Committee on Law Reform makes at this meeting an interesting report relative to its activities including the history of this bill and the causes that contributed to its defeat.

Without the expectation of saying anything new on this subject, but with the expectation of registering the sentiment of what I believe to be a substantial majority of the Illinois bar and the overwhelming majority of those who have given this matter serious consideration, I wish to make a few observations, historical and otherwise, in regard to vesting the rulemaking power in the Supreme Court.

The opinion of the Illinois bar has for a number of years been crystalizing in favor of this measure. At the Supreme District meetings in 1926 the decided preponderance of opinion Iwas in its favor. In four districts the vote was unanimous. In only one district, where the proposition was put to vote, did it fail of endorsement, and in that one it was referred back to the Association without recommendation.

We have ample historical authority for vesting this power in the Supreme Court. This was a common law power of the courts which has been gradually encroached upon by the legislatures of the various states, the impetus having been largely given by the Field Code of 1848 of New York. Indeed, many good lawyers are of the opinion that this is so clearly a judicial power that it now rests in the courts without necessity of recourse to legislative enactment. However, the encroachment of the legislative branch has been so long continued that there should at least be a declaration of the legislature by positive

enactment.

After long parliamentary encroachment, the right of the English Courts to make rules of pleading, practice and procedure was fully and definitely established by the English Judicature Act of 1873, as amended by the Act of 1875. By it the entire system of the Courts was revamped. The whole matter of pleading, practice and procedure was vested in the Rules Committee, consisting of eight judges of various Courts, two barristers chosen by the General Council of the Bar, and

two solicitors, chosen by the General Council of the Law Society, the representative body of the Solicitors. The system has resulted in the simplification of pleadings and practice and there is absolutely no tendency in England to return to the old cumbersome practice with its numerous pitfalls. The policy of giving the courts the rule-making power has spread to every province of Canada, to Australia and to India.

The progress of the idea in the United States is notable. In 1842 Congress gave to the Supreme Court of the United States the power to promulgate rules for equity and admiralty practice, and every new court which Congress has created, since the advent of the Field Code, has been given express power and authority to make and amend its rules for the regulation of practice and procedure, including the Court of Claims, the Court of Customs Appeals and the United States Court for China; and in 1890 the rule-making power was conferred on the Supreme Court of the District of Columbia for the Courts of the District. There is now pending in Congress a bill giving the Supreme Court of the United States the rule making power in actions at law. For forty years the Interstate Commerce Commission has had power to make its general rules and orders, and this power is vested in the Board of General Appraisers, the Board of Tax Appeals, the Federal Trade Commission, the Federal Power Commission, and generally in all State Railroad and Public Utility Commissions.

In Colorado the rule-making power was given to the Supreme Court in 1913 and the New Jersey Courts have had this power since 1912. The Constitution of Michigan vests this power in the Supreme Court, which it has had since 1850. From a recent letter to the writer from Dean Sunderland of the Law School of the University of Michigan it appears that the Supreme Court of that State, pursuant to the constitutional power vested in it has made several drafts of rules which have been conservative and satisfactory. In 1858 the Court drafted ninety-five law rules and one hundred twenty chancery rules. In 1877 nine new law rules and one new chancery rule were added, and by 1893 three more law rules

and four more chancery rules had been added. In 1896 and again in 1916 the Supreme Court adopted revisions of the rules substantially as recommended by the Committee on Legislation and Law Reform of the Michigan State Bar Association. No substantial changes have been made since 1916 and Dean Sunderland says: "The practice is considered very satisfactory."

Washington and Delaware have recently conferred the rule-making power on their Supreme Courts, the latter in civil practice only, and in Illinois the Municipal Court of Chicago has been given extensive rule-making power. The historical argument for legislation of this character would seem to be persuasive, if not conclusive.

The need of rules of Court to simplify pleading and practice has long been apparent. We are compelled to waste entirely too much time on questions of procedure, and the practice of the law to a large extent becomes a game in which the skillful practitioner seeks to trip the unwary feet of his adversary. The substantive rights of clients should not be prejudiced by the technicalities of the adjective law. The Reports are full of reversals of cases on account of questions of practice or procedure entirely foreign to the merits of the case. With simplified procedure and practice such questions would be reduced to a minimum. When the substantive law applicable to the case has been ascertained it ought not to be necessary to consume time wandering through the mazes of the adjective law. We would have a lively hope that the anachronisms of the law would be abolished.

One can see why the substantive rights of litigants is a matter over which the Legislature should exercise a jealous interest, but experience has shown that the courts are much more competent to establish the adjective law for the purpose of the administration of the substantive law.

Legislative reform is slow, while the court can act without delay. The Legislature only meets biennially and then is confronted with a crowded calendar which permits the giving

of very limited consideration to matters that affect the courts. Besides, the majority of the Legislature is composed of laymen, who are not familiar with the law or its requirements. The Practice Act comprises the working tools of the lawyer and it is highly illogical that these should be provided by laymen who are unfamiliar with the law. The Legislature would not assume to supervise the medical profession in this manner. Why should it exercise this jurisdiction over the law?

The members of the Legislature are absorbed by questions of public policy and matters of private interest, which largely consume their time and energy. There is a tremendous amount of log-rolling in the Legislature, by which measures good, indifferent and sometimes bad, are passed. Altogether little time is left for serious consideration of the needs of courts, litigants and lawyers.

It is well known that reform by way of legislative enactment is inelastic. As stated before, the Legislature meets only biennially and if a bill is so fortunate as to be enacted into law it is fixed and unchangeable until the next session of the Legislature, and even then amendments shown to be necessary by experience are difficult to secure, whereas the method of regulation by rules of court is very elastic, and the Supreme Court can speedily and easily modify rules according to the light of experience.

During the last session of the Legislature the truth of the foregoing arguments was demonstrated. It was a maelstrom into whose vortex legislation was drawn, with the conflicting interests joined in death grapple. There was nothing dramatic in our bill to these members who were interested in the more obvious matters affecting politics and their own private interests. As a result the bill did not receive the serious consideration that it deserved in the Senate where it was pending, from the members of that body whose minds were occupied by other matters. These factors spelled defeat for the measure. As illustrative of the scant consideration

which the Legislature gives to legal matters, I remember very clearly that in 1915 the Uniform Sales Act was passed in the closing hours of the session with nearly the entire membership ignorant of the purport of the bill. In this instance the lack of care on the part of the legislature did not defeat the measure which had merit in itself. However, in either event, there is a clear demonstration of the desirability of vesting matters pertaining to practice and procedure in the Supreme Court where they will receive intelligent and sympathetic

treatment.

The traditional bias of lawyers in general against all change was another factor contributing to the defeat of the bill. The laws of the Medes and Persians were not in a class by themselves. This tendency is perhaps inherent in our profession which rests so largely on precedent. We are inclined to worship the God of Things-As-They Are. Dean Pound has said that the lawyers are largely apprentice trained. It is true. We practice law as our preceptors practiced it before us. We become good technicians in the trial of law suits, but as a rule are not well grounded in the history or philosophy of the law. This may arise in a degree from the case system of teaching. If we can find an authority on all fours with our case our souls are satisfied. We look no farther.

A divinity student is given a thorough course in church history from the time of Christ and perhaps before. The law student gets some fragmentary knowledge of the history of the common law from Blackstone and perhaps some other sources, but does not pursue it as a systematic study, and to him the field of comparative law is closed. Without having exact knowledge as to the curricula of the law schools, it occurs to me that it would be desirable if more time were given to the history of the law and comparative law, as required and not elective studies. It would have cultural value, broaden the outlook of the student and render him more ready to surrender some of his pre-conceived notions.