The Cambria freeman. [volume] (Ebensburg, Pa.) 1867-1938, 1868-01-30
81 RhElUEsI.
TRIAL BY JUDGES.

Livery member OF the bar, says the ~.
I. Transcripts, will recognize, on reading
she admirable article which we reproduce
from the Solicitors Journal this morning,
that we are suffering from the same haste
in our trials which is changing the Hisi
Prus in England. The trial of cause
In many cases nova days Is conducted
not by the counsel On either side, but by
the court, and although the result Is to
materially shortsn the proceedings, yet
neither party has been able to set it be-
foro the jury according ~ his own theory
and as it is his right te do. We have
eften seen a cross-examination, just as it
promised important results, ruiRed by tho
interposition Of Judge, to whom the
unfortunate guestioncg was obliged 10 oxt
plain tue maleriality Of his questions.
True, it is a sore trial to patience to be
obliged te listen 10 immaterial questions
repeated with abundant poverty of varia-
ton, but the same practice which relieves
Courts and Juries from The infction is
destroying the great art of ross-examina-
tion, al art which has done perhaps more
thsB any other towards the reign of Jus
tice by the elucidation of truth.
With twenty judges in cur Superior
Coucts, as the makers Of our new Cuns.i-
tuticn propose TO constitute them, we
shall have no oxcsse for this sort Of inter
ference ia the conduct Of trials, and we
may expect = return 10 the good old Gus
tom Of allowing client, through his
counsel to make or mar his case in his
own way
The following is the article alluded to ::
Much has been written lately about the
function Of the Judge in The trial of cases
at Nisi Prius, and the extent to which be
ought to interfere in tie examination of
witnesses, md other details of the trial.
These discussions have bean suggested by
one or two reccRt "scenes," rs they are
commonly called, angi2e, qHaTrels between
Judge and advocate and therefore, not
unnaturaily, the whole matter has been
tten;ed rs If it concerned only the idiosyn-
cracies of particular judges or advocates,
and as il those idiosyncTscies were the
syls eause Of certain modern practices
which most Of The writer's have united in
condemning. /! we thought the subject
had no oihsF interest than this we should
not NEEDLE with il. Bat IN our judg-
;N41nt he matter Is one Of far wider i'm
portance, and deserves to DC treated far
moro comprchensiveiy. The details which
lnve been so much discussed are in fact
only symptoms of revelution which has
long been IN progross i'll the whole system
Uf conducting trials ct Nisi Prius.
Tie ao'mM system Of trying Causes at
Nisi PrirE, Gs it is described in all the
L-oSLs ga3 recognized ia countless acts of
PtSiiamsat, and elsewhere, il = somplete
aysteru, fosnded en- different theory, and
getE6SSiY harmonious in all its paris
Cases are fried before q d0EbIe tribunal,
q Judge sn5 jsTy, tho one to decidS is-
cues Of law, the other 10 decide issues of
hsot In aaestioA of law !he tlry have
NO right 80 interfere with questions of
fact The Judge has notAiHg to do except
t. keep order in Court while the jury are
tryiag them Ia determining what issues
Of fact shall be brought before the jury,
the Judge has no voice: the parties NAV.
by their pleaaiags raise what question
they please, and in what form, they please;
what they choose to raise the judge can
not keep Gom the j',rs, what .h-y have not
raised the judge cannot originate. And
when the case comcs for trisl it is for the
parties, represented by their coansel, TO
decide how they shall present their case
to the jary who are to try II. what facts
shsll be told, what witnesses shall be
calted and what kept back, what points
insisted on and and what abandoned
The judge SITS in the ring rs a mere refe-
rec 10 SEQ that both parties fight fair. 1t
is true that he may have incidentally to
decide questions OF law as they arise from
time 10 tiTnn, and TO exercise the power ef
the court in granting or refusing aPplica-
tIons to his discretion applications to
amend the plcadiags, 10 adjourn the trial,
tC recall witnesses, and the like. 1t 10
trde, too, that when the case is closed he
Will have TO rocapitulate the evidence to
the jury, and IN order that he do so cor
rectly, he Is at liberty to pnt such ques-
tioHs 10 the witnesses as seem necessary
TO hin. But otherwise ne is as much /
stranger TO the trial as any spectator in |
the court. 10 harmony with this are Two
characteristic features of our system of
procedure-the the croas-examinatisn Of |
witnesses, and our strict rules of evidence. /
judge, OF to satisfy the mind Of the judge,
bat by the hostile counsel from instruc- |
lions of which the judge kD~~s nothizg, |
and for the purpose which the judge may
Rever understand the the object Of the
whole being to proIuco an impression on
tAe minds Of the jury. SO as to our Pc /
csliar and strict rules OF evidence their |
NECESSITY, as every authority states II, 1
arises from this very method. The issuss
having TO be decided by an unskiIlfsl tn
brnal. and the Gontrol Of the cause being /
in the hands not of an impartial judge, |
but the parties themselves, it is absolutely
necessary to define, with minute accuracy,
what they may bring before the jury, and |
what fhey may not The judge enforeeo
these rules, bus he has no discretion what
ever a 10 what shall be admitted and /
what shall not
There can be no question that such is |
In theory the mode of trying issues of 1