New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1896-03-16
MINORITY JUDICIARY REPORT
MR. BERGEN'S ABLE ARGUMENT
AGAINST AN INDEPENDENT.
COURT OF APPEALS

CASES WOULD LOSE TOUCH WITH THE
TINES AND THE PEOPLE. AND BE-
COME MERE THEORISTS
Trenton, March Is (speciaD-Frank Bergens
minority report on the proposed constitutional
amendments reforming New-Jersey's judicial system
contains a thoughtful discussion Of the whole sub
ject
Talking about the courts as they now stand MI
Bergen says that some Of them are parts OF the
original civil institutions OF New-Jersey when
colony; others established shortly after the
Revolution, and none within recent years except
the district courts.
Efforts have been made within recent years.
Mr. Bergen continues. both by legislation and con-
st.tutional amendment. to reorganze our judicial
system or at least to eliminate some OF Its de-
fects but as yet without material success. He-
Gently the general dissatisfaction with the cohai-
ton OF our courts has found expression In demand
for ALI independent Court OF Errors and Appeals
It is assumed that this single change will eradicate
the grave defects Of antiquated system Ihe
proposition at a glance seems plausible. but am
convinced that reflection will show that 1t Is I'M
wise
at t., proposed to create a court OF last resort
consisting Of Ave judges who shall Sit IN no otner
court and shall and hear nothing or ht'sauo"'
EXCEPT printed books and briefs and arguments OH
proposltions which to them would be ehtirey ao-
remained a great Judge. The great judges or Eng
land and America were those who throughout their
career sat in trial courts hearing witnesses testy'
CHARGING jures and taking an active part /" ae'"a
business transactions. thereby acquiring anu re-.
,pine the faculty OF applying the principles OF law
, in a practical manner to living issues. Juose' III
order to administer justice wisely, must no, o"y
possess the learning OF the books out mus' NC
saturated with the common-sense OF the community
,a boii |
tina, ba should decide according to the current
notions OF the hour but In accord Win co"n'o"
sense as defined by Everett VIZ: The hhai Juus
mont ON great practical questions to wnich the "'ho
~ the community Is pretty sure evehtua'y' "
arrive.
u.DGES SHOULD NOT BE ISOLATED
e. Judge cannot apprehend or appreciate inns
common-sense who is separated from MS ie'o"
citizens by the Constitution. forced 40 si' ap".' "
an Isolated tribunal and get his Kho"eoso " ~
wav men feel and think from printed books aione. -
court such as 1t Is proposed to estaohsh "ouiu III
doh, u,rte logical opinions make fine d'stinc'o"s.
cite numerous precedents. discover many 'seh"''a'
errors and be a source OF intoleraoe ahno, ""ee "
practical men. To those VINO 'hi"h '""' 80,
sa,ute or case law Is exact science OF pure e'e'
such a court would seem desirable institution ou'
those who agree with the statement OF 'uuse
troi,,as in his acute analysis Of the common ia"
that the substance Of law at any given tae nearly
corresponds as far as II goes. Win "ha' Is INC"
understood TO be convenient, VIII understand 'o
necessity OF allowing and even requrins .he MINUS
of Judge. to be parts OF the common mind OF the CON-
munty In which they slt
The report continues:
The three greatest judicial establishments in The
countries where the English language IL spoken ana
me Ens Tbs sSrts Of England as established under
the iudcature act. passed BY parliament III lo.e an
It's supplements O. the federai JIoWva, sSSwsett.
and
In the laws under which each OF these Systems was
established careful provson was 10 take BART in
The actual trial of causes In the hrst insansr
Hi Of the English Supreme Court is presided
over by Judge OF the appellate DIVISION
FEDERAL COURT AN EXAMPLE
The members Of the Supreme Court OF the United
States have always been assigned 10 circuits ana
have presided over actual trials. and disposition
to omit this part OF their duties was censured by an
act of Congress passed In 1862 follows: 1T shall
be the duty OF the chief justice and OF each asso.
ciate justice OF the supreme Court 10 attend at
81 the circuit to which he is allotted during every
period OF two years" The decisions made al the
preme Court and the fact tina, the Judge who sits
AT the circuit is a member OF the Supreme Court mas
been regarded as an objection 10 the ieuefs'
In Massachusetts, members of the court .i OF last
both law and In equity s06sst tho TO rey sTs D whose
ins Of the appeal in that case. Such Is not the
practice in courts constituted. =, l.,
courts Of ofuf last "& resort have exhibited
to take part in the actual trial Of in the FIRST
instance They prefer to study cases in libraries
and their chambers from printed pooKs' h anu
passed allowing cases Of the utmost Importance TO
be handed down 70 inferior courts fST ria c Sne
bers This is said to be necessary because OF the
q legal business but think S I.nS ssstsn
OF the higher courts has declined This s manifest
so S s1d JUDGES sc s.
courts eSm sA Of this this Stat. the fame jusc. has
would doubt aggravate this evil
WHERE JUDGES ARE ELECTED.
In answer to this line OF argument 1t Is some
times said that independent courts of last resort
exist in other States without exhibiting the defects
here apprehended But 1t will be found that where
such a court exists the judges are elected by the
people thus reinforcing the bench at frequent inter-
VAS with members fresh from participation In the
actual MANAGEMENT Of business affairs and In
splred by the public policy OF the time But the
court which my associates propose TO establish Is to
consist OF judges appointed nomnally for term OF
years but practically for life. for experience
throughout the country has shown that reason to
prevent reappontment must be almost. II not quite.
ierprise and civil rights Of the people in an e..
should not be subjected to the final Judgment OF
Maes. Ssy cannot clearly
prehend or appreciate the practical spirit Of the
age.
There are other objections to the plan proposed
still more serious II not only provides for q court
that cannot be satisfactory but II Will
degrade and impair the usefulness Of other courts
that are of more importance IN the practical ad.
m.nstraton OF justice. Not one case In thirty that
are tried In this State is ever taken 10 the court OF
last resort The great volume OF legal business
In which the people are Interested Is conducted and
terminated in the lower courts. and It must be con-
coded that the Judges most capable Of administering
law and equity should sit In the courts where the
masses OF the people 30 to seek protection for their
rights
Until recently every important at law. either
civil or criminal could be tried before justice Of
the Supreme Court who Is ex-officio member Of
every important court In the State. except the
Court OF Chancery and may sit on appeals from that
court This valuable right has been much impaired
by recent statutes and by judica. appointments
The result is pubic discomfort and demand for
reform OF judicial system Until the real cause