New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1888-04-29
MIsCARRIAGEs OF JUSTICE.
JUSTICE BARRETT EXPLAINS THEIR CAUSES
AND REMEDIES.

by Justice Barrett, OF tne cupreine NoutN oh Ahe
Miscarriages OF Justice 1t is substantially as
follows:
tits an unpleasant reflection that what is sometimes
termed the miscarriage Of Justice not infrcquenty
the triumph OF law But so It is. The popular mind
does not readily distinguish between infinite justice
and finite law We apt TO expect too much from
Judicial machinery require the absolute Fighting
of wrongs, to demand the ideal punishment OF crime,
and to hold human law responsible for Its inability TO
satisfy our spssmodio Indignation At times we find
ourselves protesting against oven its virtues. Why
should law bo immutable when some special atrOclty
cries aloud for exceptional chastlsementi Why should
the panopy OF form be permitted to obsrct the sword
of justce The descent from this process Of thought
to the drive about technicalities is easy and Inn
mediate.
Unnstructcd common sense and the passions of the
hour>-frcqucntly interchangeable terms-make short
work Of legal rules founded upon tho experience OF
ages formulated by the profoundest thought Of tho
most enlightened minds The consequence is, that
Some legal incident, which happens to result disap-
pointngly to the popular sense OF abstract right Is
unthinktney denounced or deplored a miscarriage
Of Justice. OF course there are and ever
will be, failures of justice. We should DO 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 10
execute lynch law.
WHAT ARE nIscARRIAGEs OF JUsTICEi
And OF what failures OF law has the public reason
able right to complaint The main requirements Of
satisfactory judicial system are speed certainty ana
cheapness. But speed and cheapness rarely go to-
Eeher. Where law is cheap the temptation to go to
law is increased The calendars docket are swelled
with pctty disputes Delay necessarily cnsres, ana
sultors with important issues have to take their slow
turn with the rcst This may amount to substantial
donial Of Justice. Here in New-York law is cheap
enough. No man complain that the courts are
closed to him because of his poverty.
We have a peculiar system, probably the most ex-
pensive in tho world and yet the cheapest The actual
disbursements Of trining. rcfer'to what
the layman understands court fees. The "costs'
OF cause are not disbursements at all, but fixed sums
allowed TO the successful party the Same as his DAM
ages. Even a pauper is allowed to bring an action
(prima face meritorlous to trial without penny OF
charge. The real expense IS in the employment OF
counsel 1t may truthfully be said that there Is
probably city in the world where tho charges OF
counsel vary they do here. There is no fee bill,
and tho question OF compensation is left by law to
private agreement The attorney may even Speculate
upon his clients cause of action and bargain lor a
share of the recovery his sole compensation The
consequence IS that IL must be pretty desperate case
for which O poor man find no advocate. The law
Is expensive to the rich they want the best
and most famous men in the profession, and these
arc unquestonably high priced. It is moderate for
those who seek moderation. and 1t is cheap for the
million 1t IS, in fact as widely open to all as Is
possible under any system which contemplatos pro-
fessonal assistance
OF course the quality of tho service varies with tho
price, and that gives the rich man an ad-
vantage over bis less-favored antagonist.
This however, is inevitable. Genius and talent arc
potent factors. They cannot we'll be suppressed nor
withdrawn from the market And they Will tell Inc
and purehearted Judge endcavors TO equal
lie the contest between Intellectual strength and weak
iii thn mint
which feeble advocate has buried out OF sight For
tunatey We chafe under this inequality and the spirit
thus bcgotten is frequently powerful ally to the
peoples lawyer At all events, this much can DO
said for u.s. that there is no country IN the world
where tho advantage of wealth and the disadvantage
of poverty arc not immensely greater.
MORE JUDGES NEEDED.
with the higher thus accessible TO all, tho
trouble already intimated, is mainly to avoid de-
lays. The judges have had many a struggle with
blocked calendars. There have been times when all
kinds OF expedionts suggested 10 raise the block
ade such increasing the court charges, limiting jur
isdicon 10 large minimum in amount and restricting
the right appeal in other words making the law dear
and exclusive Happily these counsels have not pre-
vailed, and we trust they never WILL With us, how
Sver the question is longer one of pressing necessity
for owing to somewhat increased judicial force and,
t may fairly be added to the industry OF the bench,
reached and decided with reasonable ex
petition. But We should not rest in fancied security
1t is only question of time when with all efforts
causes will again increase and accumulate Provision
should now be made for the immediate, certainly not
remote, future.
This readily be done by constitutional amend
ment consolidating three Highest courts into one
great tribunal with appellate branch Of five judges
sitting permanently throughout the legal year This
would equaze the labors Of all the judges OF
FIRST instance and put stop to the inequalities result
ing from the privilege of selecting particular court
1t would also greater certainty In the admins
traon the law and prevent conflicting decisions for
instead Of three independent appellate courts each OF
three judges should then have but 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 ns prus and
equity The question of delay is, however vital one
with regard the court of last resort With all their
energy and industry the learned judges of this great
tribunal unable keep pace with the business which
pours In upon them. This is entirely unavoidable.
New York is the largest State in the Union Its COM
mercia and corporate interests enormous Its It'll
CATION is naturally varied, important and extensive.
Tho Court Of Appeals is single tribunal composed OF
but judges In the latter respect II has no adj
vantage over the lesser states. Its jurisdiction, too
Is generally more extended 1t hears appeals not only
from final Judgments but from great variety OF In
terocutory orders What wonder, then, that the par
ties ordinary unprcferrcd cause must wait nearly
two years for hoaringl What is the remedy Ger
airly not overworkng the Judges II that intus
tice would suffice.
THE COURT OF APPEALS.
Tho problem is, to give every citizen appeal to
his Of last and to have such appeal beard
md decided without unreasonable delay and without
pverworkng the judges. This never be radically
md harmonously 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 con-
aict viii be the result Two chambers of tribunal
presided over by the same chief Justice, and simply
iivding the calendar would be better. Constitutional
,ues lions could be heard before the entire court All
questions would bs relegated to the appropriate
chamber and experience would soon bring about such
Of the subjects Of appeal to produce
substantial equality Ct labor.
We have that law in this city is cheap and that
nf tttstI nend rncnlf from The