Otorn^U Kam i'rlioal Hibratg 
 
Cornell University Library 
 KF 384.S54 
 
 Spirit of the courts, 
 
 3 1924 018 798 540 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018798540 
 
Judges Attending or Accepting Invitations to the 
 Montreal Conference 
 
 HONORABLBS — 
 
 ALFRED PHANKIjIN, C. J. Sup. Ct. of Ariz. 
 
 EDGAR S. McCULLOH, C. J. Sup. Ct. of Ark. 
 
 JOHN K. BBIACH, Sup. Ct. of Conn. 
 
 CHARLES M. CDRTIS, Sup. Ct. of Del. 
 
 JAMBS F. AILSHIE, C. J. Sup. Ct. of Idaho. 
 
 ORHIN N. CARTER, C. J. Sup. Ct. of 111. 
 
 QUINCY A. MYERS, Sup. Ct. of Ind. 
 
 S. M. WEAVER, C. J. Sup. Ct. of Iowa. 
 
 JOSEPH A. BREIAUX, C. J. Sup. Ct. of La. 
 
 A. R. SAVAGE, C. J. Sup. Ct. of Me. 
 
 A. HUNTER BOYD, C. J., and J. C. BRISCOE and N. C. BURKE, 
 Sup. Ct. of Md. 
 
 ARTHUR P. RUGG, C. J. Sup. Jud. Ct. of Mass. 
 
 JOSEPH B. MOORE, Sup. Ct. of Mich. 
 
 CALVIN L. BROWN, C. J. Sup. Ct. of Minn. 
 
 SYDNEY SMITH, C. J. Sup. Ct. of Miss. 
 
 JUSTICE HOLLOWAY, Sup. Ct. of Mont. 
 
 MANOAH B. REESE, C. J. Sup. Ct. of Neb. 
 
 H. F. NOBCROSS, C. J., and E. P. FABRINGTON, A. J. Sup. Ct. 
 of Nev. 
 
 FRANK ^. PARKER, Sup. Ct. of N. Mex. 
 
 EDGAR 14. CTi;^\iBN, C. J., and JUDGE MARSCHAUSER, Sup. 
 Ct. Oi N. Y. » 
 
 GEORGE M. BROWN, Sup. Ct. of N. C. 
 
 ANDREW A. BRUCE, N. Cakota. 
 
 JAMES G. JOHNSON, Sup. Ct. of Ohio. 
 
 MATHEW J. KANE, Sup. Ct. of Okla. 
 
 J. HAY BROWN, Sup. Ct. of Pa. 
 
 JAMBS H. MacLBARY, Porto Rico. 
 
 CLARKE H. JOHNSON, C. J. Sup. Ct. of R. I. 
 
 EUGENE B. GARY, C. J. Sup. Ct. of S. C. 
 
 CHARLES S. w:hITING, Pres. Sup. Ct. of S. Dakota. 
 
 SAMUEL C. WILLIAMS, Sup. Ct. of Tenn. 
 
 GEORGE M. POWERS, Vermont. 
 
 ROBERT R. PRENTISS, Sup. Ct. of Va. 
 
 EMMETT N. PARKER, Sup. Ct. of Wash. 
 
 IRA E. ROBINSON, Sup. Ct. of App. of W. Va. 
 
 JOHN B. WINSLOW, C. J. Sup. Ct. of Wis. 
 
 CHARLES N. POTTER, Sup. Ct. of Wyo. 
 
 JOSIAH A. VAN ORSDEL, Ct. of Alpp. of the Dlst. of Col. 
 
 CHARLES F. PARSONS, Cir. Judge, Fourth Circuit, Hawaii. 
 
 Judges of the D. S. Circuit Court of Appeals — Feedbbic DodgEj 
 Boston ; Van Vechten Vebdee, Brooklyn ; C. M. Hough, New York ; 
 Geobge Geay, Delaware ; Don. A. Paedbe, Atlanta ; Loyal E. Knap- 
 pen, Grand Rapids ; Francis E. Bakek, Goshen ; Walter H. San- 
 BOEN, St. Paul ; Jdlian W. Mack, Chicago. 
 
 Members Committee on Uniform Judicial Procedure, American Bar 
 Association — Thomas W. Shelton (Chairman), Norfolk; Jacob M. 
 Dickinson, Nashville; 'William B. Hoenblower, New York; 
 •Louis D. Brandels, Boston ; Joseph N. Teal, Portland. 
 
 • Messrs. Hornblowee and Brandeis have been succeeded by 
 Messrs. William Howard Tapt and Prank Irvine. 
 
Spirit of the Courts 
 
 BY 
 
 THOMAS W. SHELTON 
 
 Chairman, Committee on Uniform Judiciai Procedure 
 American Bar Aisociation 
 
 "Justice is the greatest interest of man on earth. It is 
 the ligature which holds civilized beings and civilized 
 nations together." — DANIEL WEBSTER. 
 
 JOHN MURPHY COMPANY 
 
 publishers 
 
 bai/timose: maryijAND 
 
 1918 
 
"I do know that the United States, in its 
 judicial procedure, is many decades behind 
 every civilized government in the world; and 
 I say that it is an immediate and an imperative 
 call upon us to rectify that, because the speedi- 
 ness of j-ustice, the inexpensiveness of justice, 
 the ready access of justice, is the greater part 
 of justice itself." 
 
 WooDRow Wilson. 
 
PREFACE. 
 
 Much time and treasure are being expended 
 in the laudable effort to prepare for the safety 
 of the nation from actual and intentional foes 
 from without. There are many other thou- 
 sands of patriotic citizens engaged in the eflfort 
 to save the nation from actual but uninten- 
 tional foes from within. The former are try- 
 ing to build up the national defense. The lat- 
 ter are trying to assure a reasonable certainty 
 of justice. It is the purpose of these pages to 
 emphasize that the failure of the latter will 
 render useless the work of the former, for 
 there will be no government to protect. If 
 one may so describe it, the former are giving 
 attention to the garments needed in protecting 
 the body of the great nation, while the latter 
 are watching over the heart that it may regu- 
 larly send out the life-blood of faith and con- 
 tentment in the form of a prompt, economical 
 and scientific administration of the law, for of 
 the three departments of government the ju- 
 dicial actually measures its usefulness and en- 
 durance. Manifestly it is necessary and ex- 
 pedient that both objects shall be concurrently 
 achieved. The obvious necessity for an ade- 
 quate public defense appealed even to the 
 thoughtless, and the propaganda thereby 
 ▼a 
 
Vlll 
 
 PREFACE 
 
 quickly arose to the dignity of a live national 
 issue. It is not so with the courts. The lay- 
 man's ignorance of the processes of jurispru- 
 dence and its instrumentalities, aggravated by 
 a lack of interest of a great many learned as 
 well as thoughtless lawyers, has prevented a 
 popular appreciation that well-nigh effaced it 
 from public notice, except by way of ill- 
 directed criticisms. There was no concerted 
 effort at advancement. There exists no prac- 
 tical, scientific supervision of the trial courts. 
 
 Under the inspiration of these sentiments 
 and hoping to assist in further awaking a 
 quickened professional and lay conscience and 
 in directing a wholesome public sentiment, a 
 number of addresses were made in different 
 States through a period of six years. With a 
 full consciousness of a paucity of merit, but 
 encouraged by an earnest desire to aid in 
 bringing the general public into a better un- 
 derstanding of its relation to the courts and 
 of the courts to the government, I have ac- 
 ceded to the requests of friends of simplified 
 and uniform judicial procedure, and these ad- 
 dresses, with a few appropriate changes and 
 rearrangement and some additions, have been 
 published in book form. To the charge of 
 discursiveness and the liberal use of popular 
 instead of scientific language, there will be a 
 confession and avoidance. Our goal is sim- 
 
PREFACE 
 
 IX 
 
 plicity. Mystery, technicality and subtlety 
 are, therefore, unsuitable elements. The aim 
 is to put men and women to thinking about 
 improving instead of criticising the courts. 
 When they begin to think they will begin to 
 seek what is not to be found within these 
 covers, nor in any other one book — the means 
 for a gradual, scientific perfection of judicial 
 and juridical conditions, based upon the fun- 
 damental principles adopted by the American 
 Bar Association, the pivotal thought of which 
 is that Congress shall set the Supreme Court 
 free. 
 
 The thoughts are ventured that a recrudes- 
 cence of the old-time faith in and love and 
 veneration for the courts and an intelligent, 
 practical progress in the detail machinery so 
 as to fit the changing hour, are necessary to 
 the perpetuation of the great North Ameri- 
 can Republic, the scheme of government of 
 which has no equal in history. The belief is 
 expressed that this nation has set its face to 
 the rising sun of a new juridical era ; that we 
 are moving on with the resistless tide of a 
 wholesome public sentiment that will know no 
 halting until the bench and bar shall have ful 
 filled their high ideals. 
 
 Acknowledgment is made of the admirable 
 assistance and co-operation rendered by Mr. 
 J. Frederick Essary, of Washington, D. C, 
 
X PREFACE 
 
 who, upon receipt of the completed manu- 
 script, directed all details. The author ac- 
 knowledges, but will not endeavor to give ex- 
 pression to his gratitude, the sympathy and 
 encouragement of Mr. Taft and Dean Roscoe 
 Pound, which are always within reach of the 
 humblest effort made in the interest of a rea- 
 sonable certainty of justice. 
 
 Thomas W. Shelton, 
 Norfolk, Va., 
 
 July, 191 8. 
 
INTRODUCTION. 
 
 By RoscoE Pound. 
 
 A generation ago the proceedings of our bar 
 associations, state and national, were filled 
 with encomia on the common law and invec- 
 tives against futile legislative attempts to in- 
 terfere with the inevitable course of legal his- 
 tory. Whether lawyers held to a philoso- 
 phical view of law as declaratory of principles 
 to be deduced from the nature of the abstract 
 human being or preferred a historical view, 
 taking law to be a formulation of human ex- 
 perience in the administration of justice in 
 which the idea of right or the idea of liberty 
 was progressively realizing, they were agreed 
 in denying that in any real sense it could be 
 made consciously and hence in disclaiming 
 any power to improve it consciously. Hence 
 when the popular demand that the legal sys- 
 tem more adequately secure interests which 
 are held vital in the society of today first be- 
 came acute, lawyers met it with confident 
 eulogy of the traditional law as equal to all 
 conceivable emergencies and with elaborate 
 philosophical theories of non possumus. Later 
 this attitude visibly changed to one of depreca- 
 ting defense. The exaggerations of the legal 
 
xii INTRODUCTION 
 
 muckraker of the first decade of the present 
 century were justly decried, but consciousness 
 of a substratum of justification for popular 
 dissatisfaction hampered the lawyer's defense. 
 More recently the lawyer has become recep- 
 tive to criticism. He has learned to distin- 
 guish the outpourings of smatterers and 
 quacks, which are but a symptom, from the 
 well founded murmurings of a public which 
 pays for justice and does not always obtain it. 
 On the whole, if we compare the proceedings 
 of bar associations today with those of the end 
 of the last century the change of attitude is 
 significant. Everywhere there have come to 
 be lawyers who are willing to stand for active 
 efforts toward improvement. 
 
 Coincident with this change in the attitude 
 of the bar a change has taken place in the 
 mode of thought of writers and teachers. A 
 generation ago the deductive method held the 
 field. The jurist began with a handful of 
 fixed conceptions, arrived at, according to his 
 theoretical starting-point, by analysis of the 
 existing law, by generalisation from the his- 
 tory of our legal system and of legal doctrines 
 and institutions, or by metaphysical specula- 
 tion, and relied upon a rigid logical develop- 
 ment of those conceptions for the solution of 
 every problem in the administration of justice. 
 The law of real property, a logical unfolding 
 
INTRODUCTION^ xiii 
 
 of ideas drawn from the feudal land law, is 
 now almost alone in preserving the spirit of 
 the law studied and taught and administered 
 by our fathers. To that generation, the law 
 stood upon its own basis. It was self-sufficient. 
 Whether the jurist drew his fundamentals 
 from the existing law of today by analysis 
 or from the course of historical development 
 of the traditional law by generalisation or 
 conceived of an inexorable operation of social 
 laws whose necessary workings could bring 
 about the legal dogmas and legal institutions 
 that exist, he was assured of the futility of con- 
 scious attempts at improvement and was clear 
 that his task was merely one of observation. 
 Today this juristic pessimism has been defin- 
 itely given up. We look at the law function- 
 ally. We ask not so much what it is abstractly 
 as what it does, what it may do and what it 
 ought to do. The skeptical attitude of the past 
 generation has definitely yielded to faith in the 
 efficacy of effort. Obstructive pessimism has 
 given way to constructive optimism. 
 
 This does not mean that the lawyer of today 
 expects to achieve a legal revolution over night 
 through some patent automatically acting 
 statute. It means rather that what to the law- 
 yer of 1890 seemed impossible, today is 
 thought of rather as difficult. Instead of hold- 
 ing that law cannot be made consciously but 
 
xiv INTRODUCTION 
 
 may only develop in a gradual process of or- 
 derly evolution, we hold that it may be made 
 and may be made effectively, but we recognize 
 the intrinsic limitations upon effective secur- 
 ing of interests through legal machinery and 
 do not hope, as did the eighteenth century, to 
 spin a complete legal system of universal 
 validity from the head of a single jurist. Faith 
 in blundering empiricism and in the inexor- 
 able operation of social forces beyond human 
 control has been replaced by faith in conscious 
 and intelligent direction of legal development 
 to the accomplishment of chosen ends. The 
 proceedings of the annual Conference of Bar 
 Association Delegates in connection with the 
 meetings of the American Bar Association are 
 eloquent of a sounder frame of mind on the 
 part of those who are best qualified to make 
 American law an effective instrument for its 
 purpose. 
 
 In any practical program for the improve- 
 ment of judicial administation of justice in the 
 United States, there must be four cardinal 
 items. First and in many ways most important 
 is the personnel of the bench, the mode of 
 choice and tenure of judges. Because of the 
 connection of the bench with enforcement of 
 the criminal law, and the judicial power with 
 respect to unconstitutional legislation, we have 
 been too much engrossed with the political 
 
INTRODUCTION xv 
 
 aspect of the judicial office. In consequence 
 more than one of our commonwealths has 
 irealized the truth of Bacon's saying: "An 
 ignorant man cannot, a coward dares not, be a 
 good judge." The everyday adjustment of re- 
 lations of individuals with each other and with 
 the state is less in the public eye than the oc- 
 casional matters of spectacular interest that 
 come before tribunals under our Anglo-Amer- 
 ican doctrine of the supremacy of law. But 
 accurate and speedy adjustment of these rela- 
 tions is at the bottom of the social order. We 
 must keep in mind the requirements of every- 
 day administration of justice, and foremost 
 among these is the strong independent judge. 
 Second we may put organization of courts, the 
 unification of the judicial system, in such wise 
 as to permit the entire judicial force of the 
 commonwealth to be employed in the most ef- 
 fective manner possible upon the whole judi- 
 cial business of the commonwealth, making 
 adequate provision for speedy and expert dis- 
 position of petty causes, for organization of 
 the clerical and administrative side of the 
 courts, and for adequate and responsible super- 
 vision of every phase of judicial business. 
 Third we may put, what is often put first, but 
 must depend for its effectivenesss largely upon 
 the two preceding items — simplification of 
 procedure and relegation of procedural 
 
xvi INTRODUCTION 
 
 machinery to its legitimate place in the ad- 
 ministration of justice. Last, but by no means 
 least in importance, is organization and train- 
 ing of the bar. 
 
 To some extent the American Bar Associa- 
 tion has busied itself for many years with each 
 of these items in a comprehensive plan of law 
 reform. Sfate bar associations too are more 
 and more taking them up. More recently the 
 American Judicature Society has been at work 
 upon them. But in the end our main reliance 
 must be upon critical study of the local aspects 
 of these several problems by lawyers who have 
 first taken the trouble to acquaint themselves 
 with the general principles involved, to learn 
 how far the problems are general and how far 
 local and to acquire accurate information as to 
 the experience of the rest of the world in deal- 
 ing with them. 
 
 For many years Mr. Shelton has been con- 
 spicuous among those who have essayed an in- 
 telligent program of general scope as distinct 
 from the conventional one of haphazard tink- 
 ering with local details. By addresses before 
 state bar associations and through the commit- 
 tee on uniform judicial procedure of the 
 American Bar Association he has striven to 
 make of the proposition that the lawyer is not 
 an ordinary bread winner but rather a public 
 functionary charged with high public duties 
 
INTRODUCTION xvii 
 
 something more than a high-sounding phrase 
 to round out a period after a bar dinner. His 
 experience as a lawyer, his association with the 
 profession throughout the country and his 
 activities in connection with concrete law re- 
 forms have qualified him to speak upon many 
 things as to which, thus far, the politician, the 
 labor agitator, the social worker and the 
 teacher of politics have had a monoply of the 
 printed page. I should be the last to under- 
 value what these lay critics have done in 
 awakening the lawyer from his dogmatic slum- 
 ber and making him conscious of the demands 
 made upon law by a new century. But the 
 very complexity of the problems raised by 
 these demands calls for all the light that may 
 be shed upon them from any quarter. Not the 
 least among these sources of enlightenment 
 must be the legal profession itself. 
 
 Harvard University, July, 191 8. 
 
A Statement. 
 
 A Rip Van Winkle, awakened during the 
 second decade of the twentieth century, would 
 be amazed by the magnificent railroads that 
 have taken the place of the road cart, by the 
 swift steamships that now tower above the lit- 
 tle sailing schooner, by the splendid glow of 
 electric lights that have made useless the hum- 
 ble tallow candle, by the scientifically equip- 
 ped hospitals and commodious and sanitary 
 school buildings, and last but not least, 
 by the imposing courthouses whose Corin- 
 thian columns and ornate interiors impress 
 even a modern-day observer. He would see 
 the forward strides of seven-league boots in 
 education, civilization, commerce, transpor- 
 tation, science and art, but he would observe 
 the progress of the snail in judicature. Be- 
 wildered at all things else and standing awe- 
 struck before the portals of the temples of 
 justice, at the bar, he would feel at home. The 
 text-book on pleading and procedure that rot- 
 ted by his side a half century ago would serve 
 him today. He need only become familiar 
 with certain "statutory amendments," the 
 crutches upon which decrepitude has hobbled 
 these fifty years or more. In the library the 
 reported cases would shock him as to volume, 
 
 zlx 
 
XX STATEMENT 
 
 often amaze him as to doctrine, and always 
 discourage him as to conflict. 
 
 While the commercial and social advance- 
 ment of this great nation, proceeding under a 
 well-organized co-ordination, has become the 
 wonder and envy of the world, its court pro- 
 cedure has lagged behind, a patched-up crea- 
 ture of another age that incongruously pa- 
 rades with this generation. When it has not 
 taken the form of the ghost of an abandoned 
 past, clothed in metaphysical subtleties, it has 
 been enveloped in a mesh of legislative ex- 
 periments and innovations, the latter state of 
 affairs being worse than the former. One of 
 the most disastrous results is, that the trial 
 lawyer is becoming not so much a profound 
 student of the law, its science and its purpose, 
 as he is developing into a nimble-witted, spe- 
 cial pleader, equipped with an alarming sup- 
 ply of procedural technicalities. This is 
 spoken not in criticism, but as a statement of 
 one of the obvious results of existing condi- 
 tions. 
 
 In a demoralizing number of cases the issue 
 is never reached or has to be retried because 
 of the failure to scrupulously observe techni- 
 calities of pleading and procedure. The 
 average brief lays emphasis, not so much upon 
 the actual wrong of the judgment, of which 
 complaint is made, as upon the fact that it 
 
STATEMENT xxi 
 
 was not obtained exactly in the manner pro- 
 vided piecemeal by a hurried and harassed 
 legislature. Justice, to that extent, has been 
 subordinated to technicality and profundity 
 has had to give place to subtlety. Such a con- 
 dition is subversive of good government, for it 
 destroys the necessary faith in courts and law- 
 yers alike. Laymen have ever taken pride in 
 their great and profound lawyers and judges, 
 but they have no place in their hearts for the 
 mountebank. It is a profound philosophy 
 that man is to a great extent a creature of 
 circumstance; therefore, a lawyer's develop- 
 ment will respond to the character of the de- 
 mands made upon him and the conditions sur- 
 rounding him. He is engaged to win, and he 
 can use only the tools provided for him and 
 in the manner described, or give up the pro- 
 fession of the law. 
 
 But "our bravest lessons are not learned 
 through success, but misadventure." The un- 
 bridled criticisms of the courts and of the 
 lawyers that have become so fashionable, the 
 suicidal theory of the recall, and the threat of 
 further impractical statutory procedure have 
 served a useful purpose. A crisis has been 
 precipitated that has prepared the way for a 
 rich harvest of unselfish public spirit, the re- 
 sult of seed that have been diligently sown 
 during the last half decade. It is no longer 
 
xxii STATEMENT 
 
 a debatable question that there is something 
 wrong with the judicial department of the 
 government. A correct diagnosis and a 
 speedy application of the proper remedy is 
 the work at present before us. Judges and 
 lawyers began to realize that the tools and 
 machinery of their profession, as furnished by 
 the legislative department, were bringing dis-- 
 credit upon their fair name and their work, 
 and that they would eventually lower the 
 standing of the judge and the lawyer. Forth- 
 with there came the demand that, if the bench 
 and bar were to be held responsible for the 
 results of the procedure of the courts, they, 
 and not the legislatures, should be allowed to 
 prepare that procedure. This demand has 
 now reached the dignity of a national issue; 
 but, before becoming so, the bench and bar 
 suffered from an undeserved criticism that be- 
 came a menace to the most important of the 
 three departments of government. 
 
 These troubling thoughts have sunk deep 
 into the souls of men whose first love is for 
 their country. Their eyes are lifted above 
 their vocation to the high level of their duty 
 as citizens and leaders of society. "America," 
 said Mr. Burke, "ow^j its love of liberty to its 
 lawyers and the people who understand the 
 principles of government." It may be added 
 that America will comfort and support its 
 
STATEMENT xxiii 
 
 lawyers in the demand for such a division of 
 power as is needed for the proper operation 
 of the machinery of the courts. The sense of 
 the personal duty owed by the lawyers to the 
 public and to the courts, that is inseparable 
 from the high calling of their profession, has 
 been electrified into a living, militant agency 
 of reform. It has developed into an intelli- 
 gent, organized effort in which judges, law- 
 yers and laymen are co-operating. With a 
 dynamic force, a self-abnegation and a display 
 of patriotism unexcelled in any time or age, 
 the judges and lawyers of this country have 
 set about putting the courts upon the high 
 level oi the day in which they live. They are 
 demanding the right to quicken their laggard 
 feet that they may keep stride with the splen- 
 did commerce that long since outstripped it. 
 
 There are few public movements of the 
 present day that mean so much to the general 
 welfare, to comity, and to closer commercial 
 and social relations amongst the States. The 
 agitation of the question is opening the eyes 
 of commerce and of society to their real rela- 
 tion and duty to the bench and the bar. To 
 stimulate that movement is one object of this 
 book. The first step in the program is the 
 emancipation of the courts by the legislative 
 departments of the State and Federal govern- 
 ments. After this is done, what remains will 
 
xxiv STATEMENT 
 
 offer no real obstacles other than those to be 
 encountered in forwarding the present cam- 
 paign of education. 
 
 The principle underlying this theme is the 
 organic one of an equable division of power 
 between the legislative and judicial depart- 
 ments of government. The program of the 
 American Bar Association proposes to divide 
 all judicial procedure into two classes, viz. : 
 (a) jurisdictional and fundamental matters 
 and general procedure and (b) the rules of 
 practice directing the manner of bringing 
 parties into court and the course of the court 
 thereafter. The first class goes to the very 
 foundation of the matter and may aptly be 
 denominated the legal machine throughwhich 
 justice is to be administered, as distinguished 
 from the actual operation thereof, and lies 
 exclusively with the legislative department of 
 government. It prescribes what the court 
 may do, who shall be the parties participat- 
 ing, and fixes the rules of evidence and all im- 
 portant matters of procedure. The second 
 concerns only the practice, the manner in 
 which these things shall be done, that is, the 
 details of their practical operation. Concisely 
 stated, the first class provides what the courts 
 may do, while the second regulates how they 
 shall do it. Out of this has been deduced a 
 plan, which is embodied in a simple statute 
 
STATEMENT xxv 
 
 that has met with well-nigh universal ap- 
 proval. It is useful to emphasize that this 
 statute will necessitate no alteration of the 
 present procedure upon any jurisdictional or 
 fundamental matter. Therefore, the prepara- 
 tion of a "Practice Act" or "Code," or the 
 revision of a State code, is a subject entirely 
 apart. After the rules are prepared there 
 may be reason for the consideration of that 
 subject, or there may not. 
 
 It will presently be authoritatively shown 
 that justification may be found for this pro- 
 posed division in the necessity for the preser- 
 vation of a due balance between the legisla- 
 tive and judicial departments of government. 
 But it appeals to logic and to the eternal fitness 
 of things, inasmuch as it provides for a com- 
 mon-sense division of the actual labor to be 
 performed and the responsibilities to be borne. 
 While the legislative department should re- 
 tain arbitrary control over the courts as an 
 agency to an end, obviously, the best results 
 to be derived from the operation of the agency 
 are to be obtained by taking advantage of the 
 genius, ability, preparation, experience and 
 profound knowledge of the judges and law- 
 yers, who, as officers of the court, personally 
 conduct it. 
 
 But there is a psychological aspect not to be 
 underestimated. The sense of responsibility 
 
xxvi STATEMENT 
 
 will awaken a new and unselfish interest on 
 the part of the members of the bar, and will 
 inspire their best efforts. Personal pride will 
 play an important part in inducing them to 
 support and maintain the new regime that 
 would owe its existence and gradual perfec- 
 tion in large measure to the aid contributed 
 by them. This is really the human crux of 
 the whole scheme. Moreover, it will give to 
 the people the benefits of the advice of their 
 ablest lawyers and will guide their criticisms 
 in a harmless manner to a personally respon- 
 sible and responsive agency. Lawyers will 
 be transformed from the hostile critics that 
 they now are into the militant, helpful sup- 
 porters that they should be. It will go out of 
 fashion for them to pick flaws, even if it could 
 then be considered ethical to do so. That 
 thought canot be too strongly stressed. 
 
 Now let us view the obverse of this picture. 
 With the legislative departments prescribing 
 the most trifling details and disregarding im- 
 provements suggested by bar associations, 
 there is nothing for the judge and the lawyer 
 to do but to submit and follow as best they 
 may. This they have done nigh unto half a 
 century, but not without loss of prestige; not 
 without a lessening of popular confidence in 
 the courts and lawyers, and not without the 
 temporary lodgment of certain dangerous 
 
STATEMENT xxvii 
 
 doctrines in the hearts of the people. That 
 resentment as well as a critical mental atti- 
 tude should be manifested against this involun- 
 tary bondage is characteristically American. 
 
 In its final analysis, the real trouble with 
 judicial procedure is due to the fact that co- 
 ordination has been absolutely destroyed by 
 exclusive legislative control. When, there- 
 fore, the lawyer places insurmountable bar- 
 riers in the path of the court in its journey to 
 the goal established and set up by justice and 
 the merits of the cause, instead of being actu- 
 ated by sinister and corrupt motives, he is 
 merely seeking the enforcement of the stat- 
 utes and asking that government be conducted 
 in the manner that the legislative branch has 
 seen fit to enact and to provide. He is doing 
 merely his duty under his oath, and so is the 
 judge who permits him so to proceed. What 
 is the result? The lawyer acquires a reputa- 
 tion for that kind of thing, and, since he has 
 earned it by enforcing the law, he is entitled 
 to it. This course is neither unethical nor 
 reprehensible. But what of the judge who, 
 likewise, has but done his duty? He stands 
 alone to receive the condemnation of the liti- 
 gant, and eventually that of a dissatisfied and 
 distrustful people, who do not understand and 
 who can not understand. They would not 
 know where to seek relief, even if it were pos- 
 
xxviii STATEMENT 
 
 sible for them to analyze the situation. Judg- 
 ing only from results, they are justified from 
 their point of view in feeling that the thing 
 nearest to them which is apparently doing the 
 wrong should be throttled and destroyed. 
 
 This is one of the results of "code plead- 
 ing" which is exclusively legislative. It is one 
 of the results of common-law pleading long 
 since abandoned in propria persona, but much 
 alive as a legislative tatterdemalion, in which 
 form resides its chastened spirit. The pro- 
 posed new plan will co-ordinate the entire 
 bar and the judicial and legislative depart- 
 ments arid enable each to perform its proper 
 function. 
 
 Obversely, exclusive judicial power would 
 place in the hands of the judicial department 
 control over fundamental and jurisdictional 
 matters and general procedure. Such a grant 
 of power would be in conflict with the spirit 
 of our republican institutions, if, indeed, it 
 would not violate the basic constitutional 
 principles in which they rest. It is necessary 
 to advert to it, however, since it is the an- 
 tithesis of "code pleading" and a happy mean 
 between the two extremes is what has been 
 found to be most desirable. A sensible limi- 
 tation must, as we have argued, be placed 
 upon the power of the courts, a matter already 
 effectuated to an extent, by suitable statutory 
 
STATEMENT xxix 
 
 measures, as well as upon the executive and 
 the legislative departments. But this limita- 
 tion must not go to such an extreme as to de- 
 feat co-ordination, else the latter state of af- 
 fairs will be as bad as the former. The pro- 
 posed new plan, as has been stated, lies mid- 
 way between the "all legislative" and the "all 
 court" systems. It proposes to vest in the 
 supreme appellate court of each State and of 
 the Federal government the exclusive power 
 to prepare for the respective nisi prius courts 
 all necessary rules and regulations and the 
 power, likewise, to amend and alter them at 
 the demand of convenience or of justice. 
 From this duty the legislative department 
 would necessarily withdraw. All future 
 pleading and practice would be in accordance 
 with simple, correlated and scientific rules of 
 court instead of being regulated by rigid, in- 
 flexible statutes, amendable only by legislative 
 act. Of the form to be taken by these rules it 
 is not now in order to speak. In an orderly 
 manner opportunity will be afforded the law- 
 yers to share both the labor and the responsi- 
 bility. The task at present is to inform the 
 •people and their legislative representatives of 
 the merit and policy of and the absolute ne- 
 cessity for a proper division of dutyand power 
 between the legislative and judicial departments 
 of government. But it is timely to call atten- 
 
XXX STATEMENT 
 
 tion to the necessity for some authorized, com- 
 petent agency, clothed with supreme and final 
 authority, to whose care may be intrusted the 
 adjustment and determination of the matters 
 in question. That agency is the Supreme 
 Court of the United States, which Congress 
 must set free to perform its logical duty. 
 With this statement we may now venture upon 
 a portrayal of the real spirit of the courts 
 with the hope and purpose of stimulating a 
 greater general interest in American judica- 
 ture and its elevation to the high standard of 
 the American bar. 
 
CONTENTS 
 
 Frontispiece 
 
 Preface vil 
 
 Introduction, by Roscoe Pound xi 
 
 A Statement xix 
 
 CHAPTER I. 
 
 JUDICIAL PROCEDURE AND JUDICIAL CALIBRE. 
 
 Judicial procedure reflects botli glory and Imperfections of 
 government — Tljree profound thoughts — ^Wiat is Judicial 
 procedure? — Effect of bad procedure — American mental 
 attitude — Faith in courts justified — Supreme Court and the 
 Constitution— It organized Interstate relations — ^Would 
 have been a statutory bnposslbillty — ^Marbury vs. Madison — 
 A present interstate industrial conflict — Faith and pa- 
 tience only necessary — Self-serving pessimists harmless — 
 Colonial character analyzed — "Maid Marion" In legal history 
 — English lawyers as students — Civil lav? — Independence of ■ 
 the judiciary — Popular study of government needed — Two 
 burning questions — Divorce politics from court-s^rLawyers 
 and judges must have power to Improve — ^Responsibility now 
 shifts with political tide — Congress must set Supreme 
 Court free — Reason — Judicial procedure analyzed — The 
 Judge — Compensation — Pensions — Danger of popular elec-, 
 tlons — Impeachment — "Judicial Court of Inquiry" — ^"Cor- 
 ruption, ignorance and subserviency" — Jefferson's and 
 Cleveland's admonition — Marshall's views — Opportunity for 
 a statement — The unfit judge — The fit judge 1 
 
 CHAPTER II. 
 
 RELATION OF JUDICIAL PROCEDURE TO 
 UNIFORMITY OF LAW. 
 
 American aspect — EJvlls of uniformity — Courts measure po- 
 tency of law — Time ripe for uniformity — Interdependence 
 of States — Why InterstateConference of Judges was pro- 
 posed — Lack of popular understandhig of courts — Import- 
 ance illustrated by reservoir — Reorganization as a whole — 
 English people and procedure — Present dangers — States 
 Rights bnperlled — How may be protected — Supreme Court 
 must have sole authority — ^Human reason — ^Procedure must 
 be fixed and established — The reason — Real source of power 
 of courts — Admhilstratlon of justice needs to be brought 
 up to the level of citizenship — Public conscience now 
 awake — ^Antipathy to Federal courts dangerous — Must be 
 prevented 27 
 
xxxii CONTENTS 
 
 CHAPTER III. 
 
 EXPEDIENCY MUST NOT SACRIFICE PRINCIPLE. 
 
 Improvement important question — President Taft's message 
 — Superficial or extemporized knowledge a deterrent — Meri- 
 torious origin of remedy — Reason for tecimical English pro- 
 cedure — Embodies virtues and avoids vices of other forms 
 — Tyler's views liberally given — ^American procedural his- 
 tory — Civil and common law procedure contrasted — Po- 
 tency of substantive law destroyed by adjective — Tyler's 
 failure to distinguish — ^No civil adjective law — Praetor Ur- 
 banus — The judex— Menace to justice — ^First organized ef- 
 fort at separate adjective law — The common law — Prece- 
 dent — "Personal ruling" condenmed — Coke's approval — Im- 
 perialism now impossible — America adopted common law — 
 Reason — Four systems of procedure: (1) History of com- 
 mon law procedure; comments of Minor, Reeves, Glavil, 
 Bracton, Hale and Stephen; avarice of clerks destroyed 
 its usefulness; campaign instituted in 1820; half century 
 of development; court rules adopted; return to first prin- 
 ciples; Henry John Stephen; his several books. (2) Advo- 
 cate of rules of court; 1826 edition used to America; Acts 
 of Parliament; synopsis of English procedure. (3) Com- 
 mon law procedure modified by statute. (4) "Code plead- 
 ing"; both condemned — Govermental restratat — Three 
 methods — Reason, duress and superstition— Translate 
 spirit of society — Also national character — "The restratat 
 of reason" — ^Historically discussed — Contrasted with re- 
 stratat by duress and superstition — The "Themistes" of 
 the Greeks — Homeric times contrasted — "Heroic Ktagship" 
 — Its decay — ^Rise of "aristocracies" followed by "oli- 
 garchies" and "council of chiefs" — Then the real spirit of 
 the courts — Earliest notion of jural conception — ^Authori- 
 ties cited — Russia's difficulties compared — The EngUsh 
 viewpotat — German government latest example of heroic 
 ktagship 41 
 
 CHAPTER IV. 
 
 RELATION OP JUDICIAL PROCEDURE TO 
 GOVERNMENT. 
 
 Why cause of dissatisfaction — Failure to disttaguish between 
 adjective and substantive law — ^Admtaistration of justice 
 first taterest of man — Vice of technical procedure — Illus- 
 trated — Certata duties peculiar to the Bar — Source of ju- 
 dicial power — "Respect, faith and obedience" — Their de- 
 struction means fall of government — Judicial most im- 
 portant of three departments — Federal Supreme Court 
 placed beyond tafluence of legislative and executive — Burden 
 bearer — Fmal refuge — Law found to decisions — Strength 
 of Republic — ^What Supreme Court has done — ^An appre- 
 ciation — Statutory morals for judges — ^Are a serious re- 
 
CONTENTS xxxiii 
 
 flection— Federal "Relationship" statute made impotent- 
 Future historians — ^Antithesis of high standards — Life 
 
 tenure approved — "Recall" condemned Impeachment — 
 
 "Judicial Court of Inquiry" — ^Will inspire confidence — 
 Causes of dissatisfaction — English history compared 69 
 
 CHAPTER V. 
 
 THE RELATION OF COMMERCE TO THE COURTS. 
 
 Appeal to commercial lawyers — Victims of technical proced- 
 ure — Commercial courts — Illustrations — Judges and law- 
 yers — Self-preservation — Legislature should not 
 operate courts — No executive ever attempted it — 
 Political parties in agreement — High personal conduct 
 has preserved judicial department — Has sustained public 
 confidence — ^Views of Mr. Root and Judge Parker — Legis- 
 lative trespass — Days of James II compared — ^His meas- 
 ure of a judge — Demanded subserviency — Roosevelt's ideal 
 the same — Effect — ^American adTancement doe to inherited 
 character, not to her courts — Symptoms of decadence — 
 American courts stand where England did in 1820 — Inev- 
 itable result — The Goddess of Justice— An allegorical fig- 
 ure — Lawyers either despised or respected — No medioc- 
 rity — ^When judicial merit brings condemnation — Lawyers 
 forced to interrupt justice — Ought to perfect judicature — 
 Apologies confess weakness — Milton's sarcasm — ^Nation 
 looking to them — ^When their usefulness ends — Some philos- 
 ophy — Three American agencies — "Fixed interstate judi- 
 cial relations" — Congress retardmg advancement 83 
 
 CHAPTER VI. 
 
 FIXED INTERSTATE JUDICIAL RELATIONS— 
 "THE CONFERENCE OF JUDGES." 
 
 Interstate commerce and the courts — ^Uniform laws, decis- 
 ions and procedure — Montreal "Conference of Judges" — 
 First in American history — Origin and necessity — ^An ap- 
 preciation — Provision must be made for travel expense — 
 Address at organization — "Judicial Section" — Trinity of 
 agencies achieving uniformity — Courts suffering from leg- 
 islative egotism— Hostile to spirit of Constitution — 
 Usurpation of power — Condemned by Anglo-Saxons — Fed- 
 eral procedure a menace — Hostility to courts falsely 
 founded— ^American Bar Association acted to 1912 — Its 
 "Declaration of Independence" — Legislation introduced — 
 Webb's praise— Universally endorsed— Credit Men endorse 
 —Commercial spirit portrayed— Congress concedes its 
 duty to Supreme Court — Evolution of change of senthnent 
 — Influence of individuals on judicature — Marshall's effect — 
 Taf t, "The Maker of Judges"— His sublime political sacri- 
 fice—America will remember— The South is grateful— Na- 
 tive love of law and order not self -perpetuating— A duty. . 97 
 
xxxiv CCXNTENTS 
 
 CHAPTER VII. 
 
 SHALL JUSTICE BE THE ACCIDENT OF THE JUDGE 
 OR THE CERTAINTY OF THE SYSTEM? 
 
 Statement of principles — Are history of resistance of man- 
 kind to tyranny — Preparation of the case — Office of law- 
 yer and judge — Dangers — Technical form unnecessary — 
 Necessary allegations — ^Must be complete within itself — 
 Due process of law — ^Amendments should be Kberal — Er- 
 rors detected — ^W. T. Hughes' views — ^Result of suspended 
 habeas corpus— Free citizenship endangered — Observations 
 — Illustrations — JeSerson's views — Observations applied to 
 judges — Dickens' Magistrates' Courts — ^Modern criticism — 
 Makes possible res adjudicata — Some observations — That 
 which is not juridically presented cannot be judicially de- 
 cided — State a party— How? — The mandatory record — 
 Technical discussion 114 
 
 CHAPTER VIII. 
 
 SPIRIT OF THE BAR, PAST AND PRESENT. 
 
 Judicial department keystone of arch — Historical mental at- 
 titude — Commerce determined upon reform — Lawyers 
 awake to emergency — A fixed program — Generally accepted 
 — Pride of opinion sunken — ^Result — Mystery destroyed — 
 Lawyers and judges sole human elements-— Sole qualified 
 agencies — Assures faith in courts — Things striven for — 
 Cleveland's prophecy — Twenty-five years of history — In- 
 dependence of judiciary — Danger of politics — Blessings of 
 American government — Duty to maintain — Wonder at tar- 
 diness — Standing of lawyers is that of nation — Their work 
 is constructive statesmanship— Conservatism sometimes 
 troublesome — This attitude is temperamental — Some phil- 
 osophy — Procedure lagghig behind commerce — ^A reason — 
 Directness and simplicity its watchwords — Some history — 
 Views of James I. Coke, Duane, Kent, ICnapp and others — 
 Commercialization of mystery — Distinguished instances — 
 When codes vexed the earth — ^Result of inaction of law- 
 yers — Bar Association saved the situation — Agencies of 
 advancement — Periods of "investigation," "education," 
 "legislation" — First two stages successfully past — Look- 
 tog to Congress — Colonial history of uniformity — First ap- 
 peal — Thomas Pownall — First English committee on law 
 reform— "State's rights" tavolved — Preserved only by con- 
 duct of States — ^How? — ^Uniformity to "statute," "proced- 
 ure" and "decision" — "Fixed toterstate judicial relations". . 125 
 
 CHAPTER IX. 
 
 CONTEST BETWEEN THE MORAL AND JURAL LAW. 
 
 Philosophy of the law — Influence upon man— Ancient law- 
 givers — Destructive causes — Stagnation is death — Jeffer- 
 
CONTENTS XXXV 
 
 son expected progress— Symptoms of social weakness- 
 Three thoughts— Scientific evolution of law— Too many 
 statutes — Country on threshold of an era-making juridical 
 reform — Legislative aggression — Philosophy of a normal 
 man— Moral law subjugated by jural law— Standard for so- 
 ciety — Real spirit of law — Ravages upon citizenship — Pa- 
 ternalism condemned — Conception of American independ- 
 ence — Fewer laws and better men needed— What is a 
 "Christian Nation"?— An analogy— Spirit of jural law- 
 Paternalism prevented — The lawyer's part — English legal 
 evolution — Post-Cromwellian period — Jural cannot be sub- 
 stituted for moral law — "When men are corrupt, laws are 
 broken" 149 
 
 CHAPTER X. 
 
 PREVENTION OF LEGISLATION AND LITIGATION. 
 
 Popular understanding of science of government necessary — 
 Mystery banished — Protection from imposition — It is sick 
 body politic that needs law — Madison's views — ^Roscoe 
 Pound's theory — Government cannot rise higher than peo- 
 ple — ^What failure meant — ^What it means now — ^Duty to 
 operate properly what the Founders prepared — Distinc- 
 tion between bad operation and bad government — Legisla- 
 tive trespass — Previous dependence upon courts — Latter 
 policy made and saved the government — Commission gov- 
 ernment a substitute — Human mterposition in government 
 — Illustrated — Montesquieu's warning — An age of statu- 
 tory morals — Power to regulate is power over result — 
 Hamilt(Hi, Madison, Jefferson and Bill of Rights quoted — 
 Congress must set Supreme Court free — A wicked legis- 
 lative invention — Commission and legislative govern- 
 ment contrasted — Former not novel — Interstate 
 commerce supervision — Its merits — Interstate cor- 
 porate supervision — Federal Trade Commission — But there 
 is no supervision of courts — Illustrated — ^High judicial com- 
 mission — Aid to Congress — Discourages legislation — Dis- 
 courages litigation — ^The Supreme Court — Its economic side 
 — It saved and made the government — Faith in it holds to- 
 gether the States — ^Federal inferior courts — Their dock- 
 ets — ^Assignment of judges — Retirement 166 
 
 CHAPTER XL 
 
 POLITICS THE ENEMY OF JUSTICE. 
 
 Politics an American vocation — Fears of Founders realized — 
 Washtogton's dread— Root's application— Three thoughts 
 appUed — Merit of American governments — ^Man and his en- 
 vironment — Education — Illustrated in political campaigns — 
 Bill of Rights declares legislators undergo a mental change 
 — "Rotation in oflSce" — But Jefferson recommended life 
 tenure for judges— Life of judicial department— Organized 
 lavpyers its sole defenders — Procedural history — Return to 
 
xxxvf CONTENTS 
 
 fundamental principles — ^Adams and Washington condenm 
 politics — ^JeBerson is so minded even in 1816 — ^His earlier 
 letter to Wyth — ^His "legal check" — He lived to vindicate 
 his own warning — Greatness does not alter humanity — 
 Madison's "leaders of thought" — Federal practice — Con- 
 formity was attempt at uniformity — Both destroyed — 
 Some personal objections to reform — One Senator accnsed 
 the Bar of sinister motives — But large legislative majority 
 in favor — Four reasons for initiattag campaign in Federal 
 courts — Dangers of foreign views to American judicature 
 — Let there be no American Esaus 182 
 
 CHAPTER XII. 
 
 IS THE COMMON LAW RELATION OF JUDGE AND JURY 
 SUBJECT TO LEGISLATIVE CHANGE? 
 
 Use of juries illustrated — Danger of unproper use — True 
 course is the pioneer viewpoint — "According to the course 
 of the common law of 1776" — Elements assuring certamty 
 of justice — Sir Matthew Hale — ^An American constitutional 
 right — Manner of use only question — An English privilege — 
 "Superintendence" by judge — Its evolution in Federal 
 courts — State usages — "Supermtending after verdict" — 
 Power of judge to "set aside" ancient — When jury and not 
 judge "directs" trial — An American tendency — This danger 
 foreseen — English tendency other way — ^Hale and Black- 
 stone — Founders discreet and careful — Inheres m Ameri- 
 can system — Light of Seventh Amendment — Bad judges 
 cause of its unpopularity — Possible origin of jury — Adop- 
 tion in England questionable — Subsequent wholesome taflu- 
 ences — ^Real office — Mistaken theory — Definition of a trial 
 — ^Waiver — Blackstone supreme authority — Justice White's 
 views — What Blackstone said — "Virtue of jury" — "Peril of 
 too much latitude" — "Judge should sum up" — Exact thing 
 mtended to be preserved — "Capital Traction Co. v. Hof " — 
 No claim upon antiquity — ^Demurrer to evidence — "Sctatilla 
 doctrine" — "Directing" not deprivation of constitutional 
 right — ^May be demanded — Necessary to efficiency — Cooley's 
 conception — Keith's ideal — "Power," "potency" and "effi- 
 ciency" analyzed — American renaissance of Montesquieu 
 theories — Origin and development of "directhig verdict" — 
 Marshall's participation — Justice Jolmson's minority opmion 
 became cornerstone — "Elmore v. Grimes" — E3ntire course 
 of decisions reviewed — The twenty years between Ehnore 
 V. Grhnes and Parks v. Ross — Demurrer to evidence com- 
 pared with directmg verdict — Dangerous cost of a demur- 
 rer—Directing verdict justified— Justice Johnson vindicated 
 —Views of Taney, Clifford and Miller— Relation of judge and 
 jury exactly defined: (1) Prevention of unjust verdicts; (2) 
 How it is done; (3) How court examines the evidence; 
 (4) When submission is an idle ceremony; (5) The true 
 prhiciple — "Plamtifl's recourse ample and appropriate"— A 
 great principle preserved 200 
 
CONTENTS xxxvii 
 
 CHAPTER XIII. 
 
 AN EFFICIENT JUDICIAL SYSTEM. 
 
 Few "common law" procedural States left— Others experi- 
 menting, except where "rules" in vogue — Statistics of pro- 
 cedural errors— Statistics of congested dockets— Analysis 
 of Supreme Court's docket — Mr. Taft's proposed relief- 
 Pending legislation — ^Does Congress appreciate country's 
 obligation to Supreme Court? — The one stable element of 
 government — Secret of Republic's strength— Inferior Fed- 
 eral courts — Inefficient judges — ^Relief refused — General 
 assignment suggested — Done m Second District — Entire 
 judicial system must be made elastic — Judicial code not 
 clear — Phenomenal statutory increase — The passing of a 
 Federal regime — Political judicial appointments lowest or- 
 der of treason — Public beginning to understand responsi- 
 ble agency — ^Reason for Southern prejudice — ^Mr. Taft m- 
 spired hope — Judges and administrative duties — ^A bad judi- 
 cial custom — Judge Rose's remedy — Separate commercial 
 courts — Montesquieu, Coke and Blackstone's views — Jury 
 service discussed — ^Mechanics of the law — Selection of 
 judges — Who best qualified to select — Superintendence of 
 operation of courts needed — "High Judicial Commission" — 
 Externals of judicature — Depositions condemned — ^Waste 
 of assets of litigants censured — Lowers morale of law- 
 yers — Destroys respect of laymen — Publicity as to hono- 
 rariums — Salaried standing masters recommended — Ex- 
 pense of judicial sales — ^Almost a scandal — Court reporting 
 — Its bnportance — Selection of juries — Is the Bar domg 
 anythhig? — Exemptions "Called from bystanders" — Indem- 
 nity bonds — No provision agahist IndMdnal official dishon- 
 esty — This is an element of potential danger — Three 
 courses open to a surety — Legislation suggested 227 
 
 CHAPTER XIV. 
 
 A chapter of Procedural statistics — Proportion of decisions 
 on pleadhigs — England in 1827 — Effect of Hilary Rules un- 
 satisfactory — ^The reason — Mr. Whittier's compilation and 
 comments — Contrast under Judicature Act — All court rule 
 system vindicated— Smith's American statistics — Com- 
 ments — Output of all courts — West Publishing Company's 
 compilation — Record of Federal Supreme Court — Statistics 
 of docket — Comment by Attorney-General — Circuit Court 
 of Appeal record — Form of American Bar Association's 
 Procedure Bill 253 
 
CHAPTER 1. 
 
 Judicial Procedure and Judicial Calibre. 
 
 If I were requested to write the history of 
 any one of the great governments that have 
 ruled over the destinies of men since the dawn 
 of the world, and had the ability to do so, I 
 should be well content to follow in the wake 
 of its judicial procedure. All else will bear 
 its impress and reflect its glory or its imper- 
 fections. Next to religion, it has been the 
 source of greatest contention in governmental 
 relations. Men may agree on the form of 
 laws, but they never agree on the manner of 
 their interpretation or administration. There 
 are three profound thoughts well justified by 
 history that will be the keynote to what is to 
 follow and to which is invited sober thought. 
 A government is as good as the laws it enacts ; 
 it is as bad as the manner in which they are 
 administered; and it is as strong and endur- 
 able as the faith of its citizens in its courts. 
 Practically applied, what is judicial proced- 
 ure? It is the divide between law and order 
 and anarchy. It is the barrier between right 
 and might. It is the guardian of civilization, 
 and it is the handmaiden of the church, to 
 which, alone, it takes second place. It mat- 
 
2 SPIRIT OF THE COURTS 
 
 ters not how good a law may be or how im- 
 portant it is to eradicate an evil at which a 
 statute is directed, its potency and dignity is 
 measured by the manner in which it is en- 
 forced. A lax administration begets lax meth- 
 ods and morals. Lax morals undermine a 
 people, and a nation is no better or stronger 
 than its subjects. It may be said, in passing, 
 that the redemption of this nation and of 
 all Anglo-Saxon people, is the occasional 
 habit of rising up and bringing about a rigid 
 enforcement of the laws through a prompt 
 response by the courts and not through a de- 
 struction of the courts and, therefore, the gov- 
 ernment. This very fact evidences an uncon- 
 scious faith in and respect for the potency of 
 the courts, as it proves them to be of first im- 
 portance and a last resort. And right well 
 have they justified it. The body of the great 
 common law is but the mature reasoning of 
 learned and patriotic English jurists, through 
 eight centuries of almost daily adjustment to 
 the progress of commerce and society. The 
 history of the Federal Supreme Court is an 
 interesting story of the conflict and evolution 
 of many years of interstate relations and the 
 establishment of interstate commercial regu- 
 lations. In bringing about this wholesome 
 status the Supreme Court converted an inert 
 parchment into a plastic, flexible tie profit- 
 
SPIRIT OF THE COURTS 3 
 
 ably binding the States together in amicable 
 relation and automatically disposing of fric- 
 tion as it arises. Without fear of contradic- 
 tion, it is asserted that no code of statutes pre- 
 pared by a Solomon would have achieved this 
 marvelous consummation so necessary to the 
 stability of the new and untried Republic, 
 even though the statutes could have been 
 agreed upon. 
 
 There is no legislative body on earth that 
 could have enacted enough statutes, and suffi- 
 ciently elastic, to have momentarily met the 
 kaleidoscopic developments and changes in 
 interstate political and economic relations, 
 during the early growth of this nation, with 
 its diversified interests. This is equally true 
 as to the last two decades, and the same will 
 be true as to the next decade to come. Yet 
 Chief Justice Marshall, his associates and 
 their successors have created a body of rules 
 of conduct answering both the rule of reason 
 and the demand of convenience under which 
 the States and commerce and society, with 
 slight sacrifices of individual rights, have 
 thrived to the extent of becoming the marvel 
 of the world. As to these judicial laws, there 
 was no appeal or repeal. They had the sav- 
 ing element of permanency, free from politi- 
 cal bias and partisan influences. The people, 
 therefore, philosophically acquiesced and fit- 
 
4 SPIRIT OF THE COURTS 
 
 ted themselves to the new conditions, though, 
 some times, only after a respectable number 
 had uselessly worried themselves into a state 
 of temporary nervous insubordination. This 
 was not without a useful purpose, since the 
 submission which followed was conducive to 
 a philosophical and thoughtful state of mind 
 wherein the general welfare, and not personal 
 pride, became the paramount object of citi- 
 zenship. But what most appeals to us is that, 
 still keeping alive a very necessary and agree- 
 able State rivalry, we are essentially one for 
 all and all for one — a nation of sovereign 
 States, a family of prosperous children, actu- 
 ally willing to adopt uniform laws. In taking 
 pride in this great nation, one looks upon the 
 result as richly justifying the means adopted 
 and as a measure of future governmental 
 conduct. Generations yet unborn will point 
 to this achievement as a fitting example for all 
 ages to follow. This is the debt that we owe 
 to the Federal Supreme Court, and particu- 
 larly, if I may be permitted to say it, to John 
 Marshall, Virginia's great contribution to the 
 nation. His masterful personality is its warp 
 and woof. Yet contemporaneous history 
 shows that some well-intentioned but impa- 
 tient people would have recalled this great 
 builder of the government when he handed 
 down the famous decision in "Marbury vs. 
 
SPIRIT OF THE COURTS 5 
 
 Madison." It brings to mind the words of 
 the poet Dryden : 
 
 "Look around the habitable world! How few 
 Know their own good, or knowing it, pursue." 
 
 The remedy was being applied and the pa- 
 tient was, as usual, temporarily rebellious. 
 The hour of gratitude had not arrived. The 
 mere mention of the circumstance to a 
 thoughtful reader will serve a purpose. It 
 will be discussed in another chapter. 
 
 Even lawyers have temporary difficulty in 
 completely comprehending the full practical 
 import of that one decision and its effect upon 
 the politics, commerce and governmental re- 
 lations of the times. The Supreme Court, 
 still in its pin-feathers as it were, but conceiv- 
 ing its high mission, laid its hand upon the 
 Legislatures of the several States and in effect 
 said : You have commenced to quarrel, so we 
 nominate ourselves as an umpire to interpret 
 and enforce the letter and spirit of the con- 
 tract into which you have entered, for some- 
 body must do it in order to keep the peace and 
 establish orderly conditions. Furthermore, 
 since nobody seems to know exactly the duties 
 and power of this Court, we will define them 
 ourselves. In the future, if you enact a law 
 appearing to us in violation of the Constitu- 
 tion, we will declare it void, and void it will 
 
6 SPIRIT OF THE COURTS 
 
 be through your submission to constituted au- 
 thority as loyal citizens. And with one ex- 
 ception, when the nation divided and the final 
 decree was writ in blood and enforced 
 through the arbitrament of arms, it has been 
 going right along settling disputes between 
 the States ever since. Out of the matter-of- 
 fact present how that thought looms up to a 
 grateful mental vision! Without regard to 
 blatant political sentiment, deaf even to the 
 clamorous warnings of the proud States of 
 their birth; seeing only with the eyes and heart 
 and head of constructive statesmanship the two 
 roads ahead of the Republic — the one to inter- 
 necine strife and ruin, and the other to a com- 
 pact nation of independent sovereigns, mag- 
 nanimously giving and taking in the daily 
 conflicts of commercial, social and political 
 intercourse — the Supreme Court made itself 
 the necessary arbiter, the patriarch of the 
 tribe, whose word was, has been and ever will 
 be the law of this united country. 
 
 We are today peacefully going through an 
 interstate industrial crisis of no small conse- 
 quence, but which, like all things else, is shap- 
 ing itself in the mould. Eight years ago there 
 were people aplenty who predicted govern- 
 mental and financial ruin if certain groups of 
 selfish and unpatriotic persons were not per- 
 mitted to continue taking personal advantage 
 
SPIRIT OF THE COURTS 7 
 
 of unsettled and conflicting State relations. 
 The condition of law so created was popular- 
 ized by the name of the "twilight zone." 
 Within that time this Great Umpire and the 
 State Appellate Courts, working in entire 
 sympathy, have found rules and applied 
 them; have interpreted law and enforced it, 
 and, at their simple word, peace and order 
 are rapidly coming out of the chaos of two 
 decades. True, it has not pleased everybody 
 either as to speed or extent, but the work has 
 the saving grace of finality and a determined 
 purpose. As it was not a day in the making, 
 so it will not be a day in the unmaking. The 
 roots of the tares have ramified and become 
 entangled with those of the wheat. The op- 
 eration of extraction is a delicate one. With- 
 out regard to political persuasion, the courts 
 rightfully and safely rely upon a patriotic 
 faith and patience of the people, that is the 
 noblest attribute of citizenship. This trait of 
 the American people is the corner-stone upon 
 which rests the very existence of this Repub- 
 lic. Reference is popularly made to the ab- 
 sence of it in a people as a lack of prepara- 
 tion for representative government, and there 
 never was a truer saying. One does not have 
 to go far afield to find evidences of it on the 
 American continent. Therefore, let me say 
 that it is the sublimest duty tO' foster and en- 
 
8 SPIRIT OF THE COURTS 
 
 courage a proper submission and faith. Given 
 time and the opportunity, the Supreme Court 
 in an orderly and decorous manner, free from 
 partisan bias, will reform pleading and pro- 
 cedure and will blaze the way in which the 
 new and greater commerce and interstate rela- 
 tions may develop and move on with safety to 
 itself and to the people. It will do this with 
 proper regard for constitutional limitations 
 and ancient principles and with a due consid- 
 eration of the sacred trust of the future that 
 lies before us. It is a problem no more difH- 
 cult than was that so happily and finally 
 solved by John Marshall and his faithful and 
 able associates. It merely looms large by 
 proximity, and is aggravating because of a 
 necessary and natural slowness of solution and 
 evolution. This profound faith, resting firm- 
 ly upon past achievements, always gives re- 
 newed hope and inspiration when the raucous 
 voice of the self-serving pessimist is disturb- 
 ing the peace of a government that will be the 
 hope-spring of liberty and justice when the 
 memory of the most conspicuous and success- 
 ful demagogue shall have faded away like a 
 shooting star athwart the heavens. 
 
 In our deep concern for the present, let 
 there be no alarm. Trouble adds to its stat- 
 ure by proximity and distrust. The same 
 Providence that gave strength and courage 
 
SPIRIT OF THE COURTS 9 
 
 and deep conviction to our struggling ances- 
 tors is watching over the destinies of the im- 
 portant nation they so wisely established upon 
 principles broad and profound. But the men 
 of this generation must be as faithful to duty 
 as their forebears. The need of strong courts 
 and the speedy, economical and uniform ad- 
 ministration of justice at this very time is even 
 greater, if possible, than in John Marshall's 
 day. His people were well disciplined by 
 war, privation, provincial simplicity and a 
 puritanical recognition of ethical standards. 
 They were too earnest to be idle; too energetic 
 to be discontented ; too unselfish to be unfaith- 
 ful, and too thoughtful to be satisfied with 
 expediency. They possessed a reverence for 
 government and an innate faith in and respect 
 for the courts that made of a judgeship the 
 highest honor in the gift of the people. Is 
 there not at present a lack of it, whether or 
 not justified, traceable alike to the indifference 
 of the suffragan and the corruption of the 
 politician? 
 
 We turn now, with a pardonable degree of 
 serious thought, to some present conditions 
 justifiably described as a state of mind that, 
 admitted to exist, cannot safely be left uncon- 
 sidered. 
 
lo SPIRIT OF THE COURTS 
 
 "If I could reach from pole to pole and grasp the ocean in my 
 
 span, 
 I would be judged by my soul, for the mind is the standard of 
 the man." 
 
 Many well-meaning persons of this genera- 
 tion, instead of fostering an unselfish philoso- 
 phy based upon the courage and deep convic- 
 tions of their forefathers, who thought pro- 
 foundly and acted wisely, if they be natives of 
 this country; or, are unmindful of the unbear- 
 able conditions that drove them to seek shelter 
 here, if they be adopted citizens, are showing 
 evidences of a restlessness and an impatience 
 that will surrender only to a proper realiza- 
 tion of the genius of our government and their 
 power and duty to perpetuate it; to the decent 
 restraint due between man and his brother, and 
 to a patriotic submission that is the life and 
 hope of good citizenship. To all such mis- 
 guided pessimists, even if they be entirely jus- 
 tified, are the words of Cowper most timely: 
 
 "Beware of desperate steps. The darkest day, 
 Live till tomorrow, will have passed away." 
 
 Here lies the sublimest duty of the lawyer 
 beckoning him to action. Trained in the 
 science of government, its philosophy and its 
 reason, sworn to uphold the Constitution and 
 possessing the faith of his clients, as he should, 
 he must become a missionary. It is believed 
 to be the opportunity of the hour for patriotic 
 
SPIRIT OF THE COURTS ii 
 
 service. There lies before the Bar a field ripe 
 to the harvest, impelled by militant convic- 
 tions. In the sentiments of Father Ryan: 
 
 "Better a day of strife 
 
 Than a century of sleep, 
 
 Give me instead of a long stream of life 
 
 The tempests and tears of the deep." 
 
 Our people, as pure at heart as any that 
 ever lived, are thoughtlessly beginning an as- 
 sault upon the one agency that distributes the 
 life-blood of all governments. It is time for 
 the patriotic lawyer to answer the demagogic 
 hysteria of the political opportunist with the 
 experience of history. England can trace the 
 elements of her greatness to the Magna 
 Charta, for it was then that the courts threw 
 off the yoke of King John and the Crown and 
 became independent. This was almost the di- 
 rect result of the missionary work of Sir John 
 Fitz Walter, inspired by the murder of his 
 daughter, Matilda ("Maid Marion"), as the 
 leader of the Barons until the capitulation at 
 Runnymede. In England's courts afterwards 
 lay her power-^in reverence she found her 
 strength, and the people their contentment and 
 happiness, although at the cost of many a life 
 and fortune and dark hours of despair. From 
 the school of her common-law procedure have 
 graduated the legal giants of history who 
 spread the light of civilization and culture 
 
12 SPIRIT OF THE COURTS 
 
 into a then almost darkened world. From her 
 Inns of Court, established for the purpose, 
 came forth a body of law and a citizenship by 
 whose example we well may profit. The peo- 
 ple were educated to fit the law, and not the 
 law the whims of the people. The animal 
 spirit of man became disciplined and fitted 
 for government. Man was not exalted above 
 the law, whether prince or peasant. The King 
 himself bowed before its majesty and power. 
 In Rome the justly famous Justinian Code, 
 more than a century in its making, is the dis- 
 tinguishing feature of the first half of the 
 sixth century of the Christian era. In France 
 the mighty warrior. Napoleon, reaching the 
 pinnacle of fame by the sword, declared that 
 his memory would eventually be commemo- 
 rated through his civil code. Wherever the 
 principles of justice are sought, the name of 
 Moses is not forgotten. And, lest we forget, 
 that while the greatness that was Rome lay 
 in the perfection of her courts, for they were 
 models for the world, when the finger of the 
 prince was permitted to rest upon the hand of 
 the judge as he signed the decree, the deca- 
 dence of the Empire began. And it matters 
 not whether that interference be by the prince 
 or by the people, the result will be the same. 
 What the Englishman demanded from the 
 Crown at Runnymede, the Roman surrcn- 
 
SPIRIT OF THE COURTS 13 
 
 dered to the prince; the one became a con- 
 queror and the mistress of the seas, the other 
 the conquered and a by-word. 
 
 The times call for a more general and pop- 
 ular study of the elementary principles of gov- 
 ernment, that the body politic may realize that 
 the difficulty is not with the courts as institu- 
 tions, but with the conduct thereof; that we 
 have outgrown some systems and have depart- 
 ed from ancient principles in creating others 
 and in selecting judges; that this trouble is 
 not permanent, but very temporary and local, 
 and can be corrected by a properly selected 
 personnel and a simplification of the proced- 
 ure therein, both of which reforms are knock- 
 ing clamorously at legislative doors. There- 
 fore, the fault lies not so much with the peo- 
 ple themselves, as with the lawyers who must 
 lead and teach them. These are the two 
 burning questions of the hour that are receiv- 
 ing the attention they deserve, and the solu- 
 tion, I profoundly believe, lies largely in di- 
 vorcing the courts from politics and political 
 influences and allowing them and the bar to 
 clean their own house, where necessary, and to 
 maintain it according to the high ethical 
 standards of so noble a profession. The un- 
 questioned tendency of the times is towards 
 the very highest ethical standards. 
 
14 SPIRIT OF THE COURTS 
 
 Pursuing this thought, if lawyers and judges 
 are to be held solely responsible, as in right 
 they should, then they must be given the 
 power to correct the evil by putting into prac- 
 tice all necessary reforms in the courts, the 
 very first "of which is the selection of suitable 
 judges. Present responsibility cannot be per- 
 manently located, but shifts with the political 
 tide, both as to the personnel and the proced- 
 ure in the courts. And the latter is no less 
 important. It is a pitiful present, and it will 
 be a hopeless future, unless the electorate in- 
 structs Congress and the State legislatures to 
 cease the present process of patching and use- 
 less amendment and turn over the entire re- 
 form of pleading and procedure to the highest 
 Appellate Courts, assisted by the bar, where 
 it logically belongs. Congress did this many 
 years ago as to the equity side of the Federal 
 Courts. But it has bound the hands of the 
 Federal Supreme Court as to the common-law 
 side. The people should rise up in their 
 might and require that Congress shall set the 
 Supreme Court free. It is a complete solu- 
 tion of the difficulty. For example, let us 
 consider equity procedure in the Federal 
 Courts. When the demand for a reform that 
 had been needed a hundred years became suffi- 
 ciently formidable, the Chief Executive, Wil- 
 liam Howard Taft, with a professional knowl- 
 
SPIRIT OF THE COURTS 15 
 
 edge of conditions and the courage of his con- 
 victions, officially called upon the Supreme 
 Court, which, in turn, called upon the law- 
 yers, and there was speedy action. A reformed 
 equity procedure for the Federal Courts has 
 gone into effect. On the other hand, his re- 
 quest to Congress to reform the law side of 
 the courts, or to authorize the Supreme Court 
 to do it, has gone the way of all things not 
 politically profitable. And so will it ever be. 
 Congress should be prevailed upon to do away 
 with the empty pretense of conformity with 
 State practice on the common-law side, pro- 
 vided in Section 914, Revised Statutes — the 
 only excuse for its existence — stop patching 
 conflicting and incompatible statutes, author- 
 ize the Federal Supreme Court to prepare a 
 simple, economical, complete, correlated sys- 
 tem of pleading and procedure, make it man- 
 datory, and stop there. Let the Supreme 
 Court do the rest. At present there are two 
 separate and distinct systems of pleading and 
 procedure in every State. Federal practice 
 has, indeed, become a specialty, to which 
 statement every lawyer will bear testimony. 
 Laymen will certify to its burdens and de- 
 lays. Every legitimate agency in the power 
 of lawyers and laymen should be brought to 
 bear to put an end to a condition daily taxing 
 and vexing commerce and society. It is justly 
 
i6 SPIRIT OF THE COURTS 
 
 a source of serious unrest. I repeat a state- 
 ment often made and never denied, that we 
 may look to legislative participation for dis- 
 appointment only in result, expedition and 
 permanency. With all due respect to the 
 many earnest, honest and well-equipped men 
 who compose those bodies, they suffer, besides 
 others, from some of the same troubles as do 
 the lawyers. From lack of preparedness, 
 conflict of ideas, as well as indiflference, there 
 is much to be feared. But an even greater 
 evil is the power and habit of amendment. 
 Besides, politics has no respectable place in 
 jurisprudence. On the other hand, the solemn 
 voice of the Supreme Court would bring the 
 entire bar and the people to a point of com- 
 plete acquiescence. There would be perma- 
 nent results the greatest of which, next to sim- 
 plicity and economy, would be uniformity in 
 pleading and procedure in the Federal Courts, 
 and quite naturally amongst the States. In 
 their own interest, there would eventually be 
 adopted any simple, economical system that 
 bears the imprimatur of approval of the 
 United States Supreme Court, that has proved 
 its merits in the Federal Courts and which 
 has become certain and fixed through prece- 
 dents. The detail of this will be discussed in 
 another chapter. 
 
SPIRIT OF THE COURTS 17 
 
 Most earnestly it has been impressed upon 
 Congress and Legislatures, and it is now re- 
 peated, that the enactment of substantive law 
 is a secondary matter in comparison with judi- 
 cial procedure. Time and again illustration 
 has been given that judicial procedure is to 
 the substantive law what the arteries are to 
 the human body; that the latter is worthless 
 without the former. It is an adage in medical 
 diagnosis that a man is as old as his arteries. 
 It is a truth in jurisprudence that a law is as 
 useful as the procedure through which it is 
 enforced. It matters not how much good, 
 rich, pure blood one may have pulsating in his 
 heart if the arteries through which it is dis- 
 tributed to the human system are clogged or 
 inefficient and fail to perform their function, 
 gradually there comes the certain death. 
 Without in any sense wishing to be an alarm- 
 ist, but stating a legitimate logical deduction, 
 so surely as the human heart connected with 
 clogged arteries must eventually cease to beat, 
 so certainly will a government retarded by 
 clogged judicial procedure surely decay. This 
 is the history of the world. Turning from 
 the courts, the people will first arbitrate and 
 then they will fight. Once resort is had to 
 the arbitrament of arms, might and not right 
 will be the measure of civil liberty and prop- 
 erty rights. The divide between law and or- 
 
i8 SPIRIT OF THE COURTS 
 
 der and anarchy being but a submission in- 
 spired by fear, or by the faith and respect of 
 the body politic in and for the courts, it is too 
 delicate and dangerous an element to be made 
 a political pawn. With it men are dealing 
 with fire, and they need to take a sober second 
 thought. 
 
 "A thousand years scarce serve to form a State; 
 An hour may lay it in the dust." 
 
 Believing these things, or even fearing their 
 possibility, as one may, is there a more patri- 
 otic duty in the noble profession of the law or 
 in citizenship than the profound obligation to 
 encourage, foster and make justifiable that 
 faith in the judicial procedure of this country 
 which is the very breath of its life? Impa- 
 tience, recently at high tide, is tugging at the 
 anchor of the old ship that has held it fast to 
 its ancient moorings. This is a time for law- 
 yers and all lovers of representative govern- 
 ment to stand fast in their allegiance to es- 
 tablished principles, suitably garbing them to 
 fit the temper of the hour. With this thought 
 in mind, let us take a little more analytical 
 view and repeat a definition that seems to have 
 stood the test and met with the approval of 
 the critics. 
 
 Judicial procedure is composed of the 
 judge, the man, with his power and mode of 
 reasoning — the procedure in his court, with 
 
SPIRIT OF THE COURTS 19 
 
 the written pleadings, rules, precedents and 
 traditions that restrict and confine his individ- 
 uality, limit his personal power and make of 
 him the true impersonation of the blind god- 
 dess of justice. Like a complete machine, 
 each part has its important function. 
 
 Now let us be perfectly frank in discussing 
 the man. The time for temporizing and plat- 
 itudes has passed. While I do not agree with 
 any such complaint, it has become fashionable 
 to declare that there are not as many able men 
 upon the bench as there were twenty years 
 ago; that political influence has outweighed 
 merit in their selection. Let me say that that 
 criticism comes with poor grace from a peo- 
 ple who, by uncomplaining acquiescence, jus- 
 tify their legislators in a parsimony in com- 
 pensating judges that would reflect credit 
 upon a miser, while at the same time they are 
 permitting in many States political clerks of 
 the same courts to be compensated in fees 
 amounting to many times their just desert. It 
 is just such inequalities, such political expedi- 
 encies that are eating away the peace of the 
 present and the hope of the future. Out of 
 their own conduct shall they hear condemna- 
 tion. How could a self-respecting man so 
 justify any such course of government as to 
 wish to serve it for a pittance, even if he were 
 financially able to do so and desired to make 
 
20 SPIRIT OF THE COURTS 
 
 a contribution to the public treasury in times 
 of peace? But by what right do Congress 
 and the Legislatures demand that a lawyer 
 shall sacrifice a lucrative practice commanded 
 and held by his ability? Has service upon 
 the bench been placed on a war basis, requir- 
 ing that a citizen, responding to the highest 
 call of patriotism, may be drafted into service 
 in order to save his country and maintain the 
 high standard of the bench? Self-respect is 
 the essence of patriotism. Judges, no more 
 than other men, can live by glory and patriot- 
 ism alone. They owe a duty to their families, 
 if not to themselves, and they should be finan- 
 cially independent and comfortable in mind. 
 Therefore, service upon the bench must be 
 made attractive by way of compensation as 
 well as honor. 
 
 Furthermore, the people in many States 
 have successfully demanded the right to select 
 their judges at the polls, in some cases subject- 
 ing them as a prey to designing politicians by 
 not coming to their rescue with sustaining 
 majorities. The judiciary in such States may 
 descend to the level of a high constable unless 
 the electorate is itself of the highest type of 
 citizenship. The shallow-brained but loud- 
 mouthed demagogue outweighs the quiet, dig- 
 nified man of deep-rooted principle, judicial 
 temperament and unfaltering courage. Again, 
 
SPIRIT OF THE COURTS 21 
 
 for reasons that have already been set forth, 
 and still having in mind the absolute inde- 
 pendence of the judge, there should be life- 
 tenure, with provision for retirement upon a 
 suitable pension, and a prompt, simple and 
 cheap v^^ay of calling the judge to judgment, 
 of which I shall speak later. Such an arrange- 
 ment would nautrally attract able lawyers of 
 a judicial temperament and well fitted for that 
 service of the bench which ought to be the 
 greatest honor in the gift of the people. 
 Judges should be recruited from men not 
 lacking in repose, but suited in disposition and 
 desire, men free from the nervous impatience 
 and thirst for power and pelf that might bind 
 them to commerce. 
 
 Having made the judge independent, it is 
 of first importance that he should be placed in 
 convenient and economical reach of the peo- 
 ple whose official servant he is. There has al- 
 ready been suggested the need in the Federal 
 system, and wherever life-tenure or long terms 
 prevail, of a speedy, simple, inexpensive man- 
 ner of preferring and answering charges con- 
 cerning the conduct of judges. It is incom- 
 patible with American manhood that the peo- 
 ple will rest content under the belief that any 
 official or man is beyond the reach of the law, 
 whether through political influence or chi- 
 canery, the operation of statutory law or the 
 
22 SPIRIT OF THE COURTS 
 
 expense and delay of the legal remedy of im- 
 peachment. The effect is exactly the same. 
 Impeachment should be made to fit the crime, 
 instead of being the plaything of politics or a 
 club in the hand of spite, and it should not be 
 the only way of bringing a life-tenure judge 
 to judgment. It is too often the case that the 
 layman, through ignorance of the law, and the 
 lawyer, through indifference or fear and 
 sometimes with the hope of profit, has 
 reached the conclusion that a life-tenure judge, 
 particularly a Federal judge, is out of the 
 reach of the man without influence. In iso- 
 lated instances "thrift has followed fawning," 
 but, as a general rule, resentment and opposi- 
 tion naturally followed upon the heels of this 
 conviction. Wherein the public is becoming 
 like the man who kept fire out of his residence 
 and died of pneumonia, because of the fear of 
 burning up his house. It is more sensible to 
 keep the fire under thorough and immediate 
 control and profit by it. Some time ago I 
 suggested a possible solution of this prob- 
 lem, and some sort of a solution must be 
 promptly had in order to appease a very re- 
 spectable Yiumber of people. 
 
 This solution is a Judicial Court of Inquiry, 
 the prototype of which may be found in mili- 
 tary and naval law. A limited example and 
 complete justification of it has recently been 
 
SPIRIT OF THE COURTS 23 
 
 furnished by a Congressional Committee of 
 Inquiry in the Archbald case. While the pre- 
 vailing principle is right, the practice is 
 wrong and expensive as conducted by Con- 
 gress. The trial must be brought closer home 
 and not held within the exclusive walls of Con- 
 gress. When, in the opinion of the Chief Jus- 
 tice, sufficient cause is shown upon a verified 
 petition or communication to that effect, pro- 
 vision should be made for the immediate se- 
 lection by the Chief Justice of a court of 
 three to five judges to sit at the trial. The 
 personnel should be made up of presiding 
 judges of equal or superior dignity and from 
 different grand divisions of the country, who 
 could in no way profit by the outcome and 
 who would represent every ethical viewpoint. 
 Charges and specifications should be prepared 
 and served in advance, and the accused should 
 be required to appear in court in person at a 
 public hearing held where the alleged im- 
 proper conduct was committed. Before such 
 a court there could be defined and considered 
 the trinity of evils that destroy the usefulness 
 of judges — corruption, ignorance and subserv- 
 iency. This court could not impeach, but the 
 result would be the same. Congress and Leg- 
 islatures would respect its findings. The ef- 
 fect would bring to the great body of the peo- 
 ple the consoling and peaceful thought that an 
 
24 SPIRIT OF THE COURTS 
 
 improper judge was speedily within their 
 reach, and it will help allay the dangerous 
 agitation for the recall of judges. There 
 would be no need of it. The expense of this 
 court would be negligible, its selection would 
 be ideal, its effect would be as wholesome as 
 its prototype is in the Army and Navy and the 
 National Guard, and there would follow a 
 peace and contentment that is the concomitant 
 of faith and respect and the realization of the 
 power of self-protection. 
 
 I venture again to suggest that dissatisfac- 
 tion with judges is not the outgrowth of honest 
 decisions or big matters, in the absence of 
 questions of political significance. The aver- 
 age man is a good loser where he has had a 
 fair chance. It is on account of the aggrega- 
 tion of little things of which the press never 
 hears and under which the complainant, chaf- 
 ing in impotent helplessness, sows seed of dis- 
 satisfaction that need but little demagogic fer- 
 tilization to germinate into a governmental 
 menace. With the right in the judge to demand 
 an inquiry and the power in the citizen and 
 the lawyer alike to prefer charges, an ever 
 fair-minded public will not permit irrespon- 
 sible mongering of scandal or unguarded ex- 
 pressions of criticism. It will go out of fash- 
 ion to speak loosely of courts and it will come 
 into fashion to lay charges where justified. 
 
SPIRIT OF THE COURTS 25 
 
 Thomas Jefiferson expressed the opinion 
 that "when a cause has been adjudged accord- 
 ing to the rules and the forms of a country, its 
 justice ought to be presumed * * * Mul- 
 tiply bodies of revisal as you please, their 
 number must still be finite and they must fin- 
 ish in the hands of fallible men and judges." 
 
 Grover Cleveland prophetically said : "To 
 me nothing can be more deplorable than that 
 open criticism of the decisions of courts 
 which, all at once, has become fashionable 
 
 * * * they are danger-signals, and failure 
 to see them may introduce practices which 
 will threaten the independence of the courts 
 
 * * * If their decrees are not respected, 
 or the judges who preside over them are not 
 men of the highest reputation for ability and 
 fairness, then all the forces of discontent will 
 unite in an assault upon them." 
 
 As important, therefore, as is the simplifica- 
 tion, expedition and reduction in expense of 
 pleading and procedure, the selection of 
 judges stands forth as an issue by itself. Chief 
 Justice Marshall said: "The greatest curse 
 ever inflicted by an angry Heaven upon an 
 ungrateful and sinning people is a corrupt, de- 
 pendent or an ignorant judiciary." The most 
 enduring monument that any Chief Executive 
 can erect to his lasting and grateful memory, 
 whatever may be his political creed, will be 
 
26 SPIRIT OF THE COURTS 
 
 the act of eradicating the influence of politics 
 from the selection of judges and from judicial 
 procedure. Daily there is justification of the 
 conviction that of the trinity of evils that go 
 to make bad judges — corruption, ignorance 
 and subserviency — the worst of these is sub- 
 serviency. The stench of corruption eventu- 
 ally reveals its presence; the blunders of ig- 
 norance are awkwardly visible to both parties 
 to the record ; but the stealth of favoritism is 
 apparent only to the expert professional eyes 
 of unwilling witnesses. Few lawyers can af- 
 ford and all regretfully perform the patriotic 
 duty of pointing out the occasional unfit judge 
 for whose existence this country is dearly pay- 
 ing. It cannot be too often repeated that 
 judges should be men who, now and always, 
 have understood and lived up to their coun- 
 try's best traditions; who draw their inspira- 
 tions, as a matter of right, from the firesides 
 of the representative people and not from the 
 ''nfluence of or respect for their high office. 
 No man with political debts to pay, enemies 
 to punish, friends to favor or dependents to be 
 supported out of the assets of litigants, is fit 
 to be a judge. 
 
SPIRIT OF THE COURTS 27 
 
 CHAPTER II. 
 
 Relation of Judicial Procedure to Uni- 
 formity OF Law. 
 
 Let us now give attention to the American 
 national aspect of the procedure of the courts. 
 There is being earnestly and successfully 
 urged the necessity for uniformity in the law 
 of the States. The uncertainty, the lack of 
 confidence in extending credits and the costly 
 conflict and delay that continually arise in 
 the execution of the simplest transaction, and 
 in litigation incident thereto, have been em- 
 phasized. The suggestion is offered that uni- 
 formity in interpretation is as important as 
 uniformity in enactment of statutes. And we 
 must go yet a step further; judicial procedure 
 must be made uniform as well as simple, in- 
 expensive and expeditious. Let us consider it 
 with that meed of reverence justly due to those 
 elementary principles underlying our republi- 
 can form of government and the protection to 
 liberty and property rights, to which atten- 
 tion has already been directed. 
 
 Into this thought enter the judge — the man, 
 with his power and mode of reasoning — the 
 procedure in his court, with the rules, prece- 
 dents and traditions that restrict and confine 
 
28 SPIRIT OF THE COURTS 
 
 his individuality, limit his personal power 
 and make of him the true impersonation of the 
 blind Goddess of Justice. It is asserted with- 
 out hesitation that, though every statute in 
 every State were made uniform in word and 
 letter, the courts, by failing to follow their 
 manifest spirit and intent or by contrary rul- 
 ings, could nullify that work in one decision. 
 
 Consider the much-heralded Uniform Ne- 
 gotiable Instrument Law, the result of years 
 of unselfish devotion. What is its fate? Its 
 President reported to the Commissioners on 
 Uniform State Laws in 1909 that, though this 
 statute had been adopted in thirty-eight States, 
 Territories and the District of Columbia, some 
 of the courts were destroying its purpose by 
 lack of uniformity in decision. These courts 
 had simply failed to recognize and permit to 
 become operative the announced co-operation 
 of thirty-eight Legislatures in enacting identi- 
 cal laws dealing with matters of common in- 
 terest to commerce, finance and society. This 
 is said not in criticism of a theory of law, but 
 as the statement of fact. So long as lack of 
 uniformity in decision is progressing, uni- 
 formity in law is retrogressing. 
 
 It is proposed, then, to demonstrate clearly 
 the fatal fact that the machinery of the courts 
 measure the potency and the dignity of the 
 law, and before there shall be obtained uni- 
 
SPIRIT OF THE COURTS 29 
 
 formity of law there must be brought about 
 uniformity of decision and practice. That 
 this is impossible in this enlightened country, 
 where the brains and brawn and money of the 
 men of every State is commingled in a com- 
 mon effort of uplift, civic improvement and 
 industrial advancement, a normal person re- 
 fuses to believe. Never in all the world was 
 there such solidarity of purpose, such frater- 
 nal co-operation and such unity of effort as 
 exists today throughout this great, fruitful 
 and prosperous country. Commercially and 
 socially, it is made one by transportation, tele- 
 graph, telephone and newspaper service and 
 facilities. The one section depends upon the 
 labor, fruits and industries of another almost 
 like the members of the human body itself. 
 If the same law is acceptable to all the States, 
 why is not the same interpretation of that law 
 acceptable? And why cannot it be made so? 
 
 It is commendable of the fearless independ- 
 ence of those great jurists that even the mem- 
 bers of the Supreme Court of the United 
 States do not always agree in reasoning or re- 
 sult. Permanency and uniformity of decision 
 are not, thereby, disturbed because of the 
 finality of the majority rule. Now the inter- 
 pretation of a State Appellate Court, reached 
 by the majority thereof, is equally permanent 
 as to that State. But thirty-eight States have 
 
30 SPIRIT OF THE COURTS 
 
 adopted the statute and, without concert of 
 action by these courts or some rule of conduct, 
 there may be thirty-eight interpretations of the 
 law. So if it be necessary for uniformity, why 
 cannot the judges or the presiding judges of 
 the different Appellate Courts exchange views 
 when a new uniform statute is enacted, and, if 
 they fail to agree upon its meaning, let the 
 majority rule. A congress of courts, I ven- 
 ture to suggest, is within the spirit of uni- 
 formity. It is no impingement of the dignity, 
 nor a breach of the ethics of courts, to confer 
 together. It is no sacrifice of States' rights. 
 Rather is it an advantage to State interests. 
 A cardinal rule of interpretation is that when 
 a State adopts a statute, its courts shall follow 
 the interpretation reached by the highest 
 court of the sister State first adopting it. In 
 the final analysis we are, after all, but mem- 
 bers of one big family living on one big farm, 
 subdivided by imaginary political lines. We 
 need a little more neighborly gossiping over 
 the back fences by the courts for a realization 
 that the adoption of identical statutes calls for 
 the rendering of identical decisions. This 
 great problem we wish to consider not with 
 the promise of a specific remedy, for that will 
 be discussed later, but as a call for patriotism, 
 a broadness of vision and that degree of un- 
 selfishness that tends to the general good. 
 
SPIRIT OF THE COURTS 31 
 
 "No State," said Senator Root, "can live unto 
 itself," and by the same token I wish to add 
 that no State Appellate Court ought to do so. 
 
 One cares much as to what is written upon 
 the statute books, but much more as to how it 
 is enforced. We may well cherish the hope 
 of uniformity even as we rest trustfully in the 
 sacred limitations guaranteed in the Consti- 
 tution, but the extent of the achievement of 
 both is measured absolutely by the courts. No 
 apology, then, is in order for considering these 
 vital questions, for they will play an important 
 part in the future, as they have done since 
 men first abandoned the arbitrament of might 
 and arms and sought courts of justice in settle- 
 ment of their differences, as we have already 
 briefly shown. To such an extent is this a 
 fact, as has also been seen, that the pleading 
 and procedure of the courts of every country 
 reflect the genius of the government itself. 
 We have already seen that imperialistic Rome, 
 with the highest and best laws that ever 
 blessed a people, would have scorned the com- 
 mon-law pleading of England that was made 
 to stand, and did stand, as a barrier between 
 the prince and the citizen and as a guarantor 
 of decisions reflecting the true law, the ex- 
 pressed spirit of the time and not the pleasure 
 of the prince, the judge or any other power. 
 Pleading is the vehicle through which all law 
 
32 SPIRIT OF THE COURTS 
 
 is enforced, and excepting a good judgment, 
 wisdom, patriotism and fidelity to duty, it is 
 the only restriction and limitation upon the 
 individuality of the judge and the direct in- 
 terference of the government or other pow^er. 
 As a people we have grown indifferent to or 
 lost appreciation of the truth that it matters 
 not how good a law is or what might have 
 been its beneficial purpose, it becomes bad, if 
 not vicious, when improperly or inadequately 
 enforced. 
 
 Judicial procedure is to law what the aque- 
 duct and water pipes are to the great reservoir 
 where the water is stored. The quality, quan- 
 tity and usefulness of the water, however 
 pure its origin, depends absolutely upon the 
 aqueduct in which it is conveyed to the city 
 and distributed. If that be broken and leaky 
 or inadequate, the supply actually received by 
 the people will be uncertain, slow and insuffi- 
 cient, and all commercial and social efforts 
 must suffer accordingly. If the aqueduct be 
 foul, so will the water be contaminated and 
 spoiled for the merciful use for which it was 
 intended and becomes the very antithesis of an 
 agency next to godliness. So patriotic and 
 learned men may fill the statute books with 
 the wisdom of a Solomon, but the usefulness 
 thereof will be limited and measured by the 
 judicial procedure through which it is admin- 
 
SPIRIT OF THE COURTS 33 
 
 istered. That the thought may be emphasized, 
 it is desired to repeat that if judicial proced- 
 ure is to be reformed it must be reconstructed 
 as a scientific, correlated whole, else the last 
 state will be worse than the first. On the 
 other hand, it is not necessary to be seekers 
 after innovation in order to improve. We are 
 so fortunate as to have inherited a model, 
 briefly described in another chapter, from the 
 same source from which we took the immu- 
 table bases of our laws, a simple, economical, 
 expeditious system amended down to date, 
 which can be made to fit American conditions. 
 It is as old as. English civilization and as new 
 as the most modern idea. In it there looks 
 down upon us eight centuries of legal history 
 and civic struggle. It has made the humblest 
 man as strong in court as the greatest aggre- 
 gation of power. Happily, though business 
 is vexed by lack of uniformity in judicial de- 
 cisions, there are as yet no imperialistic clouds 
 in our governmental skies threatening civil 
 liberty or property rights. But "the price of 
 liberty is eternal vigilance." To ofifer tempta- 
 tion is half the sin, for it is an invitation to 
 transgression. It is not too much to say that 
 upon uniform judicial procedure and decision 
 largely depend the fostering of closer politi- 
 cal, commercial and social relations amongst 
 the States. The best practitioner in Virginia 
 
34 SPIRIT OF THE COURTS 
 
 today is lost in a North Carolina or New York 
 court, and vice versa. This is as devoid of 
 reason as it is unneighborly. A simple model 
 Federal system is the key to achievement, as we 
 shall presently show. 
 
 But there is another and a fundamental 
 reason we would prove false to a profound 
 conviction not to emphasize. However ad- 
 vantageous uniformity in procedure and de- 
 cision may be to men of national business — for 
 commerce has long since leaped over the im- 
 aginary political lines separating the States — 
 it becomes a negligible quantity in the light of 
 the profound fundamental matter of perpetu- 
 ating the dual relation fixed by the founders 
 between the State and Federal governments. 
 I venture to predict that States' rights will be 
 gradually absorbed unless the State Legisla- 
 tures suitably accommodate their local laws to 
 the manifest needs of interstate commerce. 
 The preservation of State autonomy, we are 
 taught by the founders, means the guarantee 
 of the true liberty against certain difficulties 
 and a possible oppression from centralized 
 power. 
 
 But who shall perform this important work 
 of preparing a fixed, uniform system of per- 
 manent rules for the regulation of judicial 
 procedure of all the courts — Federal and 
 State? There is but one answer — the highest 
 
SPIRIT OF THE COURTS 35 
 
 Appellate Court in the United States and of 
 the several States (until all the States shall 
 adopt the Federal plan). The Bar has given 
 repeated assurance that it stands ready to 
 render such practical assistance as may be 
 found convenient and may be requested of it, 
 through the agency of a commission or other- 
 wise. It is an indication that there abides 
 in the people of this country a sublime 
 faith in their highest tribunal that makes of 
 submission the noblest attribute of national 
 character. "In reverence is the chief joy and 
 power of life," says Ruskin, and it is an un- 
 mistakable evidence of unconscious bravery 
 and unselfish patriotism. Nothing but the sol- 
 emn voice of this great source of Justice will 
 subdue the belligerent cocksureness that may 
 be expected, or solidify public opinion to the 
 point of complete acquiescence and forceful 
 support. It will be encouraging to be mind- 
 ful that pride of opinion of individual law- 
 yers forced upon the ancient Romans one hun- 
 dred years of struggle and dissension in per- 
 fecting the Justinian Code, and that it has 
 taken the English eight hundred years of co- 
 operation to reach their present state of per- 
 fection. There are reactionaries holding high 
 legislative position who would repeat history 
 in America. 
 
36 SPIRIT OF THE COURTS 
 
 Our next thought, heretofore suggested, is 
 that judicial procedure must be fixed and es- 
 tablished because of its salutary limitation 
 upon the human element entering into its 
 warp and woof. With strict reference only to 
 enforcing rules of pleading and procedure, the 
 relation of the presiding judge to the litigants 
 and the authorities is analogous to that of an 
 umpire in a game. It is his province to ad- 
 minister, not to make rules. It would be a 
 dangerous umpire who made his rules as he 
 enforced them, but a very just and safe one 
 who enforced existing rules regardless of his 
 personal inclinations or the personnel of the 
 players. In that particular there forcibly ap- 
 pears the distinction between the civil and the 
 common-law practice heretofore pointed out. 
 The donning of the ermine takes away none 
 of the human frailties. It is not a question of 
 honesty of purpose, but one of natural limita- 
 tions. Gratitude, one of the cardinal virtues, 
 may become in a judge a vicious weakness. 
 No two men see, understand, are impressed 
 or appreciate alike under exactly the same 
 conditions if left uncontrolled, which is the 
 reason that the law is worse than meaningless 
 when left to unfettered individual inclination. 
 The strongest supporters of that statement will 
 be found among the men who adorn the 
 Bench. A keen sense of duty but accentuates 
 
SPIRIT OF THE COURTS 37 
 
 the weight of responsibility and bestirs a cor- 
 responding gratitude for every legitimate help 
 that lessens or lightens it. Belief in human 
 infallibility is symptomatic of imperialism or 
 insanity. 
 
 The opinion is ventured that the general 
 public is sometimes amazed at the broad 
 power properly possessed by the courts even 
 within these legitimate limitations. This 
 power finds its security not in the words of 
 constitutions and statutes, but is derived from 
 the innate sense of justice and love of the 
 people for right, truth and fair-dealing be- 
 tween man and man and between government 
 and man and their respect for constituted au- 
 thority. It translates the highest type of ad- 
 ministering restraint by the rule of reason. 
 Courts draw no power from transgressors. A 
 court that dispenses impartial justice, though 
 its decision be temporarily unpopular, is as 
 strong as a hundred million patriotic people 
 can make it. How important it is, then, to 
 justify this faith in fact and in appearance. 
 Most regretfully is it submitted for considera- 
 tion that the test of popular strength in Amer- 
 ica today is robust honesty. It ought to be a 
 most commonplace thing instead. The strong- 
 est man and the one who does the most good is 
 not the individual whose mouth is filled with 
 platitudes, but he who dares to do right him- 
 
38 SPIRIT OF THE COURTS 
 
 self and to force others to do it. I have 
 enough confidence in the deep-rooted sense of 
 justice of the average citizenof America to im- 
 plicitly believe that he would fight to the death 
 for any judge who stood for what that judge 
 believed to be right, just as he would condemn 
 and expose partiality, wrong and corruption. 
 That is the impelling force holding up the 
 hands of American courts. All of these things, 
 too often overlooked, play their important 
 parts and must be considered in the important 
 task now before the American people of per- 
 fecting judicature. They are written in order 
 to emphasize that the administration of justice 
 needs to be brought -up instead of down to the 
 level of citizenship, and must be made as 
 nearly nationally uniform as is humanly pos- 
 sible. The noisy brook has been diverting 
 attention from the deep running river upon 
 whose placid bosom only the ship of state can 
 float. 
 
 I am inspired to believe that we are living 
 in a time when the voice of civic uplift and 
 advancement is being heard in legislative 
 halls, the counting-room and in the innermost 
 executive and judicial chambers. The public 
 conscience is awake to a lively sense of duty. 
 There is being reincarnated the spirit of the 
 patriots who founded this government. Men 
 are being brought closer together in the com- 
 
SPIRIT OF THE COURTS 39 
 
 mon ties of humanity, mutual benefit and 
 brotherly love. They are heeding the call of 
 the fellowship of man, the general welfare and 
 the common good, and at the call of a com- 
 mon need are reaching a state of mutual ap- 
 preciation, understanding and tolerance. The 
 voice of the zealot and of blind partizanship 
 is being heard less and less. The dawning of 
 this new day is casting its fresh sunshine from 
 one end to the other of our country. It is melt- 
 ing its way through barriers that the laws and 
 force could not penetrate. It is developing 
 into lusty strength principles that have been 
 sacrificed to political expediency, and it is 
 filling the hearts of patriotic men of every po- 
 sition, condition and creed with a new hope 
 and a new effort. Encouragement must be 
 given this sentiment by the selection of a suit- 
 able judicial personnel as well as providing a 
 simple, uniform procedure for the courts, and 
 we cannot dwell too much upon the former. 
 Judges should be men who now and always 
 have understood and lived up to their coun- 
 try's best traditions, who draw their inspira- 
 tions as a matter of right from the firesides of 
 representative people and not on account of 
 the influence of or respect for their high office, 
 and with whom "thrift will not follow fawn- 
 ing." No man with political debts to pay, 
 enemies to punish, friends to favor or depend- 
 
40 SPIRIT OF THE COURTS 
 
 ents to be supported out of the assets of liti- 
 gants is fit to be a judge. If there shall con- 
 tinue to exist that lofty spirit of unselfish pa- 
 triotism, faith in the government and respect 
 for the courts; if the real people are to be 
 brought close together and close to the heart 
 of the government at Washington in order 
 that the ideal of uniformity shall be nationally 
 acceptable, it will be by destroying all antip- 
 athy to the Federal courts and creating instead 
 that admiration, loyalty and respect that 
 Americans dearly love to pay to their faithful 
 official servants. In the Federal courts let us 
 feel that we are in the house of our fathers, 
 from which models should properly come, in- 
 stead of a foreign court. Uniformity of leg- 
 islation is a necessary convenience, but uni- 
 formity of administration is a fundamental 
 necessity, and it cannot be achieved except 
 through the adoption by the several States of 
 an acceptable Federal system. 
 
SPIRIT OF THE COURTS 41 
 
 CHAPTER III. ' 
 
 Expediency Must Not Sacrifice 
 Principle. 
 
 Former President Taft, some years ago, 
 officially declared that "The great question 
 now before the American public is the im- 
 provement of the administration of justice, 
 civil and criminal, both in the matter of its 
 prompt dispatch and the cheapening of its 
 use." He was none the less forceful but more 
 ornate than a distinguished poet who said: 
 "For forms of law let fools contest; that 
 which is best administered is best." 
 
 Assuming then that there does not exist a 
 dissenting voice against the eflfort seeking to 
 simplify, lessen the expense, expedite and 
 make uniform the pleading and procedure of 
 the State and Federal courts, the paramount 
 thought is the preparation and agreement 
 upon that system of practice very nearly pro- 
 ducing the desired result and reasonably meet- 
 ing with individual theories and inclinations. 
 In its consideration let us hope that we shall 
 be free from that belligerent cocksureness that 
 is the outcome of superficial or extemporized 
 knowledge and that there will be kept in mind 
 the importance of pleading, its history, its 
 
42 SPIRIT OF THE COURTS 
 
 traditions, its evolution, its difficulties and its 
 dangers, which in this and future chapters we 
 shall endeavor to bring to mind. In another 
 place it will be shown that the present trouble 
 is fundamental and lies in the processes of the 
 government itself. The proposed remedy, it 
 will be seen, is the fruit of the matured wis- 
 dom of the ripest scholars of the English- 
 speaking world. Its application requires no 
 departure from fundamental principles, no 
 sacrifice of ancient landmarks, and involves 
 but slight surrender of individual inclinations. 
 But it demands a broadness of vision and that 
 degree of unselfishness that tends to the gen- 
 eral good, the sinking of pride of opinion 
 and a spirit of accommodativeness. Nor is it 
 necessary that its ends should be obtained at 
 the sacrifice of certainty and stability. On the 
 contrary, these will be assured, including per- 
 petuation of the principles of the common 
 law. By wholly abolishing technical com- 
 mon-law procedure, rigid conflicting statutes 
 and substituting therefor scientific correlated 
 rules of court, there will be attained a sim- 
 plicity that will state the case in logical man- 
 ner and with an accuracy that is free from sub- 
 tlety. Practically, it means pleading the facts 
 without the circumstances, omitting conclu- 
 sions of law and evolving a single issue of law 
 and fact. Without indulging in the vain hope 
 
SPIRIT OF THE COURTS 43 
 
 of the sciolist, that every litigant may be his 
 own lawyer, it is certain that in this way plead- 
 ing can be made as simple as it is now complex. 
 It is proposed to discuss the elements entering 
 into this thought. 
 
 Inasmuch as it is proposed that the new 
 system of rules of court shall possess the vir- 
 tues and avoid the vices of both common-law 
 and Code procedure, we must not be unmind- 
 ful of the different schools of thought that en- 
 joy the favor of ripe and patriotic scholars. 
 To that end let us review as much in their 
 own language as possible the opinion of some 
 of the ablest exponents of common and civil 
 law pleading. Doctor Tyler, a common-law 
 partizan, in his preface to the American work 
 of Stephen on Pleading [3rd Am. Ed., 1892], 
 bitterly resented any departure from that an- 
 cient practice, particularly "Code Pleading." 
 Let us consider his views first. "The love of 
 innovation," said he, "induced the State of 
 New York some years ago to abrogate com- 
 mon-law pleading and introduce a code of 
 procedure for the regulation of litigation in 
 her courts; and, notwithstanding the lament- 
 able confusion and uncertainty and the great- 
 ly increased expense which has thereby been 
 brought into the administration of justice in 
 that State, other States have followed in her 
 
44 SPIRIT OF THE COURTS 
 
 track of barbaric emipricism." Mindful that 
 the few advocates of common-law pleading 
 look upon it as a fetish, a purpose will be 
 served in permitting the spirit of Dr. Tyler 
 to carry us a little further into history in the 
 search for the inspiration of its origin and the 
 reason for its destruction. Today it has no 
 place in the world except in five States in 
 America. His failure to distinguish between 
 the unparalleled merits of the common law 
 and the machinery through which it was fin- 
 ally enforced will become obvious. The schol- 
 arly law-givers of Rome spent nearly a cen- 
 tury of constant application in reaching what 
 was finally the Justinian Code. That a keen 
 sense of right and an abhorrence of wrong 
 dominated the Roman mind in framing all 
 their laws will not be disputed, though our 
 English progenitors found the necessity of 
 disagreeing for other reasons. That their po- 
 tency was lost in the processes of administra- 
 tion proved a warning and an inspiration to 
 Englishmen. Inasmuch as it is given to us to 
 profit alike by the failures and successes of 
 two great peoples, from whom we have in- 
 herited a rich legacy of precedents and tradi- 
 tions, there is neither necessity nor excuse for 
 a serious mistake to be made. Although mod- 
 ern statutes and decisions are creating a place 
 requiring consideration, there are known in 
 
SPIRIT OF THE COURTS 45 
 
 history two great systems of law — the civil 
 law of Rome and the common law of Eng- 
 land. All procedure must be adapted as ve- 
 hicles for enforcing these principles. With 
 the exception of Louisiana, the States of the 
 Union are influenced by the common law of 
 England, if, indeed, the law of those States 
 is not the common law except where modified 
 or abrogated by statute. It need not be said 
 that it is a decadent jurisprudence that rejects 
 the foundation provided by the maxims. 
 
 Consider first the procedure of the civil 
 law; it appears that there is impressed upon 
 it the influence of the three great political 
 periods of Rome, viz : the period of the Kings, 
 the period of the Republic and the period of 
 the Emperors. The pleading of each period 
 faithfully reflects the spirit of the people and 
 of the government thereof. The evolution of 
 the civil procedure, on account of its imperial- 
 istic tendency, commands investigation, in that 
 it seems not to have been so much a legisla- 
 tive as a judicial growth, one responding to 
 the convenience of the prince. Thus, while 
 "the written reason of the Roman law has 
 been silently and studiously transfused into 
 all our modern legal and political life," its 
 pleading and procedure has not done so for 
 the reason that personal judicial inclination 
 became a substitute for juridical science. We 
 
46 SPIRIT OF THE COURTS 
 
 are told "that there was given to the chief 
 judge ('Praetor Urbanus') authority to pro- 
 vide new rules and orders applicable to spe- 
 cial cases which might be brought before 
 him." Let us see how it operated. "If a 
 person complained of an injury for which the 
 old (then existing) law offered no remedy, the 
 Praetor Urbanus could, upon a statement of 
 facts by the party, allow him an action and 
 put the facts, with a proper judgment upon 
 them, into a certain formula for the informa- 
 tion of the judex to whom he referred the 
 matter." Now this sounds very much like 
 making the law and the procedure to suit the 
 case. There was a menace to justice in this 
 arbitrary or conflicting procedure, particu- 
 larly as administered by a weak or subservient 
 judge. It fostered distrust, and often disre- 
 spect, for the courts. They became to be de- 
 spised as tools of oppression instead of being 
 revered as the sacred agencies of justice. So 
 "it became the custom for Praetors, on enter- 
 ing upon their office, to publish an edict de- 
 claring the principles upon which they in- 
 tended to administer justice during the year 
 of their prsetorship. By this practice the 
 Praetor would appear to the suitors to be 
 governed by pre-established rules and not to 
 be influenced by the special interest of any 
 particular case. His administration would. 
 
SPIRIT OF THE COURTS 47 
 
 therefore, be felt as more impartial and just." 
 This was so obviously expediency sacrificing 
 principle, "that few were deceived and the 
 end was not deferred." Without reference to 
 the days of the Republic, when great prin- 
 ciples were established, but following the trail 
 through imperialism, there will be noted the 
 continuance of this policy of opportunism 
 from Augustus Caesar and his successors down 
 to the days of the well-remembered Emperor 
 Justinian, whose code is the distinguishing 
 feature of the first half of the sixth century of 
 the Christian era. 
 
 Dr. Tyler states that, upon the overthrow 
 of the Republic and the establishment of 
 the Empire by Augustus, we seem to find the 
 first real contention regarding the establish- 
 ment of a scientific and fixed system of plead- 
 ing and procedure which was of sufficient im- 
 portance to make its impress upon history. 
 In what then occurred, history is faithfully re- 
 peating itself today. In its very incipiency 
 Capito, "a lawyer of enviable fame," "main- 
 tained that the forms of legal procedure as 
 well as the jurisprudence itself must each 
 change to suit the period of progress and the 
 new order of things." Labeo, another great 
 lawyer, "was utterly averse to changing the 
 strict technical forms." We are told that the 
 controversy thus begun lasted nearly a cen- 
 
48 SPIRIT OF THE COURTS 
 
 tury, and out of the strife arose the civil code, 
 a mixture of both adjective and substantive 
 law. The records show that so many lawyers 
 and jurists debated it with acrid tempers that 
 the Emperor, Valentinian III, ordered that 
 none should be given credence except a se- 
 lected committee of five. It is in order to say, 
 parenthetically, that this history justifies the 
 hope expressed at the beginning of the chap- 
 ter — that pride of opinion should be sunk un- 
 der the nobler weight of patriotic unselfish- 
 ness. Unselfish love of country is more potent 
 in bringing order out of disputation than an 
 imperial ukase. Thus it is seen that the ab- 
 sence of any accepted system of pleading and 
 procedure supplies a reason for the criticism 
 of the civil law, that the "machinery for car- 
 rying it into effect has been confounded with 
 the law itself," and that a constitutional prin- 
 ciple of the latter is the dogma, that whatever 
 pleases the prince has the force of law. There 
 was no such thing as an obiter dictum. We 
 may now with profit turn from this picture to 
 its obverse; from the sunset of juridical deca- 
 dence to the dawn of a new public spirit and 
 governmental life, policy and law. For all 
 the wealth of the world, the glory of im- 
 perial dynasty, can not be weighed in the bal- 
 ance against the life of liberty. 
 
SPIRIT OF THE COURTS 49 
 
 The common law of England found neither 
 its birth nor its maturity under the conditions 
 just described. Responding to a militant 
 English spirit then developing into the dig- 
 nity of organization and translated into a 
 Magna Charter, there is evidence of an appre- 
 ciation of liberty and impartial justice where- 
 in precedent unconditionally bound the suc- 
 cessor of each judge, providing no opportuni- 
 ty or excuse for a "personal ruling" or a pre- 
 pared case, as in the civil law. In this may be 
 found a reason for the unyielding and highly 
 technical character of the original common- 
 law procedure, which was as much the crea- 
 ture of dread as of reason. Apprehension as 
 to interference by the Crown or other influ- 
 ence drove England to the other extreme, and 
 so the day of the Praetor Urbanus was legally 
 over. The courts no more followed the per- 
 son of the King and the pleasure of the judge. 
 "There became a fixed rule of decision and a 
 stability and certainty of pleading and pro- 
 cedure," says Dr. Tyler, "which has ever 
 marked it down to this day." That procedure 
 suitable to the controversy, which had to be 
 strictly followed, was required to be used by 
 the pleader as a condition precedent to the 
 right of appearance in court and the probata 
 had to correspond with the allegata. It was 
 as immutable as the Twelve Tables of the 
 
50 SPIRIT OF THE COURTS 
 
 Roman Republic or the laws of the Medes 
 and Persians. A James II, with his Jeffries, 
 became an unfragrant and warning mem- 
 ory. Thus, in the fullness of time, pleading 
 and procedure became as nearlya fixed science 
 as it was possible to make it; became distinct 
 from the substantive law; stood as a complete 
 antithesis to the "personal" system in vogue 
 under the Romans, and a barrier between the 
 prince and the citizen, except through its or- 
 derly way. "The common law," Mr. Stephen 
 declares, "in broad contrast to the civil law, 
 has always wholly repudiated anything as au- 
 thority but the judgments of courts deliberate- 
 ly given in causes argued and decided. 'For,' 
 says Lord Coke, 'it is one amongst others of 
 the great honors of the common law that cases 
 of great difficulty are not adjudged or re- 
 solved in tenebris or sub silentio supressis ra- 
 tionibus, but in open court, and there upon 
 solemn and elaborate arguments.' " Historic 
 justification is felt in the declaration that the 
 law is meaningless when enforced without re- 
 gard to fixed rules of procedure and prece- 
 dent. It is worse than meaningless when left 
 to the pleasure or convenience of any man. 
 "The opinion of no lawyer," we are solemnly 
 informed, "has a place in the system of the 
 common law. And this wise principle is 
 never lost sight of by those bred in its spirit." 
 
SPIRIT OF THE COURTS 51 
 
 There is no better evidence of its justification 
 than the commentaries of Lord Coke, who 
 faithfully quoted precedents. In his Second 
 Institutes he criticises this weakness of the ori- 
 gin of the civil law "and its many diversities 
 of personal opinions" as being "like a sea full 
 of waves." Let us not abandon these great 
 guiding principles of the common law. There 
 is no need to be revolutionists in order to be 
 reformers. But it is necessary to modernize 
 and scientifically simplify. 
 
 "Nothing but the solemn voice of the law 
 itself," said Dr. Tyler, "speaking through its 
 constituted tribunals, is of any judicial author- 
 ity. And how august is that authority repos- 
 ing, as it does, upon the solemn decisions of 
 courts which have administered justice in the 
 very same halls for nearly eight hundred 
 years. In vain shall we search the history of 
 nations for a parallel to this state of law 
 amidst the fluctuating vicissitudes of empire. 
 It is this stability of law ruling over the pre- 
 rogative of the Crown and administering 
 equal justice to the high and the low, through 
 so many centuries, that vindicates the frame 
 and ordinary course of the common law to the 
 consideration of the present time. * * * 
 It has the great advantage of producing cer- 
 tainty in regard to all rights and obligations 
 which are regulated by law. But, above all. 
 
52 SPIRIT OF THE COURTS 
 
 it excludes private interpretations and controls 
 the arbitrary discretion of judges. In the com- 
 mon law the principles of interpretation are 
 fixed and certain. * « * The object of 
 judicial proceedings is to ascertain and decide 
 upon disputes between parties. In order to 
 do this it is indispensable that the point or 
 points be presented for decision. * * * " 
 
 Of the manifest protection against imperial- 
 istic tendencies and assaults upon civil liberty 
 he also said: "At the very time that the Tu- 
 dors and the Stuarts were grasping at high 
 prerogative the common law was maturing its 
 vigor in the courts. Coke, one of their judges, 
 did more to develop and organize it for pro- 
 tecting the individual against arbitrary power 
 than any man who has appeared in the prog- 
 ress of English society. In him the profes- 
 sional instinct of the common law had 
 reached its sublimest sense of human right. 
 He saw that the English Constitution drew 
 its whole life from the common law and was 
 but the framework of its living spirit. In all 
 the various revolutions, with their dark and 
 dreary scenes of bloodshed, through which 
 England has passed, the people have clung to 
 that ancient law with a devotion almost super- 
 stitious." Then the author brings this great 
 thought home to Americans, "When our fore- 
 fathers established governments in America 
 
SPIRIT OF THE COURTS 53 
 
 they laid their foundation on the common law. 
 When the United Colonies met in Congress in 
 1774 they claimed the common law of Eng- 
 land as a branch of those indubitable rights 
 and liberties to which the respective colonies 
 are entitled. And the common law, like a si- 
 lent Providence, is still the preserver of our 
 liberties." These great principles have been 
 preserved in all their vigor and enforced in 
 England through court-made rules for far 
 more than fifty years. Why not in America? 
 We may not hope ever to attain an ideal 
 pleading, for many ephemeral questions will 
 always vex. Therefore, let us deprecate the 
 attitude of unreasoning antipathy as much as 
 the weakness of sentimentalism as we enter 
 upon in this and other chapters the formal 
 consideration of an American scheme of pro- 
 cedure. 
 
 It will serve a useful preliminary purpose 
 to point out and briefly discuss the several 
 "systems" known to the English-speaking 
 world, viz : ( i ) the old common-law plead- 
 ing of England; (2) the English Common 
 Law Practice Act of 1873; (3) common-law 
 pleading as modified by statutes, and (4) 
 an arbitrary legislative codification of rules of 
 procedure bearing the pseudonym of "code 
 pleading." 
 
54 SPIRIT OF THE COURTS 
 
 John B. Minor, of the University of Vir- 
 ginia (4th Minor, 3rd Ed., p. 699) gives an 
 interesting history of the old common-law 
 pleading. It owes its development to the av- 
 arice of clerks. Said Mr. Minor: "It appears 
 from Glanvil(ii87) and from Bracton(i263) 
 that during the reigns of Henry II (from 
 1 154 to 1 189), of Richard I (from 1189 to 
 1 199), of John (from 1199 to 1216) and of 
 Henry III (from 12 16 to 1272) very little 
 order or science prevailed in the practice of 
 pleading. But in the time of Edward I 
 (1272 to 1307) there seems to have been a 
 sudden and marked advance. From a record 
 cited by Mr. Reeves of 21 Edward I (1293), 
 we find the narratio or declaration drawn with 
 form and precision, and liable to be excepted 
 to if deficient in either of those qualities (2 
 Reeves' Hist, of the Eng. Law, pp. 264, 266) ; 
 and the year-books of Edward II's time prove 
 not only that the fundamental principles of 
 pleading had become well established, but 
 that many of its more subtle and artificial 
 rules were beginning to be observed [St. PI. 
 (Tyler) Appendix xxxvi and C. N. 38]. And 
 the systems thenceforward continued to ad- 
 vance until the reigns of Henry VI (A. D. 
 1422 to 1461) and Edward IV (1461 to 1483), 
 when it was cultivated with such industry and 
 success as to raise it to a sudden perfection in 
 
SPIRIT OF THE COURTS 55 
 
 a few years" [3 Reeves' Hist. Eng. Law, 424]. 
 It was at this date that Littleton praised the 
 common-law procedure in his "Tenures," and 
 upon which Coke so favorably commented. 
 It is much doubted if they would have done so 
 at a later period. This is a distinction not 
 drawn by many thoughtful advocates of that 
 a:nachronism eventually inherited in America 
 through Mr. Stephens' second book, published 
 in 1828. Mr. Minor calls attention to the con- 
 flict between Reeves and Coke, the latter as- 
 signing its highest perfection to the reign of 
 Edward III (1327 to 1377), and quotes Sir 
 Matthew Hale in support [Hale's Hist. Com. 
 Law, 212]. "Coke said of Edward III," 
 quotes Mr. Minor, "that pleadings grew to 
 perfection without lameness and curiosity." 
 
 What follows should be memorized by every 
 common-law partizan. We are going to honor 
 these pages by permitting Virginia's great law 
 teacher and common-law scholar to set forth 
 in his own inimitable way how common-law 
 pleading lost its usefulness and became a 
 menace [lb., p. 680]. "And Lord Hale ob- 
 serves that, though pleadings in the time of 
 Henry VI, Edward IV and Henry VII (1422 
 to 1509) were far shorter than afterwards, 
 especially after Henry VIII (1509 to 1547), 
 yet they were much longer than in the time of 
 Edward III; and the pleaders, yea, and the 
 
56 SPIRIT OF THE COURTS 
 
 judges, too, became somewhat too curious 
 therein; so that art or dexterity of pleading, 
 which in its use, nature and design was only to 
 render the fact plain and intelligible and to 
 bring the matter to judgment with a conven- 
 ient certainty, began to degenerate from its 
 primitive simplicity and the true use and end 
 thereof and to become a piece of nicety and 
 curiosity [Hale's Hist. Co. Law, 212]. And 
 Lord Hale accounts for this needless length 
 and nicety, in part, by the fact that the plead- 
 ings were mostly drawn by clerks who were 
 paid in proportion to their length and, there- 
 fore, took care not to study brevity" [Hale's 
 Hist. Com. Law, 213]. 
 
 So astounding was the delay that it is not sur- 
 prising to find the dawn of the nineteenth cen- 
 tury ushering in a decided propaganda against 
 so outrageous an interference with and useless 
 tax upon justice which was the creature of the 
 avarice of clerks. It is logical that the trend 
 of the English mind should be away from con- 
 flicting legislation and unrelated regulations 
 and towards judicial science and correlated 
 rules. It is true to English traditional faith- 
 fulness to a cause and legislative apathy that 
 the people pursued an obstinate Parliament 
 for nigh on to half a century until a final, com- 
 plete and splendid victory was won. And yet 
 as we shall soon see, the English were merely 
 
SPIRIT OF THE COURTS 57 
 
 returning to their own first principles in set- 
 ting their Supreme Court free to make rules. 
 This great reform revolved around one man 
 until Lord Selborne took up the leadership, 
 and his biography is largely the history of 
 court rules in England. 
 
 Henry John Stephen, who has often been 
 mistakenly called the Apostle of Common-law 
 Practice, wrote his first book in 1824 as a sort 
 of explanation and apology for existing condi- 
 tions. The second edition followed in 1827. 
 "It was," said he, "intended for the use rather 
 of those who are exploring the principles than 
 of those who are engaged in the practice of 
 pleading." Yet this is the book now used as a 
 text in the common-law States. It was Mr. 
 Stephen's last attention to common-law prac- 
 tice for Parliament in 1828 made him a 
 member of a commission to reform procedure. 
 His report in 1833 in favor of court rules par- 
 tially became a law in 1834 [3 and 4 Will. IV, 
 ch. 42, 5, 3 J, and there followed the "Hilary 
 Rules" of that year. His next book, in 1835, 
 incorporated this change and the "Uniform 
 Process Act" of 1832 [2 Will. IV, ch. 39, S. I. 
 Jenks' Eng. Law, 350]. As the rule system 
 broadened under his guidance he wrote new 
 editions in 1838, 1843 and i860. Inasmuch 
 as the Acts of 1850 [13 and 14 Vic, ch. 16], 
 1852, 1854 ^"^ ^^^^ incorporated all others 
 
58 SPIRIT OF THE COURTS 
 
 and broadened them and continued in force 
 until 1873, when the Selborne "Judicature 
 Act" was passed, no other edition appeared 
 and, after that Act, none other was necessary. 
 This Act completely reorganized the courts 
 and took wholly from Parliament and vested 
 in the Supreme Court the power to regulate 
 the pleading and procedure of the nisi prius 
 courts, a brief explanation of which will soon 
 follow [Tyler's Pref. to Stephen]. 
 
 We said that in these things England was 
 but returning to first principles. It is known 
 that there were Chancery Orders as far back 
 as 1388, and Common Law Rules in 1457, and 
 these referred to still older rules apparently 
 lost. The oldest published King's Bench 
 Rules appear to be of 1604. The oldest Ex- 
 chequer Rules seem to date from 1571, issued 
 by the Lord of the Privy Seal. There were 
 other Exchequer orders, undated, published 
 in 1698 [Jenks, 189, 351]. While we shall 
 presently cite some practical contemporaneous 
 observations by Samuel Rosenbaum, Esq., of 
 the Philadelphia Bar, there is now given a 
 brief synopsis of the Selborne system [Acts 
 1873, Vol. 2, 2nd Ed. Enc. Law of Eng.]. 
 
 (i) Forms of action were abolished * * * 
 He is now allowed to state the facts on which 
 he relies, and the court will grant him the 
 remedy to which on these facts he is entitled. 
 
SPIRIT OF THE COURTS 59 
 
 (2) Each party must now state facts and 
 not conclusions of law. He was bound, be- 
 fore 1875, to set out with reasonable precision 
 the points which he intended to raise ; but this 
 he generally did by stating not the facts which 
 he meant to prove, but the conclusion of law 
 which he sought to draw from them. His op- 
 ponent thus learned that he desired to prove 
 some set of facts which would sustain a given 
 legal conclusion; but how he proposed to sus- 
 tain that legal conclusion was not disclosed. 
 For instance, there was a very common form 
 of declaration: "For money received by the 
 defendant to the use of the plaintiff." A claim 
 in that form might be established by some six 
 or seven entirely different sets of facts, and it 
 could not be ascertained from the plaintiff's 
 pleading which set of facts would be set up at 
 the trial to show that the particular money 
 claimed was received to the use of the plain- 
 tiff. Now the plaintiff must plead the facts 
 on which he proposes to rely. * * * 
 
 (3) "So, too, with the defense. 'The gen- 
 eral issue' is abolished. In an action for goods 
 sold and delivered the defendant was formerly 
 allowed to plead that he 'never was indebted 
 as alleged.' This is a conclusion of law, and 
 at the trial it was open to him to give in evi- 
 dence under this plea any one or more of sev- 
 eral totally different defenses, e. g., that he 
 
6o SPIRIT OF THE COURTS 
 
 never ordered goods; that they never were 
 delivered to him; that they were not of the 
 quality ordered; that they were sold on a 
 credit which had not expired at the time that 
 the action was commenced ; or that the statute 
 of frauds had not been complied with. Now 
 a mere denial of the debt is inadmissible. So 
 in an action for money received to the use of 
 the plaintiff, the defendant must either deny 
 the receipt of the money, or the existence of 
 those facts which are alleged to make such re- 
 ceipt to the use of the plaintiff. 
 
 "So in actions of tort, the defendant was 
 formerly allowed to plead 'the general issue' 
 'Not guilty.' Under that plea it was open to 
 him at the trial to raise several distinct de- 
 fenses. Thus the defendant in an action of 
 libel or slander by one short and convenient 
 plea of 'not guilty' simultaneously denied the 
 publication of the words complained of, de- 
 nied that he published them in the defamatory 
 sense imputed by the innuendo, or in any de- 
 famatory or actionable sense which the words 
 themselves imported asserted that the occasion 
 was privileged, and also denied that the 
 words were spoken of the plaintiff in the way 
 of his profession or trade, whenever they were 
 alleged to have been so spoken. But now this 
 compendium mode of pleading is abolished. 
 'Not guilty' can no longer be pleaded in a 
 
SPIRIT OF THE COURTS 6i 
 
 civil action. The defendant must deal spe- 
 cifically with every allegation of which he 
 does not admit the truth. 
 
 (4) "Demurrers were abolished. It is 
 true that either party is still allowed to place 
 on record an objection in point of law, which 
 is very similar to the former demurrer. But 
 there is this important difference. The party 
 demurring could formerly insist on having his 
 demurrer separately argued, which caused de- 
 lay. But now such points of law are argued 
 at the trial of the action. It is only by consent 
 of the parties or by order of the court or a 
 judge that the party objecting can have the 
 point set down for argument and disposed of 
 before the trial. And, as a rule, such an or- 
 der will only be made where the decision of 
 the point of law will practically render any 
 trial of the action unnecessary. 
 
 (5) "Pleas in abatement were abolished. 
 If either party desired to add or strike out a 
 party, he must apply by summons. No cause 
 or matter now 'shall be defeated by reason of 
 the misjoinder or non-joinder of parties.' 
 
 (6) "Payment into court was for the first 
 time allowed generally in all actions. 
 
 (8) "The right of set-off was reserved un- 
 changed ; but a very large power was given to 
 a defendant to counter-claim. He can raise 
 any kind of cross-claim against the plaintiff; 
 
62 SPIRIT OF THE COURTS 
 
 and in some cases even against the plaintiff 
 with others, subject only to the power of a 
 master or judge, to order the claim and cross- 
 claim to be tried separately if they cannot 
 conveniently be tried together. 
 
 (9) "The names of the principal plead- 
 ings were changed. A statement of claim 
 takes the place of the former declaration. In- 
 stead of pleas, the defendant now delivers a 
 defense, or it may be a defense and counter- 
 claim. The replication is now called a reply" 
 [pp. 161-2-3J. 
 
 Some States have taken the common-law 
 pleading as a basis and made statutory altera- 
 tions and additions, as did the State of Vir- 
 ginia, which is the third system. It is mani- 
 fest that any merit which this statutory modi- 
 fication scheme might possess is wholly neu- 
 tralized by the fallibility of political legisla- 
 tion and the absence of scientific judicial di- 
 rection, necessary to correlation. Its objec- 
 tions are much the same as those applying to 
 "Code Practice," which presents grounds for 
 double apprehension. Bereft absolutely of 
 principles, customs, forms, traditions and 
 precedents, we find it wholly dependent upon 
 legislative whim. With all due respect for 
 the many earnest, honest and well-equipped 
 men who compose those bodies, between want 
 of preparedness and indifference, there is 
 
SPIRIT OF THE COURTS 63 
 
 much to be feared. Among other things, is 
 the power aggravated by the habit of legisla- 
 tive change. We have endeavored and will 
 further show, by what history has written, 
 that there is a great deal more in pleading 
 than mere form, and that it is the first agency 
 of government attacked by the enemies of lib- 
 erty. A suspended habeas corpus is the wind- 
 ing sheet of civil liberty. The power that 
 controls the pleading and procedure of the 
 courts is responsible for the spirit of liberty of 
 a country and the appreciation of equal op- 
 portunity. Therefore, pleading and proced- 
 ure ought to be a science beyond the limita- 
 tions of the average legislator. 
 
 Let us analyze these principles in the light 
 of history. Wherever groups of men have 
 their homes in the world there must be some 
 restraint, for law is inherent in society. It is 
 the manner of the application of that re- 
 straint, and not the restraint itself, with which 
 we are now concerned. There are three meth- 
 ods, the respective elements of which are 
 reason, duress and superstition. They trans- 
 late the spirit of organized society in its high- 
 est and its lowest conception of citizenship, 
 wherein may be observed a national as well as 
 individual character. The administration of 
 law through reason denotes equality and a de- 
 veloped sense of justice under the guidance of 
 
64 SPIRIT OF THE COURTS 
 
 a high order of intelligence. Duress connotes 
 subjection to a recognized power over a weak- 
 ened will and the absence of individual ini- 
 tiative and importance. Superstition attributes 
 unintelligible power to certain human and 
 natural agencies and reflects unreasoning 
 dread of the supernatural. There is no con- 
 ception of citizenship and no measure of 
 either personal right or duty. The processes 
 of administering law under the three classes 
 dififer as widely as the character of the people 
 concerned and improve in definite proportion 
 to their spiritual and mental advancement. 
 
 The governmental restraint of reason, por- 
 trayed in the modern judgment, translates the 
 mature wisdom of the judge based upon facts 
 deduced within the limitations of a mandatory 
 record in the light of an appropriate body of 
 law, composed of statutes and accepted prece- 
 dents. In this program there is reflected the 
 application of trained intellects, the intelli- 
 gence of an advanced civilization and the in- 
 dividual restraint of patriotism and self- 
 respect. The degree of necessary submission 
 is but an unselfish, patriotic, voluntary surren- 
 der of certain personal rights in the interest of 
 the general welfare. It is a practical applica- 
 tion of the elements of religion. A transgres- 
 sion of this principle is the exception that 
 marks the criminal in society. The "Themis- 
 
SPIRIT OF THE COURTS 65 
 
 tes" of the Greeks, founded upon the super- 
 stition of the primitive condition of mankind 
 in the infancy of the race that they were "di- 
 vinely dictated to the King" are not wholly 
 extinct [The Iliad; Maine, Ancient Law, 8]. 
 This is restraint through superstition, a condi- 
 tion precedent to which is ignorance of po- 
 litical science or the absence of a sense of self- 
 esteem and equal opportunity. Mr. Maine 
 said: "It is, of course, extremely difficult for 
 us to realize a view so far removed from us in 
 point both of time and association, but it will 
 become more credible when we dwell more at 
 length on the constitution of ancient society in 
 which every man, living during the greater 
 part of his life under the patriarchal despot- 
 ism, was practically controlled in all his ac- 
 tions by a regimen not of law but of caprice." 
 This Homeric period of heroic kingship de- 
 pended as much upon "the possession of super- 
 eminent strength, courage and wisdom" in the 
 King as upon the superstition of "divinely 
 given prerogative" [Maine, p. 9]. So long 
 as the co-ordination continued, the dynasty 
 lasted. "Gradually," said Mr. Maine, citing 
 Grote, whose "History" antedated his own 
 work by a few years, "as the impression of the 
 monarch's sacredness became weakened, and 
 feeble members occurred in the series of he- 
 reditary kings, the royal power decayed, and 
 
66 SPIRIT OF THE COURTS 
 
 at last gave way to the dominion of "aristoc- 
 racies." Homer repeatedly describes these 
 "oligarchies," and they present nothing un- 
 natural. In the presence of that vast volume 
 of enforced ignorance and spiritual lethargy 
 the few favored with educational advantages 
 and possessing the faculty of initiative reason- 
 ing obviously cohered in the effort to perpetu- 
 ate some form of government in self-interest. 
 Homer speaks of a "Council of Chiefs." But 
 it was a response to awakening reason that 
 these were, in the course of time, joined by 
 others who ascended by sheer force of char- 
 acter from the proletariat. Thus generations 
 of gradually subsiding internecine strife, offi- 
 cial oppression and dishonesty marked the 
 sure advance of an awakened but slowly de- 
 veloping spirit of real manhood. Eventually 
 right and not might or mystery or supersti- 
 tion, became the measure of civil liberty and 
 of property rights, which is the living spirit of 
 the courts. The philosophical student will 
 not be unmindful that there was always gov- 
 ernment, but there was no human advance- 
 ment, no equal opportunity and no spiritual 
 development until a new order of things ush- 
 ered in strong, independent courts. So it is 
 seen that in the judicature of superstition as 
 in the judicature of duress there was no ad- 
 
SPIRIT OF THE COURTS 67 
 
 jective law and the pleasure of the prince was 
 the law of the land. 
 
 This was the earliest notion of jural concep- 
 tion in primitive man under a social compact 
 such as existed in Homeric Greece. A satis- 
 fying description of the evolution from the 
 age of the heroic kings to the England of the 
 first half of the nineteenth century may be 
 found in Grote's History [Pt. 2, ch. 9] and 
 Maine's Ancient Law (pp. 9-12). Contem- 
 poraneous with the advance of civilization 
 and the restraint of reason was an apprecia- 
 tion of the science of adjective law as a dis- 
 tinct element. That is the purpose of briefly 
 referring to history, and particularly to the 
 Iliad. It served a purpose to set in opposition 
 the judicature of England and America to 
 that of Homeric Greece. Indeed, may there 
 not be deduced an explanation of Russia's dif- 
 ficulties following the deposing of her Czar. 
 While restraining those indiscreet passions 
 that have ever cursed all society, and are now 
 sorely aggravated in Russia, it is well to bear 
 in mind that a resurrected proletariat, yet dead 
 to the transcendent spirit of the courts, calls for 
 gentle patience of the philanthropist instead of 
 the cruel steel of the executioner. It is the trai- 
 tor only that should receive harsh treatment. 
 Lest the new citizenship despair, let their eyes, 
 by way of contrast, be first turned upon the 
 
68 SPIRIT OF THE COURTS 
 
 English of James II and then upon that 
 noble race of today. Let them consider 
 Thackeray's post-Cromwellian period and 
 Milton's satire of her Bar, for then they may 
 cheerfully and hopefuly dwell upon a man- 
 hood developed and ripened by the spirit of 
 the courts wherein matured the common law 
 and the one great nation without a code. If 
 Englishmen are typically a race of deliberate 
 thinkers instead of scintillating wits, they do 
 justice to the national notion of jural concep- 
 tion and a profound body of law that enables 
 liberty to enlighten the world. It is founded 
 in reason, wisdom and social necessity and 
 upon a recognized self-esteem and not upon 
 legislative fecundity. National and individ- 
 ual retrogression in these sacred elements is 
 always coexistent with Homer's "Heroic 
 Kingship." Modernity is just now witnessing 
 its most exaggerated national type from which 
 a thoughtful German people will eventually 
 be freed. 
 
SPIRIT OF THE COURTS 69 
 
 CHAPTER IV. 
 
 The Relation of Judicial Procedure to 
 Government. 
 
 If judicial procedure has been the cause of 
 more discussion and dissension and is prolific 
 of more dissatisfaction in governmental rela- 
 tions than any other one subject except re- 
 ligion, it is because it is the most vital and 
 least understood and appreciated, as we have 
 endeavored to show. Some sound lawyers fail 
 to distinguish between the substantive and the 
 adjective law, as it were, between the contents 
 of the reservoir and the pipes through which 
 it is conveyed to the people. History is silent 
 regarding the procedure in the trial of Cain, 
 but in Ecclesiastes (8-1 1) there is most faith- 
 fully commemorated the protest of the ancient 
 Hebrews: "Because sentence against evil work 
 is not executed speedily, therefore the heart of 
 the sons of men is fully set in them to do evil." 
 The Medes and Persians appear to have made 
 it a little unfortunate for one to question the 
 immutability of their laws, and so did the ad- 
 ministrators of the Roman Republic with its 
 Twelve Tables. In them we are not interested, 
 however, since their governmental policies 
 would hardly be welcomed by the ideal Amer- 
 
70 SPIRIT OF THE COURTS 
 
 ican Republic. But the habit was again ac- 
 quired under the Caesars, and grew in profu- 
 sion and boldness until the days of the Emper- 
 or Valentinian III, who, as has been stated, 
 ordered that the opinions of no one should be 
 considered except those of five citizens named 
 by himself. The great Justinian Code will 
 forever be the distinguishing feature of the 
 first half of the sixth century of the Christian 
 era. Napoleon boasted that when his famous 
 battles were forgotten his Code would per- 
 petuate his memory. Wars are temporary, 
 but judicial procedure is like the poor and 
 touches all elements of society. Associated 
 with English law and procedure are the im- 
 mortal inns of court, organized for its study 
 and consideration. They might profitably 
 prove an inspiration to the young American. 
 When Lord Selborne and his associates 
 perfected for England her present model sys- 
 tem of practice, there ended eight centuries of 
 controversy and a new era of judicature was 
 born to the world. The struggle, at last, 
 seems to be over. There is not now, nor was 
 there ever a system to compare with it in 
 form or result. He did not, like Moses, seem 
 to have found it; nor, like Mr. Field, to have 
 invented a system. It is an evolution of the 
 great common law of England modified to 
 suit the times, and is the result of the mature 
 
SPIRIT OF THE COURTS 71 
 
 reason and experience of centuries. Parlia- 
 ment promptly sanctioned it and the Supreme 
 Court of Judicature put it into effect with all 
 necessary rules of practice. Some day Con- 
 gress will put its political ear to the ground, 
 stop its patchwork policy and follow a good 
 example. A waning of popular confidence 
 must be strengthened, and there is no better 
 way offered. 
 
 The psychology of the situation may be 
 helpful, if not interesting. Since judicial pro- 
 cedure is dealt with by specialists, the view of 
 it is naturally personal. Unlike the substan- 
 tive law, where men differ in groups and even 
 in political parties, almost every thoughtful 
 lawyer has an inchoate, individual idea grad- 
 ually progressing into a plan which in the 
 fullness of time will be offered as a remedy. 
 Therein they do not materially differ from 
 men suffering from physical ailments. Most 
 every thoughtful lawyer admits that proce- 
 dure is unnecessarily cumbersome and expen- 
 sive and devoid of science and correlation; 
 that reform and uniformity is needed an 
 must be brought about. Much of one's time 
 is lost in wondering why it is not done. One 
 reason, I venture to say, has been given. The 
 situation of the lawyers at present is very 
 much like that of a group of workmen who 
 dug into a swarm of hornets — it is every man 
 
72 SPIRIT OF THE COURTS 
 
 for himself and the devil take the work. 
 Lawyers are too busy avoiding the sting of 
 technicalities of pleading to obliterate the 
 source of the evil, for some time must be given 
 to the study of substantive law. The first 
 thing in mind upon entering a case is the 
 pleading and procedure, and it is also the last, 
 without any intermission in the meantime. 
 Practically it is like crossing an out-of-date 
 bridge in bad repair and with patched deck- 
 ing. The burden-bearer must minimize his 
 load in order to apply his energy to getting 
 over the pitfalls in the defective way. His 
 skill, strength and speed serve him and his 
 employer little purpose. The bridge ought to 
 be destroyed and a modern, complete viaduct 
 erected, suitable to the times and the traffic. 
 In all of which it is meant to imply that the 
 State is recalcitrant in one of its most sacred 
 duties in not leaving the entire matter to the 
 Supreme Court, whose conclusion would be 
 accepted by citizens, lawyers, legislators and 
 judges. 
 
 Where does the blame lie? The great Chief 
 Justice himself could not make satisfactory 
 progress under present judicial procedure. 
 Lawyers and legislatures and Congress and 
 commerce and society must take the beam out 
 of their own eye before their criticism of the 
 courts can be equitably heard. As a lawyer, I 
 
SPIRIT OF THE COURTS 73 
 
 lay the chief blame at the door of the profes- 
 sion. Once accustomed to a system, to law- 
 yers it becomes a fetish. Their answers to the 
 call of reform were: "We are accustomed to 
 the system in vogue," or "we can't agree on 
 one," or "Congress cannot trust the Supreme 
 Court." And we keep on patching. I chal- 
 lenge the legal fraternity to bring up from 
 the bottom of their hearts a different answer 
 and to deny that the responsibility is theirs. 
 Eight years ago I ventured to say that com- 
 merce and society, in necessary ignorance of 
 what to do, were growing restless and impa- 
 tient:, and unless there be relief, and speedy 
 relief, it portended evil. It came in the shape 
 of the recall of judges and judicial decisions, 
 also other expediences. By his works, a law- 
 yer should evidence a keen perception of his 
 duty as an officer of the court and so partici- 
 pate in its machinery as to nurture that public 
 confidence necessary to the usefulness of the 
 courts. The prediction made at the same time 
 that commerce and society would rush to their 
 support if they would raise a standard and 
 unite under it has been fully vindicated. The 
 loyalty of the great mass of the people, once 
 convinced of the good intentions of govern- 
 ment, is the most indestructible, comfort- 
 ing and dependable thing next to religion. 
 I had rather possess the abiding faith of a peo- 
 
74 SPIRIT OF THE COURTS 
 
 pie than all the wealth of Rockefeller and 
 Morgan. But if the lawyers do not agree and 
 lead the way, how can Congress and the peo- 
 ple be expected to follow and the State per- 
 form its duty? When that sentiment becomes 
 a fixed conviction in the hearts of lawyers the 
 Republic will be safe. There are certain du- 
 ties to society that none but lawyers can per- 
 form. This thought is developed in another 
 chapter. 
 
 Tried and proved honesty has become to be 
 the greatest political asset in the United 
 States. This exception to what ought to be a 
 rule does not reflect a healthful state of the 
 public mind. Restlessness is running away 
 with better judgment. Courts draw their 
 power and have their being in the faith and 
 confidence of men and not by virtue of consti- 
 tutions and statutes. Judicial procedure is 
 made possible by the trinity of respect, faith 
 and obedience. Weaken any one of them, and 
 their usefulness is impaired. Totally destroy 
 any one of them and the Republic will fall. 
 Of the trinity of which the Federal govern- 
 ment is composed, the administrative and leg- 
 islative functions could not survive without the 
 judicial. With faith in the judiciary, the other 
 two can create but temporary apprehension. 
 How hopefully do we turn to the courts as a 
 city of refuge from all evil. And it is our last 
 hope. 
 
SPIRIT OF THE COURTS 75 
 
 An outspoken impatience if not severe con- 
 demnation, then, is well justified in the con- 
 templation of efforts to undermine popular 
 faith and trust in the courts, and the Federal 
 Supreme Court in particular. The founders 
 of the government placed the Supreme Court 
 beyond the influence of its tw^o co-ordinate 
 branches. Under the Federal plan it is the 
 burden-bearer, for it is the guardian of the 
 Constitution of the United States, their trea- 
 ties and their lav^^s. Congress can enact and 
 the Chief Executive may approve, but the act 
 must square with the Constitution that the 
 court must read into it. The law, therefore, 
 is found in the decisions, and it is thereby 
 made certain, permanent and uniform — a fix- 
 ture resting upon eternal principle. The 
 very structure of interstate relations is the evo- 
 lution of wise judicial decisions and not stat- 
 utes. It is the foundation of the reputation 
 of John Marshall. And I make bold again 
 to predict that the interpretations of a new 
 interstate industrial era are going to prove the 
 foundation of other great judicial reputations. 
 The country is moving on behind its faithful 
 guardian, and it is moving on in the middle 
 of the road laid out for it by its founders. 
 Times and the manner of doing things may 
 change, but principles live forever. That is 
 the secret of the strength of this Republic. 
 
76 SPIRIT OF THE COURTS 
 
 No storm can sway it from its course, for there 
 is a resolute pilot at the helm. The Supreme 
 Court nurtured the nation in its infancy, 
 trained it in its youth and is now guiding it in 
 the straight and narrow way, in its maturity. 
 It has been to the nation a pillar of fire by 
 night. It has guided destructive revolution- 
 ary doctrines into beneficial evolutions. The 
 violence of anarchy and the persuasiveness of 
 the demagogue have fitted themselves into the 
 constitutional mold. The oppression of con- 
 centrated power and the chicanery of corrupt 
 organization have ceased to trouble and alarm 
 at its simple word. It is the final arbiter be- 
 tween man and his brother, the state and the 
 church, the citizen and the soldier, and even 
 between Congress and the Chief Executive 
 himself. Who will measure the debt of the 
 country to its highest court? And, as has been 
 said in another place, there abides in the peo- 
 ple of this country a sublime faith in their 
 highest tribunal and in most all of their courts 
 that makes of submission the noblest attribute 
 of national character. This faith is the cor- 
 nerstone upon which rests the very existence 
 of the Republic. It is as beautiful as filial 
 bondage and stronger than the duress of arms. 
 Believing these things, is there a more patri- 
 otic duty in the noble profession of the law 
 than the profound obligation to encourage, 
 
SPIRIT OF THE COURTS ^-j 
 
 foster and make justifiable that faith in the 
 judiciary of this country that is the very 
 breath of its life? With that thought, let us 
 take an intimate view of some features of the 
 courts as a machine for administering the law. 
 Witness some rules of conduct that Congress 
 has thought necessary in order to hedge about 
 and regulate the conscience and discretion of 
 the Federal judges whose appointments the 
 Senate has approved. And much of the Fed- 
 eral practice, as we have shown, may now be 
 regulated by the individual judge. Under one 
 statute [29 Stat, at L., 184] it is solemnly pro- 
 vided that "no marshal or deputy marshal, 
 attorney or assistant district attorney, jury 
 commissioner, clerk of marshal; no bailiff, 
 crier, juror, janitor of building, nor any civil 
 or military employee of the government and 
 no clerk or employee of any United States 
 justice or judge shall be appointed United 
 States commissioner or receiver of the court." 
 But the amazing precaution is [Sec. 7 of 25 
 Stat, at L., 437] "that no person related to any 
 justice or judge of any court of the United 
 States by affinity or consanguinity within the 
 degree of first cousin shall hereafter be ap- 
 pointed by such court or judge to, or em- 
 ployed by such court or judge in any office 
 or duty in any court of which such justice or 
 judge may be a member." 
 
78 SPIRIT OF THE COURTS 
 
 What sort of a commentary is this upon the 
 personnel of the Federal judiciary? What 
 story will it justify to the future historian who 
 will judge a twentieth-century sense of ethics by 
 its prohibitory statutes? Are there many, or 
 just two or three men whose sense of duty 
 needs to be statutory? How did they become 
 judges and how do they remain on the bench? 
 For the sake of the respect the bar bears to the 
 great men who honor the bench in the highest 
 and purest service to their country, let these 
 malefactors, if any there be, be swept from the 
 bench they dishonor and these statutes erased 
 from the memory of the men they insult. A 
 judge who has to be legislated into a proper 
 selection of receivers, or any other official or 
 personal act, is unfit to appoint custodians to 
 administer the assets of litigants or to fix their 
 compensation. Such a man would do indi- 
 rectly what he is forbidden to do directly. 
 Statutes do not make morals. A judge ought 
 to and must be like Caesar's wife. If Congress 
 has no faith in its own creatures, by what 
 course of reasoning does it reach the conclu- 
 sion that the people will have any? A statu- 
 tory guardianship is the very antithesis of high 
 ethical standards and is suggestive of a sus- 
 picion that has no place in jurisprudence. 
 Life tenure is to be as much approved as the 
 "recall" is to be disapproved, but there ought 
 
SPIRIT OF THE COURTS 79 
 
 to be a simpler, cheaper, more direct and more 
 certain way of preferring and answering 
 charges concerning judicial conduct, that the 
 tenure of improper persons may be speedily, 
 even abruptly ended. Impeachment should 
 be made to fit the crime instead of being the 
 plaything of politics, and it should not be the 
 only way of bringing a life-tenure judge to 
 judgment, as was suggested in the first chap- 
 ter. 
 
 A cause for dismissal from the Army and 
 Navy is "conduct unbecoming an officer and 
 a gentleman." Upon the slightest suspicion 
 an officer does not wait for a trial, but calls 
 for a "court of inquiry." Would that a judge 
 could do the same. It was suggested that a 
 tribunal and procedure be provided for the 
 informal trial of complaints and charges 
 against judges, the prototype of which may be 
 found in military law. Before a court such as 
 was suggested in the first chapter there could 
 be defined and considered the trinity of evils — 
 corruption, ignorance and subserviency — for 
 conduct could be analyzed and motives ex- 
 posed. Such a tribunal, while it could not 
 impeach, the people would trust, and would 
 be all-sufficient, because the judge is brought 
 within their reach. The chances are that such 
 a Federal plan would be adopted by the States 
 when its merit was once evidenced. It would 
 
Ho SPIRIT OF THE COURTS 
 
 do more towards elevating and maintaining 
 judicial and legal standards and reviving the 
 necessary spontaneous popular admiration 
 and respect for the courts than any other pos- 
 sible precaution that could be taken. The 
 evil sought to be prevented lies too deep to be 
 reached by a statute or a Congressional trial. 
 The heroic remedy of turning on the local 
 light is necessary. It would do more than 
 any other agency towards subduing the de- 
 mand for the dangerous expediency of the 
 "recall of judges." This demand can nearly 
 always be traced directly to some improper 
 personal judicial conduct that could not be 
 or has not been reached by impeachment. The 
 present attitude seems to be that, if the ma- 
 chinery of the law will not allow us to reach 
 a judge, then we will fix it so he can be 
 mobbed. Congress, by refusing to impeach in 
 proper cases, sowed the wind and is now reap- 
 ing the whirlwind. More prevention and less 
 cure is needed. Dissatisfaction with judges 
 is not the outgrowth of honest decisions or big 
 matters, because the average man is a good 
 loser when he has had a fair chance, but it is 
 on account of the aggregation of little things 
 of which the press never hears and under 
 which the sufferer chafes in helpless impo- 
 tency. And it should be remembered that the 
 people only see results, not being familiar 
 
SPIRIT OF THE COURTS 8i 
 
 with the science of court procedure. They do 
 not understand that the means used are con- 
 trary to both morals and ethics and are se- 
 cretly despised by an outraged but helpless 
 bar, and so they condemn all judicial proced- 
 ure, judges and lawyers. Once it is known 
 that there is a tribunal before which 
 both complaints and charges may be pre- 
 ferred, the matter will become personal to 
 and at the command of every citizen and law- 
 yer as well, upon properly authenticated 
 charges presented through the Supreme Court. 
 It is repeated that this is believed to be the 
 one thing that will defeat the sporadic demand 
 for the dangerous expediency of the recall of 
 judges. 
 
 If these Federal statutes, creating statu- 
 tory ethics and morals, mean anything it is 
 an absence of a proper selection of the per- 
 sonnel, for which reason we have been led to 
 suggest in another place a more efficacious 
 mode of selecting Federal judges. It will be 
 helpful to remember that England may trace 
 the elements of her greatness in her Magna 
 Charta. "The courts no longer followed the 
 person of the King; but they were held in cer- 
 tain places." No judge could be appointed 
 "excepting such as knew the laws of the land 
 and were well disposed to observe them." 
 Since then, in the courts lay her power; in 
 
82 SPIRIT OF THE COURTS 
 
 reverence she found her strength, and the 
 people their contentment and happiness. The 
 people were required to fit the law, and not 
 the law the people. 
 
SPIRIT OF THE COURTS 83 
 
 CHAPTER V. 
 
 The Relation of Commerce to the Courts 
 — Its Call to Service. 
 
 We have been considering the relation of 
 judicial procedure to the government, to the 
 judge and to the people. Let us now observe 
 its meaning to the commercial lawyer by way 
 of a special appeal to that influential branch 
 of the profession. No group of men are so 
 peculiarly fitted by nature, environment and 
 daily professional activity to understand and 
 to appreciate the need of a court procedure 
 that aids instead of obstructing the course of 
 justice as are commercial lawyers. No set of 
 men could personally feel so acutely as do 
 their clients the disappointing thrust of the 
 keen blade of subtlety into the vitals of jus- 
 tice. Montesquieu's practical idea of distinct 
 commercial courts has been advocated in this 
 book. Many lawyers have patiently prepared 
 themselves for the specialty of commercial law, 
 but their usefulness is limited by the machin- 
 ery of the court, wherein the metaphor of the 
 soldier can be made to serve a useful purpose. 
 What matter the perfection of ammunition 
 and the accuracy of aim if his rifle be rusted, 
 its sight obscured by cobwebs and the sol- 
 
84 SPIRIT OF THE COURTS 
 
 dier sunken to his nose in the scrap heap of 
 the refuse of antiquity and the playthings of 
 legislatures and Congress? Indeed, what does 
 a lawyer's equipment and resourcefulness 
 profit him or his client if his limitations are 
 prescribed by Congress and the legislatures? 
 
 This practical analogy is presented as being 
 illustrative of the effect of the present legisla- 
 tive policy towards judges and lawyers. And 
 it is useful to say at this juncture that judges 
 and lawyers stand or fall together. Their 
 destiny and standard is the same. This would 
 be, though judges were not selected from the 
 ranks of the lawyers. It is inherent in the 
 scheme of judicature. Their history is insep- 
 arable. When they co-operate and co-ordi- 
 nate, success follows; when they are unsympa- 
 thetic or are interfered with by outside agen- 
 cies there is mediocrity or failure. Yet, as 
 has been shown, Congress and almost all the 
 legislatures have been leading the judiciary 
 department about by the hand, if, indeed, it 
 has not put it back into swaddling clothes. Its 
 baleful influence has discouraged many 
 thoughtful men. It may well be emphasized 
 that there inheres in the courts the power of 
 self-preservation, and that the conduct and 
 advancement of the detail machinery is a vital 
 element. It is common sense and not political 
 science, and that is the paramount thought 
 
SPIRIT OF THE COURTS 85 
 
 of this chapter. True it is that it required 
 legislation to create the courts and to define 
 their authority and jurisdiction, because of the 
 inconvenience of such detail in a constitution, 
 but it is inconceivable that either the Con- 
 gress or the Chief Executive should retain a 
 hold of any kind upon them or exercise any 
 power over the manner in which they must 
 go about the performance of their sacred func- 
 tions. That, in a sentence, is the trouble. 
 Upon it the two great political parties of to- 
 day agree, and it has recently been an intense 
 gratification to see their respective leaders and 
 spokesmen stand side by side before the Com- 
 mittee on Judiciary of the House of Rep- 
 resentatives in advocacy of the plan to which 
 this book is dedicated. 
 
 These principles may be practically illus- 
 trated. A board of directors of a corporation 
 might as well supply a railroad, a locomotive 
 and a schedule, and then try to tell the engi- 
 neer how to operate his big machine over the 
 line. It is not meant that they will occupy 
 the cab with him, but that a system of iron- 
 bound instructions will be supplied him. 
 There is not a legislator but what would call 
 that very silly, if not criminal. Deprived of 
 all sense of responsiblity, unable to exercise 
 any discretion or judgment, the driver's only 
 power and duty would be to follow the rigid 
 
86 SPIRIT OF THE COURTS 
 
 rules, to pull a lever here or to open a valve 
 there. Although he observes the train leav- 
 ing the track or the locomotive ready to ex- 
 plode, he must follow the impractical rules of 
 the board of directors. It follovi^s that his 
 passengers would charge him with being an 
 idiot or a criminal, and few would inquire to 
 find the real seat of the trouble. 
 
 Let that metaphor sink deep into your minds, 
 and then let it be carried a little further. One 
 will not be unmindful that these regulations 
 were prepared for the operation of the tiny lo- 
 comotives of more than half a century ago, be- 
 fore this country had the faintest conception of 
 the giant in commerce it has become and when 
 it was not of a mind to appreciate or under- 
 stand the close relations that now weld the 
 States into one commercial whole. The legis- 
 lative amendments engrafted upon these regu- 
 lations and instructions confound instead of 
 clarify. It is a serious thing to say, but it is a 
 manifest fact that nothing but the personality 
 of individuals — enough judges and lawyers 
 possessing the people's confidence — has 
 saved the American bench and bar. There 
 have been enough big, strong and pure men 
 connected with American jurisprudence to re- 
 tain the respect of the people in spite of the 
 patent defects in procedure and the waste of 
 assets of litigants in prodigal hands, officially 
 
SPIRIT OF THE COURTS 87 
 
 condemned by former President Taft. Lest 
 there remain a lingering doubt, let there be 
 quoted the words of that great conservative, 
 Hon. Elihu Root, fully endorsed by Judge 
 Alton B. Parker, who was standing by him at 
 the time. Said he: 
 
 "When we make a statutory right the judges have got to ob- 
 serve it just as much as they have the original right founded 
 on common justice. If they ignore it, there is a reversal, and 
 so the man who has but little means to employ lawyers, the man 
 who has but little time to take from earning his livelihood be- 
 comes discouraged and sometimes ruined, and the men who have 
 abundant means to employ lawyers can secure immunity against 
 being brought to justice upon the demands of the poorer and 
 humbler litigants. A race of acute, adroit code lawyers has 
 grown up. You will find men in any of the great States where 
 this system prevails, where the legislature has been interfering 
 with the practice, who will undertake for reasonable compensa- 
 tion to delay any case indefinitely; and as a rule they can do it. 
 The reason is that our legislatures have built up a great system 
 of technical procedure, creating statutory rights, which prevent 
 the courts from doing justice." 
 
 But let us go a little deeper than the super- 
 ficial troubles of inconvenience and expense, 
 for they are but symptoms of the disease. We 
 are a thinking people, a reading people and 
 a philosophical people. It is indelibly writ- 
 ten upon the pages of history, as has already 
 been briefly shown, that interference with the 
 judiciary, or a mingling of the three govern- 
 mental divisions, spells governmental ineffi- 
 ciency. It promotes a lively dissatisfaction 
 that manifests itself among the people in no 
 fixed way because of the deep-rooted nature 
 
88 SPIRIT OF THE COURTS 
 
 of the trouble. Let history take us back to 
 the day of James II, when England was strug- 
 gling with her infant jurisprudence; when 
 Parliament was prorogued at the pleasure of 
 the King and a specially appointed judge in- 
 terpreted the law and made possible a Jeffries. 
 It will be remembered that it was James II 
 who declared that "I am determined to have 
 twelve lawyers for judges who will be all of 
 my mind to this matter." That is an example 
 of the recall of judges and judicial decisions 
 that it is well to bear in mind. And when 
 one looks about and sees a respectable citizen 
 in the person of ex-President Roosevelt, with 
 a respectable following, threatening to over- 
 throw all judges whose opinions are not to his 
 liking, one finds justification in believing that 
 we have barely escaped a James II in free 
 America. The "bloody assizes" connoted an 
 inherent love of constituted authority, a dis- 
 tinguishing feature of the Anglo-Saxon peo- 
 ple manifesting itself in those semi-barbaric 
 days. The people resented interference with 
 the fixed program of government, that Ameri- 
 cans call the Constitution, to which they had 
 agreed to become subject, and they fought for 
 the integrity of the three divisions of govern- 
 ment. That a departure from it in this coun- 
 try has already weakened the influence and 
 standing of the courts and lawyers is evi- 
 
SPIRIT OF THE COURTS 89 
 
 denced by an undefined restlessness and by a 
 system of court procedure that is the curse of 
 commerce and the jest of the civilized world. 
 Attention has already been directed to the 
 superstition of the primitive days of the he- 
 roic kings of Homeric Greece and the tyranny 
 made possible by an inadequate civil law pro- 
 cedure. Our civilization boasts of having ad- 
 vanced from these abuses. Is this advance 
 due to a perfected judicature or to the high 
 sense of ethics and morals with which Amer- 
 ica started? Let us stop and think ! 
 
 Unquestioned American symptoms of deca- 
 dence are the subsidence of the patriotic 
 spirit of submission reflected in the recall of 
 judges and of judicial decisions and the erec- 
 tion by business men of private arbitration 
 commissions and "trades courts" as necessary 
 substitutes. Unquestioned results are a dis- 
 similarity of the procedure of the courts; the 
 lack of uniformity in decision in the interpre- 
 tation of the same statute; an absence of co- 
 ordination between the bench and bar and the 
 presence of a critical attitude between them; 
 unnecessary expense and delay in litigation; 
 a technical, subtle procedure and practice in 
 the courts that serves to confuse rather than to 
 clarify the issue to be tried; a truculent and 
 vain but growing tendency to lay more em- 
 phasis upon the pleading and procedure than 
 
90 SPIRIT OF THE COURTS 
 
 upon the issue joined; and the legislative 
 elimination of the lawyer and judge almost 
 entirely in the preparation and improvement 
 of court procedure. It is repeated that the 
 courts that were established for the use of 
 commerce and society have become the fenc- 
 ing schools of highly trained pleaders. The 
 business man pays the expense and departs in 
 bewilderment, disappointment and disgust. 
 Americans are standing exactly in the shoes 
 of the Englishmen of 1820, as we have his- 
 torically shown. Where is the boasted oride 
 of advancement and the dynamic American 
 spirit? It is not doing its duty to the courts 
 and must soon reap the inevitable harvest. 
 The most difficult duty any lawyer ever has, 
 therefore, is to explain this status to his client, 
 which is one of the main objects of this book. 
 These things are mute witnesses supporting 
 the allegation that Congress and the legisla- 
 tures have made a serious mistake in their 
 policy of tying the hands of the Supreme 
 Court, and that the time for a new order of 
 things has arrived. 
 
 But let us consider further the practical 
 side to this question. What of the clients — 
 that prosaic multitude of men who go directly 
 at things, who despise technicality and expect 
 results and who make up the personnel of 
 commerce. Their ideal of justice is the blind 
 
SPIRIT OF THE COURTS 91 
 
 goddess holding in her hand the brightly bur- 
 nished and perfectly balanced scales, instead 
 of the rusted and patched instrument thrown 
 into the scrap heap by England much more 
 than half a century ago ; or, else, the stiff and 
 clumsy invention of Judge Field, introduced 
 clumsy invention of Mr. Field, and introduced 
 into New York in 1848, altered and tampered 
 of a curse than an adjunct of jurisprudence. 
 If one were asked to furnish an explanation 
 to indignant and mystified clients for delay, 
 expense and uncertainty, a sculptor would be 
 engaged as one best prepared. The blind and 
 benign goddess transformed into an amazed 
 and indignant woman holding in one hand her 
 blindfold and in the other, upon which she 
 gazes in contempt, the web-covered, rust- 
 marked stilliards of the days when common- 
 law pleading was in the height of its malig- 
 nant power. Her thoughts might, alas, be 
 those of Milton, that "Most men are allured to 
 the trade of law, not grounding their pur- 
 poses on the prudent and heavenly contempla- 
 tion of justice and equity which was never 
 taught them, but on the promising and pleas- 
 ing thoughts of litigious terms, fat contentions 
 and flowing fees." This allegorical figure 
 would be completed with the aid of Shake- 
 speare, for there would be lurking about the 
 feet of this twentieth-century American fig- 
 
92 SPIRIT OF THE COURTS 
 
 ure of justice the images of the miserable 
 witches that fevered the brain of Macbeth 
 and made him protest: 
 
 "And be these juggling fiends no more believed, 
 That palter with us in a double sense; 
 That hold the word of promise to our ear, 
 And break it to our hope." 
 
 And as it was in the time when the blind 
 poet sang his deathless songs of human nature 
 and the conflict of human emotions and rela- 
 tions, so it is today. The world is simply a 
 little older. The lawyer and the judge is the 
 vicarious sacrifice upon the altar of public 
 condemnation and criticism. The solution 
 lies in the existence of a spirit sufficient to 
 protect their self-respect. There is no medi- 
 ocrity, for lawyers will always be leaders in 
 directing the social compact or, else, the de- 
 spised of society. The people, untrained in 
 the niceties of the law, the highly technical 
 nature of the detail machinery of the courts 
 and necessarily ignorant of the fact that Con- 
 gress and the legislatures are wholly respon- 
 sible for its creation and continued existence, 
 naturally strike at the immediate objects 
 which apparently occasion their discomfort 
 and financial loss. And this is the reason 
 that the lawyers and the judges are con- 
 demned for every juridical fault. In the very 
 nature of things laymen do not know and can- 
 
SPIRIT OF THE COURTS 93 
 
 not know, until properly informed, that Con- 
 gress and the legislatures have assumed to dic- 
 tate to the judges and to the lawyers the exact 
 manner in which they shall act in court, it 
 matters not how technical and delicate the 
 duty, or that in its execution the highest dis- 
 cretion and ability and preparedness are de- 
 manded. That is to say, should the trial 
 judge, in order to prevent a miscarriage of 
 justice occurring in his sight, depart in the 
 least from the rigid, statutory regimen laid 
 down by an all-wise Congress or legislature, 
 an exception would be noted, the case would 
 be appealed and the judgment reversed on 
 that technicality. How can a judge or a law- 
 yer respond to the highest and best impulses 
 of his nature under these circumstances? A 
 splendid compliment to the sterling character 
 of the lawyer and judge is the fact that the 
 profession haswithstood the evil of this blight. 
 In other words, the legislative department not 
 only tells the courts what they shall do, which 
 is proper, but it undertakes to tell them how to 
 do it, which is a governmental crime. The 
 lawyer is thereby forced at times to interrupt 
 justice instead of aiding it. 
 
 But, instead of being resentful, let us reason 
 together. Business men logically look to 
 lawyers as experts to keep perfect and modern 
 the instrumentalities with which they labor. 
 
94 SPIRIT OF THE COURTS 
 
 Commerce listens with just impatience to the 
 excuse that Congress and the legislatures have 
 tied the hands of lawyers and judges and that 
 they are forced to use that which is given 
 them, for that is but a pitiable confession of 
 weakness that should bring the blush of shame 
 to the lawyer's cheek, truth though it is. This 
 is no time for apologies; it is a time for fight- 
 ing for the opportunity to perform a sacred 
 duty upon which the maintenance of their 
 self-respect depends. Let the lawyers awake 
 to a full realization of the profound responsi- 
 bilities of the noble calling of the law. That 
 can be met by no other human agency. The 
 world looks upon the lawyer as a leader, as 
 the maker of public sentiment, and not as an 
 apologist or a suppliant mendicant at the door 
 of Congress. Upon what sort of food have 
 our lawyers been nourished, that they should 
 come seeking alms of Congress instead of de- 
 manding historic rights ! They must go to the 
 people for support if relief be not promptly 
 and ungrudgingly forthcoming. This is said 
 with the deep conviction that it is a profound 
 governmental policy resting solely in the 
 keeping of lawyers, as we shall see from au- 
 thoritative sources quoted in this book. There 
 is one thought that should be indelibly en- 
 graved upon the minds and spirits of the bar. 
 Lawyers are looked up to and sought for ad- 
 
SPIRIT OF THE COURTS 95 
 
 vice when their voice in the councils of the 
 nation and of the State is respected and heard 
 in matters relating to law and its enforcement. 
 When that attitude of the public changes, and 
 God grant that it may never come again upon 
 the earth, the lawyer's usefulness is over and 
 a noble profession might far better be at an 
 end. Every failure to perform a public duty 
 weakens both the individual and the national 
 character. Milton performed a service to the 
 world in characterizing the apology of a bar 
 of his day. 
 
 These things are said in deep earnest- 
 ness, because the lawyers of this country 
 have seen the light of duty and are taking 
 a profound pride in performing it; because 
 the judges looking upon it are pleased and are 
 helping, and because commerce, having faith 
 in the bench and bar, is satisfied and is hold- 
 ing up their hands. No lawyer could view 
 the present enthusiastic and whole-souled re- 
 sponse to the call of the American Bar Asso- 
 ciation for reform and uniformity without 
 feeling a deep sense of pride and gratitude. 
 All over this great and fruitful country men 
 are earnestly engaged in creating sentiment in 
 favor of the great trinity of jurisprudence — 
 uniformity in law, uniformity in procedure 
 and uniformity in decision — and are demand- 
 
96 SPIRIT OF THE COURTS 
 
 ing that the Supreme Court shall be set free 
 to insure its achievement. 
 
 Yet, though confronted by this concerted 
 demand, Congress has failed to act. They tell 
 us it is busy. For eight years the organized 
 lawyers, assisted by the organized credit men, 
 have been knocking at the doors of Congress with 
 a completed scientific program upon which 
 they have unanimously agreed. The judiciary 
 committees of the Senate and House of Rep- 
 resentatives have favorably acted, concerning 
 which more will be said, but the Senate and 
 House, under the influence of a few reac- 
 tionaries, have done nothing. In the meantime 
 the great commercial organizations will con- 
 tinue instituting "arbitration commissions" 
 and "trade courts," and may eventually re- 
 lieve the government of the small matter of 
 administering justice altogether. 
 
SPIRIT OF THE COURTS 97 
 
 CHAPTER VI. 
 
 Fixed Interstate Judicial Relations — 
 "The Conference of Judges." 
 
 Let us now turn our attention to organized 
 interstate relations, another phase of judica- 
 ture to be more fully discussed in another 
 place. It is most desirable that there should 
 be a full and popular appreciation of the 
 magnitude and necessities of interstate com- 
 merce, the utter uselessness and serious detri- 
 ment of differing State court procedure and 
 the logic of bringing into harmony the vary- 
 ing laws of the different States. There must 
 be uniformity of law, uniformity of procedure 
 and uniformity of decision. Interstate com- 
 merce demands them and needs them, and 
 they will come. Out of this conviction grew 
 what has been pronounced to be one of the 
 most marvelous exhibitions of unselfish pa- 
 triotism and broad - minded, constructive 
 statesmanship that this country has ever wit- 
 nessed. It was a wholesome evidence of the 
 real commercial and civic unity of the nation, 
 and assured "fixed interstate judicial rela- 
 tions," for which we are striving. Reference 
 is made to the organization of the Judicial 
 Section of the American Bar Association. 
 There was but one way to prevent judicial 
 
98 SPIRIT OF THE COURTS 
 
 conflict and bring about harmony among the 
 State and Federal courts, and that was by a 
 personal exchange of ideas and views — a semi- 
 official conference of judges composed of the 
 representatives of the highest appellate courts 
 of every State in the Union and the several 
 Federal circuit courts of appeals. Able and 
 experienced statesmen feared it to be an im- 
 possibility. They concluded that the various 
 State judges would never act in harmony, and, 
 if they did, the Federal judges would not co- 
 operate. The answer was the Montreal "Con- 
 ference of Judges" in 1913, the first conven- 
 tion of judges in the history of America. Its 
 success shows that nothing is impossible to 
 Americans that is right and founded upon 
 basic principles. If one entertained a doubt 
 about the feeling of the judges and their adap- 
 tability for accomplishing things in the in- 
 terest of the people, he had but to look upon 
 that splendid assemblage of great American 
 jurists and drink deeply of the cup of op- 
 timism and faith. It will go down in history, 
 as marking a new epoch in the jurisprudence 
 of the Uftited States and of the States. It was 
 an answer to the charge of narrowness, pro- 
 vincialism, individualism and petulant pride 
 of opinion of judges. It was an answer to the 
 pessimistic complaint that judges lacked in 
 an appreciation of practical things and were 
 
SPIRIT OF THE COURTS 99 
 
 not in sympathy with the nation-wide strug- 
 gle for uniformity of law, of decision and of 
 procedure — the great trinity of interstate judi- 
 cial relations. It made a new place in the 
 hearts of the people for the judges, that will 
 grow, as there is a better understanding of 
 the import. 
 
 As the author had the honor of saying 
 to them on that occasion, and now repeats, 
 that conference symbolized an unselfish 
 love of country and a surrender of personal 
 inclinations that will do more to solidify sen- 
 timent and reincarnate the old-time respect 
 and veneration for the courts than any other 
 agency. It has given new inspiration to the 
 lawyers and has added dignity and import- 
 ance to the campaign of the Committee on 
 Uniform Judicial Procedure in the important 
 task it has undertaken of harmonizing the 
 processes of American jurisprudence. It has 
 given justification to Congress for prompt 
 action. It means the end of seeking after ex- 
 periment and innovation, for it gives assur- 
 ance of the general application of a perma- 
 nent principle that alone can bring State uni- 
 formity and insure reasonable justice. It 
 means the beginning of a new and notable era, 
 when laymen and lawyers and judges may 
 work hand in hand for the perfection of the 
 administration of justice. Its place is written 
 
loo SPIRIT OF THE COURTS 
 
 as indelibly in the history of jurisprudence as 
 the Mount Vernon Conference is in the his- 
 tory of commerce. There will lead on from 
 it interstate judicial relations as fixed and per- 
 manent as interstate commercial relations. 
 The one is compelled by the organic law of 
 the land ; the other is made possible by a noble 
 and patriotic judiciary and bar. 
 
 The universally small compensation of the 
 judges renders State aid necessary in defraying 
 travel expense so as to assure a full attendance. 
 This will be met by a small annual appropria- 
 tion of say $200.00 by each State Legislature. 
 It is a small premium for commerce to pay for 
 insurance against conflicting decisions. Its 
 achievement is a sacred and a patriotic duty 
 that some lawyer is ready to undertake in every 
 State, and thereby earn the gratitude of the 
 Bench and Bar, and eventually the people. It 
 must be borne in mind that there is no other 
 ethical way of obtaining these necessary funds, 
 otherwise they would be immediately forth- 
 coming from the purses of hundreds of law- 
 yers who would be glad to participate in this 
 practical way in the far-reaching benefits to be 
 derived from the "Annual Interstate Confer- 
 ence of Judges." The lawyer who be- 
 lieves in the perpetuation of the organic prin- 
 ciple of the independence of the States 
 cannot furnish better evidence of it than by 
 

 SPIRIT OF THE COURTS lai 
 
 inducing his State Legislature to act with 
 promptness. The Federal government, in the 
 interest of an even flow of interstate commerce, 
 will gradually assume additional power in or- 
 der to prevent interference of hardships by 
 unnecessary conflict in State laws. State pride 
 should be a sufficient incentive to insure the 
 desire for representation at every conference. 
 
 So we have the "Conference of Commis- 
 sioners on Uniform State Laws" endeavoring 
 to make uniform the statutes, and the "Con- 
 ference of Judges" endeavoring to make uni- 
 form the decisions, and the "Committee on 
 Uniform Judicial Procedure" endeavoring to 
 make uniform the machinery of the courts 
 through which it all must pass. The work of 
 the first, it has been demonstrated, depends 
 upon the success of the second, and the work 
 of no one of them can be complete or perma- 
 nent without the success of the others. While 
 each commission occupies a distinctive field, a 
 complete co-ordination is their manifest des- 
 tiny and the achievement of fixed interstate 
 judicial relations is their obvious end — an 
 ideal so splendid, so beautiful and so benefi- 
 cial in every respect as to demand unstintedly 
 the loving labor, time and treasure of the best 
 men of this marvelous age in which we live. 
 
 There has been outlined a program for a 
 campaign which means no more or less than 
 
102 SPIRIT OF THE COURTS 
 
 a struggle for the freedom of the bench and 
 bar, that these things may and shall be ac- 
 complished. 
 
 Let us briefly analyze some general ob- 
 jections to it. The few personal objec- 
 tions raised by four Senators are specifically 
 answered in a later chapter. Congress in the 
 past thought it best knew how the courts 
 should be conducted. Ninety per cent, of the 
 present Congress are not so minded and have 
 given expression to that sentiment. We should 
 be grateful for the fact that no Chief Execu- 
 tive, while in office, ever suffered from the 
 same egotism. The imagination is unequal to 
 the effort of visualizing such a catastrophe. 
 That interference is exactly what the plan of 
 our government was designed to prevent, and 
 this policy is without the bounds of safety, as is 
 all usurpation of power. It has been con- 
 demned by Anglo-Saxons since they first com- 
 menced to breathe the air of freedom. Let 
 there be repeated a bill of particulairs. In 
 America it has destroyed all co-ordination be- 
 tween the judge and the lawyer and has forci- 
 bly set the lawyer against the court, thus de- 
 priving the State of his valuable aid and co- 
 operation in trials. In fostering separate 
 State procedure it has prevented uniformity 
 of procedure and encouraged pride of opin- 
 ion, both State and individual, and has caused 
 
SPIRIT OF THE COURTS 103 
 
 to be created a distinct Federal practice, a 
 condition never contemplated, the effect of 
 which is discussed elsewhere. It has pre- 
 vented uniformity of decision for the same 
 reason. It has prevented the lawyers and 
 judges from devoting their best energies, 
 training and wisdom to the preparation of a 
 complete, correlated system of pleading and 
 procedure for the guidance of the law side of 
 the Federal courts and of gradually perfect- 
 ing it in the light of experience and reason 
 that will elevate the ethical standard of law- 
 yers and of litigants. It has prevented the 
 creation of a model system that most assuredly 
 would be adopted by the States. It has set 
 this nation back a century behind England. 
 It has forcibly thrust upon the people and 
 stubbornly maintains a pretended conforma- 
 tion with State procedure and modified it by 
 unrelated statutes until none but a few experts 
 at every bar dare to make use of it, thereby 
 bringing the Federal courts into disrepute 
 with both lawyers and laymen. The slightest 
 recommendation to Congress for relief, until 
 a few years ago, was considered with the arro- 
 gance of pride or ignorance — and nothing was 
 done. Judging from results, the layman has 
 logically concluded that the lawyers did not 
 want anything done, wherein the lawyers have 
 unjustly suffered until patience has ceased to 
 
I04 SPIRIT OF THE COURTS 
 
 be a virtue. After due consideration of these 
 grave matters and mature thought of the man- 
 ner in which these evils could be eradicated, 
 the American Bar Association in 1912 unani- 
 mously adopted a resolution prepared by the 
 author and offered in 191 1. It is the founda- 
 tion upon w^hich fixed interstate judicial rela- 
 tions may be erected : 
 
 "Whereas, Section 914 of the Revised Statutes has utterly 
 failed to bring about a general uniformity in Federal and State 
 proceedings in civil cases; and 
 
 "Whereas, It is believed that the advantage of State remedies 
 can be better obtained by a permanent uniform system, with the 
 necessary rules of practice prepared by the United States Su- 
 preme Court; 
 
 "Now, therefore, be it and it is hereby resolved: 
 
 "First — That a complete uniform system of law pleading 
 should prevail in the federal state courts; 
 
 "Second — That a system for use in the federal courts, and as 
 a model, with all necesary rules of practice or provisions there- 
 for should be prepared and put into effect by the Supreme 
 Court of the United States; 
 
 "Third — That to this end, Sec. 914 and all other conflicting 
 provisions of the Revised Statutes should be repealed and appro- 
 priate statutes enacted; 
 
 "Fourth — That for the purpose of presenting these resolutions 
 to Congress and otherwise advocating the same in every legiti- 
 mate manner, there shall be appointed a committee of five mem- 
 bers to be selected by the President to be known as 'The Commit- 
 tee on Uniform Judicial Procedure.'" 
 
 Immediately there was prepared and of- 
 fered in both Houses of Congress a suitable 
 bill with reference to which a vigorous cam- 
 paign has been pursued. This short little bill 
 embodies the entire plan, since it leaves all the 
 details to the Supreme Court of the United 
 
SPIRIT OF THE COURTS 105 
 
 States and vests in it the exclusive power to 
 prepare and put into effect a complete, simple, 
 correlated system of rules of procedure and 
 practice for the law side of the inferior Fed- 
 eral courts, just as it has already done for the 
 equity side. That is its featural merit. Con- 
 gress will fix the jurisdiction and all funda- 
 mental matters and questions of policy and 
 permanent procedure and will leave all other 
 matters to the court. It will be a model for 
 adoption by the States, which means uniform- 
 ity. Of this bill Chairman Webb, speaking 
 for the House Judiciary Committee [Report, 
 supra], said: "Congress owes to itself and its 
 popularity, apart from its obligation to its 
 constituents, to face this problem promptly, 
 that it may be solved, and no solution could be 
 more appropriate than that which has met 
 with such universal endorsements as the bill 
 recommended." 
 
 The program and the bill has been en- 
 dorsed by the teachers of every law school of 
 consequence in the country, and has been vig- 
 orously supported in the public print by its 
 greatest lawyers and statesmen. It has been 
 formally endorsed by the bar associations of 
 about forty-five States; the National Civic 
 Federation; the members of the executive 
 committee of the Association of Law Schools ; 
 by the Southern Commercial Congress; the 
 
io6 SPIRIT OF THE COURTS 
 
 Chamber of Commerce of the United States ; 
 by hundreds of State and local business, civic 
 and commercial organizations, and last, but 
 by no means least, by the biggest and one of 
 the most intelligent and alert organizations of 
 business men in the world, the National Asso- 
 ciation of Credit Men of America. That in- 
 fluential group, always on the watch to better 
 commercial and civic conditions and to for- 
 ward industrial endeavor, fell into line with 
 the American Bar Association in 1912 and has 
 stood by it shoulder to shoulder from that day 
 to this. This action is characteristic of the 
 high intelligence of its personnel and fur- 
 nishes a reason for the steady advance of 
 American commerce and industry until it has 
 become the wonder of the world. It trans- 
 pired at its 1914 convention, held in Roches- 
 ter, that Congress was not proceeding to its 
 satisfaction, and so it unanimously passed and 
 sent to Washington the following preamble 
 and resolution, which is printed here as a 
 typical portrayal of the spirit of the time and 
 the understanding of laymen of their relation 
 to the courts and their intelligent informa- 
 tion of the cause of the trouble with the 
 courts : 
 
 "Whereas, The National Association of Credit Men in annual 
 session at Cleveland in 1913 unanimously endorsed the program 
 of the American Bar Association looking to simplifying, expedit- 
 
SPIRIT OF THE COURTS 107 
 
 ing and lessening of the costs and delay of litigation, which 
 program the committee of the Bar Association continues to 
 faithfully press upon Congress, and which efforts deserve and 
 command the warmest sympathy and earnest aid of the business 
 men of this country; and 
 
 "Whereas, a complete program, energetically backed by the 
 leaders of the American Bar, has been embodied in H.R., 133, in- 
 troduced in Congress by Judge Clayton and Honorable E. Y. 
 Webb, and which is now upon the calendar of the House of Rep- 
 resentatives with a favorable and enthusiastic report made by 
 the House Judiciary Committee; and the same bill has been 
 pending before the Senate Judiciary Committee for many months 
 awaiting action by that distinguished body, which is engaged in 
 the preparation of more laws that will naturally call for addi- 
 tional litigation ; and 
 
 "Whereas, The potency and effect of a law is measured abso- 
 lutely by the machinery through which it is administered to the 
 people, and can be no better than the manner in which it is en- 
 forced ; and 
 
 "Whereas, The present machinery furnished by Congress, and 
 which the courts are required to use, is universally admitted to 
 be wholy inefficient and in need of a complete reform, both as 
 to the form thereof and the manner of creating it, and Congress 
 seems to be placing the cart before the horse in enacting more 
 law before properly preparing for its administration; and 
 
 "Whereas, the judges and the lawyers are receiving the en- 
 tire condemnation for the present unsatisfactory condition, when 
 as a matter of fact it appears that they are bound hand and foot 
 by unyielding statutes arbitrarily enacted by Congress and 
 which they are sworn to follow and obey, though injustice be 
 done by such procedure in their very presence ; and 
 
 "Whereas, The business men of this country are and have 
 been for many years bearing patiently this wholly unnecessary 
 and expensive burden; the judges and lawyers have been con- 
 demned for serious faults for which they are in no way respon- 
 sible, and the power and dignity of and respect for the courts 
 have been greatly impaired. 
 
 "Now, therefore, be it and it is hereby resolved: 
 
 "First — That the President of the United States and the 
 Congress be and they are respectfully but most earnestly re- 
 quested to enact into law House Bill No. 133 without further 
 delay; 
 
 W 
 
io8 SPIRIT OF THE COURTS 
 
 "Secondly — That there be conveyed to them the expressions of 
 our confidence in their patriotism and earnestness of purpose, as 
 is evidenced by this petition, and our firm belief that they will 
 promptly rid business men of the vcholly unnecessary burden that 
 is driving them from the courts and causing them to resist and 
 to resent all e£Forts to place their undertakings and assets under 
 the control thereof; 
 
 "Thirdly — That we call upon individual business men and 
 business organizations all through the country to convey to the 
 President and to the Senators and Congressmen at Washington 
 the sentiments herein expressed and to demand immediate and 
 favorable action on House Bill No. 133; 
 
 "Fourthly — That copies hereof be printed and be presented 
 by the secretary to the public press, the President of the United 
 States, and to each member of the Senate and House of Repre- 
 sentatives, with the request that reply be made thereto." 
 
 There is another epoch-making thought 
 deserving of grateful recognition and rejoic- 
 ing. If the Bar Association's campaign meets 
 with no further success, it has been instrumen- 
 tal in aiding business men to find the thorn in 
 the flesh of the courts and order its eradica- 
 tion and in causing Congress to acknowledge 
 its obligation to and faith in the Federal Su- 
 preme Court [Chairman Webbs's Report, 
 supra]. This connotes the passing of petty 
 jealousies and the existence of a statesmanship, 
 regardless of political division, worthy of the 
 great men who are piloting the destinies of 
 this nation. There remain the usual few re- 
 actionaries who enable the history of all ad- 
 vancement to repeat itself in some opposition. 
 Nine years ago Congressman Reuben O. 
 Moon, of Philadelphia, a learned and philo- 
 
SPIRIT OF THE COURTS 109 
 
 sophic lawyer, then chairman of the House 
 Committee on Judiciary, in an able and in- 
 teresting letter to the author, bemoaned the 
 lack of faith of Congress in and a feeling of 
 jealousy towards the courts and predicted an 
 improbability of success with any bill tending 
 to return them to their normal functions, 
 though it be only in matters concerning tech- 
 nical details of procedure. A new order of 
 things has grown out of an entire change in 
 public sentiment. Thus, step by step, the 
 country is returning to the house of its fathers 
 from which it is prone to stray, and the coun- 
 try is developing into a union and not a con- 
 federacy of States, as existed prior to the Con- 
 stitution. Three years ago that same commit- 
 tee over which Mr. Moon so ably presided 
 and of which Hon. Edwin Y. Webb is chair- 
 man, when we write, in an official report 
 said: 
 
 "Given the time, the facilities and the opportunity, it is the 
 universal opinion that the Supreme Court, in an orderly and dec- 
 orous manner, free from partisan bias and with an eye single 
 to the general welfare, will reform pleading and procedure to 
 the satisfaction of the bench and bar and commerce, and will 
 blaze the way in which the new and greater commerce in inter- 
 state relations may develop and move on with safety to itself 
 and to the people." 
 
 We have spoken feelingly and with a sense 
 of appreciation and gratitude of the Annual 
 Conference of Judges, its beneficent effect 
 
no SPIRIT OF THE COURTS 
 
 upon judicature, but we cannot overlook the 
 personal influence and participation of other 
 individuals that enter into its fabric. In its 
 evolution many, and sometimes most unex- 
 pected human factors, enter to mar or to pre- 
 serve and to elevate judicature. These cannot 
 be safely ignored and ought to be sanely dis- 
 cussed. Let us give attention now to those 
 human agencies that preserve and elevate. 
 Sometimes it is a political crisis, two ex- 
 amples of which, though a little ancient, 
 are not forgotten. Sometimes it is the 
 wholesome individuality of a man. It is 
 timely to observe that the contemporaries 
 of these great national figures failed to un- 
 derstand that they were witnessing the mold- 
 ing of history and the laying of the founda- 
 tion of conditions for the betterment of gen- 
 erations yet unborn. Their eyes were fixed 
 upon the future and they were reading it in 
 the dim light of the past, with a course laid 
 by the ancient landmarks of basic principles 
 of government. It is out of the mist of a re- 
 ceding past that their figures now are lifted 
 higher and higher by the resistless force of the 
 gratitude of a consciously prosperous people, 
 as their broad and fearless and unselfish states- 
 manship, and the beneficent results of their 
 work and wisdom grow plainer and plainer. 
 
SPIRIT OF THE COURTS in 
 
 John Marshall was such a man, though, 
 unhappily, death claimed him before the hour 
 of gratitude arrived. Posterity is magnani- 
 mously endeavoring to make amends with 
 chiseled marble for the lack of human encour- 
 agement and contemporaneous appreciation 
 that left him to battle alone in the shadow of 
 neglect and hostility. The jurisprudence of 
 this country, with the virile personality of 
 John Marshall eliminated, would be quite a 
 different thing. The country would be quite 
 a different nation and the people would not 
 have exceeded the governmental limitations. 
 How much America owes to that one man it 
 will take generations yet to demonstrate. 
 Presidents may come and Presidents may go, 
 but John Marshall will live on forever in the 
 annals of jurisprudence. To him the country 
 is indebted for its fixed interstate commerce 
 relations. 
 
 In our own day another man, as an official, 
 has left the impress of his personality upon 
 jurisprudence. Since he is now and proposes 
 to continue devoting his valuable life to the 
 private betterment of mankind, it is meet and 
 proper that his fellow-countrymen for whom 
 he so unselfishly strove should recognize and 
 encourage him. The American Bar Associa- 
 tion has done it to the highest extent in its 
 power. Analyzec^ by the acid test of critical 
 
112 SPIRIT OF THE COURTS 
 
 political partisanship, which is the case when 
 a member of an opposing political party dis- 
 cusses him, he has no prototype in the history 
 of practical jurisprudence. Unflinchingly 
 and in a time of political need, casting from 
 him the tempting life-belt of the Federal 
 court patronage, which in the South composed 
 the leadership and vitals of his party, Wil- 
 liam Howard Taft unhesitatingly refused to 
 purchase political preferment with the spolia- 
 tion of the Federal bench. In his selection of 
 a majority of the Supreme Bench and more 
 than thirty per cent, of the Circuit and Dis- 
 trict judges, during his four-year tenancy of 
 the White House he closed his eyes to politi- 
 cal partisanship, sectional feeling and relig- 
 ious influence and was moved only by a con- 
 viction that might have been inspired. To 
 him we are indebted for a new era of Ameri- 
 can judicature. 
 
 These things are said because such high 
 official conduct is a condition precedent 
 to that standard of jurisprudence which it 
 is determined shall exist in the United States, 
 let the consequences be what they may. It 
 has withstood the cancerous inroads of poli- 
 tics solely through the high character and na- 
 tive love of law and order of the individual 
 American and the faith of the people in most 
 of their judges and lawyers, and because that 
 
SPIRIT OF THE COURTS 113 
 
 protection, in the very nature of things, must 
 eventually deteriorate and fail. They are also 
 set down with the hope that their successors 
 may profit by their example. 
 
114 SPIRIT OF THE COURTS 
 
 CHAPTER VII. 
 
 Shall Justice Be the Accident of the 
 
 Judge or the Certainty of 
 
 THE System? 
 
 In both a scientific and a practical analysis 
 of pleading and procedure there is observed 
 certain fundamental principles of more im- 
 portance than the substantive law itself, that 
 cannot be safely forsaken. It is seen that their 
 evolution is the history of the resistance of 
 mankind to tyranny and usurpation by gov- 
 ernment and other power. If it has been 
 shown that these may not sensibly be omitted 
 in any system afifording an assurance of swift, 
 impartial and final administration of justice, 
 our humble efforts have been well rewarded. 
 To that end concrete illustrations of the Ro- 
 man and English systems in their practical ap- 
 plication have been and will be given. It is 
 manifest that in the present English system 
 there survives all the merit of the ancient 
 common-law pleading, with a minimum of 
 former procedural difficulties. However, we 
 are contending for no model, but only for a 
 system of court-made rules in which shall be 
 preserved the common-law limitation upon 
 the judge, that whatever is not juridically pre- 
 sented cannot be judicially decided. 
 
SPIRIT OF THE COURTS 115 
 
 In practical application this means that the 
 lawyer retained to try a case shall prepare a 
 simple record of the exact issue desired to be 
 joined and heard and that the judge shall be 
 allowed to alter it upon the record upon mo- 
 tion, after suitable notice, and shall be allowed 
 to consider no other issue. That this prevents 
 surprise or imposition by the judge, the gov- 
 ernment or one of the parties by creating a 
 new and unexpected issue; or further vex- 
 ation in the future with the same issue and 
 will afford an intelligent review on appeal, 
 has been made to appear in technical lan- 
 guage. Inasmuch as the present program seeks 
 practical results, it is well to point out that the 
 proposed system comprehends and requires 
 no particular form of pleading, but, on the 
 contrary, is best suited to a simplicity that af- 
 fords no opportunity for subtlety. It thus ap- 
 pears that it is entirely immaterial in what 
 form or under what name they appear, so that 
 at the trial of the case a statement of the facts 
 of the cause of action from which the alleged 
 legal liability can be drawn is presented upon 
 a permanent mandatory record. What pos- 
 sible difference can it be to the suitor whether 
 his debtor is proceeded against in "assumpsit," 
 "debt" or covenant," or any other arbitrary 
 form? It does make a difference, however, 
 that the record shall be reduced to a simple 
 
ii6 SPIRIT OF THE COURTS 
 
 statement of the claim and of the defense, or a 
 defense and counter claim, with all necessary 
 and liberal amendments. It is well to repeat 
 that the doctrine of res adjudicata and the 
 protection afforded by due process of law are 
 in this way preserved. But it is neither just 
 nor honest, nor prudent that that which is not 
 presented in the pleadings originally or by 
 liberal amendment should be judicially de- 
 cided. The case at bar should be a thing com- 
 plete within itself, independent of collateral 
 aid not only for present but for future pur- 
 poses, involving both State and litigant. As a 
 man has the constitutional right to be con- 
 fronted by his accusers and to be placed but 
 once in jeopardy upon a clearly defined 
 charge, so has he the inalienable right to be 
 explicitly notified of the intention, reason and 
 alleged legal right to take his property as well 
 as his liberty. 
 
 The other potent thought is that the pre- 
 paring and answering of this claim is a law- 
 yer's function and not that of a judge. It is 
 inconsistent for a judge to act in a dual ca- 
 pacity. In order for the judge to prepare a 
 pleading, whether or not of his own volition, 
 he must know the litigant's case and must ad- 
 vise him the proper theory to adopt. To know 
 this he must consult the suitor and interview 
 the witnesses. Impartiality demands that both 
 
SPIRIT OF THE COURTS 117 
 
 plaintiff and defendant should have the right 
 to require the same service. Having arranged 
 the issues to suit himself, he ought to find no 
 trouble in deciding it the same way. Under 
 these conditions, what would be the lawyer's 
 duty or function? It is a grievous reflection 
 upon a learned profession! No such objec- 
 tion applies to well-ordered amendments, 
 timely made, and the court should exercise a 
 broad, untechnical liberality in aiding justice 
 by suitable amendments. The thought is that 
 judicial procedure must be fixed and estab- 
 lished, and not the personal rules of each trial 
 judge or of any judge. By way of illustration 
 it is illuminating to be mindful that safe and 
 efficient service can be had from a boiler with- 
 out the risk attendant upon dispensing with 
 the governor, which thought is reminiscent of 
 irresponsible steamboat days on the Mississ- 
 ippi river, where "the end justified the 
 means." 
 
 Civil liberty and property rights demand 
 this limitation upon courts and government, 
 that a court may not act s-ua sponte except 
 to prevent imposition upon its own jurisdic- 
 tion. Under such a system the voice of the 
 tyrant or the irresponsible become obiter dicta 
 and harmless. On appeal the immateriality 
 and irrelevancy of the evidence and error of 
 decisions are self-evident. It is next to impos- 
 
ii8 SPIRIT OF THE COURTS 
 
 sible for irregularity not to be overtaken by 
 the reviewing court. Pleading, it thus ap- 
 pears, again is not mere form. It is the only 
 protection between the citizen and arbitrary 
 power, wherein is translated the spirit of free- 
 dom and impartial justice. So vital is it to 
 instill this great principle into the minds of 
 young lawyers that, besides the repetition 
 thereof, there will be quoted a portion of that 
 profound work, "Grounds and Rudiments of 
 Law," by William T. Hughes : 
 
 "A study of Roman procedure confirms the statement on this 
 subject which we have quoted from Paul, and shows that they 
 fully understood the importance to a republican government of 
 treating pleadings as the foundation of the action. Under their 
 system of procedure the magistrate organized the suit by deliver- 
 ing to a judex a written formula by which the power of 
 the latter to hear the case was determined. The preparation of 
 this formula, corresponding to our pleadings, was of the greatest 
 moment, and the 'full force of legal science was brought to bear 
 upon it' [Ortolan, 548]. The intentio, that is, the part of the 
 formula in which the plaintiff's case was stated, is the 'vital part 
 of the case and could in no case be dispensed with.' So, also as 
 to the demonstratio [lb. 549-173]. Beyond the terms of the for- 
 mula delivered to him by the magistrate, the judge was power-" 
 less, and the greatest care was exercised by him to confine him- 
 self within the limit of the power conferred upon him [lb. 174- 
 175]. 
 
 "These formulas or pleadings were strictly adhered to as 
 long as the spirit of freedom lasted in Rome, but with the decline 
 of republican institutions and the substitution of imperial ones 
 they began to disappear [lb. 287]. Here is a much needed lesson 
 for those of our American courts who are inclined to depart from 
 the pleadings. The downfall of the republican form of govern- 
 ment at Rome may be dated from the accession of Emperor Dio- 
 cletian, who reached the throne A. D. 284, after a period of fifty 
 years of confusion, in which sixteen emperors had perished. 
 
SPIRIT OF THE COURTS 119 
 
 Diocletian openly assumed the power of a despot. We have It 
 on good authority that by the time of Theodosius 11, A. D. 440- 
 450, jurisprudence had sunk into abject ignorance and barbarity 
 [Phillimore's Private Law Among the Romans, p. 11], and yet 
 the pandects of Justinian, under whom an attempt was made to 
 return to the glory of earlier jurisprudence, contain selections 
 from authors of the time of Diocletian and Theodosius II. It is 
 not strange that an empire which was no longer Roman but Asi- 
 atic [Ortolan, 555] should abandon the formula, and that a weak 
 and degenerate people should, be content to have their causes 
 tried before judges appointed by a tyrant and without the secur- 
 ity of -written pleadings, which alone could afford them certainty 
 and protection. 
 
 Pope said: "Education forms the common 
 mind; just as the twig is bent, the tree's in- 
 clined." Disraeli told us "that the more exten- 
 sive a man's knowledge of what has been done, 
 the greater will be his power of knowing what 
 to do." So the unfortunate experiences of 
 history have not been in vain if they awake a 
 lively appreciation of juridical importance. 
 It is a restriction and limitation upon the di- 
 rect interference and oppression of the gov- 
 ernment. It is a greater protection to civil 
 liberty and property rights than armed inter- 
 vention. In the shadow of a suspended 
 habeas corpus lurks martial law and lies the 
 corpse of free citizenship. Arbitrary power, 
 whether on the bench or in the executive 
 chamber, violates the first principles of a re- 
 publican government. Unrestricted power 
 married to human nature has begotten tyran- 
 ny, if not corruption, since the beginning of 
 
I20 SPIRIT OF THE COURTS 
 
 the world and led a spiritless people inta ig- 
 norance to draw their inspirations from super- 
 stition. It is as important to have checks and 
 balances upon courts as upon government, for 
 both are conducted by men. We are discuss- 
 ing principles, not incidents. A present ab- 
 sence of tyranny or corrupt conduct on the 
 bench or in the government is no guarantee of 
 the future. By the same course of reasoning a 
 ship captain would be justified in discarding 
 his life-preservers because of continued fair 
 weather. Indeed, shall the administration of 
 justice be the accident of the judge or the cer- 
 tainty of the system? And, to the surprise 
 of many good people, all these things have 
 been shown to be possible and scientifically 
 certain under the proposed new system of 
 rules of practice. 
 
 The founders of the government met and 
 violently dealt with the uncanny confidence in 
 a personal ego, rather than a fixed system. The 
 answer was the adption of the Tenth Amend- 
 ment to the Constitution, specifically reserving 
 to the States all power not expressly or by nec- 
 essary implication granted to the central gov- 
 ernment. An observation of Thomas Jefferson 
 made at the time is interesting and illuminat- 
 ing. "In questions of power, then, let no more 
 be heard of confidence in man, but bind him 
 down from mischief by the chains of the Con- 
 
SPIRIT OF THE COURTS 121 
 
 stitution." The patriots of 1776 felt the ne- 
 cessity of insuring that man shall not be ex- 
 alted above the law, nor the machinery of the 
 law. Are we of a later generation so much 
 more patriotic or so startlingly immune to er- 
 ror, or are we simply indifferent? Are we 
 growing morally superhuman? Perish the 
 thought! It is the first symptom of decay. 
 Unlimited power in any branch of govern- 
 ment is inconsistent with the rights of a free 
 and independent people, even though they be 
 perfect. Opportunity for the wicked possi- 
 bilities made probable by inefficiency and 
 partiality, is more to be feared in judicature 
 than is actual corruption. The responsibility 
 and inspiration for the former may be ob- 
 scured in the meshes of a trial except from 
 unwilling expert eyes, but corruption pro- 
 trudes upon the vision of the inexperienced. 
 
 Seeing only the exception to the rule, well- 
 meaning persons have cited well administered 
 justice in magistrates' courts as an argument 
 in favor of abolishing the mandatory record. 
 But let us see the depths of depravity to which 
 it may sink. Charles Dickens' comment on the 
 immortal "Fang" at the trial of "Oliver 
 Twist" is a classic. "Although the presiding 
 genii in such an office as this exercise a sum- 
 mary and arbitrary power over the liberties, 
 the good name, the character, almost the lives. 
 
122 SPIRIT OF THE COURTS 
 
 of her Majesty's subjects, especially of the 
 poorer class, and tricks are daily played to 
 make the angels blind with weeping, they are 
 closed to the public save through the medium 
 of the daily press." Judge Andrew A. Bruce, 
 of South Dakota, brought them down to date 
 [73 Cent. L. J., No. 5, p. 76] when he said that 
 "the letters 'J- P' ^re popularly known to 
 stand for 'Judgment for Plaintiff,' that the 
 justice has catered for business like any 
 tradesman and has been only too prone to favor 
 the law or business firm which brought it to 
 him." 
 
 The mandatory record fixed inviolate limita- 
 tions within which the irresponsible or subser- 
 vient judge may rule, making all else obiter 
 dicta, and, of equal importance, it confines the 
 testimony which may be introduced. Oppres- 
 sion cannot be worked without written notice 
 the intent. Now, how could counsel protect 
 if he may not object, and how may he object if 
 there be no limits either to the allegata or the 
 probata. So it is seen why the evolution of 
 pleading is the history of government itself, 
 and that upon it largely depends the enjoy- 
 ment of liberty and property rights. Let us 
 see. The doctrine of res adjudicata and the 
 protection afforded by due process of law are 
 made possible and are assured by the principle 
 that "that which is not juridically presented 
 
SPIRIT OF THE COURTS 123 
 
 cannot be judicially decided." This is the 
 way in which the protection of the State may 
 be practically asserted. Civil rights demand 
 this limitation upon court and government 
 that a court may not act sua sponte except to 
 prevent imposition upon its own jurisdiction. 
 "The parties by their attorneys make the rec- 
 ord, and what is decided within the issue is 
 res adjudicata; anything beyond is coram non 
 judice and void." "The courts cannot ex 
 moro motu set themselves in motion, nor have 
 they power to decide questions except such as 
 are presented by the parties in their pleadings, 
 original or amended." Neither the common 
 law nor the statute of Jeofails attempted to 
 cure a deficiency not substantially apparent 
 upon the record. This would be a depriva- 
 tion of due process of law. It is possible and 
 justifiable that defects and imperfections and, 
 under suitable circumstances, omissions in a 
 pleading in substance or form fall within the 
 doctrine of aider by verdict where the issue 
 joined by consent be such as necessarily to re- 
 quire proof of the imperfect or defective alle- 
 gation. "It would be an imposition to extend 
 the effect of acquiescence beyond a common 
 interpretation of an allegation." But we have 
 the weight of the best authorities that defects 
 of substance can never be waived [Brooms' 
 Max., p. 136; Stephen, Plead., p. 13, 6th Ed.]. 
 u 
 
124 SPIRIT OF THE COURTS 
 
 In another place there will be discussed the 
 practical application of these sacred prin- 
 ciples to the proposed uniform system of rules 
 of procedure for the Federal and State courts. 
 Said the Prophet: "Stand ye in the ways and 
 see, and ask for the old paths, where is the 
 good way and walk therein" [Jeremiah, 6-16]. 
 It is proposed to return to the old paths, as we 
 have seen was so happily done in England, 
 which is discussed in another chapter. Let us 
 now turn to another feature of the national 
 life coincident with the scientific simplifica- 
 tion of pleading and procedure in America. 
 
SPIRIT OF THE COURTS 125 
 
 CHAPTER VIII. 
 Spirit of the Bar, Past and Present. 
 
 Having discussed the vital relation of the 
 courts to government and to commerce, to 
 civil liberty and to property rights; having 
 shown by example and authority that it re- 
 flects the very genius of government itself; 
 having pictured it as the keystone of the arch 
 supporting on either side the executive and 
 legislative departments, upon which each 
 lean, and that interference by either depart- 
 ment with its sacred functions, produces weak- 
 ness and eventual destruction, we may profit- 
 ably turn our attention to some more practical 
 but equally philosophical matters, which will 
 be illustrated by a portrayal of the past and 
 present spirit of the American Bar. 
 
 Every observant man finds himself obliged 
 to sympathize with the impatience shown by 
 commerce at present juridical conditions. 
 The disposition of men has changed but little 
 even under the discipline of the ages. We 
 find it set down in Amos (V-7) that there are 
 things "that turn judgment into wormwood." 
 Lord Bacon (Essay LVI) commented, "and 
 surely there be also that turn it into vinegar; 
 for injustice maketh it bitter and delays make 
 
126 SPIRIT OF THE COURTS 
 
 it sour." We find in Proverbs (XXX, 26) that 
 "a righteous man falling in his cause before 
 his adversary is as a troubled fountain and a 
 corrupt spring." Ovid (I, i, 37) says: "It is 
 the duty of a judge to take into consideration 
 the times as well as the circumstances of 
 facts." The opinion is ventured that a court, 
 the pleading and procedure of which is suffi- 
 ciently technical to permit of interference 
 with the prompt and fair joining of the issue 
 and an unhampered application of the law by 
 the judge, is not a court of justice, but of in- 
 justice. It lacks little of being the exemplifi- 
 cation of 
 
 "The simple plan 
 
 That they should take who have the power 
 
 And they should keep who can.'' 
 
 So the men of interstate commerce have de- 
 spaired of longer following the advice of Ga- 
 maliel to the Jews to await developments, but, 
 very fortunately, have accepted the program 
 of the American Bar Association and the 
 great trinity of agencies engaged under its di- 
 rection, looking to simplicity and uniformity 
 and fixed interstate judicial relations. I ven- 
 ture the further belief that there can be no 
 lasting judicial, juridical, commercial or po- 
 litical peace in the absence of a proper appre- 
 ciation of the relations that should exist 
 among the bench, the bar and the men of 
 
SPIRIT OF THE COURTS 127 
 
 commerce, and the time can be profitably 
 passed in contrasting past and present legal 
 history. 
 
 Undoubtedly in 191 2 the bar of America 
 had come to the parting of the ways, and re- 
 alized it with a keenness seldom if ever evi- 
 denced in the history of jurisprudence. Com- 
 merce was determined upon action, prefer- 
 ably by the bar, otherwise by itself. For the 
 first time the bar took the initiative. As has 
 been shown, it unanimously agreed upon a 
 scheme of reform, organized a campaign and 
 set itself to the important task. Awakened to 
 a keen sense of its sacred duty, it demanded 
 the right to perform it in the light of science 
 and with the aid of history. The publicists 
 and orators of the bar during the last several 
 years have been given to introspection, to the 
 consideration of the lawyer's vital place in 
 jurisprudence and organized society and to 
 the study of certain historical weaknesses of 
 their brethren of past generations. There has 
 been evolved from these researches and un- 
 selfish tendencies a fixed program which is 
 being diligently and intelligently carried into 
 efifect. This program lacks no important fea- 
 ture, because it deals solely with a great prin- 
 ciple. It permits of universal agreement be- 
 cause it involves no details, but leaves those 
 to the Supreme Appellate Courts, aided by 
 
128 SPIRIT OF THE COURTS 
 
 the suggestions and advice of practicing law- 
 yers. 
 
 But is this beautiful ideal and ambitious 
 task possible? It is, and it is difficult without 
 keen emotion for one mindful of the past his- 
 tory of the bar to contemplate the almost as- 
 sured promise of success of such a splendid 
 and comprehensive scheme. Never before in 
 the history of the world have lawyers so mag- 
 nanimously put aside all pride of opinion, 
 personal theories and individual rights and, 
 without reference to politics, religion or State 
 citizenship, set themselves to work to accom- 
 plish the simple but well organized program 
 of the American Bar Association, promising 
 the solution of a century old problem and the 
 beginning of a new and historic era in juris- 
 prudence. It promises more; it will enable 
 the Supreme Court to prepare and put into 
 effect and subsequently to amend and perfect 
 as necessity evidences, a complete correlated 
 system of rules for the detail operation of the 
 courts. The trial judge will be set free, with- 
 in the sensible limitations of these rules, to 
 exercise a sound discretion in all procedural 
 and practice matters. It will enable, if it 
 does not compel, the judge and the lawyer to 
 co-ordinate and co-operate in facilitating 
 trials and in the administration of justice, in- 
 stead of casting obstacles in the way, as the 
 
SPIRIT OF THE COURTS 129 
 
 lawyer is now permitted and, I believe, com- 
 pelled to do by statute and his oath of qualifi- 
 cation. This means that the State will secure 
 the benefit of the lawyer's help and sympathy 
 in lieu of a present hostility. This attitude 
 will develop in the judge the highest sense of 
 responsibility and judicial acumen, and in 
 the lawyer the keenest observance of ethical 
 standards and an unselfish patriotic view of 
 his noble profession. The destruction of the 
 agencies that forced him to pick flaws in the 
 machinery of justice will be followed by the 
 desire to perfect the new system that he 
 helped to create and for the perfect operation 
 of which he will then find himself jointly re- 
 sponsible with the courts. It will do away 
 with the mystery of stilted forms and the ob- 
 scurity and uncertainty of subtlety, and there 
 will be introduced directness and simplicity. 
 With one stroke there will be cleared away 
 the eight centuries of rubbish and debris that 
 have been piling up before the door of the 
 chamber of justice and which have prevented 
 many a poor man from entering or else caused 
 him to exhaust his resources in the effort. 
 
 In a scientific, organized and well-planned 
 manner there has been evolved a modern 
 structure out of the proved virtues and prin- 
 ciples of antiquity and the best practices of 
 the day in which we live, that is so fashioned 
 
I30 SPIRIT OF THE COURTS 
 
 that day by day it can be made to fit the chang- 
 ing hour without the sacrifice of a single 
 principle. It means that in the bench and 
 bar, in happy co-ordination, is to be reposed 
 the sacred trust of guarding, perfecting and 
 gradually improving the instruments which 
 they are daily called upon to use in adminis- 
 tering the laws. They are the sole human 
 elements entering into jurisprudence and the 
 sole agencies properly prepared to perform 
 the task. The Congress and the legislatures 
 will refrain from regulating the details of 
 procedure and practice by rigid statutes, re- 
 taining control, however, over all fundamen- 
 tal and jurisdictional matters, questions of 
 permanent procedure and of evidence. It 
 means that the legislative department will tell 
 the courts what to do, but not how to do it. It 
 means a new era in the history of jurispru- 
 dence, a new and wholesome relation of the 
 lawyers and judges with reference to a mani- 
 fest duty concerning a technical governmental 
 function in its relation to commerce and so- 
 ciety. It means a new and wholesome atti- 
 tude of the lawyers towards one another and 
 towards the judges, and it promises a return 
 of the old-time faith in and respect for the 
 judges and the lawyers. These are the things 
 for which we are striving and which are com- 
 prehended in the American Bar Association's 
 
SPIRIT OF THE COURTS 131 
 
 program. And all of these things are not only 
 possible, but assured by the foremost members 
 of the American bar if Congress will but set 
 the Supreme Court free to perform its im- 
 portant part. 
 
 It is time for the lawyers, so deeply ab- 
 sorbed in the daily routine, to look about them. 
 Things, as time is measured, have been chang- 
 ing with kaleidoscopic rapidity. This country 
 has undergone a reversal of sentiment within 
 the last brief decade that in time will prove a 
 marvel to all thoughtful men. More than 
 twenty-five years ago Grover Cleveland pro- 
 phetically remarked: 
 
 "To me nothing can be more deplorable than that open criti- 
 cism of the decisions of courts which, all at once, has become 
 fashionable » » » they are danger signals and failure 
 to see them may introduce practices which will threaten the in- 
 dependence of the courts. * * » jf their decrees are not 
 respected, or the judges, who preside over them are not men of 
 the highest reputation for ability and fairness then all the forces 
 of discontent will unite in an assault upon them." 
 
 Within ten years thereafter there was a par- 
 tial fulfilment of his prophecy. Within twen- 
 ty years its shadow had caused the great 
 American Bar Association to feel justified in 
 sounding an official warning. Within twenty- 
 five years it had perfected organizations for a 
 militant campaign of resistance and of educa- 
 tion, and was calling the lawyers to its colors. 
 Five years ago lawyers of national reputation, 
 who are now most actively engaged in the 
 
132 SPIRIT OF THE COURTS 
 
 campaign of modernization, looked skepti- 
 cally upon the task. Today they not only pre- 
 dict the success of the American Bar Associa- 
 tion's program, but believe in it, and believe 
 that the doctrine of interstate judicial rela- 
 tions is but a matter of time and education. 
 But there have been many things to bestir 
 them. For fifty years commerce and society 
 have been persistently demanding relief from 
 the expense, complexity, technicality and slow- 
 ness of the procedure provided by Congress 
 and legislatures for the detail operation of the 
 courts, from w^hich they had already suffered 
 for more than half a century. Impatience has 
 more than once threatened to strangle Justice 
 with ill-fitting expediencies that but aggra- 
 vated the trouble, because they resorted to 
 the favorite plan of the despot of destroying a 
 principle for which the Hebrews prayed, the 
 Athenians and Romans fought and the Anglo- 
 Saxon died and which brought our forefathers 
 to this country — the independence of the judi- 
 ciary. 
 
 Let all else fail, but so long as the courts 
 stand, the country will stand. When the 
 courts weaken or fail, the government like- 
 wise will weaken or fail. The most sacred 
 duty beckoning and calling to American man- 
 hood today is to guard the doors of the court- 
 rooms against the entrance of political and 
 
SPIRIT OF THE COURTS 133 
 
 personal ambition and all manner of wicked- 
 ness under the leadership of self-serving op- 
 portunists. And let it be repeated, that any 
 government that permits the legislative de- 
 partment, a group of individuals or one indi- 
 vidual, or any other agency, to place a hand 
 upon the finger of the judge when he signs a 
 decree, is not a government of justice amongst 
 men, but is the instrument of oppression in 
 the hands of tyranny. It is difficult for the 
 citizens of this Republic, even when in a most 
 grateful frame of mind, to appreciate the 
 blessings bestowed upon them by an indulgent 
 and forgiving Providence. It is equally as 
 difficult for us to measure up to the profound 
 duty of maintaining these governmental agen- 
 cies at the high standard of the day in which 
 we live. 
 
 Yet one must be pardoned for wondering 
 at the absence of an earlier, organized re- 
 sponse by the lawyers, for they did not act 
 until the absolute necessity stared them in the 
 face. Both the machinery of the courts and 
 the judges were being assaulted. The time 
 had actually come when the bench and bar 
 must, or some other agency would reform ju- 
 dicial procedure. It would be merely grati- 
 fying curiosity to delve into the cause of this 
 delay. If one may be permitted to say it, the 
 lawyer of all people should not only modern- 
 
134 SPIRIT OF THE COURTS 
 
 ize the instrumentalities of his profession, but 
 should have a keener insight into all human 
 endeavors, aspirations and inspirations than 
 the followers of any other profession or en- 
 deavor. His highest duty is to advise, and if 
 this be properly and sincerely done he must 
 himself have an intimate knowledge of the 
 workings and conflicts of both public and pri- 
 vate afifairs. 
 
 I venture to assert that the standing 
 of the lawyers and judges of a country 
 mark that nation's position in history. Bril- 
 liant soldiers, comet like, flash their destruc- 
 tive existence across troubled political skies 
 and great statesmen formulate and initiate 
 profound governmental policies, but the work 
 of the jurist and the lawyer is interwoven with 
 a delicate, intimate touch into the very warp 
 and woof of a nation's life, ever regulating the 
 most sacred relations of her citizens. It is 
 constructive statesmanship of the highest class 
 and, in the order of responsibility, ranks next 
 to the church. What a sacred responsibility 
 it is! Let there be a deep conviction that 
 people cannot lose faith in their lawyers and 
 judges without losing respect for and refusing 
 submission to their courts. As the courts 
 weaken, so the government will weaken and 
 no policy can be put into effect. A strong, 
 enterprising, philosophic and militant bar is 
 
SPIRIT OF THE COURTS 135 
 
 coincident with a strong and popular govern- 
 ment and a contented people. This is but nat- 
 ural. The demands and practical details of a 
 commercial life are too numerous and exact- 
 ing to permit of the research, thought and 
 philosophy that falls naturally to the lawyer's 
 lot, however intellectual, educated and able 
 may be the business man. 
 
 "And just experience tells, in every soil, 
 
 That those that think must govern those that toil." 
 
 In a word, the trouble with the lawyers in 
 the past has been an inbred conservatism and 
 caution that engendered antipathy to all 
 change, thereby destroying or greatly reduc- 
 ing the prospect of progress. One would like 
 to find an excuse for this proverbial lack of 
 advancement, for it rests in temperament and 
 not in reason. The law is a science, and the 
 administration of it is a highly technical gov- 
 ernmental function. The preparation and 
 qualification for it is purchased only by years 
 of unremitting toil and personal sacrifice. 
 This is particularly true as to a working fa- 
 miliarity with the subtle, technical procedure 
 and practice prevalent in the courts, and one 
 casts adrift that dearly bought knowledge 
 with reluctance. Nothing but a deep and 
 abiding love of country, or response to the 
 call of public opinion, has ever been able to 
 tempt or to drive lawyers to agree to any 
 
136 SPIRIT OF THE COURTS 
 
 change. They seemed, as a profession, to 
 have been unable to lift their studious gaze 
 from the machinery inherited from antiquity 
 in order that they might see the greater and 
 broader demands of the present and future. 
 It called for change, and novelty is anathema 
 to the lawyer. 
 
 The result is, and the statement is borne out 
 by history, that judicial procedure has always 
 lagged behind the commerce it was created to 
 serve, and until the year 19 12, when the Amer- 
 ican Bar Association acted with a splendid 
 unanimity never before witnessed by an ad- 
 miring world, it has been a bone of contention 
 and strife. Lawyers simply could not or 
 would not agree upon a change or else the 
 manner in which it should be made. It was 
 always a question of form. They professed 
 individually to believe they were improving 
 through the agency of unrelated, unscientific 
 statutes, a dreaded example of which is our 
 much-complicated Federal procedure. 
 
 This inspires the comment that no agency 
 of a representative government that fails to 
 touch the popular life, that shrouds its work- 
 ings in mystery or that renders doubtful its 
 ends by subtlety or technicality, can perform 
 its normal functions or command the requisite 
 popular respect and individual submission. 
 This means it cannot live, though it may op- 
 
SPIRIT OF THE COURTS 137 
 
 press and burden the people for half a century 
 or more because of ignorance of the way in 
 which to rid themselves of the incubus. Di- 
 rectness and simplicity are the keynote of re- 
 publican forms of government, as they are the 
 bases of manly character, the watchwords of 
 commerce and conditions precedent to the 
 usefulness of every governmental function and 
 human relation. 
 
 The abolition of the use of Latin in the 
 pleading and procedure of the English courts 
 is an example of early resentment to mystery 
 in the courts. As early as 1360 pleas were 
 required to be written in English, but in 1609 
 James I wholly abolished it, saying: "I wish 
 the law written in one vulgar language, for 
 now it is an old, mixt and corrupt language 
 only understood by the lawyers." It is an in- 
 teresting coincidence that King James I 
 should have been inspired to express that sen- 
 timent at the time of the announcement of the 
 publication of the Revised Version of the 
 Bible. William Duane, of Philadelphia, who 
 will be remembered as the editor of the 
 "Aurora" and who was tried in 1799 for a 
 breach of the "Alien and Sedition Act," spoke 
 some wholesome truths even while he was 
 committing many indiscretions. He inveighed 
 against both the church and the bar for their 
 inclination to mystery. He pointed out that 
 
138 SPIRIT OF THE COURTS 
 
 the Bible had been printed in a strange lan- 
 guage in England, and that by "farrago of 
 finesse and intricacy and abstruseness the law- 
 yers had brought the science of law into ill 
 repute and suspicion." This policy could sur- 
 vive only with the ignorant. Wholesome, 
 clear-minded, deep-breathing, liberty-loving 
 Americans can not long be led in the devious 
 roads of ignorance and mystery. Faith and 
 patriotism can not so sweetly soothe the curi- 
 ositv or dull the natural and national sensi- 
 bilities that an intelligent man will permit 
 another to do all his thinking, whether right 
 or wrong. Our forefathers fled from the tin- 
 seled pomp, mysterious mutterings and ob- 
 scure deliverances of ancient England to the 
 freedom and frankness of American institu- 
 tions of their own devising and there is not 
 wanted any of its livery in our courts. 
 
 Coke, in the preface to the third volume of 
 his Reports, viewed it in the interest of the 
 public weal. He commented that all law 
 books had been written in Norman French or 
 Latin because "it was not thought fit nor con- 
 venient to publish either those or any of the 
 statutes enacted in these days in the vulgar 
 tongue, lest the unlearned, by bare reading, 
 without understanding, might suck out errors 
 and, trusting to their own conceit, might en- 
 danger themselves and sometimes fall into 
 
SPIRIT OF THE COURTS 139 
 
 destruction." Chancellor Kent, however, was 
 more selfish, and confessed that he made use 
 of the corpus juris because the bench and bar 
 of his day were unfamiliar with the French 
 and the civil law and, therefore, "I could gen- 
 erally put my brethren to rout and carry my 
 point by my mysterious wand of French and 
 civil law." This was a bad example, if an 
 honest confession, and it is set down here that 
 it may be seen that the greatest lawyers were 
 not above capitalizing mystery. 
 
 Samuel L. Knapp, an interesting observer 
 and writer of his day (1821), [Biographical 
 Sketches of Great Lawyers and Statesmen], 
 in speaking of the attitude of the lawyer to 
 the public in 1774 spoke bluntly of the effort 
 to commercialize mystery and said : 
 
 "It would have been in vain for any one man to have at- 
 tempted a reformation, for most practitioners at that period 
 would have united against a change, from the mistaken idea that 
 business depended on giving an air of mystery to the proceedings 
 of the profession, forgetting that no science, however difficult to 
 attain, has any mystery in its farthest researches or in its re- 
 motest principles. It can hardly be believed at this day, but it 
 is a fact, that many old lawyers, who were in full practice when 
 Blackstone's Commentaries first appeared in the country, were 
 frequently heard to regret and complain that he should have so 
 simplified and arranged his subject, and so clearly explained the 
 principles of law, that the same amount of knowledge, which had 
 cost them many years to collect, might be obtained in a short 
 time." 
 
 In the light of the present frank and whole- 
 some attitude of the bar to the public, and the 
 
 12 
 
I40 SPIRIT OF THE COURTS 
 
 co-operative spirit displayed by the largest 
 commercial organizations, one feels at liberty 
 to cite these instances because they serve to 
 illustrate w^hat I venture to believe to be a past 
 improper attitude of lawyers to laymen, and 
 particularly to an intelligent commerce. Mr. 
 Knapp spoke a profound truth in saying that 
 "no science, however difficult to attain, has 
 any mystery in its farthest researches or its 
 remotest principles," and I venture to add 
 that there is no necessity for any in their en- 
 forcement. May it not be possible, as Lord 
 Coke intimated, that mystery in court proced- 
 ure and in professional conduct may also be a 
 cloak hiding the sneaking form of ignorance 
 because "the unlearned * * * have sucked 
 out error, have trusted to their own con- 
 ceit," and find their only protection in 
 technicality, subtlety or obscurity in attack or 
 defense. It is difficult to believe that in this 
 day there are any who would deliberately 
 commercialize the noble profession by veiling 
 in mystery and all manner of technical form 
 the enforcement of the great principles that 
 have been the light of the world, the hope of 
 civilization and the assurance of Christianity 
 since the dawn of creation. The trend of the 
 day in jurisprudence is toward the wholesome 
 atmosphere of simplicity and directness. This 
 is the only lasting inspiration of faith, respect 
 
SPIRIT OF THE COURTS 141 
 
 and love on the part of the individual, sub- 
 mission to governmental restraint and the 
 elimination of the personal equation that 
 makes possible the general welfare. 
 
 The opinion appears justified that the real 
 plague distempering the body politic and lay- 
 ing at the root of the lawyer's trouble was lack 
 of organization. They initiated nothing as a 
 great, organized profession and found them- 
 selves unable to ^gree to the proposals of the 
 politicians who were spurred to action by the 
 very indifference and reactionary methods of 
 the lawyer, and there soon fell upon and vexed 
 the earth a system of inelastic, unscientific 
 "codes" not one of which has survived in any 
 semblance of its original form. The manifest 
 lesson taught is that the judges and lawyers 
 must feel obliged to cause themselves to be put 
 into position to keep pace with the stride set 
 by their fellows engaged in a great and grow- 
 ing commerce, or else submit to inevitable 
 public censure and the humiliating spectacle 
 of observing its house kept in order by the 
 legislative department. Bar associations are 
 the greatest possible agencies for promoting 
 the general welfare, and so long as they thrive 
 there can never be a repetition of past dere- 
 lictions. It is most painful to confess that the 
 records of history do not make unnecessary, 
 though highly illogical, the usurpation of ju- 
 
142 SPIRIT OF THE COURTS 
 
 dicial powers and duties by the legislative de- 
 partment of which complaint is now so justly 
 made. The bench and the bar in yester-years 
 sowed the wind of indifference and a lack of 
 co-operative progress, and in due course have 
 reaped the whirlwind of legislative guardian- 
 ship and a weakened public confidence. The 
 polar star that should guide this generation is 
 the restoration of public confidence in the bar, 
 and all else will follow. 
 
 Every great reform intimately affecting 
 daily intercourse or commerce must undergo 
 the three stages of investigation, education and 
 legislation. Manifestly, reform means change, 
 and change involves inconvenience, if not 
 hardship, for some individuals. Mindful of 
 these practical influences, there were lawyers 
 who looked skeptically upon the realization of 
 the far-reaching reform leading to interstate 
 uniform judicial relations, and, while ap- 
 plauding the thought, felt restrained by the 
 labor imposed. But there were men ready 
 and prepared to undertake it as a duty to their 
 people. The result is that we have lived to 
 see the lawyers and the men of commerce in- 
 vestigate, then help to educate, and finally de- 
 mand of the Congress that it legislate. Thus 
 two stages of the evolution have happily been 
 completed, and it but awaits the action of 
 Congress. 
 
SPIRIT OF THE COURTS 143 
 
 But some one has said that there is being 
 promoted a novel thought in the advocacy of 
 uniformity of decision and uniformity in pro- 
 cedure. The American Bar Association 
 claims no such honor. As a matter of fact, 
 the ideal is as old as governments on this con- 
 tinent and was advocated in England just 
 prior thereto. In the year 1764 Thomas Pow- 
 nall, described as "late Governor, Captain- 
 General, Commander-in-Chief and Vice- 
 Admiral of his Majesty's Provinces, Massa- 
 chusetts Bay and South Carolina," and then 
 Governor of New Jersey, said [The Adminis- 
 tration of the British Colonies, by T. Pownall, 
 I 764 J : 
 
 "I cannot in one view better describe the defects of the pro- 
 vincial courts in these infant governments than by that very de- 
 scription which my Lord Chief Justice Hale gives of our County 
 courts in the infancy of our own government; wherein he men- 
 tions, First, the ignorance of the judges, who were the freehold- 
 ers of the country. Secondly, that these various courts bred 
 variety of law, especially in the several counties; for, the deci- 
 sions or judgments being made by divers courts and several in- 
 dependent judges and judiciaries who had no common interest 
 among them in their several judicatories, thereby in process of 
 time every several county would have several laws, customs, 
 rules and forms of proceedings." 
 
 This seems to be the first authentic appeal 
 for fixed interstate or rather intercolonial ju- 
 dicial relations. It is most encouraging to the 
 disciples of that wholesome philosophy who 
 strive in the year 1917 to find it advocated in 
 
144 SPIRIT OF THE COURTS 
 
 the very dawn of governmental relations in 
 America and in the age of the keenest strife in 
 England's legal history. It is most reassuring 
 that such a great and profound jurist as Sir 
 Matthew Hale should have observed the iden- 
 tical difficulty in England's jurisprudence and 
 set about correcting it against an indifferent, 
 if not a hostile, public opinion. In 1653 Sir 
 Matthew was made chairman of what appears 
 to have been the first official committee on 
 law reform organized by the Anglo-Saxon 
 people, if there be omitted the group of sol- 
 diers and barons who officiated at the sealing 
 of Magna Charta [Campbell's Lives of the 
 Chief Justices]. Associated with him were 
 Cromwell, Sir Algernon Sydney and Sir An- 
 thony Ashley Cooper, names that have become 
 by-words in history. As a comparative study 
 it will serve a purpose to point out that the 
 obstinate English mind chose to view many 
 recommendations as innovations instead of a 
 common-sense application of ancient prin- 
 ciples. They went to the extreme of rejecting 
 the registry of deeds which was already in 
 vogue in the colonies. Yet those same people 
 completely revolutionized their court proced- 
 ure in 1873 ^^^ co-ordinated their courts, 
 while the American States, with four excep- 
 tions (New Hampshire, Connecticut, Vir- 
 
SPIRIT OF THE COURTS 145 
 
 ginia and Colorado), are a century behind, 
 and, instead of harmonizing State procedure 
 and decisions, have gone to the other extreme. 
 Each State Supreme Appellate Court seems 
 to find a peculiar pride in pointing out where 
 it cannot agree with its learned brethren of 
 another State, and each legislature has its own 
 panacea in the form of a code. 
 
 I yield to no man in a faithful allegiance to 
 State's rights as they were learned at the feet 
 of that profound constitutional scholar, John 
 Randolph Tucker of Virginia, but I am not 
 insensible of the manifest obligation of the 
 individual States, like members of a family, to 
 surrender private opinion and even rights in 
 the interest of the general welfare. My idea 
 of the union of States, in their intertsate com- 
 mercial relations, is that of the three muske- 
 teers — "one for all and all for one." It is 
 that taught by .^sop's fable of the bundle of 
 sticks — fastened together, they are unbreak- 
 able, but, separated, they are easy prey. Let 
 us weld them closer together by the co-ordi- 
 nation and co-operation that will follow this 
 ideal of uniformity in all general matters. In- 
 deed, no State can live unto itself, if it would, 
 and no State Supreme Appellate Court can 
 do so with profit to itself and to the people 
 it serves and without harm to those it serves. 
 
146 SPIRIT OF THE COURTS 
 
 The greatest benefit of a broad, neighborly 
 and liberal judicial attitude towards their 
 brethren of other jurisdictions will necessarily 
 inure to the advantage and very practical as- 
 sistance of the men of commerce of one's own 
 State. It will encourage industrial activity, 
 create common ties and dissipate local conceit 
 and selfish pride of opinion as to matters of 
 interstate importance and not purely local 
 in effect. 
 
 The courts are to the government and to 
 commerce what the locomotives are to the 
 railroad and to commerce. The railroads 
 cannot be conducted without locomotives, and 
 governments cannot be conducted without 
 courts. Logically extending this metaphor, a 
 great trunk line may connect the two oceans 
 and traverse the wide expanse of prairies, fra- 
 grant and rich with the harvest treasure ; there 
 may support it the wealth of a Croesus, and 
 direct it the genius of a James J. Hill, but if it 
 be heckled and retarded in each State through 
 which it passes by a dissimilarity of laws and 
 regulations, it cannot properly perform its in- 
 terstate functions. It can rise no higher and 
 be of no greater service to the nation of States 
 than a combination of local trains operated 
 under differing managements and policies, 
 and no national usefulness and greatness can 
 come of it. Now let the thought be applied 
 
SPIRIT OF THE COURTS 147 
 
 to the policy of the several States courts. The 
 various State governments may entertain the 
 best intention toward the splendid interstate 
 commerce that the best interests of all govern- 
 ment require shall be fostered, yet the potency 
 of their laws is measured exactly as they are 
 administered by the courts. If State court 
 decisions lack uniformity and their diverse 
 procedure and practice burden and hamper 
 business that is projected or invited into or 
 through a State, or if justice be interrupted by 
 local traditions or influences, a feeling of hoc 
 tility towards the courts of that State will 
 surely follow. Another thought arises. It 
 need but be said that, in the event of a struggle 
 between commerce and the courts, commerce 
 will prevail, because the courts are but its 
 agents, though they likewise enjoy the dignity 
 of being governmental agencies. How unwise 
 and unprofitable it would be, then, to struggle 
 against a reasonable request for uniformity 
 of law that has become so essential during this 
 twentieth century. Commerce is the life blood 
 of any country, the only measure of its 
 prosperity and success, and the government 
 that best maintains it, is best. 
 
 Mindful of these things, it is with interest 
 that one observes the organization and work- 
 ings of three great civic agencies looking to 
 uniformity in statute, uniformity in procedure 
 
148 SPIRIT OF THE COURTS 
 
 and uniformity in decision, all under the con- 
 trol of the American Bar Association. They 
 are the "Conference of Commissioners on 
 Uniform State Laws," the "Committee on 
 Uniform Judicial Procedure" and the "Inter- 
 state Conference of Judges." They give an 
 assurance of interstate judicial relations as 
 fixed, necessary and useful as fixed interstate 
 commercial relations. 
 
SPIRIT OF THE COURTS 149 
 
 CHAPTER IX. 
 
 Contest Between the Moral and Jural 
 Law. 
 
 Let us depart now from the consideration of 
 the machinery for administering the law and 
 enter into a contemplation of some phases of 
 the philosophy of the law itself as it influ- 
 ences man, his spirit and his conduct. The 
 belief is here ventured, and it is further laid 
 down as a premise, that the tendencies of hu- 
 man nature today are not materially distin- 
 guishable from those of the peoples 'who took 
 their rules of conduct from Hammurabi, 
 Moses, Lycurgus, Solon, Justinian and Na- 
 poleon — the great historical and mythical 
 lawgivers of the world. If any difference 
 there be, it but reflects the evil influences of 
 governmental machinery permitted to become 
 obsolete. Men, overwhelmed by badly ad- 
 ministered law, are like men overwhelmed by 
 a flood — they strike out blindly and catch at 
 straws. In such a cataclysm strong, organized 
 relief is essential, which is the pivotal thought 
 of. the observations to be made. Certain it is 
 that we of this generation lay much store by 
 the principles they propounded, that have out- 
 lived crusades, the decadence of peoples and 
 
ISO SPIRIT OF THE COURTS 
 
 of nations, and have come to us shining im- 
 perishably like bright jewels in the ash heaps 
 of the ages. Modernity, therefore, will do 
 well to search diligently for and studiously 
 avoid the causes that led to the destruction of 
 the governmental systems for which these 
 great lawmakers were responsible. It is well, 
 also, to be mindful that this splendid Republic 
 was created for an original people, a race of 
 pioneers, whose form was copied from no 
 predecessor. 
 
 This government will live and be strong 
 just so long as the principles conceived by its 
 makers, and particularly its three subdivisions 
 of power, are observed ; just so long as a nec- 
 essary response to the demands of inevitable 
 evolution continues to prevent man from be- 
 coming greater than the law; all the while 
 keeping the law in proper subjugation to indi- 
 vidual human rights and improving the ma- 
 chinery thereof, so that it always may be mod- 
 ern, practical, sensible and suitable to the 
 prompt, economical and direct vindication of 
 these rights. These things are conditions sub- 
 sequent and are true, whether the act of the 
 government be one of protection or of depri- 
 vation of natural rights in the interest of so- 
 ciety. The corollary to that proposition is 
 that we must do more than simply enjoy an 
 inheritance that someone else created for us. 
 
SPIRIT OF THE COURTS 151 
 
 We must strive to modernize and to improve 
 it. The legacy of law^ and principle left by 
 our forefathers are so many talents, which we 
 may not wrap in a napkin. Neither may we 
 convert them into a fetish. Thomas Jefferson 
 explained his opposition to certain proposals 
 for the Constitution by predicting that "our 
 children will prove as wise as we are and will 
 establish in the fullness of time those things 
 not yet ripe for establishment." The ques- 
 tion for us to answer is: Have we, nearly a 
 century and a half afterwards, kept the faith, 
 particularly with reference to the judicial de- 
 partment of government, by living up to Jef- 
 ferson's expectations? Are we conservatively 
 progressing or subserviently retrogressing? 
 Nature abhors a vacuum and makes corrup- 
 tion of stagnation. In the history of nations 
 there ever has been evolution or revolution. 
 
 It was a woman (Madame de Stael) who 
 declared "that past which is so presumptious- 
 ly brought forward as a precedent for the 
 present is itself founded on an alteration of 
 some past that went before it * * * ." 
 Tennyson said: "We are the ancients of the 
 earth and in the morning of the times." 
 
 These simple truths seem to underlie and 
 to justify the progressive campaign of the 
 Amerian Bar Association in its conservative 
 efforts to set free the judicial department from 
 
152 SPIRIT OF THE COURTS 
 
 the legislative; to modernize the courts; to 
 segregate purely commercial litigation, r 
 to bring laymen to a better understanding of 
 and into a more sympathetic relation with the 
 judges and lawyers. Its importance cannot 
 well be overestimated. It is profoundly be- 
 lieved that the relation existing between the 
 layman and the lawyer measures the strength 
 of the government and defines its genius. 
 From the beginning of the social compact 
 there is no human endeavor of consequence 
 without the association of the lawyer. The 
 great Jewish doctor of laws, Gamaliel, figured 
 in the life and conduct of the Apostles and 
 saved them by giving to his people conserva- 
 tive, practical advice concerning their public 
 policy [Acts, V:34j. In the first days of the 
 Israelites we are told that God sent judges to 
 deliver the people; that they administered 
 justice, and their authority even supplied the 
 want of a regular government. 
 
 A popular condemnation of judges and 
 lawyers in the past has been a certain symp- 
 tom of governmental weakness and deteriora- 
 tion. A strong bar, which is the concomi- 
 tant of a great bench, has ever been symbolic 
 of a strong, prosperous and contented people. 
 Indeed, of the three divisions of government, 
 the judicial department, of which the lawyer 
 forms a most important part, is the corner- 
 
SPIRIT OF THE COURTS 153 
 
 stone, as it is the guide-post that keeps stray- 
 ing feet in the straight and narrow constitu- 
 tional path; gives confidence to commercial 
 enterprise; stays the threatening hand of op- 
 pression, and gives assurance unto the weak. 
 I venture to assert that the executive and the 
 legislative departments might cease their op- 
 erations for a given time with no other result 
 than inconvenience. But the suspension of the 
 functions of the courts for one day would 
 mean anarchy — when might, and not right, 
 would become the measure of civil liberty and 
 of property rights. How important it is, then, 
 that in the practical application of the jural 
 law the people should respect the bench and 
 the bar; aye, should reverence them and look 
 to them as the preservers of their sacred 
 rights. And what a noble obligation rests 
 upon the judge and the lawyer to measure up 
 to this high calling, particularly by impress- 
 ing his personality and wisdom upon the 
 framing and operation of the judicial depart- 
 ment of the government! 
 
 Three pregnant thoughts may now be con- 
 sidered. The first is that the enactment of 
 conflicting and uncertain statutes, or the over- 
 loading of the books with a plethora of un- 
 necessary laws concerning intimate personal 
 relations, means that courts must be multi- 
 plied, burdened and delayed and the people 
 
154 SPIRIT OF THE COURTS 
 
 confused. The second is that both the lawyers 
 and the judges will be overwhelmed with a 
 great mass of undigested mental diffusions 
 parading in the sacred vestments of judicial 
 decisions or dignified statutes. The third 
 thought is that, turn as one will, the lawyer 
 and the judge, and not the opportunist or self- 
 centered legislator, are the direct victims, and 
 for that reason, if for no other and higher one, 
 are selfishly interested in the legislator's atti- 
 tude towards the judicial department. Let it 
 be emphasized that upon them must rest the 
 sole responsibility for the scientific evolution 
 of the law. The legislative department must 
 therefore set them free, that this duty may be 
 performed. The proverbial patience or sub- 
 serviency, as you please, of the lawyer has 
 ceased to be a virtue. It has become a menace 
 to the government, to his own safety and stand- 
 ing and to that which he holds most sacred. 
 Can the continued usurpation by the legisla- 
 tive department of the functions of the judi- 
 cial department sustain a government against 
 the very genius of which it shows hostility? 
 It is a sense of this dual personal and pro- 
 fessional responsibility resting upon the law- 
 yer at this particular era in the evolution of 
 our governmental life that it is desired to 
 awaken into constructive militancy. 
 
SPIRIT OF THE COURTS 155 
 
 No observant man will longer dispute the 
 fact that this country is on the threshold of an 
 era-making juridical reformation similar to 
 that achieved in England in 1873. The lawyers 
 have almost unanimously accepted the new 
 program, and if they now embrace the oppor- 
 tunity to demand its adoption, it is devoutly 
 believed that they will have performed a 
 greater public duty than had they laid down 
 their lives in battle. The organized voices of 
 upright men earnestly contending for a righte- 
 ous cause can and ever will be heard. It is a 
 profound duty that this campaign be kept out 
 of politics, but a profounder duty to see to it 
 that it succeeds. 
 
 We have in this and preceding chapters 
 been discussing the law and its makers and its 
 administration,' but let us go deeper and con- 
 sider the human nature and the spirit of the 
 man for the regulation of whose conduct the 
 laws are made, for there interesting causes of 
 dissatisfaction will be found. It will appear 
 that the representatives of the people, many of 
 whom are lawyers, have been giving ear to the 
 boisterous brooks that soon lose themselves in 
 the river, and have paid little attention to the 
 deep, serene and irresistible power of the 
 great philosophic stream of humanity. As 
 has been indicated, neither our government 
 nor our people find their prototype in modern- 
 
 13 
 
156 SPIRIT OF THE COURTS 
 
 ity or in antiquity. We must legislate for an 
 original people, from whom, may Heaven be 
 praised! a deep-seated, unselfish, patriotic 
 spirit in the social and national life has not 
 entirely departed. 
 
 Some time ago it was my privilege to attend 
 the "Sportsmen's Show" in New York. One 
 man of the many little groups that filled the 
 "Grand Central Palace" attracted attention 
 not alone on account of his prowess with 
 rifle and rod, nor his adventures and tempo- 
 rary abode in the boundless stretches of the 
 far Northwest. It was the reason that drew 
 him away from the ordinary routine of the 
 much-vaunted organized society of the twen- 
 tieth century, in which every thoughtful man 
 must be interested. Standing well up in his 
 boots, his big frame spoke forcefully of physi- 
 cal health, and his clean eyes, looking straight 
 out from an intellectual face, interpreted elo- 
 quently a clear brain and a wholesome, cheer- 
 ful nature within. He was an unspoiled, nat- 
 ural man. 
 
 The sportsman gave his reason in one sen- 
 tence. This intelligent and intellectual man, 
 resenting the multiplied and conflicting rules 
 of conduct as translated in the form of statutes 
 and reported cases and the crippling of char- 
 acter by the inroads of paternalism in govern- 
 ment, was drawn into the unsurveyed wastes 
 
SPIRIT OF THE COURTS 157 
 
 of the mountain fastnesses in search of a 
 country where a man could still make his own 
 law. The spirit that was within him yearned 
 for a land where he could turn his face to the 
 Maker to whom he acknowledged responsi- 
 bility and final sovereignty, unrestricted by the 
 artifices and egoism of man. "Nature is migh- 
 ty. Art is mighty. Atrifice is weak. Nature is 
 the work of a mightier power than man. Art 
 is the work of man under the guidance and 
 inspiration of a mightier power. Artifice is 
 the work of man alone in the imbecility of his 
 mimic understanding." 
 
 With complete satisfaction, one would se- 
 lect him out of the complex social fabric as 
 being sufficiently far above the average citizen 
 as to wish to know his outlook upon society as 
 it is organized; his ideas of political science; 
 indeed, his philosophy of life itself as these 
 factors enter into, make up and measure the 
 participation of man in the affairs of the brief 
 span allotted to him. And we shall presently 
 see that his views were but observations of 
 the practical contest that is now going on, and 
 that ever has gone on, between the moral and 
 the jural law — between the innate sense of 
 justice voluntarily done, and the artificial 
 standards of conduct enforced by organized 
 government. Obviously, wherever groups of 
 men have their homes in the world, there must 
 
158 SPIRIT OF THE COURTS 
 
 be some restraint, for law is inherent in so- 
 ciety. The merit of such government is re- 
 flected in the general rules of conduct by 
 which rights and duties may be determined 
 and organized. That phenomenon is the 
 course of the jural law subjugating and taking 
 the place of the moral law, and the respective 
 proportion of the two is the measure of per- 
 sonal character and citizenship. 
 
 Taking this sportsman as a fair example of 
 citizenship, does not that cry typify the nor- 
 mal man that laws are made to govern? Is it 
 not of the first importance to permanent civi- 
 lization that organized society should aspire 
 to such a standard? Is it not a true reflection 
 of the real human spirit that it is desired to 
 regulate and, in its analysis, becomes inter- 
 course between the creature and his Creator? 
 Is it not the spirit that should pervade the 
 body of the law and the policy of the govern- 
 ment? That being so, is it well to depart far 
 from its simplicity and wholesomeness in the 
 erection of artificial rules of conduct — the 
 substitutes, considered by Congress and the 
 legislatures to be necessary for the moral law? 
 And while we shall presently see some practi- 
 cal governmental evils following its violation, 
 the ravages upon the ideal citizenship may be 
 fairly well deduced. 
 
SPIRIT OF THE COURTS 159 
 
 A policy of paternalism in goviernment and 
 statutory morals is not keeping the faith with 
 the pioneer spirit. We boast of a progressive 
 country, but when men are taught to lean 
 upon the government, instead of supporting 
 it, the nation is not progressing. It is retro- 
 gressing. A nation is no stronger, purer or 
 better than its people. Governmental im- 
 provement is simply a corollary to individual 
 improvement. That is the reason for popular 
 campaigns of education. It was a sense of 
 personal responsibility and individual inde- 
 pendence that conceived governmental inde- 
 pendence and won it in America, and it is that 
 spirit alone that will preserve it. This coun- 
 try needs fewer new laws and more real men. 
 It needs less jural regulation and more moral 
 sensibility. It needs less public training and 
 more domesticity. It needs fewer codes and 
 more familiarity with the Decalogue. It is 
 certain death to manhood and good citizenship 
 to lead men away from personal responsibility 
 and self-reliance into the delusion of artificial 
 standards. 
 
 "In vain we call old notions fudge, 
 
 And bind our consciences to our dealing; 
 
 The Ten Commandments will not budge, 
 And stealing will continue stealing." 
 
 But let us continue in the train of our 
 Sportsman's observations, for they bubble 
 
i6o SPIRIT OF THE COURTS 
 
 forth from the crystal spring of the uncon- 
 querable human soul. Of him it may be said 
 that "well roars the storm to those that hear a 
 deeper voice across the storm," and Marcus 
 Aurelius epitomized his personal philosophy 
 in: "This being of mine, whatever it really 
 is, consists of a little flesh, a little breath, and 
 the part which governs," that part which, 
 though living with the finite, reaches out 
 everlastingly after the Infinite in all tongues 
 and in all conditions of human beings. I wish 
 to believe that this inclination in the red In- 
 dian, the black Hottentot and the pale Cau- 
 casian is an involuntary effort at a response to 
 a universal law, a system of rules contempo- 
 raneous with the creation of man and the 
 world which he inhabits. "Infinitude silently 
 walks amongst men like beauty invisible in 
 the landscape," and the designation of this as 
 a Christian nation is but a judicial recognition 
 and an attempted application of this great 
 principle. 
 
 We are willing to take our natural philoso- 
 phy from the scientists, and to believe that the 
 whole scheme of creation is controlled by 
 principles and a system of rules, fixed and un- 
 changeable, and often too simple to attract 
 the attention of the wise and prudent, whilst 
 they are revealed unto babes. How many of 
 us, as we stand and gaze into the starry ex- 
 
SPIRIT OF THE COURTS i6i 
 
 panse of night, admiring its grandeur and its 
 beauty, reflect upon the perfect system of rules 
 and laws that keep the trillions of stars and 
 the planets in their charted courses and send 
 the earth whirling in its orbit about the sun on 
 a schedule so simple that man may measure 
 dimensions and speed and fix their stations at 
 any moment in the past, the present, or future! 
 It requires no trespass upon individual relig- 
 ious dogma to believe that this systematic and 
 orderly operation of rapidly moving masses in 
 limitless space is not accidental, nor the out- 
 come of expediency or of experiment. It is a 
 fixed and a designed program, the perform- 
 ance of which is the result of inexorable nat- 
 ural law and of profound principle. 
 
 One need not speculate upon the direful re- 
 sult of the violation of the simplest one of 
 these natural laws, save as it may serve to il- 
 lustrate and to give reason for the application 
 of like rules to man and the moral law that 
 regulates his existence. And no more does 
 one know the present nor the final penalty, nor 
 the present nor the final result of breaches of 
 the moral law. Without caring what view 
 others may take, or acknowledging that our 
 premises require a solution of the world-old 
 problem, as for me, I do not believe that the 
 presence of man on earth is any more of an ac- 
 cident than the organized solar system, or that 
 
i62 SPIRIT OF THE COURTS 
 
 the jural law could forsake that principle and 
 live. An analogous condition would be the 
 regulation of his relation and conduct by cer- 
 tain fixed principles and rules equally as in- 
 exorable. 
 
 Is there not, then, both analogy and reason 
 for the belief that there is a common source 
 of justice, though it may never be found and 
 understood by man, from which all jural law 
 should draw its spirit and power? Lord 
 Chesterfield said to his son: "Let us aim at 
 perfection in everything, though in most 
 things it is unattainable. However, they who 
 aim at it and persevere will come much nearer 
 to it than those whose laziness and desponden- 
 cy make them give it up as unattainable." 
 
 "Success is not reached by a single bound; 
 And we mount to the summit, round by round." 
 
 If as much popular attention and recogni- 
 tion were given to the philosophy of the 
 moral law as is given to the science of the 
 natural law, there would be less need for ar- 
 bitrary jural laws and experimental courts in 
 which to enforce them. The public would 
 cease running to a paternal government for a 
 cure for every social ill. There would be 
 more unspoiled natural men and women and 
 fewer "isms" and "uplifts." They would find 
 the cause of the malady largely in themselves 
 and a lack of spiritual and mental discipline, 
 
SPIRIT OF THE COURTS 163 
 
 and would eradicate the cause, instead of com- 
 plaining of results. The average school child 
 knows more about natural philosophy than the 
 average man knows about moral philosophy. 
 It would greatly aid the Constitution to in- 
 terpolate St. Luke, 10:27. And let me diverge 
 a moment to emphasize that, as the astronomer 
 is the exponent of the natural law, so the law- 
 yer must be the exponent of both the moral 
 and the jural law. His client will seldom 
 rise above him; he will often sink to the 
 client's level. 
 
 There is no better example of this than the 
 achievements of the English people and the 
 English bar. Her most honored men today 
 are her lawyers. How difficult it is to look 
 upon that enlightened, cultivated and power- 
 ful nation whose influence for good is felt 
 around the world, and find justification for 
 Milton's satire or believe Macaulay's descrip- 
 tion of the people immediately following 
 Cromwell's protectorate. Said he: 
 
 "Without casting one glance on the past, or requiring one 
 stipulation for the future, they threw down their freedom at the 
 feet of the most frivolous and heartless of tyrants. Then came 
 those days, never to be recalled without a blush, the days of ser- 
 vitude without loyalty and sensuality without love ; of dwarfish 
 talents and gigantic vices; the paradise of cold hearts and nar- 
 row minds ; the golden age of the coward, the bigot and the 
 slave. * * • The government had just ability enough to 
 deceive, and just religion enough to persecute. The principles 
 of liberty were the scoff of every grinning courtier and the ana- 
 
i64 SPIRIT OF THE COURTS 
 
 thema maranatha of every fawning dean. » * * Crime 
 succeeded to crime and disgrace to disgrace, till the race , ac- 
 cursed of God and man, was a second time driven forth to wan- 
 der on the face of the earth and to be a by-word and a shaking 
 of the head to the nations." 
 
 Now, what obvious deductions may we 
 draw from these thoughts? It is the failure 
 to observe the moral law that brings the jural 
 law into existence; the rapid legislative sub- 
 stitution of policy for principle, and the ini- 
 quitous doctrine of all things being right not 
 forbidden by statute. It is the presence of 
 these jural laws that is crowding the dockets 
 of the courts. It is a failure to keep these 
 laws that is demanding additional courts and 
 commissions without end. 
 
 The plethora of statutes and remedial com- 
 missions may be likened to the effort, with 
 many small vessels, to catch the water from a 
 broken pipe instead of stopping the leak. That 
 means that the road is one without end. Where 
 we shall drop out of the procession one does 
 not like to speculate, unless there comes a re- 
 crudescence of the pioneer spirit, and a livelier 
 awakening of the individual conscience to a 
 sense of personal and public responsibility and 
 duty. This is the task before the American 
 lawyer, in a smaller measure, as it once con- 
 fronted the English bar as a matter of life or 
 death. 
 
SPIRIT OF THE COURTS 165 
 
 Let me ask what is the message carried by 
 the conceded necessity for "domestic" and 
 "juvenile" courts? Has an end been achieved 
 by establishing these extraordinary forums? 
 Far from it, indeed ! They are merely results 
 — danger signals, pointing to a diseased social 
 status — not remedies. Have we searched our 
 minds to justify them, and have we read the 
 answer, that this is one instance where the 
 jural law cannot be substituted for the moral 
 law? If we continue dealing with results and 
 ignore the causes, obviously the results will be 
 multiplied until the very moral status of the 
 nation is weakened. It is taken quite as a 
 matter of fact that Nevada is today capitaliz- 
 ing and legalizing one of the chiefest vices of 
 the nation. This is a preventive age in 
 everything except social relations. We need a 
 little less governmental, "Thou shalt not," and 
 a little more personal, "I will not." Said 
 Disraeli : "When men are pure, laws are need- 
 less; when men are corrupt, laws are broken." 
 
i66 SPIRIT OF THE COURTS 
 
 CHAPTER X. 
 
 The Prevention of Legislation and 
 Litigation. 
 
 It is believed that a proper understanding 
 of government should be carried to the ranks 
 of the people by the trained and thoughtful 
 lawyer, and that their patriotic labor is to him 
 a sacred professional duty. The opinion is 
 ventured that the message will meet with a 
 popular reception and that it is the surest and 
 sanest way of lessening the burdens of the 
 courts. Some years ago a physician surprised 
 his professional brethren by presenting to a 
 lay audience some highly technical aspects of 
 the science of medicine. It proved helpful 
 to his hearers by banishing a great deal of 
 mystery conjured by ignorance and by fortify- 
 ing them against imposition. It proved help- 
 ful to his profession by demonstrating that 
 "no science, however difficult to attain, has 
 any mystery in its farthest researches or in its 
 remotest principles," that the only lasting 
 thing in the world is that which will stand the 
 acid test of common-sense. So the hope of 
 successful government lies in a popular under- 
 standing by the people of its genius and the 
 spirit of the judicial department. Commenced 
 
SPIRIT OF THE COURTS 167 
 
 at the mother's knee, this education should be 
 concluded at the grave. A guarantee against 
 the wiles of self-seeking opportunists and their 
 expediencies is a practical appreciation of the 
 intentions of the founders of the government. 
 That is all that America needs to assure the 
 best results from government and a popular 
 contentment. When the public undergoes the 
 conviction that it is the sick body politic that 
 needs law^, just as it is the sick man that needs 
 medicine, w^e will have gone a long way to- 
 wards preventing both litigation and legisla- 
 tion by adopting measures of prevention. 
 That principle has become the genius of the 
 medical science, and it is applicable to juris- 
 prudence. In this scientific efifort the business 
 man must turn for guidance to his lawyer and 
 not to the self-seeking politician. 
 
 Mr. Madison said nearly a century and a 
 half ago that "if a government be ever adopt- 
 ed in America, it must result from a fortunate 
 coincidence of leading opinions and a general 
 confidence of the people in those who recom- 
 mend it" [Mad. Pap. 663]. Dean Roscoe 
 Pound, of Harvard, said a few months ago 
 (W. Va. Add.) : "The lawyer of tomorrow 
 must master the social sciences, must receive 
 and grasp the ideas developed therein and 
 must show us how to systematize and legalize 
 them." 
 
i68 SPIRIT OF THE COURTS 
 
 It seemed a few years ago to many wise 
 and thoughtful men, without regard to their 
 political inclinations — for there are no poli- 
 tics in the work of modernizing the courts — 
 that the sun of the judicial department of gov- 
 ernment had become a puzzle as to direction. 
 Strange expediencies, like the recall of judges 
 and of judicial opinions, were but symptoms 
 of obvious governmental troubles of operation 
 which were beyond the diagnosis of the gen- 
 eral public and the politicians. This serves to 
 remind us that the character and spirit re- 
 quired to preserve the inherited structure of 
 government must not be far inferior to that 
 which conceived and made it. Government, 
 like water, cannot rise higher than its source. 
 Failure meant to the Constitution-makers a 
 physical death with the halo of martyrdom ; it 
 means to this generation a spiritual death with 
 the disgrace of unworthiness. Let it be under- 
 stood that the scientific improvement of the 
 judicial department of government and the 
 maintenance of its high standards is not alone 
 an economic measure, but one involving lib- 
 erty and even life itself. It is to the nation 
 what the heart is to the body. If one enter- 
 tains a doubt of that, look upon Mexico as a 
 present example of what the failure of the 
 courts means and be convinced. 
 
SPIRIT OF THE COURTS 169 
 
 Now Lord Bacon tells us that "States are 
 great energies moving slowly." So in the 
 structure of the Federal government, our fore- 
 fathers entrusted to posterity for operation a 
 new and experimental engine, but constructed 
 upon scientific principles. In their wisdom 
 they provided against the vagaries, restlessness 
 and unbridled spirits of mankind by carefully 
 evolving and preparing a code of correlated, 
 scientific rules and regulations by which it 
 should be operated, that its structure might 
 be safe from legislative change. To a business 
 man, that is what the Constitution of the 
 United States means, whatever other use may 
 be made of it. 
 
 Unsatisfactory juridical conditions, there- 
 fore, are not necessarily the sign of a bad 
 structure, or even of incompetent officials, but 
 are symptoms of unscientific operation. Let 
 us apply that thought. The legislative de- 
 partment, true to the prediction and fears of 
 the fathers, is trying to manage and to direct 
 the skilled men in. the judicial department 
 just how they shall do things instead of merely 
 what they shall do. Those two words, "how" 
 and "what," often spell success or failure. 
 The courts, therefore, are on a level with the 
 standard fixed by Congressional limitations 
 instead of the ability and training of the 
 judges and lawyers. When an automaton is 
 
lyo SPIRIT OF THE COURTS 
 
 made of a man, sawdust might as well be sub- 
 stituted for brains. 
 
 There is needed also on the bench a recru- 
 descence of John Marshall, with his broad, 
 fearless," statesmanlike, judicial interpretation 
 of the laws wherein was left small necessity 
 for statutes. More dependence must be placed 
 upon the courts and less on statutes. That 
 policy made and saved the structure of the 
 governmnet under John Marshall, and it 
 ought to preserve it. Court decisions must be 
 grounded more upon the fundamental prin- 
 ciples to be found in the maxims. However, 
 until it can be had, and it is a matter of edu- 
 cation, the nearest thing to it is believed to be 
 a scientific commission regulation, which is 
 far superior to regulation by a mass of rigid 
 statutes. We shall presently discuss this 
 thought, not upon principle but as a neces- 
 sary expedient, until the courts shall again 
 properly function. 
 
 The theme underlying the whole scheme 
 of government is that the practical operation 
 of the big structure would require the per- 
 sonal direction and supervision of trained and 
 experienced minds. Like every inanimate 
 thing, the injection of the human element is 
 necessary to create motion and to give it life, 
 and the result of the effort is measured by the 
 quality, character and efficiency of this hu- 
 
SPIRIT OF THE COURTS 171 
 
 man element. The finest engine ever made 
 would prove a failure in incompetent or in- 
 different hands or if not constantly kept in a 
 state of efficiency. Now how did the Foun- 
 ders go about it? The Founders provided for 
 and inspired the expert service by dividing 
 all government into three parts — the "Execu- 
 tive," the "Legislative" and the "Judicial." 
 The powers and duties of each of these de- 
 partments were, of course, definitely fixed in 
 the Constitution. It has been seen that a 
 scrupulous observance of this careful division 
 of power is a condition precedent to success- 
 ful government, but it is well to quote Mon- 
 tesquieu, a great French political scientist, 
 whose writings largely influenced the Con- 
 stitution-makers and whose doctrines are ac- 
 cepted by every shade of respectable Ameri- 
 can politics. Said he: 
 
 "There is no liberty if the judiciary power be not separated 
 from the legislative and executive * * » There would be 
 an end of everything were the same man or the same body, 
 whether of the nobles or of the people, to exercise those three 
 powers, that of enacting laws, that of executing the public resolu- 
 tions and of trying the causes of individuals." 
 
 Let that thought be translated into the lan- 
 guage of business. How long would a big 
 factory maintain its efficiency if, indeed, it 
 continued at all, if the engine-room men un- 
 dertook to direct the operators of the machines 
 or the board of directors undertook to define 
 14 
 
172 SPIRIT OF THE COURTS 
 
 the exact action of all the skilled employees? 
 In fact, what need would there be for skilled 
 employees at all? Now, applying this prin- 
 ciple to the entire machinery of government, 
 we find the legislative department, through 
 the medium of hundreds of statutes, not only 
 operating the courts, but actually defining hu- 
 man conduct iteslf. We are living in an age 
 of statutory morals when the eyes of the con- 
 science that guided the course of the Fathers 
 stand a chance of growing dim from lack of 
 use. The result is that the judges and law- 
 yers have been blamed for wrongs that they 
 had no power to prevent, being bound by Con- 
 gress in statutory hoops of steel. There has 
 come to pass the invasion of the judicial de- 
 partment feared by all the makers of the Con- 
 stitution and the "Virginia Bill of Rights." 
 The obvious end will be the destruction of the 
 independence of the courts, "the greatest 
 curse," said John Marshall, "that could befall 
 a sinful and ungrateful people." It need not 
 be told to practical men that the power to reg- 
 ulate the manner of doing a thing is the power 
 to fix the result. Alexander Hamilton (Fed. 
 Art. 78) said: 
 
 "The complete independence of the courts of justice is peculi- 
 arly essential in a limited constitution. By a limited constitu- 
 tion, I understand one which contains certain specified excep- 
 tions to the legislative authority » » * Limitations of 
 this kind can be preserved in practice in no other way than 
 
SPIRIT OF THE COURTS 173 
 
 through the mediums of the courts of justice. » * • With- 
 out this, all the reservations of particular rights or privileges 
 would amount to nothing. * » » }f„r ^oes this conclusion 
 by any means suppose a superiority of the judicial over the leg- 
 islative poiuer. It only supposes that the power of the people is 
 superior to both." 
 
 The Virginia Bill of Rights declares "that 
 the legislative and executive powers of the 
 State should be separate from the judiciary," 
 and "that the members of the two first 
 may be restrained from oppression by feel- 
 ing and participating in the burdens of 
 the people, they should at fixed periods 
 be reduced to private station and return 
 into that body from which they were 
 originally taken." Now, consider how the 
 Founders felt about the courts. It will be 
 seen that they trusted the courts, that they 
 recommended life-tenure for judges. Mr. 
 Madison said if the government ever fell, it 
 would be the result of legislative encroach- 
 ment upon the judicial department. Gouve- 
 neur Morris pointed to the Aphori at Sparta 
 that destroyed the bravest race of people that 
 ever lived. Thomas Jefferson is the accepted 
 tribune of the people, so let us again hear his 
 views in a letter written December 23, 1791. 
 The views entertained by this great democrat 
 cannot be too often repeated to laymen. Said 
 he: 
 
 "Render the judiciary respectable by every possible means 
 to-vcit, firm tenure in office, competent salaries and reduction of 
 
174 SPIRIT OF THE COURTS 
 
 their numbers. * * » This branch of the government •will 
 have the weight of the conflict on their hands because they lutll 
 be the last appeal of reason." 
 
 Again, in a letter written March 15, 1789, 
 he said: 
 
 "In the arguments in favor of a declaration of rights, you 
 omit one which has great weight with me, the legal check which 
 it puts into the hands of the judiciary. This is a body which, 
 if rendered independent and kept strictly to their own depart- 
 ment, merits great confidence for their learning and integrity ." 
 
 Again, in July, 1776, he wrote: 
 
 "The dignity and stability of government in all its branches, 
 the morals of the people and every blessing of society depend so 
 much upon an upright and skillful administration of justice that 
 the judicial power ought to be distinct from both the legislative 
 and executive, and independent of both, so that it may be a 
 check upon both. 
 
 The whole program, as we have seen, is 
 embraced in the one principle of an equable 
 division of governmental power; that solved, 
 the whole problem is solved, for then, and not 
 until then, can the full benefits of the struc- 
 ture of government be had. In a sentence, 
 this means that Congress must set the Supreme 
 Court free. That is all the trouble with the 
 courts. Now, to be concrete, the first and 
 vital question is the procedure — the machin- 
 ery — of the courts; the second is the person- 
 nel — the judge — and the third is a scientific 
 supervision of operation. Of these, excepting 
 the third, some brief thoughts have been ex- 
 pressed. Now it is important to be fully mind- 
 
SPIRIT OF THE COURTS 175 
 
 ful that a statute concerning procedure is just 
 as binding as a statute concerning the substan- 
 tive law, and the lawyer is sworn to uphold 
 both. Manifestly he is forced to pick flaws 
 and incidentally to retard justice. That is one 
 of the most wicked inventions ever conceived 
 by Congress and legislatures to curse the eth- 
 ics and moral standards of a helpless bench 
 and bar. 
 
 This leads us to consider the advantage 
 of commission over legislative government in 
 practical application. We have seen that the 
 Founders, in order to assure independence of 
 action and to inspire expert service, divided 
 the government into three departments. Reg- 
 ulation of operation by scientific, highly 
 trained, practical commissions is but an ex- 
 tension of that wholesome principle as well as 
 increasing the efifort of civilization for prog- 
 ress, efficiency, centralized responsibility and 
 prevention of litigation. It is the effort to ap- 
 ply business methods to the business of gov- 
 ernment. The people are casting from their 
 vision the veil of mystery and from the path 
 of progress the hollow mockery of form. 
 There is nothing novel in the thought of na- 
 tional government by expert commission regu- 
 lation. Many years ago Congress, wearying 
 of an infinite detail as to which it was in no 
 position to deal, sensibly created the Interstate 
 
176 SPIRIT OF THE COURTS 
 
 Commerce Commission. Through this agen- 
 cy actual, practical and reasonable relief be- 
 came possible in all transportation matters, 
 without endless and expensive legislation and 
 litigation. In effect it is in one a legislature, 
 a court and a policeman as to certain practical 
 matters. What is the result? Instead of 
 plunging into the courts or running to Con- 
 gress for relief, both the citizen and the com- 
 mon carrier simply set forth their grievance 
 before the commission, which grants relief in 
 accordance with the true right and common- 
 sense. The Interstate Commerce Commission 
 does things in months that would require of 
 Congress as many years, and of the courts al- 
 most a lifetime and a fortune, if they were 
 done at all. 
 
 One would have imagined that this splen- 
 did example would have inspired a similar 
 regulation of interstate corporate activity long 
 before abuses so clogged the courts as to be- 
 come a positive menace. Eventually, some 
 genius conceived the idea of sending a sort of 
 expert trainer and regulator among the valu- 
 able and useful but too often wilful creatures 
 of the legislatures. The viewpoint may be 
 illumined by comparison. A corporation is 
 very much like a horse — ^very valuable and 
 useful under control, but a positive menace 
 when vicious. Now the sensible thing is be- 
 
SPIRIT OF THE COURTS 177 
 
 ing done of taming and using the horse in- 
 stead of killing and losing him. I venture to 
 predict that it may require a few years, bur 
 far less time than was demanded by the In- 
 terstate Commerce Commission for a full re 
 alization of the usefulness and value of the 
 Federal Trade Commission. 
 
 The principle of commission in lieu of stat- 
 utory regulation and some sort of scientific 
 superintendence must be applied to American 
 judicature in all its aspects. The Federal 
 Supreme Court, as has been shown, should 
 prepare the scientific rules for the operation 
 of the courts and the Congress will fix their 
 jurisdiction, direct all fundamental matters 
 and questions of permanent procedure and of 
 evidence. Now, while these things complete 
 the organization of the structure and its op- 
 eration, we are still left without provision for 
 a superintendence of the sacred work pro- 
 posed to be performed and the maintenance of 
 its efficiency. It is as if the board of directors 
 had erected a factory and equipped it with 
 machinery, plastered the walls with printed 
 regulations and instructions, employed the 
 necessary laborers, provided for their com- 
 pensation and then had gone fishing. How 
 may that difficulty be met? 
 
 Dean John H. Wigmore says there is need- 
 ed "a chief judicial superintendent." This is 
 
178 SPIRIT OF THE COURTS 
 
 also the view of the American Judicature So- 
 ciety, another respectable authority. Endors- 
 ing the principle, but venturing to extend the 
 agency, it is recommended that a "high judi- 
 cial commission" shall be created by Congress, 
 composed of ten men, to serve without pay, 
 viz. : a justice of the Supreme Court of the 
 United States, a United States circuit judge 
 and a district judge, a State appellate judge, 
 the Solicitor-General or the Attorney-Gen- 
 eral, two law teachers and four active, prac- 
 ticing lawyers. There should be bi-monthly 
 meetings for personal conferences over reports 
 and recommendations received and observa- 
 tions made during that period. The commis- 
 sion would examine into and receive from 
 judges and lawyers reports upon the operation 
 and results of all the courts and observe in- 
 efficiency and delinquency of all sorts. Sug- 
 gestions in the light of existing law for cor- 
 recting the difficulties would be made to the 
 judges and bar associations and recommenda- 
 tions for all necessary additional statutes 
 would be made to Congress and the State 
 legislatures. 
 
 Using Dean Wigmore's illustration again — 
 suppose a machine and its operator failed for 
 five successive times before turning out an 
 acceptable product. Would one stand by and 
 theorize about it? Certainly not. One would 
 
SPIRIT OF THE COURTS 179 
 
 provide a suitable ofBcial supervision to cor- 
 rect the trouble (whatever it happened to be) , 
 and the prime thought would be to engage 
 experts to do it. Indeed, it is difficult for a 
 practical mind to comprehend such a negli- 
 gent state of unpreparedness in any human 
 effort. But above and beyond these things, 
 manifest to all, the real work of the "high 
 judicial commission" would be in perfecting 
 American judicature along scientific lines. 
 The time would come when the legislative 
 department would feel obligated to their con- 
 stituents not to pass any legislation concerning 
 judicature until it had met the approval of the 
 "high judicial commission," for legislators as 
 at present constituted are as anxious as any 
 one for expert advice. 
 
 Mention has been made of these commission 
 measures as being preventive of litigation. 
 They are also preventive legislation. Let me 
 translate in figures the need of it. During a 
 period of five years, and not including 1914, as 
 many as 62,014 public statutes were enacted, 
 that is an average of about one hundred and 
 seventy laws a day, including Sunday. During 
 a recent session of Congress seven hundred laws 
 were enacted and about three thousand meas- 
 ures introduced. Estimating that Congress 
 sits approximately two hundred working 
 days, that means about three and one-half laws 
 
i8o SPIRIT OF THE COURTS 
 
 a day actually passed and about fifteen to be 
 considered by the legislators. Now let us 
 translate into figures the crowded, overcrowd- 
 ed condition of the courts caused by the in- 
 terpretation of these statutes. During the 
 same period six hundred and thirty volumes of 
 law reports were published. Other statistics 
 have been given in a previous chapter, to 
 which reference is made. We may illuminate 
 the thought through a brief observation of the 
 calendar of the highest court in the land. The 
 United States Supreme Court is the most de- 
 liberative body within the conception of the 
 mind of man and requires time for mature 
 thought. Haste in its affairs is not conceiv- 
 able. But it has its economic side as well as 
 commerce, and its humanity may gradually 
 respond to a public demand for dispatch at 
 the cost of the wisdom that has saved and 
 made this government. That condition pre- 
 sents the greatest menace to the life of this 
 Republic. Faith in and veneration for the 
 Supreme Court is the cohesive power holding 
 together the union of States. It handed down 
 539 cases in one year. Let us turn on the 
 microscope of analysis. Deducting Sundays 
 and Saturdays and a thirty-day holiday, there 
 are left only about 231 working days, which 
 means nearly two and a half cases a day. 
 Manifestly, the Supreme Court is physically 
 
SPIRIT OF THE COURTS i8i 
 
 one of the hardest-worked bodies in America. 
 This same condition applies to over half the 
 Federal court dockets in the country, though 
 the latter's congestion would be corrected 
 largely by an assignment of judges to circuits 
 where needed and the involuntary retirement 
 of a few incapacitated ones, as is done in Eng- 
 land and as officers are retired in the army 
 and navy. If justice deferred is justice de- 
 nied, here is work for the "high judicial com- 
 mission" in evolving and making recommen- 
 dations to the Congress, and it is believed that 
 Congress will welcome the aid just as the 
 President sought the advice of experts in time 
 of stress. 
 
i82 SPIRIT OF THE COURTS 
 
 CHAPTER XL 
 
 "Politics the Enemy of Justice." 
 
 In a country where politics is often a voca- 
 tion and necessary popularity is often pur- 
 chased at the sacrifice of principle, it will be 
 profitable to reflect upon the advice and fears 
 of the Founders of the government in this 
 respect, lest we forget a very sacred and con- 
 tinuing duty. The Virginia Bill of Rights de- 
 clares "that no free government or the bless- 
 ings of liberty can be preserved to any people 
 but by a firm adherence to justice, moderation, 
 temperance, frugality and virtue and by a fre- 
 quent recurrence to fundamental principles." 
 George Washington gave expression to the 
 corollary to this proposition that "in propor- 
 tion as the structure of government gives force 
 to public opinion, it is essential that public 
 opinion should be enlightened." Hon. Elihu 
 Root, while president of the American Bar 
 Association, in a communication to its mem- 
 bers proposed a practical application. Said 
 he: 
 
 "The people of our country are called upon to solve many 
 new problems and to face new duties dependent upon con- 
 ditions of which they are not fully informed and to make the 
 most important decisions for which they require education and 
 leadership of opinion. It is plain that the whole world has 
 
SPIRIT OF THE COURTS 183 
 
 entered upon a period of re-examination and development of 
 political and judicial systems. * * * In this juncture the 
 highest duty of service to the country rests upon the Bar. Their 
 knowledge, their training, their fitness to lead opinion, should be 
 utilized to the utmost." 
 
 While we shall confine ourselves to Ameri- 
 can judicature, these two quotations and Mr. 
 Root's letter aptly give expression to the three 
 thoughts and the general theme of what is to 
 follow. In them we have the thing to be 
 done, the proper agency to achieve it and the 
 fundamental principles that should guide in 
 their accomplishment. 
 
 The belief is ventured that the greatest 
 merit of the scheme of the American Repub- 
 lic is its ready response in every part to the 
 actual and ever-changing needs of men. No 
 other could have withstood a little over a cen- 
 tury's increase in population of over a hun- 
 dred million people and a corresponding in- 
 crease in wealth, commerce, industry and 
 temperamental changes without marked or- 
 ganic changes, if not successful revolution. Its 
 elasticity, without the sacrifice of organic 
 strength, is its featural merit. Said Dr. David 
 Jayne Hill: "Instead of receiving law from 
 the philosopher's study or a transcendental 
 source claiming Divine authority, or from the 
 throne of a Caesar, it is accepted as a necessity 
 arising from the nature and social needs of 
 men." This means individual sacrifice and 
 
i84 'SPIRIT OF THE COURTS 
 
 individual participation. "Isolation," says Dr. 
 Hill, "means death, and his whole existence 
 depends upon a living relation to this human 
 environment." 
 
 Conceding the perfection of this great ma- 
 chine, as all men do, there must not be lost 
 sight of the human element entering into both 
 its operation and effect. Manifestly a prompt 
 and intelligent response to the demands upon 
 a civilized people, whether of sacrifice or par- 
 ticipation, depend upon an understanding of 
 the general purpose and need requiring these 
 things. The fall of every government, we are 
 authoritatively told, is traceable to a lack of 
 intelligent understanding and participation 
 that eventually led to absolutism. This prin- 
 ciple is reflected in the hysterical campaigns 
 preceding political contests, but it is actually 
 seen in the substance in the moderate, non- 
 partisan efforts of the bench and bar. These 
 efforts tend to direct the thoughts of the citi- 
 zens to those simple, basic principles em- 
 braced by the framers of the Constitution and 
 that have proved altogether acceptable and 
 sufficient. Inasmuch as these good and wise 
 men, as we shall see, recognized human na- 
 ture as an important element with which to be 
 reckoned not only in the citizen, but in those 
 who operate the government, it is well that 
 succeeding generations shall not ignore it. 
 
SPIRIT OF THE COURTS 185 
 
 Indeed, of the grave importance of bring- 
 ing the general public into a closer relation 
 with and a better understanding of the science 
 of government and of the judicial department 
 in particular, and its real independence of 
 both the executive and legislative depart- 
 ments, there is no longer a question amongst 
 thoughtful and observant men. There is a call 
 to the lawyers as educators such as was never 
 so earnest and insistent. An uneasy feeling 
 concerning the effectiveness of the courts has 
 had much to do with it. The legislative de- 
 partment, in the absence of accredited objec- 
 tion or the submission of matured programs, 
 has gradually impinged upon the inherent and 
 organic powers of the judicial department, as 
 we have seen. 
 
 By this conduct we shall see that the legisla- 
 tive department has unwittingly and with the 
 highest motives justified the fears of the wise 
 and forward-looking framers of the Constitu- 
 tion. That the framers were conscious that 
 the legislator's processes of reasoning differed 
 from that of the judge and lawyer and citizen, 
 and that his habit of mind underwent a 
 change, sufficiently appears from their public 
 expressions and from the Virginia Bill of 
 Rights, where the constant return of the legis- 
 lators to the body of the people is recommend- 
 ed. I would have it borne in mind that Mr. 
 
i86 SPIRIT OF THE COURTS 
 
 Jefferson himself recommended life-tenure for 
 judges and depended upon them to save the 
 structure of government in both spirit and 
 letter. However, for obvious reasons, organic 
 preventive measures against legislative tres- 
 pass were not feasible. Marshall said there 
 were certain dangers inherent in human na- 
 ture from which no protection could be had, 
 except the genius of government, and that 
 would be preserved by the courts. There can 
 be no permanent provision against that in- 
 definable, unaccountable, misdirected human 
 equation that has destroyed governments, that 
 has bankrupted commercial ventures, and 
 which must be regulated as it arises. That is 
 the function of education — of the creation of 
 wholesome public sentiment. "When educa- 
 tion has been neglected or improperly man- 
 aged, we see the worst passions ruling with 
 uncontrolled and incessant sway." The logic 
 of what has been said is that the organized 
 lawyers are the manifest, if not the sole, de- 
 fenders and protectors of the powers of the 
 judicial department as defined by the Consti- 
 tution-makers. Now it is comforting to ob- 
 serve that in these efforts there is, with rare 
 exceptions, assurance of intelligent Congres- 
 sional co-operation in every duly accredited 
 proposal. It must be remembered that, how- 
 ever slowly Congress has responded in the 
 
SPIRIT OF THE COURTS 187 
 
 past, there has been no organized plan in- 
 volving fundamental principles, and Congress 
 has gone along performing the Bar Associa- 
 tion's duties as well as its own and as best it 
 could. If it has become a habit, as seems to 
 be the case, the lawyer cannot escape without 
 censure. "In this juncture," Mr. Root warns 
 you, "the highest duty of service to the coun- 
 try rests upon the bar." 
 
 It is well at this juncture to be concrete and 
 indulge in a moment's review of American 
 procedural history, both State and Federal, 
 and recall its haphazard fashioning. Without 
 any fixed plan. Congress has gradually given 
 to America a juridical status that is admittedly 
 without defense in reason or practice. The 
 economics of it is, that commerce is turning to 
 arbitration or to discouragement of litigation. 
 The New York State Chamber of Commerce 
 has an organized propaganda to that end, 
 working in co-operation with the State Bar 
 Association. The tragedy of it is that this 
 condition is rapidly alienating the necessary 
 respect and veneration of the people. We 
 have shown that it has deprived the govern- 
 ment of the valuable asset of the co-ordination 
 and co-operation of the bench and bar by forc- 
 ing the lawyers under their oath of qualifi- 
 cation to pick flaws instead of facilitating the 
 issue of fact to be tried. One cannot be un- 
 
 IS 
 
i88 SPIRIT OF THE COURTS 
 
 mindful of the fact that a procedural statute 
 is as much law as one concerning substance, 
 and equally binding upon the oath of qualifi- 
 cation to uphold the law of the land. It has 
 retarded the even flow of justice and has en- 
 couraged litigation for the sole purpose of de- 
 lay. It has in some instances converted the 
 certainty of justice into a gamble, and has 
 required in Illinois as many as six trials in 
 one case and the end is not yet. It is destruc- 
 tive of the spirit of uniformity in law, in its 
 enforcement and in its interpretation. Last, 
 but not least, it is rapidly involving a highly 
 scientific element of government in needless 
 technicalities and is plunging American judi- 
 cature into practical politics. If they could 
 speak to their children, what would the spirits 
 of Washington, Jefferson, Madison, Wilson, 
 Hamilton or Iredell say of the manner in 
 which their sacred structure is being oper- 
 ated? We soon shall see some of the things 
 they provided for and against, and repeat 
 their predictions that the existence of this gov- 
 ernment depended upon the absolute inde- 
 pendence of the judicial department. What, 
 also, must be the mental attitude of a people 
 who, as of right, expect a reasonable certainty 
 of justice economically and speedily adminis- 
 tered ! There is no other excuse for the exist- 
 ence of government! 
 
SPIRIT OF THE COURTS 189 
 
 Inasmuch as it is and ever has been the 
 worst offender against principles and the great- 
 est enemy of justice, let us first consider the 
 effect of politics, and we shall try to do our 
 thinking in the spirit and much in the lan- 
 guage of the good and wise men who con- 
 ceived the structure of our government, for 
 thereby we shall obey the mandate of the Vir- 
 ginia Bill of Rights, to recur to fundamental 
 principles. Now one would hardly seek a 
 more acceptable source than the welcome let- 
 ters of John Adams to his friend, Thomas 
 Jefferson, as they looked upon the progress of 
 the thing that bore the impress of their very 
 souls. Said Mr. Adams: 
 
 "Parties and factions will not suffer or permit improvements 
 to be made. As soon as one man hints at an improvement, his 
 rival opposes it. No sooner has one party discovered or in- 
 vented an amelioration of the condition of man or the order of 
 society than the opposite party belies it, misconstrues it, insults 
 it and persecutes it." 
 
 Said George Washington in his farewell ad- 
 dress : 
 
 "The common and continual mischiefs of the spirit of party 
 are sufficient to make it the interest and the duty of a wise 
 people to discourage and restrain it. It serves only to distract 
 the public counsels and enfeeble the public administration. 
 * * * A fire not to be quenched, it demands a uniform vigi- 
 lance to prevent its bursting into flame, lest instead of warming 
 it should consume. In offering to you, my countrymen, these 
 counsels of an old and affectionate friend, I dare not hope they 
 will make the strong and lasting impression I could wish. But, 
 if I may even flatter myself that they may be productive of some 
 
I90 SPIRIT OF THE COURTS 
 
 partial benefit, some occasional good, that they now and then 
 recur to moderate the fury of the party spirit * • * to 
 guard against the imposters of pretended patriotism, this will 
 be a full recompense for the solicitude for your welfare by 
 which they have been dictated." 
 
 Now Mr. Jefferson, during the pre-Con- 
 vention days that put every citizen to the test, 
 was doing some profound thinking and giving 
 to the framers its full benefits. However, let 
 us first quote a letter written in 1816, wherein 
 he set forth the limitations of ancient law- 
 makers and called upon America to profit by 
 their failure. Said he: "They had just ideas 
 of the value of personal liberty, b-ut none at all 
 of the structure of government best calculated 
 to preserve it." This renders very pertinent 
 Mr. Jefferson's pre-Convention measure of 
 the structure of' government concerning the 
 courts. In a letter written in July, 1776, to 
 George Wythe, quoted in a previous chapter 
 and worthy of reproduction, he said: 
 
 "The dignity and stability of government in all its branches, 
 the morals of the people and every blessing of society depend 
 so much upon an upright and skillful administration of justice 
 that the judicial power ought to be distinct from both the legis- 
 lative and executive, and independent of both so that it may be 
 a check upon both, as both should be checks upon that — the 
 judges, therefore, should always be men of learning and experi- 
 ence in the law, of exemplary morals, great patience, calmness 
 and attention. Their minds should not be distracted with 
 jarring interests; they should not be dependent upon any man, 
 or body of men. To these ends they should hold their estates 
 for life in their offices, or during good behavior, and then ascer- 
 tained and established by law." 
 
SPIRIT OF THE COURTS 191 
 
 In a letter written from Paris in 1789 to 
 George Wythe, and at this time the Federal 
 Judiciary Bill was under discussion, he said: 
 
 "In the arguments in favor of a Declaration of Rights, you 
 omit one which has great weight with me; the legal check which 
 it puts into the hands of the judiciary. This is a body which, if 
 rendered independent and kept strictly to their own department, 
 merits great confidence for their learning and integrity." 
 
 Now it transpired that Mr. Jeflferson lived 
 to see his own sound theories applied to the 
 actual operation of government at the hands 
 of John Marshall and the firm establishment 
 of the great principle that "it is the province 
 and duty of the judicial department to say 
 what the law is." Let no man read that letter, 
 whatever might have been Mr. Jefiferson's 
 subsequent political hatred of him, and re- 
 iterate that John Marshall did not in truth 
 interpret fundamental principles and Mr. Jef- 
 ferson's own views when he wrote the historic 
 opinion in "Marbury v. Madison" [r Cranch. 
 137 (U. S.), 2 L. ed. 60]. He logically ap- 
 plied the identical "legal check" commended 
 by Mr. Jefferson and now praised by a proud 
 and grateful nation without reference to politi- 
 cal persuasion. As a matter of fact, Mr. Jef- 
 ferson's subsequent political conduct fully 
 vindicated his own warning and the predic- 
 tion of Washington as to the uncertain and 
 dangerous influence of politics upon the con- 
 
192 SPIRIT OF THE COURTS 
 
 duct of the courts. It is also an illustration 
 that greatness does not alter humanity in poli- 
 tics and that the genius of government is the 
 only hope of its stability, for the great and 
 versatile Jefferson became the greatest politi- 
 cal example. 
 
 But let us go a little further. In the mod- 
 ernization of the judicial department we have 
 contended, therefore, that it should be re- 
 formed and subsequently directed by expert 
 and non-partisan practitioners and judges. 
 Mr. Madison, the protege of Mr. Jefferson, in 
 a letter to Mr. Randolph, lays down our text 
 and appropriately defines the lawyer's present 
 duty. Said he [Mad. Pap. 663J : 
 
 "Whatever respect may be due to the rights of private judg- 
 ment, and no man feels more of it than I do, there can be no 
 doubt that there are subjects to which the capacities of the bulk 
 of mankind are unequal, and on which they must and will be 
 governed by those with whom they happen to have acquaintance 
 and confidence. * * * The great body of those who are for 
 and against it must follow the judgment of others not their 
 own." 
 
 Let us now trace further the history and 
 evolution of the present Federal practice. The 
 thought of conforming to the practice of each 
 State, we are told by the Supreme Court 
 [Bk. V. Halstead, 10 Wheat, 51-59, L. ed. 264, 
 265 J, was induced by the mistaken theory 
 that "State systems then in actual operation, 
 well known and understood, and the propriety 
 
SPIRIT OF THE COURTS 193 
 
 and expediency of adopting which they would 
 well judge of and determine," would con- 
 tinue. There can be no doubt that "conform- 
 ity" was also a political sop thrown to the 
 States to lessen the violent local prejudice that 
 actually refused their admission into some 
 States. But so strong has the legislative habit 
 grown that some legislators, but for their re- 
 spect for public opinion, would amend the 
 Ten Commandments. Constant, unscientific 
 legislation finally created a condition that 
 caused the Supreme Court to declare that "to 
 conform to such statutes of a State would un- 
 necessarily encumber the administration of 
 the law as well as tend to defeat the ends of 
 justice in the national tribunals." Thereupon 
 followed both judicial and legislative amend- 
 ments and rules with [Mexican Ry. Co. v. 
 Pinckney, 149 U. S. 205, 7] an entire control 
 of the procedure after the judgment is en- 
 tered. Fifty odd notable exceptions to con- 
 formity have created a new and distinct body 
 of unrelated procedure known as "Federal 
 practice." To the average lawyer it is San- 
 skrit; to the experienced Federal practi- 
 tioner it is a monopoly. To the author it is a 
 golden harvest. At every Federal bar in this 
 country a few lawyers that have undergone 
 the labor and made the sacrifice of specializ- 
 ing in Federal procedure, necessarily monopo- 
 
194 SPIRIT OF THE COURTS 
 
 lize the practice in the Federal courts either 
 originally or as associate counsel. 
 
 While objections to the proposed reform are 
 rare, it will serve a purpose at this point to 
 make reply to the few offered in Congress to the 
 Bar Association's program. One was against 
 any change in the Federal or State prac- 
 tice at all because some lawyers might be in- 
 convenienced in having to learn a new system. 
 This causes us to ask if the lawyers have sunk 
 so low in political estimation that it is thought 
 that they would put their personal comfort or 
 advantage, or even their lives, ahead of the 
 sacred duty of assuring the certainty of jus- 
 tice. It is hardly necessary to remark upon 
 the inherited duty of defending and perfect- 
 ing the government handed down to them by 
 their forefathers. A failure of duty by the 
 lawyers calls for criticism, it is true, but it 
 does not deserve any such castigation as that. 
 Viewing it in a lighter sense, it is as if one 
 rebelled against the laws of sanitation because 
 of the trouble of taking a bath. Let it be said 
 that the bankers have accepted and are profit- 
 ing by a complete reorganization of their de- 
 partment. Are the lawyers less patriotic and 
 loyal and capable? 
 
 Another reason was that the small practi- 
 tioner and the country lawyer could not af- 
 ford to "learn" the new system for the few 
 
SPIRIT OF THE COURTS 195 
 
 cases he would command. The answer is that 
 there will be nothing to "'learn," but only di- 
 rections to follow, as is the case in England. 
 There will be no technicalities and no pitfalls 
 to avoid. The rules will be scientific, but 
 simple and practical, and almost free from 
 appealable error. As is the case in England, 
 there will be no further need of libraries of 
 text books written by great scholars and jur- 
 ists like Judge Rose and Mr. Foster. And it 
 will serve a probative purpose to observe that 
 one of two things is certain — either these 
 books are needed or else the ablest lawyers 
 and judges of America are being sadly de- 
 ceived and the Supreme Court of the United 
 States is guilty of untimely jesting. 
 
 Now we must consider a thing that the 
 lawyers could afford to ignore in dignified 
 silence, but that capital might be made of it. 
 One distinguished Senator felt obliged to 
 characterize the almost unanimous effort of 
 the organized bar to return to ancient prin- 
 ciples as being inspired by selfish motives — a 
 desire for personal advantage because uni- 
 formity would enable a few lawyers to prac- 
 tice in all the courts. But for the respect in 
 which men have held this Western Senator, 
 the words placed in the mouth of Northum- 
 berland by Shakespeare would be appropri- 
 ate: "See what a ready tongue suspicion 
 
196 SPIRIT OF THE COURTS 
 
 hath!" The earnest and unselfish efforts of 
 Senators and Congressmen to properly solve 
 this vital problem and their present co-opera- 
 tive spirit renders this unfortunate and iso- 
 lated accusation painfully regrettable. Let us 
 hope that the time is not far distant when the 
 judicial department shall be unmolested in the 
 application of science to juridical conditions. 
 It stands to reason that a change to simplicity 
 of procedure is against the interest of the ex- 
 pert Federal practitioner, for with a simple 
 and uniform practice he will find the door of 
 no court closed in his face. 
 
 And it is such an obvious thing that one 
 does not have to be told that the organized 
 program was instituted in the Federal courts 
 from the profoundest reason and logic. First, 
 the conceded failure of State conformity 
 called for a substitute. The Federal govern- 
 ment could not follow the States, so it was 
 reasonable to give the States an opportunity 
 to follow the Federal government. That State 
 which tries to live unto itself will suffer if it 
 does not perish. In spite of ourselves, we are 
 all for one and one for all, as Dr. Hill scien- 
 tifically demonstrated. Secondly, a simple, 
 scientific, correlated system of rules such as 
 would be prepared and promulgated by the 
 Supreme Court of the United Stares would be- 
 come a model that would, for reasons of con- 
 
SPIRIT OF THE COURTS 197 
 
 venience as well as of principle, be adopted 
 by the States. This will prove a fourfold vir- 
 tue — ( I ) the improvement of State procedure, 
 (2) the adoption of court rules in lieu of a 
 statutory procedure, (3) the possibility of 
 State uniformity and (4) the foundation for 
 fixed interstate judicial relations as permanent 
 and correlated as interstate commercial rela- 
 tions. It is the only way that uniformity is 
 possible and yet not compulsory, the psychol- 
 ogy of which is important where State pride 
 is an element. 
 
 There is another very material thought evi- 
 dencing influence upon the independence and 
 perfection of the courts, particularly in the 
 West, which is being warped by the cancer 
 of politics. Courts do not draw their power 
 from the words of constitutions and statutes, 
 but from a patriotic individual submission 
 and respect that is the noblest attribute of 
 American citizenship. We are not all born 
 Americans, and thereby feel restrained or 
 made patient by the beautiful sentiment of a 
 birthright, so necessity and not altruism must 
 set us to the task of education, which must not 
 be left to the politician. Many there are who 
 feel justification in doubting whether the true 
 American spirit of the pioneers shall survive 
 the "melting pot" of the many nationalities 
 who evidence approval of our government 
 
198 SPIRIT OF THE COURTS 
 
 and American spirit by voluntarily becoming 
 citizens. In this matter we are confronted by 
 a condition and not a theory. The responsi- 
 bility of revealing to these new citizens the 
 genuine spirit of our institutions and of teach- 
 ing them the distinction between liberty and 
 license is knocking loudly at every citizen's 
 door. The American national life does not 
 permit of the flow of a gulf stream of foreign 
 governmental and individual theories through 
 its midst. 
 
 I would mention an old, old story as a ve- 
 hicle to convey a new thought. God's cove- 
 nant with Abraham was the promise that "in 
 thee and in thy seed shall all the nations and 
 families of the earth be blessed." Abraham 
 left his country and kindred and went into 
 strange lands to raise up a new people. Isaac 
 was faithful to his birthright. But Esau, 
 whose duty it was to keep the family covenant 
 (Gen. 25-34), despised it and eventually bar- 
 tered it in satisfaction of temporary appetite. 
 He had no conception of the sacred obligation 
 of an inherited duty and cared for nothing but 
 the attraction of the present, for which he re- 
 sorted to any expediency. 
 
 Some three hundred years ago the Patriots 
 left their country and kindred and came into 
 this strange America to raise up a new and 
 mighty nation. Inspired by a love of liberty 
 
SPIRIT OF THE COURTS 199 
 
 and righteousness and individual independ- 
 ence, to them as sacred as Abraham's cove- 
 nant with God, they left to their children the 
 Constitution of the United States, that 
 through it all the nations and families of the 
 earth might be blessed. John Marshall, Vir- 
 ginia's greatest gift to the nation, preserved it 
 in its perfect spirit and splendid glory. My 
 appeal to this generation is that there shall be 
 no Esaus in our midst to barter away that 
 birthright for any temporary advantage. 
 
200 SPIRIT OF THE COURTS 
 
 CHAPTER XII. 
 
 Is THE Common-Law Relation of Judge 
 AND Jury Subject to Legisla- 
 tive Change?* 
 
 The usefulness of juries is like that of cer- 
 tain drugs, in that, when taken scientifically 
 and in proper proportion to other medicinal 
 agencies, they possess valuable preventive and 
 curative properties; taken otherwise, they may 
 become dangerous. Hence, the danger of im- 
 
 *The authorities on the constitutional question in this case 
 have been fully presented to the Committee in the learned brief 
 of Mr. Shelton, submitted to the sub-committee November lo and 
 22, 1915. 
 
 Report of Hearing pursuant to S. Res. 552 ( 63d Cong., 
 Third Session, p. 30). The hearing is entitled "Simplifi- 
 cation of Judicial Procedure" and the brief is entitled 
 "Is the common law relation of judge and jury 
 subject to legislative change?" 
 Beside the case of Capital Traction Co. v. Hof, 174 U. S. i, 
 cited on the hearing in which this brief is submitted, the other 
 authorities are so fully collected by Mr. Shelton that it would 
 be superfluous to add anything. They establish the proposition 
 that under the Seventeenth Amendment parties in the Federal 
 courts are entitled to a trial by jury, in which the judge assists 
 the jury upon the facts as well as directs them upon the law. 
 Everett P. Wheeler, 
 Robert E. L. Saner, 
 Henry B. F. MacFarland, 
 Frederick A. Penning, 
 
 For Committee American Bar Association. 
 Henry W. Taft, 
 
 Chairman Committee on Law Reform 
 
 New York State Bar Association. 
 Walker D. Hines, 
 Chairman Federal Legislation Committee, 
 
 the Association of Bar of the City of New York. 
 
SPIRIT OF THE COURTS 201 
 
 pairment of the juristic value of the jury, 
 through a disturbance of the constitutional 
 balance of power, may be as great as the de- 
 struction of it. This is a practical considera- 
 tion as well as a scientific one, since it in- 
 volves the sacrifice of the great common-law 
 principles cbeval with its creation and that 
 recommended themselves to Hamilton, Jeffer- 
 son, Ellsworth and Madison. Therefore, a 
 people possessed of the noblest intentions, but 
 trying to steer a course between the Charybdis 
 of the whirlpool of demagogic flattery, pas- 
 sion and prejudice, and the Scylla of the 
 eternal rock of principles, will do well, occa- 
 sionally, to test their governmental compasses 
 by the pioneer viewpoint, if not the spirit 
 thereof. The trial by jury adopted and pre- 
 served by our ancestors was according to the 
 course of the common law, and the perpetua- 
 tion of those principles thereby becomes the 
 most sacred obligation of good citizenship. 
 When the American Republic was launched 
 upon the governmental seas it was not without 
 a charted course. 
 
 "The first Continental Congress, in the Declaration of Rights 
 adopted October 14, 1774, unanimously resolved that 'the re- 
 spective Colonies are entitled to the common law of England, 
 and more especially to the great and inestimable privilege of 
 being tried by their peers of the vicinage, according to the 
 course of common laiu.' i Jour. Cong. 28. The Ordinances of 
 1787 provided that the Northwest Territory should always be 
 entitled to the benefit of the writ of habeas corpus and of the 
 
202 SPIRIT OF THE COURTS 
 
 trial by jury and of judicial proceedings, according to the com- 
 mon lata, i Charters and Constitutions, 431." [Capital Trac- 
 tion Co. 11. Hof, 174 V. S. I, 6.] 
 
 According to the accepted theories of 1776 
 and of today, absolutism has no place in 
 jurisprudence, for co-ordinated moderation, 
 patriotism and profundity, alone, assure the 
 greatest certainty of justice. In the words of 
 Sir Matthew Hale, "as the jury assists the 
 judge in determining the matter of fact, so the 
 judge assists the jury in determining points 
 of law, and also very much in investigating 
 and enlightening the matter of fact, whereof 
 the jury are the judges." Trial by jury is 
 either a right or a privilege. If the former, 
 and it is so expressed in the Constitution, it 
 follows that its use cannot be dispensed with 
 and, therefore, the only legislative question is 
 the manner of its use or the measure of the 
 participation of the jury. 
 
 The English rules at the present time — 
 though not at the time of the adoption of the 
 American Constitution — specify the issues 
 where it may be demanded as a matter of 
 right [^Jenks, Short History of English Law, 
 p. 369] ; in America it is organically a right 
 that must be expressly waived. In England 
 and in the American Federal Courts, and in 
 many State courts, its participation in the trial 
 is subject to the "direction and superintend- 
 
SPIRIT OF THE COURTS 203 
 
 ence" of the judge. It has steadily followed 
 one course in the Federal Courts — that of the 
 common law of 1776. In some States its 
 power is subject only to instructions in the 
 law of the case, but with power in the judge 
 to set aside a verdict given contrary to the evi- 
 dence. In this instance the judge illogically 
 "superintends and directs" afterwards, and 
 not before the verdict. Whether this be a 
 distinction, with or without a difference, is 
 later to engage our thoughts. The power to 
 set aside a verdict has been a right and a duty 
 of the courts since ''attaints began to be dis- 
 used and new trials introduced in their stead," 
 and is, therefore, as ancient as the jury itself. 
 [Blackstone, Bk. Ill, p. 375]. 
 
 Unmindful of its history and origin, there 
 are iconoclasts, influenced by splendid senti- 
 mental impulses, so reckless as to wish to de- 
 stroy centuries of established science, as em- 
 bodied in the course of the common law, by 
 taking away every limitation upon the jury 
 and leaving it, instead of the judge, the di- 
 recting genius of the trial, thereby permitting 
 inexperience and human impulse to perform 
 the sacred office of directing the administra- 
 tion of justice. This danger was foreseen by 
 Blackstone, Sir Matthew Hale and other 
 great statesmen, as we shall presently see. It 
 is well to remark that England is probably a 
 
 16 
 
204 SPIRIT OF THE COURTS 
 
 country of the greatest possible individual 
 freedom, yet her people have strictly main- 
 tained and strengthened the ancient ideals of 
 direction by the judge and have abolished the 
 jury as a right in many cases, particularly in 
 simple commercial disputes. 
 
 In fixing a standard, it should never be for- 
 gotten that, w^hen "trial by jury" was slow^ly 
 developing into its maturity, England was 
 passing through her darkest days and her peo- 
 ple were sorely tried by capricious or wicked 
 princes ; that great legal giants, like Hale and 
 Blackstone, always solicitous of individual 
 rights, approved of it in the detail in which 
 it was adopted in America, and that the pio- 
 neers embraced it and preserved it in that 
 form, and not as it now is in England or 
 France or in some of the American States. 
 This is mentioned with the intention to im- 
 press the thought that no set of men, unless it 
 were their English progenitors, could hope to 
 be more watchful or more solicitous of the 
 public welfare than those who framed the 
 United States Constitution. No one could 
 have greater reason for being suspiciously 
 careful. They were not of a mind to adopt 
 English institutions which they did not deem 
 to be essential or believe to be perfect and 
 with the genius of which they were not thor- 
 oughly familiar. There is not now, nor has 
 
SPIRIT OF THE COURTS 205 
 
 there ever been, the least suspicion that the 
 makers of the Constitution were ignorant ex- 
 perimentalists or seekers after innovation. 
 Their every act reflected the pioneer spirit of 
 individual responsibility and character, in- 
 stead of governmental regulation, and if one 
 of their great institutions has gone wrong it is 
 not the fault of the institution. There should 
 be a correct diagnosis before a remedy is haz- 
 arded. 
 
 For so many years have the federal district 
 judges "directed and superintended" the 
 juries in their courts — to use the language of 
 the Supreme Court of the United States 
 [Capital Traction Co. v. Hof, 174 U. S. I, 15, 
 43, L. Ed. 874, 878] — that that important fea- 
 ture of the trial by jury might, in any event, 
 be looked upon as a fixture in American na- 
 tional jurisprudence. That the venerable cus- 
 tom has been abused, is not surprising to the 
 student and observer of the past four decades 
 of American political history and its effect 
 upon the Federal Courts in certain sections of 
 the country. That this unjudicial conduct is 
 ceasing, as we shall endeavor to show, charac- 
 terizes a new era in the Federal District 
 Courts. 
 
 The power of "directing and superintend- 
 ing" the jury, as has been shown, is not a 
 creature of statute or of the courts ; nor is it a 
 
2o6 SPIRIT OF THE COURTS 
 
 thing "to be taken on and off" at the pleasure 
 of the legislative department — it inheres in 
 the thing itself. It would not be a trial by jury, 
 according to the course of the common law, 
 without the exercise of the directing power by 
 the judge. The United States Supreme Court 
 has said this in so many words. The custom 
 came to America as an integral part of the 
 common law trial by jury. The Seventh 
 Amendment adopted it, as it was then in the 
 common law, as a standard and a measure, 
 and to that the litigant is entitled as a matter 
 of constitutional right. A deprivation of an 
 essential portion of a thing can be as disas- 
 trous as a taking of the whole. In principle, 
 it is the same. 
 
 The jury is preserved in the American Con- 
 stitution as the protector of the common peo- 
 ple, and it has admirably fulfilled its purpose. 
 Yet it is interesting to observe the authentic 
 belief that it originated in the later Roman 
 Empire as an expediency to serve the purpose 
 of the prince; that it was adopted in England 
 for no good end ; that its growth was encour- 
 aged by the Crown, because of the notice of 
 land ownership thereby obtained, and was ac- 
 celerated by an unholy competition for busi- 
 ness between two English courts — the Com- 
 mon Pleas and the King's Bench {^Jenks, Hist. 
 Eng. Law, p. 47]. Though recognized in 
 
SPIRIT OF THE COURTS 207 
 
 Sweden and Denmark and "all the Northern 
 nations," and probably in Athens [Blackstone, 
 Bk. Ill, pp. 349-350] its development to its 
 present usefulness and yet unmeasured value 
 is but a part of the w^holesome evolution of 
 meritorious British juristic institutions under 
 the guidance of a studious and liberty-loving 
 bench and bar and citizenship. The practice, 
 in its full common-law flower, exists today in 
 the American Federal courts, for in modern 
 England trial by jury is no longer a matter of 
 right, except in certain specific issues [Jenks, 
 Hist. Eng. Law, p. 369]. 
 
 Inasmuch as the viewpoint so often deter- 
 mines the light in which a thing is seen and 
 so often influences the conclusion reached, a 
 little philosophy may serve a useful purpose. 
 It was a well-known judge of a juvenile court 
 who wished to destroy the institution of mat- 
 rimony, because it seemed to him that all the 
 children were criminals and that parents were 
 no longer able to discipline their offspring. 
 His spiritual horizon 'had become contracted 
 by the dimming of the sunlight of faith in 
 humanity. So it has become that in political 
 theory the jury is the power that withholds 
 the "mailed fist" of the corrupt, partial or op- 
 pressive judge. But in political science and 
 juridical practice it is, and ever should be, 
 the practical aid to the competent judge in the 
 
2o8 SPIRIT OF THE COURTS 
 
 never-ending effort to find the evasive truth, 
 and, furthermore, it is the means of exercising 
 "the transcendent privilege that no man can 
 be affected either in his property, his liberty 
 or his person but by the unanimous consent of 
 twelve of his neighbors and equals" IBlack- 
 stone, Bk. Ill, p. 379]. If all judges v^^ere 
 competent or ordinarily just. Sir Matthew 
 Hale's common-law system would continue to 
 be ideal. The former is a questionable com- 
 mentary upon the personnel selected as judges 
 by the President and Senate, and evidences an 
 obvious effort to avoid an evil consequence of 
 indiscretion. The latter sets a high ethical 
 mark and requires that it shall be attained by 
 both the appointing power and the appointees, 
 for they are equally responsible. It is the 
 man that needs changing, if necessary, and 
 not the thing preserved to their descendants 
 by the pioneers. But there is a practical rea- 
 son. The former makes of the judge a mod- 
 erator and a mere figurehead, from which 
 anomalous status many of our court troubles 
 now arise, while the latter requires of him ju- 
 dicial temperament, juristic equipment and 
 juridical training. As Dean Lile has said, the 
 latter "makes of law more nearly a science and 
 justice a certain measure." 
 
 In practical operation a trial should be two 
 important co-operating agencies laboring to 
 
SPIRIT OF THE COURTS 209 
 
 the same end, according to their respective 
 qualifications, and so mingling their common 
 efforts in a harmony of purpose as largely to 
 nullify the human limitations of both. Co- 
 ordination, not rivalry, should prevail. 
 
 In the course of a carefully considered opin- 
 ion in a case involving the validity of a waiver 
 of jury trial, Mr. Justice Brew^er said : 
 
 "In this, as in other respects, it (the Constitution) must be 
 interpreted in the light of the common law, the principles and 
 history of which were familiarly known to the framers of the 
 Constitution. 
 
 "Blackstone's Commentaries are accepted as the most satis- 
 factory exposition of the common law of England. At the time 
 of the adoption of the Federal Constitution it had been pub- 
 lished about twenty years, and it has been said that more copies 
 of the work had been sold in this country than in England, so 
 that undoubtedly the framers of the Constituion were familiar 
 with it" ISMck V. U. S.-. 195 U. S. 65, 69, 49 L. Ed. 99, 102]. 
 
 Previous to that time Mr. Justice White, in 
 the case of Knowlton v. Moon, [178 U. S. 41, 
 95, 44 L. Ed. 991 ] had said : 
 
 "The necessities which gave birth to the Constitution, the con- 
 troversies which preceded its formation and the conflicts of opin- 
 ion which were settled by its adoption, may properly be taken 
 into view for the purpose of tracing to its source any particular 
 provision of the Constitution in order thereby to be enabled to 
 correctly interpret its meaning." 
 
 WHAT BLACKSTONE SAID. 
 
 (i) The Virtue of Trial by Jury. 
 
 "The impartial administration of justice, which secures both 
 our person and our properties, is the great end of civil society. 
 But if that be entirely entrusted to the magistracy, a select body 
 of men, and those generally selected by the prince or such as 
 
2IO SPIRIT OF THE COURTS 
 
 enjoy the highest offices in the State, their decisions, in spite of 
 their own integrity, will have frequently an involuntary bias 
 towards those of their own rank and dignity; it is not to be 
 expected from human nature, and the few should be always at- 
 tentive to the interests and good of the many" [Balckstone, Bk. 
 Ill, p. 379]. 
 
 (2) The Peril of Too Much Latitude. 
 
 "On the other hand, if the power of judicature were placed 
 at random in the hands of the multitude, their decisions would 
 be wild and capricious, and a new rule of action would be every 
 day established In our courts" UbidA 
 
 (3) The Judge Should Sum Up and Direct. 
 
 "When the evidence is gone through on both sides, the judge, 
 in the presence of the parties, the counsel and all others, sums 
 up the whole to the jury; omitting all superfluous circumstances, 
 observing wherein the main question and principal issue lies, 
 stating what evidence has been given to support it, with such 
 remarks as he thinks necessary for their direction, and giving 
 them his opinion in matters of law arising upon that evidence" 
 Ubid, p. 375]. 
 
 Such is Mr. Blackstone's appreciation of 
 the jury and of the judge. Such is his meas- 
 ure of their province, and such the Supreme 
 Court of the United States has formally de- 
 clared, as we have seen, is the exact thing in- 
 tended to be preserved to the people in the 
 Seventh Amendment to the Federal Consti- 
 tution. 
 
 Now let us see how the federal courts have 
 proceeded in applying this ancient doctrine. 
 
 "In the courts of the United States, as in those of England 
 from which our practice is derived, the judge in submitting a 
 case to the jury may, at his discretion, whenever he thinks it 
 necessary to assist them, call their attention to parts of the evi- 
 
SPIRIT OF THE COURTS 211 
 
 dence he thinks important and express his opinion upon the 
 facts; and the expression of such an opinion, when no rule of 
 law is incorrectly stated and all matters of fact are ultimately 
 submitted to the determination of the jury, cannot be reviewed 
 on a writ of error." 
 
 So said Mr. Justice Gray in the case of 
 Vicksburg R. Co. v. Putman [118 U. S. 545, 
 553> 30 L. Ed. 257J. Judge Sprague, of the 
 Massachusetts District Court, in 1863, had 
 said [United States V. 1363 Bags of Merchan- 
 dise, 2 Sprague, 85, 88] : 
 
 "The trial by jury was, when the Constitution was adopted 
 and for generations before that time had been here and in Eng- 
 landi a trial of an issue of fact by twelve men under the direc- 
 tion and guidance of the court. This direction and superin- 
 tendence •was an essential part of the trial." 
 
 Judge Spr ague's views having been adopted 
 by Mr. Justice Gray in 1899, ^^ the case of 
 Capital Traction Co. v. Hof [174 C7. 5. i, 43 
 L. Ed. 874 j, a brief review of that case is in 
 order. 
 
 The appellant's sole contention was that 
 "there had not been a constitutional trial by 
 jury." It had been proceeded against in tort 
 by Hof before a justice of the peace to recover 
 damages laid at $300.00. The magistrate, 
 upon request of plaintiff, Hof, empaneled a 
 jury and went through all the accepted forms 
 of a trial by jury, under authority of an Act 
 of Congress to that eflfect. The case eventually 
 reached the Federal Supreme Court on the 
 
212 SPIRIT OF THE COURTS 
 
 defendant's objection that "a trial before a jus- 
 tice of the peace with a jury was unknown at 
 common law and was illegal and unconstitu- 
 tional," as well as the plaintiff's contention 
 "that no fact tried by a jury shall be otherwise 
 re-examined in any court of the United States 
 than according to the rules of the common 
 law." A decision, responding to these two 
 contentions, became impossible without the 
 definition of the common-law jury, as pre- 
 served by the Seventh Amendment. In pre- 
 cise language it was given. 
 
 "Trial by jury," said the Court, "in the primary and usual 
 sense of the term at the common laiu and in the American Con- 
 stitution, is not merely a trial by a jury of twelve men before 
 an officer vested with authority to cause them to be summoned 
 and empaneled, to administer oaths to them and to the con- 
 stable in charge, and to enter judgment and issue execution on 
 their verdict; but it is a trial by a jury of twelve men, in the 
 presence and under the superintendence of a judge empowered to 
 instruct them on the law and to advise them on the facts, and 
 (except on acquittal of a criminal charge) to set aside their 
 verdict if in his opinion it is against the law or the evidence. 
 This proposition has been so generally admitted and so seldom 
 contested that there has been little occasion for its distinct asser- 
 tion. Yet there are unequivocal statements yet to be found in 
 the books. 
 
 "Lord Hale in his 'History of the Common Law,' touching 
 trial by jury, said: 'Another excellency of this trial is this, that 
 the judge is always present at the time of the evidence given 
 in it. Herein he is able in matters of law emerging upon the 
 evidence to direct them; and also, in matters of fact, to give 
 them great light and assistance by his weighing the evidence 
 before them and observing where the question and knot of the 
 business lies; and by showing them his opinion, even in matters 
 of fact, which is a great advantage and light to laymen. And 
 thus, as the jury assists the judge in determining the matter of 
 
SPIRIT OF THE COURTS 213 
 
 fact, so the judge assists the jury in determining points of lata, 
 also very much in investigating and enlightening the matter of 
 fact, whereof the jury are the judges" [Capital Traction Co. v. 
 Hof, p. 874]. 
 
 We come now to the consideration of an- 
 other and an equally well-established element 
 of trial by jury — the right of the judge to di- 
 rect the verdict. The custom would seem to 
 inhere in the juridical organization, albeit, its 
 claim as a practice is not so great upon an- 
 tiquity. It will prove convenient, for very 
 obvious reasons, to review at the same time 
 the decisions involving demurrer to the evi- 
 dence, involuntary non-suits and the happy 
 disappearance of the "scintilla doctrine." Its 
 history may be confined to its course in Amer- 
 ica, since the custom seems not to have been 
 coeval with the erection of the courts, but is a 
 subsequent juridical evolution. A peremptory 
 direction, it is interesting to observe in con- 
 nection with what has just been said and it is 
 important that it be borne in mind, does not 
 deprive one of a constitutional right preserved 
 in the right to a trial by jury. It will appear 
 later, however, that it has been held to be a 
 legal right. We have contended that the right 
 of the judge to sum up and superintend is or- 
 ganic, and we know that a jury of a number 
 less than twelve and one sitting with a justice 
 of the peace is a deprivation of a constitu- 
 
214 SPIRIT OF THE COURTS 
 
 tional right. So the pursuit of the course of 
 the courts may be continued. 
 
 In Treat Co. v. The Standard Steel & Iron 
 Co. [157 U. S. 674, 675, 39 L. Ed. 853, 854J, 
 Chief Justice Fuller said : 
 
 "The only ground relied on to sustain the jurisdiction of this 
 Court is that the case 'involves the construction or application of 
 the Constitution of the United States'; because plaintiff in error 
 •was deprived of the right of trial by jury. But it is well settled 
 that vrhere the trial judge is satisfied, upon the evidence, that 
 the plaintiff is not entitled to recover, and that a verdict, if ren- 
 dered for the plaintiff, must be set aside, the Court may instruct 
 the jury to find for the defendant. Grand Chute v. Winnegar, 
 82 U. S. 355, 21 L. Ed. 170; Marion v. Clark, 94 U. S. 278, 24 
 L. Ed. 59; Herbert v. Butler, 97 U. S. 319, 24 L. Ed. 958. If the 
 Court errs, as a matter of lawi in so doing the remedy lies in a 
 review in the appropriate court." 
 
 This would appear to be such an important 
 element of judicial power as to inhere in the 
 very organization of the courts and needful in 
 maintaining a proper efficiency. 
 
 "The Court," says Mr. Cooley [Cooley, 
 Const. Lim., 6th Ed., p. 193 J, sits to enforce 
 the legislative will." Does it enforce it as a 
 servant, as an agent, or as a co-ordinate power 
 of equal dignity, is the question proposed to 
 be answered. Said President Keith in the 
 case of Carter v. Commonwealth [96 Va. 791, 
 816, 325. £.780, 785]: 
 
 "In the courts created by the Constitution there is an inherent 
 power of self-defense and self-preservation that this power may 
 be regulated but cannot be destroyed, or so far diminished as to 
 be rendered ineffectual by legislative enactment; that it is a 
 
SPIRIT OF THE COURTS 215 
 
 power necessarily resident in and to be exercised by the Court 
 itself, and that the vice of an act which seeks to deprive courts 
 of this inherent power is not cured by providing for its exercise 
 by a jury. * * * The history of this Court, and, indeed, 
 of all courts of this Commonwealth, shows the jealous care with 
 which they have ever defended and maintained the just authority 
 and respect due to juries, an agency in the administration of 
 justice, but our duty, as we conceive it, requires us not to be less 
 firm in vindicating the rightful authority and power of the 
 courts." 
 
 If directing a verdict, as we have just seen, 
 does not impinge upon individual rights and 
 guarantees, there will not be found those to 
 seriously claim that it invades the legislative 
 department. The department, at common law, 
 never interfered with the detailed operation 
 of the courts. It is only by modern statutes 
 that it has been attempted. 
 
 It is provided in the Constitution that "the 
 judicial power of the United States shall be 
 vested in one Supreme Court and in such in- 
 ferior courts as the Congress may, from time 
 to time, ordain and establish" [U. S. Const., 
 Art. Ill, Sec! i]. The synonyms of "power" 
 are "potency" and "efKciency" ; therefore, the 
 obligation to see to it that judicial potency and 
 efficiency are maintained is vested in the 
 courts and not in the legislative department. 
 This is a condition precedent to an indepen- 
 dent departmental status, else the courts would 
 become the mere tools of the legislative de- 
 partment. 
 
2i6 SPIRIT OF THE COURTS 
 
 "There is no liberty," said Montesquieu, "if the judiciary 
 power be not separated from the legislative and executive. 
 * * * There would be an end of everything were the same 
 man or the same body, whether of the noblest or of the people, 
 to exercise those three powers — that of enacting law, that of 
 dividuals." [Montesquieu, Spirit of the Laws, Bk. XI, Ch. 6]. 
 dividual:" Montesquieu^ Spirit of the Lanes, Bk. XI, Ch. 6]. 
 
 This great principle is eloquently expressed 
 in the Virginia Bill of Rights, and is self- 
 evident in the Federal Constitution. 
 
 The mischievous consequences of an im- 
 proper personnel upon the bench, in specific 
 instances, has provided a legislative excuse 
 for encroaching upon the constitutional judi- 
 cial province. Inasmuch as the Congress con- 
 firmed these objectionable selections and still 
 leaves them to work their uncertain way, jus- 
 tification in fact cannot be demonstrated. The 
 thoughtful citizen, and even the man in the 
 street, is beginning to see the cause of the evil 
 wrought by these things and, instead of the 
 expediency of the recall, is demanding that 
 Congress shall return to and the courts be 
 operated upon first principles. There is a 
 wholesome renaissance of the Montesquieu 
 governmental theories that were the soul of 
 the Bill of Rights and the spirit of the Consti- 
 tution, a wholesome symptom of which is the 
 retirement of code practice and the substitu- 
 tion therefor of scientific correlative rules 
 made by the Court. A brief outline of the 
 
SPIRIT OF THE COURTS 217 
 
 course of the development of the practice, as 
 nearly as may be, in the language of the 
 courts, will now be undertaken. 
 
 Chief Justice Marshall, in 1828, in the case 
 of Elmore v. Grymes [i Pet. 469, 471, 7 L. 
 Ed. 221, 226], said: 
 
 "The Court * * » is of the opinion that the Circuit 
 Court has no authority to order the peremptory non-suit against 
 the will of the plaintiff. He had the right by law to a trial by 
 jury and to have had the case submitted to them. He might 
 agree to <t non-suit, but if he did not so choose, the Court could 
 not compel him to submit to it." 
 
 But Mr. Justice Johnson, who tried the case 
 at nisi prius and failed to observe an organic 
 distinction in the procedure, filed a spirited 
 and well-reasoned minority opinion which, in 
 effect, has become the law and custom and, 
 therefore, commands equal consideration. 
 
 "I ordered," said he, "the plaintiff below to be non-suited be- 
 cause the evidence was so inadequate as not to maintain his 
 suit; and had the jury found for him I would have set aside 
 the verdict and ordered a new trial. The practice of the Court 
 in which the cause comes up is this: when the plaintiff has closed 
 his evidence the defendant is at liberty to move for a non-suit or 
 to proceed with his testimony. If he introduces evidence, it is 
 too late to move for a non-suit and the question always to be 
 examined is, whether, upon the evidence introduced by the 
 plaintiff admitting it to be true, the jury can find a verdict for 
 him. So that it is, in fact, ( i ) a substitute for demurrer to 
 evidence, or (2) a motion for instruction that plaintiff can not 
 recover upon the case made out for him in evidence" [i Pet. 469, 
 472, 7 L. Ed. 221, 227]. 
 
 Mindful that an involuntary non-suit may 
 not now be ordered, except when in conform- 
 
21 8 SPIRIT OF THE COURTS 
 
 ity to State practice [U. S. v. Parker, 120 U. 
 S. 89, 95, 30 L. Ed. 604; Gassman v. Jarvis, 
 94 Fed. 603], let us turn to some later opin- 
 ions of the court for a confirmation of the 
 statement just made. And in order to discuss 
 the evolution of the practice in the language 
 of the Court, a departure from the chrono- 
 logical order is found convenient. 
 
 Mr. Justice Swayne in 1864 objected to cer- 
 tain instructions because, 
 
 "in effect, they took the case from the jury * * » Where 
 there is no dispute about the facts and the law arising upon 
 them is conclusive against the right of the plaintiff to recover, 
 it is proper for the Court to instruct the jury accordingly. This 
 is equivalent to a demurrer to the evidence, and such an in- 
 struction ought to be given whenever the evidence is not legally 
 sufficient to serve as the foundation of a verdict for the plain- 
 ti" ISchuchardt v. Aliens, i Wall. 359, 369, 17 L. Ed. 642]. 
 
 In Mr. Justice Miller's opinion in Pleas- 
 ants V. Fant [89 U. S. 116, 121, zzL. Ed. 780, 
 783], it is said: 
 
 "In the case of Parks v. Ross, ii How. 362, 13 L. Ed. 731 
 (1850), this Court held that the practice of granting an instruc- 
 tion like the present had superseded the ancient practice of de- 
 murrer to evidence and that it answered the same purpose and 
 should he tested by the same rules; * * » And in Schuch- 
 hardt v. Aliens, i Wall. 359, 17 L. Ed. 642, the case (Parks v. 
 Ross) is referred to as establishing the doctrine that if the evi- 
 dence be not sufficient to warrant a recovery, it is the duty of 
 the Court to instruct the jury accordingly." 
 
 It is interesting to note that twenty-two 
 years elapsed between Elmore v. Grimes and 
 Parks V. Ross, and that the issue in the latter 
 
SPIRIT OF THE COURTS 219 
 
 case drose upon the motion of the defendant, 
 "That if the evidence is believed by the jury 
 to be true, the plaintiff is not entitled to re- 
 cover." It is timely to quote the Court's ex- 
 act language, as follows : 
 
 "It is undoubtedly the peculiar province of the jury to find 
 all matters of fact, and of the Court to decide all questions of 
 law arising thereon. But a jury has no right to assume the 
 truth of any material fact, without some evidence legally suffi- 
 cient to establish it. It is, therefore, error in the Court to 
 instruct the jury that they may find a material fact, of which 
 there is no evidence from which it may be legally inferred. 
 
 "Hence the practice of granting an instruction like the pres- 
 ent, which makes it imperative upon the jury to find a verdict 
 for the defendant, and ivhick has in many States superseded the 
 ancient practice of a demurrer to evidence. It answers the 
 same purpose and should be tested by the same rules. A de- 
 murrer to evidence admits not only the fact stated therein, but 
 also every conclusion which a jury might fairly or reasonably 
 infer therefrom" [Parks v. Ross, ii Hovii. 362, 373, 13 L. Ed. 
 731]. 
 
 Inasmuch as a comparison of the office of 
 the ancient demurrer to the evidence with the 
 modern practice of directing the verdict will 
 be more effective in the light of the Supreme 
 Court's measure of the former, it will be in- 
 teresting at this point to take note of some 
 old decisions. Said Chief Justice Marshall: 
 
 "The party demurring admits the truth of the testimony to 
 which he demurs, and also those conclusions of fact which a 
 jury may fairly draw from that testimony. Forced and violent 
 inferences he does not admit, but the testimony is to be taken 
 most strongly against him, and such conculsions as a jury might 
 justifiably draw, the Court ought to draw" {Pawling v. U. S„ 
 4 Cr. 219, 221, 2 L. Ed. 601] 
 
 17 
 
220 SPIRIT OF THE COURTS 
 
 In the case of Banks v. Smith [24 U. S 
 T71, 179, 6 L. Ed. 443, 446], Mr. Justice 
 Thompson said : 
 
 "By this demurrer the defendant has taken the questions of 
 fact from the jury, where they properly belong, and has substi- 
 tuted the Court in the place of the jury, and everything which the 
 jury could reasonably infer from the evidence demurred to is 
 to be considered as admitted. The language of the adjudged 
 case on this subject is very strong to show that the Court will be 
 extremely liberal in their inferences where the party demurring 
 will take the question from the proper tribunal. It is a course 
 of practice, generally speaking, that is not calculated to promote 
 the ends of justice." 
 
 Thus the price of a demurrer to the evi- 
 dence, proved a heavy handicap to the party 
 disputing the legal effect of the evidence. He 
 purchased immunity from the hazard of the 
 jury by risking the result of the case upon his 
 knowledge of the law and the sacrifice of the 
 right to dispute anything the plaintiff might 
 choose to testify, regardless of the real facts. 
 The former was probably justified, but the 
 latter seems not to have been believed to be 
 within the pale of reason or moderation, or in 
 the interest of a helpless laity. That it was 
 too unreasonable to hold a place within the 
 juridical organization in England or Amer- 
 ica, subsequent history has demonstrated. A 
 great teacher (Charles A. Graves, University 
 of Virginia) advised against its use, except 
 "in the defense of an action by a poor widow 
 against a railroad corporation for the killing 
 
SPIRIT OF THE COURTS 221 
 
 of her only cow." Without agreeing with his 
 mode of procedure, we turn for vindication to 
 the prophetic reasoning of Mr. Justice John- 
 son's dissenting opinion in Elmore v. Grimes, 
 for "the stone which the builders rejected is 
 become the head of the corner" of the Federal 
 juridical structure. 
 
 "In practice it subserved the purposes of justice under our 
 system as effectually as a bill of exceptions, or a demurrer to 
 evidence, and in several respects better, (i) It saves the prac- 
 titioner from the weight of responsibility, which often results 
 from being compelled to elect between a voluntary non-suit and 
 a demurrer to evidence, or a bill of exceptions, which may ter- 
 minate fatally to his clients; and (2) it not unfrequently saves 
 his client from the fatal effects of negligence and misapprehen- 
 sion, either of himself or his attorney; or (3) from surprise. 
 (4) In point of convenience and expedition in the administration 
 of justice, I presume there cannot be two opinions" [1 Pet. 469, 
 473, 7 L. Ed. 221, 228]. 
 
 Let US now follow briefly the growth of this 
 suggestion and see it develop into the full 
 flower, wherein will be found every principle 
 announced by Mr. Justice Thomson, but with- 
 out violating an organic right. 
 
 In 1874 careless counsel for the defendant, 
 after plaintiflf had rested, untechnically moved 
 the Court "to decide that the evidence was not 
 sufficient to entitle the plaintiff to a verdict." 
 In discussing this motion the Court said : 
 
 "Suppose the motion is regarded as a motion for a non-suit, 
 it was clearly one which could not be granted, as it is well set- 
 tled that the Circuit Court does not possess the power to order 
 a peremptory non-suit against the will of the plaintiff. Elmore 
 
222 SPIRIT OF THE COURTS 
 
 V. Grimes, i Pet. 469; Castle v. Bullard, 64 U. S. 172, 16 L. Ed. 
 424. * * * but the defendant may, if he sees fit, at the close 
 of the plaintiff's case, move the Court to instruct the jury that 
 the evidence introduced by the plaintiff is not sufficient to war- 
 rant the jury in finding a verdict in his favor, and it is held that 
 such a motion is not one addresed to the discretion of the Court, 
 but that it presents a question of law, and that it is as much the 
 subject of exceptions as any other ruling of the Court in the 
 course of the trial. Schuchhardt v. Allen, 68 U. S. 370, 17 L. Ed. 
 646; Parks V. Ross, 11 How. 362, 13 L. Ed. 731; Bliven v. New 
 England Co., 64 U. S. 433, 16 L. Ed. 514. All things considered, 
 the Court is inclined, not without some hesitation, to regard the 
 motion as one of the latter character" [Mercantile Co. v. Fol- 
 som, 85 U. S. 237, 250, 21 L. Ed. 827, 833]. 
 
 Parks V. Ross was decided in 1850. Mr. 
 Justice Gray, in 1883, concisely sums up the 
 doctrine and refers to English (we will not 
 call it common law) authority: 
 
 "It has been recently decided by the House of Lords, upon care- 
 ful consideration of the previous cases in England, that it is for 
 the judge to say whether any facts have been established by 
 sufficient evidence, from which negligence can be reasonably and 
 legitimately inferred, and it is for the jury to say whether from 
 these facts, when submitted to them, negligence ought to be 
 inferred. R. Co. v. Jackson, 3 App. Cas. 193" {Randall v. B. & 
 R. Co., 109. U. S. 478, 482, 27 L. Ed. 1005]. 
 
 That this research made by the House of 
 Lords was satisfactory to the Supreme Court 
 of the United States, closes discussion that 
 the practice in 1883 and prior thereto was a 
 fixture in English jurisprudence. The Court 
 had already said: 
 
 "It is the settled law of this Court that when the evidence 
 given at the trial, with all inferences that the jury could justifi- 
 ably draw from it, is insufficient to support a verdict for the 
 
SPIRIT OF THE COURTS 223 
 
 plaintiff so that such a verdict, if returned, must be set aside, 
 the Court is not bound to submit the case to the jury, but may 
 direct a verdict for the defendant." 
 
 Mr. Justice Miller had previously said: 
 
 "But we are pressed with the proposition that it was for the 
 jury to decide this question, because the testimony received and 
 offered had some tendency to establish a participation in the 
 profits and the question of liability under such circumstances 
 should have been submitted to them, with such declaration of 
 what constitutes partnership as would enable them to decide cor- 
 rectly. No doubt there are decisions to be found which go a 
 long way to hold that if there is the slightest tendency in any 
 part of the evidence to support the plaintiff's case, it must be 
 submitted to the jury, and in the present case, if the Court had 
 so submitted it, with proper instructions, it would be difficult to 
 say that it would have been an error of which the defendant 
 could have complained here. But, as was said by the Court in 
 the case of The Improvement Co. v. Munson, 8i U. S. 448, 30 
 L. Ed. S72, recent decisions of high authority have established a 
 more reasonable rule, that in every case, before the evidence is 
 left to the jury, there is a preliminary question for the judge, 
 not whether there is literally no evidence, but whether there ii 
 any upon which a jury can properly proceed to find a verdict for 
 the party producing it, upon whom the onus of proof is imposed. 
 The English cases there cited fully sustain the proposition. 
 Jewell v. Parr, 13 C. B. 916; Toomey v. L. & B. R. Co., 3 C. B. 
 (N. S.), 146; Ryder v. Wombell, 4 L. R. Exch. 33" [Pleasant v. 
 Fant, 89 U. S. 116, i3o, 22 L. Ed. 780, 781]. 
 
 Chief Justice Taney had already said : 
 
 "It is clearly error in a court to charge a jury upon a sup- 
 posed or conjectural state of facts, of which no evidence has 
 been offered, as such an instruction presupposes that there is 
 some evidence before the jury which they may think sufficient 
 to establish the fact hypothetically assumed in the charge of the 
 court, and if there is no evidence which they have a right to 
 consider, then the charge does not aid them in coming to a cor- 
 rect conclusion, but its tendency is to embarrass and mislead 
 them" [£/. S. v. Breitling, 61 U. S. 252, 254, 15 L. Ed. 902]. 
 
224 SPIRIT OF THE COURTS 
 
 And Mr. Justice Clifford had used the fol- 
 lowing language in a carefully considered 
 opinion : 
 
 "When a prayer for instruction is presented to the Court and 
 there is no evidence in the case for the consideration of the jury, 
 it ought always to be withheld; and as a general rule, if it is 
 given under such circumstances, it will be error in the court for 
 the reason that its tendency may be, and often is, to mislead the 
 jury by withdrawing their attention from the legitimate points of 
 inquiry involved in the issue" [Goodman v. Simonds, 6i U. S. 
 343. 359. 15 L. Ed. 938]. 
 
 RELATION OF JUDGE AND JURY EXACTLY 
 DEFINED. 
 
 (i) Prevention of Unjust Verdicts. 
 
 "It is the duty of a court, in its relation to the jury, to pro- 
 tect parties from unjust verdicts arising from ignorance of the 
 rules of law and of evidence, from impulse or passion or pre- 
 judice, or from any other violation of his lawful rights in the 
 conduct of a trial" [Mr. Justice Miller, in Pleasants v. Font, 
 S9 U. S. 116, 121]. 
 
 (2) How It Is Done. 
 
 "This is done (a) by making plain to them the issues they are 
 to try (b) by admitting only such evidence as is proper in these 
 issues, and rejecting all else (c) by instructing them in the rules 
 of law by which that evidence is to be examined and applied, 
 and finally, when necessary, (d) by setting aside a verdict which 
 is unsupported by evidence or contrary to law" [Ibid]. 
 
 (3) How Court Examines the Evidence. 
 
 "In the discharge of this duty it is the province of the Court, 
 either before or after the verdict, (a) to decide whether the 
 plaintiff has given evidence sufficient to support or justify a ver- 
 dict in his favor, (b) Not luhether on all the evidence the pre- 
 pondering weight is in his favor; (c) that is the business of the 
 jury; (d) but, conceding to all the evidence offered the greatest 
 probative force which according to the law of evidence it is 
 fairly entitled to, (e) is it sufficient to justify a verdict? (f) If 
 
SPIRIT OF THE COURTS 225 
 
 it does not, then it is the duty of the Court, after a verdict, to 
 set it aside and grant a new trial" [Ibid, p. 122]. 
 
 (4) tVhen Submission Is an Idle Ceremony. 
 
 "(a) Must the Court go through the idle ceremony, in such 
 a case, of submitting to the jury the testimony on which plain- 
 tiff relied, (b) when it is clear to the judicial mind that if the 
 jury should find a verdict in favor of plaintiff that verdict 
 would be set aside and a new trial had?" [Ibid]. 
 
 ■ (s) The True Principle. 
 
 "Such a proposition is absurd, and, accordingly, we hold the 
 true principle to be that if the Court is satisfied that, conceding 
 all the inferences which the jury could justifiably draw from the 
 testimony, the evidence is sufficient to warrant a verdict for the 
 plaintiff, the Court should say so to the jury" [Ibid]. 
 
 (6) Plaintiff's Recourse Ample and Appropriate. 
 
 "In such case the party can (a) submit to a non-suit and try 
 his case again if he can strengthen it, except where local law 
 forbids a non-suit at that state of the trial, or (b) if he has done 
 his best he must abide the judgment of the Court (c) subject to 
 a right of review, whether he has made such a case as ought to 
 be submitted to the jury; in such a case a jury might justifiably 
 find for him a verdict" [Ibid]. 
 
 Thus, in a brief history of the evolution of 
 the practice of directing the verdict, the great 
 experts who compose the Supreme Court and 
 who were selected on account of their pecu- 
 liar ability and preparedness have been al- 
 lowed to explain a venerable custom of the 
 courts by presenting their reasons. Every lib- 
 erty-loving man will do well to profit by their 
 example, observation and vast experience, lest 
 there be sacrificed the great common-law 
 principle composing the warp and woof of the 
 Constitution. It is not believed that there are 
 
226 SPIRIT OF THE COURTS 
 
 any who are willing to contest their wisdom 
 and none who would sacrifice their handi- 
 work in order to prevent or to revenge iso- 
 lated cases of individual wrongdoing. 
 
 A review of these two important juridical 
 elements, as persuasive as is their merit, an- 
 cient origin, manner of adoption and success- 
 ful operation, would be incomplete without a 
 further consideration of an important practi- 
 cal organic feature. Inasmuch as it tends 
 reasonably to recognize the manifest responsi- 
 bility and duty of a co-ordinate branch of the 
 government and, to that extent, bring about 
 an apparent legislative concession, it addresses 
 itself to a sound individual discretion, a 
 knowledge of the science of government, a 
 broad statesmanship and an unselfish patriot- 
 ism, that has not been and will not be found 
 wanting in the halls of Congress. And we are 
 led up to the splendid thought that, amongst 
 the three major departments, co-ordination 
 and not jealousy nor peevish interference is 
 the keynote of successful government; that it 
 is impossible for the courts to operate scien- 
 tifically unless they are able to put into effect 
 rules that are recommended by observation 
 and experience, drawn from actual operation. 
 This is an inherent part of the Constitutional 
 power (efficiency) they must exercise without 
 molestation. 
 
SPIRIT OF THE COURTS 227 
 
 CHAPTER XIII. 
 
 An Efficient Judicial System. 
 
 We may now with broader appreciation 
 venture to bring under review some sugges- 
 tions believed to be helpful in the program 
 of modernization. It will also serve a useful 
 preliminary purpose to review some statistical 
 results of present judicial conditions. It is 
 well to be mindful that all but Florida, Mary- 
 land, Michigan, Mississippi, Illinois and 
 West Virginia have abandoned the anachron- 
 ism of common-law pleading. Virginia took 
 the necessary step in 1916, but the rules have 
 not yet been put into effect. Vermont and 
 New Hampshire, and recently New Jersey 
 and Colorado have authorized or have adopt- 
 ed court rules. The other States are merely 
 piling up statutes to suit the individual legis- 
 lative fancy. There is no principle involved. 
 The Admiralty, the Bankrupt, the Federal 
 Equity courts and all Federal tribunals now 
 operate under rules of court. In the year 
 1893, in 13,930 cases tried by the appellate 
 courts for a given period, 14,447, or over 48 
 per cent. of the points decided concerned prac- 
 tice alone, and never touched the merits. In 
 January, February and March, 1910, out of a 
 
228 SPIRIT OF THE COURTS 
 
 total of 5,927 cases tried, 22,988 points were 
 considered. Of these 12,259 involved points 
 of practice, which means that 53.32 per cent, 
 of the time of the courts was actually thrown 
 away in ascertaining whether the machinery 
 of the courts had been used in the exact tech- 
 nical manner prescribed by Congress and the 
 legislatures. It was an increase of 5.07 per 
 cent, over the previous year. The Mississippi 
 court during these three months, in deciding 
 56 cases, passed upon 97 points, of which 52 
 were questions of practice, which is 53.6 per 
 cent, of practice and an increase of 10.6 per 
 cent. The Virginia court during the same 
 period, in deciding 50 cases, passed upon 244 
 points, of which 137 were questions of prac- 
 tice, a proportion of 56.1 per cent, and an in- 
 crease of 4.1 per cent. During the same pe- 
 riod the New York court, in deciding 888 
 cases, passed upon 2,855 points; 1,453 were 
 questions of practice, a proportion of 51.2 per 
 cent, and an increase of 8.2 per cent. Could 
 any business concern succeed with such a ra- 
 tio of useless expense, and can the business 
 men of this country afford to rest longer under 
 this senseless and extravagant condition? But 
 so much for the machinery of the courts. Let 
 us consider the dockets that have been con- 
 gested by this cumbersome procedure. 
 
SPIRIT OF THE COURTS 229 
 
 At the beginning of the October term, 1904, 
 of the Supreme Court of the United States 
 there were 282 cases brought over from the 
 past term and 400 new cases added, making a 
 total of 682 cases. Of these 402 cases were 
 disposed of during the term, leaving un- 
 touched 280, or just 2 cases less than that with 
 which it started the term. Passing over the 
 eight intervening years, it found awaiting it 
 in October, 1913, a docket of 604 cases car- 
 ried over from 191 2, to which were added 
 524 new cases, making a total of 1,128. The 
 Court was able, by the hardest work ever per- 
 formed by any group of men, to dispose of 
 593 cases, leaving 535 on the docket to be 
 carried over to further crowd the October, 
 1914, docket. The number of cases disposed 
 of in 1913 was nearly double the entire docket 
 of the year 1904, and reflects the increase in 
 litigation in the Federal Supreme Court. 
 Much of this is epoch-making and calls for 
 the supreme genius, learning, patience, re- 
 search, deliberation and physical power pos- 
 sessed by these great and able jurists. The 
 Court's annual average for ten years has been 
 463 cases, and about 550 is the present annual 
 addition of new cases. Assuming that the 
 Court will average 600 cases a year and that 
 550 new cases will be added, there will be an 
 annual gain of 50 cases on the docket. At that 
 
230 SPIRIT OF THE COURTS 
 
 rate it would be able to catch up with its 
 docket on the ist day of October, 1925. But 
 one must not be unmindful of the fact that 
 either side may now invoke the aid of the 
 court in constitutional matters [Attorney- 
 General's Report, 1914, p. 56]. 
 
 The solution of the trouble, without addi- 
 tions to the membership, is not so difficult if 
 Congress can be induced to act. President 
 Taft recommended that there should be taken 
 away from the Supreme Court all questions 
 which do not involve as a genuine issue the 
 construction of the Constitution, and by lim- 
 iting the duty of the court to hear any other 
 cases than those which upon a writ of cer- 
 tiorari the Court, in its discretion, draws to 
 its jurisdiction [Address, American Bar Asso., 
 1913J. Appeals from the island territories 
 could be divided between two circuit courts of 
 appeals — one on the Pacific and one on the 
 Atlantic. There are meritorious bills pending 
 in Congress that tend to restrict the right of 
 appeal in copyright and bankrupt cases, ex- 
 cept upon certiorari. These will considerablv 
 shorten the docket and assure justifiable hear- 
 ings. There are other bills for the reduction 
 of costs. 
 
 Is Congress fully sensible of the country's 
 obligations to the Supreme Court and the 
 earnest desire to sustain and preserve it in its 
 
SPIRIT OF THE COURTS 231 
 
 glory and power? Let us repeat what hereto- 
 fore has been said. It is the one stable ele- 
 ment in the composition of the government 
 The manner of doing things change, but prin- 
 ciples live forever. That is the secret of the 
 strength of this Republic. No political storm 
 can sway it from its course, for there is a com- 
 petent pilot at the helm. The Supreme Court 
 nurtured the nation in its infancy, trained it 
 in its youth, and is now guiding it in the 
 straight and narrow way in its maturity. It 
 has been to the nation a pillar of fire by night; 
 it has guided destructive revolutionary doc- 
 trines into beneficial evolutions; the violence 
 of anarchy and the persuasiveness of the 
 demagogue have fitted themselves into the 
 constitutional mold; the oppression of con- 
 centrated power and the chicanery of corrupt 
 organizations have ceased to trouble and 
 alarm, at its simple word. It is the final arbi- 
 ter between man and his brother, the state and 
 the church, the citizen and the soldier, be- 
 tween political parties, and even between Con- 
 gress and the Chief Executive himself. There 
 abides in the people of the United States a 
 sublime faith in their highest Tribunal that 
 makes of submission the noblest attribute of 
 national character. Could a greater calamity 
 befall the nation than a weakening of its be- 
 
232 SPIRIT OF THE COURTS 
 
 neficent power and the faith of a grateful 
 people? 
 
 In the inferior courts the condition of busi- 
 ness is more or less congested in all parts of 
 the country. As we write, this is particularly 
 true in the Second, Fifth, Eighth and Ninth 
 circuits. In the entire Federal system of nine 
 circuits there are thirty-two circuit and nine- 
 ty-four district judges. Several circuit and 
 district judges are not physically capable of 
 doing anything like full work. Eight of the 
 thirty-two circuit judges and six of the district 
 judges are at this time over the age of sixty- 
 seven. Now, putting aside all other thoughts, 
 one would fancy that if Congress felt disin- 
 clined to retire these judges or to provide as- 
 sistants, it would relieve the congested dis- 
 tricts by assigning judges from other districts 
 possessing light dockets. This possesses the 
 merit of good business, since the congestion in 
 any circuit could be obviated without the ne- 
 cessity of appointing additional judges, and 
 full time thus would be had from serviceable 
 judges without additional salary expense. So 
 economy was not the motive for Congres- 
 sional inaction. Just what perversity caused 
 the Sixty-third Congress [Chap. 48, p. 203, 
 ist Sess., 63d Cong.J to allow this to be done 
 nowhere except in New York (Second dis- 
 trict), the Credit Men's Association of Amer- 
 
SPIRIT OF THE COURTS 233 
 
 ica is trying to ascertain. Certainly, what is 
 good policy for the Second circuit ought to 
 be good policy for the rest of the country. 
 
 Manifestly the whole judicial system must 
 and will be made as elastic as possible, and 
 both circuit and district judges become subject 
 to assignment outside of their respective cir- 
 cuits. This will serve the further purpose of 
 a model system that will eventually be fol- 
 lowed by the States, for we are entering upon 
 an era of reason in the law and its enforce- 
 ment, and the yielding of Congress is inev- 
 itable. As it is, a circuit judge cannot sit out- 
 side of his circuit, with the exception of the 
 Second circuit, and district judges, while sub- 
 ject to assignment in their own circuits, can- 
 not be assigned outside, except in a very lim- 
 ited class of cases and as to the Second dis- 
 trict. The apparent intention of the new "ju- 
 dicial code" to do away with this obstacle has 
 not been deemed clearly enough expressed to 
 justify its application. The "judicial code," 
 therefore, should undergo such amendments 
 as to make this power clear. A deferred de- 
 cision is oftener a worse evil than a wrong 
 one, and the certainty of prompt decisions 
 would prevent much litigation. 
 
 But if Congress and the legislatures cannot 
 find time and disposition to relieve the judi- 
 cial department, it has undoubtedly found 
 
234 SPIRIT OF THE COURTS 
 
 time to burden it. During the past five years, 
 and not including 1914, as many as 62,014 
 public statutes were enacted. During the last 
 session of Congress 700 laws were enacted and 
 about 3,000 measures introduced. During the 
 same period 630 volumes of law reports were 
 published, not including those of the Inter- 
 state Commerce Commission. The Federal 
 Trade Commission has now commenced to add 
 to the number. In one day in 19 14 the Fed- 
 eral Supreme Court handed down sufficient 
 opinions to fill a volume. Two small volumes 
 hold the life's work of John Marshall! 
 
 Yet, with this phenomenal increase in stat- 
 utes and litigation, there ought now to be few 
 judicial evils, with a proper personnel, an 
 elastic system of assignments and a modern- 
 ized procedure. A Federal court regime that 
 need not be characterized is passing. So the 
 necessary reforms ought not to be difficult of 
 achievement by an organized bar, with the 
 aid of such an intelligent and unpartisan sen- 
 timent as is now supporting it. It is unhesi- 
 tatingly said that a political appointment upon 
 the bench is the lowest order of treason. Pub- 
 lic sentiment is turning to the defeat of the 
 offending appointing power, instead of the 
 "recall" of his incompetent creatures. The 
 public has learned more about the working of 
 the judicial department and of certain distinc- 
 
SPIRIT OF THE COURTS 235 
 
 tions that should be drawn, during the past 
 six years than during the previous years of 
 the national life. This country, and the South 
 in particular, after resignedly struggling for 
 fifty years under some unsympathetic Federal 
 judges, in many instances helplessly observing 
 the squandering of the assets of litigants, sud- 
 denly realized that a voluntary and unexpect- 
 ed Moses had set their faces once more to- 
 wards the promised land of their fathers. 
 This one man, Judge Taft, whom I have prev- 
 iously mentioned, did more and sacrificed 
 more to destroy the evil and to fix for the 
 Federal bench a new and high standard for 
 the future than any other, living or dead. 
 
 Since the beginning of the world the power 
 to appoint to office has contained the germ of 
 dissatisfaction and, oftimes, destruction. In 
 Genesis (41:13) it is said: "Me, he restored 
 unto mine office, and him, he hanged." Jef- 
 ferson declared that every political appoint- 
 ment brought him more enemies than friends. 
 President Wilson's wholesome declaration 
 that the time of the Chief Executive should be 
 otherwise employed is fresh in the public 
 mind. How much more important it is that 
 the judges should be free from this vexing 
 conflict and burden, from the political in- 
 trigues leading to selections, and from the 
 partisan spirit and power that is its concomi- 
 
 18 
 
236 SPIRIT OF THE COURTS 
 
 tant. Yet it has become common for legisla- 
 tures to create offices to be filled by judges. 
 The recommendation of President Taft that 
 Federal judges be deprived of the power of 
 naming court clerks and receivers and fixing 
 honorariums has long been approved by the 
 leaders of the bar and is taking a strong hold 
 upon the public. District Judge Rose, of 
 Baltimore, one of the new regime, has con- 
 sistently required a bill of particulars of the 
 service claimed and the approval of all fee 
 allowances by two disinterested lawyers. His 
 recent opinion in "Indra Line v. Palmetto 
 Co., 239 Fed. 94, 6," will inspire reflection. 
 Relief from administrative duties is a re- 
 moval from temptation and cause for criti- 
 cism. 
 
 The prediction is made that Montesquieu's 
 theory of differentiating the enforcement of 
 commercial law will eventually prevail in 
 practical America. Dividing litigation into 
 two classes, he said : "The afifairs of commerce 
 are but little susceptible of formalities. They 
 are the actions of a day, and are every day 
 followed by others of the same nature. Hence 
 it becomes necessary that, every day they 
 should be decided. It is otherwise with those 
 actions of life which have a principal influ- 
 ence on futurity, but rarely happen" [Spirit 
 of the Laws, Bk. 20, chap. 18]. Those of us 
 
SPIRIT OF THE COURTS 237 
 
 who believe that facility in commercial litiga- 
 tion has characterized the administration of 
 the common law will do well to disillusion 
 ourselves with the assistance of Coke (pt. 4, 
 chap. 60) and Blackstone [Com. Bk. 3, chap. 
 4, p. 32; 88 Vic, 1884]. Usurpation by the 
 King's Bench has produced destruction of its 
 simplicity and economy and enveloped its en- 
 forcement in the mystery of technical pro- 
 cedure and the cost of delay. The law mer- 
 chant has been gradually drawn into the chan- 
 nels of general litigation, when it would have 
 been better administered under the theory of 
 the courts of Piepoudre or "Piepowder," so 
 called by Coke because "justice is there done 
 as speedily as dust can fall from the foot." It 
 is based upon the same principle that justice 
 was administered among the Jews in the gate 
 of the city, with the attendant publicity. The 
 story, reason and operation of those simple 
 forms supply in a degree a raison d'etre for 
 the grander and more dignified twentieth- 
 century Federal Trade Commission [Jenks, 
 Hist. Eng. Law, pp. 40, 75 ; Select Cases, Law 
 Merchant, Selden Soc.]. 
 
 The difficulty in obtaining a proper person- 
 nel for jury service is not caused so much by 
 the time of the citizen that is consumed as the 
 time that is wasted while legal points are be- 
 ing discussed. The most of these would be- 
 
238 SPIRIT OF THE COURTS 
 
 come evident and be settled before the trial 
 begins if the pleadings made up exact is- 
 sues of fact, followed by ( i ) a complete de- 
 nial, (2) a modified denial, or (3) an admis- 
 sion, instead of presumptions of fact and law. 
 The difficulties of relevancy and materiality 
 and length of testimony would also be de- 
 creased, if not obviated, and an intelligent 
 verdict would be more certain. The danger 
 of instructions would be reduced by half. 
 
 What about the mechanics of the law, and 
 shall we consider seriously only the Federal 
 Congress, and that as to but one instance? 
 That is quite enough. It might well have 
 been the Federal Supreme Court instead of 
 Job, who cried out in his travail, "Who is this 
 that wrappeth up sentences in unskilled 
 words!" In a very recent case [U. S., use of 
 Alexander Bryant Co., v. N. Y. Steam Fitting 
 Co. (Dec. 7th, 1914), 235 U. S. 327, 59 Led. 
 — 35 Sup. Ct. Rep. 108], it casually remarked 
 of the "public contract statute" that "the act 
 of Congress is undoubtedly ambiguous. In- 
 deed, considering the latter only of the three 
 provisos with which we are concerned, they 
 absolutely repel accommodation * * *. We 
 must try, however, to give coherence to them 
 and accomplish the intention of Congress." 
 The court quoted another sentence and de- 
 clared that "this seemingly brings us to an 
 
SPIRIT OF THE COURTS 239 
 
 impasse." It then resignedly concluded: "We 
 can only select those which we consider the 
 fittest to prevail to accomplish the purposes 
 of the statute." And so by these means the 
 judicial department assisted Congress to con- 
 duct the legislative department and the Con- 
 stitution was saved! Is there anything more 
 obvious than the necessity for a Congressional 
 reference bureau presided over by some cap- 
 able, deliberate and profoundly educated 
 thinker? 
 
 Is the selection of judges receiving sufficient 
 or proper, or, in fact, any scientific attention? 
 So great is the personal equation in all human 
 endeavors that a disregard of it spells failure. 
 Every available means of enlightenment 
 should be exhausted in the selection. That 
 inspires the question as to who is best qualified 
 to select a judge from amongst lawyers? It 
 is the practicing lawyers who know his habit 
 of mind, his temperament, his measure of civic 
 duty, his estimate of fundamental principles 
 and his ethical viewpoint. Be sure that every 
 member of the bar has his measure of pro- 
 fundity, moderation, education, morality and 
 ethics, and that it is as well known among his 
 brethren as is his name and residence. Is it 
 prudence or wisdom to disregard this im- 
 portant element? The difficulty of selection 
 was profoundly considered by the Constitu- 
 
240 SPIRIT OF THE COURTS 
 
 tional Convention and its dangers earnestly 
 argued. Virginia and North Carolina and 
 Pennsylvania stood together in the debates 
 and voting. Jefferson spoke and subsequently 
 (October 31, 1823) wrote: "With us all the 
 branches of government are elective by the 
 people themselves, except the judiciary, of 
 whose science and qualification they are not 
 competent judges." There was finally a com- 
 promise by which the unity in the Executive 
 proposed by Wilson, of Pennsylvania, was 
 modified by Madison's recommendation for 
 confirmation by the Senate. 
 
 The country has grown to immense propor- 
 tions and consequence, and the selection of 
 judges has become correspondingly more diffi- 
 cult. No one man can know all eligible can- 
 didates and no man's advisors can know them. 
 The problem is to secure the best men as much 
 as to avoid the bad ones. I venture to suggest 
 that a sort of process of elimination would 
 work well in selecting the Federal judiciary. 
 Out of a class composed of two or three per- 
 sons from each State a selection, based upon 
 location and fitness, would be made. The se- 
 lection of circuit and district judges would 
 merely be confined to their respective circuits 
 or districts. This thought must not be con- 
 fused with recommendation by petition. Pe- 
 titions never meant anything serious and ought 
 
SPIRIT OF THE COURTS 241 
 
 to be ignored in such a sacred duty. There 
 must be translated the profound judgment of 
 districts and circuits and States through the 
 formal expression of the individual lawyers. 
 The State and local bar associations would at- 
 tend to that practical matter. There is almost 
 a certainty that State competition would in- 
 sure the presentation of the very ablest men. 
 That the lawyers would measure up to their 
 sacred task is not for a moment to be ques- 
 tioned, but there is always the protection that 
 these recommendations would be merely 
 earnest suggestions to an equally earnest ap- 
 pointing power. 
 
 After having placed the machinery of the 
 courts on a scientific, practical basis, the next 
 thought is to assure this status by providing a 
 scientific superintendence of operation and 
 development. In another chapter and refer- 
 ence as there made for details, it was recom- 
 mended that a commission shall be created by 
 Congress to serve without pay, composed of 
 ten men, viz. : a justice of the Supreme Court 
 of the United States, a United States Circuit 
 and District judge, a State Appellate judge, 
 the Solicitor-General or the Attorney-Gen- 
 eral, two law teachers and four practicing 
 lawyers. It is manifest that such an official 
 scientific supervision would serve a whole- 
 some and useful purpose. 
 
242 SPIRIT OF THE COURTS 
 
 As well as to the personnel and the ma- 
 chinery, attention ought to be given by the 
 bar to the merely relative nature and value of 
 the externals of judicature, and particularly 
 those connected with the courtroom. There is 
 agreement that laymen are contracting the 
 habit of mind that the processes of justice are 
 not the solemn thing of the Hebrew law, of 
 the Christian religion and of the inclination 
 of the conscience. Now the atmosphere of the 
 courtroom often justifies that dangerous ten- 
 dency. Without being one of those who be- 
 lieve that mere form or convention could add 
 to virtue, it may be observed that virtue does 
 not parade without suitable habiliments. In- 
 asmuch as justice is the handmaiden of relig- 
 ion and the foundation uponwhich civilization 
 and self-respect are erected, one will not go 
 far afield in keeping them in close association. 
 The conduct and appearance and bearing and 
 language of a judge in court is not, therefore, 
 so much an individual matter as it is of State 
 importance. Circumstances of necessity sepa- 
 rate him in society from his fellows of the bar 
 with whom he was so lately upon terms of 
 easy and confidential intimacy. This neces- 
 sary isolation could be well characterized by 
 a suitable standard habiliment which, without 
 doing violence to the severest democratic 
 tastes, would dignify the noble and sacred 
 
SPIRIT OF THE COURTS 243 
 
 cause of justice by suggestion, if not by merit. 
 Mr. Blackstone's condemnation of deposi- 
 tions, spoken more than a century ago, might 
 have been written for the benefit of this gen- 
 eration, as they will be profitably read by gen- 
 erations yet unborn. The American lawyer 
 cannot perform a more patriotic service than 
 in seeing to the enforcement of principles con- 
 sidered by him of first importance. Said he 
 [Bk. 3, p. 374] : "The open examination of 
 witnesses viva voce, in the presence of all 
 mankind, is much more conducive to the 
 clearing up of truth than the private secret 
 examination taken down in writing before an 
 officer or his clerk in the ecclesiastical courts 
 and all others that have borrowed their prac- 
 tice from the civil law, where a witness may 
 frequently depose that in private which he 
 will be ashamed to testify in a public and 
 solemn tribunal. There an artful or careless 
 scribe may make a witness speak what he 
 never meant, by dressing up his depositions in 
 his own forms and language; but he is here 
 at liberty to correct and explain his meaning, 
 if misunderstood, which he can never do after 
 a written deposition is taken. Besides, the 
 occasional questions of the judge, the jury 
 and the counsel, propounded to the witness on 
 a sudden, will sift out the truth much better 
 
244 SPIRIT OF THE COURTS 
 
 than a formal set of interrogatories previously 
 penned and settled ; and the confronting of ad- 
 verse witnesses is also another opportunity of 
 obtaining a clear discovery, which can never 
 be had upon any other kind of trial. Nor is 
 the presence of the judge during the exami- 
 nation a matter of small importance; for, be- 
 sides the respect and awe with which his pres- 
 ence will naturally inspire the witness, he is 
 able by use and experience to keep the evi- 
 dence from wandering from the point in issue. 
 In short, by this method of examination, and 
 this only, the persons who are to decide upon 
 the evidence have an opportunity of observ- 
 ing the quality, age, education, understanding, 
 behavior and inclinations of the witness; in 
 which points all persons must appear alike 
 when their depositions are reduced to writing 
 and read to the judge in the absence of those 
 who made them; and yet as much may be fre- 
 quently collected from the manner in which 
 the evidence is delivered as from the manner 
 of it." The new Federal equity rules have set 
 a precedent by which the States will undoubt- 
 edly profit at the instance of an alert bar. 
 
 Casuistry cannot disguise nor ingenuity 
 palliate the waste of the assets of litigants. It 
 lowers the morale of lawyers and destroys the 
 respect of laymen. It cannot be gainsaid that 
 an important duty of the lawyer is seeing to 
 
SPIRIT OF THE COURTS 245 
 
 the preservation of private property through 
 a practical, economical administration of as- 
 sets that fall under the control of the courts. 
 They should not become beneficiaries of the 
 breach of that sacred trust. In this considera- 
 tion there may be passed by allowances made 
 to political and family dependents and fol- 
 lowers, that scandalized Congress into the en- 
 actment of an impotent statute quoted in an- 
 other chapter, the ends of which may be de- 
 feated by indirection. The abuse will entirely 
 disappear only with the retirement from the 
 bench of the offenders the statute was intended 
 to reach, but until that end is achieved it must 
 be lessened by the influence of a wholesome 
 public sentiment inspired by popular educa- 
 tion. The administrative, business of the 
 courts can be conducted by the same sane and 
 economical rules as the business of the count- 
 ing-room and thereby meet the expectation of 
 laymen. As has been pointed out. District 
 Judge Rose, of Baltimore, voluntarily took a 
 long step forward in requiring a verified bill 
 of particulars, certified by three disinterested 
 lawyers. But publicity would also help. 
 Every court allowance could with material 
 advantage be conspicuously published in a 
 daily paper of the largest local circulation, 
 setting forth the name of the recipient, the 
 
246 SPIRIT OF THE COURTS 
 
 service for which it was granted and the 
 names of the three lawyers approving it. 
 
 This brings to mind a conspicuous example. 
 One or more standing masters, as the business 
 may require, nominated by the judge upon the 
 recommendation of the local bar and compen- 
 sated with a reasonable salary, would prove 
 an economy and remove a political tempta- 
 tion. The yearly salary of a Federal district 
 judge is $6,000. It is interesting to observe 
 that in one of these courts within a short 
 period a fee of $3,000 and one of $3,500, re- 
 spectively, were allowed. Other fees as high 
 as $10,000 have been allowed. No attempt is 
 made to enumerate, but only to point out an 
 instance with the object of inspiring reflection,^ 
 because these sums were paid out of the assets 
 of helpless and highly dissatisfied litigants and 
 considered by them as an involuntary price 
 for seeking justice in the courts. This is work 
 for the proposed high judicial commission, 
 which will find means for reimbursing the 
 public treasury for fixed salaries to standing 
 masters by a suitable assessment upon appro- 
 priate subjects. 
 
 Why may not the receiver of the court con- 
 duct a judicial sale as well as a half-dozen 
 generously compensated special commission- 
 ers? There is no instrumentality for the dissi- 
 pation of assets more patent and more popu- 
 
SPIRIT OF THE COURTS 247 
 
 larly criticized, and it should not be dignified 
 by the classification of incompetent adminis- 
 tration. The bankruptcy courts allow no such 
 extravagance. Now why should an auctioneer 
 be paid a greater sum for auctioning a trunk 
 line than for offering a farm? The labor is 
 not more burdensome. Manifestly his re- 
 sponsibility is often greater in the latter case 
 than in the former, for sales of railroads are 
 almost always purely formal, for purposes of 
 reorganization. The thought is not to be 
 seriously entertained that either agency ever 
 beneficially influenced a bid in an amount jus- 
 tifying more than ordinary compensation. 
 The psychology of the custom has been grace- 
 fully and suitably discussed in the facile hu- 
 mor of that erudite and widely experienced 
 lawyer. Col. William A. Henderson, of Ten- 
 nessee and Washington, under the title, 
 "Honorariums." Cervantes indelibly im- 
 pressed upon civilization that ridicule is not 
 an unsuitable remedy to put against impracti- 
 cal customs. 
 
 There are three elements to be considered in 
 official court reporting, viz. : qualification, se- 
 lection, compensation and official status. Of 
 these things the organized lawyers do not 
 seem to have expressed an opinion. The re- 
 porters, though militantly agitating the sub- 
 ject, have not themselves formulated a pro- 
 
248 SPIRIT OF THE COURTS 
 
 gram. The present lively agitation promises 
 the promotion of a propaganda that ought to 
 be impressed by the well-matured views of 
 the bar, which the reporters must eventually 
 satisfy by whomsoever or however engaged. 
 It will prove helpful to the bar to possess an 
 expression of views from one of the active 
 members of the National Shorthand Report- 
 ers' Association : "A competent shorthand re- 
 porter," said Mr. William L. James, editor of 
 "The Shorthand Writer," "must have a vo- 
 cabulary of legal terms at least equal to that 
 of the average lawyer, and probably equal to 
 that of the lawyer far above the average, be- 
 cause he must be able to understandingly take 
 testimony, arguments and the like, and he 
 cannot understandingly take in shorthand at a 
 high rate of speed that which he could not 
 understandingly write in long hand if he were 
 not a stenographer." That is logical argument 
 and would indicate the necessity for a test of 
 qualification as a condition precedent to em- 
 ployment the corollary to which would ap- 
 pear to be a standard examination, if not civil 
 service, which latter Mr. James also advo- 
 cates. But this innovation must await a con- 
 sensus of competent opinion, for many ele- 
 ments enter into its warp and woof. The ob- 
 servation is also made that where "appoint- 
 ments are entirely in the hands of the judge, it 
 
SPIRIT OF THE COURTS 249 
 
 very frequently occurs that personal friend- 
 ship, relationship and politics play a more im- 
 portant part in the selection of officials than 
 ability," and "that much of the Federal report- 
 ing is given out under the same influences." If 
 we agree with his measure of competency, 
 and Mr. James does not appear to have set 
 much too high a standard, his other sugges- 
 tions are well worthy of thoughtful considera- 
 tion as creteria for testing future legislative 
 programs. Complaint has also been made that 
 "the Federal court reporter performs as much 
 labor as secretary to the judge, with reference 
 to his private and political affairs as in court 
 duties." There will be no sympathy lost upon 
 the reporter who lacks in reasonable consid- 
 eration for and accommodation to the judge, 
 particularly in the light of the latter's small 
 compensation, but the psychology of the situ- 
 ation will quickly make necessary a reporter 
 status as well distinguished as that of the 
 clerk. His duties are not of less importance. 
 The present system is not satisfactory. Able 
 and experienced lawyers have recommended 
 that court reporters be put upon a salaried 
 basis; that a transcript of the evidence shall 
 become a part of the papers of every case, and 
 that the cost of carbons and copies, fixed at a 
 very reasonable charge, shall be covered into 
 the public treasury. 
 
250 SPIRIT OF THE COURTS 
 
 Is suitable attention being paid to the per- 
 sonnel of juries? "After all," said Black- 
 stone [Bk. 3, p. 381], "it must be owned that 
 the best and most effectual method to preserve 
 and extend the trial by jury practice would be 
 by endeavoring to remove all the defects as 
 well as to improve the advantages incident to 
 this mode of inquiry." "The administration 
 of justice," said he, "should not only be chaste, 
 but should not even be suspected" [Blk., Bk. 
 3' P- 383]- "The trial by jury ever has been, 
 and I trust ever will be, looked upon as the 
 glory of the English law." "Rome, Sparta 
 and Carthage, at the time when their liberties 
 were lost, were strangers to the trial by jury." 
 "Therefore, a competent number of sensible 
 and upright jurymen, chosen by lot from 
 among those of the middle rank, will be found 
 the best investigators of truth and the surest 
 guardians of public justice." "This, there- 
 fore, preserves in the hands of the people that 
 share which they ought to have in the admin- 
 istration of public justice and prevents the 
 encroachments of the more powerful and 
 wealthy citizens" [Blk., Bk. 2, p. 379]. In 
 Federal civil cases a citizen is prohibited 
 from serving on petit juries oftener than once 
 a year, and there is provided a non-partisan 
 manner of selecting the panel, which lies be- 
 tween the clerk and some citizen for a differ- 
 
SPIRIT OF THE COURTS 251 
 
 ent political party selected by him. How 
 many local bar associations have committees 
 to observe the performance of this important 
 law? Have the States suitable statutory pro- 
 vision as to this matter? It is the large num- 
 ber of exempt persons that inspires the dislike 
 in others and increases the burden upon them. 
 A public service would be performed in re- 
 pealing the Federal statute permitting the 
 marshal to call bystanders to the jury box. 
 It provides an opportunity for the "profes- 
 sional juror" and lowers the dignity of one of 
 the most sacred obligations of citizenship in a 
 democracy. 
 
 The indemnity bond, for reasons both of 
 convenience and necessity, has become an im- 
 portant element in the administration of jus- 
 tice. The economic feature is powerfully re- 
 enforced by sentiment in the light of the 
 sacred duty of rendering humanly secure the 
 assets of infants and others similarly unpro- 
 tected whose property comes into the custody 
 of the courts and trustees. While suitable 
 statutory conditions reasonably prevent cor- 
 porate insolvency, there is no assurance what- 
 ever against individual official dishonesty . This 
 is an element of potential danger. Inasmuch 
 as simple ethics should be a sufficient preven- 
 tive of advantage being taken of the mis- 
 fortune of the assured for purposes either of 
 
 19 
 
252 SPIRIT OF THE COURTS 
 
 private or corporate gain, there should be 
 prohibitory statutes carrying harsh punish- 
 ment for their breach. The sacred cloth has 
 at times furnished habiliments for a wolf. A 
 surety company, like a watchman, is a mere 
 consumer until an attempted assault is made 
 upon the employer. Three courses then are 
 presented, viz. : (r) to protect bravely, unself- 
 ishly and honestly the helpless employer; (2) 
 to run away and leave him to his fate, or (3) 
 to enter into partnership with the trespasser 
 in robbing the employer. The second course 
 is cowardly, but the latter reflects a much 
 lower order of human degradation. It is 
 traitorism. That is its only characterization 
 of the surety official who would gain profit 
 for himself or his company out of the mis- 
 fortune of the assured. 
 
 But let us turn from these troubling 
 thoughts to the beautiful vision of Dean Lile, 
 of the University of Virginia, "when law shall 
 be a science and justice a certain measure." 
 What higher ideal could be held up to the 
 student and the lawyer, alike, than the belief 
 that the judicial department of our govern- 
 ment can be modernized, perfected and op- 
 erated through the co-operation and co-ordi- 
 nation of the bench and bar so as to command 
 the loving and dutiful respect of every law- 
 abiding citizen? 
 
SPIRIT OF THE COURTS 253 
 
 CHAPTER XIV. 
 
 Some Procedural Statistics. 
 
 Believing that they will serve a useful edu- 
 cational purpose and be a convenient source ot 
 reference, there will now be inserted some 
 highly illuminating statistics recently com- 
 piled by Mr. Clarke B. Whittier, of Leland 
 Stanford, Jr., University (31 Harvard Law 
 Rev. 508), with his comments thereon, and by 
 Mr. Frank B. Smith for the American Bar 
 Association. Mr. Whittier's compilation em- 
 braces a period prior to the Hilary Rules, 
 which synchronizes with Mr. Stephen's first 
 book and his first public effort to substitute 
 "court-made rules" for common law pleading, 
 discussed in another chapter. 
 
 A study of the figures evidencing the unsat- 
 isfactory result of the operation of the Hilary 
 Rules should prove a warning to the American 
 Congress and the State Legislatures that a 
 "half-legislative," "half court-made rule" pol- 
 icy affords no better chance of success than the 
 rigid common law, or code pleading. The 
 highly satisfactory outcome of all court rule 
 system under the Judicature Act, adopted in 
 1873, is a living and convincing evidence of 
 the merit of the all-court rule system. Mr. 
 
254 SPIRIT OF THE COURTS 
 
 Whittier's comments will also prove a most 
 interesting and helpful aid to a comparative 
 study of the several periods of juridical devel- 
 opment under the Anglo-Saxon. It is regret- 
 ted that we may not conveniently go further 
 back into history. The table is as follows : 
 
SPIRIT OF THE COURTS 255 
 
 THE PROPORTION OF DECISIONS ON PLEADINGS IN APPELLATE COURTS 
 
 
 
 
 Total 
 
 
 
 Total 
 
 JUBISDICTION 
 
 Volumes 
 examined 
 
 Date 
 
 cases 
 exam- 
 ined 
 
 Eever- 
 sals 
 
 Affirm- 
 ances 
 
 pleading 
 discus- 
 sions 
 
 
 H. L. 
 
 1 Dow & Clark 
 1 & 2 Cr. & J. 1 
 
 1827-30 
 
 82 
 
 
 
 1 InU 
 
 lin 11 
 
 EngllBh 
 
 Ex. Ch. ■ 
 
 (Ex. Ch. cases, - 
 
 1830-82 
 
 13 
 
 1 in 6 
 
 lin 4 
 
 1 in 8 
 
 common , 
 
 
 only) 
 
 
 
 
 
 
 law 
 plasding 
 
 Ex. Ch. I 
 & Exch. 1 
 
 I C. & M. 
 
 1833 
 
 171 
 
 lln34 
 
 line 
 
 lin 6 
 
 
 K- B. 
 
 1 Mev. & M. 
 
 1832-33 
 
 139 
 
 lin 189 
 
 1 in 8 
 
 1 in 7 
 
 . 
 
 Total 
 
 
 
 366 
 
 1 in 44 
 
 1 in 7 
 
 line 
 
 pleadins r^aa. 
 
 16 M. & W. 
 
 lS4.6-i7 
 
 134 
 
 lin 83 
 
 1 In 3 
 
 1 in 3 
 
 
 H. L. 
 
 A. C. 1906-9 
 (1907) 2 Ch. 
 
 1906-09 
 
 280 
 
 
 
 
 
 
 
 Enslish 
 
 Divisional 
 
 (part) 
 (1906) 1 & 2 Ch. 
 
 
 
 
 
 
 Judicature 
 Acta plead- 
 ing 
 
 courts 
 & Court • 
 of Appeal 
 
 (1909) 1 & 2 Ch. 
 (1987) 2 K. B. 
 (part) 
 
 (1908) 1 & 2 K. B. 
 
 (1909) 1&2K..B. 
 
 1907-09 
 
 325 
 
 1 in- 162 
 
 1 in 46 
 
 1 in 36 
 
 United States Supt. Ct. 
 
 221-24 
 
 1910-11 
 
 234 
 
 1 in IS 
 
 1 in 6 
 
 lin 4 
 
 California 
 
 152-56 
 
 1907-09 
 
 4i5 
 
 1 In IS 
 
 
 
 Connecticut -{ 
 
 81 
 90 
 
 1908-09 t 
 191B-16 1 
 
 208 
 
 1 in 21 
 
 1 in 5 
 
 1 in 4 
 
 
 Sup. Ct. 
 
 240-43 
 
 1909-10 
 
 288 
 
 1 in 16 
 
 1 inS 
 
 lin 4 
 
 
 Sup. Ct. 
 
 249-62 
 
 1910-11 
 
 276 
 
 1 in 14 
 
 1 in 6 
 
 I in 4 
 
 
 App. Ct. 
 
 145-48 
 
 1908-09 
 
 484 
 
 1 in 19 
 
 lin 8 
 
 1 in 6 
 
 lUinoia 
 
 Appeals 
 from the 
 
 
 
 
 
 
 
 
 Municipal ' 
 
 Court of J 
 
 ICln'eaKO I. 
 
 145-48 
 161 
 
 1908-09 1 
 1911 f 
 
 136 
 
 1 in 135 
 
 1 in 23 
 
 1 In 19 
 
 
 
 
 
 
 
 
 Iowa 
 
 139-42 
 
 1908-09 
 
 426 
 
 1 in 15 
 
 
 
 Kansas 
 
 77-80 
 
 1908-09 
 
 686 
 
 1 in 13 
 
 
 
 Massachusetts -1 
 
 204 
 206-09 
 
 1910 1 
 1910-11 f 
 
 650 
 
 1 in 92 
 
 lin 11 
 
 1 in 10 
 
 Michisan ^ 
 
 160 
 
 1910 
 
 110 
 
 1 in 37 
 
 1 in 14 
 
 lin 10 
 
 189 
 
 1916 
 
 101 
 
 
 
 lin 28 
 
 1 In 20 
 
 UisBouri 
 
 233-16 
 
 1910-11 
 
 132 
 
 1 in 41 
 
 1 in4 
 
 1 in 4 
 
 New York | 
 
 197 
 199-202 
 
 1909-10 1 
 1910-11 f 
 
 267 
 
 1 in 18 
 
 1 in 18 
 
 1 in 7 
 
 Ohio 
 
 77-80 
 
 1907-09 
 
 122 
 
 1 in 9 
 
 
 
 Pennsylvania 
 
 256 
 
 1917 
 
 124 
 
 1 in 21 
 
 1 in 8 
 
 1 in 6 
 
 Tennessee 
 
 121 
 
 190g 
 
 26 
 
 1 In 26 
 
 1 in ( 
 
 1 in 4 
 
 Virginia 
 
 Ul-12 
 
 1910-11 
 
 232 
 
 1 in 20 
 
 lin 7 
 
 llni 
 
 Wisconsin 
 
 100-01 
 
 189»-99 
 
 186 
 
 lin 16 
 
 1 in 6 
 
 1 in4 
 
 146-46 1911 
 
 173 
 
 1 in 4S 
 
 lin 7 
 
 1 in6 
 
2^6 SPIRIT OF THE COURTS 
 
 Mr. Whittier commented as follows (31 
 Harvard L. Rev. 508) : 
 
 "We may notice first the remarkable figures 
 from England. Under the common law sys- 
 tem the matter was bad enough with a plead- 
 ing question decided in every sixth case. But 
 under the Hilary Rules it was worse. Every 
 fourth case decided a question on the plead- 
 ings. Pleading ran riot. No wonder that the 
 English bench and bar were ready for reform. 
 And what a successful reform the Judicature 
 Acts were! In only one case in seventy-six 
 can a pleading point be found. Reversals on 
 questions of pleading drop from one in forty- 
 four under the common law, and one in thirty- 
 three under the Hilary Rules, to one in six 
 hundred and five — one reversal in all the cases 
 under the Judicature Acts which were exam- 
 ined. * * * 
 
 "If we turn now to the figures from Ameri- 
 can jurisdictions, we ought to be confounded 
 by them. In almost every instance the show- 
 ing is worse than under any one of the three 
 English systems. In a number.of reversals on 
 the pleadings we unhappily outdistance Eng- 
 land entirely, the average for all the jurisdic- 
 tions examined being one reversal in every 
 twenty cases. If we leave out Michigan * * * 
 the average is one reversal on pleadings for 
 every seventeen cases. In affirmances on plead- 
 ing points the average is one in seven cases, or 
 the same as under the English common law. 
 If again we exclude Michigan, the average is 
 one in every six cases. * * * 
 
SPIRIT OF THE COURTS 257 
 
 "Nor does it seem to make the least differ- 
 ence whether a State is a common law or a 
 code State. In the matter of reversals the 
 common law States average one in twenty-one, 
 while the code States average one in twenty. 
 In affirmances the common law States average 
 one in six, the code States one in seven. Code 
 pleading has not reduced the number of cases 
 which are decided on pleadings." 
 
 The All-American Report. 
 
 The all-American tabulation, prepared by 
 Mr. Frank C. Smith, covering the General 
 Digest for the months of January, February 
 and March, 1910, is as follows : 
 
2^8 SPIRIT OF THE COURTS 
 
 Points Points Per Ct. Per Ct. 
 
 Total Total on on of Prac. of 
 
 States. Cases. Points. Sub. Law. Prac. Points. Inc. 
 
 Alabama 84 563 243 320 56.8 
 
 A.Vizona ... ... ... .... .... 
 
 Arkansas 165 665 283 382 57.4 16.4 
 
 California 173 961 432 529 55.0 7.0 
 
 Colorado 57 220 102 118 53.6 14.8 
 
 Connecticut 51 342 148 194 56.7 12.7 
 
 Delaware 24 118 42 76 64.4 
 
 Florida (C. L.) 63 261 104 157 60.1 4.0 
 
 Georgia 218 627 265 362 57.7 
 
 Idaho 35 191 107 84 44.0 
 
 Illinois (C. L.) 196 908 388 520 57.2 10.2 
 
 Indiana 135 783 324 459 58.5 
 
 Iowa 167 875 413 462 52,8 3.8 
 
 Kansas 125 332 169 163 49.0 1.0 
 
 Kentucky 229 830 467 363 43.7 8.7 
 
 Louisiana 133 296 161 135 45.6 11.6 
 
 Maine 32 203 108 95 46.8 8.8 
 
 Maryland (C. L.) . . . 8 77 34 43 55.8 21.8 
 
 Massachusetts 103 492 242 250 50.8 11.8 
 
 Michigan (C. L.) 153 520 249 271 52.1 3.1 
 
 Minnesota 115 332 149 183 55.1 2.1 
 
 Mississippi 56 97 45 52 53.6 10.6 
 
 Missouri 269 1649 745 904 54.8 1.8 
 
 Montana 36 224 101 123 54.9 3.9 
 
 Nebraska 108 260 122 138 53.0 
 
 Nevada 17 40 17 23 57.5 25.5 
 
 New Hampshire 30 107 46 61 57.0 30.0 
 
 New Jersey 154 402 211 191 47.5 14.5 
 
 New Mexico 9 44 22 20 45.4 
 
 New York 888 2835 1382 1453 51.2 8.2 
 
 North Carolina 94 346 181 165 47.6 
 
 North Dakota 34 157 75 82 52.2 6.2 
 
 Ohio 26 76 37 39 51.3 13.3 
 
 Oklahoma 150 289 127 162 56.0 20.0 
 
 Oregon 57 310 124 186 60.0 5.0 
 
 Pennsylvania 188 620 301 319 51.4 10.4 
 
 Rhode Island 24 84 38 46 54.7 25.7 
 
 South Carolina 40 183 80 103 56.2 
 
 South Dakota 88 304 100 204 67.0 8.0 
 
 Tennessee 25 116 63 53 45.7 7.7 
 
 Texas 438 1742 798 944 54.2 
 
 Utah 23 103 34 69 66.9 17.0 
 
 Vermont 38 222 102 120 54.0 7.0 
 
 Virginia (C. L.) 58 244 107 137 56.1 4.1 
 
 Washington 185 777 374 403 51.8 
 
 West Virginia (C. L.) 72 342 166 176 51.4 5.4 
 
 Wisconsin 100 505 244 261 51.6 
 
 Wyoming 8 73 33 40 54.0 6.0 
 
 Federal courts 466 1241 622 619 49.8 1. 8 
 
 Totals 5927 22988 10727 12259 53.32 5.07 
 
SPIRIT OF THE COURTS 259 
 
 It will appear from this table that in more 
 than one-half of the reported American cases 
 are involved procedural points. There is a 
 substantial increase except in 1 1 States. In the 
 Federal courts there were decided many points 
 on procedure as on the merits, lacking three. 
 It will be seen that "Federal Practice" pro- 
 duced just one-half efficiency. In other words, 
 as has been contended in former chapters, in 
 order to obtain a result approximately two 
 dollars must be spent, two hours must be con- 
 sumed and two pages of reports must be print- 
 ed where only one of each should be necessary. 
 The English statistics, when brought into con- 
 trast, very satisfactorily prove this disgraceful 
 fact. For convenience, the letters "C. L." are 
 used to indicate those States still holding to 
 the old common law system modified by stat- 
 utes. 
 
 The Annual Output of All Courts. 
 
 The number of cases decided by the Federal 
 and State courts of the United States during 
 the period of one year between April, 1917, 
 and April, 1918, was found by the West Pub- 
 lishing Company^ in accordance with the fol- 
 lowing table, to be the astonishing number of 
 30,390. Opinions were written in 32,815 of 
 these cases and 6,575 were disposed of without 
 opinions. The West Publishing Company 
 
26o SPIRIT OF THE COURTS 
 
 was unable to give separate figures for the 
 Court of Appeals, the Appellate Division and 
 the miscellaneous lower courts in California, 
 Georgia, Missouri, Oklahoma, Alabama, 
 Texas, Indiana, New Jersey and Delaware, 
 as was done in the case of New York. 
 
 Statement of Business in the United 
 
 States Circuit Courts of Appeals for 
 
 the Fiscal Year 19 17. 
 
 circuits. 
 
 Number 
 of cases 
 pending 
 close o( 
 June 30, 
 1916. 
 
 Number 
 of cases 
 docketed, 
 fiscal year 
 1917. 
 
 Number 
 of cases 
 disposed 
 fisckl year 
 1917. 
 
 Number 
 of cases 
 pending 
 close of 
 June 30, 
 1917. 
 
 0} 
 
 OJ 
 
 
 
 
 
 
 3 
 
 5 
 
 
 
 
 
 
 
 
 
 
 
 
 
 QQ 
 
 * 
 
 •»- 
 
 First 
 
 Second . . . 
 
 Third 
 
 Fourtli. . . 
 
 Fifth 
 
 Sixth 
 
 Seventh. . . 
 Mghth . . . . 
 Ninth 
 
 2 59 
 4 102 
 
 3 45 
 3 43 
 7 91 
 9 132 
 
 107 23 130 
 208 28 236 
 136 16 152 
 
 57 
 98 
 42 
 40 
 84 
 123 
 
 82 
 
 83 71 
 
 283 13 296 284 14 
 
 127 4 131 109 5 
 
 74 9 83 
 
 79 
 
 146 14 160 157 
 
 130 6 136 163 
 
 96 13 109 
 
 224 32 256 233 
 
 174 19 193 179 
 
 6 
 
 10 
 
 9 
 
 95 17 
 
 73 
 298 
 114 
 
 85 
 167 
 172 
 112 
 269 
 197 
 
 68 
 
 97 
 
 60 
 
 35 
 
 73 
 
 90 
 108 19 
 199 24 
 131 17 
 
 1 
 3 
 2 
 6 
 11 
 6 
 
 5 39 
 13 34 
 3 31.03 
 2 38.7 
 8 31.2 
 27 13 33 
 55 5 32 
 223 108 12 33 
 148 101 90 20 
 
 69 
 100 
 62 
 41 
 84 
 96 
 127 
 
 27 
 
 7 
 
 31 
 
 14 
 
 5 
 
 Totals.. 895 95 990 1336 111 1447 1370 117 1487 861 89 950 375 70 32.44 
 
 * Cases marked pending, argued, and awaiting decision. 
 
 t Cases marked disposed of, appealed to the Supreme Court of the XT. S. 
 
 t Percentage of reversals to total number of cases heard and determined. 
 
 Atty-Gen'l Rep., 1917, p. 122. 
 
 Form of the Bill. 
 The short bill receiving the support of the 
 American Bar Association was first introduced 
 
SPIRIT OF THE COURTS 261 
 
 in the House of Representatives by Hon. Hen- 
 ry D. Clayton, then Chairman of the Commit- 
 tee on the Judiciary. It was referred to his 
 committee, which made a unanimous report 
 in its favor on the 27th day of March, 1914. 
 Hon. Edwin Y. Webb, the present Chairman 
 of that Committee, is now the patron of the 
 bill in the House of Representatives. It was 
 introduced in the Senate by Senator Culber- 
 son, and afterwards, with a few alterations, by 
 Senator Sutherland, of Utah. The bill is as 
 follows : 
 
 A Bill 
 
 To authorize the Supreme Court to prescribe 
 forms and rules and generally to regulate 
 pleading, procedure and practice on the 
 common law side of the Federal Courts. 
 
 Be it enacted by the Senate and House of 
 Representatives of the United States of Amer- 
 ica in Congress assembled, That the Supreme 
 Court shall have the power to prescribe, from 
 time to time and in any manner, the forms and 
 manner of service of writs and all other pro- 
 cess; the mode and manner of framing and 
 filing proceedings and pleadings; of giving 
 notice and serving process of all kinds; of 
 taking and obtaining evidence; drawing up, 
 entering and enrolling orders, and generally 
 to regulate and prescribe by rule the forms for 
 the entire pleading, practice and procedure to 
 be used in all actions, motions and proceedings 
 at law of whatever nature by the district courts 
 
262 SPIRIT OF THE COURTS 
 
 of the United States and the District of Co- 
 lumbia. 
 
 Sec. 2. That when and as the rules of court 
 herein authorized shall be promulgated, all 
 laws in conflict therewith shall be and become 
 of no further force and effect. 
 
 Table of Cases Published in One Year 
 (April, 1917, to April, 1918). 
 
 Cases. Mems. 
 
 Alabama 888 182 
 
 Arizona 57 5 
 
 Arkansas 634 42 
 
 California 1087 ,35 
 
 Colorado 198 21 
 
 Connecticut 116 
 
 Delaware 79 
 
 C. C. A 1098 123 
 
 Fed. D. C 764 1 
 
 Florida 233 71 
 
 Georgia 1636 149 
 
 Idaho 153 6 
 
 Illinois 481 25 
 
 Indiana 386 36 
 
 Iowa 625 20 
 
 Kansas 497 10 
 
 Kentucky 756 6 
 
 Louisiana 436 16 
 
 Maine 146 5 
 
 Maryland 145 6 
 
 Massachusetts . . . 502 1 
 
 Michigan 566 8 
 
 Minnesota . . , 453 30 
 
 Mississippi 488 567 
 
 Missouri 1092 50 
 
 Montana 117 16 
 
 Nebraska 214 6 
 
 Nevada 42 1 
 
 New Hampshire. . . 
 
 New Jersey 
 
 New Mexico 
 
 N.Y. Court of App. 
 
 App. Div 
 
 Miscell. Eep 
 
 North Carolina 
 
 North Dakota 
 
 Ohio 
 
 Oklahoma 
 
 Oregon 
 
 Pennsylvania . . • ■ 
 
 Rhode Island 
 
 South Carolina . . . . 
 
 South Dakota 
 
 Tennessee 
 
 Texas 
 
 United States 
 
 Utah 
 
 Vermont 
 
 Virginia 
 
 Washington 
 
 West Virginia .... 
 
 Wisconsin 
 
 Wyoming 
 
 Cases. 
 
 74 
 
 452 
 
 122 
 
 214 
 
 2190 
 245 
 443 
 182 
 110 
 778 
 379 
 476 
 109 
 266 
 208 
 165 
 
 1628 
 318 
 156 
 98 
 163 
 648 
 256 
 215 
 31 
 
 Mems, 
 
 1 
 
 72 
 
 
 
 535 
 
 3765 
 
 1 
 
 15 
 
 3 
 
 22 
 
 63 
 
 22 
 
 11 
 
 14 
 
 6 
 
 10 
 
 
 
 75 
 
 467 
 
 1 
 
 
 
 4 
 
 39 
 
 2 
 
 9 
 
 
 
 Totals 23,815 6575 
 
SPIRIT OF THE COURTS 263 
 Record of the Federal Supreme Court. 
 
 APPBLIATE DOCKET— OCTOBER TEEM. 
 
 1906 1907 1908 1009 1910 1911 1912 1913 1914 1915 1916 
 Cases iit close ot 
 
 previous terta not 
 
 disposed of 305 343 421 478 586 540 671 604 535 524 522 
 
 Cases docketed at 
 
 the term 476 471 487 503 509 530 509 524 528 545 647 
 
 Totals 781 814 908 981 1095 1170 1180 1128 1063 1069 1169 
 
 Cases disposed of 
 
 at the term 438 393 430 395 455 499 576 593 539 547 637 
 
 Cases remaining un- 
 disposed of 343 421 478 588 640 671 604 535 524 522 532 
 
 Comment of Attorney-General. 
 
 "There was an increase of 102 in the num- 
 ber of cases docketed on the appellate docket, 
 and an increase of 90 in the number disposed 
 of. The number of cases remaining undis- 
 posed of was increased from 522 to 532. 
 
 "A reference to the foregoing table shows 
 a total of 1,069 cases on the appellate docket 
 during the 1915 term. The number of cases 
 pending was increased during the 191 6 term 
 to 1,169, showing an increase of 100 cases on 
 the appellate docket. 
 
 "At the close of the October term, 191 5, 
 there remained undisposed of on the appellate 
 docket 522 cases, and on the original docket 
 20 cases, making a total of 542. The number 
 of cases docketed at the October term, 191 6, 
 was 658, of which 647 were on the appellate 
 docket and 1 1 on the original docket. These, 
 with the 542 cases remaining undisposed of, 
 make the total number of cases pending at the 
 last term 1,200, of which 1,169 were on the 
 
264 SPIRIT OF THE COURTS 
 
 appellate and 31 on the original docket. Of 
 this number 645 were disposed of during the 
 term, 637 of which were on the appellate 
 docket and 8 on the original docket, leaving 
 undisposed of at the close of the October term, 
 1916, 555 cases, 532 being on the appellate 
 and 23 on the original docket. 
 
 "The number of cases actually considered 
 by the court was 500, of which 247 were ar- 
 gued orally and 313 submitted on printed ar- 
 guments. Of the 637 appellate cases disposed 
 of, 186 were affirmed, 90 reversed, 78 dis- 
 missed, 72 were settled by the parties and dis- 
 missed ; in 3 questions certified were answered ; 
 204 were denials of petitions for writs of cer- 
 tiorari under the Act of March 3, 1891, and 4 
 were docketed and dismissed. 
 
 "The total number of cases on the appellate 
 docket in which the United States was a party 
 or had a substantial interest disposed of at the 
 October term, 191 6, was 146. The United 
 States was appellant in 52 of these cases and 
 appellee, etc., in 78; 4 were private cases; 2 
 were certification of questions ; 8 were original 
 cases, and in 2 briefs as amicus curiae were 
 filed." 
 
 Atty-Gen'l Rep., 1917, pp. 93-4.