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Footnote 1: After reading this it is not so difficult to believe the account which Washington Irving, in Knickerbocker's History of New York, gives of Governor Wouter Van Twiller's mode of administering justice in the action of account between Wandle Van Schoonhoven and Barent Bleecker. The veracious historian says: "The two parties being confronted before him, each produced a hook of accounts, written in a language and character that would have puzzled any but a High-Dutch commentator, or a learned decipherer of Egyptian obelisks. The sage Wouter took them one after the other, and having poised them in his hands, and attentively counted over the number of leaves, fell straightway into a very great doubt, and smoked for half an hour without saying a word; at length, laying his finger beside his nose, and shutting his eyes for a moment, with the air of a man who has just caught a subtle idea by the tail, he slowly took his pipe from his mouth, puffed forth a column of tobacco-smoke, and with marvellous gravity and solemnity pronounced, that having carefully counted over the leaves and weighed the books, it was found that one was just as heavy and as thick as the other; therefore it was the final opinion of the court, that the accounts were equally balanced; therefore Wandle should give Barent a receipt, and Barent should give Wandle a receipt, and the constable should pay the costs. This decision being straightway made known, diffused general joy throughout New Amsterdam, for the people immediately perceived that they had a very wise and equitable magistrate to rule over them. But its happiest effect was that not another lawsuit took place throughout the whole of his administration; and the office of constable fell into such decay, that there was not one of those lousel scouts known in the province for many years." This famous judgment is only equalled by those of Sancho Panza during his governorship of the island of Barataria. Footnote 2: A survival of this is found in New Jersey, in the ultimate Court of Errors and Appeals, where several laymen are associated with the law judges. The abolition of the lay element is now being seriously agitated. Footnote 3: Possibly a survival of the Roman fasces. Footnote 4: What is ordinarily known as the "Dutch auction" (as Judge Daly points out) was when the auctioneer set up the property at an announced price, and gradually lowered it until he found a taker. In this way flowers and vegetables are still sold every morning at Covent Garden. (White's "England Within and Without," p. 108.) Footnote 5: Mr. Gerard, in "The Old Streets of New York under the Dutch," tells of an action waged by Domine Everardus Bogardus against Anthony Jansen Van Salee, as husband and guardian of his wife, Grietie, for slandering the Domine's wife, Anneke, the famous Anneke Jans Bogardus, whose heirs of late years have been trying to wrest her lands from Trinity Church. The latter lady had made some slighting remarks about the former lady, whereupon the former had retorted by alleging that the latter had unnecessarily exposed her ankles in going through a muddy part of the town. The court adjudged Mrs. Van Salee to make a public declaration, at the sounding of the bell, that she knew the minister to be an honest and pious man, and that she had falsely lied, and to pay costs and three guilders for the poor. The precise connection between the Domine's honesty and piety and the Dame's coquetry does not appear. Footnote 6: Giles Corey, one of the Salem "witches," was pressed to death, in 1692, for refusing to plead, and Jean Calas, in Toulouse, in 1762, was racked and subjected to the "torture of water" to extort confession of murder. Footnote 7: This act is in the first edition of the Colonial Laws, printed by Bradford in 1694, "the only perfect copy of which," Judge Daly says, "now supposed to exist is in the library of a private gentleman in New York." A copy is now in the State Library, having beets purchased last year by the State for the sum of $1,650. Footnote 8: Mr. Fowler thinks Smith not an impartial witness, having followed the political bias of his father, who was a leader of the popular party at this time. (Observations on the Particular Jurisprudence of New York, 23 Albany Law Journal, 291.) He says: "The late Judge Hoffman, who, years afterward, gave the subject the closest attention, seems to have had a very different estimate of the volume of chancery business in the Province, as well as of its comparative importance." The reduction of the fees, however, seems a very conclusive circumstance in favor of Smith's view. When the " fund" gave out in Farndyce v. Farndyce (Dickens Bleak House), the lawyers lost their interest, and when the chancery fees were materially reduced, it seems reasonable to believe, the lawyers may have resorted less frequently to a court so ungrateful for their attendance. Mr. Johnson, the reporter, in his preface to his Cases, describes the business of the chancery previous to the Revolution as small and unimportant. Footnote 9: Governor Hardy, who was a seaman, said to learned counsel who appeared before him to argue a demurrer to a bill in equity, "Gentlemen, my knowledge rotates to the sea; that is my sphere. If you want to know when the wind and tide will serve for going down to Sandy Hook, I can tell you, but what can a captain of a ship know about demurrers?" Footnote 10: It is a singular coincidence that seventy years later Alexander Hamilton, in People v. CrosweIl, should have urged the right of the defendant in a criminal accusation of libel to justify by showing the truth of the publication. Gouverneur Morris pronounced the Zenger case "the germ of the Revolution." Footnote 11: New Jersey still has a Probate Court called the Prerogative Court, and presided over by an Ordinary. Footnote 12: It is noteworthy that the Constitution did not expressly provide for the continuance of the Supreme Court and the Court of Chancery, but only impliedly recognized them, Mr. Fowler says (Observations on the Particular Jurisprudence of New York, 22 Albany Law Journal, 489): "The continuance of the Supreme Court of Judicature of the Province and the old Court of Chancery was evidently contemplated by the framers of the State government. The Constitution provided for the tenure of the judges of such courts and eis nominibus made them members of the future Council of Revision and of the Court of Errors; yet in no more direct way were these fundamental courts of the common law perpetuated. It is a noteworthy fact, that boils these high courts of justice, thus impliedly transferred to the new order of things, had been either erected or continued by virtue of ordinances promulgated by the royal governors of the Province without, and indeed contrary to, the assent of the Legislature. These ordinances had originally provoked hostility, for the Legislature maintained that the Governor had no power to act, in this regard, without their concurrence. It is highly probable the framers of the Constitution had abandoned the old objections to the ordinances founding these courts, which always bore a political rather than a legal complexion. Or, it is possible, that with the reverence formally felt for the common law, the theory—that the jurisdiction of the fundamental courts was derived from the common law—obtained, and they were considered as falling within such parts of the common and statute law of England as were adopted by the 35th section of the Constitution. However the fact may have been, these courts of general jurisdiction, in law or equity, continued substantially on their old foundations until the Constitution of 1846." Footnote 13: The following extracts from a letter written by Kent to Thomas Washington, of Tennessee, in 1828 (6 Albany Law Journal, 41), will be of interest: "When I came to the bench there were no reports or State precedents. The opinions from the bench were delivered ore tenus. We had no law of our own, and nobody knew what it was. I first introduced a thorough examination of cases, and written opinions. In January, 1799, the second case reported in 1st Johnson's Cases of Ludlow v. Dale, is a sample of the earliest. The judges, when we met, all assumed that foreign sentences were only good prima facie. I presented and read my written opinion that they were conclusive, and they all gave up to me, and so I read it in court as it now stands. This was the commencement of a new plan, and then was laid the first stone in the subsequently erected temple of our jurisprudence. Between that time and 1804. I rode my share of circuits, and attended all the terms, and was never absent, and was always ready in every case by the day. I read, in that time, Vattel and Emerigon, and completely abridged the latter, and made copious digests of all the new English reports and treatises as they came out. I made much use of the Corpus Juris, and as the judges (Livingston excepted) knew nothing of French or civil law, I had an immense advantage over them. I could generally put my brethren to rout, and carry my point, by my mysterious wand of French and civil law. The judges were republicans, and very kindly disposed to every thing that was French; and this enabled me, without exciting any alarm or jealousy, to make free use of such authorities, and thereby enrich our commercial law. I gradually acquired proper directing influence with my brethren, and the volumes in Johnson, after I became judge in 1804, show it. The first practice was, for each judge to give his portion of the opinions when we all agreed, but that gradually fell off, and for the two or three last years before I left the bench, I give the most of them. I remember that in 8th Johnson all the opinions for one term are 'per curiam. The fact is, I wrote them all, and proposed that course to avoid exciting jealousy, and many 'per curiam opinions are inserted for that reason.—Many of the cases decided during the sixteen years I was in the Supreme Court were labored by me most unmercifully; but it was necessary, under the circumstances, to subdue opposition. We had but few American precedents, our judges were democratic, and my brother Spencer, particularly, of a bold, vigorous, dogmatic mind and overbearing manner. English authorities did not stand very high in these feverish times, and this led me a hundred times to attempt to bear down opposition, or shame it, by exhausting research and overwhelming authority. Our jurisprudence was, probably, on the whole, improved by it. My mind, certainly, was roused, and was always kept ardent and inflamed by collision. In 1814 I was appointed chancellor. The office I took with considerable reluctance. It had no charms, * * * * It is a curious fact that, for the nine years I was in that office, there was not a single decision, opinion, or dictum of either my predecessors—Livingston and Lansing, from 1777 to 1814, cited to me, or even suggested. I took the court as if it had been a new institution, and never before known in the United States. I had nothing to guide me, and was left at liberty to assume all such English chancery practice and jurisdiction as I thought applicable under our Constitution. This gave me grand scope, and I was only checked by the revision of the Senate as a court of errors. I opened the gates of the court immediately, and admitted, almost gratuitously, the first year, eighty-five counsellors, though I found there had not been but thirteen admitted for thirteen years before. Business flowed in with rapid tide. The result appears in the seven volumes of Johnson's Chancery Reports. My course of study in equity-jurisprudence was very confined to the topic elicited by the cases. I had previously read, of course, the modern equity reports down to the time; and of course, I read all the new ones as fast as I could procure them. I remember reading Peere Williams as early as 1792, and I made a digest of the leading doctrines. I always took up the cases in their order, and never left one until I had finished it. This was only doing one thing at a time. My practice was first to make myself perfectly and accurately (mathematically accurately) acquainted with the facts. It was done by abridging the bill and the answers and then the depositions; and by the time I had done this slow and tedious process, I was master of the case and ready to decide it. I saw where justice lay, and the moral sense decided the case half the time. And then I sat down to search the authorities until I had exhausted my books; and I might, once in a while, be embarrassed by a technical rule, but I almost always found principles suited to my views of the case, and my object was so to discuss the point as never to be teased with it again and to anticipate an angry and vexatious appeal to a popular tribunal by disappointed counsel." Footnote 14: "God makes the folly, as well as the wrath, of man to praise Him, and the stupid enactment of the New York Constitution, which turned its judges out of office at the age of sixty, has atoned for all the injustice it wrought, by giving us Kent's Commentaries." —Browne's Short Studies of Great Lawyers, p. 225. Footnote 15: Johnson, the reporter, in the preface to his Cases, says that "sufficient materials could not be obtained for an authentic and satisfactory account of the decisions prior" to January, 1799. Footnote 16: The reporter, Johnson, in the dedication of the last volume of his reports to the chief justice, Spencer, said: "Those who in the course of their professional attendance on the court have observed your unwearied attention to the arduous duties of your judicial station; your promptness and facility in the dispatch of business; the readiness and ease with which you have penetrated and unfolded cases the most obscure and intricate, placing their merits in the strongest and clearest light; the force and precision with which you have stated and explained the reasons and grounds of every judgment; and your accurate discrimination and just application of the authorities adduced in their support,—know best how to estimate the extent and value of your judicial labors, and to do justice to the learning and ability for which they have been so eminently distinguished." These are strong words of praise from one perfectly qualified by intelligence and experience to speak of the subject. Judge Bowen Whiting said that he was once at the Tompkins circuit, held by Spencer. The calendar was taken up on Monday with forty eight causes. The circuit adjourned on Thursday, every cause disposed of. This reminds one of Ellenborough, who was said to go through the calendar "like an elephant through a sugar plantation." Daniel Lord, in an address on the death of Kent, reviewing the bench and bar of the early part of this century, spoke of "the sagacious, the complete Hamilton; the honest-minded Pendleton; Harrison, the learned, the elaborate; Hoffman, that ingenious, polished master of the advocate's art; the deeply-learned, wise, searching Riggs;" "Emmett, whose enlarged and extensive learning was equalled by his childlike simplicity of heart; Colden, the polite scholar, the speculative philosopher, the able lawyer; also that model of all that is valuable in our memory, Van Vechten, whose eloquence was Ciceronian, and charmed every heart; the terse, the highly-gifted Henry; the younger Jay, full to abounding in every noble trait; and that union of scholar, lawyer, orator and gentleman, John Wells;" "the ingenious, polished Livingston; the sound and judicious Radcliffe; Thompson, the honest, steady and staunch friend of all that was true and just; Van Ness, the accomplished man of genius; Platt, the sedate, the sober-minded; and last, he, who in every trait and lineament, in every part and member, was every way a giant, Spencer." Footnote 17: That admirable reporter, Johnson, in 1811, in the preface to his series of reports of the Supreme Court and the Court of Errors, says : "If works of this nature are found so indispensable in that country,"—England—"they are far more necessary in our own, where new questions every day arise, in the decision of which English adjudications cannot always afford a certain guide." "Though the English reports, published since the Revolution, will continue to be read by every lawyer who entertains a just and liberal view of his profession, as containing the opinions of judges of eminent learning and ability, expounding the principles of that excellent system of jurisprudence which has been adapted as the basis of our own, yet it may be observed that of the numerous questions decided in Westminster Hall, a small number only are found applicable to questions which arise here. We must look, therefore, to our own courts for those precedents which have the binding force of authority and law." Footnote 18: Daly's Judicial Organization. Footnote 19: In his address to the bar on assuming the duties of his office, Walworth disclosed the fact that none of the other judges would accept the office. (I Paige's Reports, v.) In this address he speaks modestly of himself as "Brought up a farmer until the age of seventeen, deprived of all the advantages of a classical education, and with a very limited knowledge of Chancery law." In American Insurance Company v. Center, 4 Wendell's Reports, 50, in the Court of Errors, he went out of his way to confess that at the time of the trial he had "a very imperfect knowledge of insurance law," and that his ruling then was wrong. Footnote 20: As examples of his wit and learning, reference may be made to his opinion in Nevin v. Ladue, 3 Denio, 437, on the question whether ale and beer are strong and spirituous liquors, and his architectural simile in Cutter v. Doughty, 7 Hill, 308. Footnote 21: Browne's Short Studies of Great Lawyers, 343. Footnote 22: In these he interspersed notes of wonderful learning and research; as, for example, those on lex loci and lex fori, in Andrews v. Herriot, 4 Cowen, 410; on quo warranto, in People v. Richardson, id. 100; on possession after sale, as evidence of fraud, in Bissell v. Hopkins, 3 id. 189; which are exhaustive monographs. Footnote 23: Mr. Austin Abbott has very lately observed, in reference to the pending agitation in New Jersey of the question of eliminating the lay element from the Court of Errors and Appeals of that State: "An unprejudiced observer who watches the course of adjudication in such courts, or studies their workings as manifested in the records of our Court of Errors, in which lay senators were able to determine the law again and again contrary to the accumulated and unanimous judgment and learning of the chancellor and the judges of the Supreme Court, can have little doubt, that while lay representation upon the bench may now and then prevent the harsh operation of a rule of law, it will more frequently introduce, to control the decision, elements which ought to have no influence in determining or applying the law; and no form of misadjustment in judicial machinery has more power to introduce uncertainty into the law and bring its oracles into disrespect than this. It is much to be hoped that throughout the country this old usage may wholly disappear, and the development and formulation of what is called 'judge made law' may be committed entirely to men thoroughly trained by study and experience for judicial functions.'"—New York Daily Register. Footnote 24: The supposed necessity for general codification grew out of a state of things, very vividly but perhaps rather extravagantly described by Senator Tracy, in 1837, in his opinion in the case of Wright v. Hart, 18 Wendell's Reports, 450, as follows: "I am getting to learn that the spirit of the age, which is disposed to consider nothing settled that it considers susceptible of improvement—a spirit which regards nothing as too ancient to be attacked—nothing as too new to be attempted, is extending its influences to the oldest and deepest-rooted principles of the common law. This event might not be so much regretted, if it were proposed to be brought about only through the open and responsible agency of legislation; but when pursued through the devious and occult process of judicial exceptions and qualifications, it becomes a subject of some solicitude and apprehension. Lord Eldon wisely remarked, that instead of struggling by little circumstances to take cases out of a general rule, it is more wholesome to struggle not to let little circumstances prevent the application of the general rule. But this principle, in modern times, has been so poorly maintained, that the profession of the law, it seems to me, is fast becoming a matter of memory rather than of reason and judgment; and the study of it is already so much more the study of the exceptions and evasions of general principles than of general principles themselves, that I am sometimes induced to think, that as a science the law would be better understood and as a rule of right more justly administered, if the reports of judicial decisions for the last half century were struck out of existence. We see continually, that the qualification or relaxation of a general principle, established by one reported case, is made the place of departure for ascertaining a new position in another, and this again in a third, and so on, until the original rule, the natural standard of the law, is obscured and utterly lost sight of, by means of intervening artificial measures of supposed particular justice. The consequence to be feared is, that judicial reports, instead of being what no doubt it is intended they should be, beacons and land-marks to guide the public into quiet havens of security and repose, may become false lights to decoy into the whirls and shoals of litigation. In speaking of the new and refined distinctions upon general principles, which in his day were multiplying, though in no degree so rapidly as since, Lord Mansfield remarked, that 'if our rules are to be incumbered with all the exceptions which ingenious minds can imagine, there is no certain principle to direct us, and it were better to apply the principles of justice to every case, and not to proceed to more fixed rules.' And much more may we say, in looking at the ponderous volumes of reported cases which flood the country, and are multiplying with a rapidity that no diligence can keep pace with, that rather than that the science of the law should have to be sought in the exceptions, qualifications and evasions of general rules, made and to be made by innumerable judges, the records of which are to be spread through thousands of volumes, it were better to abandon all attempts to preserve a written system of jurisprudence, and to revert at once to that species of administrative justice commended by Cicero, when 'amissis ductoritatibus, ipsa re et ratione exquirere possumus veritatem.'" As the number of reports has probably multiplied four-fold since these words were written, they will now be read with a degree of amusement. If codification should render the law more fixed and certain, there must at all events ensue a long, tedious and expensive period of construction, before the meaning of a code can be definitely ascertained. This, as we shall see, proved true in regard to the Code of Procedure. Indeed, the history of statutes shows that they are fruitful in litigation. The old statutes of frauds, limitations, and usury, and the modern married women's acts, have been among the most fertile sources of legal strife. Footnote 25: That very distinguished jurist, Hiram Denio, afterward chief judge of the Court of Appeals, in the preface to the fifth and last volume of his reports, said: "A new system of legal procedure has been introduced. Under the specious name of reform, and in professed obedience to a constitutional provision looking only to the modes of practice, all the divisions under which legal rights and remedies had been arranged, and the whole nomenclature of legal science, as learned and practiced in this court, have been abolished. The ancient simplicity of the common law has been made to give place to a system in which every case is made a special one; and the ancient and established principles of jurisprudence, illustrated and enforced in the series of adjudications of which this, volume is the concluding portion, can now only be found and applied by approximation, and a species of elective affinity, as tedious in its operation as it must be uncertain and fluctuating in its result." This opposition has by no means died out in other States, in 1879, Judge Orton, of the Wisconsin Supreme Court, in the case of Sengpeil v. Spang, 47 Wis. 29, observed: "This very material emission occurred through undue haste, want of intelligent consideration, or proper deliberation in the adoption of the New York Code, and through ignorance or disregard of the wisely considered and long established practice in this State, which it superseded and replaced; and is one amongst many omissions and Incongruities of that radical and revolutionary change of legal procedures." Chief Justice Ryan, of the same State, in so address to the law class of the University of Wisconsin, in 1880, observed: "This State is suffering today from a notable instance of unwise and unhallowed tampering with the common law. The system of pleading and proceeding in the courts of the common law, which had grown up with generations of lawyers and survived them, matured by the experience of ages, rested in the surest principles of logic and of law. It was, in some things, over technical. It has excrescences and absurdities—faults which embarrassed or impeded justice. But these were frailties not essential to the system, which might be easily weeded out from it. Else where they have been, leaving the hereditary wisdom, the adjudicated certainty of the system, redeemed from its defects. But in several States, as in this, it has been arbitrarily abolished—sacrificing the essential wisdom of the system for its accidental faults. And under pretense of simplifying the administration of law, and facilitating justice, there has been substituted for it a crude and mischievous theory, which, attempting to dispense with, skill, dispenses with certainty and security, embarrasses the processes of the law, unsettles much, far beyond its purpose, which was settled before; has vastly increased litigation and its cost; has impeded justice, and added to the uncertainty of the law. If it survive, it will need exposition for generations of judges, before its innovations, in all their scope and effect, will be settled; and then it will be more or less of an evil, as the courts shall have given it, more or less, of likeness to the system which it displaced. Its simplicity is a cheat. It is loose, not simple. Its plainness is a fraud. It is vague, not plain. It makes the remedies of the law a paradise of doubt and ambiguity." Prof. Tyler says, in his edition of Stephens on Pleading, that the "love of innovation carried its abolition in New York, and that other States have followed in this barbaric empiricism." Judge Cooley, of the Michigan Supreme Court, the celebrated author of "Constitutional Limitations," says, that the "works on common-law pleading are not superseded by the new Codes which have been introduced in so many States. After a trial of the Code system for many years, its friends must confess that there is something more than form in the old system of pleading, and that the lawyer who has teamed to state his cause in a logical manner after the rules laid down by Stephens and Gould is better prepared to draw a pleading under the Code which will stand the test of demurrer, than the man who without that training undertakes to tell his story to the court as he might tell it to a neighbor, and who never having accustomed himself to a strict and logical presentation of precise facts which constitute the legal cause of action or the legal defense, is in danger of stating so much or so little as to leave his rights in doubt on his own showing." Footnote 26: The pleader "seems to be continually laboring under the delusion that if he calls things by their right names something awful will happen; that he is wandering about the temple of justice in a state of enchantment, being bound to flank every fact by verbal circumlocution, for fear the use of a common word or a direct and simple phrase will wake him up, and tumble the temple about his head." "Many pleadings are apparently drawn with the idea that every allegation is forgotten or loses its virtue as soon as read, and so the pleader rolls along his snow-ball of words, growing bigger and bigger and more unwieldy and shapeless to the end. It is like the 'house that Jack built.'" "The Pyramids, the Colossus of Rhodes, the Simplon road, are well enough in their way, but if you want to get sit adequate idea of the industry, the ingenuity, and the perseverance of man, read a law-pleading. The Cretan labyrinth is not so involved; the Sphynx is not so mysterious; like a suspension bridge its middle rests on nothing, but it is continuous and self-sustaining; take an allegation out of the center, although it is just like a dozen others preceding it, and down goes the structure. Reading one of these pleadings is like crawling through a long and narrow tube—you can't turn around, but having once started, you must go through to the other end, or else back out."— Browne's Humorous Phases of the Law, 116, 117. As early as 1807 DeWitt Clinton thus expressed himself in the Court of Errors (Bayard v. Malcolm, 2 Johns. 572) "Though the system of pleading may be denominated a science, and contains rational, concise and luminous principles, well adapted to the elucidation of truth, yet it must be observed that it originated in a gothic age, when the light of genuine knowledge had shed but feeble rays upon mankind, when the jargon of the schoolmen had infected every branch of science, and when the subtleties of a false logic had completely bewildered the human understanding. Though purified and refined by the extension of knowledge, yet it still partakes, in some degree, of its original character. Distinctions without a difference, subtleties which puzzle and perplex without enlightening the mind, a minute, servile observance of forms and attention to words, without a due regard to ideas and matters of substance, are evils which ought to be banished from our courts of justice; they at least ought not to be countennanced in this court of dernier resort." The way in which justice was often defeated by technicalities of pleading is illustrated in the case of Bloss v. Tobey, 2 Pick. 325, where, for want of an innuendo in a declaration for slander, and in the absence of the power of amendment, the plaintiff was defeated beyond remedy. Chief Justice Parker said in this case, "In a matter of technical law, the rule is of more importance than the reason of it." The unfortunate pleader in this case was William Cullen Bryant, then a young lawyer, who in consequence of this defeat retired from the profession in disgust. In Titus v. Follet, 2 Hill, 318, Bronson, J., said: "Though this declaration is clearly good in substance, yet a certain form of declaring seems to be required by the books, which had better be adhered to for the sake of precedent rather than any obvious principle." "I do not see how we can avoid saying there must be judgment for the defendant." Footnote 27: This point was amusingly illustrated by the following, in the Albany Law Journal, of September 17, 1870,—vol. 2, p. 204: "In 1857 the Legislature of New York passed an act permitting parties to be sworn in their own behalf, but attempting to prohibit the privilege in cases where one party was dead or otherwise disqualified from testifying. As a matter of course, the ingenuity of the whole legal profession was at once set in motion to defeat the intention of the Legislature in regard to the excepted cases, and a flaw was picked in the phraseology. The Legislature at once rushed to the rescue, and has been rushing to the rescue ever since. This unfortunate section has been amended in 1858, 1859, 1860, 1862, 1863, 1865, 1866, 1867, 1869. The outbreak of the rebellion in 1861 distracted the attention of the Legislature in that session, and the interest excited by the crushing of the rebellion had the same effect in 1864, and in those two sessions alone for a period of eleven years we find a little rest for section 399 of the Code. This section has been a sort of statutory pons asinorum; a verbal donkey in the legislative circus that throws every Legislature that tries to ride it; an Eddystone light-house of law, always tumbling down; a Gibralter, defying besiegers. At first, the Legislature seemed to think the difficulty consisted in not having used words enough, and so for several years the act kept swelling like a sesquipedalian anaconda, with 'words, words, words. Having vainly tried this remedy for a series of years, in 1869 they suddenly changed their tack, and struck out most of the verbal stuffing, so that the skin of the act now hangs flabbily about it, like a collapsed balloon, or a lady's skirts after the abolition of 'crinoline. From forty-four lines in 1867, it dwindled to seventeen lines in 1869—a case of statutory emaciation almost unparalleled. The repose of 1868 did not seem to be congenial with its health. This new and strange artifice seems to have stunned the legal profession, for one year at least, but no doubt by next winter some ingenious fellow will have discovered some consequent defect, and the act will be called on again like the troubled sea that cannot rest, to cast up mire and dirt." The same statute has since been repeatedly amended. In his address, as president, before the American Bar Association, at their annual convention, at Saratoga, in August 1881, the Honorable E. J. Phelps, of Vermont, denounced the "fluctuation of purpose that deprives statute law of all stability. and alters, amends, reconstructs and repeals its enactments, from year to year, more rapidly than the courts can grope their way to a construction of the language in which they are couched."—24 Albany Law Journal, p. 165. Footnote 28: This result was predicted by Mr. Butler, upon the adoption of the Constitution. He said, in 1847: "There seem to be defects in the system, which no amount of ability or integrity in the judges can entirely overcome, and which will soon demand material and extensive changes." Footnote 29: "The sudden and unexpected death of Chief Judge Church, at the age of sixty-five, and at the height of his mental powers, crones with a painful shock to our profession and to our State. The death of any man, occupying for ten years the highest judicial position but one in this country, would be a striking event; but in this instance we are deprived of one who had for many years been a conspicuous figure in our State and Nation, and in his judicial post had commanded the respect of the community against the prepossessions and prejudices of many. When Mr. Church was taken from political life and put upon the bench without previous judicial experience and without even the reputation of a learned lawyer, the feeling at least among those of the opposite political party was that he was put there from partisan motives and would be controlled by party favoritism. It is but simple justice to say that in his case, as in the similar case of the late Judge Allen, this expectation was disappointed. Except in the Tweed case, we have never heard a serious accusation against either of these two eminent and lamented men, and they both died high in the esteem and confidence of the entire community. Judge Church suffered from the worst infliction to which a judge can ever be subjected, namely, the constant use of his name as a contingent candidate for the presidency. Doubtless this was a thing that he himself laughed at, but could not publicly prohibit. At all events, in spite of this, it is due his memory to declare that he has gone to his grave with the reputation of an honest and unprejudiced magistrate."—21 Albany Law Journal, 401. Footnote 30: 22 Albany Law Journal, p. 142. Footnote 31: A constitutional amendment is pending, to be voted upon in the fall of 1881, providing for twelve additional Supreme Court justices. Footnote 32: Much of the wide influence of the early decisions of this State was due to the excellent manner in which they were reported by Johnson, Wendell, Cowan, Hill and Denio. Several of the ablest judges have been reporters, namely, Comstock, Selden, Hand, Parker, Paige, Duer, Robertson, Sandford, Daly, Bosworth. It was believed by Johnson's contemporaries that he wrote many of the "per curiam" opinions in his reports. |
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