55 N.H. 179 (N.H.Super. 1875), Copp v. Henniker

Citation:55 N.H. 179
Opinion Judge:LADD, J.
Attorney:Tappan & Albin, for the defendants in both cases. Hawthorne & Greene, for Flanders.
Judge Panel:CUSHING, C. J. SMITH, J. I concur in the result reached by my brother LADD, and in the views which he has so fully presented.
Case Date:March 13, 1875
Court:Superior Court of New Hampshire

Page 179

55 N.H. 179 (N.H.Super. 1875)







Superior Court of Judicature of New Hampshire

March 13, 1875.

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These two actions--John B. Copp against the town of Henniker, and Caleb B. Flanders against the town of Warner--were case for injuries caused by defects in highways. At the October term, 1874, on motion of the plaintiffs, they were ordered to be referred, by FOSTER, C. J., according to the provisions of section 13 of the act of 1874, entitled “An act to abolish the present judiciary system and establish a new one.” To this order the defendants excepted, on the ground that the provisions of said section are in conflict with the constitution, and void, and tendered this bill of exceptions, which was allowed.

Tappan & Albin, for the defendants in both cases.

Our position is, that the act not only seriously impairs, but that it virtually destroys the right of trial by jury, in any just sense in which the term “trial by jury” has always been understood and defined.

It is not our purpose to enter upon any extended encomiums upon the “inestimable right” (as our constitution, art. 77, terms it) of trial by jury. It is enough that it is preserved and guarded in the constitution of the United States, the constitution of New Hampshire, and in the constitutions of all the other states of the Union; that it has the sanction of a thousand years' experience, more or less; and notwithstanding the abuses to which it is subject by reason of the selection, sometimes, of incompetent jurors, yet we believe that a mode of trial wherein the parties upon issues of fact can have the average judgment of twelve good men and true, indifferently selected from the body of the county, to be the best of any yet devised, more, satisfactory to the people than any other, and more in accordance with the genius and spirit of American institutions. It is enough that the constitution of New Hampshire gives these defendants an unfettered right to such a trial--a right which we have demanded and still demand, and which cannot be swept away, either by judicial construction or by the arbitrary fiat of a legislative enactment. Nor have we any feeling or wish to oppose a judicious and well considered reference law. Such a law, properly guarded, giving the court some reasonable discretion as to what class of cases should be referred, and with a clause in other cases for an agreement by the parties, with a proper part of the expenses to be borne by the county as in jury trials, might, we think, be productive of good results, and help to rid the dockets of a great many comparatively unimportant cases which now encumber them. Art. 15 of our bill of rights is as follows: “No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges; * * or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land.” Art. 20,-- “In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practised, the parties have a right to a trial by jury, and this method of procedure shall be held sacred.” It will be said that these provisions are not violated, because by this law, in cases which are referred without the consent of the parties, “the same may, at the request of either party, be tried by a jury, after the report of the referee has been made.” But the right which the constitution gives a citizen of a trial by his peers and by the law of the land, “means a trial by jury of twelve men, according to the course of the common law.” 2 Kent's Com. 13, authorities and notes; Taylor v. Porter, 4 Hill 140; East Kingston v. Towle, 48 N.H. 57, and authorities passim; Opinion of the Justices, 41 N.H. 550. This mode of trial implies that the jury are to hear the evidence, deliberate, and draw their own conclusions upon it. It is not a trial by jury, when the minds and opinions of jurors are prejudiced and influenced by the decision of the same case by some other tribunal. The right of trial by jury is good for nothing unless it is free, unincumbered, unrestricted, and unhampered. It is only mockery to say that a party's right to a jury trial is “held sacred” when it is clogged and impaired in the manner this act clogs and impairs it. He is sent, against his will, to a tribunal unknown to the constitution, has his case tried, has an award against him, is saddled, perhaps, with hundreds of dollars of costs, but is then complacently told that he may have his case tried by a jury, but on condition that at such trial by jury the report of the referee against him “shall be evidence of all the facts stated therein;” but he may have the poor privilege of “impeaching” it if he can;--in other words, the report of the referee makes a prima facie case against him on the start. The trial is not now upon the evidence in the case, and the deductions from it as drawn by the jury, but the conclusions and deductions of another tribunal have to be overcome and “impeached,” and another element of evidence, foreign to the real issue involved, introduced, which is calculated to prejudice the jury and prejudge his case, before it can be considered upon the evidence that legitimately belongs to it. And yet the trial by jury is “held sacred.” It should be borne in mind, too, that the referees under this act are not even required to be sworn. Courts, jurors, and auditors are required to be sworn, but we suppose that that ancient custom has become obsolete, and goes by the board with the trial by jury. But let us look at the effect of this law in another light. I do not propose, nor is it necessary, to repeat here the arguments of Sir William Blackstone, 3 Com. 349, in favor of trial by jury. His chapter on that subject is probably the best exposition of that mode of trial ever written, and the arguments are as sound and the reasons in its favor are as cogent to-day as they were when first given to the world. One point which he makes we wish to refer to, however, as bearing directly upon the effect which this law will produce. He says,--“A competent number of sensible and upright jurymen, chosen by lot from the middle rank, will be found the best investigators of truth and the surest guardian of public justice. * * This preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts without the intervention of a jury (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates), is a step towards establishing aristocracy, the most oppressive of absolute governments.” Now let us apply this idea to the law in question. It is contended that it does not impair the right of jury trial. Let us see: the practical result in the administration of this law has been, and will continue to be, the appointment in a large share of the cases of gentlemen of the highest standing in the community,--judges, lawyers, and others. This might all be well and proper enough if we are to go upon the theory that this mode of trial by referees is to take the place of and be a substitute for the trial by jury. But it is utterly inconsistent with the retaining unimpaired and “unfettered” the latter mode of trial;--in fact, let what may be said as to this right being still preserved, notwithstanding a cause must first be tried before this “new tribunal,” we all know that the truth is, and the theory upon which appointments under the law are made is, that men of the “highest character,” as it is termed, are selected, so that their decision will carry such weight as to make it final, and thus prevent any further trial by jury. Suppose a case should be referred to the chief justice of either the superior or circuit courts, or to an ex-chief justice, men whose legal ability and high standing in the community would justly give great weight to their opinions: but, suppose, nevertheless, that a party defeated before them, feeling aggrieved, and that justice had not been done him, should carry his case before a jury: the decision, or opinion if you please, of these eminent gentlemen goes in as evidence. Can any one say, in truth, that they would have no influence on the jury? On the contrary, if some jurors were in doubt upon any point, or as to what the proper decision should be, would they not be quite likely to defer to such high authority, and give in their adhesion to the decision which had been made ready to their hand, and put in evidence before them? It is idle to deny that this would necessarily be so. True, the farce of a jury trial would be preserved, but the verdict would be not that of the jury, but of the chief or ex-chief justice. It might be a better decision of the case than the jury would have made, but don't let us call it a trial by jury. Therefore, if the trial by jury has outlived its day and generation; if it is no longer a “bulwark of our liberties;” if all that has been said in its favor by a long array of eminent jurists and statesmen has turned out a mistake; if, because, in cities and elsewhere, it is sometimes abused by the selection of stupid, ignorant, and corrupt jurors, the people have got sick of it, let the people be called together, and blot from our constitution a method of trial which is no longer “held sacred;” but let it not be done by indirection, as this law emphatically does it.

But we have heard the question suggested, If this law contravenes the constitution, is not...

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