The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1907-07-23

change in matters Of ~ucn ~u1oraeatous
importance have yentureo u briae
this matter forward Tor your cGns3d-
Grafton and - offer certain tentative
suggestions thereon.
The common laU method ~ trial
b" Judge and jury Is, Of course pc
cGliar. II IS described IN POLICE. &
Maitland History Cpase l. - fol
lows.
The behavior witch is expected Of
a Judge IL ditferen. ages and by G4f-
icrent svstema Of Law" seem. t3 fust4-
between two pole =. one OF
these the model L. the conduct 81 tae
man Of science who u making re-
searches and VIII use all appropriate
methods for the solution Of problems
and the discovery of truth. IL the
other stands the umpire OF our British
games Nh III there ne in order that
may invent tests for the powers OF
the two sides. but merely TO see that
the rules Of the am are observed.
1t is towards the second Of these
ideals mat our English medieval pro-
cedure is strongly inclined. We arc
often reminded OF the cricket match.
The judges sit in court. not in order
that they may discover truth, put in
order that they NAV answer the ques-
ton, 'How'S that"
Certainly this is an picture
of the system as II exists in North
and in many other States. but
- IL ~ - 80
Veys 70 our minds. accustomed to u
" procedure, an exact view of the
common law system as administered in
England.
It can not be denied that that sys-
tenn proved wonderfully effcacious as
a means Of safeguarding lhe rights of
the individual against governmental
oppression both in England z
America. and. as such, IS entitled TO
all the praise bestowed upon it. And
it worked admirably as 3 means of
settling issues of fact, so long as our
people were agricultural and homo
geneOus, industries few end undeVel-
Oped, and jurieS were IraWn from sub
stantial and Independent free-holders.
but when immigration began to come
in, population to Increase. commerce
and industry to nOuriSh: when the
struggle for existence became more Sc
we're, and there arose On the one hand
the great corporation and on the other
the trade-union. with the antagOnismS
usually growing out of the relation be-
tween them often. much too often.
prejudice and passion invaded the
jury box. and disturbed the delibera-
lions of the jury. Probably no one
will affirm that the same system is adj
eQuate for both conditions Of society,
and this, perhaps, explains the call for
change; and. it seems to me. that
change must be in the direction of
giving our judges more and more the
position of the man of science" rather
than that of the umpire" referred to
by Professor Pollock.
In the same editorial of the London
Times, from which the previous quo
tatiOr was made, there appears this
language
Again and again there have been
fierce encounters between counsel.
seemed at times to take command
of the courts; and to say nothing of
the inordinate length of their speeches,
they INDUCED in eruptions and cor
uscations of eloquence with cheap
.sDlendour which raised the atmoS-
phere of the court to a temperature
incompatible with calm rehec-
ton. For days the proceedings took
the form of a struggle, little to the
of either case, between
counsel. At the outset the
Judge virtually disappeared from view.
who would have been through an
English trial prominent and dominant.
would have checked counsel and
some of their sallies. was
little more than an ignored spectator.
1t is well known that American Judges
axe in trials. civil or criminal, less
part than English"
Mr.. Bryce, long ago in his work on
the American Commonwealth, pointed
as d grave defect in our State in
the fact that the judicial of
fee was not as dignified and powerful
II ought " ne, that pdl tlE IO1 llIS
reason and partly the services
were i~nadequately paid for the best
in the profession. in many OF
the States, did not seek the office. and
to these reasons is added the
further one that in order to obtain
the office, the lawyer las frequently
to descend to the practices of the pol
itician, there is little wonder that it
is not regarded with that degree of re-
spect which the of justice
command.
am fully aware of the fact that
avyers, by training and by inveterate
habit, are the most conservative of
men. and are less patient of proposed
changes in their methods of proce-
dure than in anything else, but,as all
of us expect some day to be judges, it
Ices not seem to me to be
able to hope that you will listen with
sympathy to a proposition to magnify
the judicial office, by increasing the
pay, the power. and the influence of
the judges, and by taking the selec-
ton of them, as far as possible. out of
play of party politics.
Probably none of us Will deny that
pay is becoming more and more
Inadequate to attract frst-clasS men,
fe ' of us will deny that the Sc
of the judges ought to be more
under the control of the legal pro
f~ession; but when We come to increas-
ing the power of the judge, We enter
disputed territory.
If it he asked how it is proposed to
the power of judges, | sng-
sest that the trial judge should have
more power to decide finally Upon the
of jurors, the admissible
Ity of testimony, the limits of eXanli-
n CrOSS-eXaninatiOn. the
of arguments of counsel, and.
finally, thew should have the right. and
it should be their duty. to express an
opinion upon the facts and TO direct
he verdict in proper cases; provided
always that when there is conflicting
the issue of fact is left to the
decision of the jury; and, pro-
further. that the whole record
be reviewed by the appellate
court to ascertain if any substantial
egal injury has been done TO the APP
In theory. perhaps, the judge has a
very considerable power of control
the conduct of the trial. but in
practice if he attempts to exercise it
II the interest of Justice. of time and
IF public he Will probably
hat he has committed some re-
-erSible error. An examination of our
Will. | think, disclose d large
percentage of reversals upon ques-
relating to challenges. to admis-
ibility of testimony, and to minor