these truths are really brought home to the people, the prejudice against the lawyer will disappear. The glorious history of the participation of the legal fraternity in all struggles for progress from Stuart days (to go back no further) down to the present instant will then find sympathetic listeners; the people when acting in sovereign capacity in change of law will freely take the suggestions of the lawyer at what they are worth in their sphere.

It may fairly be asked whether the existing distrust of the lawyer is more than a matter of academic interest. Does it ever assume a concrete form practically hampering the development of the law? Illustrations of this mistrust could be found in the statutes of every state. One glaring instance, fraught with mischievous consequences, will suffice. In Missouri the Practice Act, dealing with the method of court procedure, covers 356 pages and contains 934 sections, regulating minutest detail. By far the greater part of these sections might be abolished to the great advantage of the administration of justice, substituting a small body of flexible rules promulgated, and altered as occasion required, by the Court. The people mistrust not merely the Bar but the Bench. Year after year through the greater part of a century fresh legislative fetters have bound judicial discretion, till the judge presiding at a jury trial suggests to the mind the referee at some sporting contest who sees to it that the rules are observed and announces the result. It is true that the judge still gives the jury the law applicable to the case. But he can do so only in writing; and is sternly forbidden to comment in any way on the evidence. The results of this, and of additional minor limitations, are the socalled Instructions. Many of them (to speak within bounds) owing to these restrictions assume a shape so intricate and involved that an ordinary mind not especially trained in the law, fails to grasp the purport. The jury sometimes misinterpret such instructions (and small blame to them!), or else necessarily ignore them. The side that fears to lose before the jury freely asks for such instructions seeking to lay ground for an appeal.

This jealousy of judicial power, and the fettering of it by a multitude of detailed statutory provisions, requiring judicial determination of their meaning in many cases, are probably more responsible for the law's uncertainty and delays than any other one cause. For this cause at least, the responsibility rests on the people acting through its legislature rather than on the bench. What is said in this particular of Missouri applies, in greater or less degree, to most of the other States.

Of course our system of administering justice must be changed for the better. It certainly can be done, though probably not at one blow. One hundred years ago the administration of law in England was much more technical, more expensive, and more tedious in reaching the final result than ours of that time or of this. Protest against legal abuses was voiced at least as strenuously as in our time. Bentham was protagonist of those who mercilessly attacked the existing system from the professional side. Dickens' "Bleak House," turning on the Jarndyce case, is probably the best remembered of the appeals on the subject to the general public. Step by step, during the greater part of the nineteenth century England reformed its legal procedure, till now its administration of justice, in its absence of technicalities, in its promptness of action, and in its certainty of result is a model for all states under the Anglo-Saxon system of law. The Judges, the while, have moved to an entirely new magnificent building of their own, but the law of England is not a new structure. Column after column of the old building was removed, but not without provision for a substitute calculated to stand even the remote incidental strains to which the destroyed parts had been subject. In this prolonged work of reform judges and lawyers took a prominent part in all its stages. The English course may be instructive, but we cannot copy it as a whole. Each sovereignty must solve its problems in its own way. Still I think it probable that the successful reform procedure ultimately worked out by us will take from the English plan the idea of extending the scope of judicial discretion and of widening the power of regulating matters of practice by flexible

rules of Court. That would be a pleasing case of laying aside the prejudice against lawyers of which complaint is here made.

In matters strictly within the domain of law, specifically in the matter of procedural reform, the lawyer is specially interested, quite generally to the extent of being radical. Daily experience gives him a particularly vivid realization of the evils to be remedied. On this subject the best thought of the profession has matured plans for reform, the opposition to which rests chiefly on that form of mistrust of the profession herein discussed.

But the minds of men are agitated with questions of wider scope than procedural reform. Theories of diversified kinds are eagerly discussed, many of which would essentially change the social and economic basis of society as now constituted. In these discussions lawyers, dividing like their fellow citizens, are warm partisans on one side or the other; but at this stage they have no claim to special hearing. When, however, such theory has secured popular approval, and a concrete measure is offered to carry it into effect, we are in a position where the specialist has a right to be heard. Even opponents of the idea may offer suggestions that when properly considered will make the measure more effective. "His Majesty's Opposition" in Parliament is always considered a valuable element for good government.

Recognition of the propriety, indeed necessity, of consulting legal experts in the delicate operation of changing the law, has led to various practical propositions, such as commissions for shaping the proposals introduced into the Legislature so as to effect the object sought in a proper way. This article, not addressed primarily to lawyers, does not enter on these topics, but limits itself to asking the public to lay aside whatever prejudices it may have against the legal profession, and to avail itself of their aid, wherever the public requires legislation to carry out its purpose, as freely as it would in any other matter requiring expert knowledge.

To sum up:

Public mistrust of the legal profession rests chiefly on the widespread belief that law in itself is very simple; and that its com

plex unsatisfactory condition arises solely from the incapacity or dishonest selfishness of its ministers, the lawyers. The belief is erroneous, for

Justice, in itself, apart from the existing legal systems, is not a simple matter; but in the complexity of human relations, presents most intricate problems; but

Any existing system of law is in fact a highly complicated organism of ancient origin, gradually modified through the ages by all changes affecting the people where it flourishes.

The intricacies of the law, therefore, result from complications inherent in the subject, and from the fact of its historic growth. They are not brought about by the lawyers.

Active interference with the normal growth of law (amendment) is as proper as grafting a fruit tree.

The possibilities of this active interference have their limitations; and the process can only be successfully carried out by observing immutable laws.

The people in changing the law should avail themselves of the aid of the lawyer as freely as they resort to other professions in matters involving scientific knowledge.

FEDERAL COURTS AND STATE DECISIONS

JOHN SHEPLEY LIONBERGER

Upon what matters of law are the decisions of a supreme tribunal of a state considered controlling authority upon the federal courts sitting in that state?1

The problem involved in this question derives its origin from a clause in the Constitution of the United States, which defines the extent of the federal judicial power. "The judicial power of the United States shall extend to controversies between citizens of the different States. The questions which arise out of the federal jurisdiction upon this ground alone are the ones here involved. With cases arising under the Constitution, laws and treaties of the United States, with matters of admiralty, etc., this problem is not concerned.

In the first place it is essential to know why federal courts were given jurisdiction on this ground at all. At the time our Constitution was adopted, state loyalty and state jealousies were very strong. It was apparent to the framers that, if a controversy arose between citizens of different states, the tribunals of neither state would be apt to give the non-resident a fair and impartial trial. By allowing the injured party to bring his case in a federal court, this impartial forum, free from any local prejudice, was afforded. As to the law to be applied in such cases, a statute was passed, which provided that in controversies "at common law" between citizens of different states, the federal courts were to apply the law of the several states. (Sec. 721, R. S. U. S.) The purpose, then, of the framers of the Constitution was to establish a court which was to apply the laws of the state, but in the actual conducting of the trial, was to be free from any local prejudice. From the time of the adoption of the Constitution until the end of Marshall's term as

1 This was the subject of the theses required from all members of the graduating class of 1914 in the Law School. The accompanying article is the thesis to which was awarded the annual prize.