to be hoped that there will be no hesitation in properly equipping them for their work. The expense in any event will be but a drop in the bucket as compared with the public benefits which they may bring to pass.

With reference to reform in procedure, Professor Sunderland said before this Association a year ago:

We feel our way like blind men who fear to fall. In every other field of human endeavor more efficient methods are being sought with restless eagerness and with no concern for the old equipment which must be scrapped. The legal profession alone halts and hesitates. If it is to retain the esteem and confidence of a progressive age it must itself become progressive.

This is a severe indictment, but public opinion today will hardly sustain a verdict of not guilty. The profession must find where the path of progress lies and follow it. If the creation of Judicial Councils is a forward step, even though not a long one, there should be no hesitation in making the experiment.

THE EXERCISE OF THE RULE-MAKING POWER.

BY

EDSON R. SUNDERLAND,

LAW SCHOOL, UNIVERSITY OF MICHIGAN.

I.

"Popular government rests upon the principle that it is every citizen's business to see that the community is well governed."1 But this principle can operate only if responsibility for governmental action can be definitely located. The citizen must know who is to blame for the failures of which he complains, or his watchfulness will be of no avail. Eternal vigilance is a condition but not a guaranty of liberty.

The short ballot theory is nothing but an application of the doctrine of fixing responsibility where the people can see it. The public business must be concentrated where it will operate openly in the light of perpetual publicity. Division of authority always obscures responsibility, and where the officers or agencies which share the power are so related that the efficiency of one is dependent upon that of another, the public becomes utterly confused in its attempt to locate the source of trouble and provide a remedy.

Now the mal-administration of justice in the United States has aroused an extensive and sustained interest on the part of the public and the profession, but no practical results of importance have followed. The public bitterly complains, the profession extends its sympathy and concedes that something ought to be done, but the courts go steadily on in exactly the same old way. Who is responsible?

That is a question which, in most of our jurisdictions, cannot be answered, and because it cannot be answered no relief is in sight. We have divided the responsibility between the legislature and the courts, and have thereby destroyed the possibility of locating the blame. The legislature makes the rules which the

12 Bryce: Modern Democracies, 489.

courts administer. Is the fault in the rules themselves or in the way in which they are employed? No one knows. The courts and the profession believe they are doing fairly well with the rules that they are forced to use, and point to the legislature as the authorized source of procedural reform. The legislature does not know what is wrong with the rules, and believes that the chief difficulty is the inefficiency of the profession.

Faced with the dilemma of shifting and unascertainable responsibility, the public is helpless, and the administration of justice continues to be the one conspicuous political failure in American popular government.

But there is another aspect of the situation no less important. If political policy demands that responsibility be conspicuously localized, economic necessity requires that it be placed in competent hands.

No modern observer would be inclined to dispute President Lowell's assertion that the ability of popular government to endure will depend upon its capacity to use experts." The administration of justice has always been a difficult and delicate function of the state, and as civilization develops, the complexity of the problem increases. No one can possibly understand or appreciate the nature of the technique essential to the work of the courts who is not familiar with the conditions under which litigation proceeds. And if judicial procedure is to be kept in close adjustment with the constantly changing requirements of society, the regulation and development of that procedure must be under the supervision of those who carry on the work of the courts.

It is not enough, therefore, merely to locate responsibility for the proper administration of justice. It must be located in the hands of that trained body of experts, who, as lawyers and judges, constitute the judicial establishment of the state.

II.

If David Dudley Field had been a more thorough student of the history of the common law, he would not have been so readily fascinated by the novel principle of legislative control of judicial

'Public Opinion and Popular Government.

procedure. It was a principle which seemed to offer unlimited possibilities of relief from burdens long endured. But those who hoped to bring the millennium through the magic of legislation, failed to appreciate the delicate adjustment of machinery necessary to an efficient administration of justice.

Never, in the 800 years since the Plantagenets laid the foundations of our system of judicial administration, did Parliament ever undertake to chain the courts to the chariot wheel of a legislative code of procedure. A few corrective statutes found their way into the law. Magna Charta prohibited the courts from selling justice, gave the common pleas a fixed location, and established the principle of trial by jury. A dozen statutes relating to amendments are found among the records of four centuries of parliamentary activity. Here and there new remedial rights were created and old procedural abuses were cut off. But there is no instance, in all English history, of Parliament undertaking to assume to itself the political responsibility for the administration of justice, nor to offer its crude, fragmentary and stereotyped notions of procedure as a substitute for the expert opinions of lawyers. Not even during the storm and stress of the nineteenth century, when the flood of popular resentment threatened to engulf the profession, did Parliament lose its poise. The first great reform wave brought the Civil Procedure Act of 1833,* in which a considerable number of procedural anomalies and restrictions were removed, but at the same time the preamble of the act recited that, since improvement in the methods of administering justice could not be conveniently accomplished otherwise than by the rules and orders of the judges, therefore the judges should make such alterations in the rules of pleading and practice as they should deem expedient. Out of this legislation grew the famous rules of Hillery Term, 1834. They did not satisfy the public, but instead of violently seizing the power of regulating legal procedure, Parliament again undertook to assist rather than oust the courts. The Common Law Procedure Act of 1852 was a fairly complete procedural code, in 239 sections,

5

"Collected in Appendix to Stephen on Pleading (Andrews' Ed.), pp.

473-4.

*3 and 4 William IV, c. 42. 15 and 16 Vict., c. 76.

but it contained the remarkable provision that the judges were nevertheless to retain complete power to make any rules regarding pleading and practice that they might deem expedient, anything in the present act to the contrary notwithstanding.

For 800 years the Anglo-Saxon conception of a court had been that of a dynamic agency clothed with the power to supply the people with every necessary means for enjoying the protection of the laws of the land. England chose to confirm and sustain that power, and in every one of the procedure acts which were passed in the course of her long struggle for reform, she expressly recognized and reserved the authority in the judges to make general rules and orders, even to the extent of changing the form of proceedings established by Parliament. In the Judicature Act of 1873 the theory of professional responsibility found its final recognition in a statute which frankly abandoned even the form of a legislative mandate and substituted a schedule of rules of court.

America, on the other hand, chose to repudiate the doctrine of professional control. No more striking contrast in political theory could be conceived than is afforded by the procedure acts of the last century in England and the almost contemporary legislation in the United States beginning with the Field Code in 1848. The New York legislature believed that the courts could be entirely regulated by the clumsy and alien hand of the popular assembly, and yet suffer no loss either in technical skill or in capacity to respond to the public demand for service. It was a political and economic blunder of the first magnitude, and set a precedent which changed the American judicial establishment from a living stream into a stagnant pool. Deprived of all initiative in devising new means and methods, and safely concealed under the political shadow of the legislature, our courts have become lifeless and bureaucratic, substituting regularity for efficiency as an operating ideal.

III.

Seventy-five years have passed since England and the United States stood at the parting of the ways and made their momentous

For instance, the Common Law Procedure Acts of 1854 (17 and 18 Vict., c. 125) and 1860 (23 and 24 Vict., c. 126).