The present is a time when all our institutions are being subjected to close scrutiny with a view to the determination whether we have not now tried the institutions upon which modern society rests to the point of proving that some of them should be radically changed. The chief attack is on the institution of private property and is based upon the inequalities in the distribution of wealth and of human happiness that are apparent in our present system. As I have had occasion in other places to say frequently, I believe that, among human institutions, that of private property, next to personal liberty, has had most to do with the uplifting and the physical and moral improvement of the whole human race, but that it is not inconsistent with the rights of private property to impose limitations upon its uses for unlawful purposes, and that this is the remedy for reform rather than the abolition of the institution itself. But this scrutiny of our institutions, this increasing disposition to try experiments, to see whether there is not some method by which human happiness may be more equally distributed than it is, ought to make those of us who really believe in our institutions as essential to further progress, anxious to remove real and just grounds for criticism in our present system.

I venture to think that one evil which has not attracted the attention of the community at large, but which is likely to grow in importance, as the inequality between the poor and the rich in our civilization is studied, is in the delays in the administration of justice between individuals. As between two wealthy corporations, or two wealthy individual litigants, where the subject matter of the litigation reaches to tens and hundreds of thousands of dollars, where each party litigant is able to pay the expenses of litigation, large fees to counsel and to undergo for the time being the loss of interest on the capital involved, our present system, while not perfect, is not so far from proper results as to call for anxiety. The judges of the country, both state and national, are good men. Venality in our judges is very rare; and while the standard of judicial ability may not always be as high as we should like to see it, the provisions for review and for free and impartial hearing are such as generally to give just, final judgments. The inequality that exists in our present administration of justice, and that sooner or later is certain to rise and trouble us, and to call for popular condemnation and reform, is in the unequal burden which the delays and

expenses of litigation under our system impose on the poor litigant. In some communities I know, delays in litigation have induced merchants and commercial men to avoid courts altogether and to settle their controversies by arbitration, and to this extent the courts have been relieved; but such boards of arbitration are only possible as between those litigants that are members of the same commercial body, and are in a sense associates. They offer no relief to the litigant of little means who finds himself engaged in a controversy with a wealthy opponent, whether individual or corporation.

The reform, if it is to come, must be reached through the improvement in our judicial procedure. In the first place, the codes of procedure are generally much too elaborate. It is possible to have a code of procedure simple and effective. This is shown by the present procedure in the English courts, most of which is framed by rules of court. The code of the State of New York is staggering in the number of its sections. A similar defect exists in some civil law countries. The elaborate Spanish code of procedure that we found in the Philippines when we first went there could be used by a dilatory defendant to keep the plaintiff stamping in the vestibule of justice until time had made justice impossible. Every additional technicality, every additional rule of procedure adds to the expense of litigation. It is inevitable that with an elaborate code, the expense of a suit involving a small sum is in proportion far greater than that involving a large sum. Hence it results that cost of justice to the poor is always greater than it is to the rich, assuming that the poor are more often interested in small cases than the rich in large ones a fairly reasonable assumption.

I listened with much pleasure to the discussion yesterday in respect to the proposed amendment to your procedure in Virginia, and I was reminded of a discussion of the same subject by that great lawyer, Mr. James C. Carter of New York. He was the leader of the opposition to the New York code, and had to meet Mr. David Dudley Field, who was its chief supporter. Mr. Carter impressed me with having in that particular discussion the better side. He showed that under the Massachusetts procedure, which is, I fancy, not unlike yours in Virginia, to wit, a retention of the common law forms of action, together with the division between law and equity, with modifications to dispense with the old technical niceties of common law and equity plead

ing, the decisions on questions of practice and pleading in Massachusetts were not one-tenth of those arising under the code of New York, and his argument was a fairly strong one in support of the contention which I heard here yesterday, that it was better to retain the old system and avoid its evils by amendment than to attempt a complete reform. However, it is to be said that a study of the English system consisting of a few general principles laid down in the practice act, and supplemented by rules of court to be adopted by the High Court of Judicature, has worked with great benefit to the litigant, and has secured much expedition in the settlement of controversies and has practically eliminated the discussion of points of practice and pleading in the appellate courts. My impression is that if the judges of the court of last resort were charged with the responsibility within general lines defined by the legislature for providing a system in which the hearings on appeal should be as far as possible with respect to the merits and not with respect to procedure, and which should make for expedition, they are about as well qualified to do this as anybody to whom the matter can be delegated.

This system of delegating questions of procedure to courts has a precedent of long standing in the Supreme Court of the United States, for under the Federal statutes that court has to frame the rules of equity to govern procedure in equity in the Federal courts of first instance. I may say incidentally that with deference to that great court, it has not given particular attention to the simplification of equity procedure and to the speeding of litigation in Federal courts which might well be brought about by a radical change in the rules of equity prescribed by it. It may be and probably is the fact that under the constitutional provision, Congress could not do away with the separation of law and equity cases as has been done in the codes of many of the States. I regret this because such a change makes for simplicity and expedition in the settlement of judicial controversies. It is clear, however, that the old equity practice could be greatly simplified. It has been done in England, and it ought to be done in the Federal courts.

One reason for delay in the lower courts is the disposition of judges to wait an undue length of time in the writing of their opinions or judgments. I speak with confidence on this point, for I have been one of the sinners myself. In English courts, the ordinary practice is for the judge to deliver judgment imme

diately upon the close of the argument, and this is the practice that ought to be enforced as far as possible in our courts of first instance. It is almost of as much importance that the court of first instance should decide promptly as that it should decide right. If judges had to do so, they would become much more attentive to the argument during its presentation and much more likely on the whole to decide right when the evidence and arguments are fresh in their mind. In the Philippines we have adopted the system of refusing a judge his regular monthly stipend unless he can file a certificate, with his receipt for his salary, in which he certifies on honor that he has disposed of all the business submitted to him within the previous sixty days. This has had a marvelously good effect in keeping the dockets of the court clear.

It may be asserted as a general proposition, to which many legislatures seem to be oblivious, that everything which tends to prolong or delay litigation between individuals, or between individuals and corporations, is a great advantage for that litigant who has the longer purse. The man whose all is involved in the decision of the lawsuit is much prejudiced in a fight through the courts, if his opponent is able, by reason of his means, to prolong the litigation and keep him for years out of what really belongs to him. The wealthy defendant can almost always secure a compromise or yielding of lawful rights because of the necessities of the poor plaintiff. Many people who give the subject hasty consideration regard the system of appeals, by which a suit can be brought in a justice of the peace court and carried through the other courts to the Supreme Court, as the acme of human wisdom. The question is asked: "Shall the poor man be denied the opportunity to have his case re-examined in the highest tribunal in the land?" Generally the argument has been successful. In truth, there is nothing which is so detrimental to the interests of the poor man as the right which, if given to him, must be given to the other and wealthier party, of carrying the litigation to the court of last resort, which generally means two, three and four years of litigation. Could any greater opportunity be put in the hands of powerful corporations to fight off just claims, to defeat, injure or modify the legal rights of poor litigants, than to hold these litigants off from what is their just due by a lawsuit for such a period, with all the legal expenses incident to such a controversy? Every change of procedure that limits the right of appeal works for the benefit in the end of the poor litigant and puts him more on an equality with a wealthy opponent. It is

probably true that the disposition of the litigation in the end is more likely to be just when three tribunals have passed upon it than when only one or two have settled it; but the injustice which meantime has been done by the delay to the party originally entitled to the judgment generally exceeds the advantage that he has had in ultimately winning the case. Generally in every system of courts there is a court of first instance, an intermediate court of appeals and a court of last resort. The court of first instance and the intermediate appellate court should be for the purpose of finally disposing in a just and prompt way of all controversies between litigants. So far as the litigant is concerned, one appeal is all that he should be entitled to. The community at large is not interested in his having more than one. The function of the court of last resort should not primarily be for the purpose of securing a second review or appeal to the particular litigants whose case is carried to that court. It is true that the court can only act in concrete cases between particular litigants, and so incidentally it does furnish another view to the litigants, in that case; but the real reason for granting the review should be to enable the Supreme Court to lay down general principles of law for the benefit and guidance of the community at large. Therefore, the appellate jurisdiction of the court of last resort should be limited to those cases which are typical and which give to it in its judgment an opportunity to cover the whole field of the law. This may be done by limiting the cases within its cognizance to those involving a large sum of money, or to the construction of the Constitution of the United States or the States or their statutes. The great body of the litigation which it is important to dispose of, to end the particular controversies, should be confined to the courts of first instance and the intermediate appellate courts. It is better that the cases be all decided promptly, even if a few are wrongly decided.

In our Supreme Courts the business is disposed of with perhaps as great promptness as is consistent with the purpose of their jurisdiction. The criticism that courts of last resort are too much given to technicality has, I believe, some merit in it. Codes might be drawn, however, giving the courts of review more discretion in this matter than they now have by requiring the party complaining of an error in the trial court to show affirmatively that the result would have been different if the error had not been committed. The difference in importance between an error in the hurly-burly of the actual trial and in the calm of a court of review