The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-01-26
opinions Of the Court Of Appeals.

The following arCicle coues w US Aohi
gentlemen so distinguished in their PROBES
sion that we cannot doubt that it speaks the
wish of many lawyers, thoughrWe had sup
posed that nine tenths OF them were ON the
other side Of the question
A proposition is before the Legislature TO
amend the fourth section OF article D OF Inc
Constitution so as to make it discretionary
with the Court of Appeals to state IN
writing the reasons for their judgments
and DEGREES" "to beapreserved with the
records Of the case" ...Isla
Virginia is now blessed with super
abundance OF constitutional lawyers, re-
formers, and men OF advanced ideas -
whatever that means. Generally they rival
the devil when he undertook TO mend the
dogs leg.
Something may be said in favor of this
nronosed amendment. Itwould save time,
expedite business, and relieve the judges OF
some labor, perhaps much, as the permts-
sion would be likely to grow into habltuai
practice. can see no other advantage.
Much may be said against it. Any man
who has tried will be aware how difficult it
sometimes is to give " in writing" carefully
prepared, in view of criticism, the reasons
for an opinion formed but not " reduced to
writing"
NV friend Judge Joynes once told me that
Judge Peter Y. Daniel complimented most
fayorably the decisions OF our Court Of APP
peas. and ascribed their eXcellency to the
repeated consultations Of the judges before
and after opinions were prepared, and be-
cause they were so prepared lin writing"
carefully and considerably, and it may be
supposed that such would not be often the
case but for the constitutional requirement
This provision was first incorporated In
the Constitution in 1850. 1t has been the
law for nearly thirty years. 1t induces de-
liberation, consultation, care, and caution,
and probably reconsideration and rehear-
ing; and is therefore necessarily produc-
tive of good results, and is liable to the one
single objection-that it requires labor by
the judges, and so may cause delay in clear
ing the docket.
1t strikes me that 50 important an amend
ment, not likely to attract popular notice,
and so almost certain to be adopted by the
people, if submitted, should not be hastily
and unadvisedly recommended.
Judge Joynes gave me several interesting
illustrations of the utility Of reducing an
| "opinion' to writing. He had asked me
il I never Gran into fence-corner in
preparing an opinion or argument, and
suggested q probable instance in my own
practice that had necessarily come under
his notice. He said that on one occasion a
case had been argued before the Court OF
Appeals. The Judges met to consult. They
came to a conclusion, and directed him to
prepare the "opinion." He began his Ia
Dor, and soon Gran into afence-corner." He
laid it by .sto cool'' for some days. he took
it up again, and became more and more salts
fed that he and his colleagues were in error.
But he finished the "opinion " as best he
could in that view. He then wrote another
in accordance with his own views thus ar
rived at upon reconsideration. When the
fcourt met he was asked for bis "opinion :"
in that case. He said he had tro, and eX-
planned the reason. He read both, and
after discussion and reconsideration the
latter was adopted, and one OF his colleagues
assigned his reasons for believing the latter
opinion correct. 'Yhereupon, as they were
more satisfactory, Judge Joynes delibe-
rately erased the reasons assigned by him
and adopted those of his colleague; and so
different judgment was entered, and for
other reasons than those assigned by blm
who wrote the opinion.
Here error was hardly probable-the
court were unanimous after consultation
and yet, if the latter decision was right,
error was avoided by the law requiring a
"written statement Of the reasons for the
decree or Judgment to be prepared and
preserved with the record Of the case"
1t is probable that in many cases the
opinions are too elaborate, too much in de-
tail Of facts and authorities. and rather in
the shape Of legal argument or treatise.
But the error, if it be one, is rather in the
right direction.
It is to be hoped the number OF appeals
will diminish, if we take care to keep judi
cial ability and experience upon the benches
of the Clover courts, and the appellate judges
will be less yielding in granting appeals,
cxcept in cases Of manifest error, or when
new questions are involved.
The Judge also said that on an other oc-
casion he and colleague had disagreed
upon consultation, but in preparing his
opinion he again Gran into fence-cor-
ner." and came to the conclusion that he was
wrong and his colleague right; and so be
prepared an opinion satisfactory to himself,
according to that view. But when they
again met his colleague had undergone a
similar change OF opinion, and had gone
over to his side OF the question. and so they
again disagreed, and, after conference and
discussion, each adhering to his "sober Sec
ond thought" they continued to disagree,
and the case was decided accordingly.
There can be no better test OF the cor
rectness Of judicial decision-especlally
formed during an argnment-than estate
ment in writing" Of the reasons for the
opinion, carefully prepared by the Judge,
when, in his chamber, he calmly and de-
liherately arrives at a conviction, and can
undoubtingly give his reasons "in writing"
for his convictions. A contrary practice
may relieve the judges OF labor. it may ex-
pedite business. but it will necessarily lead
to more frequent errors after it is too late to
correct them; errors by which all the infe-
rior courts will be governed, and in most
instances in cases not appealable, and when
the life, the liberty, and the property OF the
citizen may be involved.
Even as it is, the courts sometimes, feel
called upon 10 reverse themselves, but too
late to benefit the party injured by the for
mer decision. 10 -s.a5 Ell.
It would seem, therefore. that delibera-
ton and correctness OF decision had better
be assured, even at the expense OF more la
Dor and some delay in deciding causes.
S. 49,. e.g5'.,- 90, ...r SENEx.
While the election OF every one OF the
candidates Of the Conservative caucus OF
the Virginia Legislature, and the conse-
auent defeat Of the. ticket nominated by the
readjusters, are in the highest degree salts
% nj orv RI tho, yhnfe State and gratifying