THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany Law Journal.

ALBANY, JULY 4, 1891.

of the problem. Indeed our experience of government by Congress has not taught us to expect ideal measures or perfect results from that latest product of the Anglo-Saxon political genius. We are getting into the habit of accepting its favors with gratitude that they are no worse.

CURRENT TOPICS.

THE

HE new Federal Courts of Appeal have been set up, with all the pomp and circumstance of organized justice. In each case the court was organized by a justice of the Supreme Court, with the assistance of the Circuit and District judges, and there was no end of oratory, mostly of the congrat-surprised if it does not materially increase their ulatory sort. We have heretofore confessed to a burdens. It seems more than likely that, as business weakness for judicial millinery; the silk robe im- increases in these new tribunals, the more imporpresses our imagination, and the panoply of justice tant causes will be reserved for the advent of the is more grateful to our eyes than that of war. But Supreme Court justice, who will be confronted with we have also recorded our conviction that this new a growing calendar at home to compensate him for and complicated organization of nine intermediate the diminishing calendar at the Capitol. Probably courts of appeal, drawing their members partly from the justices will more and more feel the necessity of the Supreme Court above and partly from the Cir- presiding in these intermediate courts, in order to cuit Courts below, and thus interfering with the combat, as far as possible, the tendency to differwork of all the older tribunals, is a most unsatisfac- ences of opinion among them, and to keep their detory and, in some respects, mischievous solution of cisions in harmony with those of the Supreme trithe problem to which it is directed. We shall now, bunal. There is one department of the Supreme over a wider area and in a more important field, see justice's activity which is pretty certain to be done enacted the spectacle which our New York courts, away with by the institution of these new courts, with their system of duplicate appeals and often- and that is his annual or biennial circuit. This conflicting decisions, have so long presented. We time-honored, democratic practice has been subhave not found this solution of the problem of court jected to a good deal of criticism, but it has, upon relief a very satisfactory one, and we see no reason the whole, justified its existence by its effects. We for anticipating a better result in the case of the in- believe that the justices themselves like it, and that termediate Federal courts. But that these courts they will surrender it with regret. It has certainly will, however lamely and with whatever resulting done much to keep the bar in all parts of the counlegal confusion, in some sort afford to our highest try in touch with the Supreme Court, and has kept tribunal that relief which is the necessary condi- alive the popular interest in our highest tribunal. tion of its continuing usefulness, cannot be doubted. Neither has the practice had the least effect to The congratulatory speeches with which their open- diminish the exalted regard in which the Supreme ing was celebrated were therefore not without rea- Court has always been held in this country. son. When the highest court of justice in the land, is one of those rare cases in which familiarity has if not the greatest tribunal in the world, finds that, not bred contempt, but rather an increased respect. with its work already four years in arrears, new We believe that this august tribunal has never stood cases continue to accumulate on its calendar much higher, in the estimation of the legal fraternity and faster than the old ones can be disposed of, the sit- of the American people at large, than it does to-day. uation is certainly desperate enough to justify a On this side of the water we are never able to fully feeling of exultation at any measure of relief. In appreciate the mental attitude of our English friends such cases a bad solution is better than no solution in matters of this kind. Thus the Law Times, in a VOL. 44 No. 1.

This

It is not anticipated however that the new Courts of Appeal will relieve the justices of the Supreme Court of any part of their arduous labors. It is too early to predict with any degree of certainty what effect the operation of these courts will have on the business of the individual justices, but we shall be

recent number, commenting upon the practice of Chief Justice Coleridge in presiding from time to time as a trial judge, expresses the opinion that "the dignity and importance of a high official, like the lord chief justice of England, sink perceptibly when put to the uses of a divisional court." We have no hierarchy of courts and dignities in this country, and we do not recognize in the difference between an original and appellate jurisdiction any such subtle distinction as our insular contemporary calls attention to. Probably it must be bred in the bone to be understood.

scandal, and evidence which in a case between
Brown and Jones would be severely curtailed is in-
flated with artificial importance by common consent
almost conspiracy of all concerned."

The columns of our English exchanges continue to bristle with points raised by the conduct of the Gordon-Cumming trial. That cause celebre seems to have made and unmade as many reputations as any trial of our time. It appears to have carried Sir Edward Clarke to a position of leadership at the bar hardly second to that so long occupied by his distinguished opponent, Sir Charles Russell. The chief justice, who presided at the trial, also came out of the affair with flying colors. His conduct of the trial seems to have been eminently judicious, impartial and dignified, worthy of his high office and great reputation. Probably it was not his fault, but that of the social system of which he is a part, that the trial took on so much the character of a theatrical representation before a fashionable audience. It is doubtful if even the lord chief justice of England could safely exclude London "society" from his court-room upon the trial of a cause exciting public interest and involving prominent members of that society. At any rate, to have done so in this case would have been a decided innovation upon the immemorial custom of the courts of common law. However, we do these things differently over here. We are not a very reverential people, but we do regard the bench-as, by eminence, the judicial seat — with a certain awe and regard which would not tolerate its use as a mere point of observation or private box for a fashionable audience. We believe that there is no case on record in this country in which it has been put to that use. Imagine Chief Justice Fuller, holding Circuit Court in Chicago, with his wife and daughters and the elite of Chicago society seated with him on the bench, and a horde of fashionable people, admitted by ticket, occupying the body of the court-room! The case need only be stated to show how wide a departure we have made from the English traditions. Wherefore we heartily sympathize with our judicious contemporary, the Laro Times, in its condemnation of the sensational conditions under which the baccarat trial was held. This is its comment: "We need only say that Lord Coleridge has absolutely repelled any charge of favoritism or monopoly. But whether a court of justice has not once more been converted into a play-house for the upper classes, and the bench made very much to resemble the grand stand, may be a matter upon which opinions may differ. Our disposition is to protest against these long-drawn legal orgies in which every one panders to the fashionable appetite for

The acquittal of Mr. Depew and his fellow direct-
ors of the New Haven railroad, who had been in-
dicted for violating the law of this State relative to
the heating of railway cars, was a severe blow to
our brethren of the newspaper press. Every lawyer
knew, or should have known, that there was no
theory of criminal responsibility upon which these
directors could be convicted. The trial was a farce
in its inception and was only saved from ending in
a farce by Judge Van Brunt's prompt action in
directing a verdict of acquittal. How the district
attorney came to lend himself to so ridiculous a
performance will always be a mystery-to those
who believe in him. But the failure of the prosecu-
tion fell heavily upon the newspapers, who had al-
ready tried and convicted the unfortunate directors
(especially Mr. Depew, whose connection with the
road appears to be only a nominal one) and sen-
tenced them to fine and imprisonment. It was too
bad, Esteemed Contemporaries, but we do not see
how, in the present state of law and society, the re-
sult could have been otherwise. The courts have
no general censorial powers (those powers having
been vested solely in you) and have no function
but to administer the law as it now is, not as it
ought to be, or as it will be in the twentieth cen-
tury; and this law is only the expression of the
average intelligence and morality of the time that
now is, not of that millennial era which you are
doing so much to usher in. If you had only thought
of all this you might have been spared the absurdity
of such oracular nonsense as the remark that:
"The law of directors' responsibility makes no ad-
vance in the case of the New Haven railroad direct-
ors." Of course it doesn't, Esteemed Contemporary.
That isn't what the courts are for, to "advance" the
law. They do it, sometimes, but, when they do, they
don't make much noise about it, and, when they are
detected, they don't get much encouragement to try
it again. And, perhaps, if you had been a little
wiser or a little less angry, you would have refrained
from making that silly remark to the effect that the
result of the trial was "perfectly lawlike and of
course perfectly absurd." Do you really believe
that the "lawlike" and the "absurd "
are identi-
cal, or were you merely trying to catch the ears of
the groundlings and assert your independence of
corporate influences? And, if we will admit that
the law relating to the responsibility of directors of
corporations is too indefinite and has failed to keep
pace with their increasing power and that it stands
in need of definition and development, will you not
confess that you have uttered a precious deal of
nonsense on the subject and have given the judicious
occasion to grieve?

Meanwhile, all over the land, the process of trial by newspaper goes merrily on. And what an easy,