« PreviousContinue »
We have now deduced, from the nature conditions which leave the privilege comand objects of the judicial agency in a paratively worthless. free State, the rules which should govern The judges are elected by the Governor the organization of a Judiciary. Then and Senate conjointly, and for various these rules have been confirmed argu- . periods. Those of the first and second mentatively-motived, as the French ex- order permanently, until the age of sixty press it so much more neatly-and the years, the County Judges for five, and the principal objections that either have, or Justices, who are elected by the towns, for might have been opposed to their appli- four years. All are amovable, in the mean cation, considered with especial reference time, by the same electoral authority; only to our system, and (we submit) confuted. through the different processes (according There seems to remain but that we set in to the nature of the delinquencies) of Exjuxtaposition a sketch of this system, to ecutive motion, or Legislative impeachrender the simplest of our readers a com- ment. paratively intelligent commentator upon There is no special qualification of this complex and occult subject. ineligibility on the ground of youth. No
Viewed in respect of territorial juris- principle of promotion, and scarce a diction, the Law Judicature of the State chance-the “active” and unscrupulous of New York, is at present divided into partisan being generally preferred before three or four classes. 1. The Supreme the ex-judge, however honest, efficient, Court, whose jurisdiction is coextensive experienced, whose office had for some with the State. 2. The Circuit Courts; time removed him from the field of
powhich, in the feudal theory, are but the litical desert, by imposing upon him at Supreme Court making, for the public least an exterior of decency and principle. convenience, a tour of Justice, (so to The salaries are, to the Judges of the speak,) and, in this migratory quality, Supreme Court, $2,500 each, per annum; restricting its cognizance as to the na- to the Circuit Judges, $1,600 each. The ture of the subject matter, to questions County Judges are paid $2 for each day of fact-as to the extent of jurisdiction, they actually attend at the Court, whether to certain districts denominated Circuits. of the County or Oyer and Terminer. 3. The county judicatories, limited by the All are allowed besides to exact fees, &c., county; and 4. The Justices, who hold on the proceeds of which, of course, forth” in the lowest political subdivi- they have principally to depend for comsions, called Towns.
pensation, The number of the judges in this State With respect to the appellate Judicais : of the first class, three of the second, tories—the Courts lawyer”-we have eight; of the third, about two hundred just as many as there are tribunals of imand eighty-three--five to the county, mediate resort; the Court of Errors, which (New York excepted,) being the consti- has no original jurisdiction, canceling tutional contingent. As to the justices, the Justice Courts which, of course, have we must say, with the advertisements, no appellate. For, as the metaphysicians they are “too numerous to mention ;" have failed to conceive a stick without being as plentiful in the country as pump- two ends, so the lawyers, it seems, with kins or militia colonels.
all their reputed subtlety, have been These various judicatories are again unable to convert these lowest tribunals, distinguished, by a sort of cross-division, like the rest, to the correction of errors, into Civil and Criminal; according to the where there was no “court below” to nature of the complaint or to the party commit them:-appeal, alas ! like all else complaining. But except in matters of of human contrivance, being subject to mere form, and the change of name into the conditions of a beginning and an end. “ Court of Oyer and Terminer,” or “ Ses. But a great aggravation of the mischief sions,” the demarkation is faint or vague, is that these jurisdictions are successive in the inferior tribunals, and disappears and subordinate. entirely in the Supreme Court-a practi- By comparing this analysis of the syscal proof, by the way, of its essential tem to be reformed or reorganized, article futility.
by article, with the previous rules, it The sectional jurisdictions are strictly will be found to deviate from principle in impassable, unless by permission of the almost every particular. Having thus Supreme Court, which is termed chang. brought the various defects with the uting the venue;" and the permission is most precision within the reach of easy, of granted only in a few cases, and upon obvious inference, and prepared for each
its appropriate remedy, the application actual system of Common Pleas and should have been committed to our readers, General Sessions was to undergo any as a most instructive exercise, even were modifications, as to the number of Judges, we unurged by the necessity of drawing time and place of holding terms, &c., in to a close. And if we, too, like others, consequence of the superaddition of the still subjoin our plan of reform, it is District Judge and jurisdiction. The bill, meant rather for the convenience of com- indeed, whicn accompanies the report, parison, a sort of popular praxis, than as supplies this omission, (in part, inferena project which there is any design ortially,) by overstepping a little its proper desire to urge upon the adoption of the basis. These things should be confuture Convention, however happy we ceived and enunciated with some definiteshould be, for the sake of our State and ness and skill. They are matters of form through her the country's generally, that to be sure ; but form, our law framers the suggestions submitted had engaged ought to begin to know, is sometimes its attention, as we do not at all blush to the veritable substance. believe they deserve it.
However, reduce the terms, as the bill Before advancing our own plan—which suggests, and to even the lowest possible will complete the scheme of this paper- number, how is an individual Judge to we should like to give a respectful con- preside (unless by mesmeric presence) in sideration to those which have been the several Courts both of Common Pleas published, we understand, by others, and General Sessions of his district, supfrom time to time, upon the subject; but posing the plurality of counties in each our limits are inexorable. There is one, district to be at all considerable ? And if however, which cannot, perhaps, be thus the number be small enough to bring the dismissed consistently with duty, or at presidence in question within the limits least with decency; we allude to the of practicability, we are placed on the Report of the Committee of Judiciary other horn, of multiplying Judges (that Reform, made in 1837, by order of the is to say salaries) already deemed too nuSenate of this State. It must be import- merous; and, moreover, in a department ant to our purpose to avert any conflic- for which the committee itself informs tion, as well as to avail ourselves of any us there is little or nothing to do in the concurrence, of views with a project put existing establishment. forth under the twofold sanction of official “ But to get it something to do is our authorization combined with professional very purpose,” say the committee : “we eminence and experience.
design to retain in the County Courts This Commission, composed of Messrs. much of the business now carried up to Cady, Sutherland, and Oakley, (of the Su- the Supreme Court; and this we expect perior Court of this City,) propose the to accomplish by elevating the character following in reference to the division of of the local tribunals, through the District the Judiciary under our consideration. system.” Very well :-(though the object We give it in their own words:
appears to be merely professional and “1st. It is proposed to add two judges the means rather cumbrous and costly, to the Supreme Court.
in the first place, this arrangement will “2d. To leave the Circuit Court sys- of course, according to the hypothesis, tem as it now stands.
proportionably diminish the business of “3d. To organize the counties of the the Supreme Court. Accordingly a re. State into Common Pleas Districts, of a duction of the Judges of this tribunal convenient number of counties, and to would, consistently, be a part of the Comappoint a presiding Judge for the Court mittee's plan. At least they ought to be of Common Pleas and the General Ses. content with the present. On the consions of the peace for each district; trary of all this, they propose an addition whose duty it shall be to preside in the of two more! Courts of Common Pleas and the General Again, we are told by the Committee Sessions of the peace of the (several) that the County Courts in the country counties belonging to his district.” are at present nearly deserted-chiefly in
This has one merit at least—it is short; consequence of their incapacity. There but it is also not free from a common can be here, then, no pretext, on the incident of this quality—it is obscure ground of business, for retaining several Not to criticise the loose and scarcely Judges to each Court; and that they do proper phraseology of the third article, not serve to bring it ability or public reit gives no intimation whether or not the spect is asserted by the Committee's own
plan of the District system, whose express 1st. That the Justices' Courts be abol. end is to create or improve those requi- ished. This, of course, not to affect the sites; and had been proved, indeed, by Special or Police Courts of this, or the us, above, from principle, to be a fallacious other cities; which belong to the Correcnotion of the vulgar. Why then retain tional department of the Judiciary. quartered upon the people three or four 2d. That the Common Pleas Judges in Judges in each county, admitted by the each county be reduced to two; who shall Committee's project to be good (as the hold separate courts, and by brief circuits, saying is) neither for use nor ornament! within the county, and in the distinct caa troop of supernumeraries who, at least pacities, 1st. Of irying causes by summaany longer, can serve but to embarrass ry procedure, (in the present mode of the the action of the Court and disparage Justices' Courts)—not however according the office of the Judge ; abundance of to the amount litigated, but as the parties even the best things, like familiarity, may choose to apply to the court sitting being sure to beget contempt. This in this quality; and 2d. Issues of Fact seems to us a gross disregard of economy, joined in their proper courts; besides this, and an equally negligent violation not both to hold, say twice or oftener) only of recognized principle, but even of a-year, a Court in Bank, conjointly with the common degree of consistency. a presiding member to be described in the
The town or Justice judicatories, the next article. Committee do not touch at all, though in 3d. That the counties of the State be great part blended with the Common Pleas divided—with all practicable reference to system which they propose to reorganize. population-into districts of three (or The Circuit system, while retained as more) to each ; and that to every such above, the Committee, after mentioning district there be assigned one judge, whose several modes of change, recommit to the attributions, like the county magistrates', discussion of the Legislature : as much as shall be of a two-fold grade and characto say, an alteration is needed, but what or ter, viz: 1st. He shall preside in the where, these deponents do not say; and, Common Pleas of the counties in his distherefore, in turn, commission you, as trict, at arguments of questions of Law, you have done them, to determine. and in the Oyer and Terminers, in pros
Such are a few of the more obvious, or ecutions for misdemeanors; and 2d. He easily exposed, of the defects of this Com- shall hold a district court, for issues mittee's plan of judicial reform. Our cur- of fact from the Supreme Court, within sory comments are confined, it will be ob- his jurisdiction. To this officer shall also served, to internal consideration of it-a devolve the miscellaneous business now comparison of one part with another, or at committed to the circuit judge. farthest, with the arrangement proposed 4th. That the circuit system be abolto be amended. Were it to be judged on ished; the incumbent judges to be rethe high ground of science or system, and tained in one of the districts falling withby the rules we have established, it is in their circuits respectively. The Sumoderate to say, it would be found su- preme Court to remain unaltered. perficial, imcomplete, and even as far as 5th. That only the elder class of Sen. it goes undigested in the extreme. There ators, or those of whose term of service are but two particulars which, by any two years shall have expired, be entitled elasticity of construction, we are able to to a seat in the Court of Errors. convert to our purpose: the District sys- 6th. That the Common Pleas have full tem, which, however, we will have to jurisdiction concurrently, with the Sumodify radically; and the reduction of preme Court, within the county, and with the members of the Court of Errors to the adjacent county courts, at the option the elder class of the Senators. The and mutual conseni of the parties ; which latter we alopt without alteration ; not consent to be taken before their proper that it satisties us, but that it is a liberal county judge. step in the right direction, and as far as 7th. That the Supreme Court and the
can expect to advance at present. Court of Errors be the sole tribunals of There are, also, we are bound to ac- Appeal : the former in respect of the inknowledge, some remarks up and down ferior judicatories; the other, generally, through the Report, which it would be bui either final. gratifying, had we the space, to bring in 8th. That vacancies be supplied, in the iestimony of the plan which we now pro- district courts, from the county judges ; or ceed to submit. We propose, then, in the Supreme Court, from the district VOL. II.-NO. V.
judges; and that no person be eligible to should be happy to find ourselves mistathe place of judge in any of our courts, ken,) it is manifest that no contrivance under the age of at least thirty-five years. whatever could avail to give character,
9ih. That the judges remain elective, regularity or decency to tribunals so in all other respects, and amovable, as closely connected with a contamination now; only that the term of office of the of this sort, as are the county courts of county judges be extended to seven years, Common Pleas with the town justice and the provision disqualifying judges at system--especially by certioraris, which the age of sixty be repealed. The dis- seem to make the same tigure in tbe countrict judges, (like the Circuit, whom they try that habeas corpus does, in this city. substitute,) to hold, of course, for life. Under this impression, we are convinced
10th. That the judges be paid by sal- that any systematic reform of our judiary-only and adequately-and respec- ciary should begin with the “
“justices tively from the treasuries of the county, courts-> the district, and the state.
But while proposing, ourselves, its en. The reader is solicited to compare care
tire abolition, we have been careful to fully the preceding scheme with what we preserve what alone it was peculiarly have premised in this paper respecting designed, or good, for—its summary proboth the requisites of a judicial system in cedure; which has been attributed, it was general, and the condition and defects of seen, to the two county judges, in their the particular judiciary to be reformed- itinerant capacity. Besides thus remov. of both which discussions it professes to ing this clog upon the Common Pleas be the direct result, only somewhat modi- system, our positive contrivances for its fied, in obedience to circumstances; olso, elevation in character and intelligence, with our comments upon the plan re- though much of the same nature, are, we ported by the respected Committee of the submit, a farther improvement upon the Senate. If this be done with due atten- Committee's. Its jurisdiction is made lotion, and our method of developing the cally concurrent with the Supreme Court; whole subject be marked, we can con- and it is still farther approximated to it by a ceive but little need for further illustra- medium more palpable to popular appretion. Only one or two remarks, there. hension—the district judge—who is confore, and we conclude.
stituted a member of, and thus a link be. The main or sole end of the plan pro- tween, both these judicatories. But this, posed by the Committee alluded to, would besides contributing (among other coöpeseem to be, the most laudable (though a lo- rative influences which may be observed cal) one of improving the character, moral only in the system of our plan,) to give and intellectual, of the county judicato- dignity and ability to the county courts, ries, ascertained to be suffering in these gives at the same time compactness and respects from the sinister influences of efficiency to the whole machinery of our certain associations incident to their nar- Judiciary. A consequent acceleration of row, fixed sphere, and the insufficiency despatch is capable of demonstration, of the compensation to procure suitable And as for the economy, our retrenchability. The object is of the first impor- ment of the salaries or the compensations, tance, as far as it is carried. But why small or large, of two or three hundred not extend it to the town justices? With- judges, expenses of court-houses, attendout this, the reform of the Committee was ance, &c., is matter of simple computanot only imperfect, but was miserably tion. inefficient even for its limited purpose. One of the strongest recommendations They do not touch the root of the evil, of our plan, however, (if it be allowed 10 which lies in the justices' courts--those have any,) is the provision for mainscandalous burlesques upon all justice taining the complete independence of the and judicature. At least, such is our Judge. Without this grand requisite own observation in several and select in- all other qualities in a Judiciary, circumstances in the country ; in some of which stanced like ours, must be imperfectly (the court being held in a tavern) the operative and fatally insecure. With it - squire” and one or other of the parties we shall have been provided in our Judi. or their proctor might be seen, by way of ciary with a capital desideratum in popuinterlude to the farces called trials, to step lar government. What our institutions back and forth, from the bar of Justice to want, is to strike root somewhere; to the bar of Gin. Now if this be in any have something fixed to hold to, when the degree of generality the case, (and we day of storm comes; which is not the less inevitable for not being yet apparent to uous asserters of the rights and liberties ordinary perception. We insist, there- of others. The Judges are, or ought to fore, upon ample salaries to the judges be, of a reserved and retired character, and as a principal means of securing this inde- wholly unconnected with the political pendence. Look at the salaries of the world.” British Judges :—the Chief Justice of the We beg to say, in conclusion, that there Queen’s Bench about $30,000; a Puisne is not a particular of our plan, for which, Judge, $20,000; the Lord Chancellor from as well as for the preceding, we could $80,000 to $100,000 ! Or if you will not produce the highest sanctions, both not, (for the profound reason that these practical and scientific. We, therefore, are the magistrates of a “monarchy,”) confidently invite criticism, if only accomlook, at least, at the salaries of the sister panied with candor, and especially intelStates of the Union. We find the aggre- ligence. It will not do to say, for exam. gate amount of the salaries paid the Judi- ple, “ The circuit system works well,” or ciary of the State of New York to be, ac- « The justices' courts were popular,” &c. cording to population, two and a half This would be puerile and purblind. It times less than the average rate of six of may be all true, and yet other arrangethe larger States, and three and a half ments “ work” better. Or suppose them times less than that of six of the smallest perfect, a slight change of some other States, of the Union. This, our people parts of the fabric to which they belong, may be assured, is expensive economy. may disorder, so as to render them wholly At all events, there can be here no objec- or partially useless, if not pernicious. In tion, even on this fallacious ground, to short, that in this as in all other systems, the enhancement we propose; the re- the “good” or “ bad” of the parts, is a duction of the judicial establishment relative consideration—that is to say, deleaving a fund which will be amply suf- pends on the relation of the particular ficient for the purpose. And that nothing part to every other and to the wholemay be left undone to enforce its impor- this, we say, is but the A B C of critical lance, we again recur to the authority of competency in the matter in question. the first of statesmen and the most mi- Farther, we may protest that we have writnutely comprehensive, perhaps, of human ten without bias, from profession, party, intellects-not excepting Aristotle.* or theory. We address ourselves, with
“ In the first class,” (says Burke in his out distinction of party, to that portion of Speech on Econominal Reform,)“ I place the people, politicians or not, who can the Juilges. It is the public justice that regard the reform in contemplation, from holds the community together; the ease, higher and holier, than partisan, grounds. therefore, and the independence of the To such alone we offer the foregoing views, judges ought to supersede all other con- such as they are ; and we trust it will not siderations, and they ought to be the very derogate from the gravity of the subject last to feel the necessities of the State, or or the occasion, if we do so, deferentially, to be obliged either to court or bully a in the words, as the spirit, of the poet: minister, (à fortiori, a multitude,) for their right: they ought to be as weak
“Si quid novisti rectius istis, solicitors in their own demands, as stren- Candidus imperti; si non his utere,” &c.
* We really cannot agree with a person who writes letters about “ American literature” in the National Intelligencer, in rating Edmund Burke, in oratory as well as statesmanship, below Mr. Webster. Mr. W. is too worthy of just, and too sensible of judicious, eulogy, not to be the first himself to repudiate such beplastering as this. But it was probably unnecessary to notice the opinion of a man who sets himself to prove to us that we are quite rich in a national literature, by raking up a catalogue of publications which are admitted by the arpose of his own argument, to have never been heard of in their native country, and, of course, not in any other. An ignorance, this, on the part of our good people, certainly equal to Monsieur Jourdan's, that he had been speaking prose all his life.