was impeachable.* Confused functions seem to invite impeachment, as in some States he acted as judge, legislator, and executive. The clearer definition of the powers exercised by the President were imitated in constitutions adopted after 1789.

Of the executive council-thought at this time essential to the protection of the people-little survives. Its original function in provincial times was to control the administration. It was never a cabinet. In the first constitutions it represented popular distrust of the Governor of the State, as in earlier times it represented royal distrust of the Governor of the colony. The growth of administrative offices later meant the decay of this council. For a time it stood for the civil side of executive power, as the Governor stood for the military. Chosen usually by the Legislature, it began to change in political character when the members were elected in districts. Before it had disappeared, it exercised executive, legislative, and judicial functions. Clearly the Governor was a military figure intrusted with few powers. It is rather curious that though he has increased in authority, he is less conspicuous in public affairs than he was a hundred years ago.

The State courts, like the colonial, followed the English type; but a distinct State government required appropriate courts. The county courts were continued, a new court was created, and the two sets were distinguished as the inferior and the

*New York, Virginia, by Assembly; North Carolina, "or by presentment of grand jury."

Jurisprudence under the Constitutions

superior, or supreme. The nisi prius system was about to be changed. Superior courts exercised both a law and an equity jurisdiction. There were courts of chancery. Judges were appointed by the Governor or chosen by the Legislature,* usually for the term of good behavior. The unreasonableness of the age limit† on judges was proved by the appearance of Kent's Commentaries, after their author had been retired on account of constitutional disqualifications to continue a judge in New York. Judges were removable. As to-day, the jurisdiction of the superior courts was final in all cases; thus appellate jurisdiction was regulated in each commonwealth by law. Not infrequently the judge was ex officio a justice of the peace. The superior courts were too numerous and their jurisdiction too various to be easily classified. They were largely the creatures of the Legislature. Their titles help to indicate their character: probate, admiralty, orphans', chancery, common pleas, oyer and terminer. Their jurisdiction was original, but not final, and was both civil and criminal.

Judicial functions were slightly confused with executive. Many rules which had grown up in practice found their way into the constitutions. Georgia began the innovation of defining jurisdiction by specifying the money value involved in a case:‡ a precedent since freely followed. The

* New Jersey, Virginia, South Carolina, 1776; Tennessee, 1796; chosen by joint ballot: elsewhere by Governor.

+ New York, sixty years; New Hampshire, 1792, seventy years. + Georgia, 1777.

courts met much as at present, the number of sessions being regulated by law. Clerks were appointed by the judges. All writs ran in the name of the commonwealth, as previously in the name of the King. As at present, litigation went on chiefly in justices' courts, and these were the object of constitutional care. The justice was appointed by the Governor or elected by the Assembly. Democracy had not yet secured control of any part of the judicial system. The justice was a local dignitary who wrote Esquire after his name, and was commonly called the 'Squire. Usually he continued in the office for life and prospered on his fees. Never were a people more given to litigation than the Americans in the last century. The Revolution bred innumerable lawsuits and an army of lawyers ranging in ability from John Marshall to Andrew Jackson.

Best known in each county was the sheriff, whose office was the first in importance after the Representative, to be filled by popular election. No other official was closer to the people, and none was of greater antiquity. His duties, it was thought, as now, could not be safely intrusted to any man save for a short time, and not for successive terms. This limitation was due to the composite character of the office. He was collector, assessor, executor, treasurer, comptroller, police, keeper of the poor, and sheriff-all in one. It was his function as custodian of public and private money that forbade re-eligibility till the lapse of years and his successor had, as is now said, "gone

Complications of Early Legal Practice

over the books." The office was in a state of transition at this time. As under English law, the sheriff was appointed in some States by the executive; in others he was chosen by the electors. He was the second officer of the court. The jury system was as yet unshaken, and no hint given of its impending dissolution. The right of trial by jury ranked high among the fresh rights of man. Therefore the jury of twelve men and the grand jury of nearly twice the number were conceived to be pillars of the State. A unique provision which has not become a precedent made the Supreme Court in one State, Massachusetts, an advisory council to the Governor and Legislature. Common law practice was yet distinct from equity practice, and the technical difficulties of real actions, pleadings, and chancery procedure made the practice of the law a mystery.* England soon after this began the simplification of practice, and America has followed; but the abolition of distinctions in actions which characterize practice to-day was unthought of at this time. Not until after the federal judiciary act of 1789 did the State systems bend towards uniformity. They were less responsive than the executive or the legislative to constitutional revision; yet, judicial reform of some kind has usually been proposed by a convention, and in one instance only the judicial article in a proposed constitution escaped defeat at the polls.†

* Maryland, 1776, contains many provisions, essentially only rules of court.

† New York, 1868.

These early courts were the precedent for the federal judicial system, and their virtues survive there in the circuit court and the life-tenure of the judges -the one bringing the courts to the people, the other securing an independent judiciary.

Slavery was not an aggressive element; one State forbade importation;* two others, † cruel, treatment of slaves, and the latter provision became a precedent in the South. A Representative in Congress from South Carolina must have been qualified by the ownership of ten negroes, and the requirement was in force three-quarters of a century-till abolished by the thirteenth amendment. Delegates to the Congress of the Confederation were chosen by the Legislatures, and subject to recall. Like Governors and members of the General Assembly, they were required to be freeholders. No State constitution before 1789 suggested the idea of nationality. Later ones of the period, like their successors, were silent respecting United States Senators. Their election has always been regulated by law. Persons of foreign birth were as yet few in number, but immigration from the West Indies and the British provinces made necessary some provision for naturalization.

The electors were free white men. A few electors, North and South, were free persons of color. Their inclusion in the electorate in New Jersey and North Carolina was doubtless an oversight.

* Delaware, 1792.

† Georgia, 1798; Kentucky, 1799.