we shall find the great qualities of another O'Neal and of other Wardlaws; of another Richardson and of other Johnsons; of another Evans, another Earl, and another Butler; of another DeSaussure and another Cheves; of another Dunkin and another Dargan; of another Withers and another Whitner; of another Inglis and another Carroll; of another Glover and another Munro; let the column rise, and without being invidious, may we not hope to find again a fitting capstone to adorn its summit in another William Harper?

IMPORTANCE OF A SEPARATE ORGANIZATION OF THE

CRIMINAL COURTS OF THIS STATE.

AN ESSAY

READ BEFORE THE SOUTH CAROLINA BAR ASSOCIATION, AT COLUMBIA, S. C., DECEMBER 9TH, 1885,

BY

W. W. HARLLEE.

The delays and expense attending the administration of the law in the Civil and Criminal Courts of the State have given rise to no inconsiderable comment and complaint, not only in the profession, but among most of our thinking and observing citizens, and are still the subject of anxious consideration to the public generally; and various suggestions and propositions have been submitted to meet the desired correction.

It is proposed now, in the brief space allowed for such a discussion, to submit in a practical way the question of "a separate organization of the Criminal Courts of the State," by which is not meant that the jurisdictions of the Criminal and Civil Courts are not now preserved in practice as distinct, but to insist that the Criminal Courts should be disconnected from the Civil, both as to the Judges and to times of holding them, making the circuits sufficiently large that the business of the Courts can be disposed of by a less number of Judges, and then by giving to those presiding over the Civil Courts ample time to transact the civil business with a dispatch which will not only avoid the delays, but diminish the expense of the system as it is.

The constitutional authority for such a change is the first question which presents itself, and that will be considered.

Section 1, Article 4, of the Constitution provides that, "The judicial power of this State shall be vested in a Supreme Court,

in two Circuit Courts, to wit: a Court of Common Pleas having civil jurisdiction, and a Court of General Sessions with criminal jurisdiction only."

Section 13. "The State shall be divided into convenient circuits, and for each circuit a Judge shall be elected by joint ballot of the General Assembly."

Section 16. "The Court of Common Pleas shall sit in each judicial district twice in every year, at stated times and places as may be appointed by law," &c., " and shall have jurisdiction in equity causes," &c.

Section 18. "The Courts of General Sessions shall have exclusive jurisdiction over all criminal causes, not otherwise provided by law. It shall sit in each County in the State at least three times in each year, at such stated times and places as the General Assembly may direct."

From these provisions it may quite as reasonably be inferred that the intention of the convention was that separate Judges, as well as separate criminal circuits, should exist, as is provided for in the present system, for they are designated as one of the Circuit Courts, and the times of meeting are for at least three terms in each year, while the Court of Common Pleas is only required to meet twice in each year.

It is believed that it can be safely affirmed that there is no inhibition in any of the clauses in the State Constitution to divide the State by Act of the Legislature into distinct circuits for the Criminal Courts, as being fewer in number, as herein proposed, they need not embrace the same territory, and cannot be held as being obnoxious to Section 13, Article 4, providing for the State being "divided into convenient circuits" and the election of one Judge for each. There is no inconsistency or incompatibility in electing one Judge for the Court of Common Pleas for circuits for the Civil Courts and one Judge for a circuit for Criminal Courts, notwithstanding that each of the same circuits may embrace parts of the same territory.

Previous to the adoption of the present constitution there were six Judges for the Courts of Common Pleas and General Sessions, and four Chancellors, making ten in all. There were then six circuits, embracing Courts of Common Pleas and General Sessions, and the four Chancellors held all the Courts in the several circuits as distinct Courts of Equity.

The population subject to the jurisdiction of these Courts was white exclusively, except in certain unimportant particulars. The course of events has added to these Courts about a half million of population, subject to the same laws, and entitled to the same protection, rights of person and property, as well as responsibility for offences against the law; and yet there are but eight Circuit Judges to do the work of ten before 1868, with double the population subject to their jurisdiction. It may, therefore, not be a source of surprise that delays, attended with expense, should exist, especially on the civil side of the Court, which embraces both common law and equity jurisdictions.

To those who are conversant with the workings of the present system it cannot but be apparent that the holding in one stated term of the Criminal and Civil Courts is the cause of much delay, and, of course, time is an important element in an economical point of view, for the pay of jurors, witnesses and other officers of Court is, to a great extent, governed by the time occupied by the Courts, and in criminal causes especially the Counties have to foot the bills.

On the civil side of the Court the complaint of delay is more serious, and there is more cause for it; but it cannot be questioned that citizens on that side of the Court, who principally pay the taxes for the support of the government, are entitled to at least as much consideration from the government, inasmuch as the rights of property are chiefly involved in the litigation there; and they certainly ought to be as much favored as the malefactors who are tried for the commission of crimes, whereas they are the unfortunate class who are postponed from time to time, and often subjected to tedious and expensive litigation, for the reason that criminal causes in the Court of General Sessions are first to be disposed of.

The law as it stands provides for a certain length of time for the Courts of General Sessions, and properly so, as the jurisdictions, though administered by the same Judge, are distinct, and must be preserved. Hence it follows that all civil business, as before stated, has to be postponed until the adjournment of the Court of General Sessions, whether for three days, or, as in some instances, for the whole term, when it necessarily goes over to a succeeding term of the Court, unless, as is sometimes the case, an extra term is called, generally at times unsuited to the trans

action of business, and often little done; but the costs and expenses accumulate.

The duration of the time occupied in criminal causes being uncertain, the members of the Bar are driven necessarily to the formation of a roster for civil business, especially in jury cases; but it often happens that the Court of General Sessions ends before the time set for jury trials on the Common Pleas Docket, thereby detaining the juries and increasing the expenses to the Counties to no inconsiderable extent, as well as expense and costs to litigants. Besides, it often happens that from accidental causes the assigned cases cannot be heard on the days appointed for them, when they have to be continued or go over to the next day, postponing litigants and witnesses in other causes to an almost indefinite extent. Such are not uncommon occur rences in the experience of the writer, and the delays and expenses in meritorious causes often amount to a practical denial of justice, even to successful litigants.

The equity causes are heard at the conclusion of jury trials, and in large Counties, with accumulated litigation in the Criminal and Common Pleas business, both the presiding Judge and counsel are wearied, and often unable to do full justice to these causes which before were heard at separate stated terms by Chancellors of the Equity Courts, and decided promptly.

Time will not admit to urge other objections or details, but it is submitted that enough has been said to show that a change which will obviate the present obstructions in the administration of justice is desirable and essential; and the necessity of some legislation looking to a remedy, has led many to propose. various modes of meeting the difficulty.

Some advocate the establishment of County Courts with a Judge for each County; others a County Court with Trial Justices; and others the addition of two or more additional circuits and the election of Judges for them.

1. As to a County Court with a Judge for each County. It is submitted that no warrant can be found in the constitution for such a tribunal, as the constitution provides for "Circuit Courts with criminal jurisdiction only." Sec. 1, Art. 4, as above quoted.

2. Justices of the Peace, for whom Trial Justices are substi