Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
One of the most noteworthy of political changes that have occurred in
the republic since the adoption of the Constitution in 1789, is that
affecting the election and tenure of office of judges. Smith, in his
book on American State Constitutions, published shortly after the
Revolution, tells us that at that time every State in the Union had
its judges appointed by the executive for a life term. To-day, this
principle survives only in the Federal courts and four States,
New Hampshire, Massachusetts, Maine, and Delaware, although in
Connecticut, New Jersey, and Mississippi, the judges of the highest,
or Supreme Court, are still appointed in this manner and for life. In
Vermont, Rhode Island, Virginia, and South Carolina, Supreme Court
judges are elected by the two houses of the legislature in joint
convention, but in all other States, that is, universally in the West
and Southwest, the judges are elected by the people of the States or
of their respective districts. New York and Pennsylvania, however,
have very long terms, which by some is said to combine the advantages
of both systems; in other States the term is from four to six years.
In matters judicial the field is far too vast to permit more than
briefest mention of the most important lines of popular legislation.
In the first place, common law and chancery jurisdiction are very
generally fused and confounded. A few States still have chancellors
entirely distinct from the common-law judges, and Massachusetts and
a few other States still keep chancery terms and chancery procedure
distinct from the common law. It is certainly a curious result that
the historic jealousy of chancery and all its works should have ended,
in the most radical States of the Union, in their complete adoption of
the whole system of chancery with all its concomitants. As a result,
the injunction writ, originally the high prerogative of the crown and
its highest officers, has now become the weapon of all judges, even
in some States of inferior magistrates, and has been used with a
confusion and recklessness that have gone far to justify the complaint
of labor interests.
On the other hand, we have grown less jealous of preserving our
common-law jury rights. Not only is much more provision made for the
waiver of jury trial in all States, at least in criminal cases,
and for a trial by the court without a jury unless it be specially
claimed, but there is a distinct tendency to have juries less
than twelve in number, and verdicts not unanimous, but made up of
three-fourths, two-thirds, or even a simple majority; while our
indifference to common-law rights shown in our multiplication of
boards and commissioners has already been commented on.
Public-domain text, read in full here on John Shaqi.
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