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CODE OF PROCEDURE.* The codes of civil and criminal procedure of the State of New-York, as reported by the commissioners, have been for some time before the public, and are now before the legislature of that state. Their labors are of the greatest value, and the question of their full adoption or rejection, is of no ordinary importance in reference to the future. Fifty years ago, he, who in his closet should have elaborated results, such as those to which with great wisdom the commissioners, after mature reflection, have arrived, might possibly have escaped with the simple reproach of being merely a visionary dreamer, but more probably would have been looked upon as a dangerous radical, wishing to turn the world upside down; but that such schemes would so soon become realized, is what the most enthusiastic would hardly have conceived. In no state were reforms in judicial procedure more imperatively demanded by the wants, nay, the very necessities of the times. The abuses of the English system existed then in full vigor. Fictions were deemed necessary preliminaries to the truth. John Doe and Richard Roe reigned triumphant in the common law—the very embodiments of English jurisprudence; while the Chancellor, administering what he fancifully termed equity, transferred to the virgin soil of this continent the worst evils of Rome-bred law. The Puritans of New-England simplified the common law, abandoning, to a great extent, its absurd fictions—its many technicalities, its cumbrous forms of procedure—but in this state the frame-work of the common law was brought over bodily. It was seen and felt to be unsuitable-expensive in its procedure, so much so, that everywhere a change was demanded, as well by the popular expressions of the masses, as by the enlightened judgment of the most learned and liberal of the Bar.
The origin of the law is everywhere the same, and its gradual improvement is always through the same processes. Custom, prescription, the opinion of jurisconsults, the decision of courts and the will of the sovereign power, constitute in different proportions the law of all countries. But in process of time, customs became numerous, provincial, variant, discordant; the opinions of courts differ, the decision of one court con
The Code of Civil Procedure of the State of New York. The Code of Criminal Procedure of the State of New-York. Reported Complete by the Commissioners of Practice and Pleadings. Albany : Weed, Parsons and Co., 1850. VOL. XXIX. —NO. VI.
flicting with those of another; the court of to-day with that of yesterday ; the present with the past ; the sovereign power with bits of reform pieces out the deficiencies of custom, till the evil becomes no longer bearable. The mass of existent law is too expensive to be purchased, too great to be read even by those whose special occupation it is to aid in its administrationunknown to the mass, dimly known or dubiously conjectured by the learned, its light flickering, uncertain, like that of the will ’o wisp in its illuminations. Something must be done, and the codifier commences his labors, giving form and authority to the wisdom of jurisconsults, defining and settling, by the judgment of an ultimate tribunal, the quarrels of conflicting courts, and rendering known and definite their opposing decisions.
Codification—the reduction of the existent mass of the various elements which constitute the law of a country,—a legislative digest of decisions, a revision of statutory law accumulating by mere lapse of time, till the mass becomes unwieldy by its own increasing bulk, comes to be an inevitable necessity. The jurisconsults, the Tribonians and Appians, whose labors have given Justinian an immortality which no act of his would have conferred, merely collected and stamped, with the authority of law, what before rested only in the opinion of jurisconsults, or in the conflicting rescripts of preceding Emperors. The Code Napoleon has donc little more than to give the sanction of the state to the writings of the most eminent jurists of France. The various codifiers, ancient and modern, have hardly merited more than the moderate praise of having made a digest, more or less accurate, of existing law.
He who should predicate the highest skill in the mechanical efforts of the early ages—who should say that they were the wisest and greatest of human art and science, would be laughed at for his foolish credulity. Humanity leaped not into perfection, like Minerva, in full armor, from the head of Jove. It is equally absurd to expect the greatest sagacity in the rude beginnings of legal institutions. No sane man would anticipate the highest efforts of legislative wisdom from the barbarous Saxon, the piratical Dane, or the warlike Norman. A law is wise or unwise, solely in its relation and adaptation to the state of the times, the social refinement and progress in the arts, the acquirements in science, the extent of the commerce and the magnitude of the manufactures of a nation, where it exists, The refined and scholastic subtleties of Roman jurisprudence would as illy convene the nomadic Arab, as would the Grecian galley of the days of Pericles subserve the purposes of modern com
Political or legal institutions, well adapted to the Saxon or the Norman, might be most inexpedient for the great nation which has arisen from their intermixture. The wisdom of law is purely relative. The institutions of the past are only of importance in reference to their fitness for the present. Change, reform, is the inevitable law of progress.
This code, bearing everywhere the marks of a well-considered and philosophic innovation, is to be regarded as one among the innumerable instances of progress. Bentham first called the attention of the public to the abuses of the English law--legion in their number, colossal in their magnitude. At first his views were met with ridicule or abuse, then a reluctant hearing was granted, but now they are in the process of gradual fulfilment. Profiting by his suggestions, the commissioners have taken the lead so eminently fitting the great state they represent, in proposing radical and much needed changes in the law, by which the labor and ex
pense of suitors will be diminished, the period of litigation shortened, and just decision, the great end of all courts, be more certainly and speedily attained.
To these changes,-to all changes, whensoever or wheresoever proposed, there will be opposition. All reform is Radicalism in the beginning. The establishment of to-day was the innovation of yesterday. The Conservatism of the present represents the Radicalism of the past, but ignores that of the present, which yet again, in the cycle of events, is hereafter to become the Conservatism of the future. Radicalism inheres in all ideas of improvement. Arkwright and Fulton were Radicals in one direction, Bacon and Bentham in another. The triumphs of the former have immeasurably increased the comforts and changed the commerce of the world. Bacon has stamped the impress of his genius on the philosophy of succeeding ages; and the time is fast approaching, when the proposed reforms of the latter will be as little considered as of doubtful expediency as the mechanical improvements of the former. Were there no other reasons, the uselessness of so much technical learning, of so many nice subtleties, the utter deposition of much that was tedious and dull in the acquisition, so utterly worthless when acquired, but yet has an imaginary value as the representative of labor past and useless, would furnish ground for resistance to all change on the part of a portion of the legal profession. Those who live only in and are guided by the past,—whose motto is “stare decisis,”-indifferent what it may be by which they are called upon to stand, no matter how absurd and unwise the decision,—who are governed by the fact of decision, irrespective of its reason, will naturally be averse to innovation. Men of the past, adherents to old forms, enemies to improvement, breakers of machinery, burners of stacks, the makers of shrines for Diana, those who are feeding upon abuses and fear their reform, will oppose; but the men of earnest inquiry, of vigorous intellect, indifferent to what exists when not based upon or opposed to reason, will give strength and support to these initiatory steps of reform.
The Roman law had its “dies fasti et infasti,” its forms of actions, its quibbles “inanissima prudentia fraudis autem el stultitiæ plenissima ;" yet so numerous and subtle, that commiserating the sad condition of a doubting suitor groping in the dark after his lost rights, that it permitted him to bring two suits for the same cause of action, with a proviso that he might elect upon which to rely. The common law had its writs for every wrong, if one could only tell which was fitted for his case, but this he must determine at his peril ; its rich variety of antique and worthless lore, which it required, as its sages say, twenty years to master, and when mastered, was much on a level with the vaticinations of the augurer or the hocus pocus of the conjurer. Its forms were replete with fictions silly and absurd, which the litigant was bound to indite before he was permitted to enter the temple of justice. No lie, no justice. The pre-requisite for a chance such as the law gives, was the utterance of a falsehood, while the unhappy litigant was beset at every step of his progress by snares more numerous than those which endangered poor Christian in his wearisome way to the Holy City.
But diversity of forms, fictions without number, were not all. In England, and in countries deriving their jurisprudence therefrom, and in those alone, were to be found iwo conflicting systems of judicature, differing in the name as well as the substance of their initiatory and final processes, in their modes of extracting evidence, in their rules of judging of its force and effect, when extracted; and when the facts are ascertained, in the results, as evinced in judicial action consequent upon such ascertainment. The common law was wanting in the powers most essential to a well organized judiciary. It was grossly deficient in its power of enforcement or prevention; incompetent to compel the specific performance of a contract; to prevent or enjoin waste; to enforce the obligations of a trust, or to remedy the mistakes and accidents which are perpetually occurring. These powers, so necessary, equity claims. The jurisdiction was needed; was indispensable to a full administration of justice. But two systems of substantive law, and two courts to administer the respective law of each, the one, upon full hearing, after solemn argument, rendering judgment for a party, which the other, after equally solemn argument, forbids him from ever using, were absurdities, which, if they had not the sanction of time, would not have been tolerated for a moment. Of systems of law thus opposite, of rules of procedure thus diverse, both may be wrong; it is certain that but one can be right. The true principle would be the eclectic. From the various forms of procedure, from the diverse modes of judicial action, from the discordant rules of law which govern in these several seats of judicature, carefully select whatever in either may be necessary and expedient, and thus establish a code divested of the errors and embodying the excellencies of each system.
In both these respects radical changes have been effected. Fictions, lying, wasteful lying, (for it was the remark of some one that a lie was too precious to be wasted,) forms of actions, the specialties of pleading, courts of law and courts of equity as distinct, have been abolished. Parties no longer vibrate, like a pendulum, between the common law and equity side of a cause. The legal and the equitable cease to be distinguished, and one suit
presents for judicial investigation, and one court determines the rights of parties litigant. These reforms are of no slight moment; and had no other or greater been proposed or accomplished, the commissioners would have deserved well of the state.
But however desirable the abolition of forms of action and the fusion of conflicting jurisdictions may be, it is in reference to the law of Evidence that changes the most indispensable have been made, and to these we intend more particularly to call the attention of our readers,
Of the rules of evidence, as established by the common law, it may be said, without the slightest exaggeration, that if the knaves and criminals, great and small, had united upon a code, the object of which should be to afford the greatest security to each, consistent with the existence of lawhad they held sweet counsel together, with full power to establish rules of evidence which should afford the minimum of protection to society, and the maximum of impunity to themselves, with yet a remote possibility of punishment-it is difficult to perceive how, having any rules, they could have materially improved upon the existent law. Aware that some rules must be granted to pacify the demands of society, the sagacious knav and the discreet criminal would hardly have pressed for rules more favorable to the legal impunity of crime and the successful consummation of fraud, than those which the common law, in its sympathetic wisdom, has so kindly furnished to their hands. It has closed the most obvious and accessible means of information. It has excluded those who, from interest in, or relation to, a cause, would have the best personal—and those who,