Page:The Green Bag (1889–1914), Volume 18.pdf/733

 THE GREEN BAG matter included in the local charter herein provided for." At present the legislature has little tendency to meddle with the affairs of cities having home rule charters, but under the above quoted clause it unquestionably has the power. PRACTICE. In an address entitled, " The Quest for Error and the Doing of Justice," delivered before the Minnesota State Bar Asso ciation in April, 1906, printed in the Septem ber-October American Law Review (V. xl, p. 681), Hon. Charles F. Amidon declares " The fundamental defect of our legal administration is the doctrine that, where error is found, pre judice will be presumed." This produces an endless crop of new trials and as a result great uncertainty, expense, and injustice. Arguing from English experience he seeks to have established in our statutes and practice this rule: "No judgment shall be set aside or new trial granted in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure unless, in the opinion of the court to which the application is made, after an examination of the entire cause, the error complained of has resulted in a miscarriage of justice." PRACTICE. " The Causes of Popular Dis satisfaction with the Administration of Jus tice," a paper read by Roscoe Pound before the American Bar Association in August, and printed in the American Law Review (V. xl, p. 729), says at the outset: " Dissatisfaction with the administration of justice is as old as law. . . . But we must not be deceived by this innocuous and inevitable discontent with all law into overlooking or underrating the real and serious dissatisfaction with courts and lack of respect for law which exists in the United States to-day." The paper groups the causes of dissatis faction under four main heads: " (i) Causes for dissatisfaction with any legal system, (2) causes lying in the peculiarities of our AngloAmerican legal system, (3) causes lying in our American judicial organization and procedure, and (4) causes lying in the environment of our judicial administration."

In the third head, " we come upon the most efficient causes of dissatisfaction with the present administration of justice in America. For I venture to say that our system of courts is archaic and our procedure behind the times. Uncertainty, delay, and expense, and above all the injustice of deciding cases upon points of practice, which are the mere etiquette of justice, direct results of the organization of our courts and the backwardness of our procedure, have created a deep-seated desire to keep out of court, right or wrong, on the part of every sensible business man in the community." Like other investigators Mr. Pound declares emphatically that " the worst feature of American procedure is the lavish granting of new trials." "Reviewing the several causes for dissatis faction with the administration of justice which have been touched upon, it will have been observed that some inhere in all law and are the penalty we pay for uniformity; that some inhere in our political institutions and are the penalty we pay for local self-government and independence from bureaucratic control : that some inhere in the circumstances of an age of transition and are the penalty we pay for individual freedom of thought and universal education. These will take care of themselves. But too much of the current dissatisfaction has a just origin in our judicial organi zation and procedure. The causes that lie here must be heeded. Our administration of justice is not decadent. It is simply behind the times. Political judges were known in England down to the last century. Lord Kenyon as Master of the Rolls sat in Parlia ment and took as active a part in political squabbles in the House of Commons as our state judges to-day in party conventions. Dodson and Fogg and Sergeant Buzzfuz wrought in an atmosphere of contentious procedure. Bentham tells us that in 1797 out of 550 pend ing writs of error, 543 were shams or vexatious contrivances for delay. Jarndyce and Tarndyce dragged out its weary course in chan cery only half a century ago. We are simply stationary in that period of legal history. With law schools that are rivaling the achieve ments of Bologna and of Bourges to promote scientific study of the law, with active Bar associations in every state to revive profes