form of government is that given in the Livingston Code: "Law is an expression of the legislative will"—that is, an embodiment of the people's wishes, expressed by delegated authority. Now, by what act of legislative power have the people consented to recognize the arbitrary rules and maxims of law as binding, which were enacted by the Roman emperors fourteen centuries ago? Nowhere have our statutes which contain the legitimate law of the country expressed an adoption of the codes of the Dark or Middle Ages, yet these codes are regarded by our courts as authoritative and the rights of persons and of property are subjected to their provisions. Is it not an exercise of arbitrary power to subject the people to rules of action which they do not understand, and to laws which they nor any representatives of a free government ever had an agency in creating? One of the most able American expounders of law says: "As laws cannot be obligatory without being known, they must be promulgated by the state." Will we recognize the truthfulness of this principle in theory and repudiate it in practice? Chancellor Kent enumerates 648 volumes of British reports, digests, and commentaries, besides some four hundred volumes of other British and Irish law works, which are proper for an American law library. Now has this ponderous mass ever been promulgated by the state? Do the people know anything of the rules and decisions contained in this vast pile of legal confusion, by which their rights are to be adjudged in our courts?

As no possible good can be derived from the use of pleadings as now practiced in the courts, but, on the other hand, as they are a prolific source of mischief, we hope to see the courts of Wisconsin Americanized and republicanized under our new constitution. Pleadings should be made brief, clear, and distinct, and understood by all. It should be considered as disgraceful to express a falsehood in court as anywhere else. The practicability of adhering to truth rather than fiction in matters before the court is clearly court demonstrable. The opening counsel usually in a short

space of time makes the court, jury, and bystanders fully understand the claims of his client, and the facts and proofs by which he intends to sustain them-he then quits the fictions, fancies, inferences, and abstractions of the law and states the real facts in a common-sense way like an honest man. But suppose instead of this verbal statement the written pleading should be read for the information of the court and jury. As well might the learned counsel read a chapter from the Koran or from the voyages of Sinbad the Sailor to enlighten the triers of the cause, as to the particular matter at issue. The written pleadings should in all cases be strictly in conformity with facts as near as possible, and intelligible to the court, jury, and parties. This portion of law proceeding, so vitally essential to securing the ends of justice, should not be permitted to remain in its voluminous, inaccessible, and incomprehensible condition; it should not be suffered to mystify and swell the expenses of litigation, while it affords no useful information to the court or parties. One prominent object which the friends of judicial reform are now everywhere seeking to obtain is the simplification of law, and rendering it plain and intelligible to all classes of the people. But how is it possible that this desirable object can ever be accomplished while the present unintelligible jargon of pleading is retained by the courts and forms a part of the judiciary system? The people never can become familiar and acquainted with it, and why should they be bound by it? Hon. Michael Hoffman, a prominent member of the present convention in the state of New York, remarks: "The evils growing out of the present written pleadings are great-too numerous to be detailed. They strike at the very justice and merit of the cause, create great expense and delays, and authorize and invite imposture, trick, and chicane. The books that teach this part of law, including the forms of pleading and notes on them, are very voluminous, and for their illustration require the study of many thousands of adjudged cases. To master them in any tolerable degree is the business of a whole life, and they are

utter obscurity to all except the professional adept." Again we ask, How is it possible to render law intelligible and its forms accessible to the people, if such be a true description? Hon. A. Loomis, also a member of the present New York convention, on the subject of pleadings holds the following language: "Let the party bring his action by a simple statement of facts which give him a right to demand redress before a tribunal of justice, whether it comes within class of cases in equity or at common law; no matter whether it be to recover damage for a trespass, or to collect a debt. When the defendant has made his answer and the evidence has been taken, the court can render judgment as the law applicable to the case requires. In order that the usefulness of the law may be extended and its benefits realized by all classes of men, let it be brought down from the clouds-disperse the awful mystery which surrounds it, and let men behold in it, not a dreaded tyrant, but a friend and protector, whose course is open and exposed to their observation and scrutiny."

Pleadings are the instruments of injustice as is continually being demonstrated in the courts; the plaintiff's rights are frequently made to depend upon a mere form of words and phrases. How often by oversight or accidental omission of a word in a declaration is a party thrown out of a just claim; sometimes the omission of a falsehood in a plea quashes the proceeding, leaving the unfortunate plaintiff to pay the costs and mourn the want of depravity in himself or his counsel, in that he was too scrupulous to tell a bigger falsehood. How common is it for criminals to escape merited punishment because of some flaw in the indictment. This strict adherence to technical forms benefits nobody but mischief-makers; but it does great harm by making bills of expense, protracting justice, and enabling scoundrels to run at large. It is astonishing with what pertinacity our judicial officers cling to technicalities; we recollect to have seen a statement in the Law Reporter not long since of an appeal brought before the superior court on the ground that the

court below had decided a certain indictment to be sufficient in which the word "malicious" had been omitted, and another equivalent word used in its place. The court above, after grave consideration, affirmed the decision of the court below, that the omission of the word "malicious" in the form did not vitiate the proceeding, inasmuch as other words having the same meaning had been used. This was regarded by some as a most wonderful stretch of power by the court! Such superlative fooling is scarcely credible, but it is only one of numberless instances of slavish adherence to technicalities, despite of reason and common sense.

MODE OF SELECTING JUDGES—No. 4

[July 7, 1846]

In our last article upon this subject we endeavored to show that the fears of many of the opponents of the elective mode that the election of judges would induce party favoritism in the administration of justice were groundless. We now propose to examine some of the arguments relied upon by the advocates of the elective mode.

They contend that the people have a right to select their own rulers in all the departments of government, are qualified to exercise that right, and that a resort to executive appointments or legislative elections for the choice of any portion of them is a denial of both. Now the truth is, and if we will take the trouble to analyze these different modes we shall find it so, that so far as the selection of men is concerned there is no great difference between them-the people, in their primary capacity having just as much to do with the selection under one mode as under another. We need not remind our readers that our government is not a democracy. It is throughout a republican system, barely set in motion by the operation of the democratic principle. The advocates of the elective mode sometimes ask, with an air of triumph which would seem to put an end to all cavil or

argument, Have not the people the right to select their own rulers, and are they not capable of doing it? We answer, Most assuredly they have both the right and the capacity, but at the same time the exercise of that right is, for the most part, impracticable. The people in their primary capacity do not select any of their rulers, except occasionally those possessing the most limited authority and local jurisdiction.

The people of a town may possibly assemble en masse and select their town officers, but even this is not always the mode of selection; at the very next step in the ascending scale the democratic mode becomes wholly impracticable. The people of a whole county cannot assemble for the selection of county officers, but must assemble by towns or the still smaller subdivisions of election precincts and select agents to do for them that which they have an unquestionable right to do, but which they cannot conveniently do for themselves to select candidates and determine whom they will have for officers.

As we ascend upon the scale of civil government to districts, states, and confederacies, the operation of the democratic principle in the selection of officers becomes more and more impracticable. If the people cannot assemble by counties, still less can they assemble by districts, and still less by states and confederacies. From the circumstances in which they are placed all that the people can do towards the selection of their higher officers is to assemble by towns or precincts and select agents to act for them in a county or district convention, and these agents must select agents to act for them in the state convention, and the state convention must select agents to act for them in the federal convention; so that our highest officers are selected, not by the people nor by a single intermediate agency, but by a succession of agencies, or agents chosen by agents who were themselves chosen by agents.

The nomination of officers for any department of the government being once made, so far as the selection of men is