the Assembly and Senate began the stupendous work of amending the Code. It removed from the statute many provisions relating to details of practice and embodied them in rules. Some simplification resulted, but the Code continues to fill our reports with decisions upon procedural matters; and it still tempts the legislature to "tinker" with details.

It will be noticed that Section 914 of the Federal Statutes provides that practice in civil causes should conform "as near as may be" to the state practice. If carried into effect this provision would result in fortyeight kinds of procedure. The plan of assimilating the practice in the state and federal courts has, as a result, proved to be very unsatisfactory. Prior to the passage of Section 914, the so-called "Process Act" of 1789 expressly adopted forms of writs and modes of process of the state courts in suits at common law. In Beers v. Haughton, 9 Peters 357, Mr. Justice Story said that this procedure was continued by the Act of 1792 "but with this remarkable difference, that they were subject to such alterations and additions as the said courts respectively, should in their discretion, deem expedient; or to such regulations as the Supreme Court of the United States should think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same." And it is obvious that if it were not for the elasticity afterwards secured by the words "as near as may be" in the Act of 1872, there would have been confusion and complication. Thus, in states like New York federal judges would have been compelled to devote much of their time to probing into the mysteries of ever shifting state practice. They were naturally forced to take refuge in the words "as near as

may be" and largely ignore the state practice; and instead of simplifying the practice this has resulted in so much uncertainty, that in some of the great circuits like the Eighth, embracing many 'thinly settled states, many lawyers infrequently resort to the federal courts, and when they do the client is in danger of suffering from unavoidable mistakes or delays.

The elastic construction placed upon Section 914 has rarely been questioned. It was clearly set forth by Judge Sanborn in O'Connell v. Reed, 56 Fed. Rep. 531, 535, where he said that state procedure was to be adopted where it did "not impede the administration of the law, or the efficiency of the federal courts," and he added that it was the "right and duty" of the federal courts "to reject any subordinate provision of the state statutes and any rule of practice of the state courts which in their judgment will 'unwisely incumber the administration of the law, or tend to defeat the ends of justice in their tribunals.' The Supreme Court of the United States has approved this doctrine in Railroad Company v. Horst, 93 U. S. 291, 300; and in Bank v. Halstead, 10 Wheaton 51, 59, the same Court said that constant unscientific statutes had finally created such a condition that "to conform to such statutes of a state would unnecessarily incumber the administration of the law as well as tend to defeat the ends of justice in the national tribunals."

Coming now to the proposed reform, I wish to summarize some of its advantages:

The rules will be drafted by those who know or have ready means of ascertaining what is needed. It has been objected that the Supreme Court Justices are so much occupied with their other duties that they could not give

the time or attention necessary to the drafting of adequate rules. That, of course, is true, if it be assumed that every judge of the Supreme Court is to concern himself with the actual investigation and the laborious process of formulation. If it were intended to make

rules upon the bad model of the New York Code of Civil Procedure, dealing with minute details of practice, it would have to be conceded that it would be beyond the power of the Supreme Court or any other court. But, fortunately, it may be safely assumed that the Court in making rules, will seek simplicity and thus save labor, as it has done in framing and revising the rules relating to equity practice.

One of the strongest arguments in favor of courtmade rules is their flexibility. The very rigidity of a statutory rule leads to pressure for amendments which, while they may serve the selfish interests of lawyers or litigants in particular cases, often tend to complicate the general scheme of practice. Members of a legislative body take little interest in improving the administration of the law. They are far more absorbed in questions which have a closer grip upon their attention. On the other hand, the courts are daily engaged in the administration of justice and they are far better judges of the means by which that administration may be facilitated. It will hardly be contended that a reform of procedure can safely be left to the Judiciary Committees of the two houses of Congress. For more than ten years the American Bar Association has been urging Congress to vest in the Supreme Court the rule-making power. Not only has the relief been denied but no Judiciary Committee of either house has ever proposed any substitute measure of reform; and this attitude does

not encourage advocates of the bill to believe that Congress will ever originate any constructive plan to ameliorate the situation.

The proposed federal bill has received some attention from the press. In an editorial in the New York Times concerning delays in the courts particular reference was made to Senate Bill 2061 and to the fact that "two or three militant Senators (if not one) have been able to defeat the will of the majority and hold the bill in committee for eleven years." The Times continued:

"The indefensible nature of such a performance needs no proof. It does indicate, however, where a good part of the blame lies for the delayed justice which too often in the United States amounts to a denial of justice. Legislatures and Congress have not the sensitiveness on this subject which the time requires. They are so busy framing new laws that they overlook the importance of taking steps to cause old laws to be better enforced. These things ought not so to be. If Congress does not give prompt heed to this particular appeal from the American Bar Association, it ought never to utter a word in the future about the tardy and uncertain administration of justice in the United States."

Senator Walsh of Montana promptly sent to the Times a letter in which he said that the editorial "unmistakably points to me as in a large measure responsible for its ill success thus far"; and he then proceeded to explain his position. His principal objection is that the proposed rules

"would be most convenient to those eminent and successful lawyers whose practice is confined largely to the federal courts and who perhaps try lawsuits in a dozen different states, but it would be all but intolerable to the lawyer who never tries a case outside of his own

state. As there are at least a hundred of the latter class to one of the former, the wisdom of the change is not as obvious as some enthusiasts claim."

But the hybrid practice which has sprung up in the federal courts under Section 914 is as bewildering to the "eminent and successful lawyers" as it is to the lawyer who deals with small local cases. The uncertainty of the mixed practice is sometimes very perplexing to any lawyer and particularly to a busy one, as "eminent and successful lawyers" usually are. But the objection of Senator Walsh is at best based upon convenience of the profession and not upon a broad consideration of the improvement in the administration of justice. It gives force to the statement frequently made, that among the people the impression prevails that the legal profession has not done all that it should to improve the administration of justice, or, as it was stated in a report by Dr. Pritchett, of the Carnegie Foundation, "to that extent which society has the right to expect.'

The persistent effort of organized lawyers to procure such reforms as that I am now advocating is pertinent evidence that lawyers stand ready to take the lead but that reforms will come haltingly without the active aid of other elements of society, and particularly those who form the public opinion which is reflected in political action.