nesses at the trial. The witnesses called by the judge shall be allowed such fees as, in the discretion of the judge, may seem just and reasonable, having regard to the services performed by the witnesses. The fees so allowed shall be paid by the county where the indictment was found. D. Whenever in any indictment or information a person is charged with a criminal offense arising out of some act or omission, and it is given in evidence on the trial of such person for the offense that he was insane at the time when the alleged act or omission occurred, then if the jury before whom such person is tried concludes that he did the act or made the omission, but by reason of his insanity was not guilty according to law for the crime charged, then the jury shall return a special verdict that the accused did the act or made the omission but was not guilty of the crime charged by reason of his insanity. E. When the special verdict provided for in Section Dis found, the court shall immediately order an inquisition to determine whether the prisoner is at the time insane, so as to be a menace to the public safety. If it is found that the prisoner is not insane as aforesaid, then he shall be immediately discharged from custody. If he is found to be insane as aforesaid, then the judge shall order that he be committed to the state hospital for the insane to be confined there until he has so far regained his sanity, that he is no longer a menace to the public safety... 155. NEW DEVELOPMENTS IN THE ADMINISTRATION OF JUSTICE In previous selections, some account has been given of the various defects in the administration of justice which cause delay, expense, and inconvenience to various classes of litigants to such an extent in many cases as to amount to a denial of justice. Members of the bench and bar are naturally conservative and having become accustomed to the system as it exists, however cumbrous, are loath to make a change. Nevertheless, the force of public opinion is gradually compelling the introduction of methods better adapted to the needs of litigants, involving changes partly within the regular judicial organization and partly outside of it. Among these new developments may be mentioned small claims courts, conciliation, arbitration, administrative tribunals, and declaratory judgments. a. Small Claims Courts [Reginald Heber Smith, Justice and the Poor (Carnegie Foundation for the Advancement of Teaching, Bulletin No. XIII, 1919, published by Charles Scribner's Sons), pp. 41-42, 52-56.] The inability to provide justice in small causes has always been one of the weakest points in our system of administering justice. From the days of ordeal by battle, the method provided by the common law for proving and reducing to judgment any type of small claim has been cumbersome, slow, and expensive out of all proportion to the matter involved. Our legal system has taken too literally the ancient maxim, "de minimis non curat lex." A complicated procedure requires the attorney, but the expense for his services is more than the traffic can bear. It was once asked at a meeting of the American Bar Association whether a lawyer in suing for seven dollars wages due his client, a blacksmith, was justified in charging a fee of half that amount. The question reveals the common dilemma-the services were worth the amount charged and yet, to the blacksmith, it would hardly be satisfactory to collect seven dollars at a cost of three dollars and a half. As Dean Pound puts it: "For ordinary causes our contentious system has great merit as a means of getting at the truth. But it is a denial of justice in small causes to drive litigants to employ lawyers and it is a shame to drive them to legal aid societies to get as charity what the state should give as a right." Similarly, court costs constitute an expense prohibitory to small litigation. The man hired at fifteen dollars a week who is put off the first week and not paid the second has a valid elaim for thirty dollars but often not a dollar in his pocket. In addition to an attorney's fee, he cannot pay court costs because he has not been paid, and yet because he has not been paid court action is imperative. It is indeed a vicious circle, but within that circle thousands of unpaid wage-earners have been caught. Delay plays its part by permitting a debtor, who has no real defence, to file an appearance and answer and interlocutory motions, to have the case continued once or twice, and then, when it is finally called for trial, to default. This serves to hold the plaintiff off for months, to cause him loss of time in court attendance, and to rob the ultimate judgment of much of its worth. Small tradespeople to-day are forced to the practice either of wiping all small claims off their books or of selling them at a ridiculous discount to professional collection agencies. They have the possible relief of increasing the price of the necessities they sell, thereby adding the waste of the judicial system to the cost of living. The wage-earner and the small lodging-housekeeper, under conditions of modern competition, have not even that relief; they have been obliged to stand their losses. ... This deplorable condition is not the result of the evil machinations of any group or class; it is the consequence of the failure of the judicial system to keep pace with the changing conditions of life. In our judicial history small cases were first entrusted to justices of the peace. This plan for a while gave simplicity and despatch, but when applied to cities it failed utterly. The justices, being subject to no supervision, and depending so much on their fees that J. P. came to mean "Judgment for the Plaintiff," formed unholy alliances with collection agencies, instalment houses, and the like, and very generally became actually corrupt. They were so strongly entrenched in local politics that the process of ousting them, which is not yet completed, has been long and difficult. They have aptly been called "those barnacles of jurisprudence" because they have clung on long after their usefulness expired. In the cities, the justice of the peace was first supplanted by specially created magistrates who, as the cities continued to grow, became just as inefficient and even more corrupt. Finally, they were succeeded by the organized modern municipal court of the type that is now familiar. With the municipal court came honest, trained, and capable judges, but also there came the rules of pleading, of procedure, and of evidence. Honesty and certainty were secured at the sacrifice of simplicity and speed. There has been a steady tendency to increase the jurisdictions of the municipal courts so that they have lost sight of the little cases; expense and delay have been allowed to creep in, with the result that small claims have not been cared for satisfactorily. In a few communities the last and logical step has been taken of combining the simplicity, speed, and cheapness which were sought in the justice of the peace plan with the honesty and efficiency of the municipal court by a new type of court termed variously "small claims court," "small debtors' court," "conciliation court," and "court for small causes. The name of "small claims court" is the most descriptive and, to avoid confusion, will hereafter be applied to all such courts. ... These four types of small claims courts have amply demonstrated that as to small civil causes the defects of the traditional administration of justice can easily be eliminated. In these courts delay is entirely absent. Costs, either through reduction or abolition, cease to forbid access to the courts. The fundamental difficulty of the expense of lawyers is avoided by a simplicity of pleading and procedure in which there is no need for any attorney. The accruing advantage of having the parties brought into direct contact with the judge, of making justice seem a more real thing to the average man with its resultant beneficial effects on good citizenship and loyalty can be only mentioned here. The small claims courts are a mighty force in revising the present day opinion of the humbler classes as to law and courts. Second, the proceedings must be conducted without lawyers. Only in this way can the simplicity of procedure be maintained and the prohibitive expense of lawyers' services be eliminated. On all the evidence there seems to be no danger in informality of procedure in these small cases. .. The third principle is that while procedural law can be cast aside, rules of substantive law must be adhered to. This is the situation at present and in future extensions of the idea it cannot safely be departed from. In other words, while the small claims courts clearly demonstrate that the doing of justice is not dependent on religious observance of our traditional rules of procedure and evidence, they do not at all invalidate or weaken the principle that justice is best done when it is ascertained and administered by a trained judge, according to the rules of substantive law. The essential features of a small claims court are extremely low costs or none at all, no formal pleadings, no lawyers, and the direct examination of parties and witnesses without formality by a trained judge who knows and applies the substantive law. b. Conciliation [Reginald Heber Smith, in American Bar Association Journal, vol. 1. THE NATURE OF CONCILIATION ... The purpose of conciliation is to secure peace. We are not discussing international conciliation, or conciliation in collective disputes between capital and labor-this needs to be underlined and kept in mind. We are considering conciliation as applied to the ordinary, everyday disputes between men, those individual controversies-contracts, debts, claims for damages, etc.-that today can be settled only by litigation in the courts. We are resuming a discussion broken off more than sixty years ago. In the dramatic period that centers around the year 1848, new ideas were abroad in the world; many of our states remodeled their constitutions; and six of them, including New York in the east and California in the west, inserted provisions saying: "The legislature may establish tribunals of conciliation." Not a single tribunal was established, the whole idea was submerged in the swift current of affairs culminating in the Civil War. It was forgotten, but today after two generations, the subject again presses for attention by the American Bar. The nature of conciliation makes a precise definition difficult. Conciliation is not an institution (like a court); it is a method. A method of procedure, if you wish, but conciliation proceedings are so informal, so flexible, and so variable that our ancient friend, Mr. Chitty, who wrote an early treatise on pleading and knew exactly when to demur to an anticipatory replication in a declaration, would indignantly say that conciliation had no procedure worthy of the name at all. Although we cannot define the method of conciliation in detail because there are no fixed details, we can state its general form and outline... Conciliation is an informal proceeding by which two disputants are enabled to discuss the issue between them in private before a trained and impartial third person having the dignity of official position, representing the state, who explains to them the rules of law applicable, informs them of the uncertainty and expense of litigation, tries to arouse their friendly feelings and suppress their fighting instincts. If an adjustment agreeable to the parties is reached, the official draws up a proper agreement, has it signed, and certifies it so that it may be entered in court as a judgment. There are no pleadings. There are no rules of evidence. The parties tell their stories in their own words. There are no lawyers-plaintiff and defendant appear in person. 2. RELATION OF CONCILIATION TO THE ADMINISTRATION OF JUSTICE What is the relation of this conciliation proceeding to the administration of justice; where does it fit into our established legal institutions? Conciliation, being flexible, adapts itself to our present system in different ways, and appears in various guises, but a sound analysis reveals, I think, two distinct types of relationship: (1) Conciliation may be carried on by tribunals acting entirely independently of the courts. Here conciliation is an auxiliary to the system of courts. The connecting link is the provision of law that no case can be tried in the courts until first an attempt at conciliation has been made. |