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general, of leaving a wide space for judicial discretion ; on the other, equal danger, by going into minute details, .of making the practice inflexible and intricate, increasing the risks of mischance, and leaving unprovided for whatever particulars were unforseen. Whether they have succeeded in finding, what they desired, a middle path between a judicial discretion, too wide for safety on the one hand, and too narrow for convenience on the other, can only be known by the result.
It is impossible, within the compass of this communication, to give any other than the most general account of the Code, as it is now presented. It is divided into four parts. The first relates to the courts of justice, their organization and jurisdiction, and the functions and duties of all judicial and ministerial officers, connected with them. The second embraces the subject of civil actions, with all their incidents; the third relates to special proceedings; and the fourth to evidence.
The essential features of the original code remain of course unchanged by the present report. Every day's experience adds new testimony to the soundness of its theory, and to the beneficial effects of its reduction to practice. The system which it traced out, and which is now filled up, will, it is hoped and believed, remain the settled policy of the state, for it is founded upon just and immutable 'principles.
In completing the system, and adapting to each other the parts already enacted and those which are now for the first time submitted, changes of minor details were of course necessary ;
the addition of new provisions affected to some degree the previous ones ; and the frequent references to the old law, which the existing code contains, are in the present report generally omitted as unnecessary, because it is proposed that the old shall be superseded. With these exceptions, and a few other changes in details, which experience has shown to be desirable, such as a modification of the reply in pleading, and a reduction of costs in certain cases, the present complete report will be found not to depart, in any essential respect, from that which was enacted as a part of the system.
The purpose of the constitutional provision and of the statute under which this code is prepared, was to make legal proceedings more intelligible, more certain, more speedy, and less expensive. Heretofore the records of the courts, have been sealed books to the mass of the people. Though concerned in them as suitors, and participating in them as jurors, they were repulsed by strange forms, and technical language. If the law could have been administered with absolute certainty, without delay, and without expense, yet if it had been unintelligible to them, it would not have been satisfactory. In a country where the people are sovereign, where they elect all officers, even the judges themselves, where education is nearly universal, it was not long possible, to keep the practice of the courts enveloped in mystery.
The Commissioners have never lost sight of these considerations. In aiming at directness and efficiency, they have aimed also at dif. fusing a knowledge of legal proceedings; and there is, they trust nothing in this code, which any person of ordinary intelligence and education cannot understand. And although the law of rights is a vast science, the accumulation of numerous countries and ages, which it requires study and patience to comprehend, yet it is believed, that the practice of the courts is here set forth in such a manner, that no person need have occasion to witness a legal proceeding, read a pleading, or render a verdict, the meaning of which, he does not comprehend.
That the expense of legal proceedings has been greatly diminished by the existing code, is generally admitted; it will be diminished still more by the present. That certainty is promoted by the abolition of needless distinctions, the disuse of technical forms, and a free use of the power of amending errors and defects, and despatch by frequent courts, and the directness and simplicity of their operations, should seem to be unquestionable.
That there are great delays in some of the districts, is too evident; but they arise from the accumulation of business, devolved upon the new courts by the old supreme court and court of chancery, and also from the habits of business in some of these courts. If the old cases were now disposed of, the Commissioners are persuaded, that, under proper regulations for the despatch of business, no court need ever adjourn, until it had disposed of all the cases upon its calendar. Indeed it ought to be held a cardinal rule, that, at each session of a court, every case ready for its action, should be acted upon; and if that does not happen, there is a defect somewhere, which requires the immediate interposition of the government.
Under any system, from which the trial by jury is inseparable, as it is in ours, there must be some delay. Juries cannot be assembled for particular cases as they arise ; they must be drawn periodically, and in large or thinly populated counties, at considerable intervals. So much the more reason is there, that when the court does meet, and the jury are called together from different parts of the county, all the business waiting for them should be dispatched.
The Commissioners have inserted in their report, for the purpose of carrying out this principle, a provision requiring the judges of the supreme court in any district, whenever a court adjourns leaving business undone, to request the Governor to assign other judges for it, and giving power to him, to appoint extraordinary terms and circuits, as well as to assign judges to hold them. Is is quite certain, that the present delays in certain districts ought not to be longer endured. Should these provisions, for any cause, fail of securing the end in view, after the lapse of a suitable time, the Commissioners recommend, that the Legislature appoint a committee to investigate the cause of the delays, particularly in the first district.
Among other provisions of the code, will be found a chapter designed to furnish a summary remedy in a certain class of contracts, where the defendant has liquidated the demand, and given an ununconditional promise to pay it, or where it has been already settled by a judgment in a sister state. Thus upon a bond, promissory note, bill of exchange, or judgment of another state, the plaintiff may give notice, with his complaint, of application for judgment to a judge out of court, at any time not less than forty-eight hours afterwards, and if a sufficient answer be not then made, summary judgment must be given, and even if an answer be made, the plaintiff, on indemnifying the defendant, may have an attachment to secure his debt. So, upon a mortgage, there is provided a suinmary foreclosure, without action, more comprehensive and safe than the present proceeding by advertisement, and at small expense. Provisions are inserted, for the purpose of applying a remedy to the abuses in assessments, so far as can be done by the action of the courts. There are also chapters, for the discharge of insolvents in certain cases, and for a compulsory cession of their property, for the payment of their debts.
By means of the courts of conciliation, for which, in accordance with the constitution, provision has been made, many of the actions now brought for slander, assault, and others of the like kind, may be avoided, and by extending the inducements to a compromise during a litigation, actions commenced may often be settled before a trial. Thus it is to be hoped, there will be fewer cases, requiring the decision of the courts, and not more than they can readily despatch, as fast as they are brought before them.
Upon the subject of evidence, the change of the name of the writ of habeas corpus, and the organization and functions of the courts of conciliation, as reported, one of the Commissioners, (Mr. Graham), dissents : a dissent which his colleagues regret, but to which their views of their duty will not permit them to yield.
If the time given to the Commissioners, for the completion of their work, had permitted it, they would have introduced more detailed provisions for certain proceedings in surrogate's courts, and would also have prepared a book of forms to accompany the code.
The Commissioners are constrained to bespeak beforehand the indulgence of the Legislature and the People, for the errors and imperfections, which will doubtless be discovered in their work. When it is considered, that the two codes of procedure, civil and criminal, cover the whole ground of remedial law, and are intended to dispense with all previous statute and common law in that department, that they together constitute an entire code of remedies, the complement of the code of rights, and designed in connection with it to unite, as the constitution contemplates, in “ a written and systematic code, the whole body of the law of this state," the magnitude and difficulty of the work, and the need of the amplest indulgence towards its authors, will be admitted.
In laying down at last the great trust, with which they have been clothed, the Commissioners take this occasion, to make their most grateful acknowledgments to the People of the state, for that generous confidence and support, which could alone have sustained them.
All which is respecyfully submitted.
Albany, December 31, 1849.