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 A Practical Program of Procedural Reform

439

in equity at law,‘ when he made the

life. It is inevitable that jurisprudence,

equitable defense of non-performance

and ultimately the law itself, be affected

by a promisee of the counter-promise on his part into breach of an implied condition, available at law,‘ when he

profoundly. For whatever its validity in other ﬁelds, pragmatism must be

took cognizance at law of purely equit able interests and rights where the trusts on an outstanding term were fully

are its results;

satisﬁed,‘ and when he went a long way toward breaking down the distinctions

between actions at law,’ and gave to trover many equitable incidents. This, again, was followed by a reaction which

was almost unaffected by the legislation of the reform movement and endured until the drastic changes of the Judica ture Act of 1873. In this country, the liberal ideas of the New York Code of 1848 and of the period in which that code swept over the country, was fol

lowed quickly by a judicial reaction which went a long way toward nullifying its most important provisions.‘ A

swing of the pendulum toward liberality at this time is but part of a general movement in all departments of mental

activity away from the purely formal, away from hard and fast notions, away from traditional categories which our fathers supposed were impressed upon

the philosophy of the lawyer.

"What

how does it work, and

what does it work," must be the questions he puts to every theory and distinction and dogma and category.

Adjective law is but an instrument; its categories of actions and proceedings were not stamped upon legal science

by the Creator. And whenever pragma tism supersedes the natural law of our historical school in juristic philosophy, so that we look upon action at law and

suit in equity, the form of common law actions and the traditional types‘! of proceedings, not as eternal categories,

beyond the reach of legislation, but as instruments for the enforcement of the substantive law, to be judged as such, a liberal and ﬂexible procedure is certain to ensue. But we must not expect too much from procedural reform at present. In

the ﬁrst place it is not a panacea. There are at least three problems connected with the administration of justice in America which are of equal, if not,

the nature of things for all time. This

some of them, of greater importance.

movement is remaking the natural and physical sciences, is rewriting history,

intimately

is recasting political theories, is making

reform.

over economic theory, and, under the name of sociology, is changing our

and thereby the organization of judicial

attitude toward all problems of social

and tenure of judges, and the organiza tion, mode of training and traditions of the bar have each at least as much to do with the conditions of effective judicial administration as the course

‘Moses v. Magerlan, 2 Bum, 1005. ‘Kingston v. "sion, 2 Don .. 689. 0Doe d. Bristow v. Pegge, I. . R., 758, note a. "“It is merely a distinction whether the relief shall be in this form or that." Hambly v. Tron, Cow r. 271. ' llen v. Patterson, 7 N. Y.. 476; Reuben: v. Joel. 13 N. Y.. 488', Voorhis v. Child. 17 N. Y., 354; Goulet v. Asseler, 22 N. Y., 225: De Grow v. Elmore, 50 N. Y., 1; Barnes v. Qm'gley, 59 N. Y., 265; Bonesteal v. Bonesuel, 28 Wis., 245; Anderson v. Cm, 28 Wis., 505; Supervisors v. Decker. 30 Wis., 624; Dﬂlﬂd‘f v. R. Co., 37 Wis.. 268; Magm're v. Vice, 20 Mo., 419; Richardson v. Means, 20 Mo., 495; Myers v. Field, 37 Mo., 434.

Moreover, these problems are connected

with

that

of procedural

The organization of courts,

business, the personnel, mode of choice

and rules of practice in the courts. It is not too much, indeed, to say that

improvement in these three particulars is a necessary precursor of thorough

going reform of procedure.

With a

modern organization of the courts and