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vanish away. But to this spirit I fear the atmosphere of the uniformity proposed will prove to be inhospitable.
Just a moment before I ask for the next speaker. I would like to suggest that any of you here who have not registered, please do so before you depart. Mr. Clark, the Secretary, will have the register, and we wish the name, address and official position of every one here for future reference. I will now introduce Ira E. Robinson, Presiding Judge of the Supreme Court of Appeals of West Virginia.
Judge Ira E. Robinson, of West Virginia :
I am appearing before you, not without trepidation. I have no manuscript. I had to do either without a vacation or without a manuscript, and I believed that I needed a vacation more than you needed a carefully prepared address.
We have all been well entertained by the excellent paper which we have heard Judge Dietrich read. I must confess, however, that I have understood the purpose of this discussion just a little differently from what Judge Dietrich has evidently understood it. I assumed that we were to discuss the American Bar Association idea of uniformity in procedure, or that which I have commonly called the Shelton plan; that we were to discuss the merits of the work which has been carried on by the Committee on Uniform Judicial Procedure of the American Bar Association. So in my remarks I shall proceed along a different line from that pursued by Judge Dietrich. The thing I have in mind as desirable and obtainable is not procedure exactly uniform throughout the country, but a plan whereby procedure would be promulgated by the courts of last resort—the federal procedure by the United States Supreme Court, in accordance with the bill now pending in Congress, the Clayton Bill, No. 133, of the House of Representatives; and the procedure in each state by its court of last resort. I think not of precise uniformity in procedure everywhere, but of uniformity of desire and determination that the courts shall be given back that which originally belonged to them--the right to say by what methods and practices the law should be applied in them. That right the courts should have without legislative interference. The legislatures should stop meddling with matters of court procedure, after definitely granting back to the courts their original province in the matter of procedure and practice. The courts are competent in this regard; the legislatures have proved that they are not.
We have had much more trouble about procedure in recent years than ever before. The more tinkering by the legislatures, the more trouble we have had. If the members of the Bar in each state would procure simple legislative action giving to the Supreme Court of the state the duty and province to prescribe procedure, it would no doubt be formulated by such court so that there would be the simplicity and common sense in it which modern conditions demand. This idea has been on several occasions admirably explained by Mr. Shelton. To me it seems true, as he insists, if Congress would untie the hands of the Supreme Court of the United States, that great court, upon which we look with admiration and confidence, will devise for the federal courts a system of modern practice, which will be a model from which the various supreme courts of the states may copy, as far as the same may be adopted to suit local conditions. Such a step would go far toward the establishment of better court procedure in the states.
Judge Dietrich has taken the position that there can never be uniformity-procedure exactly the same in all jurisdictions. I do not believe there is very much to be gained in a crusade for procedure to be just the same everywhere. But in determination to have procedure prescribed by the highest and ablest courts, there is much. It will bring uniformity in this: that procedure will be simplified and fitted to modern times everywhere. It will bring a uniformity of simplicity and applicability, though court procedure is not made exactly the same in every jurisdiction. A determination for modernization this Judicial Section ought to take up and to foster. I believe that was the thought which caused the Executive Committee to put on this program the subject in the terms that we have it.
The plan of which I have spoken has been the subject of discussion in practically all the Bar Associations of the states. Forty-two Bar Associations have given approval to it. We shall find some of the states backward. It will take time. But there is much to be gained from example. When it will be observed that courts have again taken in hand the devising of procedure, and by their wisdom and experience are making procedure simple and effective, taking that which is technical or cumbersome out of it, then there will be a very general adoption of the plan throughout the states. As men of the Bench and of the Bar, we must face that which is at hand—a demand for the same modern sense in court procedure that is applied to other business. By no means do I mean by this that essential formality and rules, nor even all of the common-law principles, are to be abolished. If we do not get too philosophical, if we do not get too refined in our thoughts and too formal in our actions in these matters—in other words, let me say, if we do not assume too judicial an air, as lawyers and judges are prone to do then we shall realize that the murmuring down in the very multitude of the people whose representatives we are means something. If the Bench and the Bar do not modernize procedure, mark me, and I think everyone here will agree with me, it is going to be straightened out, if I may be permitted to use that term, by those who are less competent to guide the transition than we men who have been promoted to high places upon the presumption that we know all about the law and the application of the law. The call is to us as judges, as men laboring, not for the mere salary we draw, but laboring toward an ideal that is to uplift humanity, to make conditions in our country so that unnecessary burdens will be lifted from litigants. That is peculiarly our business. It is the bounden duty of the courts and the lawyers to get right into this campaign for modernization for the adoption of simplicity and certainty, directness and inexpensiveness in the procedure that is carried on in the courts. Let us make the procedure uniform in that it is simple, certain, direct, and inexpensive everywhere in the land, even though it may differ a little in detail here and there. That is my idea of uniformity.
I feel prompted to say just a few words along another line; and that is the theme of unity, not uniformity. Do you realize how much there is in brotherhood, how much of judicial spirituality and uplift comes to us from the meetings of this Judicial Section? Do you realize how much is going to be gained toward a better usefulness of the courts by our knowing each other and exchanging views? I want to congratulate and give honor on this line to a Virginian for the thought that promoted and organized this Judicial Section, Thomas W. Shelton, of Norfolk. His high thought has not only promoted this organization, but, like another great Virginian, Patrick Henry, he has, by his plan for simplification of procedure, spoken a declaration of freedom from an oppression that daily afflicts the courts and those who must seek redress in them. I congratulate you with myself that we are members of the Judicial Section of the American Bar Association. I trust that every one of us, though he comes from the Bench, will lay aside the ermine long enough to get into the spirit of the brotherhood of the great day in which we live. It means much to know each other personally. Soul is quick to catch inspiration from soul. Let us not fail to attend and promote this Judicial Section. Let us invite our associates and all other judges whom we meet to unite with this great organization of the judges of the land, which has for its object the betterment of our country by the keeping in view of those ideals which will lead to the re-establishment of the confidence of the people in their courts. Only through the masters of the law may the law be made fitting to the great advance of the times. These masters of the law are the judges, the lawyers, and the law teachers. Imbued with the spirit of high calling, surely they will not fail to respond to the duty at hand.
The Chairman then called on Judge Thomas C. McClellan, of the Supreme Court of Alabama.
Judge McClellan said in part:
The questions submitted to this discussion appear to me to be as practical as the great subject to which they relate; and to foreshadow the entire feasibility of favorable responses to them.
The exclusive governmental function of administering juristic justice embraces three elements, namely: The law, whereby conduct is governed and rights are declared and preserved; forums for the expression and the application of the law; and then duly ordained, prescribed methods by which these established agencies may be made available and their authority made appropriately effective. The existence of substantive law and of forums would be practically vain unless means, machinery to invoke them were afforded. The subject under discussion and consideration has reference, alone, to this last mentioned feature of judicial administration. As now presented, these inquiries do not in any primary sense invite the quest for, or the consideration of, faults in systems of legal administration or the suggestion of remedies for evils that may inhere or may appear in such systems.
The desirability of a generally uniform system of practice and procedure in the courts of the nation would seem to be clear: unless there exists in the states conditions that forbid in practice that which is obviously desirable at least in theory.
With the possible relative exception of the State of Louisiana, due to its qualified adherence to the civil law, it may be safely assumed that there is no distinguishing condition prevalent in any state in the union necessitating a generally different system of practice and procedure. In all the states there is similarity, if not fundamental identity, in the law governing the right and the law penal. Sc marked is the similarity of substantive law in the states, with the relative exception mentioned, traceable in the main to the process of appropriation from the English common law and then from states by states, the courts in all of the states constantly accept as precedents the decisions of sister states on questions involving like principles, even on questions relating alone to practice and procedure; and it is the general, if not the universal, rule to accord to a statute copied from the positive law of a sister state the fixed judicial construction the courts of last resort have placed upon the appropriated statute; and so upon the theory that the adopting state has enacted as a part of the statute the construction prevailing with the court of highest resort of the parent state. There are, of course, varying degrees of differences in the substantive law of many of the states; but this fact furnishes no basis for a denial of the practicability and desirability of uniformity in matters of method: since the proposal relates to method, and not to the substantial rights of parties litigantrights which no conceivable system of practice and procedure would attempt to embarrass, to impair, or to defeat. There would seem to be no more reason for non-uniformity in matters of judicial method in the states than there is for non-uniformity