quently degenerate into mere ordinary political or personal scrambles much below the dignity of the judicial office, thereby considerably lowering it in the public regard, with incapable and unfit men in some instances offering and being elected by the means of such methods as such men are the more apt to use, and (2) that local questions and temporary passions, and interested combinations, social, political or commercial, may deter a judge or else humiliate him by defeat. The first of these objections is met by providing that the candidate shall be examined on all the elements of his fitness. While this is not essential at all to the plan, we do suggest it in all seriousness and point to examples of such modern and enlightened principle as are already in use with us in reference to candidates for bank examiners and superintendents of education. If important as to those purely administrative officers, how much more so to those who pass judgment not only upon the property rights of our people, but even upon their very lives and liberties. It will be observed that ample provisions are suggested to secure entire impartiality and justness of decision on these examinations. There could certainly be no objection to the arrangement on the part of any candidate who really possessed, and was conscious of possessing, the suitable qualifications, and who being fit should be, and would be, willing to put the same to a test. In fact only fit men would offer,—the unfit would not appear for an examination. It is further provided that the Judicial Council shall prescribe and enforce general rules and regulations for the conduct of judicial campaigns and for the promotion of the dignity and integrity thereof. These two proposals simply would furnish additional means, by which the courts themselves, through the aid and agency of an authoritative and representative central head could be allowed, and could have the power, to work out their own salvation. The public expects, and rightly expects the courts to be above ordinary politics and political methods, and to exhibit a higher quality of honorable and efficient service, and yet the full means by which they are to attain to the high standard is withheld from them. Lawyers should continually call attention to these things.

The second objection is taken care of as hereinbefore alluded to by the enlarging of the circuits for election to six in the whole state, thereby getting the judges beyond any mere locality or provincial section and any evil punitive powers therein, and yet not making the area so large that the people therein may not have full opportunity to know the men that offer, and the separation of judicial elections wholly from any other precludes such evils as swapping and to a great extent the injection of factional politics therein. As to the district judges the second objection is not eliminated entirely. But the taking away from them of the liquor litigation and the fact that no large questions of general public interest will be before them and no cases of sufficient individual importance as to arouse any combined animosity greatly weakens its force. The people in the small territory of the district courts would know each candidate, his life, character and ability without the necessity of any extended campaign, and the extremely objectionable feature of a judicial candidate making in these small districts a house to house button-holing campaign could be eliminated by the proper regulations prohibitive thereof to be provided by the Judicial Council as aforementioned. And again, the whole matter is still further safeguarded against any egregious error in selection by the provisions for removal in intolerable cases by the Judicial

Council by a five to seven vote thereof, for causes shown. The elective principle possesses certainly one advantage and that is that the people will be unlikely, and it will be unusual, to remove a satisfactory judge, as has been the general experience wherever the plan is in operation. It will give greater permanency and stability in the personnel of the courts. Under the appointive system with us, faithful and efficient judges were removed to give place to political or personal preferences, and the Supreme Court has entirely changed in personnel several times within a period shorter than the term of one judge in some states,—a condition which is extremely objectionable especially in a court of last resort.

There is so much of merit in the appointive system, however, when not excessive power as to the number of appointments is granted to any one man, that undoubtedly a small portion of it ought to be preserved in any highly efficient judicial system. A combination of the elective and appointive systems, the former predominating, would produce results superior to either alone. We have suggested therefore such a combination and to that end, have suggested that the judges of the chancery division of the Circuit Court be appointed by the chief justice, who on account of the large measure of responsibility placed upon him for the workings of the department, and because of his superior means of knowledge of the qualifications of lawyers and judges, should exercise this function. There are many able lawyers whose services on the bench the state would be most fortunate to secure, who would under no conditions offer at an election. There are many whose habits of life and study are such that they possess not a particle of political capacity and who could not be elected. The state ought not to be cut off from the chance to secure the services of some few such men. These are usually just the character of lawyer who would most admirably meet the demands of the laborious service of the chancery division. That court is such, that few of the people attend it or have an opportunity to observe or know the judge. It is by no means a people's court, while on the other hand the judges of the law division of the Circuit Courts and of the District Courts with the attendance of juries and numerous witnesses before them, would be to a large measure at all times under close, general, public observation.

This combination of the elective and appointive plans would tend furthermore and greatly to get better results both in the elections and in the appointments. The people would no doubt take that pride and thought and care on the subject that the men elected by them should not be inferior generally to those appointed, and the appointing power would most certainly be extremely diligent and careful that his appointees should not rank in ability and character below those elected, each knowing that if in the end one continued to fall behind the other it would have to go by the board and the power be surrendered.

Some further of the appointive system has been suggested to be preserved in the filling of all vacancies by appointment by the Chief Justice by promotion. This is for the purpose (1) of avoiding special elections of which the people have had, and are having too many, and of which they are becoming exceedingly tired and are taking little interest, (2) because at such special elections there being generally several candidates there is election by mere plurality, which may be accidental, or even unfortunate, (3) for the inducement that such chance of promotion would present to good material to offer for circuit and district judges,

particularly the latter; (4) because it is better to promote an experienced judge than to select an entirely new man; and (5) to further relieve these appointments to some extent from our previous curse of mere politics in such matters.

D

We note also the amplification of the powers of the general court vested in this Judicial Council and the powers of such Council to make, alter, amend and promulgate all rules regulating the pleading, practice and procedure in all the courts. There is a provision that the legislature may repeal any such rule in whole or in part, provided it has been given two years' trial in operation.

E

We note further the short term idea for the Chief Justice of four years.

We note further that removal is to be by impeachment or a two-thirds vote of each branch of the legislature, except as to the judges of the second and third divisions who may be at any time removed "by at least a five to seven vote of the Judicial Council for (a) inefficiency, or (b) incompetency, or (c) neglect of duty or (d) conduct unbecoming a judge."

There is also provision for justices of the peace and permission to the legislature to establish municipal criminal courts and quasijudicial tribunals. Any reader of our report who desires to examine the reasons proffered by the Mississippi Bar Association, whose address unfortunately is not appended to the report, can doubtless secure a copy of such report from the printers, Hederman Brothers, Jackson, Miss., or Herbert Harley, Secretary of the American Judicature Society, 31 West Lake Street, Chicago, Ill.

F

We notice that in providing for the division for the trial of causes not exceeding $500 in amount, the Mississippi Bar Association has commented as follows upon the English system which we have so strenuously advocated, in respect of the scheme of masters:

One of the reasons why the trial courts in England have been able to handle, with a few judges, such an enormous number of cases per year, is because all noncontested cases are disposed of and all preliminary matters of pleadings, etc., are heard and made ready, by registrars, referees, masters, etc., who are learned in the law,

And it is to be noted that this division of courts of small jurisdiction, called "District Court," in the Mississippi plan, corresponds to the County Court scheme in England. In the debates that preceded the New York Constitutional Convention in 1915, it was urged with considerable force, and with the most sincere conviction in the upper part of the state, that the people would not consent to the abolition of the Surrogates' and County courts for the reason that they were locally accessible; that even though the judges presiding over these courts were not always men of supreme court calibre, yet they were of the vicinage, they were the confidants of the community and that if they committed errors of law, their acts were readily reviewable. The trouble with this criticism was that it assumed that, if the courts were taken up into a general court, the present scheme of differentiating between the Supreme Court with its terms and judges, and the County and Surrogates' courts with their terms and judges, would come to an end, and the people would be remitted to terms and sessions of a court not corresponding to that with which they were familiar. This begs the whole question and is far from being the purpose of the unification of the courts. For, if the Surrogates' Court of a particular county is taken up by this amendment into the Court of the State, nevertheless, the Surrogate or County Judge presiding, is also taken up into the judicial system, which contemplates a divisionalization of the jurisdiction of that court and an immediate and continuous assignment of that particular functionary to the same duties he has been discharging with the most important modification and development that in any matter coming before him for cognizance, he can exercise at law or in equity the plenary powers of the unified court into which his court has been taken up and assimilated.

G

In connection with our discussion of one or more appeals, it is interesting to note the general purpose of the Mississippi plan "to eliminate more than one trial in the court below and the delay and expense of two trials, where the lower court is presided over by a judge learned in the law," that is to say, that appeals are duplicated only where taken up from a quasi-judicial tribunal or a justice of the peace, or district judge. Consequently from any divisional part of the unified court other than these, the appeal is direct to the

division of final appeal. Your committee has no quarrel with this device.

H

With regard to the method of selection of judges, we note that the Mississippi plan contemplates that with the exception of the chief justice, who is to be elected from the state at large, the associate judges and justices are to be elected territorially from within the various circuits and contiguous territories which are to be created by the Judicial Council, but we note this extract from the report with regard to the question of candidacy for judicial office:

The size of the present Supreme Court districts, each covering one-third of the state deter all but a few from indulging in any active ambition towards the Supreme bench. Lawyers do not now practice over many counties as in years past. An able lawyer in one county may be almost unknown to the people at large in a distant part of one of our present Supreme Court districts. To make now such a canvass as is necessary to become generally acquainted means the abandonment for months of their practice which few can either afford or will risk.

Then, after discussing the question of the territorial arrangement of the circuits for the more important judicial offices, this proposition is set forth, which bears, we think, adversely on the question of the propriety of election to judicial office:

It can well be apprehended that there is more than one circuit in the state at present where certain influences, or certain combinations, especially in those containing a large town or city, may hold the balance of the voting power, and put a judge in fear unless he do or omit to do as it shall be brought to his understanding that he is expected. This is obvious and need not be dwelt upon. So being it must be safeguarded everywhere possible.

PART TWO-SUGGESTIONS FOR A SHORT PRACTICE ACT

From the foregoing suggestions with regard to matters of sufficient permanent importance to be set forth in a Constitutional Judiciary Article, we pass to the second stage of this report, i.e., what matters of procedure may properly be left to the control of the legislature as representing the people rather than committed to the courts for their regulation and development from time to time, that is to say, what ought a Short Practice Act to contain in contradistinction to rules of court.

From one point of view this is the most difficult task before the bar. It may be that the American Judicature Society has so con