564
The Green Bag
the United States Court of South Da kota said that in the investigation by the American Bar Association in 1887, it
was found that in sixty per cent of the cases reviewed in the appellate courts of this country the appeals turned upon
questions of pleading and practice, and that he had made an investigation and
had found that since that time condi tions had not improved, but had grown worse. He made a comparison with the high law courts of England for the same period, and found that new trials were granted in less than three and a half per cent of the cases, while in this country, in over forty per cent of the cases. In
England, he said, there was no such thing at this time as a bill of exceptions, and that they did not recognize the American rule that prejudice was pre sumed from error. In searching for the reasons for the lagging steps of this country in this matter of judicial reform, we must recog nize at the outset that the political devel
opment of this country, with its complex federal system, with rigid written con stitutions both in the state and nation, have not only made the operation of public opinion slower, but they of them selves have tended to intensify profes sional conservatism and to make our lawyers and judges, from their train ing, become strict constructionists and so affected with the spirit of what may be termed legalism, that they ignore
trifle and to the doctrine of presump tion of error from erroneous rulings that tempt counsel to push up to the appel late court every ruling on evidence. He thinks future reform must come in the
slow formation of professional habits among our lawyers. In this connection we must not over
look the fact that our government was organized under the distinct theory that
the permanent well-being of the people was best secured by limiting the influ ences of temporarily existing causes, and
by this temporary restraint allowing the sober good judgment of the people, through their representatives, to control. This is the political philosophy underly ing our complex organization of sover eign representatives of the public under
rigid written constitutions limiting the legislative power. These constitutional restraints on men therefore, as well as
their liberty, are to be reckoned among their
rights.
While these fundamental difierences in our political conditions may account in a measure for the lagging steps of
judicial reform in this country, and may make an effective reform more difficult,
they do not render it hopeless.
In the
words of Mr. Lowell, our constitutions
obstruct the whim, but they do not de feat the will of the people. It would be a lasting reproach to our American sys
tem, of which we are justly proud, if we
the substance in searching for technical arguments and objections. The dockets
are obliged to confess that we cannot remove the causes which delay the ad ministration of justice.
of our courts are crowded with a class of constitutional questions which would
The evil cannot be remedied by statutory forms of procedure. We
not be raised under the English system. Professor Wigmore, in his Historic Sur vey of the Law of Evidence, attributes
adopted such reform codes, the same
the backwardness of this country in this department of judicial reform to the partisan spirit of our bar, to its habit of contesting desperately on each
find today in the states which have complaints of the delays of the law as is
found in the states which have adhered to the common law pleading. In my own state, the reform code of pleading was adopted immediately after that of New
