that we were represented when our fathers made the contract and so are bound, was obviously founded on British political theory in which all consent to acts of Parliament through the representatives sent to Westminster to act for them. It would not bear examination. Hence Kant sought to find the basis of rights and of justice as a means of securing rights in some ultimate metaphysical principle, some ultimate datum from which rights might be deduced. He found this fundamental idea in freedom of will. He conceived that the problem of law was to reconcile conflicting free wills. He held that the principle by which this reconciliation was to be effected was equality in freedom of will, the application of a universal rule to each action which would enable the free will of the actor to co-exist along with the free will of every one else." The whole course of nineteenth-century juristic theory was determined by this conception. Kant marks an epoch in philosophical jurisprudence no less than Grotius.

Summarily stated, to the eighteenth century, justice, the end of law, meant the securing of absolute, eternal, universal natural rights of individuals, determined with reference to the abstract individual man. Kant, on the other hand, held it to mean the securing of freedom of will to every one so far as consistent with freedom of all other wills. Thus the transition was complete from the idea of justice as a maintaining of the social status quo to an idea of justice as the securing of a maximum of individual self-assertion.

Roscoe Pound.

HARVARD LAW SCHOOL.

[To be continued.]

77 'Every action is right which in itself, or in the maxim on which it proceeds, is such that it can co-exist along with the freedom of the will of each and all in action according to a universal law." Metaphysische Anfangsgründe der Rechtslehre (2 ed.), XXV. Cf. "I must in all cases recognize the free being outside of me as such, that is, must limit my liberty by the possibility of his liberty." Fichte, Grundlage des Naturrechts, I, 49.

ONE YEAR UNDER THE NEW FEDERAL EQUITY RULES.

THE

HE new federal equity rules promulgated November 4, 1912, by the United States Supreme Court, effective February 1, 1913, have been subjected to close scrutiny and many rigorous tests during the initial year's period of their existence.

Notwithstanding the fact that numerous attorneys felt that the changes made by these rules were of such a radical nature as to seriously handicap the proper trial of equity causes and in some instances to entirely defeat the ends of justice, these rules are not working any real hardships. Where consistently and fairly administered, they are securing the ends sought, viz., that of securing a more speedy termination of equity litigation with the minimum of expense to the litigants.

In enacting the new rules it is fortunate indeed that the Supreme Court saw fit to follow, where practicable, the old equity rules, for the latter undoubtedly embodied the simplest, most direct, flexible and adequate judicial system that had been contrived.

The old rules gave the court wide discretion in causing cases to be brought to a speedy termination. Most of the abuses arising under the old rules grew out of the negligence or the indisposition of client or counsel in bringing the causes to an early hearing. Under the old rules, however, if the court, the litigants and their counsel were all equally anxious to bring a case to an early hearing, it could be done quite as quickly and advantageously as under the new equity rules.

Under the new rules, counsel must keep closely in touch with their pending cases, for these rules specify the time when causes shall be put upon the calendar. If not tried when called, they are dropped from the calendar, and at the end of a year thereafter, unless reinstated by the court on application duly made, are dismissed without prejudice.1

An equity case may now be generally disposed of within five months, for under the new rules a defendant is given twenty days.

1 Federal Equity Rules 56 and 57.

in which to file his answer after being served with subpoena, and, unless some additional pleading is filed by complainant, the case is then at issue. The complainant has sixty days after the filing of the answer in which to take and file his depositions, and the defendant thirty days thereafter in which to take and file depositions, and twenty days thereafter is allowed both parties in which to take and file depositions in rebuttal. This gives the parties one hundred and ten days to get the case ready for trial in open court. This change in the rules is important mainly in having cases automatically placed upon the trial calendar.

Under the new equity rules a very large number of old cases have been wiped out and the court calendars cleared of dead and long slumbering causes.

Public sentiment, and the fact that the federal judges generally are anxious to finally dispose of cases, is bringing about a radical change in the practice and has caused equity litigations to be terminated in a much shorter time during the past year than during previous years. This change is undoubtedly greatly augmented by the promulgation of the new equity rules quite as much as by any other cause, although public sentiment largely influenced the prompt disposition of cases in many instances prior to the adoption of these rules. This public sentiment was largely due to the following causes:

First, the proposed recall of judges and of judicial decisions. Second, the constant and aggressive advocacy by ex-President Taft of the necessity for reforms along this line.

Third, the complaint on the behalf of litigants themselves due to the expense of protracted litigations and to the fact that their rights were in many instances entirely cut off because the decisions were so long delayed.

Fourth, that court and counsel who were desirous of disposing of litigations felt that rules of a more mandatory character would be exceedingly beneficial in securing shorter and more speedy trials.

Judges who are willing to hear and decide their cases promptly (and it is fortunate that so large a per cent of the eminent jurists who now constitute and grace our federal bench are doing this) are securing excellent, quick and decisive results for litigants under the new rules. The few courts who persist in withholding their opinions for a year or more after the final hearing are not pre

vented from so doing by the new rules, and are reaping their own reward in the severe criticism that is being heaped upon them in Congress, by other judges, by lawyers generally and by the public at large.

The action of a few of our federal judges in failing to promptly decide cases after they have been submitted on final hearing is in some instances entirely destroying the rights of litigants who are so unfortunate as to have been compelled to try their cases before them. The new rules are entirely inadequate to prevent such delays, for, once the cause is submitted to the chancellor, there is nothing in them compelling prompt action on his part.

It is fortunate indeed for all concerned, and for the reputation of our federal judiciary, that instances of 'judicial procrastination in rendering decisions are extremely rare, and that such United States District Court judges are very few in number. Such men work a great injustice to the public at large and to the large majority of their conscientious and energetic contemporaries. The federal courts generally are administering the new rules in accordance with the aims of those who caused them to be adopted.

The courts of appeals without exception are uniformly promptly disposing of the cases coming before them, and are in full accord with the intent and spirit of the new rules. It is extremely gratifying to the litigants and the bar generally, that decisions are so promptly handed down after being submitted to the appellate

courts.

The advance criticism of eminent lawyers that the present number of judges would be inadequate to try equity causes in open court has proven true, for, in the busier districts, calendars are congested, and this must necessarily be so until more judges are provided. In spite of the arduous work that is being done by our conscientious federal judges in the busy districts, and the vast amount of time which they are expending, oftentimes with great detriment to their health, it is impossible for them to keep up with their calendars.

The provision which enables judges from any part of the country to be assigned to different districts, and the assistance rendered by the circuit judges from the abolished Court of Commerce, has helped materially, but has not relieved the situation entirely.

Any radical change in court procedure necessarily involves a great deal of expense to litigants during the early stages of the administration of the new rules of procedure. It also requires a great deal of time of court and counsel in applying these rules to the various causes which come before them, but I think it can be fairly said that the new federal equity rules have caused as little inconvenience to the public, to the bar and to the judges as any rules that could be adopted involving so great a change in practice. Where it is possible to do so, the courts are evidently being guided in their interpretation of the new rules by the numerous decisions under the old rules, and it is well that they are doing so, for the old rules had been passed upon during a period of a great many years by many able jurists.

Many of the decisions and orders made under the new rules have not been reported, as they are entered after preliminary hearings; nevertheless these have a very important bearing on litigations in the various courts where the causes are pending. Some of the more important of these rulings will be referred to in the attempt to point out what is happening in the administration of equity practice under these rules.

The rules requiring an answer in an equity cause to be filed within twenty days after the subpoena is served, would, in many instances, work a serious handicap to the defendant should the court be so illiberal as not to extend the necessary time to permit the securing of counsel and gathering legitimate defenses together. For instance, the party contemplating a suit may, without any notice to the defendant, fully prepare himself for trial prior to the filing of the bill; he may have taken many months in getting his information together; the suit may then be filed and the defendant may be served and compelled to make extensive investigations before he is prepared to file his answer. This is particularly true of defendants in patent suits where the defensive material may be scattered throughout the country and in remote parts, in the guise of prior patents, publications or prior public uses.

In the large majority of instances, the courts have appreciated this difficulty and have given to the defendant, on proper showing, sufficient additional time in which to prepare for and file his

2 Federal Equity Rules 12 and 16.