A Practical Program of Procedural Reform provided for by statute in April, 1847, the commission appointed thereunder was organized in its final form in September, 1847, it reported its draft to the legislature in March, 1848, the draft, with some amendments, was passed about the middle of April, and the new code took effect in July, l848,——dabout
fifteen months after the statute creating the commission." From that time to the present the bane of procedural
legislation has been hurry." It is better to wait for the new act than to be forced to recur to the legislative deus ex machina after its enactment, to do what should have been done in the first instance. While no American state
may be asked to imitate the snail's pace of procedural reform that culminated in the English Judicature Act, where, beginning with 1826 and ending with 1874, five commissions put forth nine reports,“ nor the characteristic com
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developed by rules of court, I venture to think that the first principle which those who frame such an act should have in view should be to make it
unprofitable to raise questions of procedure for any purpose except to develop the merits of the cause to the full. So long as any advantage may be derived from the raising of procedural points as such, diligent and zealous counsel
will raise them and the time of courts will be wasted in passing upon them. We have the testimony of an American
observer of the American and the British Consular Courts in China, who saw them working side by side, that whereas in the American court we have "the wearying, formal, perfunctory round of motions and demurrers," in the British court, points of practice "being un successful in achieving any advantages,
such objections tend to lapse into disuse.”" The point, then, is to make
pleteness of preparation and slow going minuteness of execution that
the rules of procedure rules to help
marked the framing of the new German
through the courts, not, as Professor Wigmore has put it, “instruments of
Civil Code," the example set by the Commissioners on Uniform State Laws" should be before the eyes of legislators and codifiers in the future rather than the precedent of 1848. Turning now to the principles upon which a practice act should be drawn
and the lines it should lay out to be "Hepburn, Historical Development of Code Pleadindg, 83-88. 3‘In d one ma go further. Until the new German Civil Code, aste had marked the drawing up and enactment of all codes, and the total or artial failure of so many of them is chiefly attri table thereto. Cf. Austin, Notes on Codifica tion, uris rudence (5 Ed.), ii, 1035. “ rd ldon's Commission. 1826', Royal Com mission of 1829, 1830, 1832; Commission on Plead ing and Practice in Courts of Common Law of 1851, 1853, 1860', Chancery Commissioners of 1852, 1854, 1856; Judicature Commissioners, 1869. 1874. I’ See Mr. Smithers' historical introduction to the translation of the German Civil Code by Loewy (1909), and Mr. Schuster's pa r, “The German Civil Code," 12 Law Quarterly lift, 217. "See. for instance, the report of the Committee on Commercial Law of the American Bar Ass'n, 1909, Rep. Am. Bar. Ass'n, xxxiv, 523, 524.
litigants, rules to assist them in getting
stratagem for the bar and of logical exercitation for the judiciary."‘0 Al though it will not do the whole work,
a prime factor in achieving this result will be to distinguish between rules
intended to secure the orderly dispatch of business, on the one hand, and rules
intended to protect the substantial rights of the parties, on the other hand. The former, that is, rules intended to
provide for orderly dispatch of business with consequent saving of public time and maintenance of the dignity of tribunals, ought to be no concern of the parties unless under exceptional cir cumstances. It should be for the tribu nal, not the party, to object in such cases, and decisions with respect to such '9 42 Am. Law Rev., 745, 749. ‘0 Evidence, i. §2l.
