Evening journal., 1896-12-24

by it at ghe county scat and not else
where.
To determine finally, however. all mat
ters i'm error In the judgments and pro-
3 ceedings Of the Superior Court, a writ Of
error issues to 10 from the Court OF Err
r0rs and Appeals. The Germs OF the lat
ter cour1 are hell semi-annually. In jan
uary and June. at the state capital. BY
recent legislation provision has been made
for calling special terms thereof
The courts OF Delaware both OF law and
equity. have in mos respects. doubtless.
in their organization and proc edings. and
especially in matters OF pleading, practice
and evidence. adhered more closely to the
old English precedents than those OF any
Of her sister states.
In i.ha convention OF 1881 a very siren
uous effort was made by some Of it's abisst
members to substitute one-iudge court
for the ehree-judge system. which latter
was finally adopted and in prevails.
A protracted controversy and a. memoir
able debate ensEed. The proposition
however. was defeated by John NJ Clay
ton the master spirit OF the convention
whoss intellectual power and consummate
skill dominated that body and moulded
Its action in accordance with his views.
The present judicial system was his con-
cepton and its adoption his individual
achievement.
His fundamental principle was that in
I forming a judicial system, especially for a
small state the most Important court is
the court below. He maintained chat the
stronger the court OF original jurisdiction
he sounder would BE- its decisions and
the fewer the resorts 70 the COur, of Err
rs.sH Al.
proracted litigation would be lessened
and its expense avoidli. "A three-judge
cour,. composed exclusively of trained
lawyers as he proposed, would insure
| ability. impartality. and public confidence
/ In a greater degree than a one-iudgs trib-
unal. and in Delaware particularly would
produce a more uniform practice and
course of jurisprudence throughout lho
STATE. Moreover. in this ate Of thrsa
counties only. each could have a thres-
I judge law court OF original jurisdiction,
| c0nstitu ed out OF .ha five judges de med
{ essential to an efficient ate judiciary
! wthou. additional cost TO the public treas
ugy. Upon .his central idea thc 90 sent
! Superior Cour- was organized, and Oh
Court 90 Err1-s ANA Appeals ana otaer
| courts Of the existing system We're c0nsti-
utsd in harmony herewith.
Tha objection 10 this sys EN- most urged
| Is that. i'm the Court Of Errors and Ap-
pells. it is possible for the chancellor and
the resident judge who did not 81. in shs
| Superior Court in any cause taken up on
| error. TO overrule tho chief Justice and
tha other two judges who sat below an 2
concurred i'm the decision there-that is.
| for two TO reverse the three, ~ that ono OF
the latter who sits above shall adhere 10
his decision below As a fact ehis result.
! has seldom-indeed almost naver-oc-
| Cured Y5. the objection is one that Mr..
| Clayton anticipated and endsavored TO
| obviate by th7 constitutional provision for
rsserving. upon the application of either
party ana with the assent of the count,
any question Of law arising in the Super
4 Ter Court for a hearing and decision by
an the five STATE judges IN thu court
above. With this provision, he claimed
.ha the present system wslld be liable
% fswer material objections than any
other yet proposed IN Delaware.
i. has nov been in operation for sixty
| i've years. Experience seems TO have con-
/ Armed the wisdom OF his theory regard
| ing a strong cour below; Cor during that
long period comparatively few causes
! nave bean heard In orr5r. and In he
greater numbsr OF these the decision be-
| low 13s been affirmed.
Ths existing system has certainly Sc
cured upon the bench. despite inadequate
! compensation. the services Of very nc a.
5le array OF eminent lawyers many Of
whom have hllsl the mo1. distinguished
stations federal and a.aie.
Since 1776 every chief jusslcs OF the
state excepting the H1n. James Booth.
Sr. and since 1892 every chancellor has
been selected from the bar. Prior no 1881
very few Of tae associate judges were law
ysrs. Since that da,e an of IA -m but he
Hon. David Hlzzard have been such.
ITO be Continued.