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terness between the employer and the employee; it has resulted in great economic waste, and has turned out an army of maimed and helpless people as dependents upon the charity of friends or the public.
Senator Root has said that the rules of the common law, as applied to such cases, are "foolish, wasteful, inefficient and barbarous."
The legislature of the State of Washington declared in the preamble of the Act of 1911, by which a workmen's compensation act was established in that state, that: "The common law system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost to the employer has reached the workman and that little only at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wage workers."
To allay social discontent and reconcile the people to the administration of justice there must be such changes in the law by which the inherent rights of men, as I have defined them, may be re-established and realized in the daily life of the people, and, in addition, such changes must be made in judicial procedure as will minimize the evils of mere technicality and secure a speedy administration of justice. A demand for such reform is widespread and imperative.. The evils which flow from judicial procedure may be, in a great degree, remedied by the firmness and ability of the trial judge and by a disposition, on the part of the Bar, to aid the court in the dispatch of business. But, no matter what statutes may be enacted with respect to legal procedure, if counsel are not diligent in the preparation of the case for trial, or if one side or the other is bent upon delay, it is difficult for the judge to do much.
I have not deemed it expedient to propose any specific remedial, measures which, in my judgment, would tend to improve the
actual administration of the law and to lessen public discontent. I have been content merely to recall certain principles which cannot be surrendered, and to state certain facts which cannot be ignored. A recurrence to fundamental principles, and the application of those principles to existing facts will aid in the solution of many difficulties.
I have faith in the common sense of the American people, and, therefore, I believe that we shall eventually solve all our problems upon principles of fairness and justice, and that such improvement in judicial procedure will be made as will secure a more speedy and satisfactory administration of the law.
To establish justice, insure domestic tranquillity and secure the blessings of liberty to themselves and their posterity, the American people may insist, in an orderly way and within the limits of the Constitution, upon measures unthought of by our forefathers. But we must remember that in the domain of law:
"There are great truths that pitch their shining tents
THE STRUGGLE FOR SIMPLIFICATION OF LEGAL
THE GOAL AND ITS ATTAINMENT.
WILLIAM A. BLOUNT,
However scholastic and logical, and replete with system and symmetry, the procedure of the common law lawyers may have been, the necessities of the present day demand that the rights of each litigant shall be adjudicated with all speed, and with the least expense compatible with the attainment of approximate justice.
But, in seeking to promote "speedy justice," we must remember that justice is the substantive, and speedy the adjective, and that the fullest practicably attainable fruition of the substance must not be sacrificed to the manner of attainment. There has always been, and always will be, an irreconcilable conflict between him who insists upon "getting there right," and him who insists upon "getting there quick."
Our journey carries us over the fields of pleading and practice, both together constituting procedure, and naturally, we meet pleading first. And here the marvel is, not how little, but how much, has been done in the way of simplification and expedition. A retrospect, in company with Chitty, who, with infinite skill and learning in himself, and with infinite weariness to his readers, pointed out the devious paths by which a lawsuit dragged its slow length along to premature death, or decrepit old age, will convince the most skeptical progressive that in pleading at least we have in large part left to the age behind us the niceties of distinction and differences, the subtleties and keennesses which deterred, and frequently interred, justice. There had been such progress, even in the times of Blackstone and Chitty and Saunders, that quite often they com
ment upon the uselessness of methods then passing away, and eulogize the perfection (God save the mark!) to which pleading had been advanced. And this at a time when if a declaration concluded to the country, instead of with a verification, or a pleading failed to give express color, or if a protestando (or, as Lord Coke calls it, "an exclusion of a conclusion "), were omitted, or if an indictment ended contra formam statuti, instead of contra formam statutorum, or if an action on the case on promises was joined with an action on the case in trespass, the delinquent pleader and his unfortunate client were summarily dismissed out of court, if they could not find a wicket in the postern gate of amendment-which, by the way, was generally closed, even when there was something "to amend by." The liberalization of time, and the progress of practicality, have, however, after many struggles, and at times, timid advancements, at the present day brought pleadings in England, and in many of the jurisdictions of the United States, to what we may (perhaps in the eyes of those who follow us, with undue self-satisfaction), call the simplest form.
Omitting from consideration those matters of form which all at this time concede to be nonessential, it is in the number of pleadings in which the ancient practice differs most from the generally prevailing modern. The principle of the common law pleader was segregation; that of the modern lawyer, pleading under codes or statutes, is aggregation. The extremely logical minds of the former, having in view especially the limitations of jurors, sought to reduce each controversy at law to a single issue. A lawsuit might embrace several controversies, but each controversy must present, as far as possible, but a single point for the determination of the jury. This required that in the progress of the case there should be, by successive steps, a confession and avoidance or denial, of each allegation of the opponent. A confession eliminated a proposed issue; an avoidance proffered a new one; and a denial closed the pleadings. The process allowed a declaration, pleas, replications, rejoinders, sur-rejoinders, rebutters, sur-rebutters, and out of the seemingly endless succession, and after the law had been thrashed out upon demurrer
before the court, eventually the nut was presented to the jury to crack. The system is as old as logic and polemics themselves, for when disputations have been had in religion, in science, in philosophy, the same method, sine the nomenclature, has been, and always will be, used-the assertion, the admission, the counter assertion and the denial. These are matters of substance, and cannot be dispensed with, and the sole question of practical pleading is, how shall they be made? The lawyers of past centuries made them, as far as possible, before the trial. The lawyers now seek to make them at the trial. They had time and patience and skill; we have neither time nor patience. Both desire the same result, the presentation to the court and jury of the controversy to be decided, but their methods differ radically. The one seeks to make the presentation by a process of elimination, regardless of time, and with an eye single to simplicity of eventual form. The other seeks to make it chiefly regardful of time, and regardless of whether there be or be not several issues of fact, and perhaps issues of law, presented at one and the same time to both court and jury. The natural tendency of this modern desire is to require the plaintiff to put all of his case into one pleading, and the defendant to do likewise, and the result is that in many jurisdictions the series of pleadings permitted heretofore have now been reduced to two, a complaint and an answer. Demurrers, except to the initial pleadings of the plaintiff, have, in some jurisdictions, been eliminated, and the United States Supreme Court, in its chancery rules, has typified and sanctioned the change.
The causes of the change are obvious, and the results are equally obvious. Modern life seeks results and demands that these results shall be quickly attained, in order that its energies may be released to accomplish more results. It likes accuracy, but it is perfectly content that some accuracy may be sacrificed to obtain speed. It is, however, apparent that the gain in one is a loss in the other. If there be no method of testing before the trial, the goodness in law of the defendant's case, and of every answer to it which the plaintiff may make, the necessary consideration can scarcely ever be given by the judge at the trial,