By Irving Browne.
CURRENT TOPICS.
NOTHING could be more delicious than the passage in Mr. Chittenden's Reminiscences, in the October Green Bag, about Mr. Phelps' experience with the artless college professor who did not understand the true inwardness of the conspiracy and interrogatory clauses of a bill in equity for the foreclosure of a mortgage executed as collateral security for a prom issory note. It ought to make the shades of all the old special pleaders lighten up with something akin to unholy merriment. It would seem also that it ought to make .Mr. Phelps himself a little more lenient towards the shortcomings of those arch ene mies of the law, the codifiers. It reminds the Easy Chair of the arduous struggle that those persons and their predecessors had in overthrowing the old sys tem in the State of New York, and in substituting for it a single court and a system of pleading in which, as Mr. O'Conor gravely urged, a demurrer "is a very dangerous step/' Probably nearly all lawyers nowadays will join in laughing over Mr. Chittenden's anecdote, and even the hold-backs of the profession will unite in saying, '1 Oh! of course nobody believes in that nonsense in these times: but let them ask themselves how long since those ingen ious and useless lies ceased to be precious and essen tial, and how long they propose to cleave to much other ancient rubbish, including the hoary absurdity that the laws cannot be reduced to a written expres sion. The forms of pleading that Mr. Phelps was forced to observe in his youth sprang up and were cherished in the ages when the chancellor and the judges answered certain of the calls of nature pub licly in a corner of the court-room. In those times, and even in comparatively recent times, it was deemed sinful to have a stove in the religious meeting-house, the hearers depending for warmth on the flames of hell kindled by the imagination of the preacher in the pulpit. Probably the great body of lawyers on both sides of the ocean have ceased to believe in hell and chancery, although in some cases of exceptional depravity, they might still deem the torments of either not cruelly excessive. Once in a great while the voice of the taudator temporis acti comes to us wailing on the current of contemporary thought; some he-Rachel mourning for his demolished temple
of justice with its two doors, and his lost pleadings. Such an one comes just now from England. At a recent meeting of the Incorporated Law Society, at Manchester, Mr. Walter Pence stirred up the echoes of his middle-age as follows : — "Looking back for a period of fifty years since I first entered into the law, — forty-five of which have been hard practical experience, — I find a consolation in the reminis cence of the old style and technicalities of legal proceed ings in those days. The era of John Doe and Richard Roe of declaration, plea, replication, new assignment, rejoinder, surrejoinder, rebutter, and surrebutter, and all the fictions of that time, come back to one's remembrance with some pleasurable feelings of the quaint and good old times. There is no doubt that in the remote past I refer to, we can hardly in the present day realize the remark able position legal practice then attained. Imprisonment for debt — the ease when upon oath a debtor was arrested and the opportunities afforded for the abuse of the law's prerogative — do largely startle our present sense of jus tice and equity; but after all the progress in improvement of legal procedure and the practice of legal qualities are only consistent with the general progressive movement in every department of human industry during the past fifty years. To go with the times is assuredly a laudable de termination; at the same time old practitioners cannot dispel from their memories the delights thcv experienced in the quibbles and fictions the law then provided. At length the man perceives ' this vision ' die away And fade into the light of common day. I quite admit the improvement, but I do not condemn old-established usages. And here comes the question. Are we advanced in honesty of purpose and desire to act justly and with integrity? I am not certain whether liti gation nowadays does exhibit an earnest purpose to seek the law only for protection, and whether the old fictions are replaced by a more solid foundation. Is not the mndern practice in many instances a delusion? Do not the technicalities of the law give occasion to exercise the power they command for unworthy ends? If we refer to the trials taking place in our courts at the present day, we do not perceive the civilizing influence of new rules and improved judicature. Trials now last several days and weeks, and the public time is sadly wasted in an endeavor to unravel fraudulent schemes and unsavory scandals. An enormous mass of evidence is produced, — witness after witness called to fortify some glaring statement, very prob ably the reverse of truth, and the whole range of procedure leading to a protracted and almost endless litigation. The
