337 cases appealed from the high court of justice only 15 were remanded for retrial, and in 1904, of 555 cases reviewed by the court of appeal only 9 were remanded for new trials.1 Federal Judge Amidon, of North Dakota, in an address before the Minnesota Bar Association last year, stated that he had personally examined the law reports of England, covering the period from 1890 to 1900, with the result that he found that of all the cases reviewed on appeal in that country new trials were granted in less than 3 per cent. It is a rule of the English procedure that no judgment or verdict of a lower court shall be disturbed or a new trial granted for error if there were sufficient evidence to justify the judgment or verdict, or if evidence erroneously excluded would not, in the opinion of the appellate court, have changed the result if it had been admitted. In other words, judgment is rendered on the merits of the case, and not on mere considerations of technical error in the record or upon questions collateral thereto. Instead of presuming that error in the trial below is prejudicial to the defendant, the presumption is that it is harmless, and it is incumbent upon the appellant to show the contrary.

One of the results of the strict enforcement of this rule by the English appellate courts is a reduction in the number of cases appealed. A defeated party who has no case on its merits can have no incentive to take an appeal. He knows well that there is no chance of securing a reversal upon immaterial errors of the court below. The consequence is that not more than one case in ten is appealed from the high court, whereas in New York state it is said that on an average 33 per cent of the cases tried in the first department of the supreme court are appealed. The English procedure does not allow a bill of exceptions to be filed and argued. If there is dissatisfaction with the verdict or judgment, application may be made to the appellate court in writing, accompanied by copies of the pleadings and evidence made from stenographic reports.

Moreover, the English appellate judge has all the powers of the trial judge, and he may make any order or judgment which ought to have been made by the trial court. If by reason of error below a wrong judgment was entered, the appellate court may enter the judgment which justice requires instead of sending the case back for retrial upon errors which were not clearly prejudicial to the right of the accused. In other words, the English appellate courts proceed on the principle that it is their business to administer justice as well as the law, a sensible rule, which originally existed at common law, but, like many of the other common-law rules of legal procedure, has been changed by statute or custom.

1 Letter of T. Newton Crane to Ambassador Choate, cited above (N. Y. Commission on Law's Delay, p. 112).

2 Report Commission on Law's Delay, pp. 34, 76, 246. In all England in 1903 there were only 1272 cases appealed to the higher courts, while in two departments of the New York appellate division (New York City and Brooklyn) there were 2952 appeals.

It is gratifying to note that a beginning is being made in some of the states toward reforming the abuses of appellate procedure. Thus the code of criminal procedure of New York (Section 542) declares that in capital cases the appellate court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties; and under the practice of the court of appeals the obligation rests on the appellant to show that the error complained of was prejudicial, that is, that but for the error the result would have been different. The same principle has been embodied in the new law for the establishment of the Chicago municipal court. This law provides that no order or judgment of the municipal court shall be reversed by the appellate court or the supreme court unless they shall be satisfied that the order or judgment was contrary to law and the evidence, or resulted from substantial errors directly affecting the matters at issue. Moreover, the appellate court is empowered to enter such order or judgment as, in its opinion, the municipal court ought to have entered, instead of sending the case back for retrial. There seems to be no good reason why the rule in New York should not be extended to cover the review of other than capital cases, and that the rule in Illinois should not apply to cases appealed from other than the municipal court of Chicago.

It is the testimony of the best lawyers and jurists throughout the country that the interests of justice and social order require a restriction of the right of appeal to more reasonable limits. Justice Gaynor, of New York, in his testimony before the Commission on the Law's Delay, stated the matter tersely when he declared that appellate courts review too many things, and that in our present procedure "appeals have come to be pretty nearly the principal thing." Attorney Hirschberg, testifying before the same commission, asserted that the great difficulty with our procedure was that it is "distinctly an appellate system," that it is based upon the "fundamental idea that a trial and a decision are always wrong," and that as a result of the opportunities thus afforded the temptation to indulge in litigation is vastly enhanced." To the same effect was the opinion of Justice O'Gorman, who stated that nearly every defeated party was willing to take a chance of securing a reversal on appeal, and that they had every encouragement to do so. Dean Huffcut, in an address already referred to, declared that the remedy for the evil described was to provide that any appeal not brought on for hearing within six months after it is taken, should be stricken from the files, and that in addition it should be provided that no case should be reversed unless it is affirmatively shown upon the whole record that the error complained of has been prejudicial to the defendant and has resulted in a miscarriage of justice. If this were done, he declared, appeals would not only be fewer in number, but would also be more speedily pressed 1 Report Commission on Law's Delay, p. 267. 2 Ibid., p. 269. 8 Ibid., p. 319.

3

and with smaller chance of success.1 President Roosevelt in his last annual message strongly recommended the incorporation of this rule into federal procedure, and bills for its introduction into state procedure are now before the legislatures of a number of states. The want of it is, as a well-known jurist has observed, more responsible than any other one cause for the courts which are conducted by Judge Lynch.2 It is the American practice to allow appeals as a matter of course, with little regard to the merits of the case. This privilege should be limited, as in England, to cases where the trial judge in his discretion reserves for review by the higher court some question of law which he considers doubtful and has decided adversely to the defendant. It is no infringement upon the right of any person who has been convicted by the unanimous verdict of a jury chosen from his neighborhood, to say that he shall not be given another chance to establish his innocence, unless it can be affirmatively shown that substantial justice was not done in the first trial. The present wide latitude of appeal, although in theory open to all, is in fact practically closed to the poor litigant on account of the expense involved. The rule thus operates to the great advantage of the well-to-do litigant by opening an avenue of possible escape which is in practice denied to the man without means. It is a common saying which is becoming truer all the time, that the rich criminal with unlimited means at his disposal can, through the process of appeals and new trials, escape the punishment which he deserves and which he would receive if he were a poor man. Any system of criminal justice which makes possible any such inequality in the administration of the criminal law is fundamentally wrong in principle and dangerous in practice. It not only encourages lawlessness among the upper classes, but impairs the confidence of the lower classes in the courts and promotes the spirit of lynch law and anarchy among them. Some valuable lessons might well be learned by our legal reformers from the English and continental practice. It has not been very many years since England was agitated over the situation arising from the virtual breakdown of her judicial machinery, but they set about in a quiet way to make improvements, with the result that they have brought their judicial system up to a plane of efficiency which has not yet been attained in any American state. The New York State Commission on the Law's Delay reported that it had been "profoundly impressed" by the character and results of the English procedure,

Ithaca Evening Journal, December 6, 1906.

2 Michigan Law Review, Vol. III, p. 262.

8 Compare Smyth, "The Abuse of New Trials," Harvard Law Review, Vol. XVII, p. 317. 4 Speaking on this point to the students of Cornell University, Ex-President Andrew D. White recently said: "While the number of murders is rapidly increasing, the procedure against them is becoming more and more ineffective, and, in the light of recent cases in New York and elsewhere, is seen to be a farce. One of the worst results of these cases is the growing opinion among the people at large that men with money can so delay justice by every sort of chicanery that there is a virtual immunity from punishment for the highest crimes."

and declared that the English courts, from having been the most dilatory in the world, had become in recent years the most expeditious, and expressed the opinion that we "could not do better than adopt some of these modern methods of procedure which have been so thoroughly tested in England and have proven to work so well." 1

The English have largely freed their procedure from technicalities, have simplified and made it less cumbersome and expensive, have raised the judge to a more commanding position in the conduct of the trial and assigned the jury its true place, have abolished the doctrine of presumed error, restricted the privilege of appeal to more reasonable limits, and in various other ways provided a procedure which, to an American lawyer accustomed to the delays and uncertainties of our system, seems wonderful indeed. The procedure of the German courts since the adoption of the imperial codes presents many features analogous to that of England. There are no technicalities in pleading; the judge participates in determining what shall be proved, and when and in what manner the proof is to be made; the rules of evidence are simple, trials are promptly started and rapidly expedited, and criminals are punished with a degree of certainty unknown in America. In France, likewise, the criminal law is administered in a way which serves as an effective deterrent of crime, and secures general respect for law and authority.

Before we may hope for a thoroughgoing reform of the American system there must be an entire change of attitude upon the part of the people with regard to the enforcement of law, the rights of the community as against criminals, and the purpose of judicial punishment. The bench and bar must also take a more common-sense view of the whole question of the fundamental purpose of a judicial trial. There must be less disposition to subordinate substantive justice to mere matters of practice. It is also worth considering whether the time has not come when some of the presumptions of our law should not be resolved in favor of the community rather than in favor of the criminal, and whether we should not act more upon the principle that the primary purpose of a system of criminal justice is to protect the innocent members of society rather than the criminal class. Our present methods had their origin in an age when the number of capital crimes was appallingly large, and when offenders were disproportionately punished for minor offenses. To make it difficult to punish persons charged with crime in such an age a

1 Report Commission on Law's Delay, pp. 32, 34.

2 The New York Commission on the Law's Delay, speaking of the English system, declared that "it has undergone many important changes in practice to meet the requirements of modern social and business conditions in England, and that much of our own practice, time-honored and tolerated because 'made in England,' has been displaced by more modern methods of procedure, and is obsolete in the land from which it came, - changes which have worked havoc with many venerable notions and reversed precedents to which our American courts fondly cling" (p. 75).

8 Compare an article by Rudolf Dillon in the Twenty-fifth Annual Report of the New York State Bar Association.

procedure was developed which provided every possible loophole of escape for the accused. The old severity of penal legislation, however, has long ago been abolished, yet the old methods of procedure, with all the safeguards which they threw around the criminal, are still retained. They are totally inapplicable to present conditions, and in the interest of real justice as well as social security they ought to be modified as they have been in England, where they originated. Our duty in the premises was well stated by President Roosevelt in a letter to Governor Durbin of Indiana in August, 1903. He said:

The best and immediate efforts of all legislators, judges, and citizens should be addressed to securing such reforms in our legal procedure as to leave no vestige of excuse for those misguided men who undertake to reap vengeance through violent methods. We must show that the law is adequate to deal with crime by freeing it from every vestige of technicality or delay.

THE JUVENILE COURT1

BY JULIAN W. MACK

Most of the children who come before the court are, naturally, the children of the poor. In many cases the parents are foreigners, frequently unable to speak English. These poor people have not been able to give to their offspring the opportunities and the supervision that many children enjoy. The parents often do not understand our American methods and views. What they need, more than anything else, is kindly assistance; and the aim of the court in appointing a probation officer for the child is to have the child and the parents feel not so much the power as the friendly interest of the state; to show them that the object of the court is to help them to train the child right; and therefore the probation officers must be men and women fitted for these tasks.

Their duties are oftentimes of the most delicate nature. Tact, forbearance, and sympathy with the child, as well as a full appreciation of the difficulties that the poorer classes, and especially the immigrants, are confronted with in our large cities, are indispensable. The New York Probation Commission say, in their second annual report for the year 1908, p. 32:

In courts where the probation system is most effectively conducted there is great variety in the work done by probation officers. The most successful workers regard the receiving of reports from probationers as much less important than the visiting and other work done by the probation officers. The probation officers obtaining the best results enter into intimate friendly relations with their probationers, and bring into play as many factors as possible, such as, for instance, securing employment for their probationers; readjusting family difficulties; securing medical treatment or charity, if necessary; interesting helpful 1 From a paper before the American Bar Association, 1909.