REPORT OF THE SPECIAL COMMITTEE ON DELAY AND

UNCERTAINTY IN JUDICIAL ADMINISTRATION.

To the American Bar Association:

The SPECIAL COMMITTEE, on the Delay and Uncertainty in Judicial Administration, have the honor to make this their SECOND REPORT, as follows:

The committee, as originally appointed in 1884, consisted of the first two signers of the present report and threc other gentlemen, one of whom died before acting and the others went out of the country before the report was made. The two members remaining made a report, concluding with fourteen recommendations, nine of which were adopted without modification; two were adopted with modification; two were stricken out, with the consent of the committee; and one was postponed to the next meeting. Those adopted were the following:

I.-Summary judgment should be allowed upon a negotiable instrument or other obligation to pay a definite sum of money at a definite time, unless an order of a judge be obtained, upon positive affidavit and reasonable notice to the opposite party, allowing the defendant, on terms, to interpose a defense.

II.—In an ordinary law-suit the methods of procedure should be simple and direct, without a single unnecessary distinction or detail; and whatever can be done out of court, such as the statement of claim and defense, should be in writing and delivered between the parties or their attorneys without waiting for the sitting of a judge.

III.-Trials before courts, whether with or without juries, should be shortened, by stricter discipline, closer adherence to the precise issue, less irrelevant and redundant testimony, fewer debates and no personal altercation.

IV.

Trials before referees should be limited in duration, by order made at the time of appointment.

VI. The record of a trial in every court, in which official stenographers are in attendance, should contain short-hand notes of all oral testimony, which notes, if the court shall so order, shall be written out in long-hand and filed with the clerk; but only such parts should be copied and sent to an appellate court as are relevant to the point to be discussed on the appeal, and, if more be sent, the party sending it should be made to pay into court a sum fixed by the appellate court, by way of penalty.

VII.—A motion for or against a provisional remedy should be decided within a fixed number of days, and if not so decided the remedy should fail. In all other cases a decision within a fixed period should be required of every judge and every court, except a court of last resort.

VIII. The ordering of new trials should be restricted to cases where it is apparent that injustice has been done.

IX.-Whenever a court of first instance adjourns for a term leaving unfinished business, the executive should be not only authorized but required to commission one or more persons, so many as may be necessary, to act as judges for the time being and finish the business. Such temporary judges should be commissioned in all courts except the court of last

resort.

XI. The time allowed for appealing should be much shortened. One month, or at most two, should seem to be enough in all cases.

XII.-Greater attention must be paid to the selection of judges, without which no other reform, however good in itself,

can succeed.

XIV. Statistics of the litigation, in the courts of the United States and of each state, should be collected and published yearly, that the people may know what business has been done and what is waiting to be done.

The recommendation, which was postponed to the present meeting, was the following: "The law itself should be re

duced, so far as possible, to the form of a statute." This will be first considered.

REDUCTION OF THE LAW TO STATUTORY FORM.

have considered this recomThe reasons given by the

The committee as reorganized mendation anew and readopt it. original committee leave little to be added. There are now in this country but two ways of making law, and these are legislation and litigation. We prefer legislation. Whether there was ever, at any time in any country, reason for judgemade law, it would be profitless to discuss. We affirm that there is not now, in this country, any reason for it whatever. It is illogical, unsafe and contrary to the American theory of government.

The recommendation of the report would not commit the Association to any particular scheme of codification or to any form of statute. But we are unwilling to believe that the wit of man is so feeble and the English language so defective, that rules of law which are capable of expression in judicial decisions cannot be expressed in statutes. The existing statute books themselves show the fallacy of such an opinion. A large portion of the law is already codified. What we insist upon is that the uncodified portion of the common law, so far as it is settled by judicial decisions, should be enacted by the legislature in as brief a compass as possible and published for the use of judges and lawyers, and for the information of the people. We repel the idea, that the reduction of the law, so far as practicable, to the form of a statute would check the natural growth of law. We ask that the processes of legislation be reformed and improved, and that the making of the rules of law, by which all the members of the body politic must be governed, be not left to the shifting decisions. of judges in private litigations between A and B or B and C, which may perchance be given in collusive suits between private parties, represented by incompetent counsel, the public having no opportunity and no right to be heard or consulted

as to the propriety of the rule which the court declares. Then the people should be enabled to know beforehand, so far as possible, by what law they are to regulate their conduct, instead of having their rights disposed of as may happen, and in point of fact does not infrequently happen, under the system of judge-made law, by a judicial decision which in its operation upon the case in which it was decided, and upon other existing transactions or conditions of the same kind, has all the injurious effects of a retrospective law. If the law is reduced to the form of a statute the office of the judicial tribunals will be, for the most part, interpretation instead of legislation. Judicial legislation will measurably cease and the office of making laws will be left to that department of the government which was created for that purpose. We repeat, that the real question is whether the American people should be governed by legislation or by litigation.

The precedents cited in the briefs of counsel and the opinions of courts are simply statements of the conclusions upon law and fact in particular cases. The point of the decision was not an abstract rule of law, but the right of A or the right of B in the circumstances developed on the trial. The rule is inferred from the reasoning, or, if there be no opinion delivered, from the mere fact of a decision one way or the other. When, then we say that our common law is a law of precedents we mean that it is a law of inferences from precedents. The inferences may be correctly drawn or they may be drawn incorrectly. It would hardly be probable that two persons should draw precisely the same inferences. Hence arises one of the reasons for a code that is to settle the inferences. no other way can any stability be given to common, that is unwritten law, for the next precedent may tend as much to confuse as to enlighten the reader upon the just inference to be drawn from the previous one. Precedent is heaped on precedent, that is, precedent in explanation of precedent, which is the same as to say the inference from the first precedent is attempted to be explained by inference from the next

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