However, the proper appraisal of such hopes may appropriately be left to the future; for all that has been demanded by the needs of this discussion has been to explain on the humble basis of the law of nuisance that law is a science which gathers, classifies, and construes the doctrines deemed by society necessary for the constantly changing and increasing demands of mankind; that it is not an exact science; that it is not even as exact as the so-called natural sciences; and that it is conspicuous for the difficulties with which it is surrounded and the importance of the problems with which it is concerned.

By this time it may be apparent that it is not inappropriate to classify law as a science and as a science of consequence. Why, then, is it that lawyers are not called scientists?

One reason may be found by perceiving the many aspects of a lawyer's intellectual work. In so far as he may happen to be part of the body to which society has delegated the task of making law, he is a creator or at least an inventor, and a creator or inventor of rules having the quality of elasticity and of growth. In so far as he is not a creator or inventor of rules, but a mere observer and classifier of them, he is a scientific person, intrusted with the delicate function of ascertaining and stating rules having that same useful and perplexing quality. In so far as he is neither a part author of rules nor a mere gatherer of them, but a person charged with the task of applying them to facts, he deals with an art. His work being so various, he does not call himself by a title which indicates only a part of his activity, but by the title which indicates the whole of it-a lawyer.

Yet the chief reason why lawyers are not called scientists is undoubtedly found in that aspect of the law which this discussion has emphasized-namely, that law deals with rules made by men, all of these rules being subject to repeal or amendment, and some of them being stated in terms of such elasticity as to enable them to satisfy new circumstances and new ideals without necessity for changing the rules themselves. A science collecting such rules is vastly different from mathematical and natural sciences, and hence the person versed in such a science differs much in his mode of thought from persons usually termed scientists.

Yet I must not evade a series of questions whereby some metaphysician might wish to cross-examine me and to prove that human law is a natural science. Is it not clear that human law-a system regulating the actions of men among themselves-is as essential to the welfare of mankind as are the so-called laws of nature? Yes. Is it not, then, a law of nature that there shall be human laws? Yes. Are not the very changeableness and elasticity of human laws dictated by natural necessity? Yes. Are not human laws, then, laws of nature? No; not in any very useful sense; for, though that there shall be a system of human law is certainly demanded by nature, the details of that system are determined not by nature but by men. Yet are not the details required by the circumstances with which the men are surrounded? To follow this line of thought is to discuss the freedom of the will; and that way madness lies. A physicist assumes that the law of gravitation is the same in North America and in South America, and that it is the same now as when the pyramids were built; but no lawyer would say that the laws of even the most refined of the ancients-the Egyptians, the Hebrews, the Greeks-were identical with one another, or are identical with the laws of any modern country. For purposes of classification, therefore, whatever a metaphysician may say, a lawyer perceives that the laws of human law are different from the laws of nature. Thus we are again brought face to face with the fact, and the reason of it, that when the investigator compares the everyday law of the United States with the everyday law of Latin America what he is prepared to find is diversity.

The CHAIRMAN. Ladies and gentlemen, the first paper of the morning is by an eminent member of the St. Louis bar, who has a national reputation, Mr. Frederick N. Judson, who will speak on "Recent law reforms in the United States of America," and I take great pleasure in introducing him.

RECENT LAW REFORMS IN THE UNITED STATES OF AMERICA. By FREDERICK NEWTON JUDSON,

Member of the Bar in St. Louis, Mo.

The popular as well as the professional discussion of law reform in the United States of America relates, not to the substantive, but to the adjective side of the law; that is, to the adequacy of the judicial procedure in the United States in the practical administration of justice. It is no exaggeration to say that the judicial procedure in the United States is now on trial before the bar of the public opinion of the country and even of the civilized world. The public arraignment of our judicial procedure has appeared not only in the popular press, but in our American and State Bar Associations, and a former President of the United States, himself an experienced jurist, has declared that the most conspicuous failure of our American civilization is in the administration of justice, both civil and criminal. This arraignment of our judicial procedure has been declared in the platforms of our political parties and is the most frequent subject of discussion in our bar associations.

On the substantive side of the law, the complex form of our Government, with the dual sovereignties of the States and Nation, in the adaptation of the law to the demands of commercial intercourse, has demanded progressive steps toward uniformity in our State regulations, particularly on commercial subjects. A very effective agency in the progress of uniformity in legislation has been the organization and service of the Commission on Uniform State Laws affiliated with the American Bar Association. Thus, the negotiable instrument law drafted by this conference is now in force in 40 States, Territories and possessions and the District of Columbia; the warehouse receipts act in 24 four; the stock transfer in 5; the bill of lading act in 9; the foreign wills act in 6. The labors of this conference have thus been very effective in promoting the uniformity of legislation, particularly in commercial matters, and in thus adapting our law to the demands of a commercial age.

On the other hand, in our legal procedure the delay and inadequacy in the practical administration of justice have been the subject of extended investigation in our bar associations and have been impressively contrasted with the promptness and efficiency of other judicial systems both under the common and the civil law. We have followed the example of England, the country from which we inherited our common law, in abolishing in many States the ancient common-law forms of procedure, but we are now beginning to recognize what has long been recognized in England-that any statutory code of procedure which undertakes to regulate all the delays of practice in courts of Justice is liable itself to become the subject of technical construction, thus leading to the miscarriage of justice. Some of the most technical decisions which have startled our courts in recent years have been rendered in States that have long had the so-called reform procedure on their statute books.

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This inadequacy of our judicial procedure has been developed in the United States, especially in the State courts, during a period of legislative activity directed against the common-law independence of the judges, which has resulted in effectively limiting their powers. It has been a period of progressive democratization of the courts, which apparently in some States is not yet ended. In nearly all the States judges of all the courts are elected by the people, and in some of them judicial nominations are made at political primaries. Mr. Bryce said the American bench has suffered from the all-prevalent system of popular election and the scanty remuneration afforded. Since he wrote his commentaries five of the States have adopted the principle of judicial recall, so that the judges who make unpopular decisions—that is, decisions disapproved by the then majority of the voters can be summarily removed from office by popular vote. In nearly all the States judges are subject to a recall hardly less effective in the short judicial terms which requires them to submit to the judgment of the voters at frequent intervals and to take their chances with political nominations and the changing political control of the polls. Although the ancient forms of pleading have been generally abolished, our statutes undertake to provide the details of judicial procedure, and in many States the trial judges are compelled to give their instructions to the jury in writing and are forbidden to comment upon the testimony. In some of the States the appellate judges are forbidden to exercise any discretion as to what opinions should be given in writing, and therefore follows the enormous multiplication of printed reports, which is an increasing burden to the profession.

Thus the judicial procedure has proved inadequate for the demands of a commercial age and has become the dread of our business men and the sport of our satirists. It has resulted in congestion in the appellate courts of many States, causing often a delay of years in the decision of cases and therefore an effective denial of justice, for in modern times the delay of justice is often the denial of justice.

This state of things has been aggravated by the restrictive and detailed character of our State constitutions, multiplying so-called constitutional questions in the exercise of legislative power, and also by the naturally contentious spirit of the bar, which tends to make every appellate hearing a quest for error rather than a search for justice. The situation has also been aggravated by the exaggeration of the essentially artificial character of our exclusionary rules of evidence, which were made when the judges had to deal with juries of illiterate and untrained minds, incapable of making nice discriminations and distinctions as to the weight of evidence. These difficulties have also been aggravated by the want of adaptation of the judicial machinery of the country to the vast changes resulting from the development of great cities and of the enormous increase of litigation therein, requiring administrative ability of a high order in the practical administration of justice, both civil and criminal, for the congested masses in our great centers of population. A very natural result of these conditions has been the abuse in the appellate courts of the so-called doctrine of presumption of prejudice from error; that is, that the appellant is prejudiced by any erroneous ruling in the trial court against him, so that the judgment against him must be reversed irrespective of the substantial rights of the parties. This subject has been extensively agitated, and the American Bar Association has petitioned Congress for an amendment to the Federal judiciary act, so that no judgment would be set aside or reversed or a new trial granted for error in any matter of evidence or pleading or procedure, unless it should appear that the error complained of had injuriously affected the substantial rights of the parties.

An effective cure, however, for miscarriages of justice that sometimes result from this misapplication of the principle of prejudice from error, must be found not in the statutes alone, but in the development of popular and judicial opinion, as without this any statutory enactment must be unavailing; since such statutes in some of the States have not prevented the courts therein from holding that fatal prejudice is necessarily presumed from any error in the course of the trial, and that this presumption must be rebutted by facts affirmatively shown in the record.

While this situation is deplorable, it is encouraging to note that the condition is recognized by the bar, and though progress is slow, very effective steps are being taken in the direction of a permanent reform. Thus the very be ginning of any reform must be a recognition of its dependance upon an enlightened and independent judiciary. We must restore to the courts their oldtime independence over rules of procedure. Thus a most effective step was taken in this reform by the rules of practice in courts of equity of the United States promulgated by the Supreme Court of the United States November 4, 1912, taking effect on February 1, 1913. No one can read these new revised rules of practice, comparing them with those which had been in existence in substance since the foundation of the Government, without realizing that the Supreme Court was convinced of the necessity of radically reforming our procedure to meet the wants of a commercial age, and that the courts are the only competent authority to make these detailed rules of procedure. It was fortunate for the United States that they had a Federal tribunal which was vested with the power to make and enforce such a reform. Time will not permit of the discussion of the details of these rules, but it is sufficient to note the simplification of the pleadings, and, more important than all, the provision that testimony must usually be taken in open court, and the testimony by deposition must be the exception and not the rule; that a case may be transferred from the equity to the law side of the court if occasion requires; and that in case of appeal the duty is imposed on solicitors of condensing, so the case may be presented in simple and direct form to the appellate court.

The promulgation of these rules by the Supreme Court of the United States must necessarily have a profound and far-reaching influence in the different States, and is a striking illustration of the importance of the preparation of rules of procedure by the judges who are to administer them.

The American Bar Association has urged that Congress should empower the court to adopt rules of evidence of uniformity of pleading and procedure in law cases in the Federal courts and to do away with the attempted conformity to State practice in common-law actions. This effect would doubtless be far reaching in promoting uniformity in the States with the Federal procedure.

The distinction between law and equity, which is recognized in the Constitution of the United States, as it existed at the time of its adoption, has been criticized by the great authority of Judge Dillon as essentially artificial and originally accidental. Thus in England there has been a fusion of law and equity in practice, so far as in the nature of things it can be effected, by the rules of practice which are established, and can be changed by the Lord Chancellor with the approval of a majority of the judges, and then approved by Parliament. All this, however, emphasizes the fundamental principle which lies at the basis of any hope of reform, that we must enlarge judicial discretion and dignity the office of judge before we can hope for any permanent reform.

Another most important step in the reform of legal procedure was the In this adoption in the State of New Jersey of the practice act of 1912.

State, in the inauguration of its new system, details of practice were provided for in rules which are expressly declared to be subject to the control of the court, as the statute provides that the Supreme Court shall provide rules for all the common-law courts, and the rules thus established shall supersede as far as they conflict with the statutory and common-law regulations theretofore existing. The act thus provides a set of rules which are deemed to be rules of the court, subject to suspension and amendment in any particular by the courts, as experience shall prove to be expedient. This New Jersey act will doubtless be the model upon which acts in other States will be framed in the introduction of a reform system. The need for restoring to the courts their common-Law responsibility for regulating the procedure by rules of court has been realized elsewhere throughout the country. Thus in New York the practice act now in preparation provides for the extension of the powers of the court in the making of rules of procedure.

Another very important step in reform is the recognition of the necessity of an adequate administrative organization of our judicial machinery, particularly in its adaptation to the administration of justice in the crowded cities of the country. A very comprehensive recommendation has been approved by the American Bar Association that the whole judicial power of the State, particularly for civil causes, should be vested in one great court, of which all the trial tribunals should be branches or divisions, that being in effect the English system, which has eliminated the technical questions of procedure which embarrass and delay our courts. This plan contemplates such organization of the judicial system as will prevent needless waste of time and duplication of records and the like, thus obviating expense to the litigant and cost to the public. Some States have already taken steps in this direction, as in abolishing the requirement of motions for a new trial as an essential before appeal, and the needless formalities in preserving exception to adverse rulings, and distinction between matters of record and the matter of exception with which many of our appellate courts are filled, and which is unknown in England and in Canada, and I may even say in any other civilized country. A very effective work has been done in what may be termed the practicable and administrative organization of our courts by the American Judicature Society, which has suggested that the rule-making power, implying a large scope for administrative orders, should be vested in an administrative board similar in make-up to the judicial council of the English court system, and that it should be composed of the presiding justices of the several divisions of the State judiciary. The importance of an effective administrative organization of the judiciary has been very effectively illustrated by the so-called municipal court in the city of Chicago, which has revolutionized the administration of justice in that city. This court has now some 31 members, with 160,000 causes per annum, and yet keeps abreast of its calendar. While the procedure is informal, it is clear that the great success of the court is in the effectiveness of its administrative organization.

This promises to be one of the most effective agencies for reform, in that the necessity for such an organization of judicial machinery exists in all the large cities of the country, and the example of Chicago promises to be and is now being extensively copied in the different cities where such conditions exist.

Another reform which is just beginning to be agitated is in the limitation of the reports of our appellate courts. This does not relate to the possible effect of the multiplied accumulation of case law upon the doctrine of judicial precedent which is such a feature in common-law jurisprudence, and relates rather to substantive law, than to procedure, as that is too large a subject