ed by the people without restricting them to the
legal profession. Let the people select for
themselves the best men to answer the purpose,
Economy, efficiency and the general welfare
would be looked to doubtless by the people in
this particular.
Mr. BROWN. I am in favor of keeping up
the present system of orphans' courts, with the
single exception that I want the judges to be
elected by the people of the county, and not
appointed by the Governor, as they now are;
and in a very few words I will give my reasons,
I am in favor of three judges, taken from differ-
ent sections of the county, so as to divide them
out, as much as possible, among the people. In
that case, some one of the judges must always
have a personal knowledge of the condition of
the estate. They know whether the orphan's
property is being wasted or not, of their own
Knowledge, and they can convey this informa-
tion to one another. Again, many of those
having dealings with the orphans' court would
be living a considerable distance from the court
house, and as many of them would be women,
they would be saved much trouble and fatigue
. in going back and forth, if they were personally
acquainted with one of the judges. All ques-
tions of law with regard to wills, &c., will be
carried to the county court. There are fewer
appeals from the orphans' court than from
the county courts, and what is still more re-
markable, there are still fewer reversals. Why
change a court that suits the people so well?
The expense of going to the court house is to be
added to the loss of time occasioned by the
other system. If you have a single judge loca-
ted at the court house, this trouble and expense
of going to the court house will be great, I
hope the Convention will see the propriety of
retaining three judges, to be elected by the peo-
ple. It will save them a great deal of labor,
and the orphans' court will be as well adminis-
tered as under any system that we can devise.
Mr. JOHNSON, I was one of those inembers
upon this floor who formed the general plan
and philosophy of the report of the Judiciary
committee, and therefore I would have been in
favor of transporting the orphans' court busi-
ness to a judge in the vicinage. But as it is ev-
ident that the plan of separate judges will not
be carried out, being against the sense of the
Convention, I must now vote to retain the pres-
ent orphans' court system; because, in district-
ing the counties, it will be impossible for a
judge to attend to the regular routine of the or-
phans' court business. I am therefore in favor
of the present orphans' court system, excepting
that, like the gentleman from Dorchester, (Mr.
Hicks,) I wish the judges to be elected by the
people.
Mr. TUCK. The gentleman from Dorchester
(Mr. Hicks) has alluded to the fact that the or-
phans' court have no defined powers. True;
but they have an immense volume of testamen-
tary laws to search through, and from which
to ascertain what those powers are. We know
that time and again, when they have exercised
powers under the impression that they were |
within the express grant of power to them, the
Court of Appeals has been called upon to say
whether they had acted within their power or
not. The Court of Appeals has given its judg-
ments that in no case of any importance is their
decision final. Cases have occurred within my
own experience, where it was the impression
of all that an estate had been finally settled,
and could never again be heard, they have been
called up and re-examined. In one case par-
ticularly, after the guardian himself had been
dead twelve or fifteen years, and when all the
witnesses were dead, or moved away, the minor
came into court with his claim, and his claim
was sustained. That would not have happened
if there had been a lawyer upon the bench. I
do not say that the judges neglected their duty,
but I say that, for the must part, not being law-
yers, they do not and cannot understand them.
As members of society, I accord to them all re-
spect fur their intelligence and worth, but it is
idle to tell me that the moment you make a
man ajudge, he becomes a lawyer competent
to decide these questions of law.
I may be allowed to speak of my own county.
I have tried questions of law before our own
orphans' court, and after the matter has been
solemnly argued by counsel on both sides be-
fore these three lawyers, the case has been post-
poned for further consideration. We all know
very well that consideration is an application
to a certain gentleman there, as to the law of
the case to be decided by the judges. That
lawyer had better be put upon the bench, for at
last we are obliged to go to him for his decision
of these points. I do not blame the judges for
it. It is the necessary consequence of their
own ignorance of the law. They are compelled
to resort to the opinion of reliable legal men
upon the subject, if you put a lawyer upon
the bench, all the estates will pass through the
hands of lawyers; and it is said that the execu-
tors and administrators will be compelled to
appoint lawyers. Do they not do it now? There
is scarcely an estate of any consequence in our
country where a lawyer is not employed. Why
do the people employ lawyers? It is not the
want of confidence in the judges, taken from the
classes to which they themselves belong—me-
chanics, farmers or merchants; but they know
that those men are not lawyers, and they know,
further, that their decision is not final, but only
prima facie. They wish for a lawyer to see that
every thing is correctly settled, so that it can-
not be overturned. If you had a competent
lawyer upon the bench there would be no ne-
cessity for this, and they would not do it. They
would say. Why employ a lawyer when there
is a lawyer upon the bench who has the whole
before him? The judge could he elected so as
to enable the people to confide in him. I know
very well that gentlemen who come from the
vicinity of the counties are better qualified,
where they have nothing to do but to cast up a
matter of account, to correct the addition and
subtraction. But every body knows that there
is a great deal more than that to do. Very of-
ten they decide upon cases of devisavit vel nar, |
