Page:The Green Bag (1889–1914), Volume 19.pdf/337

 THE GREEN BAG there is apparent justification on the ground of self-interest, it would be very difficult to prove it the real impelling cause and permit ting the raising of this issue " would very materially diminish the value of the right to justify on the ground of self-interest. The allegation of bad motive is easily made and the contention would prolong litigation and, if tried, might involve great expense. . . . "If the issue of bad motive can be thus raised in labor conflicts, it must also be allowed in cases of ordinary trade competition, a very wide field. We think that the rarely occurr ing punishment of a personal enemy, who has masked his hostility under the guise of com petition, would not offset the harm caused honest competitors by their being compelled to litigate the question of the fairness of their motives whenever assailed by a disappointed rival." LIBEL. " Fair Comment in an Action for Libel," by Silas Alward, Canadian Law Times (V. xxvii, p. 168). LYNCH LAW (The Remedy). Hannis Taylor's article in the March-April American Law Review. (V. xli, p. 255), entitled " The True Remedy for Lynch Law," asserts that "It is impossible to mistake the cause of lynch law in this country; it is the outcry of a conservative and law-loving people against the abuses of a system of criminal procedure which has become intolerably inefficient." Many will think Mr. Taylor is ignoring equally potent causes who will agree with his sugges tions for increasing the efficiency of our courts. "Pandora's box was opened when the bulk of the American states made a radical depar ture from the English system of criminal re view, and established in its stead an unchecked and unguarded system of appeal under which any defendant, after reserving every possible exception, however frivolous, can, as a matter of right, call upon one or more revising courts to thresh out every point presented to the end that, if a single apparent error has been made, a reversal of the judgment of guilty must follow as a necessary consequence. This new American creation stands without a proto type. ... It represents the extreme swing of the pendulum, an intemperate outcry against an old system which was too narrow and too

severe. When judged by its fruits — which exist in the form of over technical disserta tions which often remind one of the medieval debates as to the number of angels that can stand on the point of a needle — condemna tion is inevitable. Its chief function has been to upset just verdicts rendered by honest juries upon some ground so archaic, so narrow r so technical as to be unintelligible save to experts in criminal law. The theory upon which all such refinements rest is that the innocent citizen, unjustly accused of crime, must be discharged if the slightest irregularity in the. proceedings can in any way be ferreted out. When we add the disastrous consequences of such a licentious system of appeal to the evils resulting from the degrad ing of the trial judge from his normal position of adviser of the jury to that of a moderator of a New England town meeting, we find the true origin of lynch' law. The jury system as it now exists in England is the best and most efficient engine for the punishment of crime anywhere to be found. Of that system we have in the United States only an emasculated imitation, a manikin instead of a man. Itstwo great points of weakness are; (1), the too limited power and influence of the trial judge; (2), an unbalanced and unguarded system of appeal ever ready to upset just -verdicts upon purely technical grounds. The path to reform is plain and straight — we can advance by simply falling back. ... A beginning should be made with the destruction of the prevailing system of absolute and unqualified criminal appeals which is the most prolific source of existing evils. Fortunately we have, as a standard for imitation, the system of re view now existing in the ancient common wealth of Virginia, which has so modified theEnglish system as to remove all its real hard ships without impairing its efficiency. . . . In Virginia a review of a judgment of convic tion in a criminal case is a matter of grace and not of right. Every convicted person has the absolute right to present the record of his case either to individual judges, or to the whole Court of Appeals in term time, with a list of the errors of which he complains. Such was the course pursued in the case of McCue whose counsel presented a record of nearly fifteen hundred typewritten pages with a list of the