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suspecting what varied emotions of sympathy and indignation his brother on the circuit had experienced in dealing with the living characters who figure in that record.

How different the duties of the two!

The nisi prius judge sees a case unfolded for the first time. Facts of which even the most industrious counsel are ignorant, are unexpectedly developed, oftentimes clashing with the preconceived theories of both sides; their relevancy must be determined and the cause must proceed. Little or no opportunity is afforded to consult precedents. The arguments are made without preparation and the trial court must rule. The cause reaches the Supreme Court. In the meantime the whole subject has been explored. Authorities have been found on both sides. Exhaustive discussions at the bar of the Appellate Court place the question before that court so lucidly that the right of the case is made clear. The appellate judge, with ample opportunity to review and consider the questions, at length hands down what the successful appellant is pleased to call a luminous and exhaustive opinion, and the wonder is that the nisi prius judge ever made such a blunder in deciding otherwise. I submit, gentlemen, that this is no fair test of the ability of the two judges. Reverse the conditions, and the probabilities are that this same appellate judge, especially if he has been long on the bench, would have committed the same error, and added a number of others to it, or if the same library had been accessible to the circuit judge, that was at the disposal of the Appellate Court, he would have decided the question right in the first instance. I am led to this line of comment because I desire to emphasize my condemnation of the practice of some appellate judges in indulging in sarcastic and unjudicial utterances in regard to the rulings of their brethren on the circuits. I know the difficulties that beset both, and I appeal for a broader charity and greater respect on the part of both the appellate courts and the bar for our nisi prius courts.

The trial of a law suit in the nisi prius court is so different from the cold, critical work of the Supreme Court in examining the transcripts for error, that it is hard to compare the two.

The circuit judge is the consulting architect, to whom all the plans and specifications are submitted before the building is commenced. Even more, he is the master builder, who superintends the structure as it proceeds.

He must repair each false step, must tear out and rebuild until the whole is symmetrical.

He must carefully inspect all materials used, reject the faulty, accept the suitable.

He must contend with the winter's freeze, and the summer's heat. In the execution of his plans all the vices, shortcomings, misfortunes and mishaps to his workmen must be counted.

Finally, when his work is done, there may be the inattention or the oversight of an employee a discolored brick in the front wall, or an unsightly knot-hole in the finishing, or a crack in the plastering of some rear room, but for all substantial purposes of shelter from the summer sun or wintry blast, it is a goodly house.

Not such your supreme judge. He deals with none of the beggarly elements of brick and stone. He deigns no converse with hod-carriers or journeymen carpenters, but waits till all the rubbish is removed and the dust swept out, and then with the cold eye of the critic and expert walks through the building, and, forgetting that it is far easier to tear down than to build up, points out each minute defect, and rejects the work because it does not comply with all the specifications.

Having indicated our sympathy for the nisi prius judge we can, without offense, express our view of what the ideal Circuit Court should be.

To measure up to the full stature, he should, first of all, be a man "sans peur et sans reproche." His life should be the most eloquent of all pleas for all that is pure, just and lawful. What he teaches and expounds by precept, he must not by example belie.

If from his high place he charges, as he must, against wrong, crime and immorality, and seeks to lead the people to a higher and purer atmosphere of social life, his own life must be blameless. The spectacle of a judge reading a homily to the

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grand jury against gambling and vice, and then indicted by the same grand jury for gambling, would shock the bar and public alike, and prove an incurable blow to the administration of justice by him in his circuit.

He should be one who loves justice. He should be a patient listener, but at the same time have a capacity for the dispatch of the business of his court. He must keep the control of his docket.

The nisi prius judge is seen in his best or worst light in the trial of a cause with a petit jury, accordingly as he measures up to the magnitude of the occasion.

The framers of the Constitution of the United States and of our several State Constitutions were so jealous of the right of trial by jury that they were unwilling to let it rest on the unwritten or common law, but imbedded it in these organic charters in language so lucid and explicit that it can not be evaded, save by destroying these Constitutions.

Lord Camden said: "Trial by jury is indeed the foundation of our free Constitution; take that away and the whole fabric will soon moulder into dust."

But we all know that the common law trial by jury was "trial by court and jury." Under that system and ours, "the judge determines the law, and the jury the fact."

Each in their appropriate spheres is essential to a rational determination of the rights of the parties before the court. Neither must trench upon the province of the other. It is when they exert on each other a mutual and salutary control that they reach their highest moral plane and best justify the wisdom of the system.

It is the trial judge who must understand and enforce the great fundamental principle of jury trial. It is his function to ceaselessly guard this right of the litigant, especially if the litigant be a defendant in a criminal prosecution. It is his duty to see that the jury is indifferent between the Commonwealth and the prisoner at the bar.

Whatever criticisms have been indulged in the past on the failure of juries to reach exact justice, it is at least true that

their recorded errors number far less than those which the highest courts have committed and confessed in their innumerable overruled cases.

As for myself, the longer I live and the more closely I observe the result of jury trials, the more I am inclined to agree with that English writer who says that "when we consider the impartiality required and enforced in returning juries, and the properties which the law requires in every juryman when returned, we may almost doubt whether human wisdom is capable of providing a more perfect method of determining the truth of facts consistent with the liberties of a free people, at least we may conclude that it has not hitherto done it."

But it is when the constitutional jury is obtained, and the trial proceeds, that the nisi prius judge is himself placed on trial. It is then he invites the closest scrutiny. From the moment that the first witness is called until the verdict is rendered it is his part to guide the trial in the paths of the law.

He must not be a mere idle spectator of a gladiator's struggle for victory, indifferent as to the victor, but he must feel that the sublime purpose of the trial is the administration of justice, the highest function of man. He must realize in the language of Judge Caldwell that "reduced to its last analysis, the intelligent and impartial administration of justice is all there is of free government." He must bring to the discharge of the duties of his high trust his greatest sense of justice and right. He should be thoroughly acquainted with the principles of law governing the case, and to that end he must have explored the rich fields of jurisprudence and gathered therefrom their choicest fruits. He must be an impartial arbiter. He must be alert to discover the heresies propounded on either side.

He must be careful in deciding a question of evidence to keep his own views as to its weight to himself, passing only on its competency or incompetency, for ignorant as some suppose the average juror to be, he is, in fact, most astute in watching the judge, and quick to accept the mental and moral bent of the


While he must not deny the freedom of argument, he should rigidly require counsel to keep within the record and the testi

mony, because it is the very essence of a fair trial, that the issue shall be determined according to the law and the testi


The common law practice adhered to in the Federal courts, and in some of the States, imposes upon the trial judge a most delicate duty. It is very hard indeed for him to charge the jury without indicating his own view of what the verdict should be.

With us in most of the Western States we require the judge to give his instructions on the law in writing, and forbid his commenting upon the evidence, endeavoring in this manner to obey Lord Coke's injunction that "the judge must not respond to questions of fact, but only the jury."

When the jury return their verdict the trial judge is called upon to exercise one of the most important of all his duties, that of determining whether a new trial shall be granted. Sir William Blackstone long ago summed up the necessity of lodging in the nisi prius courts the power to grant new trials. He said: "If every verdict was final in the first instance, it would tend to destroy this valuable method of trial." "Either party may be surprised by a piece of evidence which he could have explained or answered, or may be puzzled by a legal doubt which a little recollection would have solved. In the hurry of a trial the ablest judge may mistake the law and misdirect the jury; he may not be able so to state and arrange the evidence as to lay it clearly before them, nor to take off the artful impressions which have been made on their minds by learned and experienced advocates."

But to an association of learned lawyers I need not discuss the self-evident necessity of an opportunity for re-examination of a question of fact before a jury.

A motion for a new trial is one of the essential requisites in the administration of justice in our system of trial by judge and jury, and yet we have all witnessed "a painful weakness in the dorsal region" when our circuit judges are called upon to exercise this power which is conferred to guard against the mistakes, passions, prejudices and ignorance of jurors.

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