Page:The Green Bag (1889–1914), Volume 05.pdf/564



CURRENT TOPICS. AMERICAN PROGRESS IN JURISPRUDENCE. — Among the notable papers prepared by request for the Columbian Exposition at Chicago, was one by the veteran David Dudley Field, on "American Progress in Jurisprudence," characterized by the vigor, breadth, and acumen which have always marked his productions, and couched in a flawless and felicitous style. It is a proud record for our country which is here reviewed; and the eminent lawgiver might well exclaim, quorum pars mag na fui. New York, under the teaching and leader ship of Mr. Field, was the first community to reject those " time-worn and worm-eaten, . . . cracked, dusty parchments on which was written the worst plan of entering the courts and getting out of them that the wit of man could devise," and to adopt the plan under which " no suitor is turned away for defect of form, and no witness is rejected who has sense enough to think and voice enough to speak." " This grotesque machinery has been swept away wholly or in part in twenty-eight American States and Terri tories;" .uni a similar reform is briskly agitating, with fair prospect of success, in Vermont, Illinois, Michigan, Virginia, and Alabama. The American example of the abolition of forms of action and the fusion of law and equity, was followed in 1873 in Eng land; and the reform has extended to the English colonies of Victoria, Queensland, South Australia, Western Australia, New Zealand, Jamaica, St. Vin cent, the Leeward Islands, British Honduras, Cam bia, Grenada, Nova Scotia, Newfoundland, Ontario, and British Columbia. America moved early in the reform of allowing parties to testify for themselves in civil actions. Not only civil but criminal procedure has been greatly ameliorated. America was the first to reject the monstrous inhumanity of refus ing counsel to the prisoner, and the gross absurdity of shutting his mouth as a witness. (Right here let the Easy Chair take a little credit to himself for having been one of the earliest writers in behalf of these reforms in respect to evidence. His first legal writing was an essay in favor of allowing parties to civil suits to testify on their own behalf, published in the " American Law Register," in 1857, with a careful editorial disclaimer of agreement with its

novel sentiments!) " There are already to be found in American Jurisprudence," says Mr. Field, " eigh teen codes of criminal procedure, five penal codes, and five general civil codes. Taken altogether, here is an array of fifty-six codes which the United States are able to present to the world as the fruit of the first century of independence, or rather, of the pres ent half of it." ELECTION OF JUDGES. — The foregoing are " the bright figures of the shield," says Mr. Field. He then proceeds to consider the reverse, on which he finds as blemishes, " the popular election of judges, allowing them short terms of office, and the increas ing habit of spasmodic and excessive legislation." In respect to the last two, few sober-minded per sons will be found to disagree with Mr. Field. In respect to the first he is in opposition to the great majority of the people, and the more common prac tice of the United States. Mr. Field states the statistics as follows : — "In eight of the forty-two States the judges of the highest courts are appointed by the governors, with the consent of the Senate or a legislature or a council; in seven they are elected by the Legislature; in twentyseven they are elected by the people. In eight of the States — New Hampshire, Massachusetts, Connecticut, Delaware, North Carolina, South Carolina, Florida, and Alabama — the judges of the highest courts hold their offices during good behavior; in six — New York, Penn sylvania, Maryland, Louisiana, Tennessee, and West Vir ginia — they hold for terms between ten and fifteen years; in two — Illinois and Colorado — for nine years, in five — Virginia, Kentucky, Michigan, Arkansas, and Wyoming — for eight years; in Minnesota, for seven years; in Ohio, for five years; in Georgia, for three years; in all the rest for six years, except that Vermont elects her judges annually by the Legislature, and Rhode Island elects hers by the Legislature to hold during its pleasure." It.seems to be eminently in accord with the theory of a republic that the citizens should elect their judges as well as their rulers. Going one step farther, it seems axiomatic that the people of any community are just as fit to choose their judges as to choose a. single agent or several agents to appoint them. Bringing the question to the test of experi-