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defence which is blown to atoms by the judge, so soon as the modest counsel can command his gravity, to shape it into words—or perhaps a set-off is made out, amounting to some few dollars.
Now, will we be told that there is no prevention or cure for this ? no means of checking or lopping this luxuriant perjury? According to the present approved form of affidavit, we say, no : because there is no possibility of fastening an indictment for perjury upon this defendant on his merits ;-he swears to that which cannot commit him, because, according to a certain Island mode, he swears to his belief,--not even disclosing the name of the keeper of his conscience, his " counsel"--which equivocal word a dishonest man may reconcile, in various in. genious ways, to meet the exigency of his case.
But we ask, cannot this precious affidavit be placed within the reach of criminal law, so as to punish the swearer, and expose his " counsel,” by disclosing facts relative to the first, and the name of the latter ? Undoubtedly it might: and a few convictions would soon destroy this injurious and infamous “ Practice."
An argument is often used in favour of delay-that, by its means, justice is more thoroughly administered, --for it is a tyrannical act to take money out of a man's pocket, without long, painful and elaborate investigation. Pleasant ! Is the money,
the rascal counters” of the community, more tenderly and tediously to be dealt with, than the life or liberty of a citizen, in a free country? If an offence, of any degree of enormity, is committed by an individual, he may be tried, convicted, imprisoned, or hung, within twenty days after the offence-a period thought only sufficient for the writing of two words, in a civil suit!
The next complaint is, that more business is pressed on the court than it is able to despatch: This is true, and we believe it; for it would be difficult to find more industrious, upright, and faithful officers, than the Judges of our Supreme Court. But why does not this grievance admit of the same remedy, as all others where the labour is more than the labourers can per. form? If a merchant cannot transact his business through the agency of five clerks, he hires as many as his necessity requires. What is there caballistical in the number, five? or where the bounden necessity of confining ourselves to a single Court ? If business require it, why not change our petty Common Pleas court of the city of New York into something similar to the Common Pleas of England ?
From what we have stated, the dullest man of forms--the
veriest stickler for insensible delays—must perceive that there is a fault somewhere, which requires some better apology for continuance, than the length of time we have suffered under it. The expense is greatly increased by delay,-costs are increased-interest is often lost-and the use of money, which is frequently irreparable. Nay, advisedly we assert, that disadvantageous compromises of just claims are often made, rather than to encounter the tardy justice of a Supreme Court recovery.
In order to show the feasibility of the reform we urge, let us take the following fact: The protracted misery of the notorious delays incident to courts of Equity is well known. It bas frequently been the subject of professional pleasantry : When Mr. Justice Buller refused Mr. Erskine some equitable relief for his client, saying, “ you must go into a court of Equity;" the advocate, with a melancholy face, replied" and would your Lordship send a fellow-creature there ?" Now, we state it to be a fact, well known to the bar, that a final decree, in a sharply contested suit in the Court of Chancery of this state, in which proofs are taken, and interlocutary business had, all-all this can be done in less time than is devoured by a common suit in the Supreme Court of this state! This shows, strongly, that an earnest and active desire, accompanied with the power to get through business, is superior to the great delay that necessarily waits on being, as Lord Bacon expresses it,
over formal.” The present Chancellor has even reformed delays of practice in court,-he suffers no long cases to be read, on the opening of a cause—but directs the question to be concisely stated, and the bill, answer, and other documents, to be referred to in the process of argument, Now this might furnish a hint to a court, where interminable cases are suffered to be read-drawn up with a clumsy indexterity, which might lead us to suppose they were manufactured at the composing frame of the professor of Laputa Nay, if we were to conclude from the apparent listlessness of Judges, while the process of perusal is inflicting on them, we would say, that not only time, but temper, would be gained, by adopting the Chancellor's "economical reform."
Another cause of injury and vexation to suitors, grows out of the usual mode of removing causes from the courts of Common Pleas to the Supreme Court. There are two courses in most cases, at election : the one grossly dilatory, expensive and complicated—the other, expeditious, cheap, and simple. Now, as causes are, in the majority of instances, removed for the purposes of delay or annoyance, the former, " in the superfluity of
paughtiness," is invariably selected. The first mode, by a writ of Habeas Corpus, removes the body of the defendant in that particular cause, from the jurisdiction of the lower, to the higher court. This operation is generally performed on the extreme confine of legal possibility to do it, which is “ before one of the jury summoned to try the cause shall be sworn :" and that is, after a persecuted plaintiff has fought down every obstruction both of form and substance, special bail, exceptions and justifications, inde numherless ten day rules, orders to stay pleadings, conditional testimony, &c. and perhaps attended a couple of terms in the vain and weary hope of having his cause reached : Then, when it is finally“ on the calendar for the day,” just before a juror is “ sworn,” the wily defendant pulls his writ out of his pocket, -which confines the duty of the lower court, to informing their superiors that they have inflicted the justice recommended by the writ upon the plaintiff, by imposing upon him the hardship of a useless, expensive, and tediously technical proceeding, destructive to right, and senseless in science-And so closes the first campaign, in the dusty fields of justice. The effect of the writ being, as we before stated, only to remove the “ body,"-in due time, the plain'iff finds this adverse writ returned: this fact the Supreme Court will not expose the procurer of the writ to the trouble of loading his recollection with. So the plaintiff, as in duty bound, gives him a polite, long, notice of twenty days, that he must submit himself to the Court he has voluntarily sought; or be turned out of it. This he does, by putting in bail : and the proceeding may thenceforth be as tedious as in all other cases.
The other neglected and despised mode is, by "Certiorari.” This excellent and wisely-constructed writ, brings up the record below,—that is, it removes the cause from the lower Court into the higher, in the same state it was below. If the plaintiff had there stated his grievance-his statement avails him above. If the cause is there at issue, and ready for trial-on its transmission, it is also prepared for investigation and decision.
Now the latter writ, for the last mentioned purpose, is never used. Why? Because sixteen years since, the Judges declared its prompt, inexpensive, and beneficial excellence, and showed clearly to the public that its use would never substantially answer the object of defendants, viz. delay and vexation. As this is a glaring grievance, it will naturally be asked what is the remedy? We answer--the judges may, by rule or otherwise, insist on the Certiorari being exclusively used, or they may indirectly promote its use, by subjecting such a writ of Habeas Corpus to expense, or difficulty of procurement. This reform would effect iwo advantages : First, by preventing the de
lays and dangers of “ Habeas Corpus”-secondly, it would be a direct check to all vexatious removals of causes; because, the limited delay of “Certiorari," would not compensate for the expense, in cases where procrastination was the only object of the party bringing it.
Nothing is more curious than the whimsical irregularity of public economy-a laughable disproportion between effort and advantage. If the salary of an officer is a few dollars beyond the pinching propriety of reform, an outcry is raised against this wild waste of public money: so with respect to costs, &c.--but here, we have a deep, silent, unnoticed, and steady flowing current of grievance, -of expense incalculable,annoyance the most prolonged and painful--and all, for want of a reasonable regulation, that violates no right, and restricts no remedy, having for its objects, diminished expense, and increased despatch. Why such abuses should have so long, and so insensibly continued in “ Practice," it is not easy to discover: but, it is full time to be wiser; and, to oppose common sense and necessity to plausible reasoning. When Doctor Caius pulls Simple out of his closet, and Mistress Quickly excuses him by saying, " the young man is honest," the Doctor replies with unanswerable propriety, “Vat shall de honest man do in my closet ?” A law suit is a serious source of vexation to the injured party. By its delay, frequently, testimony is lost-the recovery diminished, or sometimes made wholly worthless. Surely that voice should be listened to, by which such injuries may be reproved and remedied.
A well compiled book, according to the title of that of Mr. Dunlap, was much wanted in this state for those which previously existed, only encouraged error in nourishing it by authority. This work professes to be a treatise upon the practice of the Supreme Court; but Mr. Dunlap could not confine himself to such a narrow and unambitious field; accordingly no branch of the law is unassailed by incursions. Our complaint is, that he is too learned, and learned out of place; because those persons who consult bis book, on points of practice, do not require any such disquisitions on profound points of law-and those, whose labours lead them to the examination of these subjects of scientific complexity, Mr. Dunlap may be assured, will not consult his voJume for aid, nor, by such application, obtain the aid they require. Law is a science, and science is only successfully to be studied by examining its parts in order, and thoroughly comprehending them as we advance : we wish Mr. Dunlap to reflect on this undeniable truth, before his next volume appears, or another edition of this. There is a great deal of difference between telling much, and telling much that is useful, and we feel satisfied that this
gence of himself.
book is as much calculated to terrify a student at law, as Butler's Analogy to frighten a youthful theologian.
Without going into detail, we would generally suggest, that for “ parties to actions,” and all that undue proportion of Mr. Dunlap's book, which treats on “ pleadings," we would refer the stadent to the guidance of Mr. Chitty; who has so occupied the ground over which Mr. Dunlap again travels, that when the latter gentleman edited“ Chitty on pleadings,” the fewness of his notes, silently conveyed the fact of the excellence of Chitty, or the negli
It is said of an Oxford fellow, that when he was at prayers, he was heard to return thanks for makers of dictionaries. The piety of practitioners may well warm over the pages of Mr. Dunlap; for though we are satisfied that he has compiled much that is superfluous, yet in relation to practise, he has afforded a useful advantage to students and practitioners. The practise of the Supreme Court of this State, is, for the first time, by this gentleman collected and displayed, with adroitness, and accuracy. On this subject Mr. Dunlap has acquitted himself well, and exhibited the result of an experience, laborious, learned and acute. The objection will not be considered serious, which amounts only to this, that where much was required, more than the requisition bas been performed.
If we should fail in convincing this gentleman generally, as to the unnecessary prolixity of his work, and the advantage of " diminution;" we would suggest that he should abridge his book, chiefly for the benefit of students: such a work would be extremely useful to the profession, and profitable to the author-and as Mr. Dunlap can do it much better than any who would probably undertake it, we would be sorry to find both the public and himself injured, by an imperfect performance from another hand.
ART. IV.-A New System of Cultivation, without lime, or dung,
or summer fallows; as practised at Knowle Farm, in the county of Sussex, [England: by Maj. Gen. ALEXANDER BEATSON, late Governor of the Island of St. Helena, and Honorary Member of the Board of Agriculture. Republished by Cary & Son, Philadelphia.
When men first engaged in agriculture, the only rule they had, was to obtain from any given quantity of land, the greatest possible product. Nor were they long in discovering, that to do this, the earth must be pulverized, and the weeds suppressed or extirpated. To accomplish these ends, the hoe and the plough were invented and employed. But a succession of crops, frem the same field, soon exhausted it; whence arose