of cases in equity. Both those obsolete institutions are abolished, and very wisely. Oyer and terminer, surrogate, sessions, marine, superior, and supreme courts, with special and general terms, should be abolished too. But more of this in the following letter.

In seventeen states the judiciary is entirely elective by the people, as in New York, Pennsylvania, Maryland, Virginia, Florida, Mississippi, Louisiana, Texas, Tennessee, Kentucky, Ohio, Michigan, Indiana, Illinois, Missouri, Iowa, Wisconsin, and California. These states are of modern origin or have by late amendments adopted the elective system. In Maine, Vermont, and Alabama, the higher courts are appointed, and the lower elective. In eight states, as New Hampshire, Massachusetts, New Jersey, Delaware, North Carolina, South Carolina, Georgia, and Arkansas, the judiciary is appointed by the governor, with the advice of the councils or legislatures, or by the legislatures, during good behavior, or for a certain term of years. Those constitutions which were enacted

a short time after the revolution, have followed the system of the federal constitution and created good judiciaries.

The state of New York, by making the judiciary elective, has set the precedent for the remaining states. Those organized since 1847 have followed it. Several states priorly organized have, by amendment, or change of constitution, adopted it; among others, Maryland, of which I shall add a few remarks hereafter.

"The maintenance of the judicial power is essential and indispensable to the very being of this government. The constitution without it would be no constitution; the government no government. The judicial power is the protecting power of the whole government. For the security of the government, the judiciary included, it requires such an extraordinary union of discretion and firmness, of ability and moderation, that nothing in the country is too distinguished for sober sense, or too gifted with powerful talent, to fill the situations belonging to it."

So spoke Daniel Webster in Congress. You will thank me for inserting this sentence.

LETTER X.

Remarks on the Organization of the Judiciary in States, Counties, and Towns in general. English Judiciary. - Bad Legislation. - Daniel O'Connell. - Aula Regis. —Reform by the Federal Constitution. - District, Circuit, and Supreme Courts. - Municipal Judicial Business, Civil or Criminal. Its Distribution among Towns, Counties, and States. - Abolition of the present Single Judicial Offices. - Reasons for it. -Webster. Moses. Solon. Justinian. - Napoleon I. — Frederick II. -Joseph II. — Russell. -Thompson. - Brady. — Law.

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THE judicial forms or proceedings, to find out what is right or wrong, by means of documents, witnesses, etc., are very simple and but little changing with the culture or moral and intellectual progress of mankind. Colonies generally adopt or rather maintain the laws and judicial forms of the mother-country. This has been the case in the United States. Still the simple form of democratic government required many important alterations in the old complicated English judicial system, which is a venerable relic of the middle age, and at present rather a mere useless antiquarian curiosity. Its foibles have often been exposed on both sides of the Atlantic. The great lawyer, Daniel O'Connell, betrayed a very poor idea of the English law when he said that he could drive through any act of parliament with a coach-and-four. Beautiful sport for rogues! A law-reform movement is just on foot in England: let us not be behind.

A close scrutiny of the present English system of bail, interpretation, and conviction, mostly based upon the testimony of witnesses, must convince an unprejudiced mind that it is generally eminently in favor of villany. I am as jealous of my personal liberty as any person can be, but feel very nervous if this jealousy, which every freeman should possess, is made the pretext of setting murderers, incendiaries, and similar dangerous criminals. free on mere straw-bail, because a witness could not be had, or on similar irrelevant grounds. We owe it to this system that it is unsafe to appear unarmed in public, just as if there was no state

institution at all. There is still a difference in this regard between cities and country towns, but it grows less very fast.

Through it

The political destiny of the United States was brought to a bloody crisis by bad English legislation. This lesson has obviously improved the destiny of our neighbors, the Canadians, but not that of the far-off East Indians; hence the bloody outbreak there, most critical for Great Britain's national career. We are indebted to bad legislation and execution of the laws for all our home troubles. The sensible reader will therefore excuse the outspoken manner in which I write of English law. runs the maxim, like the red thread through the royal navy, that the king is all the judge and court for the whole kingdom. He, like his colleagues in Europe, travelled in the country in old times for this purpose, with some courtiers, barons, judges, etc., and of course he did as he pleased. Soon dukes, barons, bishops, etc., got slices of the royal jurisdiction; substitutes (surrogates) were appointed; and in consequence of the Magna Charta a stable royal court was established in Westminster Hall, called aula regis, that is, king's court. Later this court was divided into the courts of exchequer (so called from a checkered table-cloth), common pleas, and king's bench, to which was added the court of chancery and house of lords. Again there happened a split, so that the people got seven courts of exchequer. Following up this manner of patching up a judiciary, there came later, admiralty courtscounty, sessions, ecclesiastical, coroners' courts, etc. The common source of this organization was the king and his pleasure. He of course had the original jurisdiction, that is, with full formal trials later prescribed by law, required by the importance of the

cases.

The court hierarchy went from the throne down to the people. Some of these forms we have retained with the English common law, but much of it has already been discarded. our courts wield much of the "pleasure" of the king.

Still

The most important reform in this regard produced the federal constitution, and the judiciary which it created, absorbing a good deal of the common or original English state-judicial business. This organic law made a great division between national and municipal judicial business, never before done in this manner by such a law or a government, and organized for the first time a separate national judiciary, at once breaking up the usual British judicial

hierarchy. You will recollect that the third article of the federal constitution contains in a few concise words the dispositions about the national judiciary. The business is at present, if I am not mistaken, distributed among forty-eight districts, ten circuit courts, and one supreme court.

From the constitution of the state of New York you have just learned how the judicial business remaining for the state shall be despatched, viz., by a court of appeals, eight supreme courts, superior courts, surrogates, county courts, justices of the peace, city courts, coroners, police courts, oyer and terminer courts, marine courts, court of sessions, etc. This machinery, according to unmistakable symptoms, has not worked well: and why is this? because our state constitution has not carried out the policy adopted by the framers of the federal constitution, viz: to organize the judiciary and set up the courts strictly according to the natural logical exigency of the remaining municipal judicial business, and not according to dogmatical or historical notions of law and equity cases, original and not original jurisdiction, and other old English customs.

Simply considering the usual judicial business as it is, we have either civil or criminal cases, so that we want civil and criminal courts. The civil cases are more or less important. A subdivision takes place in the criminal judicial business, now generally called police business. To organize this business, the common division of the state into towns and counties seems to answer perfectly well for all practical purposes.

The minor civil and criminal or police cases might be despatched in the towns by a town judge or justice of the peace carefully appointed for each town. In regard to claims, the amount generally serves as a measure, perhaps two hundred dollars. All trials of reconciliation also naturally belong to the town court.

Business not belonging to the town court should be apportioned to the county court, with one judge, as the constitution ordains. All judges appointed now for single business branches should be abolished. The county court might serve as a court of appeals in regard to decisions of the town court. Besides, a state court will be required for appeals from the county courts, and the claims against the state, and on the constitutionality of laws, etc. Some cities will require more than one town court; still not more than

one county court. Very large cities will receive exceptional attention. The diverse appointments should, as I have before intimated, originate with the town, county, and state executives and legislative bodies; because they either have the care for the execution of the laws or hold the purse-strings in their hands. Such a simple, logical distribution of the municipal judicial business recommends itself to the general attention—

First. In regard to the responsibility of the town and county, which, by their constitutional agents, appoint the judges. They being sworn in to attend to the interests of the town or county, will appreciate the importance of the act the more seriously because it does not often occur. Of such a highly desirable responsibility there is not the least vestige in the elective system. Town and county agents are amenable to law, and not to parties who control the elections.

A can

Second. In regard to the qualifications of the judges. didate for a county or town judgeship knows that he will occupy the office as long as he fills it ably. He will therefore thoroughly prepare himself for the bench, not even shunning expensive outlays for this purpose.

Third. In regard to the business. First it will be managed with ability, talent, and impartiality; second, with honesty and decorum. The proposed combination of the present dilapidated civil, criminal, and police business will keep the judges in their districts well employed, and therefore ripen and sharpen their judgment in deciding causes. Being prohibited from taking a share in other employments, such a judge will be wholly a judge, always a judge, and nothing but a judge, as Webster desired might be the case.

This also applies to the state court. Of course these three courts should all be courts of record, and, in a word, perform all the business at present divided among a swarm of special judicial officials, producing confusion, scandalous feuds among them for business, and a deplorable degradation of this most honorable function. A good impartial judiciary is all the model republic we may boast of. I add that a state of the improper size of New York requires at least four state courts for corresponding districts; while well-proportioned Connecticut requires but one.

History teaches that only those rulers who are distinguished as