The judges of Massachusetts and the judges of this State prior to 1846, are removed from us in space or time, and, therefore, we have no such lively sense of their imperfections as we have of those of the judges whose actions we daily criticise. When thirty or forty years shall have canonized our present judges, they, too, will seem differently; and, very likely, a galaxy of the best of them will then be taken to represent the whole, and the practicing lawyers of those coming days will celebrate their alleged superiority, and moralize on the decay of the judicial character and ability, even though the judges of that future time shall be appointed and not elected.

The people of Massachusetts have generally had better governors lately than we of New York have had; but this does not militate against the system of electing governors; for there the people elect the governor, as we do here, and accordingly, if some of our judges are just now inferior to theirs, this does not establish that it is because of their election, nor that appointment would give us better judges.

Public opinion is probably a better guide to discover learning and ability than is the governor's opinion, while the other and paramount qualification of tolerable honesty is more certainly secured in cases of election by the people. No dishonest judge is ever intentionally elected by the people. Such judges are sometimes purposely appointed. In England the rankest judicial tyranny, involving not only the lives and fortunes of good and patriotic men, but also the liberties and welfare of the whole people, has been notoriously exercised by judges, learned and able enough perhaps, but appointed by the executive, and, therefore, complaisant where thrift might follow fawning.

Suppose that the judges in New York city have been bad, and that the lawyers there are stirred up about it, is it certain that the judiciary there would have been materially improved if Tammany had made the selections through Tammany's governor? We of other parts of the State are probably better suited with the judges whom we got by election.

It is alleged that the people are the worst possible judges of those qualifications essential to a good judge." Is this true? The people have no great difficulty in selecting shrewdly the good lawyers for their private business. They are not badly misled therein by forensic display; and they can use the same discrimination in selecting a judge. Probably there is no calling or profession among men, concerning the individuals in which the popular judgment is more discriminating and just than it is concerning lawyers. Observe, also, that the best justice is generally administered among men when the parties to any controversy select their own umpires.

Electing the judiciary is said to derogate from its dignity, its just weight, its hold upon the general confidence. We evidently do not think thus with regard to the president of the United States. The more clearly it appears that he is the choice of the people, the more he seems to be exalted and dignified. Why should it be supposed different as to judges? It cannot be different, except on a principle that would lead us back from republicanism.

The picture drawn by Rufus Choate from his imagination, as to an elected judge, might be exceeded in its revolting features, by a truthful expose of the negotiations and arrangements whereby a governor's appointment is sometimes obtained. A judge cannot be elected without openness and a chance for exposing

and canvassing the motives therefor; but a judge may be appointed not only with bad motives and purposes, but with no opportunity whatever for their timely exposure.

Is it true that "the impression is gradually spreading in this State, that the people cannot trust themselves entirely?" This proposition cannot be fully discussed in this article, for it involves the whole question of government by the people. If true and well founded, it not only ends this whole discussion, but ends also the propriety of any kind of election by the people, and implies the necessity of revolution in the form and principles of our government. I will not assume, however, that any thing of this kind is contemplated by the advocates of the proposed change, but will briefly suggest some of the reasons for retaining the election of judges by the people.

The attempt now to take away from the people the election of their judges is giving an unwise direction to the general desire for reform - a desire that might better be directed to reform in the organization of our political action, in such manner that the whole people would participate more fully therein. Under our system nothing is so good in every part of it as popular supervision; and if, in this matter, we seek to relieve the people of its necessity, the effect on all our political action will be bad. Their increased attention, especially in the city of New York, has already accomplished some thing in the way of reform. Let the attention continue and the reform will continue. They will now probably elect better judges there than they have formerly. Let them be held to their own political responsibility. "Ring government" at Albany and for the whole State, will be no better than it was in New York city. The Albany "Junta" and "Regency" are not desirable things to restore, intensified as their evils undoubtedly would be, by modern improvements. They were real and not imaginary evils that led to the election of judges by the people: and the people of this generation will surely encounter them again, if we restore the old system. Men who remember the instances of judicial incompetents foisted upon us through the favoritism of appointment and so difficult to be got rid of, will be more tolerant of the less glaring mistakes made by popular election and that are more easy, and more sure to be corrected.

I agree that the governor should have more responsibility and consequently more power than was allowed him by the constitution of 1846, but not by giving to him the selection of all the people's judges. Executive officers of the government, including perhaps the sheriffs of counties, should be appointed by him, and then there would be a more uniform execution of the laws, and better responsibility therefor. Here, probably, is a simple and complete remedy, not only for much mismanagement, but for the rapidly multiplying instances of lynch law taking the place of real law. Non-resistant sheriffs do not feel that they are, at their peril, to execute the law of the State, and to be sustained by the chief executive of the State, with the whole armed power of the State, if need be; but they feel, rather, that they are acting as officers of the people of their own county only.

Executive power requires concentration in a republic in order that the sovereign will of the people as expressed through their laws, may be properly enforced, and that the responsibility to them therefor, may be properly felt; but such concentration is not needed in selecting our judges; except, perhaps, our United

States judges, who exercise a jurisdiction peculiarly limited as to subjects and circumstances, but very greatly extended and scattered as to territory.

Most heartily do I join in soliciting public attention to the importance of the constitutional question submitted at this election, fully believing there is imminent danger that, as in most of our political errors, a bad step backward may be accomplished by an organized and interested minority, when it might, and should, be prevented by the sober second thought of the people. THOMAS J. SIZER.

BOOK NOTICE.

The Spirit of Laws by M. De Secondat, Baron De Montesquieu, translated from the French by Thomas Nugent, LL. D. A new edition, carefully revised and compared with the best Paris edition, to which are prefixed a memoir of the life and writings of the author and an analysis of the work by M. D'Alembert. 2 volumes. Cincinnati. Robert Clarke & Co., 1873.

"Montesquieu," said Mr. Wheaton in his Law of Nations, "still merits and enjoys the reputation of having invented the grand idea of connecting jurisprudence with history and philosophy in such a manner as to render them all subservient to their mutual illustration." His "Spirit of Laws" is, in the estimate of able men, his greatest work, as it was the work of the best years of his life, although there are a few who give the preference to his Considerations sur les Causes de la Grandeur et de la De cadence des Romains.

The title "Spirit of Laws" or Esprit des Loix, was not happily chosen to express the subject and object of the work;-what was meant was the causes from which laws have arisen-the Legis Legum, to which they were owing and from which they sprung. Its object was the development of the general principles which run through the jurisprudence and institutions of all nations. It was a famous saying of Madame de Deffand that it was not the Esprit des Loix Montesquieu had written but Esprit sur les Loix. The work was published in 1748, and its success was at once great. Before two years had elapsed it had gone through twentytwo editions and been translated into most of the European languages, a success seldom equaled in a work of profound and original thought. In this connection it is interesting to note the history of the writer's mind during the progress of the work. So distrustful was he of its success even after the vast labor he had employed in its composition that he sent the manuscript to Helvetius, a friend, on whose judgment he could rely. Helvetius concluded that Montesquieu's reputation would be ruined by the publication of the work. In this opinion Saurin, another friend and critic, joined. It afflicted them to have the brilliant author of the Lettres Persannes "sink into a mere Legist, a dull commentator on pandects and statutes." Montesquieu, however, disregarded their advice and sent his manuscript to the printer, with the motto, Prolem sine Matre Creatam.

temper and situation. True wisdom consisted not in altering but following out the spirit of existing laws and customs. To use his own words: "No nation ever yet rose to lasting greatness but from institutions in conformity to its spirit." No calamity was so great as seeking to force upon one race or people the institutions which have arisen among and are adapted to another.

These principles are entirely at variance with those notions which have been current among Americans. With our enthusiastic democracy institutions have been every thing; national character, descent, employment, or physical circumstances nothing. All mankind would be the same if they only enjoyed the same liberty, laws and institutions. And we have waited anxiously and hopefully to behold a republic similar to our own, erected upon the ruins of every monarchy in Europe. The events of the last few years, however, have tended to vindicate Montesquieu's theory, and to spread a doubt among thinking men, whether the American notion was well founded. The style of Montesquieu is condensed, nervous and epigrammatic, rather than eloquent or forcible; but his works abound in brilliant passages, many of which have become familiar as household words from one end of the world to the other.

In

To the students of law we most earnestly commend the reading of the Spirit of Laws. They will find it an invaluable treasure of original thought and profound views, of luminous observation and deep reflection, of philosophic observation and just generalization. the language of the translator's dedication, “Whoever finds pleasure in perusing the Spirit of Laws, must be deemed to have greatly improved in the study of politics and jurisprudence."

Messrs. Clarke & Co. are entitled to great credit for the elegant edition they have given us. The translation is that of Dr. Nugent, made during the life-time of Montesquieu and especially approved by him, while the letter-press and paper are all that one could desire.

MR. GEORGE TICKNOR CURTIS ON AN
APPOINTIVE JUDICIARY.

From a recent letter of Mr. George Ticknor Curtis, published in the World, we make the following extract: "People may speculate and refine and split hairs over this subject as much as they will, the one great, prominent and decisive fact is, that in all conditions of modern society that system of selection produces the best and most valuable judges, which involves the least amount of unworthy solicitation or compliance, and the least sacrifice of self-respect when a man desires to reach the bench, or when any portion of his fellowcitizens desire to have him placed upon it. In this respect there can be no question of the advantage of the appointing over the elective system. Let any man of delicacy and honor and principle and self-respect, who is conscious of ability and who knows that he has spent his days and nights in the severe and pure studies of jurisprudence, and who knows, therefore, that the qualities of learning and intellectual power and personal integrity are what ought to guide the choice of the appointing power-who knows that if that power is held by a political caucus and a popular vote, such qualities must yield their chances to influences to which he cannot stoop, and that if the responsibility of the choice is narrowed to fewer hands and concentrated in the first and controlling instance upon some one high

functionary who is to discharge the duty in the face of day and in the full gaze of public opinion, the bad influences will be almost entirely shut out. Let any such man say which he would prefer to undergo, a candidacy before a political caucus and a popular vote, or a candidacy before a governor and a senate. When you have the answer to this question you have what is the practical solution of the most important part of the matter, for it is not to be doubted that the feelings of the most elevated members of the legal profession on this subject are the real touchstone that ought to be applied to the question, because it is from among such men that really able and valuable judges are to be taken, and because that system alone can best secure such judges which opens the judicial career to men of the highest character by exacting from them the least measure of humiliation."

LAW BLANKS.-We doubt if the legal profession in any other State or country in christendom, indulge so largely in the use of printed forms or blanks as do the legal profession of New York State. The codification of our rules of practice, our multifarious special proceedings, and our stereotyped forms of conveyances, have made the substitution of printed blanks for original drafts a matter of ease, and almost of necessity. A few years ago the blank business was but a minor accessory of the law book store, but it has latterly expanded into a separate and distinct business. The blanks have also been greatly improved in style, paper and typography; and the awkward folio or foolscap form have given place to the neat and convenient legal cap blank. We have received from Mr. James H, Watson of this city, who devotes himself entirely to the business, a number of his blauks of recent issue. They are excellent in form, paper and type, better than the issues of even a year ago.

The Gazette notifies that her majesty, having deemed it expedient that a royal commission should inquire into the administrative departments of the courts of justice, as recommended in the second report of the select committee appointed by the house of commons to inquire into the expenditure for civil services, has appointed Lord Lisgar, Sir George William Wilshere Bramwell, Mr. William Law, Mr. G. O. Trevelyan, M. P., Mr. Algernon Edward West, C. B., and Mr. Francis William Roswell to make inquiry into the numbers, salaries, superannuations and cost, and the administration, regulation, organization, manner of appointment and of promotion for each establishment of the aforesaid departments, and to recommend who ought to be responsible for the organization of such establishments, and what should be their relation to the commissioners of the treasury. They are also to report whether, and in what manner, the large number of persons formerly connected with courts of justice who are in the receipt of compensation on abolition of office might be utilized by being appointed to other offices in these establishments, and what rules should be laid down as to compensation on abolition of judicial offices or of subordinate offices in these establishments. -Solicitors' Journal.

Judge McKinstry, the independent candidate for justice of the supreme court of California, has been elected by a heavy majority.

LEGAL NEWS.

Mr. Justice Field, of the United States supreme court, has arrived in Washington from San Francisco. The British government has thus far spent £300,000 on the Tichborne case.

The new penal code which the Hungarian government is to lay before the Landtag, at Pesth, next session, contains important provisions for securing the civil power from interference on the part of the ecclesiastical authorities.

Mr. F. H. Betts, of the New York bar, is to deliver, during the year, a course of lectures on patent law, at the Yale law school. Mr. Betts is a patent lawyer of large practice in New York city, and is admirably qualified, by his experience and ability, for this work. The court of claims re-assembled at Washington on the 20th inst., in adjourned term; present, Chief Justice Drake and Justices Loring, Nott and Milligan. The court will meet at eleven o'clock daily, and go on with the miscellaneous docket left unfinished last May. There is a large amount of business waiting.

The American and Mexican claim commissioners having named Sir Edward Thornton to act as umpire, he has accepted the nomination, provided his government will consent to his acting in that capacity, which consent he has asked. Meanwhile, the commissioners are engaged in the examination of cases for adjudication.

Hon. Daniel W. Bates, chancellor of the State of Delaware, has tendered his resignation of that office. The place is one of life tenure, of which the governor has the appointment. Judge Bates has held the position very acceptably, and with honor to the bench, since 1865, and resigns on account of feeble health. He will sail for Europe in a few weeks, to spend the winter in Southern France. There is much speculation as to the probable successor to the office. The name of United States senator Eli Saulsbury is suggested.

The following papers are promised for the meeting of the Metropolitan and Provincial Law Association, which will shortly be held at Birmingham, England: On the Education of Attorneys, by W. E. Shirley, of Doncaster; On the Organization of the Profession, by T. Marshall, of Leeds; Land Titles and Transfer (Lord Selborne's Bill), by G. J. Johnson, of Birmingham; On Registration of Assurances, by J. Murray, Whitehallplace, London; Suggestions for the Revival of the Inns of Chancery, by R. W. Griffith, of Cardiff; and Legislative Results of the Session, by Philip Rickman, of London.

The congressional joint committee on the revision of the laws of the United States, after themselves examining the work of the codifiers (Messrs. Abbott, James and Barringer), appointed Thomas J. Durant to further revise the work and prepare it for congress, subject to the supervision and approval of Attorney-General Williams. Mr. Durant has submitted the result of his labors to the attorney-general, who is now carefully examining in detail the fourteen hundred or fifteen hundred printed pages into which, by the omission of notes and other extraneous matter, the two volumes containing the statutes as revised by the codification commissions have been condensed. In this form, substantially, they will be submitted to congress for enactment at the next session.

upon the subject of law publishing, in which was recommended an association of authors and law writers for the purpose of co-operative publication, but however plausible the scheme, it was never acted

upon.

Our law book publishers are a very excellent class of men, but we fear their business methods are not calculated to develop and foster a high order of legal literature. They publish law books for money, and, so that they get the books cheap and turn their money speedily, it matters not to them whether the books be good or worthless. They will not venture their money in the publication of works that cost them heavily unless they can tell to a certainty -which they seldom can that they will receive their reward. We are of course not censuring the book publishers, for their methods of business are quite as good as those of the rest of the business world. But we do say, that the present dearth of good works on the science and principles of jurisprudence is attributable to our prevailing mode of publishing, and the lack of any pecuniary encouragement to industry and ability.

A DEPARTMENT OF JUSTICE.

The recent statements of the Attorney-General of the United States with regard to the expenses of the courts, the marshals and the district attorneys illustrate very clearly our need of a more efficient and responsible Department of Justice. The present Department is hardly more than a name, and its chief- the Attorney-General - has little more power or control of any part of the machinery of justice than had his predecessors of a quarter of a century ago. The Ministry of Justice constitutes a very important branch of several of the European governments, and wherever it exists the judicial affairs are, as a rule, wisely conducted. We might not be willing to concede to the head of our Department of Justice the selection of the judges, after the manner of the French and the Germans - although we fully believe the selections would be quite as judicious as they now are; but aside from this function, important as it is, there is quite enough to occupy the attention of a well-constituted Department.

In the first place the appointment of the officers of the court, below the judges, should be left entirely with such a Department. The Attorney-General has recently complained of his lack of power to compel these court officers to be diligent and economical in the discharge of their duties. The district attorney and marshal for one of the districts of Arkansas were found to have squandered the public money in a most reckless manner-in a manner which rendered their prompt removal from office not only desirable, but necessary. The Attorney-General has no power to remove them. He can only expostulate and refuse to send all the money they ask for. Through the

influence of a senator and a few other politicians they are kept in office. This is but one illustration.

Nothing can be clearer than that the judicial power should be independent-that it should be kept apart from the legislative and executive. "There can be no liberty," says Montesquieu, "unless the judicial power is separated from the legislative and executive." But there can be little danger to liberty in having the great body of judicial officers under the management of one Department. Certainly the inferior officers the commissioners, registers in bankruptcy, marshals, district attorneys, etc.—should be under the supervisory care of a thoroughly-organized Bureau. The present lack of accountability and control on the part of these officers is unwise, and leads to much confusion, if not to malversation.

Again, a properly-established Department of Justice ought to be an efficient aid in devising and carrying out reforms in the law, and in supervising the drafting of important public acts. Our machinery of legislation is wofully defective in the matter of drafting bills. A Bureau or Department of Justice should contain a staff of draughtsmen competent to perform this duty skillfully. This would prevent the re-occurrence of many disgraceful pieces of botching and patchwork to be found in the statute books.

CURRENT TOPICS.

Much has been said of the tendency of the elective system to make judges "time-servers," but, if we may judge from the action of Mr. Justice Gilbert, in committing, for contempt, an editor of the Tribune, we should say that this tendency has been greatly overrated, if it exists at all. Judge Gilbert is a candidate for re-election, and must have known that the commitment of Mr. Shanks would draw upon him the anathemas not only of the Tribune, but of the entire press always jealous of any interference with what it imagines to be its rights; and his fidelity—in the face of all this- to what he conceived to be his duty in the case is worthy of all praise and all honor. However men may differ as to the propriety of the commitment, very few will be induced to believe that it was done in the interests of any "ring," or otherwise than in accordance with a clear sense of duty.

Although the Tichborne trial has extended over one hundred and twenty days the interest in it seems to be pretty well maintained, especially by Dr. Kenealy and the claimant's friends. Mr. Whalley, who, some time since, came to this country in pursuit of evidence, succeeded in finding a witness whose evidence, given last week, created quite a sensation. This witness was named Jean Luie, and claimed to have been the steward of the Osprey at the time that vessel picked up the survivors of the wrecked Bella. Mr. Luie swore very positively that the claimant was one of the survivors, and that he continued with the