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“The Nisi Prius Judge in our

Judicial System."




Associate Justice of the Supreme Court of Missouri

Gentlemen of the Virginia State Bar Association:

Yielding to a sentimental desire to revisit your glorious old Commonwealth and scenes hallowed by the most sacred memories of my life, I rashly accepted your invitation to address you on this occasion, without a due consideration of the disappointment it might bring to you.

As soon as official obligations would permit, I began to cast about for a topic and found that the field had been so occupied that little appeared to be left.

The "Trusts” have furnished a magnificent opportunity for those who have addressed our Bar Associations; the great labor upheavals have had their seasons; and “Government by Injunction” has been lauded and condemned in turn. The police power has been examined and reviewed; the right of "Trial by Jury” has furnished a text for eloquent and splendid orations; and “John Marshall Day” has enriched our legal history to a marvellous degree.

Conscious of my own limitations, I shall not attempt such weighty themes, but invoke your consideration of the relation to and importance of “The nisi prius Judge in our Judicial System."

Not as an apologist, neither as eulogist, would I discuss him. As an actor in a drama, so common to the boards, he rarely evokes mention or notice, save by way of depreciation. But as he is a necessary factor in the system, this is an opportune time to measure him, to weigh him and ascertain if he is worth retaining as he is, and if not, see how he can be improved and how far he may rely on this and similar associations to aid him.

With the self-sacrificing disposition for which he is noted, our circuit or district judge will, to-day, lay aside his robe, and appearing unheralded by his tipstaff, submit himself to the criticism that is born of the skepticism which characterizes our age.

This done, we find he is simply a man, differing only in degree from his more exalted brethren of the appellate courts and his less pretentious friends of the inferior courts.

When we speak of the nisi prius judge we refer, of course, to the judges of the common law and equity courts, whether denominated circuit, district or superior courts.

Like the judges of the Supreme Courts, he has been moved to seek his position from mingled considerations of ambition, professional pride and patriotism, three elements that must of necessity enter into the filling of the position, whether it comes to him by appointment or election.

The average man, whether lawyer or layman, is so constituted that he seemingly takes little note of the most beneficent and salutary forces either in nature or organized society, and yet if he were deprived of their influence for a day or even an hour, widespread ruin and disaster would be the inevitable result. As light and the law of gravitation are to the earth, so are the blessings which come to us daily from the administration of justice by an honest, capable and thoroughly equipped, but ill-requited nisi prius bench. It cannot be that the importance of able, independent, courageous circuit judges has escaped attention and much earnest thought, and yet, how seldom do we acknowledge our obligation to these hard-worked and faithful servants upon whom we cast the great burden of enforcing our laws, and how rare are the occasions when we

pay them even the poor tribute of a word of commendation, even in an association like this, composed of lawyers who daily witness the services of these judges.

On the other hand the habit, I fear, is growing of depreciating their work, and a disposition to regard these courts as a kind of purgatorial station in which we are compelled to linger awhile in our journeys to the appellate courts.

It is because I am deeply impressed with the injustice done to these courts, not only in failing to recognize their value and importance, but in the niggardly way in which we compensate them, that I have turned from a contemplation of the more exalted tribunals to invoke your attention and assistance toward an elevation and improvement of these, which we can justly denominate the people's courts."

Our system of jurisprudence, its underlying principles, its methods of procedure, are being subjected to examination and discussion by our respective bar associations, but so far these discussions have been principally devoted to an improvement of appellate methods.

It is true, newspaper writers have proposed many Utopian schemes for the acceleration of trials in the Circuit Courts, but by far the greater portion of the so-called reforms which they advocate, especially in criminal law, would abrogate all that Englishmen and Americans hold sacred. It matters not how perfect your organic law may be; how logical your codes, unless you have trial judges imbued with their spirit, and strong and independent enough to enforce the law, your judicial system must be a failure.

The question, then, the practical, important question which affects the great mass of citizens, and not the small per cent. who are able to prosecute appeals to the appellate courts, is this, “Are our nisi prius courts, accomplishing the great purpose

for which they are organized, that of administering justice at every man's door, and without unnecessary delay, and if not, why not ??

After an experience of thirty years in the courts, I am of the opinion that in the great majority of the States of this Union the Circuit Courts have to a large degree met the expectation of the people of the several States, and have received and merited the confidence of the bar and people, and I am per suaded that the permanency of our free institutions and the liberties of our people have their surest safeguard in the integrity of these courts, whether the judges have been elected by the people, by the Legislature, or appointed by the executive and confirmed by the State.

In this age of appeals, when every litigant is vouchsafed a hearing in the courts of last resort, I fear that there is a tendency to forget that the purpose of our judicial scheme was to furnish every suitor a court in his own county in which his cause might be heard and determined, and to that end unlimited original jurisdiction in common law actions and suits in equity, and in criminal prosecutions, was conferred upon them.

It was to save the intolerable annoyance to the jurors, and the intolerable expense to litigants, of bringing jurors and witnesses to Westminster, that our English ancestors required the justices to take the record down to the counties in which the facts occurred, and to try the issues there, and this, as we all know, was the origin of the phrase "nisi prius," and we, in this country, have inherited this right to have our causes tried before competent courts in our own neighborhoods, and to avoid the expense of trials at places so far removed as to amount to a denial of justice.

l'nquestionably, much of the prejudice which has existed against our Federal Courts, is directly attributable to the fact that our Federal districts have been so large that it proved burdensome to litigants therein, and to the additional fact that our people did not know the judges and officials of the Federal Courts, and hence a most unfortunate jealousy of their jurisdiction has been engendered in many sections of our country.

Any system which fails to provide courts easily accessible by litigants, witnesses and jurors, must necessarily be unsatisfactory; moreover, the character of the courts must be such that no invidious comparison can be indulged between them and the Appellate Courts. By Stat. 18 Eliz., c. 12, the Chief Justice of the King's Bench, Chief Justice of the Common Pleas, and Chief Baron of the Exchequer, were required to try calises upon writs of nisi prius, and thus the British subject had justice administered in his own vicinage by the most learned judges of the realm, and it was with a knowledge of English judicial history that we granted to our nisi prius courts judicial power in the fullest sense, and it was the purpose of their creation that they should be so organized and officered that the litigant should have the law administered in them in the first instance, and not that they should be mere way stations on the route to the Supreme Courts, which, having only appellate jurisdiction, are as powerless as the lowest courts to revise or control the action of the Circuit Courts until the latter have exhausted their power as the trustees and depositaries of their own extensive judicial authority, and in the exer.cise of which they are as independent of, and free from, the control of the Appellate Courts, as they are and ought to be from the control of the executive and legislative branches of the government, and it must be conceded by every experienced and thoughtful lawyer that in the examination of facts their opportunities are so superior to the Appellate Courts that it is only in rare and exceptional cases that the latter should ever assume unto themselves the power to interfere with their findings.

Considering, then, the extensive and exclusive original jurisdiction of these nisi prius courts, they are tribunals which ought to command the respect of the bar and people alike, on account of their dignity and power.

If, in fact, they do not, it is your duty and mine to ascertain why they do not, and to lend our best efforts to bring them to the high conception of the founders of our government.

Remembering the unbridled criticism to which our Circuit Courts are subjected, not only by the ignorant and venal, but by those of us, who ought to, and do know better, the respect which the people of all classes in this country still yield to and retain for our trial courts is most significant, and most encouraging to those of us who love our free institutions, and desire to see them perpetuated. That we have been able, so far, to induce

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