112
The Green Bag
for many years we have been pursuing the policy of attempting to regulate by specific and minute statutory enactment
the purpose of postponing them. Such a condition is not sporadic and occasional.
all the details of the process by which,
result of a natural tendency which ap
under a multitude of varying conditions, suitors may get their rights. Such a policy never ends. The attempt
pears whenever the conduct of affairs in any branch of the social life of man is entrusted to a particular class of men specially qualified for that special work by learning and skill beyond the great body of their fellows. The conduct of such affairs by such a class becomes an art. The art becomes a mystery. Rules
to cover, by express specific enactment,
every conceivable contingency, inevi tably leads to continual discovery of
new contingencies and unanticipated results, requiring continual amendment and supplement. Whatever we do to our Code, so long as the present theory of legislation is followed the Code will
It is continually recurrent.
and formulas originally
It is the
designed as
convenient aids to the attainment of ultimate ends become traditions and
specific and technical provisions will
dogmas, and belief in their importance supersedes the object which they were
continue to increase.
originally meant to subserve.
continue to grow and the vast mass of I submit to the
judgment of the profession that the method is wrong, the theory is wrong, and that the true remedy is to sweep from our statute books the whole mass of detailed provisions and substitute a simple practice act containing only the necessary, fundamental rules of proce
dure, leaving all the rest to the rules of court. When that has been done the legislature should leave our procedure alone. _ We may well aid this simplification of procedure by applying the same prin ciple of simplicity to certain changes in the substantive law with a view to mak ing the practical application of the law simple; and, most important of all, we should observe that principle in deter mining the standards of conduct at the bar. The condition in which we find our
selves is that, in varying degrees in differ ent parts of the state, calendars are
clogged, courts are overworked, the at tainment of justice is delayed until it often amounts to a denial of justice, the honest suitor is discouraged, the dis
honest man who seeks to evade his just obligations is encouraged to litigate for
Special
training develops intellectual acuteness and fine and subtle distinctions.
The
sense of proportion is lost and the broad, simple, direct methods which alone are really useful in helping plain people to attain the substantial objects
of practical life, become entangled in a network of form and technical refine ment. This ‘tendency shows itself in some degree in every learned profession. It often affects the organization and con
trol of political methods. It often affects the conduct and administrative regu lation of government. History is full of illustrations of its working in religion. The development of the fine arts pre
sents a record of a multitude of revolts against the results of its influence. It affects the development of substantive law. Most of all it characterizes the growth of legal procedure. There more frequently than anywhere else the sys tem takes the place of the object for which the system was created. We need
not go back for illustration to the Medes and Persians, or to the Priesthood of Egypt, or ask why Cato wondered that the Roman Augur could keep from
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