cases are those of attorneys employed in the Department of Justice at Washington and the counsel for railway companies and other interstate corporations. Of most of these it is to be said, however, that while diversity of practice in the several states to which their duties pertain doubtless adds to the difficulty of their service, the burden is after all not so great as it might seem. It is customary to have attorneys in the several jurisdictions who, subject to the supervision of general counsel, are expected to handle local litigation. The United States district attorney thus acts for the Department of Justice, and the railroads have a divisional representative under one title or another in nearly every jurisdiction. Even were there uniformity of procedure, the continued maintenance of legal systems of substantially the same character would doubtless be deemed to be judicious, if not absolutely necessary. Knowledge of local conditions, which only resident attorneys can have; of the personal characteristics of witnesses, jurors and judges, and even of opposing counsel, is often of great value in the trial of cases. Moreover, the practice of employing attorneys from distant points to conduct litigation is not, generally speaking, conducive to the prompt administration of justice, and as a rule is not to be encouraged. In the nature of things, with counsel residing at a great distance from the place where court is held, more time is consumed in serving notices and procuring appearances, and the court is beset with more requests for indulgence, and for relief from conflicting engagements. In short, without further amplifying the reasons, I am convinced that, whether we have diversity or uniformity of procedure, generally litigants must, both for their own good and for the good of the court, have the service of counsel of the vicinage, and therefore, from a professional standpoint, diversity of practice is a comparatively unimportant consideration; and it is to be doubted whether at the Bar there is any general consciousness of the need of the proposed reform.

It is but fair to add, before leaving this branch of the subject, that manifestly uniformity would be of substantial, though temporary, benefit to the lawyer in preparation and the lawyer uncertain of location; and law schools would be enabled to furnish a more thorough training in pleading and practice. To them, therefore, uniformity would mean a distinct gain. The degree of the

importance we may attach to these considerations will probably depend very much upon the individual view-point.

We now pass to what is perhaps the more important inquiry, namely, of what value would uniformity be to the public, and especially to those who have the misfortune to be drawn into litigation. It is significant, I think, that while for a number of years our judicial machinery has been almost constantly under fire from almost every conceivable source, complaint of diversity of practice, if voiced at all by the organs of popular sentiment, has been given a very inconspicuous place. If this be the source of the evils complained of, it has quite successfully escaped public recognition. I can very readily understand how uniformity touching substantive rights, and even in respect to the nature and extent of remedial rights, would be of great benefit to the citizen. In his everyday transactions the man of business contracts with respect to the local law, with which he is more or less familiar. He therefore suffers a species of wrong if, when under the necessity of asserting his rights in a foreign jurisdiction, he finds that under the laws. there prevailing the remedies upon which he relied are either entirely barred or are very much restricted. But if the right remains unimpaired, and the available remedies are substantially the same, he has little ground for complaint. If a citizen of Massachusetts, for instance, may follow his debtor into Utah, and there have a fair hearing upon the merits, without unreasonable delay or expense, it is quite immaterial to him whether the process by which his adversary is brought into court is called a summons or a notice, or with what formality it is executed, or whether it is issued before or after he files his pleading. The details of procedure he must leave to his attorney, and the place for his attorney is in Utah, not in Massachusetts.

Of course, if, as there seems to be a disposition to assume, uniformity implies superiority of procedure, an entirely different consideration is presented, one of interest both to the public and to the profession. But upon what ground can such an assumption be predicated? Systems of procedure may be uniformly bad as well as uniformly good. If, for instance, this discussion had taken place five years ago, we would have had in force the old equity rules of long standing in the federal courts. The system was uniform throughout the United States; and it had emanated

from a very high source. But against it public criticism became most persistent and insistent-much more so than against the practice on the law side of the federal courts which was and is diverse. And that the system was materially defective is generally conceded. Presumably there is substantial uniformity in all of the numerous courts of Pennsylvania, and in the courts of California, but from that fact we draw no inference touching the character or quality of the system in either state. If the inference is without warrant in the smaller unit of the state, upon what theory can it be justified in the larger unit of the nation? Upon the contrary, if the scope of current criticism is any criterion, the truth seems to be that our existing practice is more seriously defective in those features which are general than in those which are local only. It is the uniformities rather than the diversities which are so persistently assailed. The complaint is of the methods of administering justice, not locally in Oregon, or Illinois, or Maine, but generally in the United States; the contrast is drawn, not between Texas and Minnesota, or Idaho and Virginia, but between America and some foreign country.

It is true that through the processes of revision, necessarily involved in establishing uniformity, a measure of improvement might be realized, but this is an entirely different proposition; such betterment is contingent upon, and if realized, would be due to, intelligent revision, rather than uniformity. The same effort put forth independently in the several states, without regard to uniformity, might be even more efficacious. There is no acknowledged standard of excellence in procedure. Methods are various; none perfect, none wholly bad. Uniformity by a formal code is likely to be attained only through compromise, and the result of compromise, it is needless to say, does not always approximate the ideal.

Now passing to the question of feasibility or practicability: If the limited benefits we have mentioned are to be realized, uniformity must approximate completeness, and must be actual as well as theoretical. Identity in theory with diversity in actual practice would serve only to furnish pitfalls for the feet of the inexperienced and unwary. Moreover, uniformity is not only to be established but it must be preserved. If we start with the heroic assumption that a uniform law can be gotten upon the statute

books of the numerous jurisdictions, have we accomplished uniformity in fact, and can it be maintained? Two forces at once. set in to qualify, if not to nullify, the desired effect of such a law. In the first place, there is the resistance of established usage to innovation and change. In the field of legal procedure, as in other legislative fields, statutes out of accord with custom and running counter to local sentiment are of limited efficiency. Legal habits. and modes of procedure are proverbially tenacious of life; and, slowly yielding, they leave their impress upon and give form and color to that by which they are supplanted. In some states, it is to be assumed, the uniform code to be adopted would work only minor changes, but in others it would be revolutionary in form, and would therefore become subject to the unrestrained operation of this force; and, quoting from the notable address of Lord Haldane at the Montreal meetings two years ago, "all our reforms notwithstanding, the dead hands of the old forms of action (would) still rest upon us." Of even greater potency is still another tendency. While unlike systems of procedure in close contact yield to a process of assimilation, identical systems in proximate but independent jurisdictions tend toward the evolution of distinct species. Install the same system in the several states and at once differentiating forces come into operation to break up the unity. Through elimination by disuse, accretions by local rules and customs, moulding and adaptation by judicial construction, and repeal or modification by positive legislative enactment, substantial dissimilarities of actual practice are soon developed unless prevented by constant vigilance and ceaseless opposition. That the power of this tendency is not merely fanciful is easily demonstrated. A striking example is close at hand. Even before complete success crowned the effort to secure the enactment of the uniform negotiable instruments law in all the states, there had arisen serious cause for alarm lest its purpose be frustrated through the manifest operation of but one of these differentiating agencies, the influence of judicial decisions. In his annual address before the Commissioners on Uniform State Laws at their conference at Washington last fall, the President of the organization said: "Taking the country as a whole, there has been as pronounced a tendency to divergence in the decisions of the courts as there has been in the enactment of statutes in the

respective states. This has not been a conscious tendency on the part of the courts, but it has been none the less alarming. It has been a menace to the accomplishment of our purpose, of such grave proportions as to convince us that the attainment of our end would be jeopardized, unless some means could be found to meet or check the tendency."

If the tendency to diversity in judicial decisions is so subversive of the uniformity of substantive statutes, which are but infrequently drawn into controversy, how much more rapidly must the process go on in the case of procedural regulations which are daily construed and applied! For this consideration alone I am inclined to the view that the proposal is impracticable. Were the benefits to be expected of overshadowing importance, the good to be obtained might justify the continuous effort to counteract these distintegrating forces, but, as we have seen, they are of limited character.

Moreover, if uniformity stands in jeopardy from the unconscious divergence of judicial interpretation, it follows that the peril can be averted only through the conscious effort of the judiciary. Shall we not give serious heed to what is thus implied? Coordinated with the duty of giving judgment is to be the furtherrecognized obligation of seeing that the judgment is reached by following the course pursued by some other court; we are not to keep our eyes upon the goal but upon the ground. And a troop of inquiries are at once upon us: The decision of what tribunal is to be controlling? Is it a question of "follow the leader," so that if, for illustration, a court in Idaho happens to be the first to make the application of a given provision, its decision will be binding upon all the courts in the country? Or, as I think I have seen suggested, is precedence to be accorded to the decisions of the state which happened first to establish the system, under some extension of the principle applicable to the construction of adopted statutes? And how is the inadvertence of the trial judge to be corrected, or his disposition to step out of line to be restrained? Will appellate courts reverse and order a new trial on the ground alone that some rule of uniformity has been ignored? And, if not, what are to be the sanctions of the rule? And how are we to be advised of the decisions of other jurisdictions? Are we to open our purses and bend our backs to the rapidly multiply