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ensuedı. Occasionally, indeed, the true spirit has been communicated, -as in Kentucky.” But on the whole the effort has been fruitless. By an emasculating interpretation, or by a virtual obliteration, the statutes remain substantially null. Professional instinct from within, and professional pressure from without-the demands of the bar to be allowed to win by technicalities—, have been too strong.
But the thing can be done. It has been done. In England, to-day, the whole odious practice of misusing the rules of evidence as petty stratagems in litigious tactics has passed away. In the reports of decisions, there now occur annually not more than five rulings upon points of evidence, as against more than five hundred in the reports of the United States, -and that in a community almost half as populous as ours but more than twice as litigious. The reformatory legislation in England, commencing with the Common Law Procedure Act of 1852 and culminating in the Judicature Act of 1875 and the Rules of Court of 1883, seems to have been based upon a profound professional revolution, and to have signified not merely a change of rules but a change of spirit. The same thing is possible among us. No doubt the contributing conditions to such a change must be numerous.
But 1 N. J. St. 1894, May 9, c. 163 (new trial is to be granted where any “manifest wrong or injury" has been suffered); 1897, Kohl v. State, 59 N. J. L. 445, 37 Atl. 73 (murder; the trial judge told the jury that a question was whether there was a motive, in particular, whether the deceased had any money; the defendant's mother, with whom the deceased lived, had said on the direct examination that the deceased showed no large sums of money, and on the cross-examination, that he had no money but a dollar a week; she was then allowed to be contradicted by B, who testified that she had elsewhere said the deceased had $800 ; this statement, however, it was ruled, not being precisely inconsistent with her direct examination, and not being available to impeach the cross-examination where she had been made the examiner's own witness, was therefor inadmissible, and hence there was no evidence to show that he had money, except this contradiction;" for that reason alone, the judgment in my opinion should de reversed and a new trial granted "). This ruling apparently led to another statute, which makes a further effort to control the judicial mania (Si. 1898, c. 237, $ 136) by adding that “no judgment shall be reversed
for any error except such as shall or may have prejudiced the defendant in maintaining his defence upon the merits '').
• Ky. Cr. C. 1877, $ 340 (“ A judgment of conviction shall be reversed for any error of law to the defendant's prejudice appearing on the record"); St. 1880, Mar. 4 (amended by adding : whenever upon the consideration of the whole case the Court is satisfied that the substantial rights of the defendant have been prejudiced thereby "); 1880, Rutherford v. Com., 78 Ky. 639, 643 (dealing with the trial Court's erroneous refusal to allow the defendant to be present at a view ; “If all the evidence that the jury could have received on the view
had been excluded, it is clear that the verdict must have been 'guilty of murder '; under such circumstances, we are authorized in saying that the record affirmatively shows that the error complained of was not prejudicial' to the defendant."').
among the marks of regeneration there must surely be found two vital ones:
First, the judge must cease to be merely an umpire at the game of litigation. To-day he is little more. This, to be sure, is in part, the continuance of a tradition, inherited from the spirit of gentlemanly sportsmanship which domi. nated the administration of British justice. But it has been intensified, instead of lessened, by the spirit of strenuous struggle and unrestrained persistence which drives the bar of our country to wage their contests to the extreme of technicality. The judge weakly resigns himself to the position of “a mere automaton, or at most the attitude of the presiding officer of a deliberative assembly, with no greater powers than those of announcing the utterances or conclusions of others."1 To this many circumstances conspire. But it is an old and a marked tendency among us; and, until it is rooted out, that early warning of one of the Nestors of our judiciary will still be worth heeding :
1852, Nisbet, J., in Cook v. State, II Ga. 53, 57: “ It is to be feared, in these days of reform, that the Judges will be so strictly laced, as to lose all power of vigorous and heathful action. I have but little fear of judicial power in Georgia so aggrandizing itself, as to endanger any of the powers of other departments of the government; or to endanger the life and liberty of the citizen; or to deprive the Jury of their appropriate functions. The danger rather to be dreaded is making the Judges men of straw, and thus stripping the Courts of popular reverence, and annihilating the popular estimate of the power and sanctity of the law.'
Secondly, the maudlin sentimentality of judges in criminal cases must cease. Reverence for the Constitution is one thing, and a respect for substantial fairness of procedure is commendable ; but the exaltation of technicalities of every sort merely because they are raised on behalf of an accused person is a different and a reprehensible thing.
1885, Poché, J., in State v. Ford, 37 La. An. 443, 461.
: The following case illustrates the way in which this has been brought about partly by the unlicensed efforts of the bar: 1897, Davis v. State, 51 Neb. 301, 70 N. W. 984 (the trial judge's instruction was: “ If the jury find from the evidence that all the incriminating circumstances * * * [leave a reasonable doubt), then you should by your verdict acquit him"; the phrase "incriminating circumstances " was objected to by the defence as unfair; but the Supreme Court rejected this claim in the following language: “It never was the intention of the law that the district judges of the state should abdicate their reason because a man was on trial charged with the commission of a crime; nor does the law of the land place the district judges in a straight jacket in criminal trials, nor make of them mere machines to repeat certain general propositions of law in their instructions." What was needed, however, was a stern rebuke, which should fittingly condemn the unscrupulous callousness of counsel capable of obstructing the course of justice by such impudent quibbles.
There seems to be a constant neglect of the pitiful cause of the injured victim, and the solid claims of law and order. All the sentiment is thrown to weight the scales for the criminal—that is, not for the mere accused, who may be assumed innocent, but for the man who upon the record plainly appears to be the villain that the jury have pronounced him to be. We have long since passed the period (as a modern judge has pointed out)1 “ when it is possible to punish an innocent man; we are now struggling with the problem whether it is any longer possible to punish the guilty.” The dignity, the truth, and the lofty inspiration of great constitutional principles are frittered away and degraded. While on the one hand certain fundamental ideals of political liberty bave come to be lightly questioned as impracticable or cynically ignored as obso. lete, on the other hand the constitutional safeguards of procedure and evidence are invoked with such fatuous frequency and such misplaced technicality that their respect is lowered and their true purposes are defeated. I do not understand,” protested a great judicial interpreter of the organic law, 2 “ that the Constitution is an instrument to play fast and loose with in criminal cases, any more than in any other; or that it is the business of Courts to be astute in the discovery of technical difficulties in the punishment of parties for their criminal conduct." Yet they seem to make it their business. A false sentiment misapplies their energies. This they must unlearn. The epoch of govern. mental oppression has passed away; the epoch of individualistic anarchy has taken its place. They must learn the lesson of transferring the emphasis of their sympathies,-a lesson more than once read to them by the voices of their own fellow-members of the judiciary:
1805, Smith, B., on the trial of Mr. Justice Johnson, in 29 How. St. Tr. 353: “ There may indeed be a tame and creeping and tradesmanlike mode of administering the law conceived; but it is not one which meets my ideas of the duties or station of a judge. Laws are but means; and though it be not our province to legislate but to interpret, yet we should not forget or fail to further the end and object of those laws which we are called upon to construe, namely, the preservation of public morals, the
1893, Freeman, J., in Roper v. Territory, 7 N. Mex. 272. • 1883, Cooley, J., in People v. Murray, 52 Mich. 291.
promotion of social order, and the establishment of good government, of our liberties, and of the constitution.
1873, McCoy, J., in Eberhart v. State, 47 Ga. 598,610 : “We have, however, no sympathy with that sickly sentimentality that springs into action whenever a criminal is at length about to suffer for crime. It may be a sign of a tender heart but it is also a sign of one not under proper regulation. Society demands that crime shall be punished and criminals warned, and the false humanity that starts and shudders when the axe of justice is ready to strike is a dangerous element for the peace of society. We have had too much of this mercy. It is not true mercy. It only looks to the criminal. But we must insist upon mercy to society, upon justice to the poor woman whose lood cries out against her murderers. That criminals go unpunished is a disgrace to our civilization; and we have reaped the fruits of it in the frequency with which bloody deeds occur."
JOHN H. WIGMORE. NORTHWESTERN UNIVERSITY LAW SCHOOL, CHICAGO.
THE TUBWOMEN v. THE BREWERS OF
At the commencement of the last century the common law doctrine of conspiracy as affecting combinations to raise or lower wages was thoroughly examined in our courts by eminent counsel and judges with reference to its applicability to New World conditions. Such combinations, in so far as they tended to alter the so-called natural market values of labor, by interfering with competition, were deemed restraints of trade, infringing public right, and, therefore, indictable. To-day they are authorized by statutes both with us and in England; and at the close of the nineteenth century a President of the United States, before laying a corner-stone with the perfunctory trowel, joined a labor union for the sake of regularity; and his successor also enrolled in a widely ramified organization of manual workers with which he had not been particularly identified as a wage earner.
The time has come, apparently,
Quand on conspire,
On peut se dire conspirateur." Judges and textwriters alike admit the difficulty, if not impossibility, of defining “ unlawful conspiracy," which, like fraud, must be often spelled out from the circumstances of the case. Even Mr. Wright, in his exhaustive collection of English cases, modestly says, “No intelligi. ble definition of conspiracy' has yet been established. The object of these sections is to collect material for such a definition."1
The weight of judicial authority is that a combination to increase or lower wages was not made an offence by statute; but was a conspiracy under the common law
1 The Law of Criminal Conspiracy and Agreements, Philadelphia edition (1887) pp. 11-12. cf. State v. Burnham (1844) 15 N. H. 396 at 402; State v. Donaldson (1867) 32 N. J. L. 151 at 152 ; Smith v. People (1860) 25 Ill. 17 at 23; State v. Glidden (1887) 55 Conn. 46 at 68.