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 THE GREEN BAG

THE AMERICAN JUDICIARY1 BY EVERETT THIS book of Judge Baldwin's contains the fullest and most accurate account of the organization and functions of the American Judiciary that has ever been published. It is written for popular use, and ought to be in the hands of every student of American Government, for the Judiciary in this country is one of the coordinate departments of that govern ment, and its influence upon the growth of the nation can hardly be over-stated. There are some points in the present judicial system which seem to us* to need improvement, and the appearance of this timely volume affords an opportunity for suggesting them. The fusion of law and equity was a favo rite subject for law reformers in the first half of the nineteenth century. No doubt there were abuses in the administration of the Court of Chancery under Lord Eldon which did indeed require reform; and no doubt in the administration of the Chancery courts in this country there were sometimes failures of justice. So far as procedure was concerned, there was need for improve ment. Two methods for making this im provement were attempted : One by rule of court; the other by specific and minute acts of the legislature. David Dudley Field was the father of the latter method, which he embodied in a Code of Civil Procedure, which was adopted by the Legislature of New York in 1848. Many other states followed the example. But the codifiers of practice overlooked the fact that the principles of law and equity are essentially different. They may be administered by one court and in one form of suit, but you can no more fuse them than you can fuse a woman into a man. The attempt to do it, by a curious perversion of terms, led the courts to apply

P. WHEELER to all appeals the common law practice upon writs of error. The Codes in terms abolished writs of error and gave a review by appeal in every case. But the courtstreated the enactment as if it had abol ished appeals and substituted writs of error as the only method of review. The result of this has been that the appellate courtsin the states which have adopted the Code practice, as a rule confine themselves todiscovering whether or not there is rever sible error in the record; whereas, accord ing to the practice in equity and admiralty appeals, it was the business of the Appel late Court to render final judgment accord ing to the merits of the record. Indeed,, at common law, it was the duty of the court upon writ of error to render judgment ac cording to the merits of the whole record. The practice which has sprung up among ap pellate courts in this country, of attributing special sacredness to the finding of the court of first instance, and of refusing themselves to make a finding, did not prevail at com mon law. Any one who has ever glanced over Burrough's Reports, for example, will find that while undoubtedly weight was given to the finding of a jury, yet the full Bench did not consider it essential, where it dis agreed with this finding, in all cases to order a new trial, but exercised the right to render final judgment upon the merits of the record before it. The effect of the practice thus referred to, which has become so general in this country, has been that which was natu rally to be expected. A judge whose whole attention on an appeal is devoted to the question as to whether or not there is reversible error in the record, and whose first thought is not devoted to the ascer tainment of the actual merits of the1 "The American Judiciary," by Simeon E. controversy, and rendering a just judg ment thereon, becomes almost of necessity Baldwin, LL.D. The Century Co., New York, 1905