Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-12-31

nutorihl upytCtipHh W INC pf6BeDt Hyb-
temY That most In vogue is the trivial
iteration OF the shallow critics-who
probably have never reatl our ConHtitu-
ticn Mt all, or never jntelligently and
carefully investigated judicial systeus
OF any kipd--that ours Is an Anticipated
system, and therefore not adapted to
the present condition and needs of our
people. But.i upon that same frivolous
assumption, they should with equal
reason discard the great charter OF
English liberty, the Constitution of
the United States, or the sacred Tesla
ment OF thee worlds Christian creed.
Ii has been aptly said that Ready
made phrases are handy for those who
do NOT do their own thinking. But
tho parrot is q tiresome prattler, and
often a public nuisance. Critics Of
this sort should he admonished that 1t
|. is easier to qriticiee than to create, to
pull down than to build up. 1t is
also objected that, Under our present
system, therelis not an entirely separate
court OF errors and appeals and there.
fore those who compose it are called
upon to overrule the errors Of each
other, to which they vii naturally feel
ayerse. As a. matter OF fact this OBJ
lection Ia not supporte,t by tho actual
experience of the Judges themselves.
In the course ,of 10 years experience
ON the bench, have never observed
this disposition, but rather the con.
trary Besidss II has been the general
practico OF our court, in each county
when an important question of law has
beon raisad, to suggest to the counsel
either to have the question reserved,
H.
therefor. or il that ID not convenient.
to have IL taken up on exceptions, by
writ OF error. for the decision of the
court OF errors and appeals. And in
this connection it may be noted that
the same objection is ~ appl cable to
tue modern and recently established
Unitod States circuit court OF appeals,
as to tho composition OF our present
court OF errors and appeals.
This objection is really unreason-
properly be added, In the language Of
it draws on his Imagination for his
facts and on his memory for his wit. !"
For, as rule, Appellate Judges have
a contentious desire to discharge their
sworn duty with fidelity, and rational
are the final determination of the law,
census Of the best judicial and profess
sional minds, and impartially just in
the public Judgment, III the contrary
were true. the maintenance Of the pub.
lie peace and safety woulh be i'm
possible, and the future situation of
our State and country would indeed be.
come deplorable.
1t is further objected that two Judges
who sit abovein tho court of errors and
appeals, may overrule the three below.
lection was sought to be obyiatod by
John M. Clay.ea. by the provision for
reserved questions. That il is, prac.
ticaIly, substantially ol,viated as shown
by the fact that this result has seldom
occurred, probably not thrice in 90
years. So that ia view Of its being the
practice of this court TO suggest the
taking up of important questions,
either as reserved ones or on writ Of
error, the present court Of errors and
appeals seems to be about as efficient and
satisfactory as In practicable, or even
desirable for this State. Surely much
more SO, viewed in connection with the
advantages Of our existing system in
other respects, than would be tho one.
judge system with It's Inherent faults,
or any other debt proposed for our
State. .5s
After careful reflection, based Oh OK.
periepce at the bar and on the bench,
/ am inclined TO believe that our pres
ont court of errore and appeals, in con
nection with our three. judge system,
possesses very desirable advantages in
being constituted, in part, on error to
the superior court, OF one of the judges
who sit below, Such IL court OF errors
and appeals discourages the Wholesale
practice which prevails in one. judge
States, OF removals to appellate courts
on mere pretexts and for vexatious, dila-
tory purposes, Causing very protraoted
and costly litigation which is often.
times progressively unjust to the poorer
or weaker party.
In the first place, under the com
bined learning and vigilance Of three
Judges. the court below is reasonably
more likely than a single one to avoid
errors on either substantial or techni
cal points, and therefore to afford less
opportunity for writs of error. On tho
other hand, the fact that ono of the
Judges below will sit above with tho
Chancellor, and the resident A associate
Judge who did not sit below, aud there
fore have special knowledge of the
case there tried before him, has ten
dency to discourage litigants from re-
eortipg to the appellate court upon
frivolous grounds, or for yexatious and
oppressive purposes. The court as thus
constituted at present is, consequently,
u conservative influence in our judicial
polity which, while it may not he sat
isfactory TO the powerful litIgant. or TO
the sordid lawyer, is nevertheless often
a needtu .prott ction to the weaker
party, and therefore conmendable in
stead of an objectionable feature OF our
system. If this be really true, then it
is seriously to be questioned whether
the existing judiciary had not best bs
kept unchanged, in its main features,
by tho present Convention.
But IL any notifications Of our courts
of errors and present system. is to DO
made, it should DO that which will, in
the simplest way and with the least
unnecessary expense, remedy their
present defects and increase thor
future efficiency. Unquestionably the
three Judge systom below, with a
court of errors and appeals constituted
entirely of Judges who do not sit be-
low, will obviate all substantial obiec-
tions and supply this desideratum il
provided in tho manner which was
suggested and considered favorably a
few yrars ago. ~
That r,I,, was, hasati ,,,nnn tba gnnoieuj