In Connecticut, justice is administered in causes of small amount by county courts, whose judges are chosen annually: and in larger causes, by superior courts. The latter are held semi-annually in each county by one of five judges, who also form the supreme court. They hold office during good behavior, or until seventy years of age: and have both law and chancery jurisdiction. The supreme court sits once a year in each county. I do not know what actual loss of valuable services Connecticut has suffered, by her rule which drives judges from the bench just at the juncture when their faculties are in many instances the most happily ripe for its functions: but, that she has lost and will lose, no one can doubt who remembers, that thirteen of the best years of Mansfield's judicial life, and fourteen or fifteen of Wythe's and Pendleton's, were after the age of seventy; and that such a rule would have deprived the United States' judiciary, ten years ago, of its present gigantic Coryphæus—confessedly one of the purest and most powerful minds that ever filled any judgment seat. But what heightened or adequate terms of censure can be found for the New York rule, which displaces every judge at sixty? A rule which prematurely discarded Spencer and Lansing; and which, for more than ten years, has made Kent employ the full vigor and maturity of his intellect in writing abstract treatises, and selling chamber opinions, instead of going on as he had begun, to build up for his state a system of jurisprudence hardly inferior to that which Mansfield reared for England?
In Massachusetts, are some very striking peculiarities. The supreme court, consisting of four judges, sits once a year in each county, to decide questions of law, in the last resort. Some one of these judges, besides, holds annually a Nisi Prius term in each county, to try appeals from an inferior grade called "courts of common pleas," original suits in chancery, and upon the bonds of executors and administrators. The appeals to them from the common pleas, are as to both law and fact: a jury being empanneled, witnesses examined, &c., as if it were an original proceeding. The latter courts are held twice a year in each county, by some one of four judges; who hold office (like those of the supreme court) during good behavior. They have cognizance of all causes, except what I shall designate as vested elsewhere.
Presentments and indictments for all offences, are found only in the common pleas; where, also, they are tried—except in capital cases. These, after the indictment is found, are certified and removed from the common pleas to the supreme court; at whose bar the culprit is tried by a jury: a special term being held on purpose, in any county where the judges are notified that a prisoner awaits trial for life or death. En passant—though eight crimes are, by the laws of Massachusetts, punishable with death, only twenty-six persons in the whole state have been capitally convicted, in thirty years! The number of trials (I do not exactly remember it) bears an immense disproportion to the number of convictions: so immense, as to prove that either an undue severity in the laws, or the unreasonable and too common lenity of juries, aided by the overwhelming superiority of defending advocates—or (what is most probable) all three causes together—have well nigh made those laws a dead letter. Prosecutions are conducted by district attorneys, of whom there are four in the state; each prosecuting within his allotted district. In the supreme court, however, the attorney general is counsel for the commonwealth.
Chancery, or equitable relief, is rarely sought in the Massachusetts courts. Indeed it was unknown, until, within a comparatively recent period, two or three statutes empowered the supreme court to administer it, in a very few specified cases—mortgages, trusts, accounts between partners and co-executors, waste, nuisance, and two or three others: omitting the fruitful subjects of fraud, accident, dower, et cetera—and especially the sweeping power to relieve wherever there is no remedy at law—subjects which, by the multiplication of cases, have made our chancery, like that of England, the dormitory if not the grave of justice. And even as to the few specified subjects of jurisdiction, those statutes rigidly restrict the relief to cases in which there is not a plain and complete remedy at law. Before these enactments (and since, too, in cases without their scope,) the rigor of the law was mitigated only by the sense of justice in juries; and by sundry expedients—curious enough, to Virginian eyes—which seem to have left few wrongs unremedied. For instance—if I am unjustly cast in a trial at law, by accident or surprise, or for want of testimony which I did not know of till the term was over; not a bill of injunction, but a petition to the judge in vacation, within a limited time, will procure me a new trial. If my debtor fraudulently dispose of his property; instead of a bill in chancery to ferret out the fraud, I may have, along with my execution (if I have obtained judgment) a summons to the colluding purchaser as garnishee, to disclose orally on oath, in open court, what effects he has, of the debtor.
Roads are laid off by a board of commissioners, established for that purpose in each county; and invested with judicial powers, in controversies on the subject.
The probat of wills, the granting of administrations, the appointment of guardians, and the supervision of the accounts and conduct of guardians, executors, and administrators, are confided to an officer, called the Judge of Probat, appointed in each county for those purposes only; and holding his court monthly, in several convenient places of the county, to hear motions and decide disputes on those subjects. His records and proceedings are kept by a distinct clerk, called the Register of Probat; and an appeal lies from his decisions immediately to the supreme court. We, in Virginia, sorely need some tribunal like this; specially charged with the interests of widows and orphans.
Equally worthy to be copied, is the Massachusetts mode of constituting juries. Lists of all persons qualified to serve, are kept by the town-clerks; from which, just before a court, the town quota of jurors is drawn by lot: and no one is compellable to serve oftener than once in three years. They are paid for their service. Against juries thus formed, I heard no complaints, of partiality, corruption, or undue ignorance. They receive a compensation, which at least defrays their reasonable expenses; and if there be still some burthen, it is borne equally by all, and recurs at such long intervals, as to be absolutely unfelt. How different is our plan, of sending out the sheriff just before a trial, to gather in the sweepings of the court-yard! Suitors and witnesses, attending perhaps for the tenth time, in hopes of having their causes determined—strangers from other counties, nay, travellers from other states—tipplers from the tavern porch—the nearest merchants, mechanics, and farmers, torn suddenly and capriciously from their employments—such is the medley, produced by a system as oppressive to most of the jurors themselves, as it is subversive of the important ends for which they are empanneled. One is really tempted to believe, that in adhering so pertinaciously to a system so obviously defective and so easily remedied, our statesmen have been governed by a fixed design to bring jury-trial itself into disrepute.
Wiser in another respect also than we, these "Bay folk" have no courts (except for cases of twenty dollars or less) held by men who have not themselves studied the science they are to expound: no parallel to our county courts—those crack tribunals of some great men, whose admiration arises either from the want of intimate knowledge—they having ranged generally in a higher sphere—or from their enjoying over that bench an influence, flattering to their vanity, and blinding to their judgments. How long will the public attention sleep—how long will the hand of reform be palsied—when will an attempt be made to cure the unfitness of these courts for the weighty, multifarious, and difficult functions entrusted to them?—the ludicrous, if it were a less mischievous, uncertainty of their decisions, owing to their ignorance of any fixed rules by which to decide?—the delays, so fatal to justice, that attend their unsteady ministration?—the ruinous accumulation of costs, besides harassment and loss of time in dancing attendance upon them through years of litigation?
The Massachusetts and Connecticut plan, of an itinerant supreme court, cannot be commended to imitation. The common arguments, of bringing justice home to the people, and enabling suitors to see in person to their causes, are not pertinent, where the whole case is contained in the record; where no witnesses are to be summoned or examined—no counsel to be instructed in the cause. Then, the loss of time in travelling, and the want of so extensive a library and so able a bar, as would be formed if the court sat always in one place, must essentially impair the correctness of its decisions, and lower the superiority of its intellect.
The common-law of England is made the basis of Massachusetts law, not, as in Virginia, by a legislative declaration that it shall be so, but by adjudications of the courts, recognizing and adopting it as such. By a still bolder stretch, the courts have acknowledged as generally binding, English statutes made in amendment of the common-law—not only before, but since the foundation of the colony: nay, the terms of the decision do not exclude English statutes subsequent to the American revolution. This comprehensive grafting of a foreign code upon the domestic, not by professed and authorised law-givers, but by mere judges, is perhaps one of the most remarkable instances of judicial legislation, any where to be found: and must have arisen from a licentious spirit of construction, which, when it acts upon written laws, may naturally be expected to make them mean almost any thing that the interpreters choose.3 The admirers of an unwritten law, reposited in the breasts of judges and to be sought only in precedents and decisions, may vaunt, if they will, its happy elasticity, dilating and contracting to fit every conceivable emergency: but I doubt if (among other evils) it does not nurture habits of latitudinous interpretation, destined to be well nigh fatal to one of the great boasts of modern times—written forms of government. Minds accustomed always to make the law adapt itself to the particular occasion; to regard that as law, which the immediate case requires; naturally fritter away constitutions with as little ceremony, as children demolish or alter their sand houses and dirt pies.