The percentage of reversals of the total number of cases appealed and disposed of during these four years was 21.5 per cent. When the total number of cases reversed is compared with the total number disposed of in the court-474,311-it will be seen that the percentage of reversals will be slightly less than one-tenth of one per cent.

These figures indicate that the great percentage of all the cases brought are finally terminated in the court of first instance.

DELAYS AND REVERSALS ON TECHNICAL GROUNDS IN

CIVIL AND CRIMINAL TRIALS

BY EDWARD J. MCDERMOTT

Louisville, Kentucky

The commonly accepted theory of writers and speakers on public affairs is that, when evils become very great, they provoke such a revulsion among the people that a reform is inevitably produced, but Herbert Spencer said that, when evils become deep or widespread and are generally recognized, they become incurable. The most popular and most universally accepted theory in this country, especially among persons of an optimistic temperament, is that we are always becoming better-that we are always rising to a higher plane and always making progress; but Walter Baghot clearly proved that the progressive status is the unusual status; that the stationary condition is the normal condition of nations. A German poet said:

Die Welt, die bleibt wie immer

Nur die Menschen werden schlimmer.

However we may regard these conflicting theories, it is clear beyond doubt that no country can make any great advance and no deeprooted evil can be remedied without the creation of a clear, vigorous and firm public opinion in favor of reform.

We have made wonderful improvements in discoveries and inventions to save time, labor, cost and waste and to lessen distances; but in the courts we still move as slowly as the travelers that in olden times creeped along in ox-carts and canal-boats. We have made wonderful improvement in science, medicine and surgery; but we have made few improvements in the science of government or in the administration of justice. In all the departments of human activity, except the last two mentioned, men will readily accept teaching and advice from their superiors in ability, skill and learning and will readily yield to proper leadership; but, in governmental affairs and in the administration of justice, the ignorant or self-seeking leader can

always muster a large following for any error or hoary wrong. The physicians and surgeons of the country and the medical experts, acting with remarkable unity and intelligence, have accomplished wonders in the advancement and progress of their science in the past fifteen years; but, only within the past five years, have the better elements of the Bar and the Bench begun to rub their eyes and to become thoroughly awake and to bestir themselves with a desire to imitate the improvements made in England and in Germany within the past thirty-five years and to demand reforms. This change of attitude has been due, in a large degree, to the scientific study and philosophic view of the law as a science in the great law schools of our country.

The Common Law of England, as we know it and practice it in this country, has been slowly built up, like a coral reef, upon a mass of individual instances and innumerable precedents. Such a system, discouraging broad, philosophic principles, naturally and inevitably, begets an intense conservatism in its votaries. Hence, as James Bryce said, in an address to the American Bar Association in 1907, the following were for ages the accepted theories of English and American lawyers:

Stare super antiquas vias.

Nolumus leges Angliae mutari It is better that the law should be certain than that the law should be just. An ounce of precedent is worth a pound of principle. With the love of certainty and definiteness there goes a respect for the forms of legal proceedings and for the precise verbal expression given to rules. This is a quality which belongs to most legal systems in their earlier stages.

That the law of rights-that the substantive law-should be made as certain and definite as possible, so long as the rational and immutable principles of justice are observed, is clear, but it is equally clear that the mere rules of procedure that the adjective law-the technical rules governing the pleadings, the evidence, the instructions of the court and the procedure in the trial or appellate court-should be simple, flexible and subordinate and should always allow the court, without delay and without a second trial except in rare and extreme cases, to decide the dispute solely according to the fundamental principles of the substantive law. To bring about such a condition radical changes are necessary (1) in our Constitutions, (2) in our codes and statutes and (3) in the mental and moral attitude of the lawyers at the Bar and on the Bench. Reforms in the Constitutions and in

the Codes and Statutes will become efficient only after long delay and strenuous effort unless the judges who are to interpret them can be radically changed in the habits and opinions of a life-time. Therefore it is not only necessary to make the need of reform clear, but the need of it must be incessantly dinned into the ears of the lawyers and the people until public opinion becomes so distinct and strong that dull, conceited or stubbornly conservative lawyers can not resist it.

Vain or antediluvian judges indulge in hair-splitting decisions either because they hope to appear as ultra learned, shrewd or logical or because they are really indifferent to the duty of deciding a case according to its merits as determined by the substantive law. Sometimes they are eager to give a decision for the party fairly entitled to win, but, with the erroneous belief that they have not the power to do it on the record, they hunt zealously for some petty technical reasons, based on the adjective law appearing in the record, to justify a reversal and thus they increase the chance that another meritorious party will fall into a pit-fall in a later case.

Sometimes a judge resorts to such a hair-splitting decision in a criminal case because he does not himself approve the law to be enforced or because his sympathies (acquired when he was himself defending criminals at the Bar) are really with the men who have violated the law. There is no chance for a quick and clear condemnation of such an opinion. An adverse criticism in some distant lawjournal or in a text-book published years thereafter or in the opinion of some distant court has little effect. The lawyers directly involved are not allowed, by etiquette, to expose such an abuse of the judicial power; other lawyers that hope to win bad cases by similar opinions are silent; and laymen have no prompt or adequate means of showing their objection or contempt. If they express their dissent, they are usually silenced by the untrue statement, delivered with owlish solemnity, that the preservation of our liberties is dependent upon such hair-splitting decisions for the protection of the accused, Dull, perverse or hyper-technical judges, however honest, thus bring the law and the courts and the profession into contempt, making the administration of the law more difficult and crime more frequent. The result in the trial of Thaw and in the trial of the cowardly assassins who murdered Captain Rankin at Reel Foot Lake in Tennessee and the result in many other trials of late where, with unbroken success, the so-called Unwritten Law has been supported by perjury and maud

lin appeals for sympathy have done incalculable harm. Even a judge of the United States Circuit Court has deliberately said over his signature that a jury ought to have a chance to violate its oath and to acquit a woman who has murdered a man whom she, truthfully or falsely, charges with her ruin; and yet he would probably not advocate the passage of a law imposing the death penalty upon a seducer or libertine. If that were law, the accused might at least have a chance to prove his innocence when his mouth was not closed by death. That there is gross perjury in many cases in which the Unwritten Law is invoked must be clear to any sensible man. We abolished the duel in which each man had generally an even chance for his life, but we have let it become almost impossible to convict a bullying murderer or a cowardly assassin. We have saved the guilty from the judgment of the courts, but we have saved neither the guilty nor the innocent from that blind, unreasoning, undiscriminating, bloodthirsty demon, the mob. To carry out the foolish theory that it is better to let ninety-nine criminals prey with safety upon innocent people than to punish one man unjustly accused, we have probably allowed Judge Lynch, who is unknown in Europe, to murder more innocent men in the past ten years than the courts have unjustly condemned in a hundred years. The result is that blood-guiltiness has outrageously and alarmingly increased in late years and far beyond anything known at the present time in any other civilized land. We do not want to have any innocent man convicted; and, if every case is solely decided on the merits by trial courts and appellate courts and if our governors wisely exercise their pardoning power, the possibility of the conviction and punishment of an innocent man is most remote; but the bare possibility of such a calamity should not lead us into the folly of making it almost impossible to convict the guilty.

In fact, thoughtful men have come to the conclusion that the criminal law, by reason of our absurd procedure, has broken down in this country. It is true that we convict and punish many humble offendders and, in rare instances, an influential offender; that our jails and penitentiaries are full of ignorant, lowly, evil-minded or hardened criminals; but we rarely convict a murderer or a financial pirate who has influential friends and money enough to hire shrewd, competent lawyers. In some of our States there are annually more murders than in all Europe; and, although 60 to 80 per cent of the murderers there are convicted and punished, we convict and punish less than 2

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