public office. Any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled to admission to practice in all the courts of this

state.

"9. The classification of the justices of the supreme court; the times and place of holding the terms of the court of appeals, and of the general and special terms of the supreme court within the several districts, and the circuit courts and courts of oyer and terminer within the several counties, shall be provided for by law."

Is mostly special-law matter.

"10. The testimony in equity cases shall be taken in like manner as in cases at law."

Special-law and matter of course.

"11. Justices of the supreme court and judges of the court of appeals may be removed by concurrent resolution of both houses of the legislature, if two thirds of the members elected to the assembly, and a majority of all the members elected to the senate concur therein. All judicial officers, except those mentioned in this section, and except justices of the peace, judges and justices of inferior courts not of record, may be removed by the senate, on the recommendation of the governor; but no removal shall be made by virtue of this section, unless the cause thereof be entered on the journals, nor unless the party complained of shall have been served with a copy of the complaint against him, and shall have had an opportunity of being heard in his defence. On the question of removal, the ayes and noes shall be entered on the journals. "12. The judges of the court of appeals shall be elected by the electors of the state, and the justices of the supreme court by the electors of the several judicial districts, at such times as may be prescribed by law.

"13. In case the office of any judge of the court of appeals, or justice of the supreme court, shall become vacant before the expiration of the regular term for which he was elected, the vacancy may be filled by appointment by the governor, until it shall be supplied at the next general election of judges, when it shall be filled by election for the residue of the unexpired term."

The clauses twelve and thirteen will fall with the present system. If the judges in the several districts are appointed during good behavior, a special law, prescribing the forms of appointing and removing, will be required, wherein should be a clause ordaining that a judge who takes the stump, as the phrase is, at elections, should be removed at once. The honor and impartiality of the office require such a law.

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There are two ways of making judges; one by election. this I have spoken; the other by appointment. And then we may appoint them for a number of years, or during good behavior, as it is called. The federal constitution has adopted the system

of appointing the judges during good behavior. This has made the federal judiciary honored and respected. It is the only good system. A judge is but a man. If he occupies his place during good behavior, people may be well assured that he will act his part faithfully, and at a reasonable compensation, too. If elected or appointed for a short tenure, society must be prepared for his making the most out of his term, by unreasonable salary, fees, and other means. In our states, with elective legislatures and executives, with publicity of the court transactions, reporters, free press, etc., there is not the least danger that a judge, even serving for life, will ever assume undue power, because he has no power beyond that of investigating certain cases coming under his cognizance. This system secures, moreover, impartial justice. This we can never expect, in the same measure, from the other modes. It is a strange contradiction in a simple political system like ours, made by the people for the people, to have two kinds of judiciaries. If we wish to be considered as consistent, we should not make an appointed judiciary in the Union and an elective one in the states.

LETTER IX.

County Judge. — Webster. — Surrogate. — Local Officers. — Inferior Courts. -Justices of the Peace. Clerks.-Files to be sent into the Court of

of Conciliation. — Revising Laws. - Systems of Judiciary.

THE following clause contains useful prescriptions, which, however, could be also partly inserted into the statute book :·

"14. There shall be elected in each of the counties of this state, except the city and county of New York, one county judge, who shall hold his office for four years. He shall hold the county court, and perform the duties of the office of surrogate. The county court shall have such jurisdiction in cases arising in justices' courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdiction, except in such special

cases.

"The county judge, with two justices of the peace, to be designated according to law, may hold courts of sessions with such criminal jurisdiction as the legislature shall prescribe, and perform such other duties as may be required by law.

"The county judge shall receive an annual salary, to be fixed by the board of supervisors, which shall be neither increased nor diminished during his continuance in office. The justices of the peace, for services in courts of sessions, shall be paid a per diem allowance out of the county treasury.

"In counties having a population exceeding forty thousand, the legislature may provide for the election of a separate officer to perform the duties of the office of surrogate.

"The legislature may confer equity jurisdiction in special cases upon the county judge.

"Inferior local courts, of civil and criminal jurisdiction, may be established by the legislature in cities; and such courts, except for the cities of New York and Buffalo, shall have an uniform organization and jurisdiction in such cities."

Accordingly each county, New York county excepted, shall have but one judge. This is an excellent idea, provided this county court is well organized, of which more in the following letter. In like manner, might one justice of the peace, or town judge, be sufficient for all town judicial business. This seems to be answering to the idea of Daniel Webster, that, to get good judges, we should employ them well. The present dilapidation of the judicial business, among a great number of special officials, seems not to agree with this idea. The duty of the legislature should then be to keep the districts in proper size.

‘15. The legislature may, on application of the board of supervisors, provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate in cases of their inability, or of a vacancy, and to exercise such other powers in special cases as may be provided by law."

But you read again in these They are at the head of district is well organized,

Rather belongs to a special act. clauses, "en passant," of supervisors. the county government; and, if this among the most important officers, in regard to the judiciary especially, and should therefore derive their power from the constitution.

"16. The legislature may reorganize the judicial districts at the first session, after the return of every enumeration, under this constitution, in the manner provided for in the fourth section of this article, and at no other time; and they may, at such session, increase or diminish the number of districts, but such increase or diminution shall not be more than one district at any one time. Each district shall have four justices of the supreme court; but no diminution of the districts shall have the effect to remove a judge from office.

I do not believe that such districts for supreme courts are, indeed, needed.

"17. The electors of the several towns shall, at their annual town meeting, and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace and judges or justices of inferior courts, not of record, and their clerks, may be removed (after due notice and an opportunity of being heard in their defence) by such county, city, or state courts as may be prescribed by law, for causes to be assigned in the order of removal.

"18. All judicial officers of cities and villages, and all such judicial officers as may be created therein by law, shall be elected at such times and in such manner as the legislature may direct."

The justices of the peace are the cause of the word "town" occurring in the constitution. The justices of the peace should be appointed with the greatest care, for they are in importance second The modern police courts seem to supersede them in large cities. The other particulars are special-law matters.

to none.

"19. The clerks of the several counties of this state shall be clerks of the supreme court, with such powers and duties as shall be prescribed by law. A clerk for the court of appeals to be ex-officio clerk of the supreme court, and to keep his office at the seat of government, shall be chosen by the electors of the state; he shall hold his office for three years, and his compensation shall be fixed by law and paid out of the public treasury.

"20. No judicial officer, except justices of the peace, shall receive to his own use any fees or perquisites of office."

Special-law matter. All such things vary constantly.

"21. The legislature may authorize the judgments, decrees, and decisions of any local inferior court of record of original civil jurisdiction, established in a city, to removed for a review directly into the court of appeals."

Special-law matter. All public papers belonging to the state, counties, towns, cities, and villages, whenever they are officially needed, must be sent without an extra authorization.

"22. The legislature shall provide for the speedy publication of all statute laws, and of such judicial decisions as it may deem expedient. And all laws and judicial decisions shall be free for publication by any person."

Superfluous, being a matter-of-course fact.

"23. Tribunals of conciliation may be established, with such powers and duties as may be prescribed by law; but such tribunals shall have no power to render judgment to be obligatory on the parties, except they voluntarily submit their matters in difference and agree to abide the judgment or assent

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thereto, in the presence of such tribunal, in such cases as shall be prescribed by law."

Superfluous, for it is the very best part of the office of a justice of the peace to prevent litigation by promoting conciliation, and if there is a special law necessary in this regard, it may be enacted. This may even ordain that no court shall proceed with a lawsuit, unless the case has been before a justice of the peace to promote a conciliation.

"24. The legislature, at its first session after the adoption of this constitution, shall provide for the appointment of three commissioners, whose duty it shall be to revise, reform, simplify, and abridge the rules and practice, pleadings, forms, and proceedings of the courts of record of this state, and to report thereon to the legislature, subject to their adoption and modification from time to time."

This is evidence that there is no code of procedure existing upon which neither courts nor lawyers may have the least influence. We want one containing all the rules invariably to be observed by the bench and bar. The pleasure of the king and aula regis must cease. All stages of a law procedure should be prescribed in an explicit, distinct manner, that no stays, or delays, or prevarications can happen, except at the risk of the delaying party. The present procrastination policy should come to an end. We should never read again of conventions of judges talking about the rules of the new term, to suit themselves. Of this trouble they should be relieved by a code of procedure, for all terms to come. The English judiciary is preeminently procrastinating and unreliable, because it is too independent in regard to the forms of the legal procedures. These must be paramount for all concerned. Apropos-the system of court-terms should be abolished; the whole year should be one term, while each cause may have appointed terms. As long as there is business it should be promptly despatched.

"25. The legislature, at its first session after the adoption of this constitution, shall provide for the organization of the court of appeals, and for transferring to it the business pending in the court for the correction of errors, and for the allowance of writs of error and appeals to the court of appeals, from the judgment and decrees of the present court of chancery and supreme court, and of the courts that may be organized under this constitution."

A court for the correction of errors is practically the same as a court of appeals. A court of chancery is set up for the despatch