Indian Government are doubtless well aware, that it is among the most difficult tasks upon which the human mind can be employed; that persons, placed in circumstances far more favorable than ours, have attempted it with very doubtful success; that the best codes extant, if malignantly criticised, will be found to furnish matter for censure in every page; that the most copious and precise of human languages furnish but a very imperfect machinery to the legislator; that in a work so extensive and complicated as that on which we have been employed, there will inevitably be, in spite of the most anxious care, some omissions and some inconsistencies; and that we have done as much as could reasonably be expected from us, if we have furnished the government with that, which may, by suggestions from experienced and judicious persons, be improved into a good code."

Mindful of these difficulties, and of their own deficiencies, but never doubting the truth of the principles on which their code is founded, nor the benefits which will finally result from its adoption, the commissioners have labored to perfect their work, to the utmost of their powers. Since it became a law, they have watched its operation, with the most careful attention, anxious to amend every defect, to remove every difficulty, and to adopt every improvement which time and experience might suggest. They have found occasion to propose amendments to forty-seven sections, some of which are merely verbal, and others made necessary by judicial misconstruction.

The few months of trial through which the code has passed, have confirmed the commissioners in their opinion, of the beneficial effects which will flow from it. That it will greatly diminish litigation they do not doubt; that it will make justice more certain and more speedy, they are confident; and if finished, according to the plan upon which it was begun, it will furnish to the people an intelligible body of law, for every branch of legal procedure.

If the commissioners were to answer all the objections, with which

the code is assailed, they should weary the patience of the LegisSome of them, however, are so remarkable, that they ought not to be omitted in this communication.

lature.

It is said, that two portions of the code are unconstitutional; that which provides for a uniform course of proceding in all cases, whether of legal or equitable cognizance, and that which allows a judgment to be entered, in the first instance, upon the direction of a single judge. If there were any reason in the first of these objections, it would be good cause for an immediate movement to amend the constitution, for none can doubt, that the people, who adopted it, did not mean to perpetuate by it the separation of legal and equitable remedies, and that they are also resolved, that such a separation shall not exist. There is however no reason in the objection. The only portions of the constitution, that relate to the subject are these:

Art. 6. sec 3. "There shall be a supreme court, having general jurisdiction in law and equity."

Sec. 5. "The Legislature shall have the same powers to alter and regulate the jurisdiction and proceedings in law and equity, as they have heretofore possessed."

Sec. 10. "The testimony in equity cases shall be taken in like manner, as in cases at law."

In sec. 14.

"The Legislature may confer equity

jurisdiction in special cases, upon the county judge."

Sec. 24. "The Legislature, at its first session after the adoption of this constitution, shall provide for the appointment of three commissioners, whose duty it shall be to revise, reform, simplify, and abridge the rules and practice, pleadings, forms and proceedings of the courts

of record of this State, and to report thereon to the Legislature, subject to their adoption and modification from time to time."

"The terms "law and equity," are here mere terms of description. The design of the third section was to confer general jurisdiction in all cases. To make the expression comprehensive, the two classes, into which causes were then divided, were mentioned, so as to leave no doubt that both were given to the same court. The tenth section has in view merely the prohibition of a distinction in the taking of testimony, and was a great step towards assimilating the proceedings. It neither commands nor prohibits a distinction in other respects. The fourteenth section permits the Legislature, to confer on the county judges some portion of the jurisdiction then known as equitable. The fifth and twenty-fourth sections point manifestly at a revision of the whole subject, by the Commissioners and the Legislature, and leave with the latter the power to regulate the jurisdiction and the procedure as it sees fit, with the single qualification, that it cannot divest the supreme court of its general jurisdiction. Certainly it is a most forced construction, that the Constitution commands different modes of procedure in the two classes of cases.

Under the old Constitution, the Legislature had the power to blend the jurisdictions in law and equity, though they could not destroy the two systems of courts. They did so in some cases. The supreme court was vested with an equitable control over corporations and arbitrations. The power to assimilate the modes of proceeding was undoubted. In 1842, the Legislature could have abolished the distinction of actions, and made the pleadings in a court of law to consist of a complaint, answer, and reply. They could have done the same thing for a court of equity. That would have assimilated the pleadings. They could also have assimilated the mode of trial. Is not the Legislature as powerful to reform the law under the new Constitution, as it was under the old? Could it do in 1842 what it could not do in 1848?

The other constitutional objection is equally unfounded. Judgments in the first instance might heretofore have been entered, under the direction of a single judge, in the courts of equity always, and in the courts of law, whenever there was an issue of fact. Indeed, in most cases, the judgment was entered by the clerk, as a matter of course, without interference from the court. The only instance in which the power of a single judge to direct a judgment is enlarged, by the code, is the case of a demurrer. Is it really a matter of doubt whether the legislature has the power to direct a demurrer to be heard in the first instance at the special term, saving the right of appeal to the three judges? That it could have been done under the old constitution, is indisputable.

All cavil, however, on this head should be set at rest, by the opin ions delivered in the court of appeals, in January, 1848, in the case of Gracie and Feeland. Mr. Justice Gardiner delivered an opinion which appears to have received the sanction of the court, in which he examined the distinction between the general and special terms. A part of it is in these words:

"I assume, therefore, that there is a constitutional distinction between the general and special terms. This difference may consist in this, and it is the slightest that occurrs to my mind, that the decisions at the general term, are the final determination of the supreme court, while those of the special term, are, in all cases affecting the merits of the controversy, subject to review in the same court, at a general term, at the election of the party aggrieved.

"This distinction in the authority to be administered at the respective terms, will satisfy the language of the Constitution, which demands a difference of jurisdiction, but does not define precisely in what that difference shall consist. It leaves the Legislature at liberty to confer such judicial power, as the exigencies of the public may require, subject only to the restriction above mentioned, and relieves us from the necessity of resorting to the precise powers exercised at

the special terms of the old courts, which varied at different times, and in different courts, with a view to establish a constitutional limitation upon the authority of the Legislature." It is needless to add, for those who have examined the code, that it proceeds upon precisely this distinction in dividing the business between the general and the special terms. In fine, the Commissioners will venture to express the opinion, that the class of minds which pronounces the Code unconstitutional, is the same which has pronounced the Constitution itself to be unconstitutional.

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An objection of a different kind, is that which assumes that the work of reform should not have been given to Commissioners, but should rather have entrusted to the judiciary, the fittest depository, it is claimed, of the power to reform, simplify, and abridge the practice and pleadings. It is a sufficient answer, that the Constitution provides a different mode; but there is another reason. The old supreme court and court of chancery had the amplest powers of reform, conferred upon them, in a chapter of the Revised Statutes, thus:

"The justices of the supreme court, within two years after this chapter shall commence and take effect, and at the expiration of every seven years thereafter, shall revise the rules of the said court, with a view to the attainment, so far as may be practicable, of the following improvements in the practice:

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"1. The abolishing of fictitious and unmeaning process and proceedings:

"2. The simplifying and abbreviating of pleadings and proceedings:

"3. The expediting the decision of causes:

"4. The diminishing of costs: and

"5. The remedying of such abuses and imperfections, as may be found to exist in the practice, in any class of actions cognisable in said court:"