574
The Green Bag
itJ among an innumerable number of the weakest kind of centres by establishing an innumerable number of petty counties. Other illustrations might be given of what the people might do, but this is enough for my present purpose. The- President suggests that there are two provisions which might be made for the relief of the poor man. One is by limiting the number of appeals; the other is by reduc ing the cost of litigation. As to the former, until the act establishing the United States Courts of Appeals in 1891, every civil appeal required that a considerable pecuniary amount should be at stake; and there were no appeals in criminal cases unless by accident, or by a certain moulding of judicial proceedings which the Supreme Court had more than once re proved, when two judges sat and disagreed. All this was wiped out in the Court of Appeals Act, framed by such eminent and experienced lawyers as Senator Evarts, Senator Edmunds and Senator Hoar, which gives a universal appeal in both civil and criminal matters, and which has lately been followed by legislation in England in criminal matters, as already said. Not only was this the mature judgment of the eminent Senators and jurists we have named, but of the mass of the people who had given the matter any attention. On the other hand, the reduction of costs inevitably tends to increase the number of appeals. Perhaps more than by anything else appeals have been shut out in England by the enormous bills of costs involved, in connection with the fact that the barrister or the proctor is a gMcm'-judicial officer of the court. I have in mind a case of a collision on the ocean, with reference to which I was general counsel, and in a general way guiding the litigation in behalf of one of the colliding ships. Sir Robert Phillimore, one of the most eminent of the admiralty judges in Eng land, awarded against our ship the equivalent of about $70,000. His tribunal was of the first instance. In this country, as the matter then stood, we would have undoubtedly appealed to the Circuit Court, and, if beaten there, again to the Supreme Court. The same lawyers who were the proctors would have been the solicitors enlisted in behalf of their clients. They would have said: "Oh, let us take our chances; the costs are small!" On the other hand, in England the costs taxed included retainers for both senior and junior counsel, as well as refreshers, the latter being from five to ten guineas for every day after
the first judicial day of five hours; and the bill of costs paid by our ship taxed in the admiralty court was many times larger than the corresponding bill of costs would have been in the United States. The question of appeal was submitted to the judgment of the senior counsel, who said only that he felt strongly that the decision was erroneous, but that it was difficult to reverse Sir Robert Phillimore; and he added, "the costs of appeal would be so large!" Of course the litigation stopped. In my investigations to which I have re ferred, I developed fully what I had before seen, that it would be a serious obstacle in the way of the courts, and perhaps choke some of them entirely, if in civil and criminal cases, or in either, the appellate tribunal was to revise the entire record, and determine whether or not the total result of the proceed ings below had worked injustice. The American Bar Association and many other Associations have suggested amendments to the law in this direction. The broadest provision of this character is in the late English Criminal Appeals Act to which I have referred. Of course, in view af the rigid provisions of the Constitution of the United States with refer ence to the right of trial by jury, not much apprehension in respect to the federal courts in this behalf need trouble us; and the same is true as to states where like constitutional pro visions exist. Nevertheless, while the use of stenographers in the courts has doubtless facil itated trials in criminal cases, and in civil cases where proofs are taken orally, yet their use has introduced a new element which the courts have not yet been able to control. In the first place, it has increased enormously the mass of testimony in equity suits, and whereever else the case is heard on the record; and it has also become a new source of delay in litigation. While it has wiped out any occasion for the frequent former suspicion that some judges were inclined to trim bills of exceptions in cases tried by themselves, it too frequently induces the bringing up to the appellate court of the entire notes of the stenographer. There are not at the present time sufficient skilled stenographers to meet the requirements of the courts, and there is no ground of present expectation that this difficulty will soon be remedied. Stenogra phers suited for that purpose require a high, degree of education and training, and are everywhere overworked. I have now in hand a case tried in May, where the parties insist
