KB G74- UC-NRLF B n 17b lib THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA GIFT OF Oze Van Wyck \ ^ THE CODE OF PROCEDURE: OB TILE NEW AND THE OLD MODES OF PROCEEDING < COMPARED; SHOWING THE NECESSITY OF RESTORING THE FORMS OF ACTIONS AND PLEADINGS IN CASES VT COMMON LAW. OO^TTZFLIG-IKCT SECURED. BUFFALO: PRINTING HOl)\SE OF MATTHEWS & WARREN, Office, of tike Buffalo Commercial Advertiser. v \ m THE CODE OE PROCEDURE: ■ OR TEE NEW AND THE OLD MODES OF PROCEEDING COMPARED; SHOWING THE NECESSITY OF RESTORING THE FORMS OF ACTIONS AND PLEADINGS IN CASES AT COMMON LAW. BUFFALO, N. Y. : PRINTING HOUSE OF MATTHEWS & WARREN, Office of the Buffalo Commercial Advertiser. 1867. » K6 the drawing or making, or endorsing or presenting a notice of dishonor of the bill or note. f . " In every species of assumpsit, all matters in confession and avoidance, including not only those by way of discharge, but those which shall show the transaction to be void, or voidable in point of law, on the ground of fraud or otherwise, shall be pleaded, e. g. 4:4: THE CODE OF PROCEDURE. infancy, coverture, release, payment, performance, illegality of con- sideration, either by statute or common law, drawing, endorsing, accepting, etc., bills of exchange or notes by way of accommodation, set off, mutual credit, unseaworthiness, misrepresentation, con- cealment, deviation, and various other defences must be pleaded." " Covenant and Debt. In debt, on speciality, or covenant, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void as well as those which make it voidable." " 2. The plea of nil debet shall not be allowed in any action." "3. In actions of debt on simple contract, other than on bills of exchange or promissory notes, the defendant may plead, ' That he never was indebted in manner and form as in the declaration al- leged ; ' and such plea shall have the same operation as the plea of non assumpsit in indebitatis assumpsit, and all matters in confession and avoidance, shall be pleaded specially as above directed in actions of assumpsit." " 4. In other actions of debt in which the plea of nil debet has been allowed, including those on bills of exchange and promissory notes, the defendant shall deny specifically some particular matter of fact alleged in the declaration, or plead specially in confession or avoidance." " Detinue. The plea of non detinet shall operate as a denial of the detention of the goods by the defendant, but not of the plaintiff's property therein, and no other defence than such denial shall be admitted under that plea." " Case. In actions on the Case, the plea of not guilty shall operate only as a denial of the breach of duty or wrongful act alleged to have been committed by the defendant, and not the facts stated in the inducement, and no other defence than such denial shall be admissable under that plea. All other pleas in denial shall take issue on some particular matter of fact alleged in the declaration. — Ex. gr. " 2. All matters in confession and avoidance shall be pleaded spe- cially, as in actions of Assumpsit." In the same way, and on the same principle, these Judges limited the effect of the plea of not guilty in the action of trespass. They did it in obedience to the act of Parliament, and to carry out into the business of litigation the policy there declared. They them- selves declare it : " Because (say they) by the mode of pleading " hereinafter prescribed, the several facts material to the merits of " the case will, before the trial, be ' brought to the notice of the re- " spective parties more distinctly than heretofore," the special aim of the object and scope of special pleading. Says Mr. Warren : " All these statutes and rules, fruits of five years elaborate, ex- THE CODE OF PROCEDURE. 45 tensive and enlightened investigation by the Law Commissioners, have been either framed or anxiously superintended by judges of as profound, practical learning and sagacity as England ever saw, and have already exercised a most sensible and benignant influence upon every department of litigation, with reference equally to suit- ors and practitioners, saving to the one the destructive expense and procrastination so long deplored by all, and to the other simplifying and abridging the drudgery of their labors — rendering the practice of their profession, in a word, more systematic and scientific than ever." ' Again he says : " He (the lawyer) can no longer shelter himself beneath the sloven- ly and unscientific practice of shaping his case in a dozen different ways, because he is unable, either from want of inclination, time or experience, to pitch at once upon the proper one, and stand or fall upon it. Vigilant attention, close and accurate thought, must now be invariably exercised, facts must be weighed and sifted, in the first instance, and their real bearing ascertained and adjusted to the legal formulae with prompt decision. A client will henceforth be able to see in the twinkling of an eye whether his pleader or barrister is in- competent — a mere pretender — and he must act accordingly." — Warren's Law Studies, 1835, page 18. Says Mr. Spence : " These rules have completely remodeled the whole course of prac- tice and assimilated that of the different courts ; the process in each court had been made uniform by one of the statutes above referred to. These new rules have, according to the concurrent testimony^ of all who are competent to judge, vastly lessened the expense, and sim- plified and accelerated all the proceedings in an action. But, though useless and inconvenient forms have been swept away and some abuses rectified, the system remains the same, as on its original con- struction. All the rules of any importance have been preserved in their full vigor, and some of them are more distinctly developed than formerly, and more generally and consistently applied. Though a summons is substituted for an original writ, equal strictness is ob- served to compel adhesiveness to forms as was applied to the for- mula? of the Romans, and the original writ of the Anglo Normans, and as has already been partially noticed, the rules of pleading are as rigidly enforced as at any previous period."— Spence, Vol. I, 253, 1846. See, too, Mr. Sergeant Stephens' u preface to his third edition of his work on Pleading. Says Mr. Chitty : " The principal modern alterations attempted in pleading have been the prohibition of more than one count upon each cause of ac- tion, and the exercising more care in preparing that single count 46 THE CODE OF PROCEDURE. than heretofore, and the abolition, or rendering less frequent, the use of a plea of general issue, and requiring almost every ground of defence to be specially pleaded. The great increase in the number of pleas has rendered it necessary to prepare an entirely new Third vol. of Pleas and Replications and Subsequent Pleadings, most of which have occurred in actual practice, and been decided to be suf- ficient, and all have been carefully examined and adapted to the new rules and annotated." See Chitty's preface to his sixth edition, May 12th, 1836. "By far the most important modern improvements are those introduced by the Reg. Gen. Hil. 4, Wm. IV, which puts an end to the misapplication and abuse of the general issue, and compels the defendant in terms to deny the particular parts of the declaration and to plead specially every matter of defence not merely consist- ing of denial of the allegations in the declarations. The most con- venient mode will be to print the rules verbatim in the context and to state the decision in notes." See Ghitty, Sixth Mig. Edition, 513. In 1832, while the commission was pending, Lord Tenterden in Selby v. Bardons (3 Barn, and Ad. p. 16) had observed: " I consider the system of special pleading, which prevails in the law of England, to be founded upon and to be adapted to the pecu- liar mode of trial established in this country, the trial by the jury ; and that its object is to bring the case, before trial, to a simple, and, as far as practicable, a single question of fact, whereby not only the duties of the jury may be more easily and conveniently discharged, but the expense to be incurred by the suitors may be rendered as small as possible. And experience has abundantly proved, that both these objects are better attained when the issues and matters of fact to be tried are narrowed and brought to a point by the previous proceedings and pleadings on the record, than when the matter is left at large to be established by proof, either by the plaintiff in maintenance of his action, or by the defendant in resisting the claim made upon him. I am sensible that this principle has not always been kept in view by the courts, and that there have been, in prac- tice, many instances of departure from it, founded upon very nice and subtle distinctions." The commission issued by the Crown which led to the investiga- tion and correction of these abuses, or, as Lord Tenterden terms it, " instances of departure from the system of pleadings," bears date in 1828, the year in which the Third Part of our Revised Statutes was passed. Some of the alterations recommended by these com- missioners related to other parts of the common law method of proceeding than the pleadings, and were authorized by divers acts of Parliament. Among them, the distinction which formerly existed in the jurisdiction of the different courts is abolished, and concur- THE CODE OF PROCEDURE. 47 rent jurisdiction in all personal actions is given to the Court of the Queen's Bench, the Court of Common Pleas and the Court of Ex- chequer. The use of original Writs in personal actions is super- ceded. But with regard to such of the recommendations of the commissioners as related to Pleadings, Parliament delegated it to the judges to make such alterations in these subjects as they thought fit and expedient ; and to submit them when made to both Houses. The Judges, afterward, as we have seen, promulgated the Regulaa Generales of Hilary term, 1834, by which, using the language of Lord Brougham, " the great and prejudicial alterations of the last " century and a half in the original plan which governed the System " of Pleadings were corrected, and the lessons of experience applied u to this correction of its rules." What is meant in these acts of Parliament by the " Superior " Courts of Common Law," whose practice and pleadings were to be corrected, are the Queen's Bench, Common Pleas and Exchequer. Each of these has its five judges. These fifteen in England are popularly called, by way of distinction or pre-eminence, " The " Judges." They are styled the Courts of Common Law, because they are the ordinary courts in which the great mass of litigation is done, and justice is administered in them, the common law way, on the principle of compensatory retribution by a judgment and execution for damages, in which the subjects of litigation were originally classified by means of original writs, and distributed in their respective actions, the injury for which relief is sought giving its name to each, and each having its own established and appro- priate formula, expressing, classifying, expediting the reasoning or mutual allegations of the parties, until the point to be referred for decision is developed, as the result of the pleading itself: " The " original plan which," as Lord Brougham expresses it, " governed " the system of pleading." It is in contrast with these courts that the Court of Equity, than which they are supposed to be much more ancient, is designated as Extraordinary, for the reason that, in cases which justify its inter- position, it proceeds in administering justice on the preventive or dispensatory principle, extra ordinem — a method unknown in the ordinary courts, not in opposition to them, but auxiliary or supple- torv — to do what in special instances ought to be done, but which they cannot do by their mode of proceeding. Of course, the vast 48 THE CODE OF PROCEDURE. proportion of litigation in England, as in every civilized community, belongs to the ordinary kind — where damages are given for con- tracts already broken, or torts already done — and is disposed of in these Superior Courts of Common Law, where the injuries are redressed on this principle. They are now courts of general and con- current jurisdiction in all the personal actions between subject and subject, — the Common Pleas alone having cognizance of the few surviving species of real actions. These fifteen judges hear and determine all questions of law, developed in the course of the pro- ceeding by demurrer in their respective courts ; try all the issues of fact ascertained, in like manner, before the jury ; and, in addition, sit in the Court of Exchequer as appellate judges. This Court has no original jurisdiction. It is a Court of Appeals to correct the errors of these three other courts. By the acts of II. George IV., and I. Wm. IV., c. 70, § 8, the judgments of each of these Superior Courts, in all suits whatever, are subject to revision by the judges of the other two, sitting collectively as a Court of Error for that purpose in the Exchequer Chamber. The organiza- tion of this Court, consequently, admits of three different combi- nations, consisting of any two of the courts below, to wit : those who are not parties to the judgment supposed to be erroneous. From the decision of each of these Superior Courts of law, there lies a Writ of Error] into the Exchequer Chamber, so that, as members of this appellate court, these fifteen judges hear and determine all questions brought in this manner into that court for review from either of the three. It is in these courts, the ordinary as distin- guished from the extraordinary one, the Court of Equity, that this system of Special Pleading prevails and was always used. In its own department of human labor it has been as useful as the plow or the loom in theirs. Let him who pleases forego the benefit of either, because we cannot trace it to its crude beginnings in the experience and necessity of mankind. The Egyptian never was foolish enough to refuse to drink, or fertilize his lands, with the waters of the Nile, because he could not penetrate to their sources. He worshipped it the rather. Without stopping to discuss the origin of it, all, everywhere, con- cede that in these Superior Courts of Common Law, the original plan of Special Pleading, as Lord Brougham designates it, always prevailed, and that it existed in its rigor and perfection in the reign THE CODE OF PROCEDURE. 49 of Edward III. He also says that within a century and a half, the perverse alterations in the practice of it had perverted its design and the ends of justice ; " so that the records in the great majority " of cases instead of exhibiting a plain view of what each party is " prepared to prove, contains a multitude of words from which, if " the real matter in dispute can be gathered at all, it is only by u guess work, or by communications out of the record relating to " things of which it gives not even a hint." The spirit and vigor of this plan having been by degrees relaxed, were lost as well as the chief of its advantages, although the preserva- tion of the distinction and forms of the several actions was, of itself, of an incalculable utility. The use of different counts when in fact there was but one cause of action, for the purpose of indulging the lawyer, that he might be able, if he fails in the proof of one to suc- ceed in another, was soon followed by the statute of 4 Anne, c. 16, authorizing, also, the indulgence of several pleas by leave of the court. In course of time the necessity of getting such leave was waived, or yielded, by the judges, to the clamors of the lawyers. It led at once, as in the case of the various counts, to the abuse of allowing the defendant to plead several pleas, when in fact he only had one ground of defence, for the same purpose of shaping a single one, in various modes, so that on a failure to prove one plea, he might have a chance of proving another. These were pernicious. The fees being taxed in proportion to the number of counts, or pleas, and at so much a folio, precipitated the profession into that infinite prolixity and endless multitude of words, which the system in its original design or rigor totally prevents, or renders impossi- ble. It was these abuses, and that of perverting the use of the general issue, which led the way not only to such inexhaustible ver- biage, but of course to such a fruitful multiplicity of questions on every trial, bills of exceptions and motions for new trials, that a verdict became of little value if not worthless. The courts became obstructed and clogged by these accumulations, till the pressure was intolerable and attracted the attention of statesmen. The result was the appointment of this Law Commission, in 1828, to investigate the cause of those evils in the Common Law Courts. Whatever of learning or experience there was in England touching the subject, was summoned to the help of those gentlemen, by the fiat of the British Parliament, for the elucidation of this insatiable 50 THE CODE OF PROCEDURE. branch of human labor. It is out of place in this exposition to at- tempt to particularize the details of this magnificent task. Their reports speak for themselves. Their labors confront the world. It is the result — the authority of it — that we have to do with, on this occasion. The evils obstructing or vitiating the administration of justice in these three Superior Courts of Common Law, were de- tected, exposed, and dragged into light. They traced the cause of them to these abuses or perversions of the fundamental rules ori- ginally governing the system of Special Pleading, which had " with- " in a century and a half almost imperceptibly crept into use," and undermined or corrupted a system so indissolubly connected with the advantages of this mode of procedure ; and led, as we have seen, after five years of the most illustrious care, labor and diligence, to its restoration, in all its rigor, to its pristine perfection. Notwithstanding this example, and the conclusiveness of it, on the necessity and advantages of Special Pleading in actions at law, we thought it best, before calling attention to it, to suggest and ex- pound as we have done, that we might explore the way, cer- tain observations on the subject, that the nature, usefulness, expe- diency and indispensableness of Special Pleading might, a priori, appear. It is obviously suitable, if it could be done, in at- tempting to elucidate the subject, to bring into view the rationale, or logical ideas, on which the use of the series of formulas is found- ed, no less than the brevity, the certainty, the clearness, the ra- pidity and the economy it is calculated to secure or compel in the great business of litigation. The system has too much, and too long, ignorantly been treated with derision by lawyers. It has been used by them as a term expressing reproach or contempt ; for characterizing, in that way, what is excessively, needlessly or dan- gerously, subtle, or precise, or intricate. Now it is plain that this method never was, and never will be, in repute or credit among the lawyers ; although, beyond any question, it would be with their clients, if they comprehended its security or economy to themselves. THE BAB OPPOSED TO SPECIAL PLEADING. The relaxation of its rules and the abuses we have specified — of a multiplicity of counts and pleas — together with the perversion of the use of the general issue till it was worse than worthless, had THE CODE OF PROCEDURE. 51 their motive, rise and propagation in the slovenly and unscientific inclinations and habits of the lawyers. It is human nature. The poor ones never wish to enter upon a controversy, except at large or at random, in the first instance. They choose to drift away upon its surges, or its chances. They have an aversion to being obliged at first thoroughly to examine the controversy, that they may gauge and measure it ; to scrutinize, resolve and state its facts, or its law, on paper, by the test of these inexorable rules of logic, shaped into these judicial formulae, that the simple points on which its merits, or its logical fate turns, may be ascertained and publicly adjusted on the record, by which the litigants must stand or fall, and take the responsibility of standing or falling. This requires, at the first, vigilant attention, close and accurate thought. The facts have to be ascertained, weighed and sifted — their real bearing appreciated and adjusted into the precision and brevity of the logical formula? with prompt decision. Of course, these men choose to enter into the controversy at large, and drift down the stream of vagueness and prolixity to the trial, where all anterior responsibility to the public, or to their clients, is lost amid a throng of witnesses, a huge, unwieldy mass of testimony, the shifting tortuosities of the charge, a bustling rabble of points and exceptions ; or still afterward, on testing these, over and over again, on motions for new trials, on Appeals or Writs of Error, in the Appellate Court. Nor does the good lawyer care, at the start, to undertake such a vigilant and prophetic labor. It may be that even his client does not, or that he fears to have it done, lest the event should cool his passions or demonstrate what might make him uncomfortable to know at once, that the law or the facts are fatal to his case. Be- sides, this class of lawyers find themselves pinched for time, and have no opportunities now, as they think, for inquiries into or con- siderations of the facts, or the law applicable to or affecting them, or to prepare and settle, beforehand, the special pleadings. Each of this class of lawyers is well aware that this special reasoning, or pleading, has to be done somewhere in the progress of the case, but without stopping to search into all its circumstances, in order to do it now, shape and express its steps in those formulae, it suits much better his ease or accountability to procrastinate the hour of undertaking the task, and defer it to the trial ; and then do it, on his feet, in open court, by mutual altercations between the 4 52 THE CODE OF PEOCEDUKE. judge, the adverse lawyer and himself. If not then done satisfac- torily to himself, he does it afterward by means of a Case and Bill of Exceptions on appeal. Yea, it suits, too, much better his inter- est, for no fees likely to be proper, or allowed, for such a prelimi- nary and scientific investigation, preparing and settling the single, real and essential question in his office, by its consummate resolu- tion, or the logical clarification of the controversy, through the me- dium of these formulae, can compare, even in amount with those charges, proper and reasonable for attending courts and long.trials, or preparing and settling voluminous Cases and Bills of Exceptions for appeals, the series of term fees, and, some time or other, appear- ing at court, in banc, and there arguing them. Yet it may in the end become remedilessly manifest, that had a little of this costly la- bor been expended in testing the case at the beginning, it would then have been found that there was not in it a point of law, or fact, fit to be litigated at all. It is the lawyers, therefore, who wit- tingly or unwittingly, have originated this prejudice or contumely. They will perpetuate the scandal, because, forever, both their incli- nations, their convenience and their interest make them, perhaps un- consciously, averse to the plan of Special Pleading. Nor will they ever resort to it of their own mind. Nor, indeed, can one do it, if it is not made compulsory on all. It must be compelled by the statesman. THE REVISION. The Revisers of 1828 adopted and continued this common law method of proceeding, letting it stand with the relaxation of its fundamental rules, or the abuses with which it was then afflicted in England, and, generally, in our own country. The usage of the original writs was abolished, but the classification of actions these had originated, and the distribution of the subjects of litigation into these, were sedulously preserved. In pleading, several counts to the plaintiff and several pleas to the defendant were allowed, even though there might be but one distinct matter of complaint or de- fence — each being varied merely in statement, description or cir- cumstances. Instead of being restricted to the special formulae, the general traverse, or issue, was continued to be treated as denying every allegation or averment of fact in the declaration. The effect of this, as we have seen, compelled the plaintiff to prove, and to THE CODE OF PEOCEDUEE. 53 come to trial prepared to prove, every matter whatever, material to his case — notwithstanding the defendant knew these, or some of them, to be true — not relying at all on their being false, or on his own ability to disprove them, but merely experimenting on some supposed incapacity or difficulty of his adversary of procuring his testimony. So, too, this abuse of the general issue enabled the defendant to put in evidence any description of defence, which, con- ceding the plaintiff's case, could avoid its legal effect. For instance, in Assumpsit, that the promise was void, or voidable, or that he had performed it, or, been released or discharged from it, or, even infancy, or coverture — nothing appearing on the record to apprise the plaintiff, or the court, or the jury, what the real point to be tried was. The Revisers permitted, unfortunately, these abuses to stand as they then stood in England. They united Detinue and Replevin into one action, and prescribed the formulas appropriate for conduct- ing it. They remodeled the action of Ejectment, treating it as a real action, and prescribed the formulae suitable to the alterations. Beyond those changes, which were those of convenience rather than of principle, the Revisers were carefully scrupulous to preserve the distinction of the several actions, and, as it is plain, exacted and en- forced it rigorously. It is the fundamental instrumentality in the scheme. It remained here as it then did in England, the last bar- rier to remediless uncertainty, confusion and helplessness in the business of litigation. The very same evils, from the very same causes, in England, led (as we have seen) to the parliamentary Law Commission, its inves- tigations, reports, and the remedy ; namely, the restoration of the system of Special Pleading by formulas in the actions at law. In the relaxation of the strictness of its rules was found an adequate cause, and the solution of all their troubles. The use of the general issue, as a summary denial of the plaintiff's case, without giving him the least notice on what special defence the defendant meant to rely, took the lead in the whole troop of the difficulties — particu- larly, because the effect of it was to send and defer the whole case, on both sides, to the trial, without as yet any separation of the law from the facts, or without having as yet ascertained and adjusted in the record the exact question or questions of fact to be tried. For aught of anything in the record, the parties might be taken by 54 THE CODE OF PROCEDURE. surprise, and find themselves, the one or the other, confronted by- some unexpected matter of defence, or reply, which, from want of timely notice, neither would be in a condition to meet — nothing being admitted in the pleadings, so called. Each party was, of course, obliged to prepare, provisionally as far as he might, testi- mony on all the different particulars, which the nature of the action, by any possibility, could make it incumbent on him to establish, though many of these might be such that his adversary, if compel- led to plead specially, would, of course, never have disputed. The accumulation of witnesses, or of evidence, became prodigious, and, consequently, the expenditures still more prodigious and destructive. As often as any way, the cause, notwithstanding all this labor and expense, would turn solely on a point of law. Instead of its having been developed by means of a demurrer, and presented in that shape, for adjudication by a full bench, the essential question having been in this manner put off to the trial, had then to be adjusted and decided by the single judge, who had on that occasion slight chance for consideration, let alone the scuffle of the rival lawyers between themselves, and with him, as to what it was. There was little probability that the parties, or their lawyers, would acquiesce in his single opinion. The alternative was the appellate court and the Bill of Exceptions to take the opinion of the judges in banc. Now this is an expensive, laborious, unsatisfactory way, and as perilous as either, for raising and trying a question of law, or the legal effect of a question of fact. Were this not so, the trial by jury is not only useless but misplaced. It might have been spared altogether, had the parties been compelled, at first, to plead specially. The necessity of recapitulating, for the information of the court above, all which occurred on the trial before the single judge, is also an enormous as well as a costly disadvantage. In doing this, the parties are at the caprice of the memory or the minutes of the judge, who settles the exceptions or case ; who can settle it to suit his passions, his prejudices, his indolence, his ease, his egotism, or his darling pride of opinion. No doubt, oppressed with such embar- rassments, the motion often fails in many cases when it ought to succeed, and it succeeds in many when it ought to fail. The relief it gives, when it proves successful, is that of a new and expensive trial, as laborious as the former, if the question be one of fact. If THE CODE OF PROCEDURE. 55 it be one of law, the question is less distinctly and less satisfactorily determined on a motion for a new trial, than when raised by special pleadings, and brought before the whole court, in the very first instance, by demurrer. The value of the verdict is seriously impaired ; for, after it has been obtained, its stability depends on the questions of law suspended over it. These as yet have got to be determined. There is, almost literally, no limit to the points of law and fact, which, by this mode of analyzing a controversy, can be raised and multiplied, ingeniously and obviously within the bounds of pro- priety or necessity. Of course, the motions for new trials are correspondingly and enormously accumulated. Though every hundredth man were a judge, the courts must be constantly over- whelmed and crushed. Such a plight of things led, in England, to this restoration of the system of Special Pleading. We wallowed on in the midst of these infirmities to the Constitution of 1846. Under the 24th section of article 6th of that Constitution, in con- nection with section 8th, chapter 59, of the laws of 1847, our supposed relief ended in the calamity of the Code of Procedure. TEE USURPATION AND IDEAS OF TEE LEGISLATURE. It may be that we have satisfactorily explained what was, Oct. 9th, 1846, meant by "the rules and practice, pleadings, forms and " proceedings of our Courts of Record," which, by the Constitution, it was to become the duty of the commissioners to "revise, reform, " simplify and abridge" or what was meant by " the present forms " of actions and pleadings in cases at law" to abolish which it was by the Legislature, April 8, 1847, made also their duty; or what was meant by the two methods of proceeding in Law and Equity, which it was also to be the duty of these commissioners " to make " uniform" The idea of abolishing " these forms of actions and " pleadings in cases at law" does not exist in the language of the Constitution ; nor does the idea of proceeding " by a uniform course " in all cases, legal and equitable." Says Mr. Justice Selden : " What are the distinctions between actions at law and suits in Equity ? The most marked distinction obviously consists in their different modes of relief. In the one, with a few isolated exceptions, 56 THE CODE OF PROCEDURE. relief is universally administered, and can only be administered, in the form of pecuniary compensation in damages for the injury received ; in the other, the court has a discretionary power to adapt the relief to the circumstances of the case. By what pro- cess can these two modes of relief be made identical ? It is possible to abolish one or the other, or both ; but it certainly is not possible to abolish the distinction between them. The Legislature may, unless prohibited by the Constitution, enact that no court shall hereafter have power to grant any relief except in the form of damages ; and thereby abolish all suits in Equity ; or that all courts shall have power to mould the relief to suit the particular case and thereby virtually abolish actions at law, as a distinct class. To illustrate by a single case : They may provide that when a vendor of land, who has contracted to sell and received the purchase money, refuses to convey, the vendee shall have no rem- edy but an action for damages ; or, on the other hand, that he shall be confined to a suit for a specific performance, but it is clearly beyond the reach of their powers to make those two remedies the same. Another leading distinction between common law actions and suits in Equity, consists in the different modes of trial. The former are to be tried by a jury ; the latter by the court. Can the Legislature abolish this distinction ? They might, but for the restraint of the Constitution, abolish either kind of trial, or reclass- ify the classes to which they apply ; but they cannot make trial by jury and trial by the court the same thing. It is plain that the only way in which the declaration contained in § 69, — that l there shall be in this State hereafter but one form of action for the enforcement or protection of private rights and redress of private wrongs,' — can be made good is by abolishing both the form of the trial and the mode of relief in one or the other of the two classes of action. When this is done, and not till then, shall we have a homogeneous form of action for all cases. " Has the Legislature the power to do this ? The Constitution contains the following provisions, viz : ' There shall be a Supreme Court having general jurisdiction in law and Equity.' (Art. 6, § 3.) ' The Legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and Equity as they have heretofore possessed.' (§ 5.) « The testimony in Equity cases shall be taken in like manner as in cases of law.' (§ 10.) Will it be contended, in the face of these provisions, that the Legis- lature has power to abolish the jurisdiction of the courts, either at law or in Equity ? The Constitution gives the Supreme Court general jurisdiction both in law and Equity. Can this be taken away ? It authorizes the Legislature c to allow and regulate ' both jurisdictions. Does this mean that it may abrogate' them f Nor did these ideas exist in the Convention." Continues the Justice : "If we recur to the proceedings of the Convention which framed the Constitution, all doubts as to its true construction THE CODE OF PROCEDURE. 57 in this respect will be removed. The Committee on the Judiciary report on the 1st day of August, and in that report, § 3, providing for a Supreme Court, reads as follows : 'There shall be a Supreme Court, having the same jurisdiction in law and equity which the Supreme Court and Court of Chancery now have, subject to regulation by law.' On the 10th of August, a member' moved to add to the report the following: 'And to the end that ulti- mately the jurisdiction of law and equity may not be separately administered, and that the two may be blended into one harmoni- ous system, the Legislature shall provide by law, as far as may be, a common form of procedure for remedies arising under both juris- dictions.' This proposition was afterward modified so as to read : ' The Legislature shall provide by Law a uniform system of proced- ure in the administration of justice in civil cases, without regard to the distinctions heretofore had between different forms of action and different jurisdictions in law and equity.' After a week's debate upon this and kindred propositions, calling forth most of the emi- nent legal talent and learning in the Convention, all the propositions looking to a blending of the modes of proceeding in the two juris- dictions were rejected, and the section was adopted as it now stands in the Constitution. (Vide Debates in Conv., Atlas ed. 481 to 582.) Thus it will be seen that section 69 of the Code is an attempt to exercise a power which the Convention, in framing the Constitution, expressly refused to confer upon the Legislature." (13 N". Y. 488, at pages 493 to 496.) We owe the Code to those anomalous notions of the Legislature which assumed to prescribe a duty for the commissioners wholly inconsistent and incompatible with the duty the Constitution itself had prescribed to them. These propositions of Justice Selden are indisputable, and expose the usurpation of the Legislature. The framers of that instrument undertook to prescribe and limit the task and the object of the task they instructed these commissioners to perform, namely : " To revise, reform, simplify and abridge the " rules of practice, pleadings, forms and proceedings of the courts of " records of this State." The duty prescribed by the Legislature expresses an intention " to abolish " the well known forms of actions, the common law mode of procedure, and pleadings at law ; while that duty, the Constitution itself specifies, expresses the inten- tion of preserving these well known and wonderful instrumentalities of accelerating the business of litigation as they appeared in our Revised Statutes and in our courts of record — to do precisely what, we have seen, had then been done in England for more than twelve years, under a similar enactment, in consequence of the same abuses of the system there, we were laboring under here — through this 58 THE CODE OF PROCEDURE. long and pernicious relaxation of its logical and fundamental rules. " To abolish the forms of action and pleadings," meant, of course, to abolish this common law method of procedure we have detailed, in cases of strict law ; or when damages are sought for contracts already broken, or torts already committed. It would seem that the Legislature had become possessed of a notion that this method of dealing with this kind of litigation was of a helpless or mischievous tendency ; or that it had no origin in reason, experience or necessity ; that its plan of distributing injuries of that kind into the several species, of which these are ultimately and logically susceptible, was a foolish and worthless scheme ; that the several actions, whose names denote these several species, were an absurd and useless classification of the remedies, — rather an ingenious puzzle than an analytical, natural and labor-saving instru- mentality. Indeed, that body must have thought it still worse, that every species of injury should have its particular form of action with its own characteristic name ; or, the worst of all, that there should be a set of forms, or formulae, prepared, prescribed and allotted to each action by means of which and in the shape of which, the litigants must themselves proceed to separate and arrange the facts on which each relies, and resolve and adjust the essential point of their controversy for decision. It annoyed them, one would sup- pose, that the litigants should be restricted and impeded by these logical, condensed and abbreviated formulae, to which they were obliged to accommodate/ their own strife. Why not let them con- duct their controversy in their own way, according to each one's own skill, reason, taste, style and brevity ? Of what use, in the first instance, this compulsory and thorough investigation of the facts, and their bearing, to test their own case on this procrustean bed of argumentation ? Why not let the whole mass go to the judge and the jury ? There is the crucible. What a strange and tyrannical exaction, all this special pleading ! How unworthy the dignity of freemen ! Why make the parties use actions at all, or trouble them with such distinctions, or names, or special modes of publicly expressing their reasoning ? The Legislature seems to have supposed that this business, the most insatiable and important busi- ness in a commonwealth, needed none of these fixed and tried modes; or else, that it was not susceptible of being reduced to a science THE CODE OF PKOCEDURE. 59 like the other great staple labors of civilization ; that it must for- ever be a scene of uncertainty, delay and expense, forever a Sysiph- ean toil, where the lessons of experience and sagacity could be of no avail. We cannot need a different mode of proceeding in equity and law, because (they assume) the object of each is the administra- tion of justice on the same natural principles. These principles must, therefore (this body seems to have believed), be reached and applied by the same steps. They supposed, and thus seem to have acted on this supposition, that there might be a uniform course of proceeding, in what had been so strangely distinguished as legal and equitable cases, contrived without abolishing the remedy for the one class or the other. These old Roman and English methods of transacting the business of litigation had become so tattered and threadbare, in the long-continued and perennial use to which they had been put by each of these great people, that it was quite time that they were flung away as worn out and worthless. Besides, some of their names and those of the other instruments belonging to the scheme, were rank Latin — "all Latin and other "foreign tongues" (say they), as though the Latin was a foreign tongue — as though it is not ours as much as any people's on the face of the earth! Though these Latin names, so supposed, had been used in our own country till every farmer knew their mean- ing and spoke them as easily as he could those of his children, let these commissioners ( say they ) take care that these words be at once abandoned. Let the distinctions of Covenant, Debt, Assump- sit, Trespass, Ejectment, Trover, Detinue, etc., be abolished and, of course, let these " Latin and other foreign " words, used for ex- pressing them, and of which we have heard so much, be at once abandoned. We would, if we could, thought they, for the same reason that we abandon these, also abandon the names of the twelve months of the year ; the names of the twelve constellations of the zodiac, those of the great circles and phenomena of the universe, as well as of our beloved political institutions, because they smack of the Latin and remind us of our indebtedness to that great people, who once by arts, arms and laws governed the world. These, to be sure, we shall have to let alone, as beyond our jurisdiction, as well as the terms of war, of architecture, of chemistry, of botany, of agriculture, of medicine, etc., etc., no less than almost all the names and words needed for the infinite ideas of a choice and mag- 60 THE CODE OF PROCEDURE. nificent civilization. Carthago delenda est ; — let these Latin words, which do come within our reach, at least be gotten rid of, no mat- ter how long and indissolubly they have been incorporated in the vital tissues of all our jurisprudence — though every carpenter and joiner, or sailor, tailor or shoemaker, miner, etc., has, by far, in any sense which can be called technical or artistical, more words of the kind and of Latin origin, than has ever been allowed the lawyer. Let these few, no matter how convenient and familiar their use has become, be at once abandoned, though that part of the act we use to direct it contains at least twenty words derived from that same people, without the use of which we could not have penned the bar- barous mandate — words, too, just as much Latin and no less Eng- lish than these few ordered to be smitten from the vocabulary of the law, or of the lawyer. Such was the spirit of the Legislature. Every farmer knew these actions of Covenant, Assumpsit, etc., and if he did not know the logic or necessity of their origin, he did understand their use, as much as the sailor his chronometer, or the lumberman his Scribner's scale, in his department of labor. Nor had this Legislature any more or higher motive for destroying this common law method of procedure, than they could have had for breaking the watch or the scale to pieces, or prohibiting their use, because they did not com- prehend the nature of either. The distribution of the seasons could not cease to be apparent in the heavenly phenomena, although we were prohibited the use of the names of the great circles which manifest it, because they are Latin. No more can the abolition of these Latin words, appropriated to distinguish the several species the subjects of litigation are susceptible of being distributed into, destroy the distinctions these names have for centuries been used to express. No more, than in the other sciences, can you have a classification or nomenclature of these principles of the law without the Latin — the language of science, of majesty and civilization. We cannot remember its matchless maxims, except in the language in which we found them ; far less can we express them in our own tongue without emasculating their vigor. No fibre of the vast and priceless workmanship of the lawyers of Rome has perished amidst the wastes of time, as have its broken and buried forums, temples, porticoes, aqueducts, theatres, roads, arches, and other triumphs of its labors of this kind. Nor can the act of the Legislature of the THE CODE OF PROCEDURE. 61 people of the State of New York deface one particle of it, although they may drive these names and others from the statute book, and compel them to be officially disused. Notwithstanding their Latin origin, they will be used by all intelligent men, whose business it may be to deal with this great business of litigation, as long as the civilized nations of the earth continue to quarry the foundation of their own systems out of this Roman jurisprudence, founded on the banks of the Tiber, and transmitted to us from that wonderful people. We said " the calamity of the Code." Now it is calamitous, be- cause it sacrificed to the gratification of these fanatical notions the opportunity of restoring to its pristine and theoretical excellence this common law method of procedure by simply obviating the con- sequences of the relaxation and abuses of its rules. These we have seen were allowed by the Revised Statutes to be continued, pre- venting the full advantages of it, but, notwithstanding, the system was acknowledged in every quarter as existing. The distributing and classifying all the subjects of punitive litigation into the few several actions stood wholly unaffected, being the key-stone to the reason and usefulness of the whole structure. This alone was of an incalculable advantage (we are now beginning to ajjpreciate) in steadying the minds of men on this subject. To be sure practically, on the record, the mode was disused for publicly developing and expressing the one essential point for decision ; still Special Plead- ing in theory was universally received as belonging to the scheme, the implement and the completion of its policy. In actually testing or reasoning about the merits of a controversy, the lawyers were accustomed to resort to it in their private preparations for trial ; and on the trial a knowledge of the use of its formulae was deemed necessary to their logically developing what points were material or disputed, or worth disputing, from those which were not. The judge who tried the case, in charging the jury, was obliged to per- form the duty of the special pleader, and, in doing it, he bore in mind these labor-saving instruments of ratiocination. If he was in- telligent he arranged for the instruction of the jury the propositions of fact he deemed essential according to the method of the formulae, which ought, in the first place, to have been applied to them. Our judges, also, in determining, in banc, questions of law, were guided and enlightened not only by the forms of actions, but, also, in their 62 THE CODE OF PROCEDURE. opinions, assumed, in the given case, the analytical and logical steps the special pleader would have taken, had the litigants been com- pelled to evolve the material and decisive point instead of deferring it to be done at the trial. So, too, our precedents continued to be classified and appropriated to each species, of action, and each took its place in the array of decisions in each class. Our reports were indexed, and digests were analyzed, and our text books written and studied, everywhere recognizing that this system of actions and pleading existed, shaping and explaining, as it did, all the dealings of our courts and of our Revised Statutes, with the business of compensatory justice. No matter if it was not compulsory, yet this distinction and classification of the actions with the constant use of them and of their names being rigorously enforced, the land- marks from which all observations were taken and all argumenta- tion measured or restricted, were preserved. In this way it was that this system — though we were suffering, as we have seen, through the disuse of its fundamental rules — kept up its enlighten- ing and clarifying vigor upon the ideas of the profession, and, as it were, still compelled a conformity to its method of reasoning, which, like the force of gravitation in the world of nature, saved their pro- fessional intelligence from being dispersed into unlimited space. The minds of lawyers at least revolved around the centre of a sys- tem ; their processes of thought and courses of reasoning, when compared one with the other, manifested a self-preserving unity, and there was so held up in the common view a criterion of each man's professional knowledge, — what made them, at least in a good degree, a learned body. THE PLAN OF THE CODE. The Code of Procedure, instead of reforming the abuses, or re- storing the system of Special Pleading to its pristine theory and rigor in practice — though this had been done in England in 1834, and the example, for fourteen years, had been blazing like the full splendor of a comet in the eyes of the world — abolished it as worse than worthless. It slew it as we slay a wild beast. It ignored the matchless advantages of the scheme and proceeded on the principle of attempting to destroy it altogether, and of substituting a scheme of its own. We say "attempted," because, as we think, it has al- THE CODE OP PROCEDURE. 63 ready appeared, the old system of Special Pleading, is so elemental, founded, like geometry, so deeply in the nature of things, that no legislative act may destroy the distinctions of the actions or their necessity, or the superior certainty, celerity and economy of its method of compelling the litigants to adjust the essential point for decision themselves, and to express the steps of their reasoning in prescribed formulae, in the first instance, publicly on the record, as a condition precedent to the privilege of any trial at all. Whatever there is in the Code now tending toward this end, we think it is ap- parent, on comparison, that it is owing, in every particular and de- gree of excellence, to its identity with some instrumentality which belonged to this old system, supposed to be so summarily slain or superceded ; or more or less resembling it ; instead of its being any novelty or ingenuity of its own. The attempt has, however, embar- rassed, if it has not altogether defeated, the accomplishing of these objects as compared with the working of the system even as relaxed or abused, as it was allowed to be by the Revised Statutes ; and to an intolerable degree, if you compare the operation of this Code with what might have been effected, had that system been restored, as it was in England, to its original design, vigor and completeness. Whatever there is in it that we cannot identify with such particu- lars already existing, was spun out of the brains of the Codifiers, in obedience to this Legislative act, instead of being the natural growth of any experience and necessity. The system which these severe masters had constructed and per- petuated, and which had prevailed so long, that we were unconscious of the blessings it conferred, or of the reasons on which it is found- ed, was abolished. The Codifiers, proceeded, in doing this, on the principle of conforming all the legal remedies, or actions at law, to the method known as the " equitable " or the " suit in equity," that is, by changing the actions at law for damages into suits in equity. The code of 1848 provided: § 62. " The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished ; and, there shall be in this State, hereafter, but one form of action, for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action." § 118. " All the forms of pleadings heretofore existing are abol- ished ; and hereafter the forms of pleading in civil actions, and the 64: THE CODE OF PBOCEDUKE. rules by which the sufficiency of the pleadings is to be determined shall be those which are prescribed by this act" Their observations under this section appear as follows, and dem- onstrate that this sole idea is at the bottom of their scheme : " As has been already remarked the change in the mode of plead- ing is the key of the reform which we propose. Without this, we should despair of any substantial and permanent improvement in our modes of legal controversy. With it, we think we can frame a code of procedure simple in its construction, easily understood and efficient for all purposes of justice" In constructing this new scheme they assumed : " That but for " the set forms (the formulae) of the common law there would have " been no occasion for the court of equity. The one gave rise to the " other" — as though the distinction between these was one of mere form. They assumed, too, u That the system of actions rests on " the fallacy that all remedies can be foreseen." Then, after having also assumed that this common law method of proceeding had been the cause of all the causes of the evils we were laboring under in litigation, the Codifiers go on to say : " In place of the system we have thus explained, we propose one that appears to us natural and simple, easily understood and capa- ble of effecting every good object which any system can effect. We propose that the plaintiff shall state his case according to the facts, and ask for such relief as he supposes himself entitled to ; that the defendant shall by his answer point out his defence distinctly. This form of allegation and counter allegation will make the parties dis- close the cause of action and defence so that they may come to trial prepared with the necessary proofs. If the defendant in his answer allege a matter not referred to in the complaint, but which he in- sists constitutes a defence, the plaintiff may reply new matter. Should the reply contain new matter it is to be deemed denied by the defendant, either absolutely or as capable of being explained away, and therefore not having the effect intended. So that when the reply does not contain new facts, we have a real issue ; when it does, we have a constructive issue, just such an one as we now have when non est factum is pleaded in covenant with notice of special matter. We conceive that taking the cases together it is better to stop with the reply. These could scarcely ever happen where it would be of any use to go further, were the parties at liberty to do so. By the time the reply is made the facts will have been so developed as to leave no doubt of the precise point in dis- pute. If the right to go further, however, were given, it would be liable to abuse and frequently cause delay. In chancery no pleading is allowed beyond the replication." (p. 141.) THE CODE OF PKOCEDURE. 65 Afterward, again, they say : " The trial is now the only place where there is anything anal- ogous to the ancient oral pleading. That was in the presence of the court, and rested under its supervision, being in fact nothing more than the forming of the issue by the judge from the respec- tive allegations of the parties. Indeed our system had its origin in a practice now obsolete. When the presence of the judge was withdrawn, it lost ah essential part of its real character. Its present substitute is the trial. Here the plaintiff opens his case and calls his witnesses ; the defendant does the same ; when the testimony is finished the defendant goes over his case again and makes his statement of the points and of the evidence. The plaintiff follows with his. Thereupon the judge charges the jury. Then comes the true analysis of the case y the development of the real points in the controversy which no system of Special Pleading can dispense with. " We have shown, we hope, that there are no substantial advan- tages derived from our present system of pleading. How great, on the other hand, are its disadvantages ? First, the present pleadings are many of them untrue. The declaration in trover is almost always false. The common counts and general issues in assumpsit are generally false — so are the statements of the venue, another averment of time and place in most of the actions. We need not go further into particulars to show that truth which ought to be the first essential in proceedings in courts of justice is not only disregarded generally and upon system, but that the disregard of truth is forced upon the parties by the present system of pleading. Second, the present system of pleading cannot be retained unless we retain also the distinction between legal and equitable remedies. The wit of man can never assimilate the action of trover and a suit in equity." (p. 144.) We have no time or space to notice the extravagances of very many of these ideas of the Codifiers. They seem to involve a total misapprehension of the system of actions and its plan and forms of pleading — instigated by viewing the relaxation and the abuses of its rules, as allowed and practiced under the Revised Statutes, as being apart of the scheme and inevitably belonging to it. But two of their peculiar ideas, if true, strike at the merits of the system. One is that " this system of actions rests on the fallacy that all " remedies can be foreseen ;" and the other, that its mode of pleading " forces a disregard of truth upon the parties." As to the first, nothing can be more palpable than that it is no fallacy. The sole remedy, as we have seen, in every one of. the actions at law, is damages, either for a breach of a contract or the commission of a tort. The remedy, therefore, in every one of them is invariable, and can be foreseen just as invariably. As to the second proposition, 66 THE CODE OF PROCEDURE. the object of all pleading consists only with truth. Yet there is no means of enforcing it, because there is no way of proving the false- hood of a statement, till the trial. It is not true, however, that there is anything in the formulae or their use, making falsehood necessary or convenient or safe. On the other hand, if the rules of the system are enforced, we know of no plight in which a litigant can be put, where he could falsify with less safety or advantage. (See Stephens on Pleading.) Now it was in consequence of these ideas that the Codifiers pro- vided for a Complaint ( in their one universal and omnivorous form of action ) and, besides a demurrer limited to certain specified parti- culars, an Answer and Replication, after the meaning and manner of those in vogue and used in the suit in equity. The complaint is to be a statement of facts constituting the cause of action. The Answer, in respect to each allegation of the Complaint controvert- ed by the defendant, is to have a specific denial, and in case he could, a statement of any new matter to which the plaintiff" might reply denying particularly each allegation of the Answer he controverted, or alleging any new matter he might have in avoidance of the Ans- wer not inconsistent with the Complaint. Each party in making these respective statements of facts must do so " in ordinary and " concise language without repetition, and in such a manner as to " enable a person of common understanding to know what was in- " tended^ (§§ 120, 128 and 131. 1848.) The plaintiff can unite as many causes of action as he has, provided these all belong to some one of seven classes of injuries or subjects of litigation. The defendant can set up as many defences as he has in his Answer. In his Replication the plaintiff can also set forth any new matter consistent with his Complaint. The Codifiers in addition laid down a few rules they denominate general, whose object they declare to be " to dispense with unne- " cessary statements, to require conciseness and to unite in one ac- " tion all the controversies between the parties which can be con- " veniently disposed of together," Yet the only mode for curbing or regulating the pleadings they provide appears to be one, in analogy to the exceptions formerly taken to the Bill or Answer in Chancery, for striking out irrelevant or redundant statements, or for securing certainty or definiteness in a pleading. It is the privilege of an ag- grieved party to resort to a motion, the dernier resort of the lawyer. THE CODE OF PBOCEDTJBE. 67 The particular facts on which the judgment or other determina- tion of a court of special jurisdiction rests, or those which show the performance of conditions precedent in a contract, are dispensed with, as being unnecessary. The denial of the plaintiff's general averment of jurisdiction, or of performance, is made to put at issue whatever facts he must prove to establish either — a supposed con- ciseness on the part of the Codifiers solely obtained by the omission of statements of matter essential at some time, if not preliminarily, to be specified aud determined. By the statement of facts constituting the cause of action, defence, etc., the Codifiers mean these shall be detailed by each litigant cir- cumstantially, and in his own way, as in a suit in equity, with no view whatever to the extraction of the essential question in contro- versy, which was the object of the use of the special formula? — the only scheme by ichich it could ever be done. The Codifiers, of course, do not mean a statement of fact in the sense of the formulas, or else these formulae would have exactly answered their purpose. They mean pleading at large. No rules are laid down to prevent prolix- ity, uncertainty, obscurity or confusion ; nor any calculated to pro- duce a single or material issue of any kind. Of one hundred law- yers who undertake to state the facts constituting a cause of action, or a defence, etc., of the same class, each chooses his own mode, and, consequently, the cause or the defence may obviously assume and appear in one hundred different varieties, more or less varied in statement, description and circumstances. Without stopping to contrast this method with the advantages of the special formulae, we need only point out the vast superiority of the latter on the score of convenience, brevity, certainty, dispatch and economy, by calling attention to the specimens of the consequences of the former, lumbering up our Clerks' offices and the shelves of the Court of Appeals. The actions of Covenant, Debt, Assumpsit, Trespass, Replevin and Case, being the names of the natural and distinct classes of in- juries compensated by damages, could not by the old common law method of distribution be united, being thus distinguished and named, because the difference of these classes is fundamental and their union regarded as absurd as inconvenient, tending to multifa- riousness, confusion, complexity, delay and expense. It may have happened that, through the mistake or ignorance of 5 68 THE CODE OF PROCEDUEE. his lawyer, some party, in the course of very long intervals, had suffered under the old system, by reason of a misjoinder of actions — although the distinctions, on which this classification is founded, are so palpable and elementary ; so conspicuously signified, too, by their appropriate names. Conceding for instance (what is a fallacy the most apparent ) the inexpediency of rigorously enforcing this rule of prohibiting a joinder of the different species, the Codifiers, it should seem, only make bad worse, for what advantage has their classification, made for the purpose of ostracising a few Latin or ar- tistic names, over this old one, in any conceivable particular, for distributing, assorting, and expediting the business of litigation. See their novel, abstract and nameless nomenclature ! — " The plaintiff may unite in the same complaint several causes of action whether they be such as have heretofore been denominated Legal or Equitable, or both, where they all arise out of, "1. The same transaction or transactions connected with the same subject of action. "2. Contract, express or implied ; or ^ " 3. Injuries with or without force to person or property, or either; or " 4. Injuries to character ; or " 5. Claims to recover real property with or without damages for the withholding thereof; or "6. Claims to recover personal property with or without dam- ages for the withholding thereof; or *' 7. Claims against a trustee by virtue of a contract, or by oper- ation of law." See, too, that, after all, this novel and nameless division of the sub- jects of litigation ends in circumscribing this supposed and blessed convenience of joining together these different species. Yet the prohibition must arise at last, somewhere, even in this new dispen- sation, although it is difficult to see why the convenience of dispos- ing of as many controversies as possible in one action should be limited at the points it is: "But all causes of actions so united " must all belong to one only of those classes, and must equally af- " feet all the parties to the action, and not require different places "of trial." If it be convenient, in the sense of the Codifiers, to unite Cove- nant and Assumpsit, can any possible reason be given, why it might not be equally convenient to unite and dispose of Assumpsit and Trover or Trespass together ? THE CODE OF PROCEDURE. 69 Certainly, actions for tort are simpler and less complex than ac- tions on contracts ; the judgment, or relief, is the same in all, that is damages, and really there is no greater dissimilarity between them than between Covenant and Assumpsit on any point of con- venience. Why leave it to the option of the plaintiff, to split up his several causes of action of the different species, if his own or the public advantage demands their union ? Interest reipublicce ut sit finis litium. " Names are things," and ideas without names are fugitive and useless, because, without the precision, brevity, intelligence and sta- bility which names give them, it is impossible to communicate our thoughts, one with another, touching any subject with which we are mutually dealing. The names of this old distribution are abbre- viated instrumentalities of almost incalculable convenience in deal- ing with legal topics ; nor now, without incessantly using them, is it possible for lawyers, either in or out of court, or for judges, either on or off the bench, to discuss satisfactorily the subjects of litiga- tion. These names, as we have observed, will, in spite' of any legisla- tive or official act, be used and perpetuated among intelligent men, so long as it is their duty to specify the nature of these divers spe- cies of injuries of which the transactions of men are susceptible. Nor, but for the light, heat and aid these old names continued to shed or yield, could this business of litigation have been done at all, in any intelligent sense, under these cold, abstract and nameless de- finitions which the Codifiers have chosen and introduced. As it now is, this new objectless distribution of theirs, besides its other remediless inconveniencies, increases the danger of the mischiefs of misjoinders three-fold compared with any of which the old one, notwithstanding the Latin words, was susceptible. These are substantially all the rules by which, in the language of the Code itself, " The sufficiency of a pleading is determined.' , In- deed, it prohibits the use of any others than its own for this object; that is, " the sufficiency of the complaint, answer and reply." It prohibits, therefore, for fear of any logical test or power being at- tempted on them, the use of any of the old rules of pleading, belong- ing to the system of formula?, as well as to any other method of reasoning intelligently on a subject of litigation — " old rules which," says Lord Mansfield, " are founded in strong sense and in the 70 THE CODE OF PROCEDURE. " soundest and closest logic, and so appear, when well understood and " explained" The incessant amendments to which the Code has been annually exposed, have but slightly, if any, changed its method of pleading. The policy of the Codifiers of coaxing the litigants to gather together all the controversies they conveniently could into one action, has, however, been extended. The Legislature has since authorized the defendant, besides as many defence^ as he could, to set up in his answer what is termed a counter-claim, or, if he has so many, a dozen of them ; to which, on the other hand, the plain- tiff can reply in the same way the defendant could to his complaint. It is a provision which symmetrically tops off the scheme of accu- mulating together, in one controversy, as many questions of law and fact as possible for an unprofessional tribunal. We have no occa- sion to deal further with its particulars. We deal with the nature and tendency of this new system, so called. See what it does ! Let the plaintiff have his claim for a breach of covenant, a breach of the condition of a penal bond, a breach of an express and of an implied assumpsit, and, by the scheme of the Code, he may unite them in one action, because that assumes these several causes may be conveniently united in one and disposed of together. Now let the defendant deny each of these four in the first place generally, conceding nothing and putting the plaintiff to his proof on the trial of every material particular ; and, in the second place, let him set up one defence by way of avoidance with new matter to each of these four. Then, in the third place, let him state and allege a counter-claim to each of the four. Suppose he does this, and then let the plaintiff also resort to a general denial of the four counter- claims, and, secondly, to a defence by way of new matter to each of the four. Now, stopping at this point, and bearing in mind that in this plight the plaintiff and defendant each may on the trial show as many matters by way of defence or avoidance, if he can, which he has not put on the record, as he has expressed on it, and you have the issues so called of which in one action the genius of the Code of Procedure is susceptible, in disposing together of all the controversies between the same parties conveniently ; twenty-four being expressed on the record, and at least as many more construc- tively raised, though not expressed at all, but liable to be contested on the trial. Now let the plaintiff double his causes of action, two of each, and the defendant his defences and counter-claims, and you THE CODE OF PROCEDURE. 71 still have not a particle of what might not be done within the scope and policy of the scheme of the Code for clarifying, arranging and dispatching this great and paramount business of litigation. Let it be borne in mind, too, that as yet, except in a few unim- portant particulars, no criterion or test has been applied to any of these issues or rather contradictions, and that the legal effect of each one — what is material or immaterial, disputed, or undisputed — remains open and undetermined. The sufficiency or legal value of each has got to be manifested and adjusted on the trial before the judge and jury. Every point of law or of fact is deferred to the trial — where all questions accumulate, and where, using their own chosen language, the Codifiers say : " Comes the true analysis " of the case, the development of the real points in controversy lohich " no system of Special Pleading can dispense with" To a scene like this it is that they invite and inveigle the parties, all the witnesses these suppose to be needed provisionally in any contingency ; that at the trial, with their lawyers, they may watch the chances, or the ups and downs, of this heady fight. Of course the trial is a miserable chance-medley, where blood and pulse, au- dacity or endurance, fear, favor or affection, take their moods of win- ning the day. Out of these tumults there is little opportunity for discriminating justice ; and if anything does emerge, it is in the shape of a rabble of points or questions yet to be settled or adjust- ed in another desultory scuffle, in which neither learning, sagacity or dignity can be of any avail. We submit that this is a fair example of what this scheme of the Code is susceptible. It is its obvious, declared and inevitable ten- dency. But, thank God, even at the very worst, the affairs of men do not run the dismal length of this disastrous policy — what in truth this novel plan tempts the wretched litigants to undertake. The transactions of men do not furnish materials for this insatiable theory — materials wherewith to work out the details of such a frightful scene of litigation. Scarcely ever does one man have with another, at a time, more than one cause of action of the same class or of all classes ; more than one breach of covenant, of a bond, of an assumpsit, or one trespass, etc. Scarcely ever is a citizen thus cruelly oppressed or afflicted. But, if he were, no " man of common " understanding " would be likely to impede or risk his own rights on one by joining them to the destiny of the other. It is thus, too, 72 THE CODE OF PROCEDURE. with the defendant. His defences and counter-claims do not grow on every bush, or in every law office. Give him all the scope the policy of the Code does, he must, in practice, in the ordinary course of human affairs, soon reach the limit of his capacity to enjoy these infinite privileges of pleading. Yet it is this scope the plan gives the defendant, few as are the real defences he ever can have, at most, to make in cases at law, or of strict right — to contracts al- ready broken, or torts already committed — that the evils of this scheme of general pleading at large more manifestly begin. Hon- estly and in good faith, the case is an exceptional or extraordinary one, where, in an action of this kind at law, the defendant, beyond a mere denial or general issue, if he be allowed to use it, has it in his power to set up more than one matter of fact constituting a de- fence by way of avoidance. Of what conceivable use is it, then, that, by the grace of this Code of Procedure, he may set up fifty ? Nor ought he ever be permitted to set up more than one, unless he does it on cause, showing the singular necessity. No more ought the plaintiff, for the same reason, to be allowed to reply double, ex- cept likewise on cause shown. Such are the rules, too, at common law, and no evils were ever heard of resulting from them, except those of vigilance, brevity, dispatch and economy. The evils of departing from these vital rules, which experience and necessity had first established and so long perpetuated ( togeth- er with the abuse of the general issue) both in this country and in England, we have striven, with a good deal of detail, to explain. On the face of this new scheme, if the observations we have made are worth consideration, it is self-evident how immensely, compared with what they could be under the Revised Statutes, these kinds of evil are amplified, encouraged, yea, compelled, as it were, by design, and aggravated at least an hundred fold. The Codifiers, indeed, assume and declare : " The present system of pleading " ( meaning the system of Special Pleading by formulae we have been dealing with, in use so many centuries) " cannot be retained, unless we retain " also the distinction between legal and equitable remedies. The " wit of man could never assimilate the action of trover and a suit " in equity." No doubt of this, or that it is true of the action of covenant, assumpsit, trespass, etc., no less than of trover. No more can the wit of man assimilate any one of these common law actions to, or confound it with, a suit in equity, because the distinction THE CODE OF PROCEDURE. 73 between legal and equitable remedies is elemental and eternal in the nature itself of the two things. " Man's wit," whether in the shape of a Legislative fiat, or of the device of a Code of Procedure, •may not confound or assimilate them — though he resort to the pit- iful device of calling a declaration for a breach of a contract or the commission of a tort, a "complaint ;" or the general issue and a plea in bar, an " answer ;" or a judgment for damages, " relief;" or a de- cree for equitable relief, a "judgment," etc. One, we have seen, is merely attendant on the other, supervisory and occasional, extra or- dinem / the other is the common law method used for redressing strict rights — the injury of contracts already broken, and of torts already committed, by one uniform and invariable mode : — com- pensation in damages ; the subjects of it being simple, few and lim- ited in number ; uniform, constantly corresponding the one with the other and being repeated over and over again — all the incidents, possible to occur in relation to each of them, susceptible of being expressed in prescribed formulae. The nature of this ordinary kind of litigation, of which the vast bulk of all there can be in a civilized State consists, we have ex- plained, as it is distinguishable from that unusual or extraordinary interposition of a court of equity in special cases, on special facts justifying it, with the course and consequences of this common method, to which it is designed to be suppletory or auxiliary. Now the logicaland inevitable consequence of this attempt of the Legis- lature to reduce " all cases of legal and equitable cognizance to one uniform mode of proceeding " ( if in truth these words can have any precise meaning attached to them ), would, as Justice Selden has observed, if really carried out, end with the abolition of one or the other class of remedies. In spite of the Code and its theory, the distinction between legal and equitable remedies has been, as much as it ever was, judicially recognized and enforced ; no less than the methods of proceeding growing out of this essential difference of their nature and object. The Codifiers attempted simply an impos- sibility. The forms, even of the common law actions, and the prin- ciples on which their classification are founded originally, have in a great measure been preserved and vindicated judicially, notwith- standing this crude and audacious scheme of assimilating them to those of a suit in equity. Even the common counts are rescued and saved by our Court of Appeals. (Farren vs. Sherwood, 17 N. Y., 74 THE CODE OF PEOCEDUEE. 227.) You may now show all that you ever could under the com- mon counts — no matter the peril of the surprise — a promissory note, bill of exchange, any written agreement performed on the plaintiff's part, etc., without even the device of the old notice of the Revised Statutes. It is good pleading now for the plaintiff to express the fact con- stituting any legal cause of action in the old formula he was once compelled to use before the Code. The courts so far have triumphed over the Legislature. So, too, it would now be judicially determined, that any matter constituting a plea in bar could be stated in the well known formulae appropriate for the purpose. So, too, of matter, when permitted, in reply to the plea or answer. But the trouble is, that the courts have no means of compelling the statements of fact on which the parties rely to be put in these few, concise, logical, uniform, fixed formulae. The Code indeed prohibits the use of any other rules than its own. It substitutes, in place of these formulae at law, the Bill, Answer, and, sometimes, the Replication, peculiar to the Court of Equity, — meaning, beyond all question as we have seen, to allow, if not compel, the litigants to make their mutual allegations, or contradictions rather, circumstantially in that way, and to form that species of issues so-called in this class of cases at law which were once only usual in that forum. This limitation (stopping the litigants at the general replication), of course, it had been found necessary to prescribe in that Court, or the stream of mutual allegations might have flowed on forever. It was expedient and self-protecting to stop it compulsorily with this RepJication. This did well enough, too, before a Chancellor. Perhaps the Bill and Answer, with a general Replication, were the best mode in which the nature of the given case could be brought before him, as every question, whether of law or of fact, had to be searched out and decided by him himself. Elementally his interposition to grant the relief sought depended on matters submitted to his discretion, and these also depended, more or less, on the conscience of the defend- ant, and were variously or circumstantially stated. Although the Chancellor proceeded on the assumption of fixed principles, he took care (and this was the nature of his duty) that these were applied according to the circumstances of each particular case. The relief was never a matter of strict right, like a judgment in an action at law in case the breach or the tort existed. The mutual allegations THE CODE OF PROCEDURE. 75 of the parties could, therefore, be safely made at large — as they were with no view, as at law, to the evolution of one essential ques- tion of fact by the effect of the pleading itself; adjusting it for decision on the responsibilities of the pleaders. No formulae being prescribed or consistent with the objects in view, the pleaders could indulge themselves in the vagueness and prolixity, natural to all professional or judicial statements, to any degree each one's own taste, skill or sagacity allowed. Nor was there any mode devised in that forum of restraining this tendency to amplify, vary or pro- tract, but by the one party excepting to the other's pleading for irrelevance or immateriality, etc. — an uncouth and clumsy resource in the nature of a motion to the court — the very essence of uncer- tainty and delay. The contradictions the pleadings exhibited, to which were given the name of Issues, bore no resemblance to the one compelled to be evolved by pleading specially at law — the result, as we have seen, of that severe analysis, the necessity of separating the matters of law from those of fact compelled, in compliance with this fundamental policy of our English and American administrative jurisprudence. The object of these, therefore, was not the adjustment of a single and decisive point of law or of fact. The mischiefs of the vague and prolix verbiage the pleaders chose to employ, half needed for purposes of discovery, became comparatively harmless, if of no utility, because the Chancellor, or Judge, had, as a part of his duty and labor, to overlook and analyze all the mass of these mutual and qualified allegations, that he might settle and determine in his own mind, at his own leisure and in his own way, to what extent and in what exact sense these statements were to be taken, made on one side, admitted or disputed on the ottyer. Finally and retrospec- tively, he was obliged to separate what was disputed or material matter and what was not, that he might be sure of the essential question. In this method of proceeding there is no preliminary resolution of the particular subject of controversy. It is not meant there should be before hearing. Nor is there, as on a trial in an action of law, any great and inexorable necessity of it. All is deferred, and meant to be, to the hearing or trial. In these pro- ceedings neither the parties nor the judge have, before the hearing, what is called a public exposition on the record of the essential points in the controversy to guide and bind them. These are ex- 76 THE CODE OF PROCEDURE. pected and have to be adjusted on a retrospective analysis of these pleadings at large. The litigants before the hearing have no certain knowledge of what are to be the real points, except what each one's own private discretion or sagacity determines, explor- ing beforehand the way to see provisionally what proof may be required, and the points to which it is to be directed. It is this old method of proceeding in Chancery in the compara- tive few and exceptional cases of equitable cognizance, which the Legislature has thus substituted, prescribed and compelled, so far as it could, in legal actions, or actions of strict right, constituting ninety-nine hundredths of the litigation of the State. Each party is to state, in his own way, according to this new scheme, his case ; but he is to do it " in ordinary and concise language without repe- " tition." There is no constraining force in such a mere requisition. The stream of vagueness and prolixity and repetition can run on, checked or shortened only by each man's own taste, capacity or skill or garrulity. No formulae are prescribed to confine or reg- ulate the flood or turn or guide its course. No means are furnished the judges to vary, avert or change it. Nor are any provided for the parties, wherewith the one may protect himself from the other, but the desperate resource of a motion in the nature of a forlorn hope. In theory the scheme changes every action of law into a suit of equity. It follows that the point of the controversy, on which the merits must turn, or on which the litigants or their lawyers are willing it should turn, is not expected to be developed and fixed by the effect of the pleadings itself, which is the object at law, the cer- tainty of the issue, and what the special pleading by formulae se- cures. The sufficiency of the plaintiff's case, or the defence that the defendant sets up, as well as what either may legally be, con- tinues to be left open, suspended and undetermined until the trial. The undisputed or immaterial matters of fact, as distinguishable from what is to be deemed material and disputed, no where appear to be beforehand separated, sifted or cleared away. Nor is it ex- pected to be by the mere act of the parties or of their lawyers, on whom the duty and responsibility of ascertaining the essential ques- tion, and presenting it ready for decision, ought always to be im- posed. Because there is no compulsory process or motive on their part, or even any power, to arrest it ; everything good, bad or indif- ferent, almost always more or less involved, directly or indirectly, THE CODE OF PKOCEDUKE. 77 in every controversy, is postponed to the trial, and becomes there h accumulated into a thick mass of wordy, circumstantial contradic- tions, whose object has not been to compel the litigants to produce, — throwing off all the rest, — the single decisive question, in the short- est, most direct and logical manner. In this shape it is that what we call the " issues " go down to the trial before the judge and jury without any matter essential to the decision being adjusted or presented, necessarily appearing as such in any enlightened judicial sense. These indecisive mutual contradictions, so far as the litigants are permitted to continue them, are made, too, generally before any prior or thorough inves- tigation of the facts of the case. This always will be the mischief when there is no urgent necessity, or compulsory formulae, for pre- cision and certainty. The lawyers will contrive to express these in obtuse generalities, in the most copious, variable and indefinite man- ner, rather with a view of so amplifying or circumstantially varying them, as to cover or meet whatever state of evidence shall appear on the trial, than for the purpose of exhibiting on the record the case they expect to prove, or by which they mean to stand or fall. As there is no judicial compulsion, so there is no motive to the law- yers to undertake, in the first instance, or on their own motion, to settle and adjust some one decisive point as between themselves, which alone, cleared of every other matter, they agree on present- ing for trial. Their responsibility, as between themselves and their clients or that they owe the commonwealth, is shirked and post- poned to the trial, to the judge and to the chances of the trial, — no matter for the wasteful expenditures of time and money to their clients in bringing witnesses at random to court, maintaining them there, waiting on what turns up. At vast public expense and in- convenience, the court, instead of being a tribunal for- disposing of single issues, settled and adjusted by the litigants at their own risk and responsibility, becomes the mere medium of pleading, — of as- certaining .what there is, if anything, between the suitors to be tried. The court is chiefly made use of for this purpose. It be- comes the instrument for doing that reasoning, or separation of the facts and law, the litigants themselves should have been compelled to do before they ventured to trouble the court or the public. The Code is gotten up on this assumption. Yet it is self-evident that in this mode of analyzing the case, the 78 THE CODE OF PROCEDURE. disadvantages to the litigants and the public are enormous ; that the multiplicity of points has no limit but what is to be found in the incapacity of the lawyers, and of the scope of the case itself, for making them. In theory, there is none ; nothing to arrest the con- sequences of this indiscriminate accumulation of all matters for so- lution at the trial — for neither party can foresee the issues which the judge may deem essential, what the other side does, or what facts will be disputed, or be deemed by either side worth disputing. Of course the litigants must go provisionally prepared to prove this or that set of facts, or half a dozen others, it may be, — because the necessity of proving any, or what particular one, depends on the view the judge takes, who by this scheme controls, and has the power, in spite of the pleadings or of the lawyers, of controlling, ar- bitrarily if he pleases, the destiny of the whole strife. The party, therefore, must come prepared to prove, not what his own lawyer may deem fit, but any fact which, by any possibility, can be deem- ed material by the judge himself. He may be mistaken if he relies on his own judgment or that of his lawyer, and be, on the instant, unable to prove what, though he and his lawyer did not, he finds the judge does, deem disputed or material. There might just as well be no pleadings at all before trial, so far as this kind at large is of any use in discovering and adjusting the essential question of the controversy, or for apprising either party of it, or the judge and the jury. Indeed, we can see, it would be better and safer to have none. When the statements are thus generally and indefinitely made at large, they rather serve to mislead than to enlighten — to betray into negligence, surprise, or mistakes. Instead of apprising the litigant, or anybody else, so that he shall be sure of what the particular question may be, they either conceal from him, on what the one side* or the other relies — or mislead the one or the other in respect to it. To plead orally, in the first instance, in open court, and there adjust the point of the strife, would not only be safer and more certain, but more economical — doing it at once under the su- pervision of the judge. As it now is, the pleadings in most cases are limited to the complaint and answer ; and, therefore, with only this sort of constraint, and with such motives, there cannot be ob- tained one single and decisive issue, evolved and fixed by the state- ments themselves, over which the judge has no control, and with which he has nothing more to do than to try it. What the real is- THE CODE OF PROCEDURE. 79 sue may be, stands open. Divers pleas or defences being allowed, as well as divers replies, when a reply is proper, these, together with the general denial in all cases, postpone, necessarily, all propo- sitions of fact or law essential to the solution of the strife, to the trial. There, it seems, the Codiiiers meant them to go ; and that there should be had the first intelligent investigation of the facts on which the respective litigants are relying, or of their legal effect or value, under the supervision of the judge. " There" they say, " comes the true analysis of the case — the development of the real " points in the controversy, which no system of Special Pleading " can dispense with." Again they say : " The change in the mode " of pleading is the key of the reform we propose. Without this, " we should despair of any substantial and permanent improvement " in the modes of legal controversy. With it, we think we can form " a code of legal procedure, simple in its construction, easily under- " stood, and efiicient for all purposes of justice." THE CONSEQUENCES OF THIS PLAN. • Now, this is another instance of the frightful consequences of fa- naticism, yielding or sacrificing all considerations of every other na- ture to gratifying this one idiomatic idea : " The abolition of the "forms of actions and pleadings in cases at common law." There is but one other mode of pleading known in the world, viz., that of pleading at large, circumstantially, or with a detail of the facts, in- stead of this Special Pleading, so indissolubly connected with the system of actions at law. " The key to this reform," they say, " is " this change in the mode of pleading," the effect of which, as we have seen, is to postpone all questions to the trial, " where," using their own language, " comes the true analysis of the case, the de- " velopment of the real points of the controversy, which no system " of Special Pleading can dispense with." It is this " true analysis" which is the object of Special Pleading — abandoning, at each and every step, each and every matter but the essential and disputed, in search of the one single issue. It means to have this done, beforehand; in advance of the trial to ascertain, settle and adjust on the record either the point of law or the question of fact, whichever be the re- sult of the logical conflict. It means that this analysis shall be done not only at first, but that there be no trial until it is done. It means 80 THE CODE OF PROCEDURE. that this shall be done by the acts of the parties themselves, who shall be compelled to the use of the certain, fixed, logical formula? prescribed and designed for this very purpose, and to the observ- ance of the well known rules prescribed for the use of the formula?, that they may test their own case and develop one single issue to be referred solely by itself for decision, cleared and stripped of all undisputed or immaterial statements, or which ought to be, in right reasoning, so treated. ISTow we have endeavored to attract attention, not only to the rea- sonableness of this method of the Common Law of preliminarily an- alyzing the controversy, but to its unquestionable superiority and advantages — aye ! to its downright necessity. We have shown, we think, that, abstractedly considered, this mode of compelling the litigants to find out and present the main question consists in sim- ply applying to their controversy by means of the formula? that an- alytical process by which the mind, even in its own private consid- eration of a subject, arrives at the real point of dispute, or which it is material to dispute, or on which its logical fate depends. We have shown, also, that this application of this process can be actually and readily made in actions at law, and, therefore, ought to be compelled, by distributing the mass of matter really material, in the shape of detached and conflicting propositions of fact, which the parties in truth do dispute — the one party setting in array con- secutively his own against those of the other, either confessing or avoiding the prior one, until by the legal conflict the true state of the strife between them is ultimately ascertained as the result of their own alternate statements. The logical formula? used for this analysis,- state what is called an ultimate, or definitive, fact, which, if true, entitles the party using it to some right in law. Sometimes the fact, which a formula states, is called the conclusion of those special facts, or circumstances, we denominate evidence. Duress, accord and satisfaction, tender, pay- ment, etc., are each of them an instance of one of these definite or ultimate facts, to which a principle of law can be attached, or of which a right in law can be affirmed. These instances explain, too, what is meant by the use of. the word fact in Special Pleading, as distinguishable from those other special facts, the party using them puts in evidence to prove the formula, or its fact, e. g. duress, tender, accord and satisfaction, payment, etc. Each of these for- THE CODE OF PROCEDURE. 81 mulae, not only states a fact of this kind, but by implication the right or principle of law it involves, of which the party using it seeks to avail himself, in case he proves it. Every fact of this kind has its formula, and, if proved, entitles the litigant to the benefit of its legal effect, or the right the law of it gives him. Such are the facts, and their meaning in law, stated in the formulm. Therefore, when a man has it in his power to use one of them, he is stating a logical reason why he should have the advantage of the legal prin- ciple belonging to it. Bearing in mind this nature of these formulm, it is plain to see why a logical argumentation by the use of them can be conducted by the parties in analyzing their controversy, be- cause each formula is a proposition of fact, which, if true, gives some right in law. We have seen how very few and simple are the subjects of the actions at law. We have seen, too, that all the propositions of fact of this kind, on which either party can rely in law by way of claim or defence, are, also, comparatively few, sim- ple, constant, known and foreseen. Those, of which the defendant can avail himself, do not exceed three dozen in all the actions. These are as capable of being distinguished, named and christened, as a man's children, e. g., payment, tender, duress, etc., to the end of the list. So, too, of every fact capable of being used by either party at any subsequent step of the analysis, e. g., the replication, rejoinder, etc. These formulae, therefore, represent every fact of this grade in law, which has ever been made use of in these actions, or which ever can be, in behalf of either party entitling either to some right by reason of it in the successive steps of the ratiocination. For centuries these formulae have thus expressed all the facts which can exist in this kind of litigation, of which the litigants can avail themselves, under any circumstances whatever. Probably no other will ever exist, unless it be created by a statute. (See pages 18 to 31.) We owe the origin, use and excellence of these formulae to the necessity of separating matters of fact from those of law, in order to comply with the favorite principle of our administrative jurispru- dence, — " that the one be referred to an unprofessional, and the other to a professional tribunal." For this purpose, these formulae have become just as much a scientific instrumentality in this system of actions, as is Logarithms, or Algebra, in the business of mathe- matics. Their use, or their usefulness, or their necessity, is just as much a question of science, as either Logarithms or Algebra : no 82 TBE CODE OF PROCEDURE. more than either a matter of opinion or expediency. The question is simple. Why should this science, older and actually more indis- pensable and of more use to the abbreviation and economy of human labor a thousand fold than either Logarithms or Algebra, be dis- used or destroyed ? What reason is there, why the plaintiff should not be compelled to state the contract or the tort he alleges, in the shape of these formulae prescribed for the species to which it be- longs ? So, too, if the defendant denies the contract or the tort, why should he not be held to this denial of his and the consequences of making it, in case the plaintiff on the trial prove the one or the other ? As long as he denies the contract or the tort, why should he be allowed to set up one or more special matters (e. #., payment, release, tender, etc.) utterly inconsistent with his denial, so that he may have an issue on the theory there is no contract or tort, and, also, one or more on the theory there is ? Ought the defendant to be permitted to set up such a special matter or plea, unless he aban- dons the contestation of the contract or tort alleged ? Then, if he does set up the special matter, let the truth of this fact, if the plain- tiff concedes its law and denies it, be the sole question. Or, if the plaintiff concedes both its truth and law, relying on some new fact he sets up to avoid the legal effect of the plea, let the truth of it be the sole question, if the defendant concedes its law and denies it. So of the rejoinder, rebutter, etc. Why should either of the parties be allowed to contest any other matter but the fact, which their own reasoning with the formulae evolves and manifests to be the sole essential point on which their controversy turns? Why let them, at large, accumulate indiscriminately objections of law and fact, that they may experiment on each other's capacity to prove, in a legal way, the affirmative of many particulars, the use of the for- mulae would demonstrate to be undisputed or immaterial to the real point of contestation ? These logical or judicial formulae, by which this triumph of the legal art is effected, are, as we have already seen, coeval with the system of actions. During the pernicious relaxation of its rules, and the co-existing enormity of paying the lawyers in proportion to the number of folios, these formulae, when used, became amplified, swollen and defiled by an ignoble verbiage or tautology, which bur- dened and overwearied the sense. But these were professional in- firmities — those of the lawyer, not belonging to the design or THE CODE OF PROCEDURE. 83 scheme of Special Pleading, because one of its plainest objects or effects, is to control this professional indulgence in these obnoxious foibles, by avoiding the mischiefs of the taste or skill or license of individual statement, and restricting the lawyer to the use of cus- tomary and concurrent expressions or terms. It contemns verbos- ity, and does not admit of it. Probably it is the only method ( for we know of no other of that tendency) ever devised, which, if its rules be enforced, secures such brevity, certainty and uniformity of language in transacting the business of litigation. Indeed, in their own proper sphere, these formulae are conceived in as clear, terse, pure, choice words and expressions, as our language is capable of in the hands of the best and most expert, as much so even as those employed and renowned in the Liturgy. In this shape it is that these formulae now appear as used in England since 1834. The whole of them, prescribed or needed or convenient in all the actions, could be printed in less than fifty pages, — in far less compass than the Code itself, and in very far less than many single cases now, by their very bulk, clogging up the Court of Appeals for the sole pur- pose of determining a question of law. We refer the reader to an examination of them as they appear in Archibold's Nisi Prius, vols. i. and ii., ed. of 1845. For the rules by which the advantages of their use are compelled and secured, see Stephens on Pleading; Gould's Pleadings ; or Chitty, the edition of 1844. We have also called attention to the use of this Special Plead- ing at Rome and in England for centuries, and to the fact that in all its rigor it has been reinstated in the latter country since 1834. Now we submit to every candid reader, that this method of Special Pleading in actions of strict right, if it be rigorously enforced, is the only true scheme of analyzing the case, and of developing the real points at the right time, that is, before the trial ; that this policy of compelling the litigants themselves by the use of these for- mulae or propositions .of fact, logically to settle and adjust the ques- tion on which the controversy turns, to be then, and only then, re- ferred for decision, is the only scheme by which it is possible that the great mass of litigation, if done at all, can be done with certain- ty or satisfaction, intelligently, expeditiously and economically. The public good, no less than these considerations of certainty, bre- vity, dispatch and economy in behalf of the litigants, demands that this true and thorough analysis shall take place in the beginning 6 84 THE CODE OF PROCEDURE. before the trial, so that the essential point or question in dispute be evolved beforehand, as it always will be, if the facts be submitted to the test of these logical and appropriate formulae. It is self-evi- dent that, if it be done, in limine, as the first step of steps in the strife, a very large proportion of the litigation which would other- wise oppress the litigants and the courts, would be stopped or sup- pressed; and that, in respect of the other portion, it is also mani- festly calculated to arrest the prodigious multiplicity of points by the parties being compelled to arrive at and submit one principal and certain issue, — all other undisputed or immaterial matters hav- ing been swept away or abandoned at each step of the process by the effect of their own successive and alternate allegations. THE CONSEQUENCES IN THIS COURT OF APPEALS. What have been the consequences of this reform, so-called? These already sufficiently appear by the contrast. Whatever evils we were enduring under the Revised Statutes, through the relaxa- tion and abuse of the rules of this common law method of procedure, have been aggravated an hundred fold. This truth is most strik- ingly, no less than shamefully, signified in the condition of the Court of Appeals. The fact that the highest appellate court in our com- monwealth (where unquestionably, if our mode of administering justice in the common courts were ordinarily selected or judicious, comparatively few cases could ever appear) is utterly and hopelessly overwhelmed with appeals to such an extent, that it is impossible to have one heard and determined sooner than five to six years, dem- onstrates some radical defect in this new scheme or " reform." Indeed, the plight of this court became so flagrant and conspicuous, that the evil led to the passage of the act, — " To perfect an amend- " ment of the Constitution providing for five Commissioners of " Appeals, February 2d, 1865, to hear and determine all appeals " then pending in the Court of Appeals, which might be transferred " to them by said Court." We need no more graphic discription of the state of the business of litigation in our State, than is implied, as well as contained, in " An appeal in favor of the Constitutional " Amendment, and for the Commissioners of the Court of Appeals " by the Union State Central Committee, March 2d, 1865." "The necessity for this amendment is clearly apparent to all THE CODE OF PROCEDURE. 85 who are familiar with the condition of causes now pending in the Court of Appeals. The number of causes entered on the calendar of that court, for January, 1865, is 1,063. In addition to these, there is a large number of appeals pending in that court, which parties have omitted to notice and place on the calendar, because they know there is no prospect of their being reached during the present year, for which the calendar is made up. At each Term, also, a large number of new appeals, in preferred causes, is placed on the calendar, which must be first heard before the body of the calendar can be called. At each Term, the usual number of causes disposed of is only fifty, and this is as large a number as can be wisely and fairly examined by that court. As there are but four terms held in each year, it will be seen that to dispose of the causes actually on the calendar, without the addition of new causes, would require between five and six years. But considering the influx of preferred causes, and the pendency of appeals not yet placed on the calendar, it may be fairly estimated, that without more judicial force, the present calendar cannot be closed up in less than eight years, to say nothing of the new appeals that will be taken to the court during the intervening period." Now it is* true that this proposition for relief was defeated. It was owing, however, to the universal consciousness of its helpless- ness to ameliorate the evil, or to remove the cause of it. That the evil was prodigious, seems to have been just as deeply the universal conviction. It would have required five or six courts, like the one proposed, or like the Court of Appeals itself, to have cleared its calendar, and to have kept it clear. The scheme, " the reform," has thus proved a monstrous failure, in the eyes of all men, for the certain, intelligent, economical and satisfactory dispatch of this great branch of human labor, — the business of litigation. The cause, the adequate cause, for this extraordinary failure is found in the abolition of this common law method of procedure,— " The forms of actions and pleadings in cases at common law.'''' There are defects, no doubt, in the organization of the courts. This, perhaps, might be improved. No doubt there are too many judges. The vulgar outcry for more judicial force, however much it betokens the evil, deludes us as to the remedy, no less than as to the cause. It is a very coarse idea, that the administration of the laws, in a civilized State, demands a multiplicity of judges. If it does, you may be sure that the system in vogue for transacting it, is too crude and unscientific. If it does, you may be sure that, in some degree, more or less, the method of dispatching it has ceased to be a regulated science, and become instead a kind of crude awk- $ 86' • THE CODE OF PROCEDURE. ward labor ; that the lawyers and judges have ceased to be a learn- ed body, trained to the discipline and practice of the science of the administrative part of the law ; have become mere day laborers — working each one the best he can, at his task, or his trade, — urged on by the simple motive of getting bread and meat enough for him- self and family. Men who look for the amelioration of the modes of administering the law, by constantly increasing the judicial force, mean to effect this object of theirs by the dint of mere numbers. They act upon the conviction — so delusive and superficial — that this labor, like excavating the earth, or like chopping the forest, is facilitated according to the numerical force engaged. The object of science, as applied to business of any kind, is to seek the method of dispatching it with the greatest certainty, satisfaction, celerity and economy. This, if achieved at all, it effects by generalizing and abbreviating the particulars, and reducing them, as far as possible, to appropriate formulae. Let us find the examples of this truth in the business of insurance, banking, finance, navigation,' war, etc. Like every other of the great species of labor, this business of liti- gation, the most exacting and inexorable of them all, must be com- pelled to be reduced to the certain, fixed, brief methods — the for- mulm — of which experience and necessity have proved it to be susceptible, — to which, in analyzing a controversy the litigants must accommodate and adjust its facts, by which not only they, but their lawyers and the judges must be rigorously bound. The plagues of Egypt could be more patiently borne, than the swarm of the divers evils of litigation, unless it be fixed by certain rules to an inflexible observance of which its rage and natural love of license »can be restrained, like that of the winds : " Ni faciat, maria, ac terras ccelumque profundum, Quippe ferant rapidi secum verraut que per auras." If the observations in which we have indulged be founded in truth, *his business of litigation is not only susceptible of being reduced to certain, logical and inflexible formulas, but it actually has been for centuries. To these every man's strife had to be accommodated, and by these only could it be adjusted. The abandonment of these methods and the substitution of this new scheme, we submit to all who will take the pains to investigate the subject, adequately ac- counts for all this miserable scene of shame, failure and imbecility. THE CODE OF PROCEDURE. 87 The adequate explanation and cause of this plight of our Court of Appeals, and the plight of whatever it implies, appear in this : "The " abolition of the forms of actions a?id pleadings in cases at com- " mon law." Three-quarters, if indeed not a greater portion of all the questions carried there on appeals, grow out of this novel way " of developing the real points of the controversy at the trial; " or proposing to have " the true analysis of the case " there, instead of having this scrutiny applied before the trial — as by the old method. If we are right, then three-quarters of all that huge mass — the cal- endar of the Court of Appeals — could never have appeared or been raised at all, in the given case, neither in the Court below nor above, had this supposed analysis been compelled to be done by the liti- gants, in the first instance, before the trial. Nothing being com- pelled, as we have seen, to be conceded in the pleadings so called, or any points settled, even when these are ended, the party holding the affirmative has, at every step, to prove each material particular. Although the fact be one on which the other side does not rely, and touching which he is only experimenting or taking advantage of the other's supposed inability to make proof legally, he may encoun- ter, besides the useless delay and expense, obstacles which enable his antagonist tO raise objections and take his exceptions, more or less sound, altogether arising out of matter either immaterial or which ought not to be permitted to be disputed. Hardly anything is ever conceded in open court. Each party there strives to try to the utmost the weakness of the other. Hence it is, that a great pro- portion of the exceptions is inevitably of this nature, on which the defeated party may appeal, as he does, and go to the Court of Ap- peals, as often as not, successfully. These questions thus raised are contested on a set of facts, bear- ing no relation to the essential point on which the party who raises them actually relies, or on which he ought to rely — which, too, before the trial in good faith and in justice ought to have been confessed or conceded. Every lawyer of much experience knows of very numerous cases of this sort, carried to the Court of Appeals on propositions raised at the trial, which, by strict right, had no relevancy or relation to the real point of contestation between the parties. It is self-evident that the materials out of which all cases of this kind arise, would at once have been swept away, disappear- ing compulsorily at every step in the process of analyzing the case, 88 THE CODE OF PROCEDURE. by the instrumentality of the appropriate logical formulae, if used in the first instance. Of course, when everything on both sides is left comparatively open till the trial, each lawyer then raises, and is, for the fear of accidents or the sake of victory, obliged to raise as many points as he can, and he does this in the divers ways of which the state of the case on the trial allows, for he is now pleading specially, what he could more securely have done in his office, and doing it under the most perilous disadvantages. He may find himself not only differing from his antagonist as to the points of the case, but with the judge, who, by this method of the Codifiers, becomes the sole arbiter of this scene of logic — who may, as he often does, deem the essential question such as neither of the lawyers had sup- posed, and in respect of which neither party supposed they were litigating. The judge, therefore, instead of the lawyers, on whom the parties relied, settles and adjusts the points as he himself deems them essential. In this way, questions are incorporated in the case, through the agency of the judge himself, which neither the parties nor their lawyers expected to raise, and which otherwise would never have been raised. Points of this kind, taken at the trial, as they oftentimes are, by dint of necessity or of chance, become in- corporated in the bill of exceptions. This instrument, therefore, becomes the substitute for Special Pleading, and the frequency, as well as the origin of it, is commensurate with the relaxation of the rules of that system. The office it now performs is to settle and adjust the supposed points for the first time in the case, and to place them permanently and publicly on the record. The choice lies be- tween general pleading with this hazardous resort to the bill of exceptions at the trial, and Special Pleading with its single issue developed beforehand by the use of the formulae, and presented for trial. The bill of exceptions, at the end of the trial, thus does what, in the first instance, the form ul 33 do at the beginning of the contro- versy, *. e., settle what it is. The difference is, that this analysis made on the trial, and on a retrospective examination of the pleadings at large together with the testimony, produces an hundred-fold more points, and, more often than otherwise, points which ought to have been treated as immaterial or undisputed matter, and which would have been, had the litigants been compelled, before they came to trial, to resolve their controversy and sift out its points by the use of the formula?. THE CODE OF PROCEDURE. 89 Indeed, the chief use of the trial becomes an instrumentality for set- tling and adjusting the supposed essential questions, whose legal effect has yet, if the parties do not acquiesce in the opinion of a sin- gle judge, to be ascertained in banc on appeal. The value of the verdict depends still on the fate of the appeal. If the litigants can longer endure the delay and expenditure of the conflict, the litiga- tion here just begins in earnest and with intelligence. It is in this way that this sinister scheme of postponing everything to the trial coaxes or compels a multitude of divers points in almost every case. It breeds them with the fecundity of the rabbit. The old scheme, supposing its rules enforced, could allow no ques- tion of fact on either side to come to the trial, except its law was either acquiesced in by the parties, or it had been determined by the judges in banc on demurrer. More than one question of fact could not appear, without leave on the record. With this, or what it was, or should be, the judge who presided at the trial, had noth- ing to do, except what his duty of trying it and the conduct of the trial imposed on him. Nor could a bill of exceptions be begotten, unless it was touching the competency of the testimony or the steps taken on the conduct of the trial. In this way the judge acted, in a very great degree, ministerially. But let it be made his duty and labor, as it is the genius of this reform, to settle and adjust the real questions on the trial in a logical contest over the case with the lawyers of the litigants, his will, his reason or his judgment (call it what you please ) is absolutely supreme. It is a contest, in which he will always prove the victor. The lawyers cease to be the mas- ters of the controversy of their own clients. Their responsibility, too, ceases, disappears, is merged into that of the judge, whose de- cisions, as they happen to be adverse to the one or the other side, become transformed into just so many exceptions or propositions of law to be reviewed on appeal. It is not extravagant, therefore, to assume that at least three-fourths of the questions which now go to the Court of Appeals could never have appeared there, but for this novel method of analyzing the case at the trial. Nor is it possible to hit on a more dangerous or unsatisfactory mode " of developing the real points of the controversy." It must be borne in mind that the inclination of the judge undoubtedly is, if he can, to stop the litigation. It is natural and honorable enough, confiding, as he scrupulously does, in his own judgment, that he 90 THE CODE OF PROCEDURE. should deem it his duty. Of course the lawyer who undertakes by this method to save and settle his points, dealing as he does with the judge who ought to have no part or responsibility in such an analy- sis, does this at a great risk and disadvantage to his client. The case is new to the judge, and, if it be one of much complexity, act- ing as he does on the urgency of a public trial, there is extreme ex- posure to mistakes or misapprehensions on his part. We must assume that he is infallible, or else, as oftentimes hap- pens, that the bill of exceptions is framed either with points which the lawyer never took in their exact form or sense, or that these are stated with qualifications, omissions or variations he never meant. Indeed, if not absolutely deprived of his real points, he finds them so emasculated, or transfigured, that they are become doubtful, or worthless. Or in some particulars he may find them not in the ex- act shape, or with the precise formalities they should be, in order to be available on appeal ; for he will be met there with nice and subtle precision, technicalities, worse and more perilous than any it were possible to dream of in Special Pleading, aye, an hundred-fold. Of all these on appeal the judges take advantage, as they are very apt to deem it their duty to do, and affirm the judgment sought to be corrected, rather than hear it on its merits. Of these pretexts of non-conformity, there is no end, where there is no criterion but a principle and the mere lust of interpreting or applying it to the case in hand for the sake of checking or discouraging appeals in be- half of public policy or advantage. Men every day cruelly lose, and have been almost every day these twenty years cruelly losing, their property and rights, because of some supposed failure to com- ply with the intricacies of some supposed principle to be observed in the mode of saving the questions and presenting them on appeal. Besides these obstacles, the expense, labor, uncertainty and respon- sibility of recapitulating and shaping whatever has taken place on the trial, no matter how voluminous, in order to furnish the appel- late court with a knowledge of the questions to be contested on re- view, are enormous. No method could be conceived less safe or satisfactory — far less so compared with reaching the same object by Special Pleading in the first instance. The latter method is less technical by very much — far less over nice or fastidious — less ex- pensive, less exposes the party or his lawyer to refined, capricious or arbitrary subtleties, or the mischief of mistakes or of ignorance or incompetency, or the risk of passion, prejudice, conceit, etc. THE CODE OF PROCEDURE. 91 Besides, suppose the trial is over, and the real point of the con- troversy developed by this analysis, and exhibited in the bill of exceptions, the party defeated has as yet taken only the opinion of a single judge, and that opinion given under such circumstances. Now it is oppressive to the citizen that this single judicial opinion, given on this urgency of a public trial, should be conclusive on his rights and property, so far as the law of his case is concerned, what- ever the weight which the verdict should have on a point of fact. It does, however, practically, in all cases, unless the party finds himself, in addition to the expenses of this extraordinary analy- sis at the trial, able to bear the further and heavier costs of set- tling the bill of exceptions and appealing first to the Supreme Court in banc, and afterward if necessary, to the Court of Appeals. For each of these steps he must be provided with sureties for the judg- ment and costs, or, without an undertaking for these, the judgment is executed, though it work his worldly ruin, or though, were it reviewed, it should appear to have been altogether and grossly erroneous. Now he will appeal in this plight, and so will his law- yer, if he be in earnest, and in his convictions and conduct of the cause has cared, as he ought, for the rights of his client who has entrusted them to his care, skill and vigilance. If he be a man of heart and head, the decision of a single .judge at the trial on the law of his case, does not change his own opinion or satisfy his own con- victions. What is his plight? It is his own judgment, carefully, deliberately and studiously formed, placed in a scale against that of a single judge on the trial. Afterward, on his first appeal, he finds this same judge sitting with the others in banc, where his views at the trial are little likely to be. much controverted, particularly in these days of good humor, indifference and elective affinities. Rightly or wrongly, the lawyer will regard the affirmance of the judgment, at this stage of analyzing the case, as no more than the repetition of the same opinion he met with upon the trial. He appeals to the Court of Appeals. It is enough to say, that there he may find out too late and remedilessly, that his proposi- tions of law have not been taken in accordance with some principle, the demands or subtleties of which have never been declared, set- tled or exemplified in formula), so that a compliance in point of form depends upon each man's own experience, construction or sagacity. The modes of proceeding, even after nearly twenty years of strug- 92 THE CODE OF PROCEDURE. gling between the lawyers and the judges, in taking exceptions and presenting them on appeal, have not as yet been settled. These modes have never been reduced to any formulae. There is nothing to constrain the judges, or to guide the lawyer through the intricacies which the application of the principle involves, and no means to reduce them to uniformity or safety. Little injustice, very little, is done in the administration of the law, simply because men do not understand the principles of natural justice. The world over, these seem substantially understood. The superiority of one system of jurisprudence over another, does not turn on a different degree of consciousness or comprehension of these principles. How are these universal principles or ideas to be carried out or applied in the business of litigation to secure the justice the mind conceives? This is the. task, the mighty labor. It is, therefore, the means by which the law is to be practically ap- plied in the transactions of men, which becomes the test of the superiority of a legal system ; or, what is more happily expressed by the term, the administrative part of the law. As these means are more or less perfect or efficient, his rights of person or property are more or less secured to the citizen. In the methods devised and adopted to effect this security in the application of the principles of justice to this, the object of all laio, the chiefest and most indis- pensable element is that these methods should be fixed — that the judges, to whom this application must be entrusted, be compelled, as far as practicable, to act ministerially ', having themselves no power to change or vary these methods, and being bound to a strict observance of them, as much as the litigants or their lawyers. Once let these modes be uncertain, or within the power of the judge to control them, and the rights of person or property cannot be said, in any enlightened sense, to be protected by law, meaning a fixed law. The excellence of our English or American jurispru- dence, we have always supposed to exist, lies, not in any distinction, or marked superiority of the abstract principles on which it is founded, or which are declared and stated in its annals. Its vaunted excellence has rather always been ascribed to the supposed supe- riority of its methods, designed for applying them to the trans- actions of the people. This superiority of the means lies in their being so prescribed, fixed, certain, foreordained and foreknown, that they are above and beyond the control of the judge, whose duty as THE CODE OF PROCEDURE. 93 well as whose power is circumscribed or limited simply to the task or responsibility of taking care that they are thoroughly and con- stantly observed. It is with the modes of proceeding as it is with the rules of evi- dence. What, pray, is a system of administrative law worth, whose rules of evidence do not as yet exist, or are unsettled, or capable of being varied with the particular exigency? Give the judge the control of the rules of evidence, and you put the safety of the citi- zen, or litigant, at his will. The rights of person -and property are at his mercy, and in his power. It is equally self-evident to him who cares to reflect on the subject, that the danger of giving the judge the power to change, vary or dictate the modes of conducting the steps of an action is nearly, if not quite as great, aye ! perhaps greater, than to give him that of changing or dictating the rules of evidence. In other words, we submit, that it is as mischievous or vitiating to any system of administrative justice, to allow the judge on the trial to control the pleadings, or issues these are meant to effect, either by wholly disregarding them, or changing or adapting them to the evidence, as to give him the power of prescribing the rules of evidence on that occasion, according to some supposed ur- gency or pretence of doing justice. The mischiefs of the one act do not surpass those of the other, and each is equally susceptible of abuse, equally likely to attract and suit the countless arts the re- morseless spirit of perjury is forever contriving. The parties, or their lawyer's who represent them, are no more exposed in the one case than in the other. No system can be consistent with our English or American ideas of what is meant by the certainty and inflexibility of the administrative part of the law, or of what it ought to be, where the judge, who is entrusted with its application, may determine himself, either the modes of proceeding or the rules of evidence. Optima est lex quce minimum relinquit arbitriojudicis ; optima judex qui minimum sibi. It ii these fixed rules of evidence and modes of proceeding, pre- scribed and adjusted beforehand, with the nature of which the judge has nothing to do but to see them strictly observed, which has always explained and manifested the vast superiority and safety of the common law method of procedure. Its comparative independ- ence on judicial power, and the inflexible certainty these fixed rules and modes of proceeding have assured in the administration of the 94 THE CODE OF PROCEDURE. law, have always been regarded and vindicated by the most ex- perienced and learned jurists and statesmen, as the essential attri- butes of our English and American jurisprudence, — the bulwark of the rights of person and property, and, therefore, the bulwark of our liberties, politically. These ideas are fundamental, and have always been attached to our common law modes of proceeding in the business of litigation. So far as the issue in an action at law is concerned, this Special Pleading by formulae, prescribed and fixed for the use of the- litigant, has always been the instrument by which parties and their lawyers were compelled themselves to sift and analyze their controversy and resolve it logically, till the decisive point of contestation was worked out, on which its legal desliny turned. If the parties and their lawyers could not test their strife, this way, in the first instance, fitting and accommodating it to the formulae, the government provided no tribunal. Nor ought it to provide one. The skill, labor and responsibility of this task of searching out and presenting the one essential issue in a brief, suc- cinct, logical and comely shape is thrown, where it should always be, upon the lawyers of the litigants, who, it is supposed, are trained and disciplined for this very object ; who, as the members of a learned body, and being the officers of the court, are supposed to be capable of conducting scientifically the mutual altercations or statements of fact. The judge the government provides, as the part of his duty is to hear and determine the issue the parties had, in this way, settled and framed for decision. Government, nowhere, assumes to provide a tribunal to aid or guide the lawyers of the parties in ascertaining the point of their controversy, or one tchose duty it is to find it out if in fact they have one fit to he tried, or to take care that the lawyers have hit upon the real one or the best one. It is enough that the government prescribes fixed, settled, logical formulae, by the use of which these learned lawyers can, if they will take the pains and use them and the logic they compel appropriately, ascertain and adjust for decision the point of contestation. If the parties choose to litigate at all, these are the certain, fixed and in- flexible instrumentalities, by which, in an action at law, they must be compelled to search out, on the skill and responsibility of their own lawyers, the decisive issue and present it with the logical pre- cision, distinctness and beauty of which it is susceptible in this scheme of ratiocination. Science never causes jnistakes or misap- THE CODE OF PROCEDURE. 95 prehensions or harm of any kind. It will most swiftly detect and expose them the rather. Shall government never be able to sub- jugate this vast and ceaseless labor of litigation to the yoke of an enlightened and logical science, for fear that, sometimes, the right of the citizen be lost, through the blunders of his lawyer, who may mistake, omit or misapply its rules ? Where there is no science, he may err a thousand-fold more likely, though, perhaps, he may fear the less any detection, or the responsibility to his client or the public. Nor do you secure the citizen the better or altogether from the mischiefs of failure, or of loss, through the errors of ignorance, or of negligence, by entrusting the solution of his controversy to the judge, instead of his own lawyer. The judge is nothing but another lawyer. Will you give the judge, himself, the power, without much of any reference to the views of either party, to select or determine what in his judgment is either the question of law or of fact to be decided ? The power of a judge over the course and result of a trial is im- mense, let the most sagacious method of settling the question you please be adopted. But where you give him the choice of selecting it retrospectively, or, in other words, make it a part of his duty to determine on the trial what it is, neither party can be said, in any safe or accurate sense, to be ready, except provisionally or contin- gently. The judge may assume the question to be one, which neither of them supposed it to be, or came prepared to try. The power, then, which this method of allowing the mutual allegations to be made at large confers on the judge, is not only immense, but also self-evidently too flagrant and despotic. Judicial power, of its own nature, is essentially absolute and irresponsible. It is like that of a juror. For the most part, it is exercised in obscurity. Unless it happens to be a matter concerning the public, or in which, for some unusual reason, the public take an interest, the controversy of one citizen with another attracts, if any, very little attention. Should it by chance, very few have either the time, or the care and diligence, to examine into its nature, or to scrutinize any injustice, of which their fellow-citizen may complain. The most dangerous infirmities of the judge lie this side of any open or gross manifesta- tions of corruption. His ignorance, his insolence, passion, prejudice, negligence, indifference, favoritisms, subserviency, have but little chance of being publicly criticised, detected or punished. He is not 96 THE CODE OF PROCEDURE. responsible in a civil suit for his judicial determination, however erroneous it may be, or however malicious, partial or corrupt the motives which produce it. Of necessity this irresponsibility at- taches to his office from the nature of the power he exercises. Man- kind have suffered no worse evils than those, inflicted in the shape or disguise of judicial power. Review the chapter on the adminis- tration of justice in the annals of civilization, and you will find very little comparatively to the credit of the judges, their intelligence, their integrity or independence, — but little to the honor of human nature. Of all kinds, judicial power ought the most severely to be circumscribed, and its exercise guarded or constrained by the se- verest arts of policy and patriotism. With such means as may be calculated to effect such an object in the organization of the courts, we have on this occasion nothing to do. Little dependence, in our judgment, can be put on this kind of se- curity. If in any quarter any security may be found, most likely it lies in the prescription of certain fixed modes of proceeding and- their inflexibility. The most effectual, and, it is believed, the only one of much value, by which the citizen and, therefore, the common- wealth, may be guarded against the mischiefs of the exercise' of this irresponsible power, consists in the system of the actions at law and the method, nature and tendency of Special Pleading. It is mani- festly so, for the reason, that when, as by this scheme, the essential point for decision has been necessarily evolved by the alternate statements of the litigants, as the result of the use of the logical for- mulae, the judge, whether it be one of law or fact, has nothing to do with the adjusting it on the record or deciding what it is. This has been the act of the parties and their own lawyers, who are, or who ought to be, responsible for this question. The duty or business of the judge is simply to try and determine what has been thus pub- licly adjusted beforehand, and, at last, submitted to him for de- cision. We think no one can help seeing (what our forefathers did) to what a vast extent the power of a judge over a controversy is con- strained and limited by taking away from him, by this method, the opportunity, the labor or duty, no less than the temptation, of se- lecting and shaping the point of contestation to be referred to him for decision. Let this much, at least, be left to the parties and their lawyers. Let the lawyers, at least, become responsible to their THE CODE OF PEOCEDUEE. 9f clients so far as this — that they, and not the judge before whom it is to be tried, resolve and adjust the point of their controversy — what they deem the essential one, on which they are willing to stake the event and take the accountability of staking it. To this degree, at least, let them have it in their own power to limit the duty or control of the judge over the legal fate of the controversy and vin- dicate their own official rights and responsibility. Let the lawyers of the litigants cease to be puppets. The more and more a judge is compelled to act ministerially, or quasi-ministerially, the better and safer for himself, the lawyer, the citizen and the commonwealth at large. Special Pleading, if practiced as it now is in England, most obviously tends to such a result. The advantage of it operates far beyond the immediate effect of depriving the judge of the control of the supposed nature of the question. The decisions which he makes, and which it is his duty to make, are classified and distributed, in a like manner, as are the several subjects of litigation in the actions in which he happens to make them. He is but constantly repeating, in each class, those which belong to its particular action. His con- secutive judgments consequently not only limit himself, again and again, in that particular class, but also his successors. The value of precedents, in our law courts, has depended chiefly on the distinc- tions of the several actions, a rigorous observance of them, and the conformity which the special formulae in each belonging to the sys- tem compels. These precedents have always been the more distinct, useful and enlightening, because, by this method they are suscepti- ble of being made so, and, therefore, more useful in proportion as its rules have been the more rigorously enforced. Where the com- mon law classification and method of pleading do not exist, as on the Continent, the authority of precedents (if in our English and American sense such have ever been acknowledged there) has not, and cannot, in truth, exist further than that the reasoning of one man on a kindred topic mag be supposed to have weight and con- sideration with another. The system of precedents which has so distinguished the law courts, and is by most believed to be one of the chief characteristics of its superiority, depends, altogether more than we are apt to think, on this distribution of the subjects of litigation into the few actions, and the rigor with which the distinctions on which this distribution is founded are enforced, and the resolution of the decisive point in each action by the use of the special for- 98 THE CODE OF PROCEDURE. mulae appropriated and allotted to each. No human wit or inge- nuity can by any other mode make one decision so much like another, as to compel the judge to follow it. Few men compara- tively are at the best fitted to be judges. No system of administer- ing the law can be a good one (we have the authority of Burke for this truth) if it shall require men of extraordinary ability, or integ- rity to administer it. It were worthless or worse. The common law method of procedure it is believed and submitted, is immeas- urably better fitted than any other scheme ever in use for the average grade of the men who are most likely to be judges. It requires — if its rules are enforced and the parties themselves com- pelled to sift and resolve the facts on which each one relies in the shape of these public and prescribed formulas — no unusual pitch of capacity or purity in the judges, their work being so well laid out for them and restricted within such fixed limits as palpably to ob- viate in a great measure the danger of any great abuse of judicial power. £.,We had intended to call attention to other matters bearing on the subject, particularly to the fact (what Justice Selden predicted) that this new scheme has already destroyed the equitable action in its old and enlightened sense. There is no longer such a thing as administering an equity arising out of the facts and circumstances of the case in the Court of Appeals ; «or rather of reviewing there the judgment of the Supreme Court in equity by a reconsideration of all the facts and circumstances in the evidence, as well as of the law ; or, in other words, on the pleadings and proofs. Nor can a judgment in the Supreme Court, in such a case, on the report of a referee or a decision of a single judge who hears the cause in the first instance, be reviewed at General Term on the pleadings and proofs, except within the very limited sense, scope and rules of the old motion in an action at law, addressed to the discretion of the Court, for a new trial, because the verdict was against the weight of evidence ; although, to get the almost useless opportunity of mak- ing it, we go through the labors, formalities, expenses and delays of an appeal under section 348. The statement of facts made by the referee or the single judge, or his findings as they are called, are treated, in both courts on appeal, as substantially conclusive and final. The mode of reviewing a case in equity is the same as that of an action at law, or of strict right ; that is, by a case and excep- THE CODE OF PEOCEDUEE. 99 tions in the law sense of these terms heretofore known and in use for reviewing questions at law on a writ of error. This writ in the name and shape of an appeal is not only not abolished, but has be- come the only method of reviewing a judgment either at law or in equity. If an equity case can only be reviewed in the Supreme Court, or in the Court of Appeals, on a case and exceptions as in an action at law and not on the pleadings and proofs exactly as it was before the Code, then in substance and effect, as every jurist knows, there is equivalently a denial of any appeal whatever. The case and exceptions are not adapted to, and cannot be adapted to, a re- view of an equity cause. Nor can it be reduced to a special verdict and reviewed as such, except in mere mockery of all the principles of equitable jurisprudence. It is' indifferent how the testimony is taken in such a case, but to its very nature and meaning it is indis- pensable that it should be heard, and always heard and reviewed upon the pleadings and pi^oofs, as before the Code it had to be. Yet now, notwithstanding the vastness of the civil rights so often at stake in an equity action, the findings of a single judge or of a referee upon the facts and circumstances in evidence before him, substantially as upon a verdict, are conclusive and final and irrevo- cable. The prediction of Justice Selden is fulfilled. We had in- tended to call attention more particularly to this extinguishment of any further enlightened exercise of this equitable jurisdiction as dis- tinguishable from that of law ; and also to the atrocious consequen- ces, almost in every quarter apparent, of entrusting a referee or a single judge with powers which never before in the annals of juris- prudence have been so absolutely confided to a chancellor or any other judicial officer. But we must stop. Besides, we are told we shall have our labor for our pains. Very well ! Such observations as we have been making, we are well aware, are addressed in vain to those in every quarter who care for nothing else but their bread and the theatre, — nothing else, "neither in the heaven above, the earth " beneath, or in the waters under the earth." Some of them will also be addressed in vain to that other class who deem the total de- pravity of the human heart, — that of their own and of others, — so thoroughly washed out by the blood of universal suffrage, that we no longer will be in any danger from those with whom we choose to entrust the implements of power. We think, too, that the obser- vations we have made in behalf of the old Common-law method of 100 THE CODE OF PROCEDURE. Procedure will be likely to receive very little consideration from that other class who think themselves capable of improving every- thing heretofore done in the world of nature or of mind — who self- complacently assume : " To guard a title that was rich before, To gild refined gold, to paint the lily," etc. who could cheerily approach the decalogue itself, re-classify the du- ties or sins of men, and put their own in place of the Divine Code. We hope, however, notwithstanding these large exceptions, that there are very many who will allow their attention to be arrested by this subject, and who will take pains to search out its merits. Let them be assured, it is a matter intrinsically of more importance for the safety and happiness of the people of this commonwealth than its canals or any other of its great staple interests. Tear out of our Law Reports all the advantages belonging to this system of actions and its mode of pleading by means of formulae, — the marvelous triumph of the art of legal dialectics, — and the books are comparatively mere rubbish for the paper mill. The men of Buffalo, — those brave and stalwart men who are wielding our com- merce and manufactures, — what would they say, were a bewildered Legislature to forbid them any longer those wonderful working in- struments they are using in our flouring mills, elevators, rolling mills, etc.; and compel them to grind our wheat with the pestle and mortar ; load and unload the grain at our wharves with the wheel- barrow and shovel ; and to mould those masses of iron with the tongs and the hammer ? Such, could it be as readily seen, is the blind error we have committed in abolishing " TJie forms of actions " and the modes of pleading in cases at common law" Let us, at once, and magnanimously, retrieve the misfortune. -'^< 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. JiH.22 J9fifi 92 JUL ?4 -664 7H| J ,,,.. , | . RECEIVED M«3 70 -3 PI it LOAN DEPT, LD 21A-60m-10,'65 rT .General Library (F7763sl0)476B University of California Berkeley U.C. BERKELEY LIBRARIES cosimsb^b