and in more than two-thirds of our States by constitutional amendments or general legislation the widest powers are conferred upon these "administrative" bodies to deal with the property of citizens in derogation of the fundamental right of every man to have his law. All of this moreover is so far removed from the courts that if judicial review is possible at all it is so limited as to be of no practical effect. If time shall reveal the vices of this new contrivance, as history shows to be likely, no constitution will be a safeguard without a provision like the one in that of Cuba: "No judicial commissions or extraordinary tribunals, no matter under what name, shall ever be created (art. 86: "No se podrán crear, en ningún caso, ni bajo ninguna denominación, comisiones judiciales ni tribunales extraordinarios ").

In thus sketchily presenting these salient features of what obviously can here be only a most general reference to public law as affecting civil procedure, the underlying thought has been to emphasize the unscientific framing of our organic instruments in respect of that subject. Judged by these operative results we have never truly expressed fundamentally those ideal principles of the American system of constitutional representative government whereby alone can there be an administration of justice consonant with our conception of private rights and the destiny of our several sovereignties. No effort toward that end can become fruitful until we stay the tide of innovation and experiment and reconstruct or restore the basic harmonious cooperation of all and the independence of each of those three distinctive departments upon which the true American Republic depends for being.

Assuming common accord upon this doctrine of three reservoirs of power independently committed to separate representatives for independent administration and exercise there still remains the necessity for establishing safeguards against department encroachments inter se and a fixed plenary limitation or guide applicable to all. This latter it will be agreed is sufficiently comprised in the principle of "the supreme law of the land" and its corollary, "due process of law," claimed as the palladium of individual right from 1215 (Magna Charta, ch. 39, 40) to 1791 (fifth amendment Const. U. S.), and acquiesced in by every State in this Union in 1868 (fourteenth amendment). It has received the consecration of a century's recognition and application here, and been embedded in the framework of all other American Republics, Federal and sole. As a means for preserving private property rights it can well be imposed upon the executive, the legislature, and the judiciary. To the last, however, should be committed the exclusive and whole power of making it effectual. Nothing could be more unscientific or more contra-American than to impose unjudicial duties upon the judiciary, withhold from it any function essentially judicial, or subject the exercise of its powers to regulation by any other governmental department. In some of these respects nearly all Republics and States have erred in their public law, either by direct organic expressions or through failure to protect the judiciary from an undue liberty left to the executive or the legislature.

The Supreme Court of the United States has demonstrated the scientfic structure of our Federal Constitution as to both of these sources of invasion. So early as 1793 it negatived any obligation to decide abstract questions or to give advisory opinions to other departments when the request of President Washington for an opinion on the construction of the 1778 treaty with France was refused. (Story, Commentaries on U. S. Constitution, sec. 1571; Marshall, Life of Washington, Vol. V, ch. vi.) As hereinbefore indicated, some States have made this a constitutional duty, but it is clearly antagonistic to the true American system. The right of Congress to impose powers and duties upon the Supreme Court not judicial within the meaning of the Constitution was

settled in the negative by decided cases early in our history. (Hampton L. Carson, The Judiciary in Our American Constitutional System, address before Virginia Bar Association, July, 1913.)

In our States there have been varied and long-continued constitutional and legislative abuses of this nature. There has resulted in many sections weakening of popular respect for judges, distrust of courts, and loss of faith in the fair administration of justice. The learned Chief Justice Gibson, of Pennsylvania, once declared: "From its very position it is apparent that the conservative power is lodged with the judiciary, which, in the exercise of its undoubted right, is bound to meet every emergency." (De Chastellux v. Fairchild, 15 Pa. Rep., 19, 1850.) The scope of this conservative power appears from a succinct definition of the acts of the several departments given by a well-known writer: "A judicial act is one which determines the existing law in relation to existing facts, and which applies that law to the subject matter before the court; a legislative act is a determination of what the law shall be in the future; an executive act is one done in execution of the law as enacted by the legislature and interpreted by the court." (Thomas Raeburn White, Treatise on the Constitution of Pennsylvania, ed. 1907, p. 297.)

It thus seems clear that the whole judicial power must belong to courts or a department in which they are effectuating instruments together with every logical incident of a full and proper exercise of that power without interference or encroachment from any other department. To give full force to this idea and give it adequate expression by public law, so far as effecting civil procedure, requires repudiation of many expressions of the public will and a radical readjustment of theory and tradition. Procedure is the instrument of judicial effectiveness, for thereby the validity, meaning, and applicability of laws become authoritatively revealed. It is the mechanism of determining legal controversies. The legislature may say what shall be done, but the judicial power alone can say how it shall be done. Procedure includes the legal technical terms of pleading, practice, and evidence as utilized by the judicial power. If we are to have a scientific constitutional provision for this controlling power it should be so vested as to be capable of attaining high administrative efficiency, establishing practical uniformity, reasonable certainty, ample consideration, adequate deliberation, and securing enlightened and practical solutions, with minimum cost and avoidance of delay. This can be done only by a centralization of all the judicial power in one general judicial department or body with a responsible head official or chief justice and such subordinate judges and personnel as to provide adequate courts capable of being utilized throughout the whole State.

The idea in substance was presented in 1909 by Dr. Roscoe Pound to the American Bar Association and has been indorsed by that body for adoption by the States. He put it thus: "The whole judicial power of each State should be vested in one great court, of which all tribunals should be branches, departments, or divisions. The business as well as the judicial administration of this court should be thoroughly organized so as to prevent not merely waste of judicial power, but all needless clerical work, duplication of papers and records, and the like, thus obviating expense to litigants and cost to the public." (Report of 1909 Proceedings American Bar Association.)

One of the greatest benefits of which the plan could be made capable would lie in the power of making rules and regulating procedure. This would eliminate the ever rampant tendency of the legislature to impose upon courts those obstructive measures already referred to. There is nothing startling in thus leaving to courts the regulation of causes before them. It has been a feature of English courts ever since the juridicial revolution of 1873, and with most 68436-17-VOL VII-23

satisfactory results. We ourselves are already experiencing like benefits from the equity rules and procedure promulgated by the Supreme Court of the United States. They have been so generally welcomed and approved that earnest efforts to secure like action in common-law procedure have a promising outlook. The proposed centralization would surely lead to simplicity of pleading, eliminate unnecessary technicalities, and by reason of readiness of adjustment produce a practical administration of justice in harmony with changing social and economic needs. Appeals and retrials could rest upon matters purely judicial, and a better discipline be maintained over subordinates, including the bar. Above all, it would avoid delay, for the entire judicial force would be available for distribution wherever the dockets showed congestion. Obviously such a system as here put in outline thought, to be efficient, would need to be instituted so clearly as to absolutely embrace the entire judicial power. Limitations, however, would appropriately appear in provisions for uniformity, review for prejudicial error only, terms and periods of appeals, and general effect of records. On the other hand, it is apparent that the legislature would have to be restrained from interfering and specifically confined to matters of purely substantive law.

Upon two points there would have to be definite constitutional departures from deep-rooted traditions-one in respect of trial by jury, which should be made optional, and the other as to some features of the law of evidence, that peculiar product of the common law unknown to other systems. Inevitably and logically this body of rules would be made more subject to the discretion of trial judges. There is no present-day justification for the existing legal reverence for these rules. One of the most distinguished legal scholars of this country has said: "Judges made them-for the most part English judgescenturies ago, and made them because they had to deal with juries composed of illiterate men of untrained minds, incapable of making nice discriminations as to the weight of testimony." (Simeon E. Baldwin, "The Artificiality of Our Law of Evidence, Yale Law Journal, December, 1911.)

Naturally there would have to be left to the legislative department the entire field of those procedural rights which have become recognized as substantive law, such as statutes of limitation or rights of acquisition or release by prescription as known in our sister Republics, and survival of rights of action, peculiar to our own jurisprudence.

These are intended to be but outline suggestions. The scope, however it is hoped, is manifest. The need is great, lest we drift more irretrievably into that trackless wilderness of "administrative justice" where so many social and political pitfalls beset the wanderer.

The task is not beyond reasonable accomplishment if approached with de liberation and a fixed purpose. "The obscurity is much oftener in the pas sions and prejudices of the reasoner than in the subject. Men, upon too many occasions, do not give their own understandings fair play, but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties." (Federalist, XXXI.)

Out of the mass of errors and experiments it is not too much to predict that the American nations in fulfillment of their divine destiny already adumbrated in the affairs of the world, will find the enlightened path by which public law will progress constantly toward every desideratum of a true American Republic. Then shall there be exemplified the harmonious and scientific perfection of a written constitution providing for three independent governmental departments administered wholly and solely by representatives. The common national devotion to this ideal shall become the very structure and the strength of true Pan Americanism.

The CHAIRMAN. We have listened with a great deal of pleasure to the interesting address delivered by Mr. Smithers. He will pardon me for alluding to a fact which is so recent, perhaps, and possibly so important as not to have made much impression, i. e., that at the last election the citizens of the State of Maryland by a vote of two to one adopted the referendum. I think they did so actuated by the feeling which Mr. Smithers expressed in an entirely different sense, i. e., that the legislative enactments do not always carry out the will of the people, and I think the people of Maryland adopted the referendum for the purpose of making legislative enactments conform to that will.

We next have the pleasure of listening to an address by a gentleman who comes from a State which has both the initiative and the referendum, the State of Maine. The Hon. Lucilius A. Emery, formerly chief justice of the State of Maine, will address us on "The effect of American public law on our written constitutions in their bearing on the sovereignty of the State."

THE EFFECT OF THE AMERICAN PUBLIC LAW ON OUR WRITTEN CONSTITUTIONS IN THEIR BEARING ON THE SOVEREIGNTY OF THE STATE.

By LUCILIUS A. EMERY,

Lecturer on Roman Law, University of Maine.

In considering this topic I may begin with a definition of the terms State and sovereignty. In its political sense I think a State may be correctly defined as an independent, exclusive political organization of the people of a definite territory, possessing by general consent coercive power over persons within that territory. It must be independent of any political organization or power outside of its territory and the exclusive possessor of such power within its territory. Such an organization, whatever its framework and origin, is styled a Sovereign State, and its sovereignty consists in its independence and exclusiveness. I do not think it a necessary element of sovereignty that the State, the political organization, should possess unlimited power of coercion. There are some things it can not do at all. It can not control beliefs, thoughts, sentiments, however much it may influence them. As to conduct also there are some limits beyond which the State can not go, because of unconquerable resistance excited or because such an attempted stretch of power would disrupt the organization itself. To constitute sovereignty in a State it is enough that what coercion it can properly exercise it can exercise at its own will unrestrained by any other authority.

But no organization, political or other, of more than a few members can exercise its power directly. It must make use of agencies few or many according to the purposes it desires to accomplish. It must intrust its powers to them. So all the power of the State must, for the time being at least, be exercised by some agency or agencies. Whatever the theory as to the seat of the power or its rightful possessor, it is necessarily exercised by some individual or group of individuals.

Now, where in the State is its sovereignty power centered-in what agency, or person, or group? Has it any center or is it diffused throughout the entire organization without concentration anywhere?

As to monarchial States the answer is that, in theory at least, the sovereign power of the State is concentrated in the monarch. He possesses all the powers of the State. He exercises them through his own agencies. The armies, the navies, the courts of justice, the legislatures-all the agencies of government are his, exercising in his name his powers-executive, legislative, judicial, and administrative; all acts of State are in his name. No law binds him without his consent. Indeed he is the fountain of law and of all civil and political rights. Magna Charta in theory and form was the gift of the monarch. The Petition of Right was, as its name indicates, a petition to the monarch which he granted however unwillingly. With but few exceptions whatever constitutions monarchial States possess were granted by or extorted from the monarch. In the more absolute monarchies the fact, to a great extent, conforms to the theory. The Russian Duma was set up by the direct act of the Tsar and exercises only such powers as he has granted. In the less absolute monarchies, though the fact no longer conforms thereto, the theory that the monarch is sovereign, that the sovereignty of the State is vested in his person, is still maintained as a useful, if not necessary, "legal fiction." But however useful the fiction may be for some States, it clearly is not now necessary for all. The experience of modern republics shows that a republic may be as truly sovereign as a monarchy and with a sovereignty as complete, without putting forward any person or group or class of persons as possessing or even personifying its sovereignty. None of their agencies, none of their officers, however important his function, however exalted his station in the State, is placed above the law even in theory. All are subject to the law, those who enact the laws, those who interpret them, those who execute them, those who exercise any governmental power.

If, however, all are subject to the law, if there is in the State no person or agency above the law to give the law to the rest, it would seem necessary that the law thus governing all alike should be made definite. This supreme law can not be left indefinite, unexpressed. The monarch, the personal sovereign, is an expression concrete, visible. The “legal fiction” of his sovereignty more easily secures the loyalty and unity of the people. In States where such "legal fiction" is not made use of, where a supreme law takes the place of a personal sovereign, that law must be made visible in some sort of a written constitution to which the fealty of the people can attach. Even the God-fearing, law-abiding pilgrims on the Mayflower found it necessary to write out the famous compact to which they were to be loyal.

I know of no really republican State without a written constitution, and several monarchical States of more or less republican tendencies now have them. Some of these are in theory granted by the monarch. Others purport to have been framed by representatives of the people. In all republican States, however, the constitution has emanated more or less directly from the people.

Some of these constitutions contain little more than provisions relating to the form of the government, the different agencies for the exercise of its various powers, etc. In some are stated certain political principles as necessary to be observed to secure good government and the liberty of the people, but without any provision to compel such observance. No barrier is provided against their violation by governmental agencies. Indeed, in some few States the const tution itself provides that it may be changed or even practically repealed by one or more such agencies as in France and Chile (ch. 11, art. 156). In a