endeavor. To assume that what we have is perfect, is to refuse to keep pace with the march of civilization, and would doom the administration of justice to incompetency and inefficiency.

It is my purpose to point out some of the defects in the judicial machinery that in my opinion are largely responsible for many of the practical failures with which all will concede the administration of the law abounds. I have neither the time nor the inclination to touch upon a subject of great public interest that relates to proposed legislation for the regulation and control of the vast corporate bodies of the country to the end that certain grievous abuses which are claimed to exist may be corrected. That subject is receiving profuse attention. Writers and orators are, figuratively speaking, declaiming upon it from the housetops. Public officers and process servers are working overtime in ceaseless prosecution of investigation. Books are being examined; consciences, such as they are, searched. Some are fleeing; others pursuing. Much information and misinformation is being garnered. Verily, it is true, that "many shall run to and fro and knowledge shall be increased." Many new models, some of them of strange and wondrous shapes, are being made for legislative consideration. Likely some of these will be written upon the statute books, but however this may turn out I have no desire to enter into this melley between popular opinion and frenzied finance.

Nor shall I treat of the subject of the criminal law, but confine my discussion to questions relating to the law and practice governing civil causes.

One of the ideas to which we cling with a tenacity worthy of a better cause is that of inflicting punishment upon an unsuccessful litigant in the imposition upon him of burdensome fees that by right should be borne by the State. This idea is an anachronism at war with modern conceptions of morality. It comes to us from an age when it was considered right and proper

for the victorious army to slay the vanquished and enslave the enemy's women and children. We concede in certain cases, such as those relating to the severance of the marital relation, that the State is as much a party to the controversy and as vitally interested in its result as the parties litigant themselves. The fact is, that the State, and by that I mean the people, are vitally interested in every lawsuit. The laws are theirs, the courts are theirs; both exist for their protection and benefit, and when justice fails in any particular case, every man receives an injury to his own rights. One failure breeds another. Many failures create distrust. And when people lose confidence in the courts they become subject in some degree to the unlawful aggressions of others. It is of the first importance that all should feel free to resort to the courts for relief when they have good reason to believe that their rights are being infringed upon. Not only is it the right of a man who deems himself aggrieved by another to appeal to the law, but it is his duty to do so in many cases, for submission to wrong encourages the wrongdoer, and it may safely be said that many evilly disposed persons knowingly perpetrate wrongs upon others relying for the success of their aggressions, upon the reluctance of honest men to become involved in litigation.

I believe it is right to tax the necessary and legitimate costs of litigation against the losing party, but our system of taxing costs is unfair and results in many cases in a practical denial of justice. There is no more reason for taxing as costs, fees in favor of such officers of the court as the Clerk, Sheriff, Jury and Stenographer, than there is for charging each case with a portion of the Judge's salary. Every time a paper is filed or a process served, or an entry made of record, a fee is charged. The result is that no lawyer can tell his client what will be the probable cost of prosecuting an action to a final determination. In cases where the amount involved is small, it is certain that if the case

reached the courts of last resort, the court costs alone will exceed the amount involved, and in addition, the unsuccessful litigant must pay attorneys' fees and other expenses. Is it any wonder that men of moderate means refuse to incur so great a risk and submit to injustice rather than to be subjected to it?

The fee system should be abolished, court officers should be paid salaries out of the public treasury, and the losing party taxed with costs according to a definite and level rule, so that any man may reasonably approximate beforehand the expense he will sustain in waging an unsuccessful suit.

In other words, such costs as the fees of witnesses and the official charges for taking depositions should be taxed against the loser and, in addition, a fixed but moderate docket fee should be paid in the nisi prius court and, if the cause is appealed, another docket fee paid in the appellate court.

The argument advanced against the abolition of the fee system is that it would tend to encourage litigation and that the way of the litigant, like to that of the transgressor, should be made hard, in order that men may feel constrained to settle their controversies out of court. It is desirable that all should dwell together in peace and concord, but they do not, and so long as men have canine teeth, will not, and a condition of universal amity will ever be an Utopian dream. An enforced agreement is not an agreement at all, but a surrender by the one coerced and, when you force agreements by making the court house inaccessible, you play into the hand of the strong man, for you remove all practical restraint from him and give him full opportunity to bend his weaker or poorer adversary to his will and, in this, wrongdoing and oppression are encouraged and made a valuable asset in the hands of those who have the wealth or power and will to use them.

Under the most favorable conditions, the fair minded and honest man will find no incentive to rush into courts with his controversies. With him, a law

suit will always be the last resort. The unavoidable delays and inconveniences of litigation, its inherent uncertainty, the loss of time in looking after it, and the expense of lawyer's fees, are enough in themselves to deter the average man from having a lawsuit for the fun of it. By removing artificial hazards, we need entertain no fear of flooding the courts with useless litigation, but in continuing them, we partially withhold justice from the very class the law should most zealously protect-the honest and just-and encourage the opposite class-the dishonest and unfair, oppressive or negligent-to persist in and thrive by wrongdoing.

The right of appeal should be restricted. As the law now stands in Missouri (I understand there are some restrictions upon the right of appeal in Kansas) a man who brings a suit in a justice court involving a small amount-say for example $100-must face the likelihood of having that case first tried by the Justice, then taken on appeal to the nisi prius court and there tried, and further taken by appeal to the appellate court, where it may be remanded for a new trial, again tried in the District or Circuit Court, and again appealed to the appellate court. All of this consumes years of time and piles up costs, so that long before the case reaches its miserable end the real bone of contention is the payment of the costs, and not the original cause of action. One of the favorite arguments employed by a wealthy party to a controversy to discourage his poorer adversary from resorting to the courts for a redress of his grievances is the threat to litigate the case to the court of last resort and every practitioner knows how effective this threat is in numerous cases. When the poor man learns what this means to him, he very naturally concludes that he would better surrender his rights than to incur the risk before him.

Except in some cases of a special nature, all causes involving an amount within the jurisdiction of a Jus

tice of the Peace, should, for economical reasons, end in the nisi prius court. It may be stated as axiomatic that when the probable expense of carrying a case to its final conclusion exceeds the amount involved, justice is denied to those who resort to courts not for the gratification of spite or revenge, but for the enforcement of substantial rights.

The rule of our practice that prohibits the trial judge from expressing any opinion to the jury relative to the intrinsic merits of the case he tries should be abandoned, and the judge accorded the privilege of expressing his opinion upon the issues of fact and the weight of the evidence for the information and guidance of the jury, but should be required, when he does this, to tell the jury that his views are but advisory and not mandatory, thus leaving to the jury, where it belongs, the determination of all issues of fact. This practice now prevails in the Federal Courts, and I believe has there proven highly efficacious in the production of righteous verdicts.

I am a firm believer in the jury system. But without entering into a dissertation upon its merits, will say that under our present practice juries often commit very palpable errors in verdicts, not from dishonesty, but because they fail to arrive at a clear understanding of the issues involved. It must be borne in mind that juries are composed of men drawn from every walk of life and of various degrees of intelligence. They often become confused by the mass of evidence presented to them, and the partisan presentation of the issues made by the respective attorneys. The written instructions of the court are often voluminous and necessarily confusing to the unskilled mind. To them the case is apt to take on the aspect of a kind of game, to be played out by the lawyers in which the judge sits as a sort of umpire to see that it is played according to certain. more or less arbitrary rules. Who is more competent than a judge, learned in the law, who hears the evidence, sees the litigants and observes the manner and