THE EVOLUTION OF COLONIES. 61 



sive delegations of this power repeat the necessary concessions that 

 created the English judiciary. Side by side with the royal preroga- 

 tive grew up a popular jurisdiction which developed into the jury; 

 and it would be worth while to compare the acquisition of this con- 

 stitutional right (for example, in Connecticut and New South Wales) 

 with its history in England. Out of this element, and also as a 

 corollary from the election of a governor who was chief judge, came 

 the practice of electing judges in the ISTorth American colonies. It 

 was by no means confined to the charter colonies. Nowhere was the 

 determination toward an elective judiciary more noticeable than in 

 Pennsylvania, whose proprietary was its feudal sovereign. It may 

 be historically explained from the corrupt and servile judicature of 

 the age when these colonies were founded. The attachment to the 

 old system in contemporary British colonies may also be explained 

 from the very different point in the history of the mother country 

 when they were given off, when the talent, the purity, and inde- 

 pendence of the bench had become the pride of Englishmen, and the 

 judges were Baconian in everything but the taking of bribes. The 

 English and (naturally in a far less degree) the colonial courts still 

 show traces of their royal origin in the antiquated wig and gown, the 

 arrogance of the judges, their haughty point of honor — " contempt 

 of court," and their aristocratic bias. These are counterbalanced by 

 the increasing strength of the popular element. A hopeful bill was a 

 few years ago introduced into a colonial legislature restraining judges 

 from commenting on evidence. A mere act of Parliament would 

 have as much effect on lawyers' loquacity as Mrs. Partington's mop 

 had on the Atlantic. It is, nevertheless, in the direction of restrict- 

 ing the powers of the judges that the more radical colonies are 

 moving. In one southern community certain causes may be tried 

 by a judge with a jury of four, who will probably rise into assessors, 

 and in another that important step is possibly on the point of being- 

 taken. The courageous Premier of South Australia, who lately de- 

 fied the entire English medical profession, has now taken in hand 

 his own not less formidable guild. He proposes that " in proceedings 

 under certain acts the bench is to consist of a judge of the Supreme 

 Court with two lay assessors, one appointed by each party to the 

 suit " ; and counselors are peremptorily excluded from such pro- 

 ceedings. In certain other cases litigants may submit statements 

 of their differences to judges who will adjudicate without the inter- 

 vention of counsel. Thus the same middle point may be reached 

 from opposite termini. A series of levelings down may bring judi- 

 catures of royal origin to the same stage as popular jurisdictions have 

 reached by a gradual leveling up. The courts will then unite the 

 majesty of the law, whose " voice is the harmony of the world," with 



