Evening journal., 1896-12-26

scientious citizens. in and out Of the con-
venton. will be not to do so unless there \
be both grave cause for 50 doing and 4 less
Objectionable system with which to re-
place t.
Now what are claimed to be the chief !
material objections to the present system? /
That most in vogue is the trivial iteration
OF the shallow critics-who probably have
never read our constitution at all. or never
lntelligently and carefully investigated
judicial systems OF any knd-that ours is
an antiquated system, and therefore not
adapted to the present condition and needs
of our people. But, upon that same frivo-
lous assumption. they should with equal
reason discard the great charter of Eng
lish liberty the Constitution OF the United
States. or the sacred Testament OF the
worlds Christian creed IL has been aptly
said that Ready made phrases are handy
for those who do not DO their own think
ing" But the parrot is a tlresome prattler
and often a public nuisance. Critics Of this
sort should be admonished that II Is easier
to criticise than to create, to pull down
than to build up.
Il is also objected that under our pres
ent system there is not an entirely sepa-
rate Court Of Errors and Appeals. and
| therefore those who compose It are called
upon TO overrule the errors Of each other,
to which they will naturally feel averse.
AS matter OF fact this objection is not
supported by the actual experience OF the
Judges themselves In the course of a ten
years experience on the bench / have
never observed this disposition, but rather
the contrary. Besides Il has been the gen
eral practice of our court in each county.
when an important question Of law has
been raised, to suggest TO the counsel
either to have the question reserved. under
the constitutional provision therefor or
If that is not convenient TO have It taken
up on exceptions, by writ 90 error. for the
decision of the Court Of Errors and Ap-
peals. And in this connection It may be
noted that the same objection is as appli-
cable to the modern and recently estab-
lished United States Circuit Court Of APP
peals as TO the composition OF our pres
ent Court of Errors and Appeals.
This objection is really unreasonable as
it is unfounded And II may properly be
added In the language OF Brnsley Sheri-
dan, that he who urges It draws on his
Imagination for his facts and on his mem
ory for his wit" For. as a rule, appellate
judges have conscientious desire TO dis
. ] Nhfli SC AhtiA oM'ln AhAe Win nh'AAA2 ohN
rational ambition that their decisions
, which are the final determination of thI
, law shall be deemed sound by the con
census of the best judicial and professional
minds, and impartially just in the publ,
judgment. II the contrary we're true the
maintenance Of the public peace and safetl
would be impossible. and the future sltua
ton Of our state and country would indee,
become deplorable.
1t is further objected that two judge
who sit above in the Court of Errors an,
! Appeals may overrule the three below. Blu
: as / have already shown, this objection
one Of the judges below will sit above will
was sought to be obviated by John NJ. Clay
ton by the provision for reserved ques
tions" That IL Is, practically substantial
obyiated is shown by the fact that this re
4 suit has seldom occurred-probably no
thrice in sixty-fiye years. So that In viel
d. of It's being the practice Of this court t
suggest the taking up OF important ques
tions. either as reserved ones or on writ q
error the present Court Of Errors and Ar
= peals seems to be about as efficient an
satisfactory as is practicable, or even De
srable for this state. Surely much NOR
4 so, viewed in connection with the advar
: ages Of our existing system IN other n
: spects, than would be the one-judgo syi
- tenn with its inherent faults. or any 9th,
yet proposed for our state.
"a After careful reflection. based on exp,
\ rience at the bar and on the bench, / al
~ inclined TO believe that our present Coui
A. Of Errors and Appeals, in connection wit
- our three-iudge system. possesses very d.
!, sirable advantages in being constituted
: part on error to the Superior Court OF or
d. Of the judges who sit below. Such Coui
y Of Errors and Appeals discourages n
i, wholesale practice which prevails I'm ont
judge states. OF removals to appellat
courts on mere pretexts and for vexatiou
+, dilatory purposes. causing very protract,
- and costly litigation which is oftentim,
"a oppressively unjust to the poorer
weaker party.
=. In the first place, under the combine
!, learning and vigilance of three judges. Il
court below is reasonably more likely tina
=, A single one to avoid errors on either su
~ stantial or technical points. and therefo
~ 20 afford less opportunity for writs
's error. On the other hand. the fact tn
= the chancellor and the resident associa
Judge who did not sit below. and thereto
81 have a special knowledge of the case the
:, tried before him, has a tendency to di
, courage ullBdhlS from IeaNfllne 10 II
=, Appellate Court upon frivolous grounds
W. FOR vexatious and oppressive purpose
Il, The court as thus constituted at prese
~ IS, consequently. a conservative inhuen
- in our judicial policy which. while Il m,
a not be satisfactory to the powerful III
y. sant. or to the sordid lawyer Is neverth
H. less often a needful protection to q
NJ weaker party and therefore commen
,,s able instead Of an Objectionable feature
os our system. If this be really true then
a s seriously to be questioned whether Il
~ Msting judiciary had not best be kept u
-, changed in it's main features by the pre-
"a ent convention
~ But IL any modification Of our Court
nj Errors and present system is to be mad
'N. should be that which will in the sll
y, Hest way and with the least unnecessa
u, Expense remedy their present defects al
Increase their future efficiency. Unique
-, ionably the three-judge system belo
~. With a Court OF Errors and Appeals co
5tituted entirely Of judges who do not
HI. below. will obviate all substantial obje