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 The Progress of the Law

565

York, and yet the delays of the law have

the outset with the tremendous power

in late years grown steadily worse and worse. The opinions of the courts in

of the judiciary in that country. Not only are they appointed for life, instead of being elected for comparatively short terms as is the almost universal rule of the state courts of this country, but the

these states that have adopted the re form code of pleading are ﬁlled with questions of practice and pleading, and in this respect excite the amazement of observers from England and the Cana dian Provinces. The situation in this country in the administration of justice is the more in tolerable, and indeed indefensible, when we consider that the investigations into

historical jurisprudence have disclosed that extreme technicality is the sign of

an undeveloped system of law, in which legal rights are subordinate to the procedure to enforce them, wherein the

substance is secondary to the form. Cen turies ago, the main business of the courts was in ascertaining rules that the litigant

social system there prevailing gives the judges a vastly greater prestige than any judges enjoy in this country. Those who have attended English trials are impressed with the tremendous prestige which there attends the olﬁce of judge. Questions of pleading and evidence and of practice are infrequent because we are told the judges discourage them. The contrast afforded by this country, partic ularly in the case of our state courts, is very striking. Our judges have far less power, and in the state courts, as a rule, cannot express any opinion to the jury upon questions of fact. In some states

should follow this established form or

they are forbidden to instruct the jury

that, and according as he bore the test, he should either be punished or go acquit. Formalism in the early stages of society was a step, but one of the ﬁrst steps toward a rational system for determining controversies. It was better than pri vate war. Thus the determination by chance or wager of battle was an ad

except in writing, or at all upon the facts

vance upon the primitive state where men took the law into their own hands.

in evidence. The rules of procedure are made, not by the judges as in England, but by statute. The intimate relation of the position of the judges to any pro spective reform is emphasized in the

recommendation of the American Bar Association already referred to, that the statutes should only deal with the general forms of procedure, leaving the details to

The important fact, therefore, in this progressive development of our juris prudence is the growing recognition that the demand for simplicity in procedure

be ﬁxed by rules of court. Thus, Presi dent Taft in the address already cited

does not spring from ignorant reformers

of progress. He says the English sys tem, consisting of a few general prin ciples laid down in the Practice Act, and supplemented by rules of court to be dictated by the Supreme Court of Adju dicature, has worked very great beneﬁt to the litigant and has secured much expedition in the settlement of contro

or radical iconoclasts, but is a progres

sive step in a rational advance of pro gressive jurisprudence. Forms were regarded with superstitious reverence in the early stages of society, but we now recognize that the simpler the procedure, the better it serves the purpose. If we search for the causes of this progress made in the administration of justice in England, we are confronted at

has laid stress upon this reform which, he says, lies at the very basis of any hope

versies, and has practically eliminated the discussion of points of pleading and practice in the appellate courts.