« PreviousContinue »
ART. I.-THE NEW CODE OF PROCEDURE OF
cry in this country. A preference of technical to rational principles, and a subtlety rendered by long practice excessive, together with a desire to adhere to fixed rules, and a strong jealousy of judicial discretion, are charged against our jurisprudential system; and it is said that they have conspired to render our law what it now is, and that the result has been to multiply abuses, to create and perpetuate useless forms, to pile up a mass of reports, the contents of which no human being can master; to add judgment upon judgment, too often conflicting and decided upon precedent rather than principle, and in the end to compel not only the public but the profession to look with anxiety for any safe mode of extricating themselves from the labyrinth in which they are involved.
Many attempts have been made to do so, but none on a principle sufficiently judicious to insure or deserve success.
The common law courts first yielded to this very general feeling, and subsequently, but with less grace and more difficulty, the courts of equity. In the year 1832, an attempt was made to reform special pleading, and some good would have been done by the New Rules, had full effect been given to them, and the intention with which they were framed fully carried out. A further reform in that branch of law is, however, still loudly demanded, and we cannot say without reason.
The establishment of county courts, and the extension of their jurisdiction, has, as far as they go, introduced a sweeping change in pleading, practice, and evidence. Still the public are not satisfied, but turn their longing eyes to other countries, institute comparisons not always to our advantage, and urge (and it
VOL. XIV. NO. XXVI.
must be confessed with some reason) that what has been found practicable elsewhere may be made so here.
Most opportunely, therefore, while all people are agreed that reform is needed (the only question being how far it can with safety and advantage be carried), and while the new Common Law Commission are issuing suggestions, halting and faltering, willing, perhaps, but unable, to free their minds from that peculiar tone which long and successful practice under our present system inevitably induces; while, too, some have been found to advocate our going over to Rome (in the present day rather a taking idea), there to find by means of a “ Prætor" relief for our manifold legal miseries, and a cloud of pamphlets have appeared, each advocating some changes and exposing some abuses,-a practical people in the western hemisphere have appointed a commission, and quietly, expeditiously and cheaply (wishing, probably, to'shame our Criminal Law Commissioners, who have passed fifteen years, spent thousands, and published reports without end and without result), and out of laws similar to our own and derived from us, have created a simple, single, and intelligible judicial system, which has hitherto worked well in the state (New York) by which it was first sanctioned, and has in consequence been adopted by several other states of the American Union.
This new system was explained at a meeting of the Law Amendment Society, on Monday, the 17th of November, by Mr. Field, one of the commissioners who prepared the Code above alluded to, and we now propose to introduce to our readers some of the leading provisions of this Code, which has made sucb radical changes in the old law, and which is said to answer fully and well every requirement of a practically intelligent and eminently commercial people. And here we must quote an admirable passage of Hallam (Mid. Ages), which, it appears to us, the New York commissioners have fülly carried
“ Let us not be deterred by a clamour against innovation from abrogating what is useless, simplifying the complex, or determining what is doubtful, nor attempt to stave off an immediate pressing difficulty by a patch-work scheme of modifications and suspensions, but let us consult for posterity in a comprehensive spirit of legal philosophy.'
The instructions the commissioners received were indeed precise, and left them no room, had they desired it, to narrow their scope. They were to attend to the terms of the act under which they were appointed, which enjoined upon them as a duty,