Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-05-05
M1scARR1AGEs OF JUSTICE.


the much-discussed subject of Miscarri-
ages of Justice" He points out what is
too often lost sight of, that because some
legal incident happens to result disappoint-
ingly to the popular sense of abstract right
it is denounced unthinkingly as miscar-
rage of justice. Unquestionably there is
much failure to discriminate between APP
parent and imaginary failure of the laws
and Courts to do justice between men.
The essayist attributes this to our inability
to excuse that part of human machinery
we call the Courts, when they fail to satisfy
our spasmodic indignation. That is to say,
the law is for time and all men; there
arise cases, however, where its conserva-
tism prevents the application of such chas-
tisement as the circumstances would really
justify.
The very best we can do, is to cultivate
the idea of an Independent and elevated
judiciary, and to make our laws as nearly
adequate to all human needs as is possible
by calling to law-making the best intelli-
gence, and to keep in mind that even then
the laws cannot be wholly so, nor can their
administration always be satisfactory. As
matter of fact, resort to the remedies of
the law is easier and cheaper in this coun-
try than in any other, and the miscarriages
of justice are very few in the cases in
which substantial justice is done. Is it
not fact, after all, that the American
public is too ready to Judge the whole
course of Judicial procedure by abnormal
and infrequent cases? Judge Barrett cites
The fact that in his own State the appellate
Court may on some one day hand down
one hundred cases, in which there are forty
reversals of the judgments given below
The cry is then very apt to go up that
here were forty erroneous judgments, testi-
flying to miscarriages Of justice. But
in fact the hundred cases decided
probably represent four or five hundred
other contemporaneous cases that were
tried, in which justice was so well adj
ministered that the idea of an appeal was
not even entertained by the defeated party.
However it may be in New York, the i'm
mediate field Judge Barrett considers, in
California the chief grounds of complaint
against our laws and Courts are want of
certainty and diIatoriness. For the first
there is no remedy except wisdom in law
making, and the placing and fixing in
permanency upon the bench the best order
of legal talent, making it independent, and
the betterment of the jury lists; for the
second the increase of the working force.
This last has not kept pace with the
Htigious character of our people. 1t is use
less to talk of discouraging litigation by
making it more costly; that is intolerable
to the American sense or of rendering
the Courts more difficult of access, for that
is contrary to the genius of our institu-
tions.
Judge Barrett has a word to say in de-
Tense of jurors, upon whom he thinks much
unjust reproach is heaped. Citizens cam-
posing them do not volunteer their serv-
ices, nor are their wills consulted or ne
interests involved in being detained from
their vacations taken into account thus
situated they render yerdicts, but the pub
lie, ii disappointed, las the blame at the
door Of the jury-room. 1t ought to inquire
into the facts of the presentation OF the
case, the olearness OF the prosecutor, or
the laundering OF the defense, the color or
impartiality Of the charge of the Court, or
the one-sidedness with which a case may
have been put before the panel. He sub
mits that it is hard enough for twelve
strong men in this enlightened age to agree
upon any debatable subject, for there never
was period when opinions were so varied
and so firmly held. He would have the
two-thirds rule prevail in the jury-box, the
judicial approval in evenly balanced cases,
operating as a wholesome check and bal
ance upon the contending Sides the ma
jority and minority. Judge Barrett's view
of the subject is that the miscarriages of
justice are the exceptions, but that these
must be reduced to lower minimum
that genuine and enduring reform will
result only from enlightened public opin-
ion, and that this will find its highest ex-
preston in an able, upright and vigilant
press"
In the first conclusion he is unques-
tionably wise, and it accords with the truth;
in the second, he is also sound of view, but
that the press has been, or is yet such an
aid to rapid enlightenment upon the sub
ject as it might be, is not true 1t does
not, in most cases present the facts in cases
of miscarriage of justice in that impressive
and calm manner that is essential to carry
conviction. In cases of failure of justice,
its habit has been in the main to deal with
the facts practically, and to use them as
appeals TO passions and prejudices, and to
criticise the laws and the Courts in a
spirit of suspicion that looks upon every
case VI bAot OiStl dSiGI do Tie T6Sull Ol
chicane and venality. But there is steady
improvement going on in this matter; the
debate of the question and of specific cases
is growing less vituperative, and remedies
for the laws uncertainty and delay are
presented and discussed with more of the
GOODNESS that must be maintained in con-
sidering such important questions, if any
hope of reform is to be entertained. We
believe with the essayist, that the time is
not far distant when the rule of unanimity
of the jury viii be greatly modified, and
the method of choosing it improved
upon, and these reforms will be the result
of temperate debate of the need for them
We 90 further than the essayist indicates
his thought 10 have carried him, and be-
lieye that the sense of the peorle will be
manifest at no very distant day in such
modification Of our system as will call to
the bench the loftiest legal ability by re-