The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-03-29

lIected by the same element that chosen
the Federal Legislature: otherwise theI
| will of the people is at the mercy of ofli-
Gals who are under no control and are
not selected by the popuar will. 1t isl
due mainly to the high personal charac-
ter of most of the gentlemen who have
occupied the Federal Bench that this an
| achronism has not met with stronger
and more universal demand for it's re-
movaL The fact that nearly every State
in the Union has made its judiciary cleo
tive by the people proves that the ma
ture judgment and the deliberate will
of the people of the United States upon
this subject are well-nigh overwhelming.
In 1887 there might we'll be ground, when
popular government was itself novelty,
| and when only one-siXth of the govern
ment was committed to popular election
| (the lower house of Congress), for hest
tating to intrust the election OF the
Federal judiciary to the people. But
now, with the experience of more than
a century behind us and especially In
view of incidents fresh in the minds of
all, there are many reasons why the
Federal judges should not be selected
otherwise than by the people themselves
nor hold by different tenure from those
| who administer justice in the State courts
If the people can be trusted with the
| selection of one set of judges they GER
tainly can be with the other. There can
be no practical difficulty since the dis
trict judges can be chosen by the voters
of their respective districts, the circuit
judges by the people Of their circuits,
and the Supreme Court Judges either for
circuits or by vote of the Union at large.
As far back as 1922, Mr.. jefferson, in
his memorable letter to Mr.. Barry, eX-
pressed the opinion that the Constitution
should be amended by making the Federal
Judges elective by the people and that
they should hold for a term of years
and not for life. Nor is there any rea-
son why the United States djstrict-at-
torneys should not be made elective by
the people of their respective districts.
There are other changes in the Federal
Constitution that the popular will would
probably require could we have Ma
tional Constitutional Convention to make
that instrument more in accord with
popular government and better to adapt
it to the changed conditions of-the country
and the requirements of the age. The
same causes that have from time to time
required changes in the State cOnstitu-
tons now still more imperatively re-
uuire it in the Federal organic law, be-
cause of the slowness with which it has
responded to the needs of the times The
| growth of education, the greater capaci-
ty of the people for self government, and
the confidence they have acquired in
themselves from experience, and the vast
changes in the environment of the times
and in all the conditions of life make it
clear that the eighteenth century Consti-
tuition under which we live requires many
notifications before it can be adapted TO
the needs of the twentieth century. Con-
/ sentative as the legal profession is and
always has been, we must admit this
much: and the sole cause why the needed
amendments have not been made or
constitutional convention called, it must
be confessed, is the lingering feeling ex-
pressed by Hamilton and his followers
at Philadelphia-that the people could
not be safely trusted with their own gov
eminent The experience of more than
a century has demonstrated the fallacy
of his fears, and that this great Ameri-
can people is capable of governing itself;
and indeed there are many who think
that we are capable also of governing
millions of people whom we have never
, seen, and of whom we know very little
beyond the fact that We are stronger
than they
PROGRESS IN THE COMMON AND
: STATUTORY LAW.
The enormous changes that have been
made in the Common Law by judicial
construction or by statutory enactment
are such that even the leading features
could not be summed up in a volume
The general features of the Common Law
of England as then modified by statute
have never been better or more elegantly
stated than by Mr.. Justice Blackstone IN
his Commentaries, written something over
a century and a quarter ago. A brief
comparison with English law as it stands
today and as it was when Blackstone
wrote will show that scarcely a shred of
the law as it then stood is now in force
in England We have been accustomed
to speak of the Common Law of Eng
land as the perfection of human reason.
In truth it was the conception of our
barbarous ancestors modified and changed
from time to time by the progress of
civilization and by borrowing much, usu
ally without acknowledgement from the
Civil Law An eminent lawyer (the Hon.
James c. Carter, of New York;, has
thus characterized it:
"In the old volumes of the Com
mon Law we find Knight service,
value and forfeiture of marriage, and
ravishment of words; aids to marry
Lords daughters and make Lords
sons knights. We find primer seisins,
escuage and monstrans of right; we
find feuds and authorizations, link
ing the whole community together
in one graduated chain of serVile de-
pendence; we find all the strange
; doctrines of tenures. down to the
abiect state of villeinage and over
that abject condition treated as a
franchise. We find estates held by
the blowing of horn. In short, we
| find a tumble of rude, undigested
usages and maXims of successive
hordes Of semi savages, who, from
time 10 time. invaded and prost'ated
each other. The first of whom were
pagans. and knew nothing of divine
laws: the last of whom came upon