Northwestern University Law School (Union College of Law) Founded 1859 JOHN H. WIGMORE, Dean With an experienced Faculty, the Elbert H. Gary Library of Academic Year of 1917 opens Monday, September 24th. For detailed information, address the Secretary of The Rule Making Authority in the English Supreme Court By SAMUEL ROSENBAUM, LL. M. Gowen Fellow in the Law School of the University of Pennsylvania, 1913-1915. With an Introductory Preface by T. Willes Chitty, of the Inner Temple, Editor of the Yearly Practice, etc. A historical analysis of the present English rules of civil procedure, illustrating the advantages of regulation by judges and practitioners over regulation by the legislature. "I have read Mr. Rosenbaum's essays with great interest, and can testify to the accuracy of the statements contained in them. Indeed, I am astonished at the painstaking research and labor which he has devoted to the task, and at the practical, detailed and accurate knowledge of our procedure which he has acquired and which he lays before his readers." Royal Courts of Justice, London T. WILLES CHITTY. Obtainable from U. of P. Law School or from Boston Book Co., $3.50. EDITORIAL About two thousand lawyers accepted the invitation to membership in the American Judicature Society appearing in the first number of the JOURNAL. An equal number of judges in state courts of record are listed as members ex-officio. The JOURNAL is also sent to about eleven hundred public and law libraries and to many newspapers. The Society may now be considered fairly on its way to accomplish its work. There is no desire for membership regardless of quality. Better one really interested member than a score who are mere "j'iners." But for some time to come there must be a reasonable effort to gain new members, trusting to time or other conditions to winnow out the indifferent. The directors will continue efforts to increase the membership, but probably the most effective source will be the influence exerted by members upon their acquaintances. Members are requested, therefore, to send in the names of prospective members. The Society will need members also who are not lawyers. There will be a part of the work which will especially call for the activities of intelligent laymen. All persons receiving this number of the JOURNAL will please take it as an invitation to join the American Judicature Society, provided they are interested in the problems of administering justice. There are no dues or fees of any kind. Send your name and address, legibly written, to the Secretary of the Society. The model judiciary articles published in this number of the JOURNAL are an earnest of the original matter pertaining to the administration of justice which will be published from time to time. Before long the files of the JOURNAL will contain more suggestive and constructive matter on this subject than has ever before been brought together. It will be important for members to preserve their files. Suitable binders will be offered at cost at an early date. Two Model Judiciary Articles The judicial system in every state stands on certain statutes, which stand on the judiciary article of the state constitution. The judiciary article is the foundation at least of the vitally important visible machinery of justice. One would expect, One would expect, then, that there would be, in this bountiful age of books, a considerable bibliography on the subject of constitutions and the judiciary. recently one could not find a single title on the subject in the largest library in the country. Concerning the theory of judicial power in its relation to government under our constitutions, hundreds of lawyers and scores of political scientists have written. But concerning the practical, vital, fundamental structure of the judicial department as a working arm of government, hardly a word is to be found in The amazing fact is that until quite print. The judiciary is the Dark Conti nent of political science. The judicial article and the structure worked out under it appear to have stirred human curiosity less than anything in the visible and invisible universe. There are signs now of the development of a wholesome curiosity concerning the judiciary in the constitution. The JOURNAL will publish from time to time what can be gleaned in this field. In this number will be found two attempts at improving the judiciary article. The first is the work of a small group of well known New York lawyers who sought to be of service to the convention which drafted the constitution rejected in 1915. The second is a conservative revision of the judiciary article of the Illinois state constitution, introducing no novelties, but making it possible for modern ideas to be availed of subsequently. The New York Draft The draft here presented has been known in New York as the work of the "Lawyers' Group." During the present year a committee of the Phi Delta Phi Fraternity has produced a second draft which is understood to owe something to the earlier draft. The Phi Delta Phi draft will be published in the next number of the JOURNAL. Readers interested in the subject will want to compare them closely. It is hardly necessary to say that it is no simple matter to produce such a scheme in legislative language. The New York draft is preceded by the following prefatory note: The following draft of a judiciary article for the new constitution of the State of New York is offered by the undersigned -a voluntary group of members of the bar organized for the study of professional problems as a consistent plan for embodying the following general principles which seem to us essential to the desired efficiency of our judicial system: I-A single court: thus abolishing the anomalies of concurrent, conflicting and limited jurisdictions. II—A chief justice elected for a short term who shall himself appoint the jus tices of this court: thus preserving the immediate relation to the people of the judiciary, the executive, and the legislative, yet preserving their relative independence. III-This appointive judiciary to hold office for life or during good behavior and with a prospect of retirement on a reasonable pension. IV-The rules of court and procedure, the creation of terms, the assignment of judges, the adaptation of the judicial machinery to developing conditions, all to be controlled by a judicial board: thus relieving us of our cumbersome Code, our constant legislative interference, and the inelasticity, of our present system. V-Masters who shall dispose of all interlocutory or procedural matters: thus leaving the judges free to try issues and -it is hoped-greatly reducing the volume of appellate business. VI-A committee of discipline having power over bar and bench alike :thus insuring a uniform standard of profesional conduct throughout the state. VII The preservation of a probate officer legally accessible in every county for unlitigated matters. Since no other committees have so far offered a consistent plan, but have merely suggested amendments here and there to a plan that is already over-complicated and has given rise in its operation to much dissatisfaction, we feel justified in urging consideration of the following draft by our brethren of the bar and by the public generally. Dated, New York, March 10, 1915. §1-Supreme Court; how re-constituted. On and after the first day of January, 1917, the entire judicial power of the people of the State of New York shall be vested in the Supreme Court of the State of New York. In this court the people of the state may sue, and, without further consent, be sued. [Note-The conception of a unified court has already taken its place as one of the reforms that is certainly coming. It has been advocated by such widely separated organizations as the National Economic League of Boston, the Phi Delta Phi Club of New York, and the American Judicature Society, representing the views of the leaders of judicial thought in this country. As long ago as 1909 it was recommended by a special committee of the American Bar Association. The provision, here added to that conception, that the people may be sued in their own court, would end a long-standing abuse.] 82-Justices of the Court; Mode of Selection, Qualifications, Term of Service, Number, and Salaries. Α The chief justice of the supreme court shall be elected by the people for a term of four years. At the end of his term, if not re-elected, he shall continue a justice of the court. If the office shall become vacant during any term, the governor shall fill it for the remainder of the term by appointment. B The other justices of the court shall be appointed by the chief justice. No person shall be elected or appointed to the position of chief justice or justice of the court, however, unless there shall first have been filed in the office of the secretary of state a certificate by the board of assignment and control, hereinafter provided for, that he is and has been for at least ten years a member in good standing of the bar of this state. [Note-Under this provision the direct relationship to the people of the judicial arm of our government is preserved through the election of the chief justice for a term short enough to make him accountable for the quality of his appointments. At the same time it enables him to make his appointments without the disabilities under which the governor acts and which in 1846 led to the change in the methods of judicial selection. In any system a certain amount of political motive will always operate, but the plan here suggested will reduce it to a minimum and to a point below that either of appointment by the governor, or of election by the people.] C Justices of the court shall serve during good behavior or until they have attained the age of seventy years; but any justice. who shall have served continuously for fifteen years and shall have attained the age of sixty-five years may apply to the board of assignment and control to be retired, and upon their certificate that the reasons assigned by him are sufficient he shall be so retired. Any justice whose term of office shall after fifteen years of service cease by reason of age or retirement shall receive an annual compensation equal to two-thirds of his salary. D The justices and judges of the courts. consolidated as hereinafter provided into the supreme court shall become justices of the supreme court for the remainder of severally elected or appointed. the terms for which they shall have been [Note This provision will enable the existing judicial system to be taken over in its entirety and made the basis of the new system. Under $13 it can be continued in its essential organization, and the judges continued in substantially their present functions. Thus the argument in favor of retaining the Surrogates and County Courts is fully met: they will be retained, but with enlarged dignity and value.] E The salaries of all justices shall be regulated by the legislature, but no salary of any justice shall be diminished during his term of office. F The board of assignment and control may certify that the number of justices shall be reduced. Thereafter no vacancy shall be filled until the number shall be reduced accordingly. The number of justices shall not be increased except by the legislature upon application from the board of assignment and control. §3-Disqualifications of Justices. No justice shall sit in review of any decision made by him or in any matter in which he is directly or indirectly interested by reason of relationship to a party or otherwise, or engage in the practice of law, or hold any other office of honor or profit, or receive any emolument other than his salary. All votes cast for any justice for any other than a judicial office shall be void. $4-Board of Assignment and Control. A The administrative business of the court shall be conducted by a board of assignment and control composed of the chief justice and the presiding justices of the several divisions of intermediate appeal. Every power adequate to that end is conferred upon it. It shall promulgate rules for conducting the judicial business of the court, and common forms for use therein. In the absence of action by the legislature it may prescribe rules of evidence. It shall from time to time prescribe the terms and parts of the court, define the jurisdiction of the divisions and parts and assign justices to service therein. [Note-In the plan outlined by the American Judicature Society, the administrative business of the court is entrusted to the chief justice. This principle, we are informed, has been actually followed with success in the Municipal Court in Chicago. It seems better, however, that in a court which is to cover the entire territory and jurisdiction of a great state the administrative business should be entrusted to a judicial board rather than to a single individual.] [Editor's Note-The plan outlined by the American Judicature Society is much more decentralized than that in effect in the Municipal Court of Chicago. The only difference between it and the plan under consideration is that the constituent members of the judicial council are such by appointment of the chief justice, while in this plan one is led to infer that the governing board is selfperpetuating.] B It shall prescribe requirements for admission to the bar and admit those applicants who shall prove themselves duly qualified. C It shall provide for the appointment of the judicial staff of the court. D It shall certify annually to the legislature such judgments against the people of the state as may require an appropriation. $5-Organization of the Court. The present four judicial departments of the state are continued; but from time to time the legislature may alter the boundaries thereof, except that the first department shall consist of the territory within the counties of New York and Bronx, and the other departments shall be bounded by county lines and be as compact as possible. The court shall be organized in divisions including always: A division of final appeal; A division of intermediate appeal in each department; and A division of first instance for all civil and criminal matters. [Note-This will enable the board of assignment and control to adapt the organization of the court with the greatest flexibility both to the needs of the different sections of the state and to changing social and political conditions. Under this authority the board could maintain the existing system in practically its entirety, perpetuating in substance the district courts, the intermediate county and surrogate's courts, and the court of general trial jurisdiction. It could regulate the jurisdiction of the intermediate appellate courts, like the appellate divisions, and it could readily adopt the jurisdiction of the court of last resort to the volume of business and the demands of the community, instead of letting needed changes wait upon the slow process of constitutional amendment.] $6-Masters. The board of assignment and control shall have power to direct the appointment of masters to dispose of interlocutory and procedural matters with such powers as it shall by general rule prescribe, and it may determine the number of masters in any judicial department. The chief justice shall appoint as masters members of the bar in good standing who shall reside in the de |