New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1846-09-24
The Reform of our Legal and Judicial systems


and / must content myself with submitting few
suggestions founded mainly upon my own profes.
sional experience and practical observation.
Among the many matters presented to your be-
dy it is generally acknowledged that the Judiciary
stands eminent above eli the others It's importance s
everywhere known and felt by all as mainly con
sttuting the protection of life, Liberty and proper
", and, more than any other domestic institution
as giving position and character to this erea, and
growing sovereignty.
take it for granted that you viii establish saf!i
cient Coarts, with force adapted to the exicen.
cies Of the State But the difficulty which consti
tutes the burhen Of general complaint against our
Judicial system, lies not wholly with the con.
sttutlon ot our Judicial tribunals, nor with those
who administer the law but much with the
lac itself In the first place, great portion of at
rlbuabie TO the present obnoxious system of pleading
which, IN my judgment, ought to be abolished.
1t imposes tresome and perpleXng labor upon the
profession and too many entirely illustrates and
conounds the ends far which it was established A
party should be permitted TO present his claim in
Court concist simple, narrative FORM as plain as
the Lords Prayc-to which his adversary could respond
IN a similar manner by general denial or notice OF
cOunter.d demands
"o riticmn dc qno inter nos coacena oh polha
rcstt1eTItG tud dare Oportere."
These lines actually constituted Roman decla
ration az dsSunLpsi special agreement. The defend
ants plea was equally concise. These forms found
10 subserve all substantial purposes of Justice in the
times of Cicero, Sallust and Cr;issus.
II must be confessed however that they belonged to
the ctcalaw, which the enlightened King Stephen by
public proclamation, forbid the study OF in his kingdom
at time too, when the laws of Rome had reached their
highest point OF excellence, while those of the Isle Of
Britain were crude unwritten and undigcsted
There may be found in the Office OF the Clerk of the
Supreme Court in this city declaration in the simple
of I|rcH DuH
like the stanzas of the iDternnablc song about Tine
Battle OF the Nile were all precisely aike-cxccpt
to the time OF the alleged conversion. 1t contains up
ward OF tet, thousand Iohos,l or million OF words :
On motion TO the Supreme Court 10 it down TO a
reasonable length it all held to be necessary mat
ter. Davis ads. DOws ct al. Aug Special Term l5i5)
Tie costs OF this declaration and the usual number of
copies for the parties and Court under the folio fee bill
of the Revised Statutes would have been taxed
than seven hundred and fifty dollars.
Great evils have resulted from the numerous forms of
action use and the unsettled arbitrary rules and
distinctions which govern III their prosecution,
many suitors bear testimony, who have thereby lost
their debts and been severely nulccd in costs besides
IL would seem that Que form OF action could be easily
adapted any case by divestng it of the than
useless technicaltcs which now cucumber almost every
action
No judgment should be reversed where the party sued
has nterposed defence and suffered default There
hardship in requiring him to plead and defend
the proper time be preclUded from disturbing the
judgment which he has permitted paa5 him
sub slcntio Thousands of dollars have been paid
writs of and ccrtorar. where the judG
ments have been reversed by the Supreme and County
Courts in which the defendant made defence before
the court in which the suit was commenced
Of OF form nowise gcrmane 10 the merits of the
cause and artfu and knowing suitor will sometimes
lie by for the express purpose OF tripping the heels OF his
adversary in another court.
As the law stands party suing two or more per-
contract must prove JOINT liability against all
the defendants and although lie may show good cause
of action against three of the defendants he be
TN Ou of 10 as ~
fourth In actions OF tort il is otherwise. l. there any
good reason common sense i'll such distinction
Agan-a person holding bond o:hcr chose in
action by assignment must sue in the name OF the orig
inal party the contract, while promissory note
by the er mercdorid or law merchant. he may bring
the action in his name, in the OF any Rich
ard Roc he peases.
These amendments and hundred others equally Oh
vious which the limits of this vii! allow 10 he
detailed could be easily made by any sensible men, who
would set themselves about III earnest and who were
not disposed TO sacrifice truth 10 liction matters oil
substance TO things oil form merely.
But there is subject which has not, to my know
ledge been presented the notice of the Convention
and to which invite your serious attention. refer to
the present Law q. Evidence.
On all trials of issues of fact the rules OF evidence
which many ponderous volumes have been written are
constantly appealed to, discussed by the Counsel and
decided by the Court with reference 30 the testimony
offered and if the Judge ers, (as i'll ohand decisions
he must often do III admitting excluding It, the cause
hung and resort had to the superior tribunals or
the correction OF the new trial is the conse
quence and costs are thus accumulated to abide the ne
and lingering day OF judgment and the termination OF
the controversy is indefinitely delayed.
The experience OF Judges and Lawyers shows that Il
tcafuly large proportion OF the cases argued at Bar 20
up questions OF evidence occurring nj the trial, al
though they NAV have had real influence in directing
the verdict OF the Jury whose conclusions perhaps
would have been the whether the testimony was
admitted excluded. All the facts and circumstances
upon which reasonable presumption can be founded,
regard to the matters at ISSUE should be admitted
but it does not follow necessary se9utr that the
admission OF facts not strictly within that rule should
vtae the verdict by the mere speculation OF the Judges
as 10 its supposed effect upon the Jury. No person
be convicted of perjury III swearing falsely TO al nad;e
rial fact The assigned Is that the attention OF
the deponent is not supposed to be properly drawn to
matters pertinent the case. Why, then, should
the admission OF irrelevant evidence set aside verdict
where the presumption obtains, and the reasonable
inference IS that could have been and was not
garlea by the luryt
1t is held that where witness has any certain interest
however small IL the event OF SUIT he must stand
aside.
Ii his name is ON the record as nominal party, with
ont any interest whatever executor, admins TRAITOR
or trustee for another he cannot be sworn.
Now would it not be far better admit every person
but the party i interest testify, and leave the Jury 10
say what credit they VIII give 10 the testimony;
il would not perhaps be productive of very serious
injury TO allow each party 10 prove what he thinks per-
tinent 10 his cause.
marriage is TO be proved the mode should be re-
qurcd whether il be inan action OF dover or Tor crmi
nal conversation And il boundary Is 10 &c established
the same kind OF proof should be admitted whether the
line in dispute be between towns or private estates
may be said that al this belongs 10 the Legislature
Is there any however suppose that future Leg
islatures viii do any in amending the law than
those which have gone by Ii anything in this way IS
to be one the Convention should take and at least
enjci action upon the Legislature Otherwise although
new corts may be created they must continue TO en-
the clogs and delays which now impede their
progress.
In wha,ever form the judicial power Of the State shall
be organized it is much be hoped that when legal
principle is decided reported. and published as rule
of action shall be allowed TO stand as the law o; the
land I'LL altered by the Legislature. The maxim stare
dcc;SS going OF use decision IS solcuniy made
and the reasons assigned and when quoted prece
den; in other cases questioned then doubted then
shaken and finally overthrown Professor Greenca OF
Harvard University has published volume OF 200 pages
containing more than five thousand cases, overruled de-
med doubted and modified. The result Is that the law
is constantly anbulans, when certainty and permanent
CIV are rs OF the very essence OF It's value,
ono great source this evil the influence of the de
cisons pronounced in Westminster Hall.
Chief Justice Gibson. OF Pensylvenia IN late case
saws al NAV DC safely affirmed that the recent decisions
bay, % L.