New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1888-04-29

member OF the committee except Mr. David DudIcy
Field who had then retired from active practice We
were told that It better TO bear the Ills We had 'an
nv 70 others that knew not Of Tho point was mace
that the rule was as necessary for the protection OF
Young lawyers with small business as for their more
successful brethren What II was asked Is to become
of the struggling junior who has but half doIen
causes II two of them happen to reach the day cae-
OARS at the same tmei Must he divide his meagro lee
in one of tho cases with handy hariisterl And,
worse than all shall client, who has thoroughly con-
ferred with his chosen counsel who has absolute con-
adence not only in this counsels 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 brief1
These arguments seemed to US moro spccious than
sound An attorney in ordinary practice need have
but little difficulty in avoiding the collision OF MS
causes whllo exceptional complications could be lett
without any ron-cad rule to the sound discretion OF
the court. This would apply almost universally u
gentlemen who try their own causes They arc gen
orally speaking, the chosen COUNSEL with whom the
client conferred and In whom he has absolute con-
fdence. The real relief would come from the distri-
button OF the business now monopoizcd by specially
retained advocates, gentlemen who are essentially bar.
rIstsrs The matter, however, was not pressed, and
the rGo m or a'e SUo is Solution
materially depends the prompt and convenient admins
This rule really underles the entire machinery The
calendars made up with reference to It, Hosts
sfe OR sy Se 81 It. wSy judges find
fore them each morning list OF twenty or twenty
two or three Of them can be tred Not at all suitors
and witnesses, with scarcely hope OF pelne heaiu,
are brought TO the simply R to or
to be actually ready are the resduum OF the twenty,
counsel elsewhere plays very large, II not the largest
part. Now If the rule were abrogated or even modl-
tion Of the court daily list Of four five cases would
be ample to insure occupation, and people would know
that when their reached the day calendar hey
would be reasonably certain OF hearing
THE QUESTION OF CERTAINTY. 4
The remaining questlon-certainty- too wide
field for elaborate discussion in article devoted to
what is ordinarily understood by failure Of Justice
The strongest minds will differ in the construction of
statute or the true rule to be laid down in given
case There may be approximation to certainty,
but nothing We must not expect infalhblnty
In the human mind In any system OF human JUS
tice. 1t is not question Of common law or code.
There is as much uncertainty in tho construction OF
statutes as in 1rdge-maie law The eopen BOOK OF
crystazed rules is frequently dangerous to the lay
man as the delving into commonlaw exposition is DIM
cult 1t has been said that the most UNCERTAIN thing
in the world is the application Of the laymans So
called common to the simplest statute ever drawn
That was an extreme and somewhat cynical observa
ton But the converse may safely be asserted that
the nearest approach to certainty Is In the apph
caion by the trained legal mind, Of settled common
life. The Hexlblity Of the latter. with regard TO
novel conditions, must not be confused with uncer-
tainy. On the contrary, the element OF certainty
pervades the underlying principles, SO also IL
pervades the extension application OF the princ-
pie. 1t is neither my purpose nor desire However
TO nrudc into the turbulent arena where the parsans
of code and common law are al present contendng
am simply dealing with uncertainty as phase OF ,ne
mscarrisges of justice and all that is claimed on ms
head is this that these mscarrages resulting irom
uncertainty, are frequent in tho casus omssus
and doitkt} tr,cti a
conclusions drawn from the general principles OF
TREATING OF JUDGE AND JURY.
Thus far the subject has been treated in the abstract
We have outlined general causes leading to general
results. There remains for consideration miscarrages
Of JUSTICE TO speak, in the concrete failures In
particular instances resulting from defective human
agencies That brings directly to the two prominent
personalities upon which cur administration OF the
law is foundcd-tudge and jury.
1t ought to be said at the outset that IL Justice mis-
carries moro frequently in this country than In Eng
land owing tho nerloty Of our judges, the people
themselves to blanc. We have Just as good
Judges as The people willing to pay for. The
whole judicial system, National and state, is founded
upon the policy Of small salaries. Tho people want
cheap judges and they get thom The bright feature
In the system that, upon the whole, the people get
fairly good Judges and occasionally great ones. In
the cities Of New York and Brooklyn more liberal
IensatIon is insufficient generally speaking, to tempt
lawyers in extensive practice much loss great leaders
pie want the best, they must pay for It. AS We sow
the system SO We leap tho crop MD may Justly
money. with even large discount for honor and dig
nifty But t,t We shall be or hope
The idea that ncriority results from tho elective
system is hardly borne out BY experience e Tenure
meagrc compensation, the scqutnr Of poor judges is
assured Life tenure is not In eptire accord with the
spirit Of our institutions. The happy medium would
seem to be a tenure sufficiently long to indie
pendcnce, but not long enough to awaken deSpotlc
tendencies. For impeachment is not adequate
remedy at all times. The most upright Judge, he
who OF all Others least amenabe 10 impeac hment,
may yet stand in need of certain kind Of corrective
In lifetime, should make man a better Judge
GOOD PRICES FOR GOOD SERVICE
We have seen that the people pay better prices for
their legal establishment In this city than elsewhere;
and trust 1t may not be deemed unbecomlng to say
hat. in return they receive full of service.
The industry OF judges has, in truth never been
doubted. Their general accuracy Of judgment is
sometimes questioned, but only because Of mislead-
ne statistics with regard to appeals Some day. for
Instance the court In banc hands down a list of
hundred decisions, in which find forty reversas
Vt once the thoughtlesS critic cries out that the
judges Of first instance arc wrong about as frequently
they right He fails to recognize the fact that
heso hundred cases represent in all probability, five
undrod actual trials four hundred Of which were
0nductcd with such accuracy the party
Id not venture to appeal. Tho fair statement
7ould be that there forty reversals out Of five
undred trials. ono in twelve.
An analysis Of these forty rcvcrsals would prove
hat the great majority nIsipriuS appeals where
he Judge below had little opportunity for reflection
r elaboration. Reversas in equity cases. whore
plnons written below, infIequent, while the
ercentage In motions IS infnltesimal judge at
hambers has monthly calendar Of some seven hun
a |
alt Of these, say, at low estimate, three hundred.
ubsequent scrutiny Of the appellate calendars will
ring TO light possibly half dozen Of these motions,
Indicating that appeals taken in about one out Of
very fifty decisions y average OF reversals will
exceed two OF the six, Of every one
undred and fifty disposed Of The same rule applies
D the second appeal Probably not more than one
asA ont OF every three dis posed OF By tho General