by some mysterious law, precluded from receiving information except according to the rules obtaining in courts of justice, and of governing his conduct accordingly, life would be intolerable.

In the interesting and amusing book called The Man in Court, above noted, the writer remarks apropos of the attitude of an ordinary jury:

During the trial a feeling of resentment of court procedure grows. It is not the judge any longer who is keeping and delaying them. The witnesses appear like fools, it is true, but the lawyers make them act more foolishly than need be. Why does the judge make such absurd rulings? The law must be an unreasonable thing and the judge evidently knows a great deal about it. Why can't the witnesses tell what they know? The strange part is that when a witness has said something and told how he or she feels about the case, which is exactly what the jury want to know, one of the lawyers jumps up and says he moves to strike that part all out, and the judge strikes it out.

It is obvious, therefore, that the investigation of this situation of the administration of justice cannot be fairly or profitably accomplished unless those who have the task in hand keep constantly in mind the popular view and even the popular prejudice with regard to the development of an ideal method of ascertaining the facts in regard to a dispute between litigants in courts of justice.

This problem of increasing the efficiency of our courts presents itself as a problem of loyalty, and warrants an appeal to the public as well as to the profession.

Mr. Elihu Root, in making his presidential address to the American Bar Association in 1916, commented upon the extraordinary increase in national efficiency as one of the most striking effects of the great war in Europe. And after pointing out with prophetic clearness that a similar development must take place in the United States he commented upon the great economic waste in the administration of law, the unnecessary expenditure of wealth and effective working power in effecting this particular function of organized society. After a humorous suggestion that a very considerable percentage of the 114,000 lawyers in the United States, as shown by the census of 1910, could well be spared to do the work on the farms of the country, he declares that the underlying cause of the defective administration of justice is,

that the bar and the people of the country generally proceed upon a false assumption as to their true relation to judicial proceedings. Unconsciously, we all treat

the business of administering justice as something to be done for private benefit, instead of treating it primarily as something to be done for the public service.

He points out that, even with so large a leaven in our legislatures of men who are members of the bar, there is

a continual pressure in the direction of promoting individual rights, privileges and opportunities, and very little pressure to maintain the community's rights against the individual, and to insist upon the individual's duties to the community.

He adds,

There are, indeed, two groups of men who consider the interests of the community. They are the teachers in the principal law schools and the judges on the bench. With loyalty and sincere devotion they defend the public right to effective service, but against them is continually pressing the tendency of the bar and the legislatures, and, in a great degree, of the people, towards the exclusively individual view.

After commenting on some defects in the administration of justice under the procedural law as it stands, he observes:

A large part of the detailed and specific legislative provisions regulating practice is really designed to enable law business to be carried on without calling for exercise of discretion on the part of the court, and the evil results of the absurdly technical procedure which obtains in many states really come from intolerance of judicial control over the business of the courts.

And we quote with especial emphasis the following as justifying the general trend of our recommendations:

A clearer recognition of the old idea that the state itself has an interest in judicial procedure for the promotion of justice, and a more complete and unrestricted control by the court over its own procedure would tend greatly to make the administration of justice more prompt, inexpensive and effective. And this recognition must come from the bar itself.

IX CONSTITUTIONAL CHANGES

We address ourselves first to the root of the whole matter, namely, to the inquiry to what extent, and in what particulars, ought the Constitution of a state to deal with the administration of justice? What safeguards are essential, keeping in mind the American idea of the threefold functions of government by the people, legislative, executive and judicial? Are any of the present formulae outworn? Or, on the other hand, has experience shown the supe

rior value of the once-discarded over the experiments of former readjustments?

And if the constitutional provisions are to be purely generic and not specific, then to what extent is that which is specific, but still demands formulation, to be formulated by the legislature, or to be left to the courts themselves?

The American Judicature Society issued in March, 1917, a second draft of a state-wide judicature act, known as Bulletin 7-A, the original bulletin being out of print. In the introductory note the draftsmen of this act commented on the fact that before such an act could become law in any state some revision of the Judiciary article of the local constitution would probably be necessary. This would be particularly true in such a state as New York. Certain measures of reform that have been suggested in that state have been met by the criticism of unconstitutionality. This was after an examination extending over a long period of time by a commission called the Commission on the Law's Delays, by the framing of statutes to carry out the recommendations of that commission and by the actual passage of such statutes. They were vetoed on that ground as contravening the scheme of administration of justice embodied in the constitution of the state. Notably was this the case with regard to speeding up the judicial machine by eliminating the burden laid upon judges of considering procedural and interlocutory matters through the intermediation of masters, appointed somewhat on the English plan. All such proceedings were to be sifted out by them and nothing left to be tried by the courts but issues of fact or of law. This particular measure was vetoed by Governor Odell on the report of the Attorney-General that it would deprive justices of the Supreme Court of powers which were vested in them by the Constitution. Singularly enough, it has developed, upon search, that this opinion is not on file.

Moreover, in the state of New York, certain courts have become known as "constitutional courts," having been either organized pursuant to some constitutional provision or having been recognized in the constitution as existing courts with a jurisdiction to be preserved unchanged, unless in some cases they were capable of being modified by legislative action, in respect of which express permission for action was reserved in the Constitution itself.

Our first task, therefore, and the task of greatest importance is

to suggest to the bar and to the people of the state, by means of a model Judiciary Article, the three fundamental principles of a complete reform:

(a) A uniform court;

(b) With administrative and disciplinary machinery inherent within that court; and

(c) Provision for reducing the volume of business and rendering the course of justice more expeditious and sure. We propose, therefore, the following Judiciary Article, each section being printed in bold face type and the discussion following immediately after each section as the text of our report.

Section 1.-Judicial Power; Re-constitution of courts.The judicial power of this State shall be vested in the Court of the State of New York. In this Court the People may sue, and without further consent, be sued. Nevertheless, the legislature may provide for a court for the trial of impeachments and for the election and appointment of justices of the peace.

This conception of a unified court is not novel." The state of New York has an elaborate articulation of judicial tribunals. The Supreme Court is a court of general jurisdiction. It holds special and trial terms. It had a criminal branch formerly known as the Oyer and Terminer but now superseded by the "Criminal Part" of the court. It has appellate terms composed of three justices, wherever that term exists, who hear appeals from certain inferior courts. It has an appellate division in each of the four judicial departments where several judges sit in banc and hear appeals from the Supreme Court and from the appellate term in certain cases, and from Surrogates' and County Courts. There is a court of last resort known as the Court of Appeals, which is itself by the Constitution a court of limited jurisdiction, and much of the agitation with regard to judicial reform has arisen by reason of the limitation of the right of appeal to this court of last resort.12

There are local courts known as City Courts in various parts of the state. With certain exceptions, there is a County Court in each county. There is a Surrogate Court in each county, although in certain counties the same judicial officer discharges the judicial "See reference in Part II, p. 61, to English Judicature Acts.

12 See Chapter 290, Laws of 1917.

duties of County Judge and of Surrogate. There are various criminal courts, courts of Special Sessions, General Sessions, Magistrates' Courts. Then there are, in some of the cities, Municipal Courts. Each of these various courts or divisions of courts has its special rules and practice, and such of the courts as are of special jurisdiction may be so closely limited, that when a cause has been finally reached for trial and is to be passed upon, it may develop that the court is without power to grant the relief desired and the litigant be refused relief or remitted to another forum perhaps after the statutory limitation has run against his claim. At the same time the courts of general jurisdiction are protected against the consideration of pecuniarily "small" matters that ought to be tried in the lesser courts. This is accomplished by provisions mulcting the litigant with costs if he improperly engage the attention of that court with the settlement of his petty dispute.

This idea of a uniform court, promulgated by the American Judicature Society, has also been urged by the National Economic League of Boston, the Phi Delta Phi Club of New York City, the so-called "Lawyers' Group for the Study of Professional Problems," in New York City, and as long ago as 1909 was recommended by a special committee of the American Bar Association. The proposition is to abolish all the existing differentiated courts of various jurisdictions and to vest the judicial power of the people in a Court of the State, into which all these existing tribunals shall be consolidated and taken up, with power, as below noted, to divisionalize itself and set up as many parts of first instance or of appeal, and if necessary, of intermediate and of final appeal, as may from time to time be convenient and necessary. These various parts are always to be subject to the control and order of the court itself, so that whenever a litigant having a claim shall bring another into court they shall find themselves in a tribunal adequate to adjust finally and once for all, their mutual rights, and to grant the remedy adequate for the determination of the controversy.

From the theoretical point of view, there obviously should be no maintainable opposition against this suggestion. The recommendation of the American Judicature Society represents a consensus of opinion from all over the United States of members of the bar and of students of the law who have given the matter the most mature consideration. The real objections, the rock upon