bringing of a party into the State. Neither can it be obtained by acts which would constitute a crime in both countries. The prisoner could not be said to have 'fled' into this State if he had been forcibly brought here. But in this case there was no force used and the prisoner came voluntarily, although he was deceived and mislead in coming.

"I am aware of the general rule, applicable to civil cases, that a party must not be brought within the jurisdiction of a court by trick or fraud for the purpose of having civil process served upon him, and that a service obtained by such means will be set aside.

"The reason upon which this just and salutary rule is founded, is that service of civil process is for the personal benefit of a litigant, and that jurisdiction should be honestly and fairly obtained by him, and if acquired in any other manner it will not be recognized, but the same will be set aside, because a party must not be permitted to take advantage of his own wrong.

"This rule does not seem to have been extended to criminal cases. A criminal action is not prosecuted for the benefit of any individual but for the protection of the whole people. The acts of the complainant do not necessarily bind the people. The case may be prosecuted irrespective of the complainant's wishes, and the prosecution are not responsible for the proceedings unless they are connected with his testimony in the case, or have some bearing upon such testimony any more than they are for the conduct of any other witness in the case."

"So long as the prisoner comes voluntarily into the State, it would seem as though the people are not bound to inquire further as to the means of inducements which some witness or third person may have used or held out to induce his coming before they are permitted to arrest him upon a criminal charge. The case is to be considered the same as though the prisoner had fled from the State into Canada and had then returned here. It makes no difference that he fled from a sister State rather than from this State. It is sufficient that he is a fugitive from justice' and is found in our own State. question seems to be settled, in principle, by authority. 1 Bish. Crim. Pro. (3d, ed.), § 2246: People v. Rowe 4 Parker Crim. Rep. 253; State v. Ross, 21 Iowa, 467, 470; Kerr v. People, 110 Ill. 627, 637-642; 51 Am. Rep., 706, 709-714; Ex parte Scott, 9 Barn. & Cress., 446; 1 Bish. Crim. Law (7th ed.), § 135. See also La Grave's case, 59 N. Y. 110; 38 Am. Rep. 720 note; cases cited in La Grave's case, 45 How. Pr. 314; 14 Abb. Pr. 343, note.

The

"It is suggested that the Dominion Government of Canada may require a return of the prisoner. The answer is that this is a proceeding solely between this and a sister State. If the Canadian Government shall see fit to take action in the matter, it must be to, and the steps to be taken thereon must be by the Federal Government. People v. Rowe, 4 Park. 254; Ker v. People, 110 Ill. 637; 51 Am. Rep. 709-714; Matter of Scott, 9 Barn. & Cress. 448; La Grave's case, 59 N. Y. 116. But even if I had a right to consider the suggestion, I do not see how the Canadian Government could legitimately ask the prisoner's return. Private frauds between individuals are not the subject of international intervention. The arrest was not made upon Canadian soil. The prisoner in this State was justly amenable to process which will compel him to submit to the usual investigation in Pennsylvania, of the crime charged against him. No offense was committed against the laws of Canada nor were its rights as a sovereign State in any manner invaded. The unjustifiable act, if any, was by one of several individuals against another individual and his individual rights."

"It would be a strict rule indeed which would in all possible cases prevent the deceiving, misleading or decoying of a fleeing criminal for the purpose of securing his apprehension. Such methods are sometimes the only means by which his presence can be obtained. The law in its desire to punish the guilty will not scrutinize the methods employed in securing the offender so long as no criminal law is violated, and will not in such cases enter into any investigation of such methods, even though it might disclose the fact that the prisoner was over-persuaded, unduly influenced or grossly deceived and misled in the coming into our State. If the prisoner in his weakness, credulity or ignorance yields to the persuasions of misrepresentations of those who are endeavoring to capture him, voluntarily comes into our State, and is arrested, he has no one to blame but himself. The law has never been construed to prevent the apprehension of a criminal by means of artifice, trick or misrepresentation."

"If, before the arrest of a fugitive can properly or safely be effected, it must first be ascertained whether any deception has been used in securing his presence in this State, that question would be likely to be injected into nearly every case of extradition where the fugitive recently came from another State or country, and the time of the Executive would be greatly occupied in such hearings. *** Would not the pretense of his having been in some degree misled or imposed upon be set up in almost every case where the prisoner temporarily came into the State? It does not seem reasonable that the law contemplates that an extradition of a fugitive should be thus complicated and embarrassed.

follows that it becomes my duty to respect the demand for his surrender made upon me by the Governor of Pennsylvania."

AMERICAN BAR ASSOCIATION.

SECOND REPORT OF THE SPECIAL COMMITTEE
APPOINTED TO CONSIDER AND REPORT
WHETHER THE PRESENT DELAY AND
UNCERTAINTY IN JUDICIAL AD-
MINISTRATION CAN BE LESS-
ENED, AND IF SO, BY WHAT
MEANS.-SARATOGA,

AUGUST 18,

1886.

I.

To the American Bar Association:

THE

HE Special Committee on the Delay and Uncertainty in Judicial Administration have the honor to make their second report, as follows:

The committee, as originally appointed in 1884, consisted of the first two signers of the present report and three other gentlemen, one of whom died before acting, and the others went out of the country before the report was made. The two members remaining made a report, concluding with fourteen recommendations, nine of which were adopted without modification; two were adopted with modification; two were stricken out with the consent of the committee; and one was postponed to the next meeting. Those adopted were the following:

1. Summary judgment should be allowed upon a negotiable instrument or other obligation to pay a definite sum of money at a definite time, unless an order of a judge be obtained, upon positive affidavit and reasonable notice to the opposite party, allowing a defendant, on terms, to interpose a defense.

2. In an ordinary lawsuit the methods of procedure should be simple and direct, without a single unnecessary distinction or detail; and whatever can be done out of court, such as the statement of claim and defense, should be in writing and delivered between the parties or their attorneys without waiting for the sitting of a judge.

3. Trials before courts, whether with or without juries, should be shortened, by stricter discipline, closer adherence to the precise issue, less irrelevant and redundant testimony, fewer debates and no personal altercation.

4. Trials before referees should be limited in duration, by order made at the time of appointment.

6. The record of a trial in every court in which official stenographers are in attendance, should contain short-hand notes of all oral testimony, which notes, if the court shall so order, shall be written out in longhand and filed with the clerk; but only such parts should be copied and sent to an appellate court as are relevant to the point to be discussed on the appeal, and if more be sent, the party sending it should be made to pay into court a sum fixed by the appellate court by way of penalty.

7. A motion for or against a provisional remedy should be decided within a fixed number of days, and if not so decided the remedy should fail. In all other cases a decision within a fixed period should be required of every judge and every court, except a court of last resort.

8. The ordering of new trials should be restricted to cases where it is apparent that injustice has been done.

9. Whenever a court of first instance adjourns for a term, leaving unfinished business, the executive should be not only authorized, but required, to commission one or more persons, so many as may be necessary, to act as judges for the time being and finish the business. Such temporary judges should be commissioned in all courts except the court of last resort.

11. The time allowed for appealing should be much shortened. One month, or at most two, should seem to be enough in all cases.

12. Greater attention should be paid to the selection of judges, without which no other reform, however good in itself, can succeed.

14. The statistics of litigation in the courts of the United States and of each State should be collected and published yearly, that the people may know what business has been done and what is waiting to be done. The recommendation, which was postponed to the present meeting, was the following: "The law itself should be reduced as far as possible to the form of a statute." This will be first considered.

REDUCTION OF THE LAW TO STATUTORY FORM. The committee as reorganized have considered this recommendation anew and readopt it. The reasons given by the original committee leave little to be added. There are now in this country but two ways of making law, and these are legislation and litigation. We prefer legislation. Whether there was ever, at any time, in any country, reason for judge-made law, it would be profitless to discuss. We affirm that there is not now in this country any reason for it whatever. It is illogical, unsafe, and contrary to the American theory of government. The recommendation of the report would not commit the association to any particular scheme of codification or to any form of statute. But we are unwilling to believe that the wit of man is so feeble and the English language so defective that rules of law which are capable of expression in judicial decisions cannot be expressed in statutes. The existing statute books themselves show the fallacy of such an opinion. A large portion of the law is already codifled. What we insist upon is that the uncodified portion of the common law, so far as it is settled by judicial decisions, should be enacted by the Legislature in as brief a compass as possible and published for the use of judges and lawyers, and for the information of the people. We repel the idea that the reduction of the law, so far as practicable, to the form of a statute would check the natural growth of law. We ask that the processes of legislation be reformed and improved, and that the making of the rules of law, by which all members of the body politic must be gov erned, be not left to the shifting decisions of judges in private litigations between A. and B. or B. and C., which may perchance be given in collusive suits between private parties, represented by incompetent counsel, the public having no opportunity and no right to be heard or consulted as to the propriety of the rule which the court declares.

Then the people should be enabled to know beforehand, so far as possible, by what law they are to regulate their conduct, instead of having their rights disposed of as may happen, and in point of fact does not infrequently happen, under the system of judge-made law, by a judicial decision, which in its operation upon the case in which it was decided, and upon other existing transactions or conditions of the same kind, has all the injurious effects of a retrospective law. If the law is reduced to the form of a statute, the office of the judicial tribunals will be, for the most part, interpretation instead of legislation. Judicial legislation will measurably cease, and the office of making laws will be left to the department of the government which was created for that purpose. We repeat that

the real question is whether the American people should be governed by legislation or by litigation.

The precedents cited in the briefs of counsel and the opinions of courts are simply statements of the conclusions upon law and fact in particular cases. The point of the decision was not an abstract rule of law, but the right of A. or the right of B. in the circumstances developed on the trial. The rule is inferred from the reasoning, or if there be no opinion delivered, from the mere fact of a decision one way or the other. When then we say that our common law is a law of precedents, we mean that it is a law of inferences from precedents. The inferences may be correctly drawn, or they may be drawn incorrectly. It would hardly be probable that two persons should draw precisely the same inferences. Hence arises one of the reasons for a code that is to settle the inferences. In no other way can any stability be given to common, that is unwritten, law, for the next precedent may tend as much to confuse as to enlighten the reader upon the just inference to be drawn from the previous one. Precedent is heaped on precedent, that is, precedent in explanation of precedent, which is the same as to say the inference from the first precedent is attempted to be explained by inference from the next precedent, and so on in a congeries of inferences from a congeries of precedents.

It is related of Lord Mansfield that he advised a friend, who was not a lawyer, going out to be governor and chancellor in one of the dependencies of England, not to give reasons for his judgments, "for," said he, "your judgment will probably be right, but your reasons will certainly be wrong." What sort of common law would this chancellor make? That kind of law is a series of inferences from reasons given for decisions, but, says the great chief justice, make the decisions, but give no reasons, for they will certainly be wrong.

If this advice were good, and the colonial judge were a sample of other judges, the common law would be deemed a series of wrong reasons for right judgments. It is amusing to hear the criticisms sometimes made upon particular articles or sections of a proposed code; that this section or that section is not the law, meaning that it is not a just inference from the reasoning of a particular precedent. The critic thinks so, but the next critic thinks differently, and among a dozen lawyers there may be a dozen opinions. Which is right and which is wrong it is the function of the Legislature to declare.

An unwritten or inaccessible law is un-American. The law of the Legislature, as distinguished from the law of the courts, is the necessary sequence of the American doctrine that the functions of government should be apportioned between three great departments, legislative, executive and judicial. Our practice is inconsistent with our theory. Indirect methods, subterfuges and shams are not in accord with our professions or our traditions. Whatever we do, we at least pretend to do not covertly, but openly. When we want a constitution of government, we write it. When we want a treaty with another nation, we write it. If we seek to make plainer our relations with the other nations of the earth, we do not leave those relations to the decisions of the tribunals, but we put them in writing as plain as possible, that they may not be misunderstood. So we did when the great Frederick and the greater Franklin came together to frame the most enlightened treaty ever made; so we did when, in 1871, we dealt with England for the depredations of the "Alabama." We did not create the Tribunal of Geneva to pass upon questions of international law, as they lay in the usages of nations and the precedents of the tribunals delivered from time to time

through ages. We did not send counsel to Switzerland to read from Grotius and Vattel and the long line of publicists and judges, called the sages of the law, but we first agreed with our adversary about the law, and put into writing the rules by which the tribunal was to judge, and then, and not till then, we called the tribunal itself into being, not to judge by the inner light which is supposed to burn in the breasts of judges, or by the innumerable books which the jurists of all ages have placed upon our groaning shelves, but by few rules of law, framed with deliberation, written with care, and stamped with authority.

What have we done about the rules of navigation? There lay the rules of common law from the earliest ages, from the days of the sea kings, from Wisbuy and Oleron, from the time when the Colossus of Rhodes bestrode the gate-way of eastern commerce. Why did not modern commerce content itself with them? There were decisions in English courts and in our own -why not work with them? Why have rules of navi. gation in these our days been framed, written in all tongues, posted in the log books of mariners, displayed in insurance offices, and wherever merchants most do congregate?

One of the trite, threadbare arguments against codification is the history of the statute of frauds. See here, the anti-codifiers say; here is a little statute of a few lines, and behold what a host of questions and decisions has it given rise to. Well, would you have had no such statute? Would you repeal it? Was that English judge demented who declared that every line of it was worth a subsidy? The Constitution of the United States is, according to these anti-codifiers, another awful example of the evils of written law. See, they exclaim, what volumes of commentaries from the Federalists down, what crowds of decisions on that little Code made in these hundred years. Well, again, would you undo it? One is tempted to ask of these gentlemen, do you take us to be children, that you would foist upon us such nonsense?

These men forget how it appears in the whole course of English and American history, that when a victory for freedom was won, in the establishment of great rights or duties, they were written down, that they might never be mistaken or disowned. So it was with Magna Charta, so it was with every petition or bill of rights for which so many ages the people of England struggled for and the crown resisted. Even so long ago as 1771, when it was proposed in England upon trials for libel to substitute for judge-made law the written law of Parliament, Burke in answer to the objection that the matter should be left to the judges, declared that "If so, very ill would the purchase of Magna Charta have merited the deluge of blood which was shed in order to have the body of English privileges defined by a positive written law."

It is not necessary however to go back to the past century or to past decades for evidence or illustration. We are speaking of our own country and our own time when we say we need a Code. We will not stop to inquire whether the people who lived in England or America before the American Revolution needed it, but we say that we who live here now need it. The literature of this country, and the same may be said of England, demands it. However strong may be the body of lawyers, and they are strong, and it is for the common weal that they should be strong, for they are one of the great conservative forces of society, they are not so strong as the people, the men of letters, the thinkers and the writers, who are bound by no ties or prejudices of profession or classes, but who reason and speculate, study history and compare systems, and reach their own conclusions from facts they themselves have learned; men, for example, like Ba

committee, appears to us to imply not only the recommendations adopted at the last meeting are to stand, and the one postponed to this meeting to be further considered, but that any other matter relating to the general subject of the original resolution may be considered by the committee. Upon this undertaking of the scope of their inquiries, they appointed their junior member secretary, and sent out a circular to members of the association, to judges of the highest courts, Federal and State, and to other prominent members of the profession, containing a number of questions upon topics which it was proposed to consider. A large number of replies to this circular have been received, which have been copied or condensed, and the result, together with the circular itself, will be found in the appendix to this report. Proceeding then to the discussion of the new sub

The resolution 13, which was laid over at the last meeting of the association, does not declare that the law should be reduced to a code; it merely declares that it "should be reduced, so far as possible, to the form of a statute." We think indeed that the resolution would in the end lead to a code, as a logical sequence, because we think that so much of the law can be reduced to statute as to result in a code. Some persons however may be of opinion that it is possible to reduce only a small portion of the common law to a statutory form, not enough to entitle the product to the name of code. Then if only a few of the rules can be so reduced, the work is easier done; if many, the work is the more necessary to be done. They who do not think a code attainable may nevertheless with consistency adopt the resolution as a just one. None can vote against it, but he who thinks that not a single rule of the common law, though quite possible to be reduced to the form of a statute, should be placed in the statute book, not even the law of bills, checks and promissory notes, as has been done in England within the last four years. If any lawyer is willing to stand upon that opinion, we leave him to the people. Let him say to them, if he will, "I known very well that we can write down in the form of enactments many, or at least some of the rules of law, which are the measures of your rights and duties, but we will not do it or have it doue; we prefer to tell you from time to time what they are, as you call upon us at our offices or in the courts."

Here is the conclusion of the whole matter. The common law is made by the lawyers from time to time; lawyers on the bench and lawyers at the bar. They say, or rather many of them say, such is their proper function. Some, modest men that they are, call themselves a trained body of experts just fitted for the work; others, more modest, insist only that theirs is the true method of generating law. A free people who have framed their institutions, or purpose to keep the three departments of government, the legislative, executive and judicial, separate and independent of each other, will not always submit to this assumption. They will not sit quietly by and see their laws made by the lawyers. The seventy thousand in the United States, though a host counted by themselves, are yet but a handful counted by the side of sixty millions of their countrymen. These are considerations which we, members of this association, and all members of our profession, everywhere in the country, may profitably take to heart.

NEW SUBJECTS.

The action of the association in recommitting the original resolution on delay and uncertainty to the

der there taken.

THE SYSTEM OF TRIAL BY JURY.

Great dissatisfaction exists with trial by jury. This dissatisfaction appears to be increasing with the general advance in popular intelligence. The magazines and the newspapers have for several years teemed with criticisms upon what is called the jury system. These criticisms have called forth defenders of the system, and the result is that the subject is undergoing a very thorough and thoughtful discussion. We do not propose so much to make our own arguments for or against trial by jury, as to call attention to its history, the changes it has undergone in different places, the views entertained by its advocates and defenders, the arguments generally used in both sides, and to recommend improvements in the selection of jurors and the conduct of trials by them. During the first fifty years of the American Union a tendency was discernible to enlarge the right of trial by jury, and to insert guarantees of this right in the Constitutions, Federal and State. The right was pushed to extreme limits. The power of the jury was constantly enlarged and the power of the judge correspondingly curtailed, until in some jurisdictions, as in Missouri and several other western States, the judge in a jury trial is little more than a moderator in a town meeting, whose duty it is to see that the rules of debate are strictly observed.

The subject has passed through several notable phases. In the first or original phase, the idea of trial by jury was a trial by witnesses to the fact. The jury consisted of twelve men of the vicinage, that is, of the immediate vicinity where the act in dispute was alleged to have been done, and they decided upon their own knowledge and neighborhood rumor. This was the original idea of our rude Saxon ancestors. This idea has undergone such a change that now the fact of a juror having personal knowledge of the transaction is generally regarded as a sufficient ground of challenge, and the fact of his having formed or expressed an opinion either upon personal knowledge, upon newspaper report, or upon common rumor, if the opinion be of such a character as to render it improbable that he could come to an unbiased decision is a legal ground of challenge. So that what in the early stages of the institution was a necessary qualification in the juror is now a legal disqualification. Nevertheless, an inveterate conservatism has clung to the system during the course of the centuries which have witnessed this transformation in its fundamental idea and principle. It is deeply imbedded in popular affection and in popular prejudice. A superstitious veneration attaches to the number twelve. In the popular imagination there is something akin to magic in it. No bill of indictment can be returned in most jurisdictions by a less number of grand jurors than twelve; and except where recent Constitutions have made an innovation, no verdict in the most petty civil cause returned by less