The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1917-08-12

terial questions, could promptly over
rule and discourage technical objec-
tions, could prevent useless and un-
necessary consumption of time by the
Introduction of immaterial and irrel-
evant evidence or by the argument
of questions as to which the court
has a clear and decided opinion and
could without the fear or reversal ex-
ercise the necessary authority so es-
sential to the prompt and efficient ad-
ministration of Justice. With the pres
ent legislative restrictions our judges
are denied their common law power
of summing up the evidence and there
by presenting the issue clearly and
fntellig ently to the jury, but are con-
verted into mere presiding officers
whose principal duty is to confuse the
jury by submitting exhaustive pre-
sensations of legal questions. 1t has
been claimed that the restoration to
our state judges of their common law
powers would result in abuse or ju
dicial tyranny but the prompt and inn
partial administration of the law
which has characterized our federal
courts as well as the courts in Eng
land, conclusively show that these
fears are groundless. Increasing the
power of our judges by restoring to
them rights which have been exer-
cised for centuries by the nisi prius
courts in England would tend to ele-
vate the standard of our courts and
largely increase their efficiency and
result in promoting a more speedy and
impartial administration of the law.
Hon. Elihu Root, president of the
American Bar association speaking of
the statutes found in many states and
quite recently urged upon Congress,
prohibiting judges from expressing
any opinion to the jury upon ques
tions of fact, makes the following
convincing reply: From time imme-
mortal 1t has been the duty of the
court to instruct juries as to the law
and advise them as to the facts. Why
is it that by expressing statutory pro-
vision the only advice, the only clari-
flying opinion and explanation regard
ing the facts, which stand any pos
sible chance to be unprecedented and
fair in the trial of a cause is ex-
cluded from the hearing of the jury?
1t Is to make 1t certain that the in
dividual advantages gained by having
the more lawyer shall not be taken
away. 1t represents the individuals
right to win, II he can, and negatives
the public right to have Justice done.
1t is to make litigation a mere sport
ing contest between lawyers and TO
prevent the referee from interfering
in the game The fact that such pro
tained exhibits democracy's tendency
to yield support to the human inter
est of the individual as against the
exercise of even it's own power by its
own representatives and for its own
highest purpose" In another part of
his address Mr.. Root says; THAT the
evil results of the absurdly technical
procedure which obtains In many
states really comes from intolerance
of judicial control over the business
of the courts. A clearer recognition of
the old idea that the state itself has
an interest in judicial procedure for
the promotion of justice and a more
complete and unrestricted control by
the court over its own procedure,
would tend greatly to make the ad
ministration of Justice more prompt.
inexpensive and effective, and this
recognition must come from the bar
itself"