the confidence of the public. Some great English judges have tarnished their reputation in its use. A receiver appointed by another authority would be quite sufficiently under control of the court if the court could remove him for cause and punish him for contempt of its orders.

Again, the judges have not shown as strong a disposition to cut down the expenses of litigation as they should in the federal courts; but this is completely in the control of Congress, which would help the people much more by enacting a proper fee bill than by such attempts as we have seen, to impair the power of courts to enforce their lawful decrees. The attitude of the federal courts as to the cost of litigation was originally brought about by the increase in litigation and the hope that heavy costs would operate as a limitation, but this works great injustice and is an improper means to the end.

The great defects in the administration of justice in our country are in the failure to enforce the criminal laws through delay and ineffectiveness of prosecution in the criminal courts, and in the cost and lack of dispatch in civil suits. In the enforcement of the criminal laws of the United States in the federal courts there is little to criticise. They might well serve as models to the state courts. On the civil side, the same cannot be said. The costs may be and ought to be greatly reduced. The procedure in equity causes has been greatly simplified by the new equity rules just issued by the Supreme Court. A bill to authorize that court to effect the same result in cases at law is likely soon to pass. Then we may hope that the federal courts will furnish a complete object lesson to state legislatures in cheap, speedy, and impartial judgment.

I have thus taxed your patience with the reasons that convince me that appointment and a life tenure are essential to a satisfactory judicial system. They may seem trite and obvious, but I have thought in the present disposition to question every principle of popular government that has prevailed for more than a century, that it might be well, at the risk of being commonplace, to review them.

In the present attitude of many of the electorate toward the courts it is perhaps hopeless to expect the states, in which judges are elected for short terms, to return to the appointment of judges for life. But it is not in vain to urge its advantages. The federal judges are still appointed for life, and it will be a sad day for our country if a change be made either in their mode of selection or the character of their tenure. These are what enable the federal courts to secure the liberty of the individual and to preserve just popular judgment.







As a people emerge from obscurity and take their place in history we note the birth and growth of law in the family, the blood clan, the tribe, the state, the composite nation. They start with crude notions about life and physical liberty, then property, that is to say, the right to hold and enjoy the fruits of labor. With tacit observance, born largely of necessity, the notions crystallize into rules of conduct resting in tradition and custom. The simple rules which mark the departure from nomadic savagery contain the essence of the fundamentals of civilization. With growing desire for comfort and happiness we see the development of the social compact, personal forbearance and consideration, diversity of employment, the production and accumulation of wealth, the interchange of labor and the spread of learning. The rules have multiplied, lost their simplicity and become complex, and at times are engraved or written for information, certainty and equal justice. Self-help or private force for redress of wrong has given way, and the power of administration and enforcement is committed to less interested hands to secure peace and good order. The head of the family or the elders of the tribe no longer administer justice; nor, as in old Israel, do magistrates sit in the gate of the city, hear controversies summarily and declare judgment. With advancement come courts, systems of procedure and the profession of the law.

Procedure is the machinery by which substantive law is applied to the affairs of men to produce justice, which in its larger sense is the concrete aim of all government. Procedure is as essential

as substantive law itself. Without it even written constitutions would be "glittering and sounding generalities of natural right" and laws might as well be writ in small letters at the top of Roman columns. The value of laws theoretically good lies in their plain and efficient administration. Indeed, many know them only in the visible examples of their enforcement and approve or condemn accordingly. If the procedure is bad, popular condemnation frequently falls upon the law itself, and contempt for law is an evil thing in the State. The myriad relations and affairs of a civilized people necessarily require a complex body of substantive law for their regulation and the natural drift is towards methods of administration that are equally as intricate and involved. The tendency has always been and always will be so.

It is the general belief that our procedural machinery has become a great aggregation of elements without mechanical rhyme or reason; that there are a whirring of many wheels and movements of many pistons with a maximum of noise and a minimum of product; that too much power is required for economical operation and the machinery labors; that many years of patient study fail to give mastery to those in charge and much precious time is spent in nice disputes over its intricacies. Some even say they brought grist and received chaff. But if ancient precedents can justify, we are quite orthodox and respectable. Elsewhere, in other times, the same condition has come and gone and come again. More than four thousand years ago the wise King Hammurabi of Babylon codified the laws so that the strong might not oppress the weak and that justice might be done his people. And it may be said in passing that some of them related to carriers, storage and irrigation. In Athens, the mother of dialecticians, a law suit was conducted with the nicety of a refined art. After the issues were made by pleadings, the dilatory pleas disposed of and evidence taken, all with much ceremony, the magistrate who might well have decided sent the cause to a popular tribunal composed of hundreds, sometimes thousands, who had sought jury service, where it was disposed of with great display of forensic eloquence. In Rome, according to Gaius, a common

class of actions was brought to such excessive refinements that suits were lost for the most trifling and technical errors. The Twelve Tables, ten centuries before Justinian, came in part from a great protest against an intricate procedure. The words of an historian have a modern and familiar sound. He said: "The constant clash of co-ordinate jurisdictions, and the constant operation of acrid political bias, corrupted to miserable uncertainty the administration of the law." The Anglo-Saxon procedure before the Norman conquest is said to have had little "appreciable relation to any rational attempt to ascertain the truth in disputed matters of fact." The following cry for reform may be found in the decrees of the French National Assembly of August 25th and 30th, 1791: "The code of civil procedure shall be from time to time amended, so that the law may be made more simple, expeditious and inexpensive." Bentham, the crusader, with the weapon of over-emphasis, writing of the laws of England about a hundred years ago, said they were a fathomless and boundless chaos, made up of fiction, tautology, technicality and inconsistency, and the administrative part of it a system of exquisitely contrived chicanery which maximizes delay and denial of justice." However this may have been, it is probably true that the procedure in England reached the height of complexity, if not absurdity, in the first half of the last century. The course of a suitor with his suit was much like a trip through Hounslow Heath, where every step was a danger and a deprivation. And like a youth who takes on a parent's mannerisms, we copied, and our students labored over the historical significance of this or that without questioning its philosophical relation to modern justice. The saying which inspired and comforted us as we toiled with Chitty and his references "Out of the old fields cometh all this new corn."



But it would be unjust to lay upon England the responsibility for our present condition. It would have come anyway, perhaps later or differently, but surely. It is according to human experience; it is episodic in history. The primary cause is in the universal tendency to over-refinement in all things. It is not confined to law and procedure, but affects every phase of human life,

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