State is loaded with causes, most of them unimportant, sufficient to furnish the court with business for a couple of years, while the county courts have almost nothing to do. So long as the supreme court is open to suitors in all sorts of cases, however trivial, so long they will resort to it and clog it. Were all causes involving sums not exceeding five hundred dollars, required to be brought in the county court, litigants would have no cause to complain; the circuit calendar would be relieved of more than half its cases, and justice would be administered without delay.

NOTE OF CASE.

In Corkling v. Massey, C. P., 21 W. R. 680, L. R. 8 C. P. 395, on a charter-party which described the ship as "expected to be at Alexandria about the 15th day of December next," the charterer sued the shipowner for a breach of warranty, the ship not being at the time of the charter party in a place from whence she could reach Alexandria by the date named. The court held that, notwithstanding the words only spoke of an “expectation,” they amounted to a warranty, and certainly in substance the case would not be distinguished from Ollive v. Booker, 1 Ex. 416. But both the learned judges (Keating and Honyman, JJ.) pointed out that they were not required to hold that the words amounted to a condition precedent to the obligation of the charterer to provide a cargo, and they referred to Behn v. Burness, 11 W. R. 496, 3 B. & S. 76, as pointing out the distinction between warranties and conditions precedent. This is true in a sense, but it is also true that both in Ollive v. Booker and in Behn v. Burness a statement similar to that in question was held to amount to a condition precedent, and in Behn v. Burness the language in which Williams, J., expresses himself, in delivering the judgment of the exchequer chamber, is as follows. After noticing the distinction between statements in charter parties which have and which have not been treated as part of the contract, the learned judge proceeds (p. 497)-"But with respect to statements in a contract descriptive of the subjectmatter of it, or of some material incident thereof, the doctrine established by principle as well as authority appears to be, generally speaking, that if such descriptive statement was intended to be a substantive part of the contract, it is to be regarded as a warranty, that is to say, a condition, on the failure or non-performance of which the other party may, if he be so minded, repudiate the contract in toto, and so be relieved from performing his part of it, provided it has not been partially executed in his favor. If, indeed, he has received the whole, or any substantial part of the consideration of the promise on his part, the warranty loses the character of a condition, or to speak more properly, perhaps, ceases to be a condition, and become a warranty in the narrower sense of the word, namely, a stipulation by way of agreement, for the

breach of which a compensation must be sought in damages." There is, then, nothing in this considered judgment of the exchequer chamber which tends to sanction the view that such words as were here in question, if they are part of the contract at all, are a warranty but not a condition; on the contrary, they are treated as having a double operation, and as being only restricted to the operation of a simple warranty in the case where the person for whose benefit they are inserted has accepted part of the consideration.— Solicitors' Journal.

AN ELECTIVE JUDICIARY.

The people of this State are about to settle, at least for some years, the question whether our judiciary shall be elective or appointive. This question is not one of mere party policy or expediency, but involves principles deeply concerning the administration of justice. The October number of the American Law Review contains the following very able discussion of the question, which deserves to be read by every lawyer and by every voter in the State:

"Twenty years ago, in the summer of 1853, a constitutional convention in Massachusetts discussed various questions as to the judiciary,- should judges be elected by the people, or by the legislature, or continue to be appointed by the executive; should the tenure of their office be during good behavior, or for a term of years; and should their independence be secured by permanent salaries not liable to diminution, or should their compensation be subject to legislative control?

The essential inquiry underlying the whole debate was whether the judicial department ought immediately to reflect the popular will, and the judges to be responsible to the people for their decisions, on peril of losing their offices if they failed to satisfy the majority; or whether they should be "as free, impartial and independent as the lot of humanity will admit."

On one side, the disciples of Jefferson appealed to him as the highest democratic authority; maintained that an independent court was an aristocratic institution, not consonant with the spirit of Republicanism; and complained of the bad manners of judges, but, in no instance, of their want of learning, integrity or good morals. They also pointed triumphantly to the example of other States, especially of New York, where this great reform of an elective judiciary was said to be in the full tide of successful experiment. They charged their opponents with fearing to trust the people, and with clinging superstitiously to notions as antiquated as the cocked-hats, wigs and small-clothes of their grandfathers. There was no lack of sincerity, ardor, ability or eloquence, on the part of the advocates of innovation. They were answered by such men as Choate, Dana, Greenleaf and Parker. The ability shown on both sides was of a very high order, and no student of the questions at issue can afford to omit a careful perusal of the entire discussion. The great effort of Mr. Choate is, perhaps, the finest remaining monument of the transcendent genius of that wonderful advocate and orator. The question was decided in favor of limiting future judicial appointments to a term of ten years, but against any other change.

The revised constitution, submitted by the convention to the people for ratification, was by them in every particular rejected, a result largely attributable

to the proposition to alter the judicial tenure of office. And yet, amid the rejoicings of those who had prevailed, there was a wide-spread feeling that perhaps, after all, their victory was only for a time; that, if the evil had been postponed during their day, the next generation could hardly expect to escape it. And the defeated party consoled their chagrin by the belief and declaration that they had only to submit to a little delay, and, in a few years, the most sluggish and conservative would be satisfied to have Massachusetts follow the bright examples of more progressive States. Such apprehensions and such hopes have been shown, by the experience of twenty years, to be altogether

erroneous.

was

There never has been a period in the history of Massachusetts when her people were more nearly unanimous than they are to-day in their content and satisfaction with the judicial system which adopted in 1780, and under which, for nearly a century, the rights of all to life, liberty, property and character, have been preserved by an impartial interpretation of the law and administration of justice.

The experiments and experience of other States, which have made judges elective and immediately dependent upon the popular will, have been closely watched by the people of Massachusetts, and with the observation, all temptation to inaugurate a similar change has passed away.

New York, by its revised constitution adopted in 1845, made the judges of the court of appeals and supreme court elective for a term of eight years, and provided that the compensation for their services should neither be increased nor diminished during their continuance in office. Under that system, the most populous and greatest commercial State in the Union has lived for twenty-eight years, and its people are now about to pronounce judgment for or against its continuance.

By a constitutional amendment adopted in 1869, at the general election in 1873, a majority of the electors of New York will decide whether their principal judicial officers shall hereafter be appointed by the governor, by and with the advice of the senate, or shall continue to be elected by the people. Important as this question is to the welfare of that State, even there it seems, up to the present time, to have excited less interest than many transient political topics which pass away and are forgotten in a day.

But not only are the people of New York deeply and permanently interested in the decision, it is also indirectly of great importance to the other States of the Union. For the deliberate and considerate judgment of the inhabitants of that great State upon such a question, formed in the light of long experience, will be much respected everywhere else.

Should the empire State retrace its steps and return to the ancient ways, other States which have followed her former example may be persuaded to follow the new one also. And at least such a precedent of the thorough trial and deliberate abandonment of the plan of electing judges by the people will be one of the strongest practical arguments against that method where ever it may be proposed in States still possessed of an appointed judiciary, and in every new State emerging from territorial condition, and framing its original constitution.

The present time, then, is a fitting one for some observations upon this important constitutional question.

There is certainly no free State, and hardly any civilized nation, in which the functions of government are not distributed among three departments, the executive, legislative and judicial. In England, during the Stuart dynasty, the judges appointed by the crown held their commissions during the royal pleasure; and they were frequently dismissed from office without any other pretext than that they had not sufficiently promoted the political views of the government. This was a period during which executive power sought to dominate over both the legislative and the judiciary; and, in contests with the judges, the power of removal ordinarily gave the royal wishes supreme control. The general behavior of the bench was that of infamous subserviency. Without adverting to the familiar instances by which this notorious truth might be illustrated, the very exceptions to it prove the rule. When King James I. called before him the twelve judges to reprimand them for not having obeyed a letter of the attorney-general, directing a stay of proceedings in a cause between private parties, which was deemed to affect indirectly the royal prerogative, and, at the end of the interview, put the question, — "In a case where the king believes his prerogative or interest concerned, and requires the judges to attend him for their advice, ought they not to stay proceedings till his majesty has consulted them?"-it was Lord Coke alone who made the sturdy and memorable reply: "When the case happens, I shall do that which shall be fit for a judge to do;" but his eleven associates cried, "Yes, yes, yes!" The consequence was, that in three weeks, he was suspended from the exercise of his judicial functions, and in less than six months, was dismissed from office. The inevitable products of such a system were such judges as Scroggs and Jeffreys.

After the revolution of 1688, the commissions of King William's judges ran during good behavior; and, by the seventh clause of the Act of Settlement, passed in 1700, this was made a permanent constitutional provision, and henceforth judges could be removed from office only by impeachment or upon an address of both houses of parliament.

In the first year of George III. (1761), the independence of the judges was completed by providing that their commissions should not expire on the demise of the crown, and making their salaries a permanent charge on the civil list. The king's message recommended this act of parliament, because "the independence of the judges is essential to the impartial administration of justice, best for the security of the liberties and rights of my subjects, and most conducive to the honor of the crown." All English statesmen and jurists agree that these provisions are among the most important safeguards of English constitutional liberty. The history of the oppression and cruelty which induced the people of England to demand their adoption was perfectly familiar to the statesmen who were the leaders of the American revolution. No men were ever more profoundly learned in English constitutional history than they. Burke said, in his great speech on conciliation with America, that "nearly as many copies of Blackstone's Commentaries had been sold there as in England, that all the people were lawyers, and, therefore, judged of the pressure of a grievance by the badness of a principle, and snuffed the approach of tyranny in every tainted breeze;" and among the measures of conciliation which he proposed was to secure to the colonies a fair and unbiased judicature, by providing that, after the colonial legislature had

granted settled salaries to their judges, their offices should be held during good behavior. How well he comprehended the situation became apparent a year later, when the declaration of independence enumerated in its catalogue of grievances that the king had "made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries."

The constitution of Massachusetts was framed and adopted in the midst of the revolutionary war. Tradition ascribes to John Adams a principal share in its construction. Doubtless he was primus inter pares, though many other lofty spirits, the names of only a few of whom have survived to our generation, cooperated in the great work. The Massachusetts declaration of rights asserted, in language as bold and broad as the extremest democrat could desire, the fundamental doctrine that all power resides originally in the people, "and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive or judicial, are their substitutes and agents, and are at all times accountable to them." But it also declared "that it is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries, ascertained and established by standing laws." "In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them, to the end it may be a government of laws, and not of men."

Seven years afterward, in the constitution of the United States, it was provided that the president should nominate, and by and with the advice of the senate, should appoint the judges of the supreme court, and that the judges, both of the supreme and inferior courts, should hold their offices during good behavior, and their compensation not be diminished during their continuance in office. This article is said to have been adopted in convention without a dissenting voice. Although "a government of the people, by the people, and for the people," was the desire and aim of our forefathers, yet they recognized the necessity of a system of checks and balances, of the exercise of a certain measure of self-restraint to be put by the people upon themselves in order to the protection of a few or of one against the majority, in order that the real and deliberate will of the majority might ultimately prevail, rather than its transient, fleeting and fickle voice. They regarded an independent judiciary as equally important in a republic against gusts and waves of popular excitement, as in a monarchy against the usurpations of the crown. Although they did not expect the ship of state to sail against wind and tide, yet they did not mean to have its keel so built or its helm so managed that it could be overturned or turned back from its normal course by every sudden squall.

It is not easy to perceive how, under a written constitution, intended as a fundamental law to restrain, override and nullify all legislative acts in conflict with its provisions, any other notions could obtain currency. The very idea of such an instrument involves the supposition that there may be a temporary will of the people, expressed by a majority vote, in conflict with their most solemn and deliberate will expressed in the great charter of the constitution. The latter must be changed before effect can be given to the former. Who or what institution shall restrain the execution of the temporary wish until the deliberate purpose can be duly and formally ascertained? There is, and in the nature of things there can be, no other department of government for this purpose than the judiciary. To secure such a breathing time, such opportunity for reflection, for reconsideration, for the deliberate expression of the real wish of the people, a perfectly independent judiciary is even more important in a country like the United States, governed by a written constitution, than it can be in England, where the will of parliament is omnipotent. Such were the doctrines of the founders of the federal and State constitutions, and, until many years afterward, few traces of different opinions are discernible. Jefferson's letter to Kircheval, written in 1816, and published contrary to the wishes of the writer, which is said to have postponed for thirteen years the holding of a convention to revise the constitution of Virginia, is one of the earliest enunciations in favor of a judiciary elective by the people. In his draught of a constitution for Virginia, prepared in 1783 and first published 1788, as an appendix to his notes on Virginia, the scheme proposed is an election of the higher judges by joint ballot of both houses of the assembly, to hold their offices during good behavior, with salaries not liable either to increase or diminution affecting any one actually in office; and an appointment by the governor, on advice of the council of state, of the judges of inferior courts, who are also to hold office during good behavior, or during the existence of their court. In the part of the notes which describes the existing constitution adopted in 1776, he thus censures it for giving too great power to the legislature: "All the powers of government - legislative, executive and judiciary result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention, which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependent on the legislature for their subsistence in office, and some of

one.

them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made, nor, if made, can it be effectual, because in that case they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches." In the Kircheval letter, in case a judiciary chosen by the people should be found unattainable, which he fully expected, a decided preference is expressed for executive appointment over legislative election. Upon this question he says: "Let us at least not adopt the evil and reject the good of the English precedent; let us retain removability on the concurrence of the executive and legislative branches, and nomination by the executive alone. Nomination to office is an executive function. To give it to the legislature, as we do, is a violation of the principle of the separation of powers. It swerves the members from correctness, by temptations to intrigue for office themselves, and to a corrupt barter of votes; and destroys responsibility by dividing it among a multitude. By leaving nomination in its proper place among executive functions, the principle of the distribution of power is preserved, and responsibility weighs with its heaviest force on a single head."

We have quoted the sentiments of Jefferson not merely for their intrinsic value, but because they have almost the weight of admissions from a hostile quarter. He was not originally particularly zealous for the adoption of the federal constitution. At no period of his life was he suspected of any bias in favor of the judiciary; nor was he ever accused of that distrust of the people, reverence for the past and predilection for English institutions, which are charged, with some degree of justice, upon certain other statesmen of that day.

Whoever desires to see the most complete and masterly exposition of the subject will read the numbers of the Federalist from the lxxvi to the lxxx, inclusive, the wonderful ability of which justifies the declaration of a British essayist, that "the work altogether, for comprehensiveness of design, strength, clearness and simplicity, has no parallel among the political writings of men, not even excepting those of Montesquieu and Aristotle." No extracts from these papers can be made without doing them injustice by an imperfect presentation of their compact and philosophical reasoning. Hardly a sentence can be omitted or a phrase altered or dislocated without impairing their power. From every fresh perusal of them we rise with increased admiration.

The particular question, whether a popular election of judges is desirable, is not dwelt upon, because such a project was at that time unknown, and seemed inconceivable. But the argument in favor of executive appointment and permanent tenure of office covers the whole ground. It has been already remarked that the real controversy between those who favor and those who oppose an elective judiciary turns upon the question whether this department of the government ought to be dependent or independent. Under every government, and in every generation, occasions arise when men are charged with crime and put upon trial, against whom violent popular prejudice is excited. That of the demented negro Freeman in New York, whom Mr. Seward volunteered to defend against the remonstrance of his own nearest personal and political friends, may be instanced as an illustration. Who can fail to perceive that when the voice of the people is crying out

for the blood of a victim he is not likely to have an impartial trial before a judge who is himself speedily to be put upon trial before the same people on the question of his own re-election. And if the judge, as many honorable men would, rises superior to all personal considerations, how impossible it is that the prisoner and his friends should, from the beginning, feel the same confidence in his impartiality as if his continuance in office were not liable to be affected by his leanings during the trial! Public confidence in the impartiality of a judge is only second in importance to actual impartiality. A judge is also frequently called upon to administer an unpopular law: will he do that, or be thought to do it, fairly and efficiently, on the eve of an election at which he is a candidate for a second term? In civil causes, the rights of a corporation may be at stake which a popular majority, in the excitement of the moment, may feel has no rights that they are bound to respect. Ought such a cause to be determined before a judge who has been, or is liable to be, elected upon such an issue? The litigation may be between two individuals, one of whom is unpopular or unknown, wholly destitute of influence, while the other is a powerful member of the dominant political party, whose influence largely contributed to secure the original nomination of the judge, and who is able to control his renomination and re-election; in such a case will there be, or will there be thought to be, a fair determination of the merits of the controversy?

The court may be called upon to perform that most solemn and responsible duty of adjudging to be unconstitutional a statute passed by a unanimous legislature, and upon much popular urgency. Is an elective judiciary for such a purpose a tribunal as impartial as the lot of humanity admits? No doubt a majority of cases will be heard and decided with entire fairness, however judges are chosen; and so they would be if they were selected by lot. But the question is, what is the best and wisest system, the one likely to produce the most perfect results on those occasions which try men's souls?

Furthermore, which method of selection is best calculated to secure for the judicial office men who, by character and attainments, are fittest for the adequate performance of its difficult and important duties? By that of executive appointment the choice devolves upon one man, the governor of the State, who must usually be a person of considerable experience, of fair character, and of reasonable ability. In only a few instances can he have any strong motive to be controlled by individual favoritism. He must know, or have the means of knowing, personally or by reputation, the qualities of all within the natural range of candidates. An improper nomination will be a lasting injury to himself, while one conspicuously successful will always redound to his credit. To have placed on the bench a Marshall, a Story, a Kent, or a Shaw, is a great public benefit, not likely to be forgotten in estimating the services of a president or governor, either during his life or after his death. Besides the negative, upon an improper selection, possessed by the council or senate, always operates to make the executive careful in his choice, and to correct any error into which he may accidentally fall. It would be difficult to name any case in which the advantages of individual responsibility are greater, or in which it is surer to produce satisfactory results.

The next alternative is a choice of judges by the legislature. The arguments against this plan may be

found in the lxxvii number of the Federalist, and seem to us sufficiently cogent, both theoretical and practical. Nevertheless, this method must be admitted to have produced tolerably satisfactory results in many of the States, especially in those as small as Connecticut and Vermont. But, in principle, it is indefensible in view of those who believe in an independent judiciary; while it has few practical recommendations to that class who desire to have judges immediately reflect the popular will. By the sincere believers in either theory it must be rejected as a lukewarm and unattractive arrangement. We regard it as a mere compromise, unlikely to be disturbed where it exists, but unworthy to be adopted by those who consider the question as one of the greatest in American constitutional law.

No one has yet proposed, on this continent, the introduction of the Athenian practice of a plebiscite or popular vote upon the question of banishing or putting to death a particular obnoxious citizen. The nearest approach to such delightful democratic simplicity would seem to be to have a popular majority choose judges for the shortest possible term, so as to secure their direct and immediate responsibility to the people. Except on the score of convenience, we do not know why any one who favors a popular election of judges ought not to prefer, whenever it is attainable, a direct popular vote upon any question to be judicially determined. If vox populi est vox Dei, why weaken its power by an indirection which can only cast doubts on the divinity of its origin? But there are those, even at the present day, who believe that there ought to be a government of laws, and not of men. To their minds there is something shocking in the spectacle of a struggle in caucus or convention over a party nomination to a high judicial office, followed by a heated campaign between the political parties into which voters are divided, accompanied by the newspaper abuse and personal vituperation sure to ensue; the position of a judge finally elected, after such an ordeal, seems to them an introduction as unfavorable as possible to the duties of his office.

The two systems have been conspicuously tried for many years past in different States; indeed, in every State which has adopted an elective judiciary the two have existed side by side within the same territorial limits, the federal judges being appointed by the president and the State judges chosen by the people. We appeal to the candor of all intelligent observers, to say under which of the two methods justice has been administered with the greater degree of purity, impartiality, energy, intelligence and learning? How have those courts been constituted whose decisions are cited with respect here and in England, and how those which are a byword and reproach throughout Christendom? We do not propose to point the moral by citing instances either of praise or of obloquy. To every one there will, occur conspicuous examples of great and venerable magistrates who have enjoyed the respect and reverence of all men, and, on the other hand, the names of judges who have clothed themselves with infamy as with a garment. By which system has each class been produced? Or, if it be said that extreme illustrations are unfair, under which system has there been the larger proportion of conscientious, laborious, painstaking, careful and learned judges; and under which has the tendency been to a slovenly, superficial, slipshod performance of judicial duties? Which has tended to superiority, and which to mediocrity or

inferiority? By their fruits let the two systems be judged.

It is seldom that a man or community consents voluntarily to surrender the immediate exercise of any accustomed power. Even its delegations to agents requires a considerable exertion of moderation and self-restraint. If the people of New York shall deliberately resign the power of electing their judges, and return to the ways of ancient wisdom, they will, in our opinion, evince a high degree of political intelligence, and furnish to the world a striking proof of their fitness for self-government, and their capacity to profit by the lessons of experience.

summons.

This action was

1. Amendment of brought against "The Maxim Gas Machine Company," whose proper corporate name (as it subsequently appeared), was "The Maxim Gas Machine Company of New York." The summons was amended by inserting after the name of the defendant the words "of New York." There was no doubt of the identity of the defendant, for the summons was served on the secretary of the company.

Held, that the amendment was properly allowed. It was not the substitution of a new defendant, nor a change of parties, nor the striking out a party, as in the cases relied on by the defendant. Hoyt v. The Maxim Gas Machine Co., of New York. Opinion by Larremore, J.

2. Manufacturing corporations. No certificate of approval by a justice of the supreme court is required to the certificate of incorporation of a corporation for manufacturing and chemical purposes by the act of February 17, 1848, or the amendments thereto. Ib.

SUPREME COURT RULES. See Reference; Tender.

1. When tender should be continuous: contracts of service: measure of damages. — Appeal from a judgment in favor of plaintiff. This action is on a contract for the plaintiff's services as an actor in defendant's theater from September 15, 1870, to June 1, 1871, at a salary of $65 per week and a benefit. It was brought in September, 1871, and plaintiff in his complaint alleges he was wrongfully discharged on the fourth of April, and that he could not procure thereafter other employment. He does not allege performance or tender of, or readiness to perform any services during the period for which he claims salary. He asks to recover his weekly salary up to June first, and also for his benefit night. He was awarded $688.10 as compensation on the contract rate per week as for full performance, with some addition for the benefit night. It appeared by plaintiff's testimony, that, upon his discharge, he denied defendant's right to discharge him, and offered performance, and that about a week afterward he left the city and went to Baltimore, and for the remainder of the period of his engagement spent his time there or in Virginia. "He went a fishing." The justification he offers for not seeking other employment is that "the season in New York theaters had almost expired, and he did not think he could have got employment