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The nisi prius judge has a higher and more responsible duty than to merely record the verdicts of juries. As sacred as the right of trial by jury is, to subserve its great purpose, the right of the judge to set aside a verdict must be preserved along with it.
If by misdirection of the judge, error is committed, he should be the one to correct it speedily, and if error is found, the unsuccessful party should have the wrong remedied at once, and not be compelled to await the judgment of the Supreme Court for two or three years and until the subject matter of the litigation has been completely dissipated, as was the cargo of ice while Lord Eldon was still doubting.
But however able, honest and courageous our nisi prius judge may be, he can never succeed without the co-operation of an able and honorable bar; a bar that feels its high calling, and realizes its power for good in the State; one that will banish from its circle the trickster, shyster and pettifogger.
In your own splendid Code of Ethics you have well said: “The purity and efficiency of judicial administration which under our system is largely governmental itself, depends as much upon the character, conduct and demeanor of attorneys in their great trust, as upon the fidelity and learning of courts or the honesty and intelligence of jurors.”
I am persuaded, my brethren, that our National and State Bar Associations have given a greater impulse toward the elevation of all our courts, and not the least of their achievements has been the elevation of the standard for admission to the bar.
If I have a harsh criticism to make upon our circuit bench, it is upon their loose methods of admitting incompetent persons to the bar, and yet I recognize that often, in so doing, they have yielded to the importunity of the older members who were in turn moved by a misdirected sympathy.
It is no kindness to a young man who is unfitted for the practice to permit him to assume the grave responsibilities of our profession, and he and the courts would be spared much mortification if the nisi prius judge would only have the firm
ness to reject every applicant who fails to stand a searching examination; and last, but by no means least, furnish proofs of good moral character.
When our nisi prius judges, in the language of the Constitution of Maryland, "are most distinguished for their integrity, wisdom and sound legal knowledge,” and are aided by an enlightened and faithful bar, then, and not till then, can we boast : “We will sell to no man, we will not deny or defer to any man, either right or justice.”
Gentlemen of the Virginia State Bar Association, I believe that reform is needed in our nisi prius courts. I believe we have grown indifferent to their needs largely on account of the facility with which we afford appeals.
I believe these courts should be better paid; that they should be made so honorable and dignified that our best lawyers would be ambitious to be judges therein. I believe this reform is practicable by enlarging our circuits, increasing the salaries and adopting methods in harmony with the twentieth century.
I have always been classed with the conservatives, indeed, by some I am considered a Bourbon, but I believe the time has come when the car of justice should quicken its pace. When I first came to the bar in Missouri we had only two terms of court in each year, and the first term, save in suits on notes and direct promises to pay money, was merely the pleading term, and the cause was not triable at that term.
We have now made all cases triable at the first term provided service is had fifteen days before the first day of the term.
In some of our sister States the plaintiff can direct that the writ of summons shall be returnable in not less than ten nor more than sixty days, without regard to terms of court, and thus the settling of the issue is greatly expedited. This is a step in the right direction. In these days when time and space are almost obliterated in the transaction of business by the use of the telephone, telegraph and express, there is no reason why the courts of justice should travel in the antiquated stage coach.
Your experience and mine teaches us that the delays in our procedure very often result in an absolute denial of justice and it is a common remark that the commercial classes are beginning to shun the courts because they cannot afford to wait two and three years for an adjustment of their differences.
The Legislature should remove this ground of complaint. Our terms, if terms we must continue to have, should be more frequent and the time for pleading shortened. Appeals should be simplified and the questions certified for decision to the Appellate Courts should be concisely stated and the expensive and burdensome transcripts pared down with a heroic knife. I believe that the bar of Virginia, so glorious in legal reforms in the past, a bar which produced a Jefferson, who, without precedent, wrote your statute of descents and distributions, and thereby furnished a model for the distribution of property throughout the United States, in language so lucid that not a controversy arose over a sentence in it for forty years; a bar which boasts its John Marshall, Patrick Henry, William Wirt, Benjamin Watkins Leigh, the Tuckers, Robertson, Daniel, Voncure, Green, Staples, Burks, Joynes and Christian and their great contemporaries, and you will permit me to add, the bar which constitutes this association, is the body to inaugurate and carry forward this much needed reform.
Those of us who have learned what manner of men you are, by association with you from 1861 to 1865; who account ourselves your brethren by the holy ties of a common sacrifice, and who have witnessed your triumphs in more recent trials, have absolute faith in your capacity to devise, your courage to inaugurate and your power to secure every needful reform in your judiciary system, and furnish a guide for your brethren in your sister Commonwealths. All over this broad land, there are thousands yet, who remember that it was a Virginia lawyer, Patrick Henry, who first lead the apparently forlorn hope of constitutional liberty on these Western shores; that it was a Virginia lawyer who penned the Declaration of Independence, that immortal declaration which the gifted Buckle declares should be inscribed upon the portals of every royal palace, and hung in the nursery of every King in Europe; and that John Marshall
and James Madison, two other Virginians, were the great expounders of the Constitution of the United States, a Constitution which a Virginia Legislature first proposed.
There are thousands of us yet who cherish with filial affection the memories of the struggles of "the Old Mother” to preserve that Constitution, and the rights it guaranteed to us and our children, and we are still willing to place you in the vanguard and support you in the future as we have in the past in your efforts to preserve the spirit of liberty on your consecrated soil, and to transmit it to those who shall come after us, and as in the past, we look to the Bar of Virginia to blazon the path and lead in the solution of the great questions which are crowding upon us in common with you.
Gentlemen of the Virginia State Bar Association, if I were not profoundly sensible of the distinguished honor you have conferred upon me by your invitation to address you on this occasion, I would be less than a man. If I had adequate words to express the gratitude I feel for the kindness and courtesies you have extended to me and mine during my stay among you, I would be more than a man. I can only say, I thank you.