REPORT.

TO THE LEGISLATURE OF THE STATE OF NEW-YORK: The Commissioners on Practice and Pleadings, beg leave to present herewith their third report.

The draft of an act, which is submitted, contains various provisions designed to prosecute the reform which the Code of Procedure began. It should seem scarcely necessary for the commissioners now to vindicate the policy of that reform. The history of the agitation, which gave rise to it, the manifold abuses of the old system of legal procedure, the demands of the people expressed in the Constitution itself, the act of the Legislature, passed in conformity with its command, and prescribing the duty of the commissioners, in language which could not be misunderstood, are familiar to the legislature. If it were necessary, the commissioners would recall its attention to the terms of the law, under which they were appointed, which enjoined it upon them as a duty, to provide for the abolition of the forms of actions and pleadings in cases at common law, for a uniform course of proceeding, in all cases, whether of legal or equitable cognisance, and for the abandonment of any form and proceeding not necessary to ascertain or preserve the rights of the parties; a law, which had then no parallel on the statute-book for its boldness, and which, while it gave the commissioners instruc¿tions so precise, as to leave them no discretion, if they had desired it, promised them therefore in advance, so long as they obeyed those instructions, the concurrence and co-operation of all departments of the government.

Conforming to that law, and fulfilling at the same time their own desires, the commissioners have removed the ancient forms from the

paths of justice, and devised a new system, simple and natural in its construction, easily understood, and readily adapted to any remedy which the nature of the case requires.. In doing so they have been oblig ed to re-cast the whole system of practice and pleading. It was impos-sible to adjust the new parts to the old. With a single eye to a uniform system of pleading and trial, they have arranged the details, so as to accomplish that object, and to lessen the labor and expense of legal proceedings.

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That there should be inconvenience, resulting from these changes, was inevitable. The former practice, with all its incongruities and oppressions, was familiar to the bench and the bar. Much of it con-sisted of arbitrary forms, which a clerk could use. mastered it in youth, had forgotten the distaste with regarded it, and had come to consider it as something necessary and unalterable. A sudden and total revolution in their art, a change in all their habitudes of thought and practice, the double need of forgetting the old and learning the new, both difficult at best, and next to impossible in a certain class of professional men, the necessity of increased vigilance, and the harder necessity of measuring themselves at a disadvantage with others, having less to unlearn and more power to learn, all these causes, would necessarily make a new system unpopular with great numbers of the legal profession, and no inconsiderable portion of the judiciary.

That, however, is not an argument against the change; it only proves the greatness of it. If it had been less complete, it would have received less of censure; if it had met with general commenda-tion, that would have proved it valueless, by showing that it encountered no prejudices, and opposed no interests. That it is a revolution in legal procedure is certain, and it is equally certain, that that is precisely what was required of the commissioners. The wit of man could not devise a scheme, of abolishing the distinctions between the forms of actions and between legal and equitable remedies, which are

the very roots of the old procedure, without a new growth from the wery beginning.

our ancestors.

Not only was a change so radical required of the commissioners, but nothing less would have afforded a remedy for existing abuses. The distinction of actions, and of legal and equitable remedies, had its origin in a state of society, as remote from our modern civilization, as the modes of communication in our day are different from those of It was time, that the forms of actions should pass away, to take their place with the wager of law, trial by battle, compurgation by witnesses, and the grand assise, which were once as important parts of the English law, as the forms of actions. To resist their abolition now, is to maintain, either that they are eternal, or that society has not yet reached that stage of civilization, when they can be safely dismissed. Neither can be maintained, without disparagement to the intelligence of this age.

The law is not in its nature stationary, beyond other sciences. It must change with changing manners, the diffusion of wealth, new channels of industry, and more general intelligence. That which was natural in the fifteenth century, is uncouth and strange in this. Things which were then convenient, are now become intolerable. The knowledge of that day has been multiplied many times. Arts then in their infancy have grown to perfection. In other branches of knowledge, advances are constantly made, the mind searches for new truths, and the search is encouraged. In respect to law, is the rule reversed? Are we there to tread forever in the ways of the past? Was the fifteenth century more competent to make law for us than the nineteenth? The argument which is founded upon reverence for the past, and the fear of innovation would carry us back from age to age, till we ascended to a remote antiquity. None could tell where to stop. Should we take the feudal code, or the Roman which it supplanted; the laws of the Norman conqueror, or the laws of Alfred? In short, the argument for a legal system, which is founded upon its antiquity or the great names which adorn it, or

indeed upon any thing but its intrinsic merits, and its fitness for the people, for which it is framed, leads to an absurdity.

The change which the constitution contemplated, and the act appointing the commissioners required, had been long in coming, but was inevitable. The public mind had arrived at that stage, when it could not be satisfied with less. Our society had outgrown the solemn forms, which conceived in remote ages, belonged to monarchical institutions. The time chosen was the fittest possible. The new constitution had prepared the people for a great change; no other period could be more favorable for it. To abandon it, because some present inconvenience results from it, or because obstacles are interposed to its immediate success, does not suit the masculine vigor of our people. They are neither fickle, nor easily deceived, and the attempt to deceive them will recoil upon those who make it.

The commissioners are not ignorant, that their work has many imperfections. None indeed, are more sensible of it than themselves, for they have felt throughout, that they have taken upon themselves the painful labor, and the no less painful responsibility, of making the first Code of Procedure, ever made in a country holding the common law of England, and of supplanting by a new work of their own creation, that heterogeneous mass, styled practice, which has been accumulating for ages, and of accomplishing it in such a manner as to leave no case unprovided for, and no right abridged.

The making of a code of laws, is, under the most favorable circumstances, an undertaking of infinite difficulty. The law commissioners, appointed to prepare a penal code for British India, at the head of which was Macauley, used language not too strong, when, after making the best code of that branch of the law in our language, and in communicating it to the government, they said: "To the ignorant and inexperienced, the task in which we have been engaged, may appear easy and simple. But the members of the