Nor did he spare the Bench when his ad dress thus continued : " There is one other serious evil after verdict which the commonsense and sound judgment of our judicial brethren might and should reduce, if they cannot altogether remove it without new legislation. I mean the granting of new trials for trivial and unsubstantial errors in the charge of the trial judge or in the ad mission or rejection of evidence." Every legal hearer of that criticism must have had his memory recur to cases in re ports under his observation wherein such trivialities and unsubstantialities, born of pure technicality have hindered substantial justice. As, for instances, when a verdict was set aside because a juror suddenly, but only temporarily ill, was allowed by the atten dant constable to receive remedy and a visit at the jury door from a physician, or as when some cumulative evidence was re jected, or the judge in his charge erroneously stated a fact that it was in the power of the twelve jurors to correct, and which they did correct in their own memory. But Mr. Choate could have taken further latitude in mentioning instances of the in justice of justice. For, how about the re cent case in New Jersey where a judge took from a jury consideration of the loss by clear negligence, through a car driver, of an infant boy, on the ground that its life had no com putable value; or how about the judicial re moval of a young child from its mother in order to give it to the deserting father merely because he was in law the parent entitled to its legal custody; or how about awarding a new trial in a damage case unless the plaintiff who had obtained, what a jury of exclusive discretion had given, a large verdict should agree to reduce it to a sum that the appel late court usurping jury functions regarded as the proper measure; or how about im prisoning for contempt by a judge who con sidered guilt or innocence with a bias in favor of his judicial chagrin?
Neither Mr. Choate, nor any other mem ber of the American Bar Association, need to seek through many volumes of current re ports to find several instances narrated there in of acts of injustice against justice through forms of law. But Mr. Choate scored heavily when he inveighed against newspaper trials of ac cused persons; although he admitted that fortunately no newspapers had been found to unjustly criticise innocence. He also scored when he indignantly said: "There is one other abuse against which we can at least utter an indignant protest. I mean the toleration of judicial candidates who are will ing or are permitted to pay for their nomina tion or to pay their party for their election. No matter what their personal or professional qualifications in other respects may be, such a means of reaching the office cannot but degrade the Bench." Touching upon public criticism respect ing frequent disagreements of juries, it was pleasant to hear him say from his experi ence at nisi prius : " But in truth, the dis charge of a jury because they are unable to agree, and the consequent necessity of a new trial, is a comparatively infrequent event. So far as the imperfect statistics which I have been able to gather show, only about three, or at most, four percent of all jury trials end in a disagreement. Again, if I may rely upon my own experience and observation, the dis agreement when it happens is quite as likely to be the fault of the judge as of the jury." His peroration respecting trial by jury in the American methods approached the high est style of the forensic eloquence of his gifted uncle, Rufus Choate. It was thus pronounced : " Give us then competent jurors, able judges and honest, fearless and learned advocates, and then trial by jury, which I am sure the people of America are determined to maintain, will still be the best safeguard of their lives, their liberties and their property."
