Year: 1866

men begin to wonder, What lce shall see nerf!
No reason being assigned for the call, the
public are left in doubt as to what may be
the leading objects TO be accomplished by II
and it is a matter of deep import to those
who are to foot the bill' for this extraordl-
nary convocation, TO know whether more
innovation and experiment. or return 10
old and tried policies, is to be its leading OBJ
ject.


The present Legislature, it is fair TO prom
Use. under the well known disposition OF men
to be partial to their own work, is hardly the
very best body to repair any injuries to the
body polite which are the results OF their
action at the last session. Having leglslated
upon a line of policy marked out by ITSELF
though essentially opposed to the conserya-
tive counsels of the Executive, and unmind-
ful of the constitutional landmarks and tests,
which, in the discharge Of their duties, the
Judiciary might apply to their action, II
requires an unusual degree of confidence III
their discretion to anticipate ready retrac-
ton even of demonstrated errors IN their
November legislation. There are those who
confidently hope for this. l do not. In
review of the acts of November 1865, what
ever respect have personally for the mem
berssof that body, whatever confidence feel
in the rectitude of their motives, which no
man can question, l seei.nothing but the
marks OF an extreme RadicaliSm in State policy.
No other proof of this can be needed than
the obstinacy with which the Stay Law"
,,of% H.
ings of the few who remained faithful to the
constitutional restrictions upon Legislative
power over contracts. As a result OF this,
we find the entire agricultural and CONNER


cial community of the State to-day standing
aohast with dismay at the evident destruc-
ton, by Iemorseless and silly creditors, of
the scant means of recuperation left by the
unsparing hand of ruthless war. little
moderation, small mOdicum of respect for
the rights of creditors as well as debtors,
decent regard for the decisions of the highest
judicial tribunals in the States, rs well as


those of Federal authority, well understood


bv every tyr0 in constitutional law, would
have applied an effectual remedy against


the coming disaster, and given the breath
! ing spell" the country so much needed IN


order that those who had been busy In war


might gather up the fragments" left at
home by the spectators. 1t was thought
by them best TO override the constitution and


they have found, what extremists are ever
| apt to realize sooner or later, that they have


defeated their own purposes.


| 1t would not be hard to extend the proofs


of Radicalism by reference to other acts of
this body, in connection with plain provis-


ions of the State and Federal constitutions
| But this is not my design. have mentioned


one striking evidence, because in this my
judgement is sustained by the High
Court of Errors and Appeals, to


whose judgement we must all defer, There


are other acts passed by the same body from
which great mischief have already devel
| oped themselves, equally liable to objection
on the score of uncOnstitutionality- as


hese objections have not been brought to
| the bar of the High Court for adjudication,
| forbear to mention them. may be, and
| hope that j am mistaken. MyS purpose in
| this communication, is to ask the attention


of the Legislature to a serious consideration


of the expediency of abOlishing the County
| Courts established last winter.


They were organized on the recommends
| tion of an able committee, appointed by the
Convention, in view of a probable necessity


considered likely to grow ont of the changed


condition of our late slaves. 1t was sup


posed that misdemesnors would become more


numerous, and that wise policy required


that they should be punished with more dis


patch than Is ordinarily attainable in the


Circuit Courts of the State. The fact has


turned out as anticipated, while the remedy


las not come up to the just design. The
| State is in need Of the means of certain and
speedy punishment, but it is equally impor-
| tant that the trial. should be conducted con
| formally to the Constitution. and by Courts


as learned in criminal law as may be obtain
! ed under our Governmental system.


| 1t seems to the writer that the jurisdiction


vested in the Probate Judge, Mayor of cities,
and Justices of the Peace, finds no warrant
in the Constitution of the State


The Probate Judge, under the Constitu-
tiOn has no criminal jurisdiction, nor any to
try civil causes, except such as are contided
to him by the 18th Sec, Art a.. of that in
strument. His business, by that section, is
limited to matters testamentary and of
administration, i'll orphans business and al
lotment of dover, in cases of idiocy and lu-
macy, and of persons non compus mentis. So
The jurisdiction of this officer is thus limi-


ted, by the terms of Constitution, to matters,


not one Of lchich is given to him by the county
Court act. Mark yon it is the probate
Judge" the officer elected as Probate Judge,


who is made Presiding Justice of this Court.
Now. can the Legislature confer upon a CON
stitutional officer of Court of limited ju


risdiction, different jurisdiction from that
conferred by the Constitution what would


be said of an act requiring the Chief JUS
tice of the High Court of Errors and Ap-
peals to preside in this Court l should
say, as a lawyer, 'clearly not


If it should be sought to evade the force
of this argument by reference to the power
of the Legislature to establish such other


Inferior Courts as may be deemed necessary
| it would seem sufficient to reply, that the
jurisdiction given to this officer by the
County Court law is conferred upon him as
Probate Judge" and not as Presiding
Judge of the County Court" His election
as Probate Judge fires the only Jurisdiction the
Constitution dlloTs him: the County Court
act gives him another jurisdiction. The act
provides for no election of Judge of the
County Court, as such, but imposes or con-
fers upong "a constitutional officer other and
different powers and jurisdiction than those
conferred by the Constitution under which
he is elected by the people. 1t presents the
anomaly, in our system, of a constitutional
officer, of special and limited Jurisdiction
elected as such, exercising power and juris-
diction under a statute, not granted i'll the
Constitution; and, as to the whole Court, it
is composed of officers not elected By the people
to the Office created by the statute.


The same objection to the jurisdiction con
ferred by the act on the associate Justices of
the Peace, applies with equal force to the
Justices. By the Constitution, their iuris-
diction is limited to the District for which
they are chosen; by the election of that Dis