The Green Bag
446
trial judge, without the commanding position which the common law con templates, hard-pressed by advocates and held in check by reviewing tribunals,
removed from his difiiculties, has been driven to a cautious, timid, dilatory
course that does not comport with the business-like administration of justice;
are likely to express the ideas and breathe the spirit of the old practice, rather than of the new, that we ought
to be cautious about enacting much detail in a form making it difficult of change. In case rules of court develop a practice act in a conservative or
and (6) modern conditions of professional
reactionary spirit, we have but a con tinuance of the existing situation till
employment
this
a new generation of judges comes along
view of the causes of our present situa tion is sound, the situation was for a
to supersede the old rules by a new
time inevitable, and no blame attaches
fashion.
to those who sat upon the bench or
tailed code is construed narrowly or in a
pleaded
reactionary spirit, we have a substitu tion of one illiberal system by another,
at
in
the
America."
bar.
The
If
present
generation of judges did not create it,
they found it. trusted
to
So long as they are
determine
the
constitu
tionality of statutes and to wield the common-law
power
of judicial
law—
making involved in our system of case law, it is idle to say we may not trust them to frame general rules of procedure in advance of action. Mr. Gilbert's second objection, so far as it is not met by what has just been said, appears to involve the assumption
that judges who are hostile to a practice act, while they may be expected to
develop it by rules so as to render it nugatory, may be prevented by legisla tion from construing it so as to defeat its objects. Such has not been the experi ence with practice legislation elsewhere. No one, as yet, has succeeded in tying down unwilling courts, whether by express statutory provisions or by elaborate interpretation clauses, so as
to preclude judicial molding of statutes
to what the judges conceive is practicable and just.
Indeed, Mr. Gilbert's objec
tion is in reality an argument for the
principle objected to.
It is because the
body of rules conceived in more liberal
On the other hand, if a de
which has the disadvantage of being
unknown, and further legislation is the sole escape. Moreover, it is no small advantage to have the rules of practice construed by the same agency that drafts them.
With respect to the third objection, it may be remarked that the first rule in a judge-made body of rules would undoubtedly be a provision retaining the existing practice unless and until and except so far as changed by the rules."I In time, when the body of rules had ‘become fully developed, this rule would disappear. This very thing happened in England.‘1 Consequently, so far from there being danger of a period of confusion and uncertainty, development of the general principles
of a practice act by rules of court is the most certain method of minimizing, for one may hardly hope to obviate entirely the difiiculties involved in any change of procedure. Rules devised, added to and amended as the courts and
the bar are ready for them, are less likely to cause confusion than rules laid down
earlier constructions of a practice act 20 For detailed discussion of these points, see my pager, "Some Principles of Procedural Reform. 4 1. Law Rev., 388, 395-400.
'0 U. 5. Equity Rule 90; General Orders in Bank ruptc, No. xxxvii; U. S. 00 yright Rules, No. l. ‘ udicature Act of 1873, ule 1, aragraph 2; Rules of the Supreme Court, 1874 see Charley, udicature Act, 3 Ed. 353); Judicature Act of 1875. c. 21. The provision has now disappeared.
