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is permitted, or tolerated, or thinks of making a speech. Each man, when the case is stated, if he wishes to express an opinion, must do it in the briefest terms; the fewest words; must gather, not all the facts of the case, but those which seem to him vital, and state the reasons for his belief, in the fewest and most compact words. He can not indulge his voice; he can not go into details; he can not amplify, as counsel sometimes do; he must assume that each of the other eight members has studied the record and knows the case, and can only state the outline of his argument. So we wrestle from early until late, and there is not a man who gets home from that conference Saturday night but is exhausted, and yet it is a most magnificent education. It is a delight to be there. There are nine men, each one of whom is as positive in his convictions as men can be; each of whom has studied the record in each case, and each of whom is ready to combat for what he believes, and the fight is earnest and strong. When the debate is ended the result is determined by a vote on the call of the chief justice. It may be that the reports disclose an apparently unanimous opinion, when the case was in fact decided by a majority, and, sometimes, a small majority. The minority, finding that they are beaten, give it up and do not care to announce a dissent.
It is well that the court is composed of more than two or three justices, because the questions which they have to meet and decide are often vast in their importance, affecting the life of this nation of seventy millions of people, and foreshadowing, marvelously and wondrously, its future destiny and life. If any man in that tribunal should for one moment forget his sense of responsibility, it would be a disgrace from which he could never recover. It is well that we have in that tribunal men from all parts of the land. Over and over again have I said that if the nine ablest lawyers, concededly so by the judg ment of all, lived in New York, or Boston, or Philadelphia, it would be a mistake to have the Supreme Court composed of those nine gentlemen. It is for the interests of this great nation that we have men from all sections; men who come, bringing into the discussions and deliberations the sense and thought and feeling of the various parts of the nation; that there may be incorporated in the decision, as finally announced, so far as possible, the deliberate and general judgment of the whole seventy millions of people. (Applause.)
That court is one of the unique and grand conceptions of the Federal Constitution. The framers of our charter of liberty embodied in it guarantees of personal and property rights to all, and advised one supreme judicial tribunal, to which might come citizens from all parts of the land to present with the utmost freedom any question of right which any individual of the countless millions of people to-day and in the days to come might desire to raise. Further, we have to-day a union of fortyfive states, an indestructible union composed of indestructible states, with all questions of a purely local nature settled in the several states. But the thought of the Constitution was that all questions affecting the nation at large, in its relations to other nations; affecting the relations of citizens of one state to citizens of another; affecting the relations of one state to another; and back of all that all questions affecting those guarantees of personal liberty and individual rights which are the foundation of every free government, should finally be settled and determined by one tribunal; that thus this nation should stand before the world as a unit; a unit in its thought; a unit in its dealings with individuals; a unit in its dealings with states and nations. That that idea entered into the minds of the framers of the Constitution and was one of their grand conceptions can never be doubted, and if that court shall continue to be in the days to come as loyal and faithful as it has been in the past to its convictions as to the terms and limits of power, it will be-and I say it, although a member of that court-one of the great, if not the very greatest elements of strength in this government of, by and for the people; for perpetuating that government in its unity and glory. (Applause.)
Toastmaster: Gentlemen of the bar, the shafts of public office are often aimed at members of our profession; more particularly is this the case when a representative of the bar belongs to the minority party, and in using the term "minority party," I may say that in late years it means that party which always stands for the right, the Democratic party. (Applause.) I remember very well when the voice of the people of Colorado called in vigorous tones upon a distinguished member of the bar. Unfortunately, our affairs had too long been in charge of laymen, and many evils had thereby crept into the administra
tion. The voice of the people was heard demanding that Caldwell Yeaman should be the governor of the state. No sooner was the declaration made than the distinguished gentleman attempted his escape, and sought to retain his honorable connection with that profession known as a "jealous mistress." He sought the solitude of the plains and of the mountains, and, to escape the public gaze, utilized his Pullman pass and traveled in a Pullman car. Curiously enough, wherever the judge hied himself in his wanderings, he was met by a large concourse of people; brass bands met him; halls were engaged, and he was invited to state to the assembled multitudes the reasons why he should not become the chief magistrate of Colorado, and I may say without violating confidence, that he urged many and valid reasons. (Applause.) To divert the people he told stories of incidents in his childhood in the state of Kentucky. Upon various occasions he endeavored to excite interest in his opponent by comparing him to a goat and various other members of the animal kingdom. And thus he traveled from point to point, seeking to evade the persistent demands made by the people that he should become the chief magistrate, pledged to the righting of the wrongs that had been perpetrated upon the state.
Meanwhile, the voice of the people was beginning to be heard calling upon some one else to accept the same office, and while the judge was addressing the multitudes, stating the reasons why he should not be elected, his opponent attended county fairs and kissed the babies.
The result is best expressed by a remark made by the judge when next I called upon him, and found him examining the elec tion returns, which he was doing, as he said, for the purpose of ascertaining how many damned liars there were in the state of Colorado.
As the judge is about to respond to a toast assigned to some one else, I ought to say that his speech has not been revised by the censor of the Colorado Bar Association, and the President requests me to say that he will not be, either personally or officially, responsible for the judge's utterances.
The judge will explain to you under the significant toast of "Errors and Appeals," why he was not elected governor. has already assured me that his defeat was a manifest error, but he has not yet found the court to which he might take an appeal. (Applause.)
TOAST OF HON. CALDWELL YEAMAN.
"ERRORS AND APPEALS.”
Primarily, error is a wandering, a mistake, a blunder. To illustrate-it was a blunder to select Judge Rogers as toastmaster upon this occasion. A well informed toastmaster not only suggests the sentiment, or subject, but directs the cheering. When I arose at his bidding, there was an entire failure upon his part to perform this second but highly important duty.
It was a mistake to designate me to respond to the toast which has just been propounded. Judge Bissell, to whom this theme was originally assigned, is said to have an intimate knowledge of the subject.
The committee of the Bar Association must have been wandering when they selected the title "Errors and Appeals" and called it a toast, unless upon the theory that about this time in the evening, diners need something dry. The pathos hidden in the phraseology of the sentiment propounded profoundly appeals to the legal profession.
Error, as applied to judicial proceedings, signifies an unintentional deviation from the truth in matters of fact, or from the law in a matter of opinion or decision. If an expansion of definitions were in order, it might properly be said that legal error is sometimes a deviation, intentional or unintentional, from judicial error.
The bench being misled by the bar, became so much in the habit of blundering, that old English judges found themselves constrained to rely upon the principle that long continued practice, though originally erroneous, establishes the rule of law.
This remark, having reference to a blundering bench, has no application to our modern judiciary, yet it is a significant fact that every wearer of the robes holds in worshipful esteem the originator of the maxim that "Common error makes the law."
It may not be improper at this point to suggest that the application of this rule may not infrequently result in setting up a misconception of the law in destruction of the rights of the citizen. Especially is this true when such rule is applied to errors and appeals.
It may properly be assumed that the word "appeal," in the connection in which it is now presented, is used generically and includes all proceedings by which a cause is removed from an inferior to a superior court for reëxamination or review.
If the expressions of opinion by adverse.counsel in an appealed case are to be taken as a guide, an appeal is a method of procedure by which one error is confirmed or a graver one is committed.
It is not necessary to add that this last definition does not meet with universal approval of courts of review.
Considered as a method of review, including all intermediate steps, the scope of the subject suggested is at once recognized as limited, and its discussion presents no difficulties.
The digest makers in the Century edition of the American Digest devote only 5,000 columns to this title.
The two most common methods of review are an appeal or writ of error.
The incensed professional representative of an unsuccessful litigant, when considering the method to be pursued to right a manifest wrong, is sometimes curious to know what a writ of error or appeal is. In this respect, the state courts afford him the utmost satisfaction. Many courts tell us a writ of error is a new suit. Others say it is not. Some courts tell us that an appeal is in the nature of an original action; others that it is a mere continuation of the pending cause.
These interesting and diverse views enable the weary and perplexed but careful practicioner to form his own conclusions. This is a favor which all lawyers appreciate.
In contemplating an appeal, there are various important steps, none of which must be overlooked.
First, you must get the trial court to commit an error. This is generally the least difficult part of the procedure.
In order to secure the coveted error, you must object. Never let an opportunity pass. Object to everything.
By this method you ingratiate yourself with the court, and are held in high esteem by the bystanders.
Unless you object, you will certainly be met with the stereo typed rule that objections not urged in the court below can not be first raised on appeal.
It must be remembered, however, that it is not sufficient merely to object. When the court overrules your objection, as it generally does, you must except.
The courts of review of this country, with a charming unanimity, have said that rulings of a trial court, however absurd, however erroneous, to which no exceptions are saved, will not be reviewed.