Page:The Green Bag (1889–1914), Volume 25.pdf/83

This page needs to be proofread.


The Green Bag

destroyed. Much of the lawlessness which prevails in the United States is in part the result of this lack of confidence in the sure and prompt punishment of crimes by legal process. Lynching is sometimes justified on the ground that the slow and devious processes of the law are not to be trusted to punish promptly and adequately crimes of violence. The recent "night riding" in Kentucky and Tennessee, which had only a pecuniary or commercial object, was frequently justified on the ground that the processes of the law, full of loop-holes and means of delay and eva sion, were not to be trusted to prevent the iniquitous effects of the tobacco monopoly. DELAY OF DECISIONS The long delay of decisions in some American courts is another cause of pub lic complaint, because the full effects of justice, though declared and practically agreed upon, are thus long postponed. Of course the public does not know whether or not there are judges enough for the work of the American community. It does not even know that in the United States we have many more judges in proportion to the population than are found necessary in England, where legal procedure is much more rapid and effec tive than it is with us. It does not even know that some American legislatures have prescribed conditions of work for judges which inevitably delay their action, as, for example, the requirement that charges and decisions on law shall be written, a requirement which in all probability is unnecessary and unwise, since English judges give off-hand oral charges and decisions in many cases, without objection from either the legal profession or the public at large. Here, again, is an important field of action for bar associations through com mittees with power. They should advo

cate greater power and freedom for the bench in the interests of prompt and ef fective judicial procedure. It is for the bar associations, also, to suggest the best number and the best structure of courts in the reorganization so con spicuously necessary. Thus, it has been suggested that a bench of three judges, sitting as a law court, is better than a bench of seven or nine, being quicker in operation and offering fewer chances for divided opinions. The two prin cipal courts of appeal in England, one in law and one in chancery, are com posed of three judges each. Very few cases go up on appeal to the final tribunal the House of Lords. The best pro fessional opinion on all such points as this should be promptly brought to bear upon American legislatures. ABUSE OF THE PARDONING POWER The responsibility of the legal profes sion for the abuse by executives of the pardoning power is only indirect, and yet it is substantial. The profession has failed to insist that no executive should have in practice the power to retry a case on facts and law. It has failed to insist that no executive should have the the power to pardon on the ground that the court has made a mistake. If in any criminal case new evidence be discovered, or if some of the evidence relied on for conviction subsequently turns out to be false, it is for a court to exercise the power to grant a new trial or to set aside the sentence. It is for courts, not for executives, to apply the correction when a mistake has been committed. If there can be any doubt as to the power of a court to act after sentence has once been pronounced, such power should be ex plicitly conferred on the court by the legislature. The pardoning power is to be used for mercy and for mitigations of justice in special cases. Applications