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The Albany Law Journal.

ALBANY, JULY 2, 1881.



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́R. JOHN C. DODGE, in the July Atlantic Magazine, writes nine pages on Trial by Jury in Civil Suits, without saying any thing new but the following: "Few persons will be found to deny that we are more sure of justice according to law without juries than with them." He could not have looked beyond the nib of his pen for that remark. He also tells us "there is in the community a widespread distrust of the trial by jury." He quotes as authorities for this assertion the following: "Baron Bramwell, on examination before the Law Courts Commission (Scotland), said: 'If I wanted nothing but the truth in a particular case, I should prefer the verdict of a judge, and it seems to me impossible to doubt he is the preferable tribunal. In an action against a railway company, they (juries) generally go wrong; in actions by tradesmen against gentlemen, in questions whether articles supplied were necessary to an infant or wife, they are sure to go wrong; in actions for discharging a servant, they generally go wrong; in actions as to malicious prosecution, they are always wrong.' Mr. Patrick Fraser, well known as an advocate and law author, before the same commission said: 'I think it (jury trial) the biggest farce that ever was instituted for the investigation and settlement of civil rights. * * In a number of cases, unless the judge takes the case out of their hands, the verdict is sure to be one way. * * * But apart from my opinion, the practical result is this: we have tried it for fifty years, and it has entirely failed. You can't bring people to the jury court. Merchants in Glasgow say they would rather resign their rights and interests altogether than submit their cases to a jury.'" It seems to us that Baron Bramwell has selected the very cases in which a jury is generally right. But this eccentric judge does not believe in suits against railway companies for accidental injuries, but thinks the community ought to bear their hurts to encourage the railroad people. In VOL. 24.- No. 1.

this country, unlike Scotland, there are more people who want their cases tried before juries than can be accommodated. Mr. Dodge gives a history of jury trial. He thinks a judge is a much better arbitrator of facts than a jury; in which he will find very few judges to agree with him. Mr. Dodge's argument after all amounts to only this: so many suitors are willing to waive jury trial, that the rest ought to be deprived of it. In our judgment, one of the weightiest arguments in favor of the jury has been very little insisted on. That is, the tribunal which is to pass on disputed facts in any given community ought not to be known beforehand, and ought not always to be the same. To put this power in the hands of one or another of a very small number of judges, holding office for a long term, would be to invest him with a very dangerous power, and to load him with a very heavy responsibility. The jury system shares the power and divides the burden. The faults with which the jury system is charged are those of the community. Justice is never any better, seldom any worse, than the average moral sense of the community in which it is administered. Verdicts of insanity in cases where outraged husbands, brothers, or fathers, kill the seducers of their wives, or sisters, or daughters, although morally wrong, express the sense of justice existing in the community. Such a verdict as that acquitting Col. Buford for the murder of Judge Elliott, in Kentucky, measures the moral sense of that community. So of the acquittal of the murderer Cash, in South Carolina. A one-man jury would share or yield to the same moral sense, even more slavishly.

Speaking of the Code of Criminal Procedure, the New York Daily Register says: "There is a chapter entitled 'General provisions respecting lawful resistance.' It is only not quite equal to the famous chapter 'On snakes in Ireland.' The entire chapter is this: 'Sec. 79. Lawful resistance to commission of a crime may be made: 1. By party about to be injured. 2. By other parties.' We should say so. If it be lawful it may doubtless be lawfully made. If made it must doubtless be made by the person about to be injured or by other persons. We cannot think of its being made not by the one and yet by those who are not others. A

-a contract

little meditation, at least by those who have studied the 'me' and the 'not me' of the metaphysicians, or even the all A. is B. of the logicians, will make the soundness of this chapter plainer than the use of it. The word 'party,' by the way, in the manner here used is a vulgarism which none but a student or Mr. Guppy should be guilty of. One cannot be a party without being a party to something a suit. To say that a party did an act or may do an act means a number of persons acting together. If it is intended of one person it is not the word unless it is used of his co-relation with others. The party about to be injured' cannot mean a party to the crime or the attempt. should be, 'the person about to be injured."" This is sheer hypercriticism. The gist of the enactment is simply this: persons other than those about to be injured may lawfully resist the commission of a crime. This is certainly not an axiom, and needs an enactment. In regard to "party" or "person," a person engaged in a transaction which is the subject of legal inquiry may properly be said to be a "party" to it. The writer is the victim of his "metaphysics." And by the way, "co-relation with others "is tautological. One cannot have "co-relations" with himself.


The Penal Code is weather-bound in the Senate. Having passed both Houses once, and the Assembly three times, and having on the last occasion passed the Assembly by an overwhelming majority, it now lies on the Senate table by a vote of twelve to twelve. Thus while our practice, both civil and criminal, is codified, our principles, both civil and criminal, are in nubibus. While there is without doubt a considerable party opposed to the codification of our civil law, we have heard little opposition to the Penal Code, either as a scheme or in respect to its execution. The objections are wholly of detail and of the most trifling description. So far as we know, the profession and the public would be glad to have it enacted. It is proposed to go into effect next May, and this lapse of time would afford ample opportunity for amendment, if it should need any. We hope the Senate will not lose sight of this vitally important measure in the smoke of ephemeral party strife.

Vacation is at hand, and the lawyers "should not make things unnecessarily long," as the English judge told the lawyer who talked about nolle prosequi, with the accent on the second syllable. In Gaines v. Lizardi, 3 Woods, 77, counsel "argued seventeen days." Judges also need a word of caution on this point. The Southern Law Review for

me-July, in a notice of 102 U. S. Reports, says: "After perusing twenty-six solid pages of a concurring opinion by Justice Clifford, in Railroad Company v. National Bank (Justice Harlan, at the close of eleven pages of the opinion of the court, had added, Further elaboration would seem unnecessary '), and the ten pages of the opinion by him in Parks v. Booth, which constitute his contribution to

this volume, a half-guilty sense of satisfaction steals over the reader as he appreciates that these are the last of those famously elaborate disquisitions by which that learned judge has so often, during more than twenty-two years, exhausted at once the law of the case and the strength and patience of the readers."

It would be hard to find livelier reading for a lawyer than two articles in the July Atlantic on the "Ladies' Deposit" fund, lately blown up in Boston. One is by "Gail Hamilton" (Miss Dodge), entitled The Gentlemen's Contribution to the Ladies' Deposit; the other by Henry A. Clapp, entitled Sympathetic Banking. The fraud consisted in borrowing money from women and pretending to pay eight per cent a month for it. Some Quaker philanthropist furnished the money! It was at length exposed by the Boston Advertiser newspaper, and the female principal was recently sent to prison. Miss Dodge was one of the victims, and of the most unreasoning champions. Her present article is a shrill feminine shriek, to the effect that the men would have been swindled just the same, and that the Advertiser is very much to blame for not having exposed it sooner. The result, she says, "does show that men, so far as the Ladies' Deposit has tested them, are untrustworthy as reporters of facts or reasoners on facts, that they have either not culture enough to tell a straight or not conscience enough to tell a true story, and that they are utterly incompetent to be intrusted with the educational interests of children or with the financial interests of women.” Perhaps; but are the women, Gail Hamilton being the example, likely to prove any better? Mr. Clapp's article is intensely interesting to a lawyer, and is exquisitely humorous. Of Miss Dodge he justly says: "But the extreme rage even of a clever woman will not enable her to write a sensible letter on a difficult subject of which she has no knowledge. Afterward, in the Boston Journal, Miss Dodge hedged a good deal—so much so, indeed, that her last utterances were darker than Delphic oracles. In the light of subsequent events her public attitude has an intensely comic look." He then depicts her as sitting in a pasture, clothed in red, and being threatened from behind by a furious cow. A bystander warns her of the danger, and she accuses him of want of charity for cows, and exclaims: Are 'Poor, spiteful man, look to your own sex. the bulls all peaceful and harmless? Answer me that." The result is that she finds herself in the


predicament of the other maiden in the nursery rhyme of Jack's house.

The address of Hon. J. M. Woolworth, before the Iowa State Bar Association, May 10th, contains a remarkably ingenious account of the manner in which custom becomes law. Judge Woolworth also utters the following which is timely: "The practice of law, considered merely as a business, is the least satisfying of all human employments. Considered as a business merely, I say; that is, prose

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