that it was his right to have the question answered by the witness, and that it was relied on as material to his defense."

As to this theory of legal right, it may be said in reply that no man has a legal right to have his cause wrongly decided, for that is what this "right" comes to. He has indeed a legal right to a jury trial; and he has a right to a fair trial in general. But these are ends in themselves, because the one by constitution and the other by common sense of justice becomes a paramount object. But none can justify the exaltation of the ordinary rules of evidence, which are mere instruments of investigation, into an end in themselves. As well might a gardener cut down a thriving vine because his henchman has used a hoe instead of a spade in planting it; or a farmer bring valuable bantams to the block because they were hatched by a meddlesome duck instead of by their lawful parent. A glance at common affairs will awaken us to the intrinsic absurdity of the theory of "legal right." As for the theory of usurpation, it ignores the doctrine and the history of the jury's func tion. It has always been under the control and correction. of the trial judge and the appellate courts. The judge determines questions of fact upon which the admissibility of evidence depends. The judge draws inferences of fact on a demurrer to evidence. The judge rules whether the whole evidence is sufficient to go to the jury, and whether the verdict is against the weight of evidence. He has never been without this revisory function. Moreover, upon a question of new trial, because of erroneous ruling on evidence, the appellate court is not asked to overturn the verdict on the contrary, it is asked to let the verdict stand, and the precise question which the appellate court decides is, not whether the jury have been correct or incorrect, but whether, subtracting or adding the evidence admitted or excluded, the truth seems to be identical with the jury's verdict. This is a collateral question, and is entered upon merely as a help to avoiding, if possible, the disturbance of the verdict. The "usurpation," if any, consists in setting aside the verdict, not in confirming it. The advocates of the Exchequer rule concede that, for the purpose of overturning the verdict, they may scrutinize and inter'The history of this is to be found in Thayer, Preliminary Treatise on Evidence, 183-253.

fere with it, so as to say that it goes against the weight of the whole mass of evidence; yet, for the purpose of supporting the verdict, they profess to be unable to weigh a particular piece of evidence, so as to say that it could not have affected the same weight of evidence. This is one of the most indefensible cases of Tweedledum v. Tweedledee that has ever been sanctioned in our books.

As to the practical working of the Exchequer rule, the results are lamentable. Whether in civil or criminal cases, it has done more than any other one rule of law to increase the delay and expense of litigation, to encourage defiant criminality and oppression, and to foster the spirit of litigious gambling. Added to this is the indirect result produced upon the ever-lurking animal instinct of gregarious human brutality, which takes the failures of criminal justice as its pretext and sates itself with cruel lynchings. That the law has gone to the extremes of absurd and provoking technicality in applying this rule is plain enough, even in a casual glance through the reports. Some of the instances of its enforcement would seem incredible even in the justice of a tribe of African fetish worshippers. As types of what is done in a lesser way every day in every court,

The following instances have been here and there noted, and could be multiplied by the score: 1896, Louisville & N. R. Co. v. Miller, 116 Ala. 609, 19 So. 989 (more than a dozen exceptions to rulings on evidence; one only of these being found wrong, though no substantial prejudice was asserted, a new trial was granted); 1896, Louisville & N. R. Co. v. Malone, id. 20 So. 33 (similar; here there were twenty rulings and exceptions); 1878, People v. Bell, 53 Cal. 119 (here the defendant's testimony that the deceased, with whose murder he was charged, was habitually profane, was erroneously allowed to be contradicted by the prosecution, and though the matter was held to have "had no reference whatever to the guilt or innocence of the defendant," a new trial was orde ed, solely on this error); 1897, Murphy v. Backer, 67 Minn. 510, 70 N. W. 799 (new trial granted solely because of a single improper contradiction of a witness on a collateral point); 1894. Carpenter v. Lingenfelter, 42 Neb. 728, 60 N. W. 1022 (new trial granted for allowing the contradiction of a witness on an immaterial point); 1899, State v. Jefferson, 125 N. C. 712, 34 S. E. 648 (a mob had almost lynched the accused, at the time of the arrest; but a new trial was awarded on the merest quibble of evidence, while conceding that the whole evidence "warranted conviction "); 1897, Cutler v. Skeels, 69 Vt. 154, 37 Atl. 228 (eight en exceptions; a new trial granted simply because the plaintiff's counsel in his address said that he knew his clients to be of good reputation and that this was the best kind of evidence for them); 1896, Carver v. U. S. 160 U. S. 553, 16 Sup. 388, 17 Sup. 228 (a dying declaration was sanctioned as admissible, but the deceased on a subsequent day had said to an inquirer that her former declaration was true in every particular:" this being erroneously admitted, a new trial was granted solely because of the error; later the case was again reversed in 164 U. S., 694, 17 Sup. 228). The Federal Supreme Court has been especially callous in pushing the technical rule to extremes, notably in its treatment of some of the rulings of the late Judge Parker, of the Arkansas District, one of the greatest trial judges of the Federal bench, whose work for law and order in that region was inestimable; examples may be found in Allen v. U. S., tried in 1893. reversed in 150 U. S. 551, reversed again in 157 U. S. 675, finally affirmed in 1896 in 164 U. S. 492, 17 Sup. 154; in Starr v. U. S., reversed in 1894, in 153 U. S. 614, and again in 1897, in 164 U S. 627, 17 Sup. 223; and in Brown v. U. S., reversed three times, in 150 U. S. 93. 159 U. S. 100, and 164 U. S 221. These cases give to volume 164 of the Federal Supreme Court reports a discreditable mark in our jurisprudence.

they would explain well enough, even if there were no further reason, why poor men may hesitate to send their cause to trial, why a rich oppressor or a desperate criminal may hope to tire out all endeavors to do justice on him,-why the decisive question for the suitor before litigation often is, not who is right, but who can longest endure,-why ignorant mobs have a patent pretext for distrusting the distant gallows and substituting a near-by tree or stake. Just so long as an erroneous ruling on evidence, however trifling, is described by the highest judges (and in many courts it habitually is) as "working a reversal," just so long will the reproach of technicality and futility mark our litigation. Until the rules of evidence cease to be assimilated. to the play of a hand at whist or the operations of an automatic cash-register, they must remain, as often as not, the instruments of injustice.

Nor have there been wanting sage and courageous warnings from the Bench against the downward tendencies of the modern rule. Many judges-usually, though, as dissenters have recorded their protests against its theory and their condemnation of its results. Their words and their example have remained thus far without avail; but the time will come when they must be heeded:

1897, Brannon, J., diss., in State v. Musgrave, 43 W. Va. 672, 28 S. E. 813 "If we could say there was any misstep in matter of law in this long trial, it is one of very immaterial character, weighing not a feather in the trial, utterly inadequate to justify the reversal of a long, laborious trial bearing to us the face of having been full, patient, and fair. The scope of harmless error, is in these days, widening. Courts do not nowadays, even in grave trials, reverse such trials for trivial errors, evidently not affecting them; so light, and plainly playing so unimportant a part, as not to be appreciably influential or prejudicial when the whole trial, all in all, is regarded. In days gone by, technicalities and rigid procedure sprang up and were enforced to defend accused parties against the demand of monarchic power for conviction, and they then answered, 'Good purpose; but in this country there is not the same need of them, as the danger now is that the guilty will go free, and something is necessary to protect the public against crime. The great press is declaiming against the courts for lax administration of criminal law. The New York World recently stated that statistics show that for 10 years past only 2.20 per cent. of homicides have been punished, and that the people are afraid of the courts, and for quick justice resort to lynch law; and further says that this is attributable to the laxity and languor with which the law is enforced, the quibbles, subtleties, and technicalities of the courts fortressing

criminals, and causing the administration of justice to appear a mere mockery. Such, I observe, is now almost the universal expression of the press. I would not overturn the solemn verdicts of juries rendered after fair trials, and approved by the trial court, unless I could see that on the whole case something substantially wronging the prisoner had been done. I would therefore affirm."

1897, Haight, J., diss, in People v. Koerner, 154 N. Y. 355, 48 N. E. 730: "I am unwilling to join in the affirmance of a case of this character where the accused has not had the benefit of a fair and impartial trial; but, in cases where no reasonable doubt with reference to the guilt of the accused exists, I think we ought not to send a case back for errors which cannot and ought not to affect the result reached by the jury. If any public good is to be accomplished by the administration of the criminal law, punishment should follow the commission of crime with reasonable dispatch. The Legislature has given this Court broad powers with reference to the granting or refusing of new trials; and, while it is our duty to fully protect the rights of the accused and see to it that no innocent person is punished, we should not forget that there is a public interest involved, which it is also our duty to regard."

1898, Whitfield, J., diss., in Lipscomb v. State, 75 Miss. 559, 23 So. 210, 228. "It must thus be clear, beyond all cavil, that this appellate tribunal is not a helpless prisoner, bound in the fetters of some supposed hard and fast rule requiring it to reverse cases where,-first, erroneous instructions have been given; or, second, proper instructions have been refused; or, third, competent testimony has been excluded; or, fourth, incompetent testimony admitted; or, fifth, improper argument has been allowed; or, sixth, the trial court has erred in its rulings on the pleadings,-on the ground, merely, that such action of the Court, of the one kind or the other, constitutes error in law merely. Every one of these propositions is laid down as settled law. * * With all deference, it seems to me that my brethren have clearly confounded the primary function of the jury to pass on the evidence and find the defendant guilty, if satisfied beyond a reasonable doubt, and the power which this appellate tribunal exercises in reviewing that finding of the jury. When the Court so reviews the finding of a jury in a criminal case, and reverses, as it repeatedly has done, on the sole ground that the evidence was manifestly insufficient to warrant the verdict of guilty, or affirm the jury's finding of guilt when that verdict is clearly right on the law applicable to the case and the competent testimony in the case, as it has also repeatedly done, this Court is not usurping the jury's primary function, and passing originally upon the guilt or innocence of the defendant, but is manifestly exercising its undoubted appellate power of reviewing and upholding or vacating the finding of the jury, as the case made may demand, in accordance with settled rules of law governing appellate jurisdiction. The practical inquiry is the true. inquiry, and the practical rule must always be * that where substantial justice has been done, and the right result has been reached on

* *

competent testimony under the law applicable to the case, and no other

reasonable verdict could be rendered than the one which was rendered, a reversal should not follow. The administration of justice is a practical thing. It should be administered in a practical way, so as, while not denying to any defendant any substantial right to which he is entitled by the law of the land, to protect society from violators of the law, and to secure the punishment of guilty men properly convicted."

3. Future of the Exchequer Rule. What is to be the remedy? Unfortunately, it does not seem to be merely in legislation. The fetters of the pernicious rule of the Exchequer were not forged by mere precedent, but by professional habit and tendency. They cannot be struck off by a simple statute. This has been tried; but in vain. There was already, at the very beginning, ample precedent and tradition for the better principle; yet the judges of the King's Bench and the Common Pleas and of our own Courts, when they could choose, made deliberate choice of the worse way. So, too, when legislation has sought to turn them back, they have persisted nevertheless, driven by this same strong technical instinct. In many jurisdictions there are statutes which expressly authorize and command that a new trial shall be granted only when justice requires it, and their object was to abolish the Exchequer rule. What was the consequence? In New York, for example, both the earlier statute and the later statute3 have proved alike ineffectual. In New Jersey the same fate

1 See also a strong opinion by Wallace, J., diss., in People v. Stanley (1874), 47 Cal. 113, 119.

2 N. Y. St. 1855, c. 337 (a new trial may be granted if the appellate court is satisfied "that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial"); 1858, Cancemi v. People, 16 N. Y. 507 (new trial granted for an erroneous ruling on character-evidence, merely because it was calculated to misle ad the jury as to the weight which the evidence should receive"); 1873, Stokes v. People, 53 N. Y. 174 (the deceased's threats communicated were admitted, but some tore its uncommunicated were erroneously rejected; a new trial was granted, although the admission of the excluded evidence would simply have added to the number of threats proved).

Here for awhile something was achieved; and then the practice fell back into the old rut: N. Y. Code Cr. Proc 542 (the Court shall "give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties "); 1896, Gray, J., in People v Hoch, 150 N. Y. 301, 44 N. E 976 ("The spirit of this legislation, as is its letter, is that if the accused has had a fair trial upon his accusation, and if this Court is satisfied that the conviction is sufficiently supported by competent evidence, that conviction shall stand "); 1897, People v. Conroy, 153 N. Y. 185, 47 N. E. 258 (preceding case a proved); 1897, People v. Burgess, 153 N. Y. 561, 47 N. E. 889 (same): 1897, People v. Strait, 148 N. Y. 566, 47 N. E. 1090 ("That statute [C. Cr. P. § 542] is but little more than a codification of the previously established rule * **; neither that rule nor the statute affects the well-established principle that the rejection of competent and material evidence, which is harmful to the defendant and excepted to, presents an error requiring a reversal. Such a ruling affects a substantial right,' even though the appellate court, with the rejected evidence before it, would still come to the same conclusion reached by the jury; the defendant has the right to insist that material and legal evidence offered by him shall be received and submitted to the jury").