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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.