The Albany Law Journal.

ALBANY, JANUARY 5, 1884.

CURRENT TOPICS.

66

HE jury no-question is the subject of some Careful writing by Mr. Eugene Lewis, in the January Century. Mr. Lewis considers the abolition of the jury system in three aspects, namely: its direct effect upon the administration of justice; its ultimate effect upon the constitution and character of the new tribunal; its effect upon public opinion regarding the administration of justice. Upon the second point he observes: Any one who has prepared a case for an appellate court, when it is essential to review the evidence knows how extremely difficult it is, in many cases, to present any adequate picture of the testimony to the higher court, even with the aid of a stenographer's report of the testimony. The appearance and manner of the different witnesses, which oftentimes, and justly too, has so much weight with the jury, is entirely wanting. A skillful and unscrupulous court, organized in the interests of a wealthy corporation, seconded by able attorneys, as such corporations usually employ, might make short shrift for a poor man with a doubtful or even a just cause, aided, as too often he would be, only by inexperienced counsel, such as his lack of means would frequently compel him to employ. The testimony in such cases would often not be reported, and very frequently the only spectators of the conduct of the court would be the litigants and their witnesses. Moreover, every party having a cause for trial could know with tolerable certainty, for days and usually for weeks and months before the trial, what persons would constitute the tribunal which would try the case, and if he had corrupt intentions, would have ample time to discover the weakest points in the character of each individual composing the tribunal. The old saying, that 'every man has his price,' is undoubtedly true in the sense that every man is approachable in some way, and is susceptible to certain influences — in some cases consciously, and in others unconsciously." There is not any thing particularly new in this, but VOL. 29-No. 1.

it is well presented, and brings out strongly the insuperable objection to a fixed and known body of men as triers of fact for the community.

Under the third point Mr. Lewis cleverly presents the argument, which we have often used, based on the impersonality of the jury, and the comparative innocuousness of a wrong verdict, and contrasts it with the probable result under the other system. He says: "The odium of an unjust verdict, or one that is condemned by public sentiment, whether such condemnation is merited or not, is divided among twelve men, who separate to their several homes and never meet again to act together under any circumstances whatsoever. If through mistake, or for any other reason, they have given an unrighteous verdict, the harm is largely confined to the particular case decided; there is no danger that the same body will repeat the offense and thus acquire a cumulation of odium. Would not a succession of unpopular verdicts, occurring in tolerably close succession, even if right, tend to bring a continuing tribunal into contempt, and would not the tendency be toward causing the populace to suspect bribery and corruption on the part of the court? Would not every decision in which there was any general interest, if made contrary to an uninformed public opinion, whether right or wrong, by a court already unpopular, add to its unpopularity?" Suppose, for example, the verdict of acquittal of Nutt for killing Duke, in Pennsylvania, had been the decision of a condemned, probably did no harm to any member judge instead; the verdict, although universally of the jury, certainly none to the general administration of justice; whereas the same decision by a judge would have almost ruined him, and have seriously impaired if not destroyed public confidence in him in other cases.

seven cases.

duced. At the beginning of the term, there were eleven hundred and fifty-nine cases pending on the general docket; there are now eight hundred and two, showing a reduction of three hundred and fiftyThe court disposed of three hundred and twenty-six, and the commission, which was organized April seventeenth, two hundred and forty-nine cases on the general docket, making a total of five hundred and seventy-five. * The court disposed of three hundred and eightythree motions and the commission thirty-six, a total of four hundred and nineteen." But of this number

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of cases one hundred and thirteen were struck from the docket. This is certainly a good work for a year, but it is not so great a work as that of our Court of Appeals for the same period.

A correspondent informs us that we are in error in stating that our Court of Appeals is the only ultimate court in this country that has kept up with its business for twelve years, and that 66 the Pennsylvania Supreme Court clears its docket with the utmost regularity every year." That court is one of the ablest in the country, and its reports are among the most interesting. We believe it disposes of more causes in a year than our court, but we suspect that the magnitude and importance of the questions involved is very much less.

The same correspondent offers the following suggestion for relieving the calendar of the Court of Appeals: "That the cases be submitted on the printed statements of fact and brief of authorities, without oral argument except where the judges themselves may ask for it, or special causes may be shown. That there would be a great saving of time which is now virtually lost in listening to a mere repetition or amplification of what is already in the hands of the court, need not be argued." We believe that oral arguments are generally very useful; indeed, in a majority of cases, indispensable, and that they save time. Our judges do not like many submissions. The oral argument points to the vital questions, and dispenses with a vast amount of reading. As practiced in our court, oral arguments seldom extend to more than an hour on a side, and are generally much shorter. Such arguments must be much more satisfactory to the profession, and thus to the bench, than submissions, for the unsuccessful lawyer cannot plead that the judges may have overlooked a vital point, or have neglected to read the case and arguments sufficiently to apprehend the gist of the matter. We should regret to see the rule of submission without oral argument adopted.

The annual meeting of the New York State Bar Association will be held in this city, Tuesday 8th January, at 11 o'clock A. M. The annual meetings of all the standing committees will be held in this city on the 7th January. The oration will be

delivered by Hon. John G. Milburn of Buffalo The prize essay will be read. A report will be made of the visit of the Lord Chief Justice of England. and other interesting exercises will be held. A large attendance of the bar of the State is desired and expected.

Quoting our recent remarks about the judges wearing gowns, the Kentucky Law Journal and Reporter says: "The suggestion about uniformity in dress is a good one; not that such a thing can supply the want of learning, dignity, or any of the more substantial qualities that make a good judge, but a certain degree of formalism is becoming to such high officers, and is calculated to inspire and preserve that respect for the bench to which it is entitled." We find very little opposition to the project. Most of the influential newspapers are in dress for the Kentucky judges, we should say, for A gown would be a particularly safe they seem to be a mark for the insane assassin's pistol.

favor of it.

The case of Pullman Palace Car Co. v. Gardner,

post, is well worth reading, especially for the vigorous and racy charge of the trial judge. The judge raises a very interesting query as to what constitutes contributory negligence in case of a train robbery. He says: A railroad company "is under no sort of obligation to keep people from robbing us, except it would be by an onslaught, open violence on the cars. In such cases it has been held that the conductors are bound to protect, not only the persons of passengers, but also their property to a reasonable extent, as for instance, if some boy, fifteen years of age, with a wooden gun in his hand, should come in to rob a car, as I believe it is said they do out west, and the passengers should crawl under their seats, and the conductor and train hands run away, when perhaps if they had stood their ground they could have prevented it, the railroad company might be responsible if the jury should not find under the circumstances that the passengers ought to have defended themselves. We used to ride around in stage coaches; if robbed while in them, the company being under no obligation to carry a guard, was not responsible for the robbery, although you might go to sleep, and they knew perfectly well you would go to sleep, or ought to suppose you would, for a man could not ride half a dozen days or nights without going to sleep; but in the case of a sleeping car company the great convenience and inducement held out to passengers is that they will give them a comfortable night's rest. They notify them they will make them pay for it, and say to them you may go to sleep." This is rather satirical. difficulty in the supposed case is that the passengers are not sure that the gun is wooden, and the robber will not let them examine. "Quaker" guns kept our army at bay some months in front of Manassas Junction, in the civil war, and what better can be expected of railway passengers?

The