Akin to this, in strengthening in the court its proper function of directing verdicts when the facts are clear, is the power of the court to give what we may call, segregated affirmative charges, that is, affirmative charges upon one or more of the issues involved in the cause, although such issues may not be determinative of the whole case. The trial court should have the power in charging the jury to direct it affirmatively to find any fact in a way directed by the court when the jury could not legitimately find it otherwise. In most cases there are but few facts which admit of doubt, and the court, by eliminating those which are not doubtful, narrows the function of the jury to finding those facts where the evidence is conflicting, or the inferences to be drawn uncertain. I do not belittle the functions of the jury, nor advocate the weakening of the jury system, but by them who are finders of fact and ignorant of the law, facts only should be found, and to him who knows the law, should be committed exclusively the finding of the law.

The beneficent effect of such verdicts and charges would not only be apparent in the greater certainty of judgments and in the speed of obtaining them, but obviate the necessity of awarding many new trials, either by the nisi prius courts, or the appellate courts, for the finding of the jury upon isolated facts sharply presented to them would in the great majority of the cases be correct, and the court having already, in shaping its judgment upon the special verdicts, considered the law, there would be nothing to retry. If we should super-add to this & power in the court to direct a retrial only upon the point or points as to which it should seem to it that error had been committed, the outcry against the frequency and expensiveness of new trials would be effectually stilled.

Passing from our cursory review of delays and uncertainties before trial and at the trial, our appellate courts present themselves, and here again I am a doubting Thomas as to the justness of the criticism, that they unduly delay the determination of causes, or that they for the most part, or in large part, decide cases upon technicalities. Some courts and some judges undoubtedly do, but the fault In Uno is not the fault In

Omnibus. There are no harder working or more painstaking men in the world than the American judiciary. Delays in decisions generally result from congestion of dockets arising out of the litigiousness of the American people, and decisions based upon "technicalities" (so-called) come from the very nature of the system of common law arbitrament under which we live the dual system of court and jury. Complaints of reversals in chancery cases upon technical grounds are rarely heard, and when made, are usually unfounded. Complaints in common law cases most frequently arise at the points of contact between the court and the jury-in the admission or rejection of evidence, or the giving or refusing of instructions, and it is charged that the appellate courts lay too much stress upon the action of the court below in these matters, and find such action too material. But two things must be borne in mind: That the judge is supposed to serve some useful purpose and the jury is presumed to regard his action in the admission or rejection of evidence as conclusive of its propriety or impropriety, and his charges as stating the law; and that nothing less than omniscience knows what effect his action has in moulding the verdict of the jury. In this situation the appellate court must assume that every material action which the judge takes, which might have affected the jury, has affected it, and that if that action be erroneous, the jury has been wrongly affected. So long as the system remains, the vice will remain. And legislation, such as has been enacted in many states-providing that there shall not be reversals unless it shall appear that the error complained of has injuriously affected the substantial rights of the parties-can be of no avail for the reason given, that no man can tell whether the erroneous act of the judge has or has not produced an erroneous verdict of the jury. The presumption must be that it did; otherwise, the judge is a dignified but useless bailiff of the jury. A legislature cannot make rules of logic, and its declaration as to presumptions must fall in the face of the necessary logic of the situation. If the constitutions of the states permit, or by amendment shall be made to permit, appellate courts to be, in common law cases, courts of appeal, rather than courts of error,

so that the whole proceedings of the court below shall be brought before them, and they shall be retriers of the facts as well as of the law, then the "technical error" acts may be useful; till then, they cannot be, unless by special verdicts the decisions of the juries stand out clearly as decisions of fact alone, and the ruling of the courts below as decisions of law alone, so.that there be no need of indulging in presumptions in the court above-for presumptions are necessary only when facts are not proved, and in the case supposed, the facts decided by the jury and the law decided by the court, would be segregated, and the effect of each upon the other clear and needing no presumption.

If these, and other modifications and changes of the present practice, be desirable, are they obtainable?

Resort to the legislature for the making of specific and detailed changes is but a vexation of spirit to him who earnestly desires the change, and is apt to bring piece-meal and unsatisfactory results. Symmetry and homogeneousness require that the work be wrought by those who by reason of skill, intelligence, training and experience, can conceive a comprehensive plan and work out that plan. There are no other so fit for this as the courts who daily see the defects and who are able to devise the remedy.

The effective work to be done by the Bar should not, then, be directed to endeavoring to obtain legislation correcting specific faults, but to obtain legislation giving plenary authority to the courts to cover by rules the entire domain of pleading and practice. Not only would, thus, experts do expert work, but that work would be plastic and flexible, and defects readily corrected when discovered, instead of having to await the fixed sessions of the legislature and then run the gauntlet of indifference, suspicion, neglect, and hostility.

In view of the swift dimming of state lines by the demands of travel, commerce and politics, the greatest good can only be reached by uniformity among the several states, so far as such uniformity may be obtainable. It would probably be Utopian to conceive that legislatures acting independently of each other, and without some ever present guide and standard would ap

proximate uniformity in practice, but with such guide and standard, the conception may not be beyond the bounds of possibility; thus, in many states the United States chancery practice is the model for the state chancery practice, and in many is made a part of such practice by statutory adoption, and it may very readily be that since the simplification of the United States Equity Rules by the Supreme Court of the United States, they will be adopted by many states having a distinctive chancery practice. And so, if there be formulated by, or under the authority of Congress, a uniform practice at law worked out wisely and well to meet modern demands, many, if not all, of the states may substitute such practice for theirs now existing, in order that they may not have two separate systems within one jurisdiction, and that they may assimilate themselves to their sister states. A very able and zealous committee of this association has now in hand the procurement of this end, and every aid should be rendered by every member.

But I tarry too long. After all, pleading and practice are but the reins with which the courts drive the lawyers, and if the horses be sluggards, and the drivers slumberers, then the traces sag and the causes drag.

Changes should be made, and systems perfected, but in and of themselves they are as useless as a puff ball or a Sodom apple. To bring to them the highest effectiveness, there must come to, and remain with, the judges and lawyers, the high conception that they themselves are the vicars of the law; that the law is the servant of justice; that justice must be unshackled of needless forms and delays; and crystallizing their conception into a habit of professional life, they must give the lie to the charge of quaint old Charles Macklin, made more than two hundred years ago:

"The law is a sort of hocus pocus science, that smiles in yer face while it picks yer pocket; and the glorious uncertainty of it is of mair use to the professors than the justice of it."




To the American Bar Association:

At the session of 1910 the following resolution was referred to your Committee on Jurisprudence and Law Reform:

"WHEREAS, The Constitution of the United States, in the Fifth Amendment, provides that no person shall be compelled in any criminal case to be a witness against himself,' and in the Sixth that he shall not only be entitled to a public trial by an impartial jury, but shall have the assistance of counsel for his defense'; and

"WHEREAS, The same principles of individual right have been adopted by the various states; and

"WHEREAS, From the common reports of the examinations of accused persons made by the police departments in many of the municipalities throughout the country, such persons are examined in private, without the assistance of any one present to advise them as to their individual rights; and that from the rigid and often harsh examinations, accused persons are, in effect, compelled to be witnesses against themselves, contrary to the true intent of the constitutional provisions and contrary to all sense of fairness and justice; and

"WHEREAS, This Association believes that such practices should be condemned and the individual rights of accused persons should be protected by a uniform law; therefore


Be it resolved, That it is the sense of this Association that in all criminal prosecutions no confession of the accused should be received in evidence, unless it is affirmatively shown at the trial that it was made voluntarily, in the presence of a third disinterested person, selected by the accused, and not in any way connected with the police department or the prosecuting attorney's office, and, after the accused has been informed in the presence of such third party, that while he need not answer interrogatories, nor make a statement, yet, if he does, the statement would be used against him.

"Resolved, further, That appropriate legislation be recommended to carry into effect such protection to the accused."

Your committee reported as follows:

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