It may be conceded that a suit which has been tried by six juries, which has been distilled in the alembics of successive appeals, and which has finally received the seal of approval of the Supreme Court of the United States, has reached the acme of human perfection. It is probable, however, that the successful party who has disbursed three times the amount of the recovery may sigh for a system which embodies a little less perfection and a little more

common sense.

Instead of simplifying legal procedure, the tendency is more and more to complicate it and to make the disposition of an ordinary lawsuit so expensive and interminable that none but the boldest combatants dare enter the lists.

Law business has been driven from the rural districts to the large cities, and it is a most curious fact that the country lawyers have been active agents in producing this result. Almost to a man they have insisted upon the right of their clients to carry the smallest dispute to the highest appellate tribunal. In other words, they have insisted upon their client's right to destroy himself. The specious. argument against making the Court of Appeals "a rich man's court," has been to their minds conclusive. It never seems to occur to them that in keeping the highest appellate tribunals open to the poor man with the small claim, they are playing the game of the millionaires and the great corporations. The last decision in a cause may be right, but it is not right solely because it is the last.

What is true of fribbling and unreasonable appeals is also true of the defects and delays of the jury system - they discourage honest litigation. They are in the interest of the sharper and the monopolist. Every reform which has for its object economy and speed should be encouraged. Men with small claims used to bring their quarrels to the courts; now they settle them or put them down to profit and loss.

When the epidemic of motions, appeals, new trials and mis-trials through which every contested cause must now pass has become intolerable, a system will be devised which will give to every litigant one fair and speedy trial and one appeal. When this day arrives men will wonder how they staggered on under their present burden. One can hardly

REVIEW

overestimate the beneficial results that would follow if all the codes and code abominations were dumped into the sea and a new system of procedure were organized under the single watchword, Simplicity. More modern machinery and less of it, abler engineers and fewer of them, is what the needs of the age demand.

Although intelligent men may differ regarding radical changes in the jury system, all must admit that reforms, which have been tried and approved, looking merely to the improvement in the personnel of jurors, should be universally adopted. Imprimis, the number of exemptions should be reduced; it is now so large that except in the great cities fully half the jurors are drawn from the agricultural class. Although farmers make excellent jurors, it is the spirit of the law that all vocations should be represented in the jury box. Naturally it makes a busy man indignant to be called upon to perform jury duty when his neighbor, who has no occupation, is exempt. because, for instance, he once happened to be a member of a volunteer country fire department. Men will be more willing to serve when there are no unfair discriminations.

The task of selecting jurors should no longer be left to supervisors, town clerks and assessors where favoritism and political influence are potent factors in putting on and leaving off names from the roll. In those counties where jurors are selected by a commissioner I am informed by those well qualified to speak that the beneficial results are so marked that a change to the old methods would be regarded as a public calamity. The smaller counties cannot, perhaps, afford the expense of a commissioner, but the duty might easily be delegated to the county judge or surrogate, or it might be performed by a state officer, or commissioners might be appointed for judicial or congressional districts. The modus operandi is not important, so long as jurors are selected by one competent, responsible authority whose business it is to see that no one is put on the rolls who is not legally, physically and mentally competent to serve. The duty of winnowing the wheat from the chaff should fall upon the commissioner, thus dispensing with the usual ceremony of calling upon jurors at the opening of the court to present their excuses. It often becomes necessary

to draw twice as many names as are needed, because the venire is sure to contain the names of men who are dead, exempt, deaf, blind, sick, incompetent or otherwise disqualified. If the examination were conducted out of court, these names would never appear upon the rolls. In short, when a juror is summoned he should understand that he is drafted to serve and not merely to exercise his ingenuity in inventing disingenuous excuses.

Again, the system should be so perfected that when a juror has actually served at one term he should not be called upon to serve again for a year at least, in any event. Although I have no patience with the typical shirk who is ready to resort to methods which are questionable, if not actually dishonest, to avoid his duty, I confess I have often had my sympathy aroused on behalf of men who are frequently summoned, particularly in the large cities, to do jury duty in state, federal and municipal courts and sometimes compelled to sit during several terms in a single year. Such hardships make the duty irksome and encourage the malingerer and the liar. On the other hand, were it the law that but one annual service is required, all decent and patriotic citizens would deem it a duty to serve and a dishonorable act to present an inadequate excuse.

An employer who discharges a servant while doing duty as a juror is unfit to enjoy the blessings of a free government. Stringent laws should be enacted, for the punish; ment of such miscreants.

In brief, the inequalities, the injustice, the unnecessary hardships at present existing should be removed, and when they are, right-thinking men will regard it as much a duty to support the institutions of our country in peace as to defend them when assailed in war.

I cannot doubt that if the reforms, thus crudely suggested, were adopted, that even the most violent assailants of jury trials would be brought to the conclusion that it is the best system devised by the human intellect for the trial of questions of fact.

In any event, discussion can only lead to beneficial results and he who contributes anything of value will have "done the state some service."

ALFRED C. Coxe.

THE

THE NAVAL WAR CODE.

HE code of "Instructions for the government of the armies of the United States in the field," drawn up by Professor Lieber and issued as General Order 100, in 1863, in some sense marked an epoch in the history of the rules of land warfare. It was a set of rules, humane and enlightened for the times, covering the ground broadly, expressed clearly and in codified form, while the rules of other powers lacked this definiteness and depended too much upon. the impulse of the commander. Upon this code as a basis,

it is not too much to say that all subsequent codes have been built up, whether official or unofficial, adopted or rejected, the work of a single writer, of a commission of publicists or of a conference of the powers.

Last June there was issued by the Navy Department of the United States a code of the "Laws and Usages of War at Sea," prescribed for the guidance of the naval service by General Order 551, which is comparable in all particulars with the land code of thirty-seven years ago. Drawn up by Captain C. H. Stockton, it, too, is enlightened and specific, and like Lieber's Code, in scope and comprehensiveness is the first in the field. May it not likewise serve as a model and foundation for other codes of other powers, and thus help in the great work of unifying the laws of war?

Although Captain Stockton's Code is too long to be printed and discussed in full in the pages of this REVIEW, I have hoped that its readers might be interested in some of its more noticeable and debatable features, with occasional comparison with the rules of other navies. No authoritative statement of the latter, covering the same field, is to be had, however. Information as to their rules must be gathered from instructions for special occasions, from regulations as to particular service, from the manuals of text

writers not in codified form nor officially adopted, and from the formal works of the publicists.1

SECTION I.

Article 1. The code begins with a novel and interesting statement of the special objects of maritime war. These

are:

"The capture or destruction of the military and naval forces of the enemy; of his fortifications, arsenals, dry docks and dockyards; of his various military and naval establishments, and of his maritime commerce; to prevent his procuring war material from neutral sources; to aid and assist military operations on land, and to protect and defend the national territory, property and sea-borne commerce."

Two facts are here clearly shown. One is that, whatever the policy of the State Department may be, looking towards the exemption of an enemy's innocent property on sea from capture (which was the Marcy idea in 1856), the navy clings to the unquestionable right to prey upon an enemy's commerce. This has been our own usage from the birth of the Republic, except as surrendered by treaty with Italy in 1871. It is the usage of other maritime powers. Protection from similar attack on the part of an enemy is part of the duty of the United States Navy. All this is in accordance with the ancient rule, consistently adhered to down to the present time. Clearly if this rule is to be abrogated in the interest of innocent commerce, the movement must be initiated by some body other than a naval department. Even the International Law Associations are not ready to recommend so sweeping a change.

The other "special object" to which attention is called is the prevention of an enemy from procuring war material from neutral sources. This is a plain admission of a principle perfectly well understood, that the suppression of contraband trade rests on the shoulders of the belligerent who would be injured, and not on the neutral government. The

For purposes of comparison with earlier rules of naval warfare, the writer has been obliged to content himself with Snow's Manual for the U. S. A., Lushington's Naval Prize Law for Great Britain, the Instructions to the French Navy at the Outset of the War of 1870, printed in Snow's Cases, and with the treatises upon International Law, of various nationalities.