The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1847-09-27
Pr iII c. AND PLEA DINGS. /.
The Report of the Commissioners,

To THE HoNoR.BLE THE AssnMBLy:-
IN compliance with resolution passed by your homo
rsbe body on the 18th OF September instant requvng
the Commissioners Practice aud Psadings 10 report
progress II y made In the discharge Of their day,
and At what time they win probably DO able ths
result OF their dopgs for the confederation of the Legs
lature" the undersigned, majority Of the said Com
mssionsrs. respectfully submit the following report:
the performances of the duties assigned u.s. with deep
sense of the responsibility which had assumed. and
with firm determination SO to execute the trust
mitted to hands the reasonable and just
expectations Of the Legislature and the people can
upon US is one which requires the utmost caution and
circumpecon In every step of progress towards ts
In the introduction into the system of legal procedure
Of series Of new and untred rules and principles we
dices o. those whose office IL has been either profession
ally julcially to administer the modes Of proceeding
In cannot overlook the fact that innovation
Is not always Synonymous With reform and that
called upon by the highest considerations Of wisdom
and policy not to abrogate that which known and
drsood without the strongest that better
system be- substituted in its place To this consids
ration resolved. from the momsnt commenced
abors to give its full and just weight: and H. In the
Torrance of duties, may to have been less
prompt than desirable in presenting our views to
the Legislature trust that delay in this respect
will be attributed to other motive than a sincere and
desire to render the result Of labors Justly
acceptable to the community. Distrusng did,
without sGectatiop, reliance wholly upon our own
judgments in the matter, We have seduousy employed
the period since appointment not merely repeated
consultations and discussions and in reducing var
views to the form Of enactments but in resortng to
every within reach by which might be
profit by the experience OF other States and coun
tries and by the reflections and writings OF the
wsest who have directed their attentn to the sub
ject OF legal reform. We have done not only with
the view of strengthening confidence the sxped
ency Of the changes which might eventually propose
but the purpose of presenting design doing In
reports the suggestions and experience above
referred to, tending to commend those changes to
The leading object which at the outset itself
to definitely to fix the general principles upon
which we should proceed to the completion Of the work
hAfQr IL w haV mnc ftVpa
and reflection but not more than In judgment its
Importance demanded, for the purpose, as we'll Of
carefully surveying the whele ground Of attaining
the Of the entire commission in the at
which should arrive In the latter respect regret
that after the most full and frank interchange of opn
ion, have been disappointed and wbewe feel
hdence that the outlines Of the plan design to
by the commission, compelled to admit that
that confidence would have been greatly enhanced, II
our colleague could have brought his mind to the same
count regret that his difference from upon the
cardinal principles Of the proposed system should have
led him to the determination Of Withdrawing from the
commission From his Jealous and untiring devotion to
the objects for which 1t created have already
derived most valuable aid the continuance Of which
had anticipated from his further cooperation with In
abors in assisting to render perfect the de-
tails Of our system in presenting to minds difficult
ties which may not foresse yet against which
should provide and in bringing to our aid the stores Of
| his learning and experience.
In rejecting upon and discussing the general prnci
Piles upon which should proceed the first step
carefully to examine and consider the line of duty pre-
6crbeu TO the commissioners the Constitution, and
by the act of the Legislature by which they appoint
ed and to give the fullest effect to the intention OF the
fundamental law and the supsradded will of the Legsa
ture the subject We not ignorant onor could
overlook the fact that the delays technicaes and
expensveness Of legal proceedings had long been the sub
ject of complaint not confined to Of individual
grievance merely but aimed at the system Of legal pro-
csdure itself and that Notwithstanding expedisnt after
exp~dent had been adopted by the Legislature and the
courts to the acknowledged justice Of that
paint 1t still continued, not only TO exist, but
until thu trainers of the fundamental neither
disposed able to resist the public sentiment had been
compelled to smbody in the Constitution demand upon
of the body Of the law itself as Of te modes Of proceed
ing by which 1t should be administered We thsye
might have stood justified being crticss narrowly
the terms In which, both by the Constitution and the
Statute the duties Of the Commission had been prescrb
ed and deemed that they could alone be faithfully dis
charged by instituting thorough and rigid scrutiny In
to the defects Of the existing system procedure and
pleading, and the accommodation OF remedy which II
should incur the reproach of being radical should pos
the redseng merit OF being neither superficial
| Inadequate
Such remedy (for reasons which will be briefly sug.
gested in this report and which will be fully pre-
ented hereafter in connection with the particular pro-
vision. We design to submit we believed could only be
found in the adoption of an entirely SYSTEM which.
while it should wholly abrogate such Of the features of
the present remedial law unnecessary sh ,uld
the time carefully preserve and embody all that
experience of the past has shown to be valuable
Lucve to the prompt vigorous and cheap administration
justice In this belief have been as
Investigations and lsbors have proceeded The tys
TEN Of procedure by which law is administered di ers
from the law itself in ths-that the latter is body
elementary rules founded in the mmutabe principles
Of justice; drawing their origin from the obligations
which divine wisdom has posed upon the relations to
each other in which he has placed his creatures; and
expanding according to the wants necessities and ext
gences Of society but admitting fcsrefu restriction by
human laws though having source far above them =;
while the former consists its very nature but Of body
OF prescribed rules having but the will Of those
by whom they laid down, and invented by human
ingenuity, the forms by which rights
to be enforced and justice administered IL may be
hazardous experiment. careless hand innovate
upon the oncbut 10 the other, the peril OF an unsuc
csssin effort at reform 10 not 50 alarming That it
of suspicious result do not deny; do
to treat with disrespect the which our late col
league has placed before your honorable body as those
upon which his withdrawal from the commission Is based
The position that proposed change is experimental
sudden and general, In view constitutes just
gument against its being made If 1t be- at the time
sound and wise and especially when 1t refers to body
and ndoubtsdly should lead to great caution on the
part Of those by whom the introduction Of untred
system attempedbutt does not show that the thing
itself Ia impracticabe. may prove. according as the
result OF sbors may be- that the State hiss been
in the selection Of the agents to whose hands
delicate and responsible trust has been committed
but 1t would be unjust reflection upon the nteli
gence OF the to regard 1t establishing the concu
sion that the mere machinery by which law Is to be ad
minstered-the regulations by which the orderly con-
duct OF legal controversies Is to be
mind IN the Improvement OF every and science upon
which It's energies are employed Our individual ncom-
to accomplish it, is not impfobsbe but our faithful and
Jealous efforts towards its accomplishment we are re-
solved neither to remit nor forego And we only
your honorable body that should 1t result upon
consideration Of any portion of plan by Legisla
ture that have failed in the object at which aim
shall most readily and chserfuy surrender the
missions with which have been honored that they
may BIZ placed in the hands Of able, but,
trust less willing respond TO the just demands Of
public sentiment.
Nor disposed to regard undeservng of consi
deration the position assumed by colleague, and the
soundness of which has been pressed upon from many
quarters entitled to the highest respect, that this end
may be effected by ENGRAVING upon the present system
haas hOWn IN ha
sary but in other eaving that system entire and
undisturbed. Blu to minds at least-a sufi-
Gent answer proposition in the failure which has
hitherto attended such attempts, not only In
state but every State in the Union In which that sys
tenn prevails in England, from which 1t hes been
borrowed From the earliest Of the law, Efforts of
this have been made by legislative interference and
by an determined disposition on tnc part of
the courts relax portion OF the rgor OF this existing
L huxd loi h.L