A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany Law Journal.

ALBANY, JULY 4, 1891.

CURRENT TOPICS.

of the problem. Indeed our experience of govern-
ment 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 get-
ting into the habit of accepting its favors with grat-
itude that they are no worse.

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

THE
HE new Federal Courts of Appeal have been set
up, with all the pomp and circumstance of or-
ganized justice. In each case the court was organ-
ized 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
weakness for judicial millinery; the silk robe im-
presses our imagination, and the panoply of justice
is more grateful to our eyes than that of war. But

burdens. It seems more than likely that, as business
increases in these new tribunals, the more impor-
tant causes will be reserved for the advent of the
Supreme Court justice, who will be confronted with
a growing calendar at home to compensate him for
the diminishing calendar at the Capitol. Probably
the justices will more and more feel the necessity of
presiding in these intermediate courts, in order to
combat, as far as possible, the tendency to differ-

We

we have also recorded our conviction that this new
and complicated organization of nine intermediate
courts of appeal, drawing their members partly from
the Supreme Court above and partly from the Cir-
cuit Courts below, and thus interfering with the
work of all the older tribunals, is a most unsatisfac-ences of opinion among them, and to keep their de-
tory and, in some respects, mischievous solution of
the problem to which it is directed. We shall now,
over a wider area and in a more important field, see
enacted the spectacle which our New York courts,
with their system of duplicate appeals and often-
conflicting decisions, have so long presented. We
have not found this solution of the problem of court
relief a very satisfactory one, and we see no reason
for anticipating a better result in the case of the in-
termediate Federal courts. But that these courts
will, however lamely and with whatever resulting
legal confusion, in some sort afford to our highest
tribunal that relief which is the necessary condi-
tion of its continuing usefulness, cannot be doubted.
The congratulatory speeches with which their open-
ing was celebrated were therefore not without rea-
son. When the highest court of justice in the land,
if not the greatest tribunal in the world, finds that,
with its work already four years in arrears, new
cases continue to accumulate on its calendar much
faster than the old ones can be disposed of, the sit-
uation is certainly desperate enough to justify a
feeling of exultation at any measure of relief. In
such cases a bad solution is better than no solution
VOL. 44 No. 1.

cisions in harmony with those of the Supreme tri-
bunal. There is one department of the Supreme
justice's activity which is pretty certain to be done
away with by the institution of these new courts,
and that is his annual or biennial circuit. This
time-honored, democratic practice has been sub-
jected to a good deal of criticism, but it has, upon
the whole, justified its existence by its effects.
believe that the justices themselves like it, and that
they will surrender it with regret. It has certainly
done much to keep the bar in all parts of the coun-
try in touch with the Supreme Court, and has kept
alive the popular interest in our highest tribunal.
Neither has the practice had the least effect to
diminish the exalted regard in which the Supreme
Court has always been held in this country. This
is one of those rare cases in which familiarity has
not bred contempt, but rather an increased respect.
We believe that this august tribunal has never stood
higher, in the estimation of the legal fraternity and
of the American people at large, than it does to-day.
On this side of the water we are never able to fully
appreciate the mental attitude of our English friends
in matters of this kind. Thus the Law Times, in a

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.

The acquittal of Mr. Depew and his fellow directors of the New Haven railroad, who had been inthe heating of railway cars, was a severe blow to dicted for violating the law of this State relative to knew, or should have known, that there was no our brethren of the newspaper press. Every lawyer 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 prosecution fell heavily upon the newspapers, who had already tried and convicted the unfortunate directors (especially Mr. Depew, whose connection with the road appears to be only a nominal one) and sentenced 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 result 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 century; 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 advance in the case of the New Haven railroad directors." 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 identical, 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?

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 Law 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

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