THE NEW CONSTITUTION: ARTICLE VI-THE JUDICIARY. [ The precedent which New York is creating by the most extraordinary innovation in the greatest department of the State-the department of JUSTICE-a province hitherto, in all civilized nations, the most carefully guarded, is of such vital concern to the nation at large, and is in itself so fraught with danger to the very foundations of Social Order, that we could not refrain in this number from expressing our opinion of it in the fullest terms, though it may be of no avail to avert the evil. We therefore admit a second article, setting forth more completely the innovation, which our leader partly embraces. We design in this Review to avoid local and sectional matters. But this belongs to the whole country, and the people must understand it. As the writer of this article conclusively argues, it is not so great a matter that the highest judges should be chosen by popular election, as that when chosen they are to be turned out again in eight years, thus subjecting what no nation has yet subjected, the high seats of Justice to all those temptations to corrupt action, all the miserable caballing and strife which now pertains to the most petty political office, whose incumbent may desire a re-election. How different would it be, if, when once chosen, in the tumult of a popular election, they could settle down into that calm atmosphere which invests a judicial office whose term is to cover nearly the residue of life? Then what is to be said of the probability under such a system, of possessing in the places of judgment any accumulated treasures of judicial wisdom and experience? All beneficial changes in the Constitution, however necessary and advantageous, are but feathers in the balance against the inestimable evil of this. But we commend the article below to the attention of our readers.-ED. AM. REV.] - "JUDGMENT is what gives force, effect and vigor to laws; laws without judgment are contemptible and ridiculous; we had better have no laws than laws not enforced by judgment." BURKE. "I stand for JUDGMENT; shall I have it ?"-SHAKSPEARE. THE new Constitution of the State of work of such vast magnitude and fraught New York is about to be submitted to the with such tremendous consequences so people for ratification or rejection, and imperatively demands. This is to be will soon have passed the popular and hereafter cited against us, and, we fear, final audit from which there lies no ap- cited with resistless force, as one of our peal. Shall we ratify the proposed Con- examples of our boasted capacity for selfstitution, or shall we abide by that which government. A Constitution of governwe already possess, modifying its defects ment is to be struck out by the people at through the intervention of the legisla- a ture, or of a Convention to be called hereafter? To deliberate upon and decide this momentous question, the people have had but a few days; about as long a time as is often occupied in trying an Insurance cause in the Superior Court, or a bank robber at the Sessions. Considering that we are a busy, toiling people, submitting to our daily tasks and destiny of labor, we have really but a few hours to revise what the Convention has been many months in doing. Indeed, indeed, "this is a sorry sight." The reconstruction of the Constitution and political society of a great State; the fundamental law of property and life for millions of men for a quarter of a century; in theory, the work of the people; is to be puddered over for a few days, and huddled through; done in hot and indecent haste, without deliberation or scrutiny, or an eye to the careful adjustment of its parts, so as to secure a symmetrical and perfect whole, which a single heat-cut out and finished as quick as a tailor could make a decent suit of clothes! Doubtless, it deserves to last about as long; and the people will be wise to begin to think of having a whole wardrobe of constitutions, that they may be the more conveniently cleansed and repatched, as they, from time to time, grow seedy and threadbare. In the little time that remains between this and the hour of final decision, we mean to free our skirts from all responsibility for the evils we apprehend, and the greater evils which we surely foresee, from the adoption of the proposed Constitution. We owe to the people of this State and nation, to men of all parties and without distinction of party, a fearless exposure of the fundamental errors in the principle upon which it proposes to constitute the JUDICIARY. What is done in the State of New York is not done in a corner. Standing at the head of commerce and opinion on this Western Con tinent, her example has much of the weight and authority of law to the New World. She has a corresponding responsibility; and her example, pure and elevating, should be worthy of universal imitation and praise. Our new Constitution and its issues are to go upon the record, and to become an important chapter in the history of our State and of free institutions. We mean to put upon the same record our earnest protest, and we indulge the hope that the people of this State will place upon it their solemn verdict-against a novelty and heresy in government, hostile to and subversive of the very foundations on which all social order rests. little zeal and policy. Public opinionthat overpowering force in a free Statein this way came to be manufactured, and declared in favor of a Convention. But the feeling in its favor was never violent. When the delegates came to be elected, an extraordinary apathy prevailed, as was demonstrated by that infallible criterion, the ballot box. Few public meetings were called, and those were thinly attended and showed little enthusiasm ; and the vote polled was very much smaller than is cast in a Presidential or Gubernatorial election-smaller even than is cast in an ordinary local election. The people did not, and could not, be stimulated to feel that the Convention was of any great consequence. This proves that there was no oppressive defect in the Constitution which the people desired to remove; no radical abuse requiring a radical reform of the organic law, or a re-institution of political society. It will be useful, preliminarily to the discussion of the new Judiciary system, to glance at the Convention and the circumstances under which it was called. We were not of the number of those who looked very confidently to the Convention for any useful reform. We thought, This apathy operated most disastrously and think, that nothing in so important a against the character of the Convention. thing as government, and more especially When the people are aroused to dethrone a change in the organic laws of society, an oppressor, or pluck down a despotshould be undertaken in haste, or with- ism-to pursue any great good, or repel out a definite end in view; and that when any great evil-they are led by a natural undertaken, all the means should bear a instinct to seek the wisest and ablest men natural and just relation to the proposed in the country. If the occasion be civic, end. It appeared to us that those who age, experience, genius and virtue, tried most eagerly advocated a call of the Con- and proved in the public councils, are invention had no definite view, either of a voked to meet its exigencies. Comparagood to be effected or an evil to be reme- tively, such an occasion, when the Condied, or the means to accomplish the one vention of 1820 was to be convened, sumor the other. With some there was a moned our Kents, Spencers, Tompkinses, vague hope that something might be done Van Burens, and others of kindred ability that would somehow effect good. Others, and eminence, to serve the people in the panting for place and distinction, saw, or reformation of their fundamental law. If thought they saw before them, a long and any great work had been called for by cheerless vista of exclusion from the the people in 1846, they would have rehonors and emoluments of office. The quired such men to perform it. This was places of honor, trust and emolument in not such an occasion, and it failed to prothe State, already filled, were coveted, and duce such men. We make a few honora new Constitution was deemed to be the able exceptions, which will readily occur most convenient instrument for vacating to our readers, to the generality of the them. The "gracious Duncans " were last observation; but with these few exto be "taken off" by constitutional parch- ceptions, the men who composed the Conments instead of daggers. The objects vention, neither by their age nor their of this large and most active class of con- talents nor their weight of character, austitutional reformers were quite intelligi- thorized any just expectation of any great bly announced in their oft-repeated decla- good to be accomplished by it. A large proration, that they were in favor of a new portion are, or were the representatives shuffle and deal of the cards. By means of of, the NEW SHUFFLEITES, eager and panta portion of the newspaper press, and of ing for a re-cast of the characters in the political committees, they generated a spu- political drama, a new deal of the cards rious public opinion; and the love of in the game of politics. The sacred oblichange, for its mere novelty, is so almost gation of truth obliges us to declare that, universal a sentiment, that it may be (with the exceptions before spoken of, easily stimulated to blood heat with a embracing some experienced minds, and some young men of great promise,) this was a Convention of shallow men, undistinguished by either great learning or great talents, a profound knowledge of books, or a deep insight into human nature or society. Shallow men are generally extreme in their opinions, seeking to make up in extension what they lack in depth of attainments or character. Such are always the political empyrics, the inventors of universal remedies, and the founders of political Utopias. They are the reformers par excellence. Men of this description swarmed in the Convention; and there, in grave council and solemn debate, these Solons and Justinians, these founders of systems and reconstructers of states and dynasties, each in turn proposed his petty scheme for laying over again the foundations of Justice, and rebuilding the structure of Social Order, in an important and powerful State. Such men were to construct an example for the rest of the Union, and a proof of the beneficent operation of Free Institutions. We again declare, what we believe no one will venture to deny, that the body of the Constitution-makers of 1846 are not for a moment to be compared with those who composed the Convention of 1820, either for the integrity and attainments they possessed, or for the solemnity of purpose with which they assembled. The scene, indeed, exhibited beneath the dome of the Capitol at Albany, forcibly reminded us of another scene which we owe to the great dramatic genius of our English tongue. The wholesome light of the outer world partially illumines the dark cave; a caldron rises as from the depths of the earth; the thunder mutters over our heads; the "secret, black and midnight hags" enter; and we are now prepared for a potent incantation: 1st WITCH. Round about the caldron go; ALL. Double, double, toil and trouble; Fire burn, and caldron bubble. 2d WITCH. Fillet of a fenny snake In the caldron boil and bake, &c. ALL. Double, double, toil and trouble; Fire burn, and caldron bubble. 3d WITCH. Scale of dragon, tooth of wolf; Witch's mummy; maw and gulf Of the ravin'd salt-sea shark, &c. ALL. Double, double, toil and trouble; Fire burn, and caldron bubble. 2d WITCH. Cool it with a baboon's bloodThen the charm is firm and good. HECATE. O, well done! I commend your pains; AND EVERY ONE SHALL SHARE I THE GAINS!!! ALL. Black spirits and white, You that mingle may! What wonder is it that from such an incantation there should go forth a charm potent enough to cause "Nature's germins tumble all together, Even till destruction sickens?" We are not more struck with the immensity, than with the harmony, of the material creation. Designed and formed by one infinite mind, it was launched into the fields of space harmonious in all its parts, and perfect as a whole-amid its alternations of day and night, its changes of climature and seasons, its sunshine and shower and dew, unchangeable in perpetual change,-still breathing up an everlasting hymn to the all-bountiful and powerful Intelligence, who knew how to work with so complete a wisdom. The most perfect works of man are doubtless but faint copies of the work of the Divine hand. But the absence of all unity of design, and of symmetry of product, is quite too painfully apparent in the Convention, and its labors even for any human work. This is, in a great degree, attributable to several causes already hinted at. If our Constitution had withheld any great natural right, had oppressed any class of citizens, had left our persons or our property without that security which creates the chief necessity for political society, the Convention would have been called with reference to that evil; and a remedy for that defect would have produced, as to that at least, a united and harmonious purpose. Or if, without any such harmonizing cause, the Convention had been composed of men of profound political attainments, familiar with the history of ancient and modern States, and qualified by their powers of investigation and habits of thought, to deduce from the experience of the great Past, valuable lessons to guide the great Future, some new and grand reforms might possibly have been made in our system, without destroying its symmetry. Unfortunately, neither of these causes existed to mould the labors of the Convention. It was a revival of the controversy between Anarch and Old Night, where "Chaos Umpire sat, And by decision, more embroiled the fray." Committees were appointed on the motion of everybody, to inquire and report about everything. The Convention was soon swept beyond the old piers and harbors, and places of anchorage, far out on the tumultuous sea of reform; and there was no man of such intellect, or weight of authority in the Convention, as to enable him to control the helm. Unpropitious as was this state of things, the Convention might still have been turned to some useful account, if any deep interest in its proceedings could have been excited. But the popular indifference manifested at the election of Delegates, rather increased during the Session of the Convention. During the four mortal months, through which the session extended, the people appeared to be indifferent spectators of the proceedings. The press plainly indicated this popular indifference. Short abstracts of the proceedings were published in the newspapers from day to day, and those brief summaries gradually grew beautifully less, until they almost ceased to be. They could not compete for public attention with the money articles or price currents; nor even with the ordinary vulgar newspaper marvels; and seductions, murders, little men and big babies, mannikins and monkeys triumphantly carried the day with the people, against the collective wisdom of the State, assembled in Convention at the Capitol. We do not mean to deny that the Convention has proposed some useful amend ments. It would be wonderful if two hundred men could not, in the space of four months, produce some slight improvement in the mere details of the Constitution. Elections by single districts we regard as a real reform. But the good bears a very small proportion to the evil; and as we cannot have the good without the evil, we shall not take many and great evils for a little good. As we must take the whole, or reject the whole, we elect to reject. The poison is mingled with the water, and it is better that we should thirst, than that we should drink and die. The objectionable features of the proposed Constitution are too numerous to be presented within the limits which we have prescribed to ourselves for this discussion. Our special business is with the Judiciary. The changes proposed in our Judicial system are extensive and alarming. The mode of appointment, and the tenure on which the judges are to hold office, are radically changed. Now, the Governor and Senate appoint the Judges: under the New Constitution, they are to be elected by the people. Now, the Judges hold during good behavior, (or until they are sixty years old,) under the new Constitution they are to hold for a brief term of years. This we deem to be the plague spot, the immedicable vulnus, of the proposed Constitution. It is an undeniable fact, that an enlargement of our Judicial system was greatly needed, and that but for this, a majority could not have been obtained in favor of calling the late Convention. We asked for bread, and the Convention has given us a stone. The real and substantial purpose for which the Convention was called, has most signally and completely failed; and the very reason which urged the people to call a Convention, is the very, and most conclusive reason, why the people should reject the Constitution proposed by it. The Convention has given us radical change, but not reform, not improvement. We wanted greater judicial force; they have not essentially increased it. We wanted a simpler system; they have made it more complex and cumbrous. We wanted to preserve, and if possible to increase, the weight and authority of the Courts, and to strengthen their hold on public confidence; they have dragged the Courts upon the political arena, and have devised the most effectual method to destroy the purity and independence of the Judges, and the confidence of the people in the administration of justice. Our Constitution was generally felt to be an excellent instrument, under the administration of which, our State had advanced in a career of unexampled prosperity. There was one vital defect, not original and inherent, but resulting from our rapid growth. It was extensively felt, and especially by the profession most conversant with the matter, that the number of our Judicial officers, and the arrangements of the Courts for the dispatch of business, were entirely inadequate to the labors which devolved on them. Insufficient force was the evil; an increase of that force was the natural and appropriate remedy. The proposed judicial system will prove entirely inadequate to the administration of justice, without ruinous delays. The names of Courts and officers are changed, but their number is not essentially increased. But while the new Constitution does not augment the judicial force, it creates an increased necessity for such augmentation. Instead of a County Court, for civil and criminal business, in each County of the State, and one Supreme Court, with Circuit Courts held in each County, we are to have eight Supreme Courts. These Courts are of equal jurisdiction, but each confined to its own local district. The decisions in one Court or district, will have no binding force in the others. The laws of property will become more and more unsettled and uncertain. On one side of a line, A, according to law, will be entitled to judgment against B; but by going a few rods to the other side of that line, and into another district, B, upon precisely the same state of facts, will be entitled to judgment against A. The want of a common rule of right, will produce endless uncertainty and confusion, fraught with consequences ruinous to individuals and destructive of the most sacred ends of society. Wretched indeed is the servitude of that people where the laws are uncertain. The want of uniform decisions and a uniform rule of right, will produce another great evil in the infinite series of mischiefs in this new Pandora's box, without a hope at the bottom, which the Convention has opened to the People. Men will have no confidence in the conflicting decisions of these co-ordinate and jarring tribunals; and instead of appeals, as now, from two high Courts of original jurisdiction, presided over by men of mature years and acknowledged learning and talents, whose decisions have commanded great respect and been generally acquiesced in, there will be appeals from eight Courts. The number of cases appealed from the Court of Chancery, or removed by Writ of Error from the Supreme Court, to the Court of Errors, has always been exceedingly small, compared with the number of cases decided in those Courts. Not one case out of a hundred, indeed not one out of many hundreds, so decided in the Supreme and Chancery Courts, has been carried to the Court of Errors. A desire for delay has carried many cases to the Court of Errors, where there has been no hope of obtaining a reversal of the judgment, or decree in the Court below. This acquiescence in the decisions of our two highest Courts of original jurisdiction, is no doubt attributable to the confidence universally reposed in the pure and able men who have presided over them. But under the new system, this confidence must, in a very considerable measure, cease, for the reason already adverted to, and for other reasons which we shall present when we come to consider the new judicial tenure and mode of appointment. The want of uniformity in the decisions of the eight independent Supreme Court jurisdictions, and a lessened and ever lessening confidence in the learning, capacity or impartiality of the Judges, will yearly produce a bountiful harvest of appeals. All seasons will be equally seed time and harvest. The consequences are obvious to the meanest capacity. The Court of Appeals will, in a little time, be blocked up with business. It may spend six months in each year in hearing, and the other six months in deciding, causes. It may devote itself with ceaseless toil and unwavering fidelity, to the performance of its functions; its judges may be as sleepless as the tides, with brains and nerves toughened to the hardness of steel, knowing no relaxation, no pleasure, no rest from their Sisiphine labors; and yet the Court will be utterly and hopelessly overwhelmed with business in less than two years. New delays in the dispatch of its business will produce additional crops of appeals for the sake of the delay. That Court will be the final outlet to the tides of litigation, and that outlet will, in a little while, become almost impassable: an overslaugh, over which no keel can pass, until it has lain upon the bottom long enough to rot. Litigants will go in young, and come out of it with gray locks; and appeals, like border fends, will be bequeathed from sire to son, connecting generation with generation of men, by perpetuated legal controversies. The delay is very often the denial of justice. Protracted litigation is a heavy burden for the rich; it is utter ruin to the poor. A long suit requires to be pensioned on a long purse; if the purse be |