The Reform of Procedure litigation more important or more com plicated
than the great controversies
between
nations which the civilized
world is more and more tending to sub
mit to the judgment of arbitral tribunals. Yet the Permanent Court of Arbitra tion at The Hague has practically no rules of procedure. It can't have them because the forty-four nations who are signatories to the Hague Convention for Pacific Settlement of International Dis putes differ so widely in their ideas of procedure that the adoption of any single system would be impossible. Ac cordingly that great Convention which first gave practical form to the hopes and aspirations that the apostles of peace on earth had been voicing for centuries, contained only a few very
simple and fundamental provisions re garding the constitution of the Court and the way to get a decision from it, leaving the field of procedure, in the main, to be determined by the common
sense of the parties and of the Court in conformity to the requirements of each case as it arises. I remember hearing Mr. David Dud ley Field, during the argument of a
cause many years ago, ask Mr. Charles O'Conor a question as to his position concerning the effect of the pleadings in the case. Mr. O'Conor turned, and, with that intensity which characterized
him (especially when dealing with some one he did not like) he answered: “I understand that under your code, Mr.
Field, the plaintiff comes into court and tells his story like one old woman and the defendant comes in and tells his story like another old woman." And that was all the satisfaction Mr. Field
got.
The reply was intended as a con
demnation of the rather simple code of that day, but I am not sure that it was a
condemnation. The old-woman method doubtless has its disadvantages, but ‘I
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am not so sure that they are not to be preferred to the subtleties of the special
pleader and the Code lawyer. If we could substitute for Mr. O'Conor’s old woman a man of common sense with a
reasonable knowledge of substantive law and a trained sense of materiality and relevancy we should have come very
near the chief end and object of all legal procedure. I think it is safe to say that if we must choose between too much
procedure and too little we better have too little. I wish to guard here against the mis application of what I have said lest it have the effect of overstatement. It should not be inferred from what I have said about our procedure that in general, considering by itself each case which does come to a final judgment, the ends of justice are not attained. As a rule, in most cases which reach that point justice is done because we have honest and competent judges and an upright, independent, fearless and loyal bar. Yet
it is done in a great proportion of cases, not by the aid of, but in spite of, this vast multitude of statutory restrictions, and with an enormous waste of time and labor and expense and delay. I do not mean to be understood as asserting that a great part of the provisions con tained in our Code do not point out quite reasonable and proper methods of procedure to be followed in some cases to which they seem to be applicable, and probably in the cases which the legislature has had in mind in enacting them into law. Yet in a great number of other cases they are burdensome and obstructive; and it is true in general
that the more detailed provisions of law are, the more certain they are to be misfits in many cases to which they come to be applied. I do not mean to say or to imply that the members of the bar are subject to just criticism for in
