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record of general civil and criminal jurisdiction, within its territorial boundaries, beyond a question, and is so expressly declared; even without this express declaration, it would, from its constitution and powers, be a court of record. Furthermore, the 19th section of the act provides for the removal of all actions, prosecutions and appeals, at the election of the parties or either of them, from the judgments of justices of the peace, pending in the common pleas and quarter sessions of Luzerne county, having arisen within the limits of the city of Scranton, into the mayor's court for determination; and the arbitration laws of the commonwealth are extended to the said court.

These facts illustrate most clearly what we have already said, that the court in question is a court of record of general jurisdiction, as well as a municipal court; and it follows, that its judges are required by the constitution of the commonwealth, to be elected by the qualified electors included in the boundaries of the city, and cannot be designated and appointed by an act of the legislature.

The respondent claims to hold and exercise the office of judge of the mayor's court of the city of Scranton, thus established, under and by virtue of the 30th section of the act, which provides "that the president judge of the eleventh judicial district of the commonwealth, or of that district of which the county of Luzerne shall form a part, shall be the recorder of the said city," and shall receive an annual salary of $500 for his services, payable one half by the state and the other half by the city. This is the commission relied upon as the authority for exercising the office of recorder of the city, by the respondent. We have shown that the mayor's court is not only a municipal court, but a court of general civil and criminal jurisdiction -is, in fact, a court of an independent judicial district. Now, in such a case, the constitution expresses itself in no ambiguous terms; it says, in Art. VI., sect. 2 (amendment of 1850): "The judges of the supreme court, of the several courts of common pleas, and of such other courts of record

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as are or shall be established by law, shall be elected by the qualified electors of the commonwealth, in the manner following, to wit, the judges of the supreme court by the qualified electors of the commonwealth at large; the president judges of the several courts of common pleas, and of such other courts of record as are or shall be established by law, and all other judges required to be learned in the law, by the qualified electors of the respective districts over which they are to preside, or to act as judges."

Here is a distinct mandate of the constitution, requiring the election of the recorder of this court by the people of the district or city; and whatever the constitution enjoins to be done in a particular way, amounts to a prohibition of all other modes and methods of doing the same thing. Page v. Allen, 58 Penn. St. R. 338. We have shown this mayor's court of Scranton to be a court of record, not only from its nature and necessary inherent powers, in view of its jurisdiction, but by the express words of the act creating it. The constitution requires the judges of "such courts of record as are or shall be established by law, and all other judges required to be learned in the law, (to be elected) by the qualified electors of the respective districts over which they are to preside, or act as judges."

That the recorder is a judge, all text-writers, who speak of the office, affirm; the references in the argument of the attorney-general, clearly establish this. In 1 Bac. Abr. 657, it is said, that in the court of Hustings, at GuildHall, before the lord mayor and sheriffs, "when any matter is to be argued and determined, the recorder sits as judge with the mayor and sheriffs, and gives rules and judgments therein." In Respublica v. Dallas, 3 Yeates 314, Shippen, C. J., said, “in the strict legal sense of the word, the recorder is a judge; he is a justice of the peace, and a constituent and principal member of a court of record." In a constitutional view, the name is nothing; if it be the recorder's duty to act as judge of a court, as it certainly is under the act of incorporation, the consti

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tution requires that he be elected by the qualified citizens over whom he is to judge. In this state, the recorders of the mayors' courts have always been appointed from persons learned in the law, and have ever been recognised as judges, with fixed salaries and specified terms of office. The act in question, by indirection, recognises this as a necessary qualification; no one can be recorder, by its terms, who is not the president judge of the court of common pleas of the judicial district, for the time being, in which the county of Luzerne shall be; as such president judge is required by the constitution to be learned in the law, it follows, that the recorder's office being filled by that incumbent, he will be learned in the law also. Whether, therefore, we regard this mayor's court as within the constitutional category of "such other courts of record as shall be established by law," or, that the recorder is to be regarded as a judge, or that he is required to be learned in the law, in either and all of these contingencies, he, by the constitution, must be elected. These requisites all coexist in the constitution of this court, the provision, therefore, to confer the office of recorder upon the respondent directly by an act of assembly, was a clear violation of the constitutional mandate for an election; he could only fill that office by the choice of the people of the city at the polls.

Nor would he have been eligible, by election, to have filled the office, holding, as he did, the office of president judge of the common pleas of Luzerne county. Art. V., sect. 2 of the constitution prohibits judges holding "any other office of profit, under the commonwealth,” during their continuance in office; and we have seen that a salary is attached to the office of recorder in this case.

But it was contended in argument, that the respondent having been elected president judge of the common pleas of Luzerne county, by the electors of the territory embraced in the city of Scranton, in common with the other portions of the county, he was, therefore, an elected re

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corder, in the sense of the constitution. This argument concedes the necessity of an election; but how, by one election, he could hold two distinct and independent offices, such as president judge of the common pleas and recorder of the mayor's court, is not so clear; we think the position totally inadmissible in its application to the question in hand and needs no argument to refute it. By such a process, every township in the county might be included in mayors' courts, and the judicial business, diverted from its legal centre, come to be administered in isolated portions of the county. We should not fully protect and conserve the constitution of our commonwealth, as we are bound to do, were we capable of yielding to such suggestions; nor ought we to be deterred from giving full scope to every one of its provisions, by appeals to consequences arising from misinterpretation and consequent violation; were such considerations to prevail, the instrument, in time, would disappear altogether, by attrition of repeated encroachments, and its very existence become traditionary. But we, by no means, concede the consequences anticipated and deprecated in the argument of the respondent's counsel; what they may be, is not before us; it is time enough to treat of them when they come before us.

In nothing said in this opinion is it, in the least, intended to reflect on the learned and able president of the common pleas who acted as recorder of the mayor's court of Scranton; that he was mistaken in assuming the discharge of those duties, we believe, but we fully accord to him the utmost conscientiousness in so doing.

Thus we have given some of the reasons inducing the entry of judgment in this case, in July last; more might be added, but we regard further elaboration unnecessary. We feel ourselves constrained to decide that the respondent was not legally the recorder of the mayor's court of the city of Scranton, and enter judgment accordingly.

Judgment for the commonwealth.

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Perhaps the greatest defect in our political system, is an elective judiciary, holding office for a limited term, and entrusted with extensive discretionary powers for the determination of political questions, especially those arising in cases of contested elections. Our British ancestors considered it a great triumph of free principles when, by the act of settlement, the judges were made independent, by the granting of commissions during good behavior, instead of holding, as formerly, at the pleasure of the crown. And at the date of the American revolution, this was considered one of the most precious of the liberties which the early colonists had brought with them from the mother-country. So excellent was this provision esteemed, that it has been incorporated into most of the reforms of modern Europe, whilst the American people, not having, until recently, experienced the evils of the opposite system, have abandoned it, at the instigation of demagogues who court the favor of the people by pandering to their worst passions.

Chancellor Kent says that "in monarchical governments, the independence of the judiciary is essential to guard the rights of the subject from the injustice of the crown; but in republics, it is equally salutary, in protecting the constitution and laws from the encroachments and the tyranny of faction." 1 Kent Com. 293-4. "The organization of the judicial department is not so essential, as the supply of intelligent, learned and honest judges to administer the laws. The danger to be apprehended, as all past history teaches us, in governments resting, in all their parts, on universal suffrage, is the spirit of faction, and the influence of active, ambitious, reckless and unprincipled demagogues, combining, controlling and abusing the popular voice for their own selfish purposes. Much more grievous would be such results, when applied to the election of judges, for that would tend to break down and destroy the independence and integrity of the administration of justice." Ibid. 295 note.

Since this innovation upon the earlier and wiser policy of the republic, the unwelcome truth is forcing itself upon the attention of every cultivated mind, that the standard of judicial ability is steadily decreasing; the truly learned lawyer (with a few notable exceptions which only prove the rule) stands no chance of elevation to the bench; the man to whom Coke and Fearne have been familiar from his student-days, is not the one selected to decide upon questions affecting the life, liberty and property of his fellow-citizens; but, as a general rule, it is the half