Some Morals for the Ken of the Judiciary. reason for a judicial reduction, because, doubtless, erroneously surveyed questions of law arising from the contentious contract may very likely have affected the considera tion of the jurors, and by them have been misunderstood; but in questions relating to a tort unconnected with any legal propo sition it seems certain usurpation, to capri ciously reduce the value of the verdict be cause the judges take refuge under the cry of passion or prejudice that cannot arise from the record. Previous to the case of Diblin v. Murphy in 5th Sandford (New York City) the usurpation appears to have been un heard of. But the opinion of the court in their conditionally reducing verdict even, reads apologetically, and rests upon the reference to the litigation as being expressly ex contractu and not ex delieto. But not only appellate judges, but makers of constitutions and statutes have of late years invaded the province of jurors. At one time a New York statute limited the verdicts in damage cases to the amount of five thousand dollars, whenever the complained-of injury produced death; but a re cent Constitution in New York State re pealed the limitation and left juror discre tion unbounded. During the last month of November one of the juries in New York City took advantage of that constitutional permission and awarded $30,000 damages to a widow against a trolley company for negligent killing of her husband. Kvery lawyer who read an account of that result probably said, " Oh, it won't stand, for the appellate division, taking their own view of the facts, will reduce it as excessive." This referred-to recent Constitution, how ever, initiated another usurpation which, if technically jurisdictional, seems unjust. It forbade an appeal from the intermediate ap pellant tribunal to the highest whenever the judges of the former had unanimously agreed, and on other adjudications by it no final appeal can ensue unless the judges agree to permit it, which is carrying the
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matter into the autocratic influence of the sic volo sic jubeo jurisdiction. Now, reported legal experience has shown that even una nimity in an interlocutory appellate court has been overthrown on higher appeal. An entire bar might pronounce a decision un tenable, and yet five or six ex-members of it who were now on the bench might put such opinion from below the bench at defi ance. Moreover, judges are not free from the mental vice colloquially called " selfopinionated," nor from the obstinate pride in opinion, and naturally some would say under the constitutional discrimination afore said, "We may be wrong, but at any rate we will close the door to discovery of the error by refusing the appeal on the motion, which decision being merely discretionary need not be put into writing." This denial of appeal residing in the tri bunal to be appealed from is, to say the least, a questionable power. Lord Mansfield once reversed himself, much as Chief-Jus tice Chase in the legal tender case reversed Secretary of the Treasury Chase; but there are many appellate judges who are neither Mansfield nor Chase. Still another deplorable judicial action may be found in the constantly increasing number of dissenting opinions. "Why shouldn't the jury disagree?" asked a jury man once in New York City of the judge discharging him after a covert reproof for the disagreement; " Did not the bench of judges before which this case once went disagree among themselves as to its law?" There was irony in the parallel. In the volumes 7th and 8th Hun of New York Supreme Court reports appear many instances of dissenting opinions and notably from this New York City appellate branchThese dissensions on legal questions exercise a baneful influence on the common mind, which is apt to dwell upon "the glorious un certainty of the law," as actor and playwright Charles Macklin first phrased that now popu lar proverb in his last-century comedy of
