IS THERE CRITICISM?

So long as legislatures grind out laws which are set aside as unconstitutional, or which speedily become dead letters; so long as there spreads through the country a spirit of dissatisfaction with the administration of justice, which has become embodied in this agitation for the recall of judges; so long as the community indulges freely in criticism of the methods and practices of attorneys as dishonest, tricky or dilatory; just so long may we assume that we have not reached the ideally possible stage of legal efficiency, and are warranted in examining the conditions, attempting to formulate some principles the application of which practically might result in an approximation of our ideal. If we superimpose Mr. Taylor's four fundamentals on the twelve principles formulated by Mr. Emerson, and take, as it were, a composite photograph of both, we might find three principles standing out in this composite relief:

(a) Definite ideals standardized into a system in the light of experience and

common sense.

(b) Scientific selection of materials and workmen.

(c) The system moving with dispatch and without friction because of coöperation and redistribution of the strain.

IV SOME OBSTACLES TO BE MET

It has become a commonplace that litigation connotes delay. The law's delay is popularly supposed to be a sine qua non of litigation, and lawyer and judge are, at the bar of public opinion, alike held guilty as the causa causans of the condition. So firm and widespread is this conviction that many popular alternatives for the settlement of disputes by courts of justice have been put forward, and some are fully established in operation.

The bar and the legislature, by committees and commissions, have grappled with the problems inherent in the situation, but they have moved slowly-with little unanimity. They have yielded to considerations of political expediency-they have persisted in treating judges as the incumbents of an office carrying emolument, and they resort to medicine to cure or tone up, rather than to surgery to remedy the juridical body.

Your committee has felt, therefore, the need of appealing to the general public. It has dreamed-it sees a vision-it has sought to visualize a new efficiency in the administration of justice, and it offers its ideals for examination, not ignorant of the usual fate of all idealists, but convinced that "tomorrow is at the door," and that the ultimate desired reform must come from the people, guided by the learning and experience, even though restrained by the prejudice and conservatism of the American bar.

V RESPONSIBILITY OF MEMBERS OF THE BAR

Coincidently with this agitation with regard to the law's delays, the clamor for the recall of judges, the contention that courts were exceeding their intended powers when they assumed to set aside as unconstitutional the will of the people expressed in the statutes of its legislatures, the bar of the United States and those of most of the individual states have been successfully active in formulating, promulgating and adopting codes of professional conduct or so-called "canons of ethics," which, little by little, e.g., by amendment of the existing rules for the admission of attorneys, have been made in principle and spirit, binding upon those applying to be admitted to the bar. In the 1917 report of the writer, as chairman of the Committee on Professional Ethics to the American Bar Association, is noted the outstanding fact that the legislature of the state of Washington, by chapter 115, L. 1917, §20, enacted that the canons of that Association "shall be deemed the standard of ethics for the guidance of the members of the bar" of that state. The bench and the bar alike, through committees on professional ethics, committees on discipline or grievances, or committees on the unlawful practice of the law, in various jurisdictions have been seeking to write into the decisions of the various states the general principle that these canons supply a norm of conduct to which decent members of the bar must conform.

This movement has gained such headway and is in such general operation that, as Mr. Elihu Root remarked to the framer of this report, "Sufficient rules of conduct have now been formulated and adopted, and we have reached the period for the application of those rules in professional conduct generally."

Consequently, this committee is of the fundamental opinion, and bases its entire report and such recommendations as it may set forth herein, on the principle, that it is the duty of an educated and conscientious bar to give to the matter of the development of the system of administering justice thoughtful, painstaking and selfdenying study and attention, in full realization of the fact that such development must be sympathetic, and must be based upon an intelligent apprehension of what our heritage from the past is and what it means. As an alternative, we must be satisfied to have our system of jurisprudence seized upon and dissected in the laboratory of the doctrinaire, or the "social reformer," often unsympathetic

with the value and influence of precedent, who is willing to sacrifice a system to speed, and the general effectiveness and sureness of a rule of law to the Solomon-like end of doing the right thing between two particular individuals.

Even the President of the United States in addressing the American Bar Association in Washington, in 1914, summed up the popular belief that justice administered in a court is not identical with that which "the innate sense of justice in every human breast conceives to be applicable to a particular dispute."

This paradox has been recognized from the beginning of the development of our law. Doctor John Norton Pomeroy in examining the origin of equity jurisprudence and showing the arbitrariness and formalism of the original five actions that constituted enforcement of civil rights in the earliest period of Roman law, quotes from the Institutes:

"All these actions of the law fell gradually into great discredit, because the over-subtlety of the ancient jurists made the slightest error fatal.”

Going on later to emphasize the importance of a correct notion of equity, which he says is not a theoretical but a very practical inquiry, he observes:

"If a certain theory of its nature which now prevails to some extent should become universal, it would destroy all sense of certainty and security which the citizen has, and should have, in respect to the existence and maintenance of his juridical rights."

These observations, we may note, were made in 1881. And this conception to which he refers was known, he says, to the Roman jurists, and was described by the phrase arbitrium boni viri, which he translates, "the decision upon the facts and circumstances of a case which would be made by a man of intelligence and high moral principle." He closes by observing:

"It needs no argument to show that if this notion should become universally accepted as the true definition of equity, every decision would be a virtual arbitration, and all certainty in legal rules and security of legal rights would be lost.

Popular opinion, however, remains unconvinced. It wants each individual dispute settled right-and if precedents or rules of ⚫ evidence intervene, it clamors that they be disregarded or overruled. This is not a fanciful danger, While we do not for a moment

contend that the social development of the last fifteen or twenty years in the way of tribunals ad rem where rules of law are thrown to the winds and where disputes are expeditiously adjusted, is a dangerous development, we do contend, for the purposes of this report, that it is a symptomatic development, that it indicates a trend in public opinion that must be reckoned with in the matter of any permanent and profitable reform in procedure and in the organization of our courts; and it will be seen as this report progresses that we have reckoned with this trend and yet have contemplated that some of the suggestions which are put forward are those which may at the outset commend themselves more immediately to the judgment of the people at large than to that of our brethren of the bar. It was because of our consciousness of these divergences of conviction that we quoted from the Hoffman resolution, and we reprofess our diffidence in promulgating the evolutionary (but, we earnestly urge, not revolutionary) suggestions for the elimination of cogs and for speeding up the juridical machine.

VI RECOMMENDATIONS OF THE AMERICAN JUDICATURE SOCIETY The labors of the Constitutional Convention in New York in 1915 came to naught. They were repudiated at the fall elections. The judiciary article fell with the rest, not being separately submitted. But that article fell within the category above noted of "medical" rather than "surgical" remedy. It failed of realizing the philosophical or ideal standard.

It still reckoned with politics and offices, and persons likely to be affected. Little groups here and there were in favor of separate provisions in it, but as a whole it was a mixture and not homogeneously consistent and it commanded no general or enthusiastic support. Great as might have been its value as a step of progress, still it would seem, in the retrospect, as if it would have been merely a side step, a "bypath meadow," a temporarily easier road, but one ultimately to be abandoned, while the great step forward must ultimately be made at the very point of divagation by more drastic, logical and fundamental reorganization. It failed to take into account the full meaning and value of two great movements, to one of which brief allusion has been already made.

There had been growing into an increasing influence a group known as The American Judicature Society, interested in having a

common sense, simple, directly functioning and efficient system. of court organization. And alongside this were the activities of the Committee on Uniform State Laws of the American Bar Association, one of the most potent influences for breaking down the complications introduced into the relations of American citizens by the peculiar survival of the theory of the foreignness of each particular state to all of the other states, so that citizens of one state doing business with citizens of another state might in the event of ensuing litigation be confronted with the necessity of conforming to different laws administered under an entirely different procedure.

As to the uniform state laws, the principle of such uniformity, that is as to its desirability in regard to matters in respect of which there never was any substantial defensible reason for diversity, has been recognized and approved by every state of the Union.

In the report of the Committee on Uniform State Laws made to the American Bar Association in 1916, it was said that "the adoption by the various states of uniform state laws which the conference of commissioners has proposed from time to time, has been continuous and increasingly enthusiastic." The committee reports that the Negotiable Instruments Act has been adopted in forty-seven states, the Uniform Warehouse Receipts Act in thirty states, and the Uniform Sales Act in fourteen states. In addition that committee prepared and submitted for adoption uniform acts on divorce, stock transfer, family desertion, probate of foreign wills, marriage evasion, partnership, workmen's compensation and cold storage, and offered with its report of 1916 a uniform land registration act.1

The American Judicature Society at the same time had been seeking to frame a model act for the organization of courts, a model practice act and model court rules for the governing of practice, with the laudable idea of making uniform the administration of justice throughout the Union.

The state of New York had, for several reasons, been by way of dominating the practice of other states, perhaps because of the fact that its practice acts were more highly articulated at the time when so many states were considering whether or not to adopt codes. Material was thus afforded for the draftsmen of

See Minutes, American Bar Association, 1916, p. 428 et seq.