FOREWORD The forward looking minds of America are giving thought to the changes and developments in our own domestic institutions which must, despite the stress of war times, be controlled and forwarded. One of the first of the topics to which national attention should be called is the simplification of our machinery of justice with a view to its greater efficiency. The period of much talk about judicial reform of a few years ago is now passing into the period of accomplishment. And of plans for re-formation, the Academy believes that the plan herewith presented by the committee of which Mr. Jessup is Chairman, together with the accompanying papers, is well conceived and eminently worthy of thought and of permanent record. The facts as to the committee are given in the footnote on the first page. This plan and the papers following it are founded on careful study and research and deliberate discussion. The Academy bespeaks from all its readers the thoughtful attention the papers deserve. This is a topic that warrants deliberation and study. In this subject there is no place for a decision based on the hearsay findings of a Committee on Rumor. For as is the machinery of justice so will be the justice meted out to property, to liberty, to life istelf. Just what parts of our machinery of justice need simplification and why? What changes have been proposed and what adopted? What changes in the constitution are necessary? In practice acts? In laws of evidence? In judicial administration? What is wrong with our justiciary machine and what must we do to set it right? These are the questions the Academy wanted answered in this volume for the guidance and convenience of its members. Messrs. Jessup and Kelsey have done well their tasks as special editors with full responsibility for the volume, and the Academy herewith bespeaks from all its readers the appreciation that is their due. CLYDE L. KING, Editor. WITH A VIEW TO ITS GREATER EFFICIENCY REPORT TO THE PHI DELTA PHI CLUB OF NEW YORK CITY BY ITS COMMITTEE OF NINE HENRY W. JESSUP, J.D., Chairman. In the thirty-fourth of the fifty resolutions written by David Hoffman of the Baltimore Bar, he observed: Law is a deep science. Its boundaries like space seem to recede as we advance and though there be as much of certainty in it as in any other science, it is fit we should be modest in our opinions and ever willing to be further instructed. Its acquisition is more than the labor of a life, and after all can be with none the subject of an unshaken confidence.2 Burke said in reference to the administration of justice that it was the "highest concern of man on earth." The American Bar Association in the preamble to its Canons of Ethics has declared: In America where the stability of courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency and so maintained that the public should have absolute confidence in the integrity and impartiality of its administration. The future of a republic to a great extent depends upon our maintenance of justice pure and unsullied. 1 This committee was appointed at a meeting of the club held on October 23, 1916, for the purpose of considering what changes in the Constitution, statutes and rules operative in the state of New York are essential to the simplification of practice and greater efficiency in the administration of justice. It followed the activities of a former committee known as the Committee of Seven whose report was the first of those issued by any group of lawyers at the time of the debates on judicial reform preceding the New York Constitutional Convention of 1915, and was submitted to and considered by the Judiciary Committee of that Convention. The members of this committee are as follows: Henry W. Jessup, Chairman, Dean Emery, President, ex officio, Harry N. French, Edwin S. Lewis, R. A. Mansfield Hobbs, Willard A. Mitchell, Lawrence S. Coit, Hugh R. Partridge, George W. Alger, Leigh K. Lydecker; and Hon. Norman J. Marsh, advising with the committee. Any person desiring to communicate in regard to the subject matter of the report or in regard to ordering reprints thereof may communicate with the chairman at 55 Liberty Street, New York City. Reprints can also be secured by applying to the American Academy of Political and Social Science, Woodland, Ave. and 36th St., Philadelphia. * David Hoffman, Course of Legal Study, 2d ed. 1836, Vol. II, p. 751 et seq. PART ONE-A JUDICIARY ARTICLE FOR THE STATE CONSTITUTION I THE NEED FOR IDEALISM The initiation, or promotion, or effectuation of any reform in methods of administering justice is ever the task of those who are able to visualize that which is not yet realized-that is, of men with ideals. And the "practical men" are often impatient of the idealist. And yet, as M. Woolsey Stryker has said, "Idealism is the most practical thing in the world, because tomorrow is at the doors, and we must meet it!" In the words of Charles A. Towne, "There never was any progress without ideals. Ideals the foundation are the basis of all ethics of all justice. Ideals of right are the fundamental condition of human liberty." An ancient seer and reformer, the prophet Joel, recognized the dynamic power of ideals, as a means to an end when he said: "Your old men shall dream dreams; II SOME FUNDAMENTALS Your committee recognized at the outset the magnitude and importance of the task entrusted to it, but entered upon it with the more enthusiasm and sympathetic interest because we realized that similar questions were receiving the earnest and patient study of other associations of lawyers throughout the United States, notably in Illinois, California, Mississippi and Massachusetts. Also the American Judicature Society, organized in July, 1913, had been engaged upon the subject since the time shortly subsequent to the launching of this question of greater legal efficiency in the discussion before the Phi Delta Phi Club of New York, February 17, 1913. This had resulted in a paper on that topic printed in Bench and Bar,3 in March of that year. In order to comprehend more exactly the subjects of this report, which is presented for discussion and criticism by the American bar and by such of the general public as are interested, it is proper to premise certain fundamental propositions to which, by its action heretofore taken, the Phi Delta Phi Club has committed itself. It seems almost too good to be true that the recall-of-judges heresy Published in New York City, At a has almost passed into the category of forgotten movements. luncheon given at the Lawyers' Club of New York to the Chief Justice of Korea early in 1913, the late William B. Hornblower in an address of welcome expressed the hope that the recall-of-judges heresy had not yet invaded the jurisdiction of that Oriental jurist. The Chief Justice, through an interpreter, responded that he had observed that the main objectives of Confucius and of the Founder of the Christian religion were similar, in that both contemplated an ideal state of society in which there should be peace, that is, an absence of disputes between man and man. "And therefore," he wittily concluded, "If you are as consistent in your religion as we are in ours, you are working for and towards a state or condition of society known as peace, in which disputes shall be at an end, and then there will be an automatic recall of judges and lawyers alike.” We are concerned with the fundamental fact that "the system for establishing and dispensing justice" is, in the United States of America, by no means uniform. It is articulated into complexly differentiated tribunals and the laws that govern the relations of the citizens of the United States to one another are such that status and the enforcement of rights may differ through the mere fact of residence on one side or the other of an imaginary line that marks a state boundary. And in the particular state to which our attention is called, and with whose Constitution and codes and rules of court we have been for a long time occupied, there has been a condition which can hardly be styled as efficient or expeditious, although by the self-sacrificing efforts of the judiciary of the state and the determination to end what is called "the law's delays," great reforms have already been accomplished when the situation in 1917 is contrasted with the situation, say in 1907. Nevertheless, there still exist anomalies, duplications of effort, unnecessary cogs in the judicial machine creating friction, arresting the prompt and expeditious functioning of the machine, and justifying in the opinion of fair-minded lawyers some of the criticism which the general public is so quick to hurl at lawyers and judges and the so-called "system of justice." Certain cardinal formulae of efficiency have been promulgated by this organization in the report of its Committee of Seven, to which formulae reference will be made below. The dominant idea was the application to the system of courts of justice of the |