ADMINISTRATION OF JUSTICE opponent, whether individual or corpora tion. 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 tecnicality> 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 assump tion. I listened with much pleasure to the dis cussion yesterday in respect to the pro posed 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 re tention of the common law forms of action, together with the division between law and equity, with modifications to dispense with
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the old technical niceties of common law and equity pleading), the decisions on questions of practice and pleading in Mas sachusetts 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 amend ment than to attempt a complete reform. However, it is to be said that a study of the English system, consisting of a few gen eral 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 liti gant, and has secured much expedition in the settlement of controversies, and has practically eliminated the discussion of points of practice and pleading in the appelate courts. My impression is that if the judges of the court of last resort were charged with the responsibility within gen eral lines defined by the legislature for pro viding 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 any body 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 stat utes 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 litiga tion 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
