The sun., 1906-12-05

shall alrmAtlvely appear that the error complained
of has resulted In a miscarriage of Justice"
In New York our Code of Criminal
Procedure contains the following provis-
ion in regard to the judgment to be rem
dered upon an appeal:
After hearing the appeal the couN must give
judgment without regard to technical errors or
defects or 10 exceptions which do not afrect the
substantial rights OF the parties
We like the New York provision better
than that proposed by President RoosE-
WELT, and for this reason: 1t makes the
test to be applied upon the appeal the
question whether the substantial rights
of the defendant have or have not been
disregarded upon the trial, whereas the
enactment recommended by the Presi-
dent makes the test the question whether
the error under consideration "has re-
suited in a miscarriage Of justice" This
last is not the proper test IN a criminal
case. The question whether a person
accused Of crime has been guilty or not
is to be determined under our system of
jurisprudence derived from England
not by a bench of judges, however up
right, wise or learned, but by the verdict
of a jury Of twelve men. Our views on
this subject cannot be better expressed
than by quoting the language of Chief
Judge CULLEN of the Court of Appeals
in his opinion in the Patrick case, which,
although it was dissent, expressed the
undisputed law applicable to this sub
ject:
by the express terms OF the Code OF Criminal
Procedure CSection S42, We are required to give
Judgment without regard to technical errors or
exceptions which do not affect the substantial
rights Of the parties Personally. within short
time past. have written for the afnrmance of a
judgment In a capital case. where there plain
legal error In the admission OF testimony. because
1t seemed clear that the improper testimony could
have had no effect the verdict. But
there Is limit to the extent 70 which we may dts
regard errors even in a case where VIC think that.
the verdict Is warranted by the facts. The guilt
of prisoner must be found by the jury, not by
this court and be found trial conducted in
accordance with the rules OF law II is an error
which is not only technical but which does not
affect the substantial rights OF the defendant that
we are authorized TO disregard"
The President has wisely come to the
conclusion that it is doubtful whether a
law abolishing altogether the use Of in
functions in labor cases would be deemed
constitutional by the courts, and he points
out that under such circumstances legis-
lation designed to effect that object would
prove ineffective. Furthermore he ex-
presses the belief that it would be wrong
TO prohibit the use Of injunctions alto
gether. 1T is criminal, he truly says,
~to permit sympathy for criminals to
weaken our hands in upholding the law,
and if men seek to destroy life or prop
erty by mob violence there should be no
impairment Of the power of the courts
to deal with them in the most summary
and effective way possible No doubt
there have been several instances in
which the power to grant preliminary
iniunctions before trial has been abused
by some members of the Federal judici-
ary in controversies between employers
and their workingmen; and perhaps Con-
gress might wisely lay down a series of
statutory rules providing when such
preliminary restraining orders may be
and may not be properly granted This,
however, is as far as Congress could
probably go in regulating the exercise
OF equity jurisdiction by the Federal
courts We think the President is right
in intimating, as he does, that the power
of the courts to grant an injunction in the
final judgment in an equity case is out
side the control of Congress.
In connection with this matter of in
functions the President has good deal
to say about the right of the community
to criticise the official action Of the
judges; and he asserts, what is perfectly
true, that the best judges have ever been
foremost in disclaiming any immunity
from public criticism. This portion of
the message seems in reality to be rather
a defence or extenuation of the severe
language used by the President him
self at the last session of Congress in con-
demning a decision rendered by Judge
HUMPHREYS of the Southern District of
Illinois holding that certain witnesses
called by the Government in a prosecu-
ton under the Interstate Commerce
laws could not be compelled to testify.
As we recollect the message on this sub
ject il characterized Judge HUMPHREYs's
decision as calculated to make a mock
cry of the law. We thought then and we
still think that the denunciation in which
the President indulged in respect 70 this
ruling was unduly severe.
The President next takes up the preva-
lence of lynching throughout the coun-
try, which he condemns as it deserves,
concluding with the exhortation: Let
justice be both sure and swift; but let it
be justice under the law and not the wild
and crooked savagery of a mob" This
subject is one, however, of State rather
than Federal cognizance; for Congress
has no power to legislate for the purpose
of restraining lynching except in refer
ence to territory which is exclusively
under the jurisdiction of the Government
of the United States as distinguished from
State territory. The President expresses