The Reform of Procedure
113
laughing when he looked a Roman Augur in the face; for the development
statutory rights which the courts are
of our own system of common law and
law; which suitors are entitled to demand because the law gives them. In some
equity is familiar to us all. We are now in about the same condi tion, as respects a great mass of technical
bound to respect because they are the
cases they may contribute to the attain ment of justice. In other cases they
and specific rules obstructing the course
may obstruct it.
of justice, as we were in 1848, when the was swept away by the adoption of the
apply the rule of justice because they must apply the law. These artificial statutory rights become the subject
Field
enactment
matter of special litigation intervening
which gave form to the procedure of
between the demand for redress and the attainment of it. The energies of attorneys and coun sel and clients, their time and labor, are devoted to these statutory proceedings instead of being addressed to the trial of the case. Pending the disposition of the multitude of motions which it is possible to make, and which in number are often in inverse proportion to the merits of the case, the final disposition of the case is postponed. Serious and long-continued delay is the result in many cases.‘ Witnesses die or leave the jurisdiction. Their memories become vague and the establishment of facts becomes more diflicult. Suitors become tired and discouraged, or their means
old law and equity practice of the state Code -— that
great
practically every American state follow ing the course of the common law, and which ultimately impressed itself upon
the slow-moving but considerate judg ment of the English people. We are now in about the same condition in this respect as was England in 1873 when the British Parliament passed the new
Judicature Act and yielded to the prin ciple of simplicity in litigation, the allegiance which she has ever since main tained and strengthened. Curiously enough, at about the same time when England adhered to the principles of the reformed procedure, we were taking the first great step towards the abandon ment of those principles by making the basis of our further development in pro
cedure the revision of the Code by my old friend, Mr. Montgomery Throop. There is but one way to deal successfully with
the condition resulting from such a process, and that is not by palliatives in procedure but by revolution in proce
dure. The New York enactment of 1848 was revolution. The British enact ment of 1873 was revolution. And it is revolution that we need now. Let me recall some of the effects of such a system as we now have, well known as they are to all of us. The
system of attempting to cover every minute detail with legislation appropri ate to every conceivable set of circum stances is to create a great number of
The courts cannot
are exhausted. Conditions change, and the relief, when attained,“ is often de
prived of much of its value. The facilities for delay afforded by this system lead to innumerable de fenses for the purpose of delay. These encumber the calendars and occupy the time of the courts, and prevent the hear ing and decision of honest controversies. The system tends to breed a class of Code lawyers, acute and subtle, practi tioners skilful in baflling the efforts of
honest men seeking to get their rights and with no conception whatever of the principles of jurisprudence or of the high duty of the advocate to secure substantial justice for his clients. At
their hands justice is easily tangled in
