The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-04-18
LAWYERS ARE STILL DISCUSSING
ADDRESS BY JUDGE AINLDON
Complete Speech Before the
Bar Association Published in Full for the
First Time

courts and cannot obtain here because with si Us.
trial f H. by Jury is secured by the constitution.
a right THAN of by STy in
provision found in our constitution securing
the right of = trial by jury taken from Magma
stitutional law in England that with
proper cause cause shall have trial by jury as it 10
vision in any constitution that you know any.
thing about that secures TO man the right Of
in any constitution that you know anything
about that secures to any citizen an absolutely
means Just what it means in England-that a
party shall have a right to have controverted
questions of fact passed upon in the trial court
by jury. 1t does not hamper the power of the
appellate court here any more than 1t does there.
s s4e s a OF s the eTsf
jurists of this Countrywide late Judge Mitchell
had the good sense to keep the right of trial
justice between man and man. here in this
world; whereas, we in America have worked il
up into the thin air of presumption and meta
The jury. like every other instrumentality for
| the trial of causes, is there for the purpose of
justly settling controversies between man and
man. and when that controversy has been set
| tied justly. the end of the litigation ought to
come.
New York Decision.
remember reading recently decision of the
court of appeals of New York in murder
in which an Italian was upon trial for the most
| cOld-blooded murder of his wife. The court Of
! appeals reviewed the evidence carefully step
by step demonstrating its absolutely conclusive
| force. but upon the trial the defense of insanity
had been interposed. and one of the errors as
signed was to a hypothetical question that had
been propounded to physician. This question
| was not in proper form. 1t was the last error
examined by the court. They sustained the
rSoI a.
| the opinion with that apology with which are
| all so familiar: I'VE regret exceedingly to re-
verse this cause, for the record leaves not
the slightest room for doubt of the defendants
guilt, but the defendant entitled TO a
trial by jury, and there is no telling what
the jury would have done if this evidence had
not been admitted
Well, now, while the court in the bust
ness of presumption, presumng prejudice from
error, why not just presume that the jury would
have done its duty? That would have been the
more rational presumption than to have reached
off into the region of speculation and presumed
that the jury would not have done its duty,
when the record made plain, the court itself
said, beyond the possibility of a doubt what
that duty was.S
What is it that this rule 1 am considering
requires of the trial court? Not justice. but
infaliibility: Now consider the circumstances
under which the trial is TO proceed. The pri-
mary duty of the trial court is to proceed
with the cause, and the trial court that stops
to DEBATE and Investigate all the questions
| that will arise in the course of the trial is
! sure to fall into error minor points. But
| the trial court has time for the investigation
of these minor points. He must proceed with
the cause, giving to those points his best judg-
! ment when considering them. with relation to
the merits of the case, and if the appellate
court having abundant leisure TO investigate
the matter finds that the trial court has fallen
into error as TO matter of practice or plead
as the English rule puts it, miscar.
riage of justice in the case, the should
be disregarded.
Practice and Pleading.
Now 1 am not so uniformed as to contend
for one moment that matters of practice or
pleading are not important, for sometimes they
1 take an Importance which goes to the very
foundation of the cause, but 1t is my observa-
| ton, and L know it is the observation of most
every trial judge, that it is very seldom indeed
that 1t is necessary to sacrifice substantial JUS
tice to these matters of procedure There is
no scourge in the hands of the strong against
the weak like this scourge of trial 1t
can wear out the strength and endurance of
the weak, and 1t has been used for this mr.
pose 1t is not necessary, l have pointed
out 10 YOU as a matter of actual experience
that it should continue.
The administration of the criminal law In
almost Amos broken down in America under the ap-
pl1cation of this rule After an experience of
10 years, we have not that swiftness and GER
talnty OF legal action, that respect for law
Whlch ought to characterize civilized people; on
the contrary, this principle has brought inef-
nclency In legal administration-this pestilence
OF me refinement of new trials-and such reign
] OF disregard for law among both high and
low, rich and poor. has seldom been seem
among civilized people.
What are We going to do about it? There is
nothing which stands in the way of the adon-
ton of the remedy which l have tried to point
out: Among the remedies that have been sug-
sested III this country is that recommended by
one OF our own distinguished judges, that the
right OF appeal in criminal cases be abolished.
Inat remedy can never be applied in America
The right of appeal has lasted too long and tbs
possibilities of injustice are too great Onr
e people VIII never consent to abolish that right
But it is possible, gentlemen, to say this: Thai
/ q Will
crime and found him to be guilty of the offense
+ WIN which he is charged that the judgment
S should not be set aside for errors which do NOT
g. go 10 the very substance of the cause We can
say. without robbing any of any right
ahst IL the Judgment is just it shall be let
Back to the stuarts.
0 The criminal procedure which we have in our
Y courts today. instead IF speaking to us of the
E present time. takes back to the time of the
the savagery of the old English common law aM
OF ,rn crime but We have kept right along the
judges devised to save man from ane the s Ien
geahce OF that savage code. If We 90 back TO
crimes were political crimes and reIiE g q.
crimes cru and the courts were engaged in he
ops e the 0Toss the citizen against the
n .a despoti Is tyrant. An that has been done
! We have long since passed the time when If is
s possible to convict an innocent man and the
n problem which confronts US today is whether
n
/ During the last seventy-ive years. nowhere
a IN the British empire has been snatched
= from the custody of the law and sacrificed 10
e mob violence. That, gentlemen is to me the
a subllmest legal fact of the past seventy five
u Years. Nowhere in the British empire including
e South Africa, Australia and British America,
l has single human life been snatched from
o the custody of the law and sacrificed to mob
s into human character.
u Let me place before you own experience
! suppose what has repeatedly hap9ened in some
9 or the Oldest states in this union when q man
| snatched from the custody of the law. taken
| to a public place. tied TO post. acid poured
| In his ears and eyes his fingers and toes cut
. | OFF as mementoes Of the event and then
Z American citizens. that had occurred in the
l. Philippine islands, what would have said
= about the fitness of the Fipinos for sef-goyern-
l. ment? -.s-ezt
Is Broken Down.
= I say that the administration of the crin,i.
If nal law has completely broken DOWN 1t is an
h unavoidable machine. and longer is a prac-
e send them TO the penitentary hut / state 1t
# here fair statement of the administration
1t of the criminal law Ill America, that if q m4p
t has the means to employ able counsel. so as to
d cases ont of a hundred. he can cscape punish
e ment for crime. Error will intervene in the
e course or the trial-the trial can be enmeshed
J. In such complication of pleading and evidence
as 10 result-not In every case. oh. no, but in
k the majority of cases, in miscarriage of JUS
o tice. =
d appeal from this practice to the practice
II that has obtained across the water. The main
# feature OF that practice is not the doing awaT
e with the right to appeal: Ii is the other mat
2 ter to which have already pointed, viz, that
e only substantial errors shall be regarded.
e what have we met here together for! Surely,