The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1847-09-27

ed thsy may be in favor of continuance Of the present
system who will not agree with least in this that
these difcultier and embarrsssments often produc
Oh .ne most earng injustice In the determination OF
The learning with which our books are filed is in |
great made up of Questions very
remotely they b. at all considered "a bearing upoo
the real matter in dispute thousands of reported
are now TO the lawyer aud the student
the sources to which with the aid of elementary works
and dsests he must resort IL he would acquire any un
derstandng at al to say nothing Of thorough one Of
formal business of suit or the vast number of con
radictiops in judicial determination upon these sub
Jects when continually present themselves both the
bar and tho bench wherever the system prevails have
united in loud and bitter complaint The legislative
power has been over and again exerted to remove
The evil and hundreds of statutes have been passed mo-
drying amending or sbrogaDg portions of the system
These In turn have led to renewed discussions and to
new constructions not always in harmony with the spirit
Of the legislative will and what more aways con.
sistent with Themselves.
We feel assured that one Is in the east mar
with the subject. will contradict what we have said
and yet there are many, whose opinions are not to be
lightly regarded who suppose that revision and con.
dsnsaton of this branch Of legal learning and reduo
ton of its principles TO series Of rules plain simple and
in and and
ly accessible In form is attended with too much
danger to justify the attempt-and that a system of
amendment Is the only wise or practicable The
conclusion OF our minds has become otherwise With
becoming respect for the opinions OF those differ
from discover neither wisdom experience
In the Idea that smplifcation Of tho existing system
eau be effected by introducing into 1t u series Of dis
jointed amendments alterations The experience of
a
would but add to the confusion which uudeniaby al
ready exists. The amendments would necessarily call
for Judicial construction The discussions upon them
would OF course involve recurrence to all the existing
learning on the subjects comparison of the ancient
rules with those of more modern orginlearned and
strsse to the evil aimed at by the legs
lature and Of judicial decision which, III the
practice OF the past furnishes any ground specua
ton "a to the fuure may not always be found to be
consistent with the statute or with itself.
In these observations we discaim any intention to
fleet either upon those who have occupied who now
htrk~
feel bound to that there have been judges who have
affected to regard any legislative interference with es-
have felt themselves justified in giving the narrowest
construction and the slightest possible effect statutes
amendator or es they have been sometsmes called de-
rogatory Of the common law. Such of action
Is the result of long association with institutions which
have derived their chief from their anti
guilty and Of veneration for forms with which they
have been made familiar by long legal train
ing and experience 1t is tendency ipseparaba from
the character of the human mind and Of which wa can
be charged with dsrsspect in speaking as We have
when we have the high authority of Sir Matthew Hale
for its existence and perncious operation "By long
especially that aged and have been long
the profession and practice Of the law contract kind
and reasonable They tenscously and vigorously main
tain these very forms and proceedings and practices
useful yet BY the very change Of matters they becom.
not only useless and imperfect but and In
convenient, and prejudcia to the common justice and
common good Of mankind not considering that the
forms and prescripts of Jaw introduced not for
their own sakes but for the Of public Justice and
therefore when they become inspid useless impertn-
emit and possibly derogatery to the end they may and
must be removed
In addition then to the advantages before referred tn
attainable from the adoption In form Of a new system
We have the assurance of uniform and harmonious
basis Of construction Instead Of setting both the
bench and bar ahoat upon sea Of embarrassments
such have suggested, from the adoption of q plan
Of amendment merely, We think We safely promise
ourselves and the public relief from por
ton Of the existing difficulties is Indeed not to be
denied, that any system, whether new or old will
stantly call for Judicial construction for the reason that
it will constantly require judicial enforcement and ap
plicstion. But If II furnsh a. q should and
must its standard and rule Of construction IL il
be taken up cannot doubt t will be with dispo.
stor the part Of the courts to deal with il bersy
and fairly to give 1t full effect and to bring it into per-
feot aud entire operation whole we think W.. can
the prediction that the pers which inv arably
in theory but universally In practice attends
every undertaking viii be found In this instance to
have been overrated
In what We have thus far said, have treated the
question, whether We should recommend q new system
that which exists, as at liberty to deter.
mine this question ip the hrst Instance for ourselves
discussions felt called upon to enquire whether
the language and intent Of the constitutional provision
under which we were appointed authorised allowed
to go beyond system Of amendment merely By
Il reference to that provision think il will be appar-
ent without resort to forced liberal construc-
ton but from the plain import Of the language used
that the Commission is not only not restricted, in
this respect but that the view have taken of the
mode Of performing our duty Is clearly enjoned up
to provide for the appointment Of three Commissioners
whose duty 1t shall be to revise REFORM simplify and
ceedngs Of the courts of reoor Of this state and
thereon the Legislature to their adoption and
modification from time to time" (Const Art g. SEQ 24)
The terms there used revise, reform simplify and
abridge are the most comprehensive which could well
been adopted and II any doubt could arise to
their meaning upon the most refined verbal criti-
cism the it is furnished by the action Of the
in relation to that branch Of the law which
is not comprehended within the duties devoved upon
ala famn isSOU "a refp n sufh
OF the first article which provides for the appointment
of Commissioners, whose duty VI Ii made to reduce
written and systematic code the whole body of the
Law Of this State much and such parts thereof
them shall seem practicable and expedent.n
Deeming do, that the duties Of that Commission
involve the whole subject Of rights, and that those
posed us have reference to those Of remedies
cannot readily suppose that 1t the intention OF the
Constitution to provide for the codifcstion of that
branch Of the law which founded mainly upon prn-
cipes of natural justice and therefore dcut Of
reduction the form = code and at the same time to
leave prescribed rules to remain In tho
scattered confusion In which 1t found them except
those defects might be remeded by equally scattered
and not less confused amendments In support of this
view, also We think may confidently refer to the
sanction which the Legislature have given our
the eighth section Of the act by which the Commission
appointed requiring them to provide for the
abolition Of the present forms Of actions and readnss
In cases at common law; for q uniform OF pro-
ceedng In all whether Of legal equitable cogn-
zance and for the abandonment Of all Latin aud other
foreign tongues 80 far as the same shall by them be
deemed practicable and OF any form and proceeding not
necessary to ascertain preserve the rights of the par
tiesn
For these reasons have come to the conclusion that
1t Is duty, and happy to add that IL Is no
less inclination to recommend the smpliHcation Of
the rules Of practice and pleading by providing new
and far plain, simple and ineligible sys.
TEN In doing far from intending shut our
eyes to the light Of experience but shall gladly avail
ourselves Of such portions of the existing system as
perience has proved to be clearly useful 10 other
words are essential to the and enforce
msnt Of substantial rights
The next step In our discussions. the considera-
ton OF the subects which should be embodied In the
proposed system. Upon this branch Of labors we
nave not, yet been able to adopt fixed order OF ar
but we are prepared TO the following
SUBJECTS Will be acted upon, In presenting recon-
mendstions to the Legislature -
revision and condensation Of the laws regulating
the organization Of the courts:
2. Civl actions, and their incidents:
Proceedings and peadings In civil actions:
4. Costs.
8. Appeals.
8. Summary and special proceedings created and re-.
gulatsd BY statute