Open main menu

Page:Popular Science Monthly Volume 54.djvu/69

This page has been proofread, but needs to be validated.
53
THE EVOLUTION OF COLONIES.

sive delegations of this power repeat the necessary concessions that created the English judiciary. Side by side with the royal prerogative grew up a popular jurisdiction which developed into the jury; and it would be worth while to compare the acquisition of this constitutional right (for example, in Connecticut and New South Wales) with its history in England. Out of this element, and also as a corollary from the election of a governor who was chief judge, came the practice of electing judges in the North American colonies. It was by no means confined to the charter colonies. Nowhere was the determination toward an elective judiciary more noticeable than in Pennsylvania, whose proprietary was its feudal sovereign. It may be historically explained from the corrupt and servile judicature of the age when these colonies were founded. The attachment to the old system in contemporary British colonies may also be explained from the very different point in the history of the mother country when they were given off, when the talent, the purity, and independence of the bench had become the pride of Englishmen, and the judges were Baconian in everything but the taking of bribes. The English and (naturally in a far less degree) the colonial courts still show traces of their royal origin in the antiquated wig and gown, the arrogance of the judges, their haughty point of honor—"contempt of court," and their aristocratic bias. These are counterbalanced by the increasing strength of the popular element. A hopeful bill was a few years ago introduced into a colonial legislature restraining judges from commenting on evidence. A mere act of Parliament would have as much effect on lawyers' loquacity as Mrs. Partington's mop had on the Atlantic. It is, nevertheless, in the direction of restricting the powers of the judges that the more radical colonies are moving. In one southern community certain causes may be tried by a judge with a jury of four, who will probably rise into assessors, and in another that important step is possibly on the point of being taken. The courageous Premier of South Australia, who lately defied the entire English medical profession, has now taken in hand his own not less formidable guild. He proposes that "in proceedings under certain acts the bench is to consist of a judge of the Supreme Court with two lay assessors, one appointed by each party to the suit"; and counselors are peremptorily excluded from such proceedings. In certain other cases litigants may submit statements of their differences to judges who will adjudicate without the intervention of counsel. Thus the same middle point may be reached from opposite termini. A series of levelings down may bring judicatures of royal origin to the same stage as popular jurisdictions have reached by a gradual leveling up. The courts will then unite the majesty of the law, whose "voice is the harmony of the world," with