course be made in respect of some offense, or for some other sufficient cause, not from caprice or party motives; and when the case does not seem to justify immediate removal, the governor is sometimes empowered to suspend the officer, pending an investigation of his conduct.

CHAPTER VII

THE STATE JUDICIARY

The judiciary in every State includes three sets of courts:-A supreme court or court of appeal; superior courts of records; local courts; but the particular names and relations of these several tribunals and the arrangements for criminal business vary greatly from State to State. As respects the distinction which Englishmen used to deem fundamental, that of courts of common law and courts of equity, there has been great diversity of practice. Most of the original thirteen colonies once possessed separate courts of chancery, and these were maintained for many years after the separation from England, and were imitated in a few of the earlier among the newer States, such as Michigan, Arkansas, Missouri. In some of the old States, however, the hostility to equity jurisdiction, which marked the popular party in England in the seventeenth century, had transmitted itself to America. Chancery courts were regarded with suspicion, because thought to be less bound by fixed rules, and therefore more liable to be abused by an ambitious or capricious judiciary. Massachusetts, for instance, would permit no such court, though she was eventually obliged to invest her ordinary judges with equitable powers, and to engraft a system of equity on her common law, while still keeping the two systems distinct. Pennsylvania held out still longer, but she also now administers

equity, as indeed every civilized State must do in substance, dispensing it, however, through the same judges as those who apply the common law, and having more or less worked it into the texture of the older system. Special chancery courts were abolished in New York, where they had flourished and enriched American jurisprudence by many admirable judgments, by the democratizing Constitution of 1846; and they now exist only in a few of the States, chiefly older Eastern or Southern States, which, in judicial matters, have shown themselves more conservative than their sisters in the West. In four States only (California, Idaho, New York and North Carolina) has there been a complete fusion of law and equity, although there are several others which have provided that the legislature shall abolish the distinction between the two kinds of procedure. Many States provide for the establishment of tribunals of arbitration and conciliation.

The jurisdiction of the State courts, both civil and criminal, is absolutely unlimited, i.e., there is no appeal from them to the Federal courts, except in certain cases specified by the Federal Constitution, being cases in which some point of Federal law arises. Certain classes of cases are, of course, reserved for the Federal courts, and in some the State courts enjoy a concurrent jurisdiction. All crimes, except such as are punishable under some Federal statute, are justifiable by a State court, and in most States there exist much wider facilities for setting aside the verdict of a jury finding a prisoner guilty, by raising all sorts of points of law, than are permitted by the law and practice of European countries.

Each State recognizes the judgments of the courts of a sister State, gives credit to its public acts and records, and delivers up to its justice any fugitive from its jurisdiction charged with a crime. Of

course, the courts of one State are not bound either by law or usage to follow the reported decisions of those of another State. They use such decisions merely for their own enlightenment, and as some evidence of the common law, just as they use the English law reports. Most of the States have within the last half century made sweeping changes, not only in their judicial system, but in the form of their law. They have revised and codified their statutes, a carefully corrected edition whereof is issued every few years. They have in many instances adopted codes of procedure, and in some cases have even enacted codes embodying the substance of the common law, and fusing it with the statutes. Such codes, however, have been condemned by the judgment of the abler and more learned part of the profession, as tending to confuse the law and make it more uncertain and less scientific. But with the masses of the people the proposal is popular, for it holds out a prospect of a system whose simplicity will enable the layman to understand the law, and render justice cheaper and more speedy. A really good code might have these happy effects. But it may be doubted whether the codifying States have taken the steps requisite to secure the goodness of the codes they enact. And codification increases the variations of the law between different States, and these variations may impede business and disturb the ordinary relations of life.

Important are the functions of the American Judiciary, the powers of a judge are limited by the State Constitutions in a manner surprising to Europeans. Usually he is not allowed to charge the jury on questions of fact, but only to state the law. He is sometimes required to put his charge in writing. His power committing for contempt of court is often restricted. Express rules forbid him to sit in causes

wherein he can have any family or pecuniary interest.

I come now to three points, which are not only important in themselves, but instructive as illustrating the currents of opinion which have influenced the people of the States. These are:

The methods of appointing the judges.

Their tenure of office.

Their salaries.

In colonial days the superior judges were appointed by the governors, except in Rhode Island and Connecticut, where the legislature elected them. In the period between 1812 and 1860, when the tide of democracy was running strong, the function was in several of the older States taken from the governor or the legislature to be given to the people voting at the polls, and the same became the practice among the new States as they were successively admitted to the Union. At present we find that in more than two thirds of the States the judges are elected by the people. These include nearly all the Western and Southern States, besides New York, Pennsylvania and Ohio.

Originally, the superior judges were, in most States, like those of England since the Revolution of 1688, appointed for life, and held office during good behavior, i.e., were removable only when condemned on an impeachment, or when an address requesting their removal had been presented by both Houses of the legislature. A judge may now be removed upon such an address in thirty-six States, a majority of two thirds in each House being usually required. The salutary provision of the British Constitution against capricious removals has been faithfully adhered to. But the wave of democracy has in nearly all States swept away the old system of life-tenure. Only four now retain it. In the rest a judge is elec

ted or appointed for a term, varying from two years in Vermont to twenty-one years in Pennsylvania. Eight to ten years is the average term prescribed; but a judge is always reeligible, and likely to be reelected if he be not too old, if he has given satisfaction to the bar, and if he has not offended the party which placed him on the bench.

The salaries paid to State judges of the higher courts range from $8,500 (chief-justice) in Pennsylvania and $10,000 in New York, to $2,000 in Oregon. The average is from $4,000 to $5,000, a sum which, especially in the greater States, fails to attract the best legal talent. Judges of the inferior courts usually receive salaries proportionately lower.

Any one of the three phenomena I have described -popular elections, short terms, and small salarieswould be sufficient to lower the character of the judiciary. Popular elections throw the choice into the hands of political parties, that is to say, of knots of wire-pullers inclined to use every office as a means of rewarding political services, and garrisoning with grateful partisans posts which may conceivably become of political importance. Short terms oblige the judge to remember and keep on good terms with those who have made him what he is, and in whose hands his fortunes lie. They induce timidity, they discourage independence. And small salaries prevent able men from offering themselves for places whose income is perhaps only one tenth of what a leading lawyer can make by private practice. Putting the three sources of mischief together, no one will be surprised to hear that in many of the American States the State judges are men of moderate abilities and scanty learning, inferior, and sometimes vastly inferior, to the best of the advocates who practice before them. It is an evil that the bench should