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to greatly mitigated. It was suggested that the new departure would lead to a more general distribution of court business, and would tend to create a guild of barristers; and that all this would be a good thing for the profession and a blessing to suitors. The suggestion was disapproved by every member of the committee except Mr. David Dudley Field, who had then retired from active practice. We were told that it was better to bear the ills we had than fly to others that we knew not of. The point was made, that the rule was as necessary for the protection of young lawyers with a small business as for their more successful brethren. What, it was asked, is to become of the struggling junior who has but half a dozen causes, if two of them happen to reach the day calendars at the same time? Must he divide his meager fee in one of the cases with a handy barrister? And, worse than all, shall a client, who has thoroughly conferred with his chosen counsel, who has absolute confidence not only in this counsel's ability, but in his comprehension of the case, suddenly find himself in the hands of the first stranger who may have leisure to pick up a brief? These arguments seemed to us more specious than sound. An attorney, in ordinary practice, need have but little difficulty in avoiding the collision of his causes, while exceptional complications could be left without any iron-clad rule to the sound discretion of the court. This would apply almost universally to gentlemen who try their own causes. They are, generally speaking, the "chosen counsel" with whom the client has conferred, and in whom he has absolute confidence. The real relief would come from the distribution of the business now monopolized by specially retained advocates, gentlemen who are essentially barristers. The matter, however, was not pressed, and the rule remains. The proposed change was too radical, and was viewed by the bar committee as too revolutionary, to be made without the fullest discussion and consideration. Sooner or later, however, the question must again be considered, for upon its solution materially depends the prompt and convenient administration of justice. This rule really underlies the entire machinery. The calendars are made up with reference to it. Hosts of people are brought fruitlessly to the court-house every
day because of it. Why do the judges find before them each morning a list of twenty or twenty-five cases? Does any one suppose that more than two or three of them can be tried? Not at all. Suitors and witnesses, with scarcely a hope of being heard, are brought to court simply to insure sufficient business to occupy the day. The two or three causes found to be actually ready are the residuum of the twenty-five, after hearing excuses in which the engagement of counsel elsewhere plays a very large, if not the largest, part. Now, if the rule were abrogated, or even modified so as to leave the whole matter to the sound discretion of the court, a daily list of four or five cases would be ample to insure occupation, and people would know that when their causes reached the day calendar they would be reasonably certain of a hearing.
The remaining question-certainty-opens too wide a field for elaborate discussion in an article devoted to what is ordinarily understood by a failure of justice. Miscarriages unquestionably do result from uncertainty; more, however, from the weak or fluctuating application of the rules of law, than from any actual uncertainty in the rules themselves. Facts are evervarying, and human reason is fallible. Mathematical precision is therefore impossible. The strongest minds will differ in the construction of a statute or in the true rule to be laid down in a given case. There may be an approximation to certainty, but nothing more. We must not expect infallibility in the human mind nor in any system of human justice. The nearest approach to certainty is in the rigid adherence to the doctrine of stare decisis, and in the resolute determination of judges to adhere to settled principles, unmoved by the hardships of particular cases. It is not a question of common law or code. There is as much uncertainty in the construction of statutes as in judge-made law. The open book of crystallized rules is frequently as dangerous to the layman as the delving into common-law exposition is difficult. It has been said that the most uncertain thing in the world is the application of the layman's so-called common sense to the simplest statute ever drawn. That was an extreme and somewhat cynical obser
But the converse may safely be asserted: that the
nearest approach to certainty is in the application, by the trained legal mind, of settled common-law and equity principles to the varying occurrences of life. The flexibility of the latter, with regard to novel conditions, must not be confused with uncertainty. On the contrary, as the element of certainty pervades the underlying principle, so also it pervades the extension or amplification of the principle. It is neither my purpose nor desire, however, to intrude into the turbulent arena where the partisans of code and common law are at present contending. I am simply dealing with uncertainty as a phase of the miscarriages of justice, and all that is claimed on that head is this: that these miscarriages, resulting from uncertainty, are more frequent in the casus omissus and doubtful construction of a code than in judicial conclusions drawn from the general principles of the common law.
Thus far the subject has been treated in the abstract. We have outlined general causes leading to general results. There remains for consideration miscarriages of justice, so to speak, in the concrete; failures in particular instances resulting from defective human agencies. That brings us directly to the two prominent personalities upon which our administration of the law is founded-judge and jury.
It ought to be said at the outset that if justice miscarries more frequently in this country than in England, owing to the inferiority of our judges, the people themselves are to blame. We have just as good judges as the people are willing to pay for. The whole judicial system, national and State, is founded upon the policy of small salaries. The people want cheap judges, and they get them. The bright feature in the system is that, upon the whole, the people get fairly good judges, and occasionally great ones. In the cities of New York and Brooklyn a more liberal policy has been adopted, though even here the compensation is insufficient, generally speaking, to tempt lawyers in extensive practice, much less great leaders enjoying splendid professional incomes. If the people want the best, they must pay for it. As we sow the system, so we reap the crop. We may justly expect to receive full value in attainment for our money, with even a large discount for honor
and dignity. But we shall be disappointed if we hope to average anything more or better.
The idea that inferiority results from the elective system is hardly borne out by experience. Tenure is a far more vital matter. Given short terms and meager compensation, the sequitur of poor judges is assured. Life tenure is not in entire accord with the spirit of our institutions. The happy medium would seem to be a tenure sufficiently long to secure independ ence, but not long enough to awaken despotic tendencies. For impeachment is not an adequate remedy at all times. The most upright judge, he who of all others is least amenable to impeachment, may yet stand in need of a certain kind of corrective discipline. This is secured by an occasional appeal to the people. The consciousness that the time is coming when an account of his stewardship will be required of him, acts as a check upon the harsh and arbitrary magistrate. Then when the time does come, he is taken for a brief period out of his grooves, and shaken up a bit by contact with all kinds of people. The tendency is to humanize, and, without weakening any of the magistrate's best characteristics, to teach him something of the beauties of charity. Such an experience, once or twice in a lifetime, should make a man a better judge.
We have seen that the people pay better prices for their legal establishment in this city than elsewhere; and I trust it may not be deemed unbecoming to say that, in return, they receive full measure of service. The industry of our judges has, in truth, never been doubted. Their general accuracy of judgment is sometimes questioned, but only because of misleading statistics with regard to appeals. Some day, for instance, the court in banc hands down a list of one hundred decisions, in which we find forty reversals. At once the thoughtless critic cries out that the judges of first instance are wrong about as frequently as they are right. He fails to recognize the fact that these hundred cases represent, in all probability, five hundred actual trials, four hundred of which were conducted with such accuracy that the defeated party did not venture to appeal. The fair statement would be that there were forty reversals out of five hundred trials, or one in twelve. An analysis of these forty reversals would prove that
the great majority were nisi-prius appeals, where the judge below had little opportunity for reflection or deliberation. Reversals in equity cases, where opinions are written below, are infrequent, while the percentage in motions is infinitesimal. A judge at chambers has a monthly calendar of some seven hundred motions. He hears and decides at least one-half of these, say, at a low estimate, three hundred. Subsequent scrutiny of the appellate calendars will bring to light possibly half a dozen of these motions, indicating that appeals are taken in about one out of every fifty decisions. The average of reversals will not exceed two out of the six, or one out of every one hundred and fifty disposed of. The same rule applies to the second appeal. Probably not more than one case out of every three disposed of by the general term goes to the court of appeals, while the percentage of reversals, after the deliberation of three judges, is naturally less than on the first appeal. There will always be reversals in close or evenly balanced cases, until the human mind is trained to act automatically, or until appellate courts are abolished. Indeed, the percentage of reversals on the occasional appeals by writ of error which the federal system permits to the Supreme Court of the United States from our court of appeals is quite as large as the percentages below. In all human probability it would again be as large upon a further appeal to a still higher tribunal, could such be called into being.
Again. The most fruitful source of miscarriages of justice is certainly weakness of judicial rule. The moment the judge loses his control of the judicial ship, it is swept by the waves of sophistry and the winds of sentiment. Passion and prejudice rule the hour and obscure the truth. The evidence is treated as a shuttlecock to be tossed about by the battledoors of subtlety and eloquence. It is needless to say that the port usually reached is-uncertainty.
Yet the question of judicial duty in this regard is a subject of continuous debate. There are those who believe that the authoritative methods of the English judges should prevail, and that juries should be guided by the judicial view of the legal value and probative force of testimony. Upon the other hand, a few extremists of the criminal bar insist that the judge should