority of the human phers on the left side of unity. But,
race, and you have that “common con- when we consider the temptations to par-
sent of mankind” which has been held tiality, the means of intrigue, the facilities
by eminent, and even by Christian,* phi- of escape, the waste both of money to
losophers to be the sole criterion of moral the public, and of time to the parties,
truth-nay, the law itself of morality which are inherent in this system, it is

Plurality of judges, then, tends nume- no longer to be regarded as merely use

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less—the excessive members as so many knowledge than years, who now-a-days nothings: they are worse than nothing, are scarce within the Bar, than they belike negative quantities in Algebra, gin to aspire to the Bench. A boyish and turn into the descending series of judge is to us as disgusting a spectacle as expense and injustice.

the poet's amorous senility. * Nothing, There are a hundred other considera- except perhaps the native dignity of tions, which must, however, be shut out for genius, or the graces of a high-wrought want of space to even indicate them. We education, can palliate the indecency. can only add, upon this point, the tes- The Ninth Rule prescribes the principle timony borne by experience to our con- of Gradual Promotion. This we regard clusions. The consequence once attached as the most important of the catalogue. to number in the judicial functions has Only consider the spirit of emulation, with been rapidly diminishing. The judicial its consequences, moral and intellectual, business of the House of Commons-for which, under this rule, would pervade which it had long been accustomed “ to the whole hierarchy of our Judiciary! go into” a court (as it still does into “a The dignity and importance which it committee”) of the whole, is now trans- would bring to every magistrate in his acted by a few members. And the “ other own and in the public estimation, from House”—though the high Court of Ap- the lowest, who behold within the peals of the Empire-relinquishes such reach of honorable exertion the highest matters to the handful of “ Law Lords.” station, to the highest, who enjoyed In tine, the Chancellor in this State and in already the satisfaction as well as honor England, seems to present a living, long- of having obtained it by means so unetried example—an experimentum crusis quivocal. What a school of judicial of the unity in question. Has there discipline and development! This regubeen heard of more corruption in this lation would, moreover, raise another court, more suspicion even attached to it barrier against the solicitations of demawith all the disadvantage of a a procedure gogues, and the importunities of partisan in great part private, than to the Supreme pettifoggers-those - barbarians · whose Court or the Court of Errors ? Has incursions are to be dreaded for our temthere been so much? Has the proportion ples of Justice. It would place election of its decisions reversed been higher than or appointment in the Judiciary, by the that of the othertribunals of primary juris- popular vote, out of the question : indeed, diction, with their five or three judges ? it would leave it a matter of little conse. The fact would, we suspect, be found, in quence to what hands the power might all these particnlars, quite the reverse. be committed. It would be itself a sort

Rule Eight-that thirty-five years be of electoral machine ; and so efficient, that the minimum age of eligibility to any if adopted in full, the preceding rule, Judiciary of Record. Noi the smallest and perhaps some others, might be largely advantage of a provision of this nature, relaxed. We entreat our readers to mediunder a constitution like ours, would be tate this principle thoroughly. For our the reduction it would necessarily make own part, we are convinced that no modi. in the crowd of competitors for office. fication of our system likely to be adopted It offers a cheap and natural test of com- in the contemplated reform-no, not all petency, on the three-fold ground, of ma- together-would be so effective to render turity of mind, gravity of character, and our Judiciary not merely an able, and professional experience; not an infallible (with the prunings hereafter to be subtest, to be sure, (nor is it necessary it mitted) an economical instrument of jusshould be, the scrutiny of the electoral tice, but also an authoritative guardian body being still behind,) but at any rate of the Constitution and Laws, and, in quite as good, perhaps, as the certificate fine, a much desiderated element of sta(or rather order) of a political “clique.” bility in the State. It diminishes vastly the importance of the The only objection we can conceive to trust to the appointing power, at the same this rule is, that it might exclude talent. time simplifying the exercise of it. Be- But this seems of no force. Our proposides its advantages direct and indirect, it sition would not make the Judiciary hewould spare us much evil; to mention, reditary, an official round-robin, or close here, but the lawyerlings still more in corporation. It would continue open at

Turpe senilis amor.-Ovid.

one end, and, we imagine, by an aperture four, and also of the fact that with this quite large enough to admit all the avail. file of inferior tribunals, the court of last able talent at all likely to present itself. resort seems to be hardly adequate to its

The Tenth Rule forbids that degrada- present calendar, it would, perhaps, be tion of judge and desecration of justice, too startling to habitual notions to supcalled “ fees, &c.” Money is a necessary pose that, under any modifications of our thing, no doubt; but there are other Judiciary, a single tribunal could compass things too, no less necessary or useful, the business, which, at present, engages which yet decency requires us to keep, so many. Yet, would that its adoption on certain occasions, out of sight. It depended upon our ability to demonstrate was a wisdom no less than the Divine it. However, we should be disposed to that drove the money-changers out of the retain the appellate jurisdiction of the Temple of religion. And he who does Supreme Court; only making it concurnot feel something of religious reverence rent and coordinate in this capacity with for the Temple of Justice; who can the Court of Errors. The one would be behold the high priest of the place turn resorted to for the highest legal authority; the very altar into a counter, whereon the other for the best popular sanction. to truck his wares, and seize the depos- But, ited silver with the avid eye and grasp of The Twelfth and last prescribes that a Chatham-street Jew—he who can wit. the decision upon all appeals, to whichness this, we say, (and what lawyer of soever of these tribunals made, (what is this State, and especially City, does not, a consequence of the preceding rule,) be daily ?) without feeling an emotion of in- peremptory and final; and that all causes dignant disgust, may well doubt that he whatever, without distinction of quality is thoroughly imbued with the spirit of or amount, be appealable, and to either an enlightened citizen or an honest man. of these sole tribunals, at the option We do not wish to dwell upon this mat- (under proper penalties for abuse) of the ter, nor need we. The Bar are, we plaintiff in appeal. Writs upon the priknow, unanimously opposed to it. The mary business of the Supreme Court to judges themselves would, we doubt not, remain, of course, amenable to the Court gladly take a salary in exchange. With of Errors the people--the third and most important Here is theory for you! growls some party to the question—the only consider- litile proctor in Certioraris, who sees a ation can be economy, as they understand hemisphere between a country justice it. If, then, it he made to appear that the and the Court of last resort. But if prinsalaries of the judges may be adequately ciple seconded by the commonest sense enhanced, without any considerable addi- be heard in preference to blind and barbational charge upon the public treasury, rous usage, we trust to engage for this and through a reduction (hereafter to be “theory” a particular and popular conspecified) of their actual number, while, sideration. at the same time, the bill of costs to the The system of subordinated appeal we client will be very materially curtailed have called “ barbarous” only by way this, we say, being proved to the public, of description. It is of the same feudal there will be no difficulty, we presume, origin and character as the diversity of in the way of purging the hands of Jus- primary jurisdictions, condemned under a tice of these foulest of lawful wages; former rule. Neither, it is well known, which, if they may not strictly be called was instituted for, however it might have exactions in those who receive them ac- come incidentally to subserve, the convencording to law, are, it is to be feared, the ience of the parties, or the greater security cover of gross exactions in others, and of Justice. The object was widely ditthe temptations to grievous abuses of the ferent. These appeals were and still instruments of public justice.

are in several of the Germanic States of The foregoing ten rules will apply to Europe-regarded not as the rights of the organization of all courts of law, the people, of the parties litigant, but of primary and appellate. We are to add the baron over his vassals, and of the one or two of peculiar reference to the lord paramount, in turn, over the barons; latter form of judicature.

and so on, through the whole catenation Our Eleventh rule, then, would require, of feudatories. This must be familiar to in strictness, that there should be but one every lawyer at all acquainted with the general court of appellate jurisdiction. history of our adopted institutions. And Yet, in view of existing arrangements in yet lawyers, every day—such is the force this particular, which give us three or of custom, not to say of “costs”-are heard panegeryzing these things, which event of affirmation, the attorney of the it is no democratic metaphor, but, as we plaintiff should have none. This, besides have seen, a historical truth, to call advancing the interests of justice in other badges of servitude, as being the most ways, which it might be invidious to admirable contrivances—full of Anglo- particularize, narrows down the question Saxon wisdom-for the assurance of uni- of costs to a definite and known, or versal and equal justice !

knowable, sum, which the parties proNow, what is the object of appeal at posing to appeal, may take into prelimiall ? To correct an error, if any be nary computation. If he believes he has committed, or give rational satisfaction justice on his side, (and we have left his that there has been none. How does attorney no interest in misleading bim,) common sense direct that this is to be be runs but little risk in presenting himaccomplished, with the greatest dis- self before its most competent tribunal. patch as well as effect? Obviously, by But if, on the contrary, he would “try applying to the best authority attainable, the thing merely for experiment," or in the first instance. What use then of from passion, he has before him the adyour intermediate tribunals! They can- vocate's fee of fisty or a hundred dollars, not possibly have the requisite authority than which—so far from being an impediwith the people, their very organization ment to justice—it would be impossible stamping them in fact with inferiority: to devise a more convenient as well as nor can ihey, of course, give satisfaction salutary check upon speculation and vento either of the parties. But what they geance. can do, as consummately as if they With all the foregoing enormities of were designed for it, is this : at every these intermediate jurisdictions of appeal, stage of appeal they double the expense we find not one redeeming quality-exand the delay—they enable the rich client cept it be this, that they lengthen the to harrass the poor, to frustrate the law- lawyer's bill. But the profession will, they shake all confidence in even the su- we are sure, be, notwithstanding, found preme tribunals-in fine, they infect the favorable to a change in this matter, people with that most disastrous and de- were it only to acquit themselves of the moralizing notion, that litigation is but a plausible imputation of being the real species of gambling or adventure. And owners of these courts, the inheritors of if it has, in fact, been often compared, in the feudal barons; with the difference England and this country, to a lottery, the only of having converted the unsubstaninfamy is, we believe, to be ascribed tial " homage” of the days of chivalry mainly to our system of appellate judi- into “ good and lawful money of the cature.

United States of America." Again : if there be grounds for judicial We might confirm the argument still correction, why should not the best means by the strong examples of our masters be as accessible to the small claimant as in jurisprudence, the Greeks and Ro10 the large? It has already been shown mans; in the confection of whose inthat this distinction of amount is utterly stitutions, reason, or at least liberty, had fallacious, and that in the eye of Justice something to do; and which, in no as well as of Heaven, the lowest should instance, we believe, admitted of more be considered highest, and the highest, than one degree of appeal.* In truth, lowest. But the poor man cannot bear that our system is not merely unjust and the expense of the highest tribunal, you irrational, but quite out of nature, might say. Then, I say, you deny the poor be very fairly presumed from the fact man justice, and favor the wealthy in his that the ingenious Athenians--the “beanoppression—which is not very republi- devouring Demos” t—did not fall upon

But where is the necessity for this some such contrivance to feed their juexpense ?-unless you mean the lawyer's ridical voracity; especially since they costs. Well, this obstacle we would miti- carried the other principle, of the divisigate in this way, and it will be apparent bility of jurisdiction, to such pernicious with how many collateral advantages. refinement, as to have, in some cases, In case of reversal the defendant in error several courts, for the different degrees of should be held to pay all costs; in the the same offence.

Scarce even this. For, the vetoes of the Consul, Prætor and Tribune upon each other's proceedings, merely annulled, but did not readjudicate. Whether it was the same with the Greeks is not clear.

† Aristophanes. An allusion to the litigiousness of his countrymen, who used beans for ballots in rendering their verdict.

can.

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