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Snydacker V. Broose, 51 Ill. 357 ; Abbott v. ance of justice and would prevent many of the Kimball, 19 Vt. 551: Welsh v. Cochran, 63 N. difficulties and dangers of the charge of the Y. 181; Hyde v. Cooper, 26 Vt. 552. In the trial judge which now exist. But we protest case last cited, Redfield, C. J., in rendering that an exception should be taken by either the opinion of the court, said: When the party after the trial in a reasonable time and party does not direct or control the course of to specific parts of the charge of the judge, the officer, but requires him to proceed at the not to the charge in general, for we cannot peril, and the officer makes a mistake of law and do not consider that any practice which in judging of his official duty, whereby he be will materially increase the work of the appelcomes a trespasser even by relation, tlie party late courts is desirable, and it is most importis not affected by it, even when he receives ant that there should be less matter come up money, which is the result of such irregularity, before the appellate court and that appeals although he was aware of the course pursued should be restricted. It is very easy for the by the officer. He is not liable, unless he con- practitioner to form a short bill of exceptions, sents to the officer's course, or subsequently after the trial, to the charge of the judge, adopts it.” There is an entire absence of com- though we consider that either party should be petent testimony in this case to show that the allowed to except at the time of the trial beplaintiff in error authorized, or had knowledge fore the case goes to the jury as well as to of, any improper conduct of the officer, if there make requests to charge which are most proper was any, and, therefore, nothing upon which to for the just trial of any cause. It is, therefore, base a verdict against him for damages for any with great pleasure that we recommend the trespass then committed.
Before he can be so suggestions of Mr. Spahn in so far as they held, it must appear (1) that there was such an allow exceptions to be taken to specific parts abuse of the process, by the constable, as to of the judge's charge during the time allowed make him a trespasser, and to forfeit all protec- for an appeal. tion which his writ otherwise would give; and (2) that plaintiff in error either directed or coun
During the last few weeks two judges have
recommended changes which, account seled such wrongful conduct, or thereafter consented thereto by accepting the benefits result
of the importance of the reforms and the ing therefrom, with full knowledge of the facts. distinguished character and great learning The instructions which were given by the court
of the judges, entitle them to profound con
sideration and respect from the bar. Last at the special instances of the defendant in error, ignored these principles, which lie at the weck we had occasion to comment on the case
of the People v. Shea, which was recently defoundation of the liability of the plaintiff in er
cided by the Court of Appeals. Judge Peckror, and are erroneolis.
ham, who has had wide experience as an active
practitioner, trial judge, and as a member of We publish in this issue of the LAW JOUR- the court of last resort, calls the attention of NAL the reply of Jacob Spahn, Esq., of Ro- the public as well as of the bar to the unfortuchester, N. Y., to the general letter sent by nate, unnecessary, unreasonable and improper the Commissioners on Statutory Revision to rules of practice which allow a mass of worthdifferent members of the bar in
less facts and immaterial testimony to come lation the amendment the Code before the appellate court of last resort. The of Civil Procedure. There
may be also
great care which the judges of the Court of found a special letter from Mr. Spahn urging Appeals take with their opinions and with their the reasons for the change which he proposes work, and the literary quality of the opinions, and which in fact is to allow either party to an not to speak of their great legal worth, are too action to take a general exception to the well-known to here comment upon. Does it charge of the trial judge. We recognize the not seem ridiculous and like loading a faithful importance and weight of the suggestions public servant down to send before him for rewhich Mr. Spahn makes and we believe that view ten thousand printed folios embracing such an amendment would work to the futher- | two thousand printed pages of record, exclu
sive of some three hundred pages of questions tion. Limit the right of review. Terminate put to jurymen, which came before the court all review in one appellate court. Reverse the in the case of the People v. Shea? There has rule of decision in appellate courts, and instead been so much said within the last year and a of assuming that injury was done, if error is half in regard to limiting appeals to the shown, require the party complaining of a judgcourt of last resort that we really believedment or decree, to show affirmatively not that some practical benefit would accrue to the merely that some error was committed in the court. But, seemingly, this relief to the court trial court, but also that if that error had not has disappeared in the vociferous flagellations of been committed the result must necessarily have the discordant notes of code reformers. Some-been different. It may be said that this would thing should be done; but it is most humiliating make reversals very difficult to obtain.
They to the bar that the suggestion should have to come should be difficult. The end of litigation should from the judges of the court that must be relieved. be almost always in the trial court. Business It is most proper that every benefit should be ac men understand that it is best that the deciscorded to a man who is accused of murder, but ions of their committees of arbitration should from a practical standpoint we think it is almost be final and without any review.
While some prejudicial to the accused to go before the court of our profession seem to think that justice is of last resort, with such an unwiedly mass of ab- more likely to be secured, if by repeated resolute nothingness. A few well chosen points, views in successive courts, even to the highest such as exceptions to the charge of the trial in the nation, the fees of counsel can be made judge, the admission of testimony which can be to equal, if not exceed, the amount in controeasily picked out and attacked, and which are
versy between the clients. In criminal cases clearly fixed in the mind of the counsel for de there should be no appeal. I say it with refense, would practically give the court a better lutance, but the truth is that you can trust a opportunity to judge of the merits of the case, jury to do justice to the accused with more while it would be absolutely impossible for the safety than you can an appellate court to secure minds of any court to comprehend such a mass protection to the public by the speedy punishof testimony as we have referred to. But these ment of a criminal. To guard against any possuggestions of Judge Peckham do not stand sible wrong to an accused, a board of review alone as the only reminder to the members of and pardons might be created, with power to our profession that our procedure is not in ac- set aside a conviction or reduce the punishcord with business principles. It has been a ment, if on the full record it appears not that a favorite theory of this journal that too many technical error has been committed, but that appeals involve unnecessary delay, which is most the defendant is not guilty, or has been excessprejudicial to the rights of suitors.
Reforms ively punished. cannot proceed along business lines without
“The truth of it is, brethren, that in our decomprehending the broad principles of the law. sire to perfect a system of administration, one Judge Brewer, of the United States Supreme which shall finally extract from confused masses Court, in his address to the American Bar As- of facts and fiction the absolute and ultimate sociation, most clearly discussed this subject, verities, we forget that tardy justice is often and said:
gross injustice. We are putting too heavy bur• The administration of justice would soon dens on our clients, as well as exhausting the be considered a mockery if first impressions patience of the public. Better an occasional controlled every case.
But greater expedition blunder on the part of a jury or a justice of the can be obtained without detracting from fullest peace, than the habit of protracted litigation. examination and consideration. Shorten the “The idea of home rule and local self-govern
Curtail the right of continu- ment is growing in favor. Thoughtful men ances. When once a case has been commenced, more and more see that the wise thing is to deny to every other court the right to interfere cast upon each community full responsibility for or take jurisdiction of any matter that can be the management of its local affairs, and that brought by either party into the pending litiga- the great danger to free government is in the
time of process.
centralization of power.
Is it not in line with as old as Plato. The nation is an individual this thought that as far as possible the final and when it has decided puts itself in position settlement of all controversies which are in to enforce that decision. Law is the “I will" themselves local shall be by the immediate of the American people. Law is to transmute friends and neighbors of the litigants? Was half formed purpose into resolute purpose; it not that the underlying thought of the jury as is to convert aspiration into life. The nation first established ? And while we boast that the has its body which must be fed; its mind; its jury system is the great bulwark of our liber- emotions ; its will which must be carried out. ties, are we not in danger of undermining its The different forces that administer to the strength and impairing its influence by the corporate individual were eloquently cited. freedom of appeal? Is not the implication The man whose body is fed and whose inteltherein that the jury and the trial judge cannot lect is brightened is unavailing unless he has a be trusted, and is not the sense of responsibility definite purpose and pursues that purpose with taken away from both when they understand definite resolution. It is the same with the that no matter what they may decide, some nation if it means to accomplish anything. The superior and supposed wiser tribunal is going nation is what its executed laws are — no more, to review their decisions and correct whatever no higher, no better. of mistakes they may make ?"
Not long ago the Populists in Kansas decided
not to have any more lawyers in the LegislaWe publish in this issue of the LAW JOURNAL | ture. More than fifty per cent of the legislaan article written by Hon. Horatio Seymour, tors in Congress have been lawyers. It ought Jr., formerly State engineer and surveyor, one so to be. They are fitted to shape the national of the most earnest advocates of the improve- will, to give it definite resolve. We need conment of the canal provided for in the bill to be tinuous sessions of the law. The legislature submitted in the form of a referendum at the represents the superficial will of the people, the next election. Mr. Seymour was formerly State whims of partisan feeling or prejudice. The engineer and surveyor, and although this plan courts are to represent the deeper purpose of was first originally suggested by the late Samuel the nation. They understand and interpret J. Tilden, it has since been taken up and the trend of national life. By way of illustrawarmly advocated by Mr. Seymour, who at tion, the great waterways of the nation were present resides at Marquette, Mich. It can given to the nation, the great railways were readily be seen that he is anxious still for the subject to federal jurisdiction and protection, success of the canal improvement project. the great lakes are also under federal jurisdicAlthough the subject is not strictly legal, yet ittion. No act of the Legislature has produced involves important interests which are akin to the effect of Lincoln's signing the document our profession, and we must for a moment turn that set slaves free. The hand of the people aside from the strict consideration of legal held the pen. principles to the consideration of vital interests The lawyer is not merely one to settle disof the State and country.
putes or to prevent them. Beyond is the
function he performs in the American comAfter the adjournment of the American Bar monwealth. He converts creed into deed. We Association at Detroit, the Rev. Lyman Al are measured by what we do far more than by bott, successor to the Rev. Henry Ward what we think. Deed is the measure of the Beecher as pastor of Plymouth Church, deliv- creed. The threads out of which the pattern ered before the members of the Association a is to be woven are living threads.
The lawyer most interesting and cultured address. In works them into the national fabric. Blackgiving his definition of law, he said:
stone is right; there is an analogy between laws Law is not a command addressed from a of nature and laws of jurisprudence. Laws of superior to an inferior. It is the corporate will
It is the corporate will right and wrong exist; they are. Webster said of the nation addressed to the individual. A it was useless to re-enact the laws of God. The comparison of the nation to the individual is temporary and the human laws will not stand
opposed to divine principle. Deep in the the clerk of his chambers. The latter underheart are written the principles of truth, justice, stood that a copy was required, but he failed honor. It is not true we want dishonest money; to see what the copying book had to do with we want honest money; and the question is, it. At last, when it dawned upon him, he said, What is honest money? The education of the with much disdain : “ I am sorry, sir, but there lawyer can not be too broad or too deep. The is no copying press in the temple. Solicitors great principles of our national jurisprudence take letter-press copies of their letters, but barrun back to the time of the great Mosaic period. / risters have their opinions written out in fair The lawyer must discern the principles of social | hand.” In other words, the clerk plainly intilife. He must trace the trend of history to see
mated that barristers had no connection with what the future holds. The religions of the business, that was an assair of solicitors only. world are two classes. Pagan religions picture He was, in the main, correct. Solicitors do God as an angry God. The Hebrews showed what in America is known as “chamber work."
a just God. Then came the belief | They see the client, and act for him in every that He was a merciful God. Our prisons are possible way, performing services in this rereformatory. It is ours to present the highest spect which an American lawyer would never ideals, said the speaker, referring to his own dream of consenting to do, and charging therecalling. The function of the minister is to fore feee of "six-and-eight pence” and “thirhold up the highest pictures. It is the duty of teen-and-four pence," and other small sums the lawyer to shape the aspiration into a living, which would be too trivial to figure on the determined and powerful resolution.
books of your lawyers, as well as larger and more imposing amounts. And now, of re
cent years, they are encroaching upon the preIn the English letter to the Green Bag ap serves of the barrister to an extent which is pears a most comprehensive distinction be- most alarming to the latter. They may appear tween solicitors and barristers, a subject which as advocates in the county courts and before is rather hazy and uncertain to many Ameri- referees, masters and judges in chambers.
It appears that the distinction is grad- the county courts they don a gown and wear ually disappearing from various causes, and bands at the neck, and, but for the absence of especially for the reason that English prac- the wig, would pass in appearance for the bartice is coming more and more to allow the risters. In almost every respect, except in solicitors to practice in some of the inferior high court work, they are taking the places of courts, while barristers in many instances have those who are popularly spoken of as belongdone
away with the services of solicitors in the ing to the “upper branch of the profession. arrangement of the case and the preparation of But the barrister has exclusively the right of evidence in the cause. The letter is well worth audience in the higher courts. printing, and is as follows :
In addition to this he is called upon by the The line which divides the barrister from the solicitors to “settle" the pleadings, that is to solicitor in the English practice is so shadowy say, to draft them ; and to pass upon all the in some respects, although so distinct in others, formalities in a case which is the subject matter that it is hardly to be wondered at that con of litigation up to the point where issue is fusion exists on the subject in America. In joined. He is also "instructed ”to give an fact there are a good many professional men in opinion upon evidence and such technical England who would be puzzled to know questions of law as may arise. This he is where the function of the solicitor stops and supposed to do only upon a “brief” submitted the practice of the barrister begins. An to him by a solicitor. But, fortunately for American who was recently called to the bar him, and as a set-off to the encroachments desired to retain a copy of a letter on private upon his functions by the solicitor, he is now and personal business, which, therefore, he had beginning to see the lay client directly, and not taken pains to write in copying ink. He solely, as heretofore, through the intervention handed it, with a letter-press copying book, to of the solicitor. When Sir Richard Webster
was attorney-general sometime ago, and there-documents. It is feared that if an official trusfore the leader of the bar and the custodian of tee is appointed he will not allow these charges, its prerogatives, he decided that a barrister and in consequence there will be so mueh the might advise a layman in all matters which less business to do. The argument in favor
not in litigation or likely to result of the official trustee is based upon the fact immediately in litigation. It cannot be said in that he will be an officer of the court and that truth that in consequence of this clients are he will be obliged to give a bond and will be tumbling over each other in their mad eager- compelled to report at stated intervals to the ness to get access to the sacred precincts of a court the result of his transactions. It is urged barrister's chambers; but it is true that more that the irresponsibility of trustees under the
each year, consultations are being present system encourages malversations and held with those who seek legal advice, and misappropriations of inoney. The other day opinions are being written without the inter- five solicitors were struck off the rolls for mediary of solicitors' briefs.
wrong-doing. Lord Halsbury, now again the Just now both branches of the profession Lord Chancellor, says that no less than seventyare agitated over matters which affect them seven solicitors were disqualified during his last most closely. The lord chancellor has brought administration as Lord Chancellor, and that, in in a bill to create the office of legal trustee. his opinion, the number of breaches by trustees At present there is no such office. Trustees which never come to light is enormous. act independently of all control, and are only On the other hand it is claimed that, as there answerable, in case of breach of trusts, to their are more than 15,000 solicitors on the rolls, the cestuis que trust, who must apply to the Chan- proportion of those who are dishonest to the cery Courts for relief. Most of the trustees entire number is infinitesimally small. Where are solicitors, and all of them serve without the matter would have ended cannot be safely compensation.
predicted, but it will be hung off for a while, as The idea of fees or commissions is abhorrent the recent change in government will suspend to the English courts, and they are never al- legislation on the subject for some time to come. lowed. It is sometimes the case that when | The matter which has interested the other branch solicitors are appointed the instrument creating of the profession, the bar, concerns its domestic the trust provides that they shall be allowed to or internal management. A large majority of the charge for such work as they may professionally barristers, particularly the younger members, perform, but otherwise even such services re are desirous of forming an organization for the ceive no compensation. Notwithstanding this purpose of directing, controlling and governing rule the solicitors make money out of trusts and their own affairs; and to this end a general trustees. A trustee is not simply the holder of council of the bar was formed. But it cannot a legal title or the administrator of a fund. get on without funds, and the barristers who He is a family friend and confidant, a repre- before being called are obliged to pay large sentative of a deceased father, or a grantor of sums to the already wealthy bodies which are a marriage settlement. He sympathises with known as the Inns of Court, naturally object to the beneficiary of the trust -- but he takes no put their hands in their pockets to provide these step without consulting the solictor, and the funds. There are four Inns of Court — the solictor permits no consultation without enter-Middle Temple, the Inner Temple, Lincoln'sing up a charge for it. An aggrieved party inn and Gray's-inn. Conjointly they have a stated in one of the newspapers a few days ago revenue approximating $500,000 a year. Their that the appointment of an additional trustee of affairs are administered by a board of governhis estate, although there was no opposition, and ors or managers or trustees, called Benchers." the proceedings were of the friendliest charac- They make no report of their income or their ter, had cost a little over £80. In other expenditures. Of course, they are men of inwords, nearly $400 had been expended in tegrity and high character, and no one ques“consultations, conferences, visits,” “in- tions the honesty of the administration of the structions," and the "fair copying" of formal funds they handle. There is simply the feel