The Forum.

MAY, 1888.

MISCARRIAGES OF JUSTICE.

It is an unpleasant reflection that what is sometimes termed the miscarriage of justice is not infrequently the triumph of law. But so it is. The popular mind does not readily distinguish between infinite justice and finite law. We are apt to expect too much from the judicial machinery: to require the absolute righting of wrongs, to demand the ideal punishment of crime, and to hold human law responsible for its inability to satisfy our spasmodic indignation. At times we find ourselves protesting against even its virtues. Why should law be immutable, when some special atrocity cries aloud for exceptional chastisement? Why should the panoply of form be permitted to obstruct the sword of justice? The descent from this process of thought to the drivel about technicalities is easy and immediate. Uninstructed common sense and the passions of the hour-fre quently interchangeable terms-make short work of legal rules founded upon the experience of ages, and formulated by the profoundest thought of the most enlightened minds. The consequence is, that some legal incident, which happens to result disappointingly to the popular sense of abstract right, is unthinkingly denounced or deplored as a miscarriage of justice. Of course there are, and ever will be, failures of justice. We should be careful, however, to discriminate between the real and

the imaginary; between the failure of the courts to perform their defined function, and their refusal indirectly to execute lynch law.

What, then, are genuine miscarriages of justice? And of what failures of law has the public a reasonable right to complain? The main requirements of a satisfactory judicial system are speed, certainty, and cheapness. But speed and cheapness rarely go together. Where law is cheap, the temptation to go to law is increased. The calendars or dockets are swelled with petty disputes. Delay necessarily ensues, and suitors with important issues have to take their slow turn with the rest. This may amount to a substantial denial of justice. Here in New York law is cheap enough. No man can complain that the courts are closed to him because of his poverty. We have a peculiar system, probably the most expensive in the world. and yet the cheapest. The actual disbursements of a cause are trifling. I refer to what the layman understands as court fees. The "costs" of a cause are not disbursements at all, but fixed sums allowed to the successful party the same as his damages. Even a pauper is allowed to bring an action (prima facie meritorious) to trial without a penny of charge. The real expense is in the employment of counsel. It may truthfully be said that there is probably no city in the world where the charges of counsel vary as they do here. There is no fee bill, and the question of compensation is left by law to private agreement. The attorney may even speculate upon his client's cause of action, and bargain for a share of the recovery as his sole compensation. The consequence is, that it must be a pretty desperate case for which a poor man can find no advocate. The law is expensive to the rich, because they want the best and most famous men in the profession, and these are unquestionably highpriced. It is moderate for those who seek moderation, and it is cheap for the million. It is, in fact, as widely open to all as is possible under any system which contemplates professional assistance. Of course the quality of the service varies with the price, and that gives the rich man an advantage over his lessfavored antagonist. This, however, is inevitable. Genius and talent are potent factors. They cannot well be suppressed nor

withdrawn from the market. And they will tell. The clearheaded and pure-hearted judge endeavors to equalize the contest between intellectual strength and weakness, but even he cannot always unearth the point which a feeble advocate has buried out of sight. Fortunately we chafe under this inequality, and the spirit thus begotten is frequently a powerful ally to the "people's lawyer." At all events, this much can be said for us, that there is no other country in the world where the advantage of wealth and the disadvantage of poverty are not immensely greater.

With the higher courts thus accessible to all, the trouble, as already intimated, is mainly to avoid delays. The judges have had many a struggle with blocked calendars. There have been times when all kinds of expedients were suggested to raise the blockade, such as increasing the court charges, limiting jurisdiction to a large minimum in amount, and restricting the right of appeal; in other words, making the law dear and exclusive. Happily these counsels have not prevailed, and we trust they never will. With us, however, the question is no longer one of pressing necessity, for, owing to a somewhat increased judicial force and, it may fairly be added, to the industry of the bench, causes are now reached and decided with reasonable expedition. But we should not rest in fancied security. It is only a question of time when, with all our efforts, causes will again increase and accumulate. Provision should now be made for the immediate, or certainly not remote, future. This can readily be done by a constitutional amendment consolidating our three highest courts into one great tribunal with an appellate branch of five judges, sitting permanently throughout the legal year. This would at once equalize the labors of all the judges of first instance, and put a stop to the inequalities resulting from the privilege of selecting a particular court. It would also secure greater certainty in the administration of the law and prevent conflicting decisions, for instead of three independent appellate courts, each of three judges, we should then have but a single appellate tribunal of five. There would also be this additional advantage, that four of the present appellate judges would thus be released for the duties of nisi prius and equity. The ques

tion of delay is, however, a vital one with regard to the court of last resort. With all their energy and industry, the learned judges of this great tribunal are unable to keep pace with the business which pours in upon them. This is entirely unavoidable. New York is the largest State in the Union. Its commercial and corporate interests are enormous. Its litigation is naturally varied, important, and extensive. The court of appeals is a single tribunal composed of but seven judges. In the latter respect it has no advantage over the lesser States. Its jurisdiction, too, is generally more extended. It hears appeals not only from final judgments, but from a great variety of interlocutory orders. What wonder, then, that the parties in an ordinary unpreferred cause must wait nearly two years for a hearing? What is the remedy? Certainly not in overworking the judges, even if that injustice would suffice. What the people need is the best thought of vigorous intellects, not the feeble impressions of worn and exhausted minds. Nor will the temporary makeshift of a special commission answer. That is a mopping up of the Atlantic with a broom. Besides, the judgments of the commissioners never had the same binding force as those of the court proper. The particular cases were decided, and that was all. Suitors were dissatisfied. They had appealed to the court of appeals, but the hearing was in a side court of fewer judges and of less strength and dignity. The restricting of appeals from orders, and the limiting of appeals from judgments to cases involving in amount an increased minimum, would be merely a palliative, and that of an undemocratic character. If resorted to, it would have to be applied from time to time as business increased until the minimum could no longer be decently extended, the tribunal, meanwhile, being regarded as the rich man's court. The problem is, to give every citizen an appeal to his court of last resort, and to have such appeal heard and decided without unreasonable delay and without overworking the judges. This can never be radically and harmoniously accomplished without a division of the subjects of appeal. We may have two distinct tribunals of equal numbers and dignity, but they will disagree upon crucial questions. Inharmony and conflict will be the result. Two chambers of one tribunal presided over by the same

chief justice, and simply dividing the calendar, would be better. That, at least, would keep the brethren, through the medium of the same presiding magistrate, advised of the judgments of each. But it would not insure harmony. Two chambers of one tribunal, however, acting upon a carefully studied division of the subjects of appeal, need never clash. Constitutional questions could be heard before the entire court. All other questions would be relegated to the appropriate chamber, and experience would soon bring about such rearrangements of the subjects of appeal as to produce substantial equality of labor.

We have seen that law in this city is cheap, and that failures of justice need not result from delay. The latter observation, however, applies only to the reaching of a cause on the calendar. The delays which follow in obtaining an actual hearing frequently entail serious loss of time and money. They are harassing in the extreme, exhausting the suitor's patience, exasperating his witnesses, and sometimes driving him to a pitiful compromise. These calendar delays may well be classed among the miscarriages of justice. They result from the same tendency to monopoly at the bar which is apparent in other walks of life. A great advocate is constantly sought as special counsel in important causes. He cannot be in two places at once. Yet he has, perhaps, two causes on the calendar in different courts upon the same day. When he is actually engaged in one of these causes, the rule is to hold the other ready, subject to his engagement. His adversary is thus compelled to bring client and witnesses, day by day, until the great man is ready to accommodate him. If, however, instead of two, the special counsel happens to have three or four causes on different calendars at the same time, matters become additionally complicated. He hastens from the first cause, the moment it is finished, to whichever court is open to receive him, and at once proceeds with his engagement there, leaving his remaining adversaries still dancing attendance with clients and witnesses.

A proposition was made by the writer some time since, at a conference between the judges and a committee of the bar association, to abrogate the rule under discussion. It was urged that justice would thereby be promoted and the evils referred