The Green Bag .
440
an efficient, independent, experienced judiciary, almost any system of procedure may be made very tolerable. Without them, the best considered
of that state, "English authority did not stand very high."' Not only had
practice acts will prove disappointing in their actual administration. In the second place, experience has shown that reforms of procedure must not come too soon and must not go too fast for bench and bar, who are to administer
reasonable to expect that a generation
them.
Much of the difficulty which
has attended the operation of the New York Code of Civil Procedure and the codes founded thereon has arisen from the circumstance that the reform was
premature. The bench and the bar were not ready for it. For one thing, the old procedure was not yet so thor oughly tested under American conditions
as to afford a sound basis for reform. We must remember that when, in 1847, the commissioners were appointed to
draft the New York Code of Civil Procedure, there was scarcely half a
century of useful experience in the administration of justice in America
the old practice been in effective opera tion too short a time, but it was un
which had just thoroughly learned the English practice, and learned to apply it under American conditions, should
abandon it over night or give up its fundamental tenets without a struggle. The reform of 1848 too often fell far short of the needs of present-day ad ministration of justice. But where it did go to the full extent, judicial jealousy
of legislative derogation of the common law and professional tenacity of hard learned conceptions of English procedure
operated to restrict, if not to defeat it. Many common-law ideas in procedure have been worked out to their logical results for the first time in judicial
applications of the codes.‘0
To-day.
after more than a century of American experience, after the country as a whole has been settled and developed and conditions have become stable, we are
to draw upon. Written opinions began with the appointment of Kent as Justice of the Supreme Court of New York in 1798. There was a lay Chief Justice in Rhode Island as late as 1820, and
much better prepared for effective reform of procedure than in 1848. But we should be warned by the example.
one of the Justices of the Supreme Court
to achieve a complete and thorough going reform at one stroke may very well have the same results today.u
of that state from 1814 to 1818 was a blacksmith. Two of the three Justices of the Superior Court of New Hampshire
New York was a too precious and too
ambitious pioneer, and over-ambition
Thirdly, no amount of procedural re
after independence were not lawyers.
form can obviate entirely dissatisfaction
New Jersey and Kentucky at the end of the eighteenth century legislated against citation of English books in the
with the legal administration of justice. Administration of law without forms is as impracticable and undesirable as
courts.
There was a rule of court to the
same effect in New Hampshire.
In the
latter state, one of the Justices in the
last decade of the eighteenth century used to boast that he had not read Coke or Blackstone and never would read them. Kent tells us that in New York, while he was upon the supreme bench
“ For the details with reference to this and the foregoin statement, see my pa r "The Influence of Frenc Law in America,’ 3 I . Law Rev., 354. 10 See Mescall v. Tully. 91 Ind.. 96; Rust v. Brazen, 101 Me., 586; Lumber Co. v. Wadleigh, 103 WlS., 318; Anderson v. Chilson, 8 S. D., 64; Coxey v. Ma‘jor, 8 Okl., 665. _ l E. g. it was a considerable time before the Judicature Act in England could be made to work well. See Judge Harris‘s book, “Farmer Bump kin's Lawsuit,’ where many curious examples of the earlier workings of that statute are given.
