and the county, city, and township governments on the other, is not wide. It is ill-paid, for the State legislatures, especially in the West, are parsimonious. It is seldom well-manned, for able men have no inducement to enter it; and the so-called "Spoils System," which has been hitherto applied to State no less than to Federal offices, makes places the reward for political work, i.e. electioneering and wirepulling. Efforts are now being made in some States to introduce reforms similar to those begun in the Federal administration, whereby certain walks of the civil service shall be kept out of politics, at least so far as to secure competent men against dismissal on party grounds. Such reforms would in no case apply to the higher officials chosen by the people, for they are always elected for short terms and on party lines.

Every State, except Oregon, which is content to rely on the ordinary law, provides for the impeachment of executive officers, and usually of all such officers, for grave offences. In all, save two, the State House of Representatives is the impeaching body; and in all but New York the State Senate sits as the tribunal, a twothirds majority being generally required for a conviction. Impeachments are rare in practice.

There is also in many States a power of removing officials, sometimes by the vote of the legislature, sometimes by the governor on the address of both houses, or by the governor alone, or with the concurrence of the Senate. Such removals must of course be made in respect of some offence, or for some other sufficient cause, not from caprice or party motives; and when the case does not seem to justify immediate removal, the governor is sometimes empowered to suspend the officer, pending an investigation of his conduct.

CHAPTER XLII

THE STATE JUDICIARY

THE Judiciary in every State includes three sets of courts:-A supreme court or court of appeal; superior courts of record; local courts; but the particular names and relations of these several tribunals and the arrangements for criminal business vary greatly from State to State. We hear of courts of common pleas, probate courts, surrogate courts, prerogative courts, courts of oyer and terminer, orphans' courts, court of general sessions of the peace and gaol delivery, quarter sessions, hustings' courts, county courts, etc. etc. All sorts of old English institutions have been transferred bodily, and sometimes look as odd in the midst of their new surroundings as the quaint gables of a seventeenthcentury house among the terraces of a growing London. suburb. As respects the distinction which Englishmen used to deem fundamental, that of courts of common law and courts of equity, there has been great diversity of practice. Most of the original thirteen colonies once possessed separate courts of chancery, and these were maintained for many years after the separation from England, and were imitated in a few of the earlier

1 Admiralty business is within the exclusive jurisdiction of the Federal courts.

among the new States, such as Michigan, Arkansas, Missouri. In some of the old States, however, the hostility to equity jurisdiction, which marked the popular party in England in the seventeenth century, had transmitted itself to America. Chancery courts were regarded with suspicion, because thought to be less bound by fixed rules, and therefore more liable to be abused by an ambitious or capricious judiciary.1 Massachusetts, for instance, would permit no such court, though she was eventually obliged to invest her ordinary judges with equitable powers, and to engraft a system of equity on her common law, while still keeping the two systems distinct. Pennsylvania held out still longer, but she also now administers equity, as indeed every civilized State must do in substance, dispensing it, however, through the same judges as those who apply the common law, and having more or less worked it into the texture of the older system. Special chancery courts were abolished in New York, where they had flourished and enriched American jurisprudence by many admirable judgments, by the democratizing constitution of 1846; and they now exist only in a few of the States, chiefly older Eastern or Southern States, which, in judicial matters, have shown themselves more conservative than their sisters in the West. In three States only (New York, North Carolina, and California) has there been a complete fusion of law and equity, although there are several others which have provided that the legislature shall abolish the distinction between the two kinds of pro

2

1 Note that the grossest abuses of judicial power by American judges, such as the Erie Railroad injunctions of Judge Barnard of New York in 1869, were perpetrated in the exercise of equitable jurisdiction. Equity in granting discretion opens a door to indiscretion, or to something worse.

2 Distinct chancery courts remain in Delaware, New Jersey, Vermont, Tennessee, Alabama, Mississippi, Michigan.

VOL. II

I

cedure. Five States provide for the establishment of tribunals of arbitration and conciliation.

The jurisdiction of the State courts, both civil and criminal, is absolutely unlimited, i.e. there is no appeal from them to the Federal courts, except in certain cases specified by the Federal Constitution (see above, Chapter XXII.), being cases in which some point of Federal law arises. Certain classes of cases are, of course, reserved for the Federal courts and in some the State courts enjoy a concurrent jurisdiction.1 All crimes, except such as are punishable under some Federal statute, are justiciable by a State court; and it is worth remembering that in most States there exist much wider facilities for setting aside the verdict of a jury finding a prisoner guilty, by raising all sorts of points of law, than are permitted by the law and practice of England. Such facilities have been and are abused, to the great detriment of the community.

One or two other points relating to law and justice in the States require notice. Each State recognizes the judgments of the courts of a sister State, gives credit to its public acts and records, and delivers up to its justice any fugitive from its jurisdiction charged with a crime. Of course the courts of one State are not bound either by law or usage to follow the reported decisions of those of another State. They use such decisions merely for their own enlightenment, and as some evidence of the common law, just as they use the English law reports. Most of the States have within the last half century made sweeping changes, not only in their judicial system, but in the form of their law. They have revised and codified their statutes, a carefully corrected edition whereof is issued every few years. They have in many instances 1 See Chapter XXII. ante.

adopted codes of procedure, and in some cases have even enacted codes embodying the substance of the common law, and fusing it with the statutes. Such codes, however, have been condemned by the judgment of the abler and more learned part of the profession, as tending to confuse the law and make it more uncertain and less scientific.1 A warm controversy has lately been raging in New York on the subject. But with the masses of the people the proposal is popular, for it holds out a prospect, unfortunately belied by the result in States which, like California, have tried the experiment, of a system whose simplicity will enable the layman to understand the law, and render justice cheaper and more speedy. A really good code might have these happy effects. But it may be doubted whether the codifying States have taken the steps requisite to secure the goodness of the codes they enact. And there is a grave objection to the codification of State law which does not exist in a country like England or France. So long as the law of a State remains. common law, i.e. rests upon custom and decisions given by the judges, the law of each State tends to keep in tolerable harmony with that of other States, because each set of judges is enlightened by and disposed to be influenced by the decisions of the Federal courts and of judges in other States. But when the whole law of a State has been enacted in the form of a code all existing divergences between one State and another are sharpened and perpetuated, and new divergences probably created. Hence codification increases the variations of the law between different States, and these

1 This is perhaps less true of Louisiana, where the civil law of Rome, which may be said to have been the common law of the State, offered a better basis for a code than the English common law does. The Louisiana code is based on the Code Napoleon.