second place. Thinking of the magic orator, the profound lawyer, logician and scholar, I recall Ben. Jonson's memorable words on the wonderful power of Lord Bacon, for they are all applicable to Mr. Choate: "There happened in my time one noble speaker, who was full of gravity in his speaking. His language (where he could spare or pass by a jest) was nobly censorious. No man ever spoke more neatly, more pressly, more weightily, or suffered less idleness, in what he uttered. No member of his speech but consisted of his own graces. His hearers could not cough or look aside from him without loss. He commanded where he spoke, and had his judges angry and pleased at his devotion. No man had their affections more in his power. The fear of every one that heard him was lest he should make an end!" And that was just the fear we all had when Choate was speaking,-lest he should stop, lest the sound of his perfect voice should cease, lest he too should make an end. I cannot but lament that those who have more recently put on the legal robes, and whose steps are yet on the threshold of life, can have no chance of ever hearing those magic tones which so thrilled the young students of my time, and realized to us that sovereign genius which unites the faculty of reasoning with the faculty of imagination.

My letter is already too long. Pardon my prolixity, and believe me, dear sir, most cordially yours, JAMES T. FIELDS.

THE NEW YORK SYSTEM OF PROCEDURE.

ITS THEORY, HISTORY AND PROGRESS IN THE UNITED STATES, ENGLAND AND INDIA. (Continued.)

WE

E have before pointed out in what respects the administration of law and equity differed; and since the Code has provided for a uniform course of proceeding in the pursuit of legal or equitable remedies, it remains for us to discuss in what manner the differences formerly existing in the two courts, as to pleadings, mode of trial, mode of proof, and mode of relief, have been harmonized or disposed of in procedure under the civil action.

In courts of common law originally the pleadings were oral; and the presiding judge so managed the mutual allegations of the two parties, that eventually an issue was produced, that is, a point reached where a fact was affirmed on one side and denied on the other. Subsequently, about the time of Littleton, the pleadings were reduced to writing: but the principle governing them as to the ultimate production of an issue remained in force as before.

tion of an issue remained in force, so that theu no retrospective examination was necessary to discover the point in controversy. This was made necessary, for the nature of the issue determined the mode of procedure by which a decision might be arrived at. If the issue were one of law, the judge determined it; if one of fact, a different tribunal determined it. Again, if the issue were one of fact, from various forms of proceeding the appropriate one must be selected.

Thus far the old system of pleading seemed admirable, for its simplicity was its great recommendation. It was the object of all judicial proceedings to produce this single, certain, material issue; but it soon began to happen, from the complex, artificial system of rules which sprang up, that the parties found themselves at issue on a point in no way involving the merits of the case. Then, by compelling the party to select one certain ground of defense, this system of special pleading excluded him from the use of other defenses which otherwise might be perfectly available. The same arbitrary rules dividing the forms of actions, and courts of law and of equity affected pleading too, until it became known as a science of "endless technicality, trivial niceties, and of excessive refinement and prolixity."

The great technicality and other defects growing out of this system of special pleading, were to some extent remedied by the permission of numerous amendments and repleaders, and very greatly by the introduction of general pleading, whereby the parties were allowed the widest scope in the proof of facts not appearing upon the record; but eventually, as we shall now see, these equitable provisions worked endless confusion.

In assumpsit the plea was non-assumpsit; but under this plea the defendant might give in evidence any thing going to show that the plaintiff had no cause of action at the time the suit was brought. Boyd v. Weeks, 5 Hill, 393; Young v. Rummell, 2 id. 478.

In a debt on a bond the defendant might plead that he did not execute the bond, and then show that he executed it under duress of imprisonment. Nil debet was good as a plea where nothing was due at the commencement of the action, and the defendant might give in evidence performance, or a release, or the statute of limitations. Thus the defendant, pleading by way of special plea, had it in his power to make it entirely uncertain to the plaintiff what the defense would be, who, in consequence, would be compelled to make elaborate and exact proof of the allegations the declarations contained. Moreover, the introduction of equitable principles in the statement of a cause of action worked parallel confusion. We have already seer: that, no matter how just might be the claim, nonsuit followed an improper choice of the form of action.

To obviate this harshness the old pleaders resorted to this device: Several counts, that is, several different statements of one and the same cause of action, were introduced; and in all cases where there were several counts, no matter whether there were several causes of action, or whether there was but one, on its face each purported to disclose a distinct and separate cause of action; so that, as the writers on the subject admit, there were as many causes of action as the declaration contained counts. Consequently, the evidence of a trial could alone make plain whether the

action, or upon several. Then, on the introduction of assumpsit, money counts were permitted to be used. They were designed to state every possible form of indebtedness which might arise in transactions involving the interchange of money; so that, in a suit upon a promissory note, where several of these money counts were used, no one but a skillful lawyer could know the real claim from the declaration alone. The action was often brought long after the transaction had occurred, and this fact would add to the uncertainty of the lawyer and client in ferreting out the nature of the claim, and in determining upon the character of the defense which should be interposed. The introduction of counts for labor, services, etc., framed with an intent similar to that of money counts, had a similar result.

In Rand's Chancery Jurisdiction this subject of counts is referred to, and he gives some very striking illustrations of the abuse of an equitable innovation. In one case there mentioned, there were 98 counts in a declaration on one pound notes. Upon notes for a guinea there were 286 counts, besides the money counts. More surprising than either of these instances was an action in debt for penalties, where there were 480 counts in one declaration. These cases occurred in the English courts, which were more lenient than ours in striking out all unnecessary counts; yet the judges refused, with costs, to reduce the number. Our own reports are evidence that use was made of this system of counts to an extent equal, at least, to that which prevailed in the courts of England. Then the statute of Anne allowed as many different pleas as one wished to make to the allegations of the declaration.

Our courts went thus far and even farther; for by our Revised Statutes several different replications were allowed to the same plea; and in The People ex rel. Bishop v. The Kingston and Middletown Turnpike Road Co., 23 Wend. 193, the Attorney-General replied to the plea with thirty replications.

Pleadings did not stop here in their intricacy and detail. After the replication there came from the defendant the rejoinder; then the plaintiff followed with the sur-rejoinder; the rebutter might then be introduced, and with the sur-rebutter the pleadings would usually end, though we can find no authority which fixed any limit to the pleadings. In theory the parties might go on with this cross-fire forever. The courts, moreover, placed the narrowest construction upon the language used, and required an absolute correspondence of proof and allegation. Rule after rule regulating the form of proceedings served but to mystify and confuse the whole subject, and the system of pleading at common law degenerated into a science of pedantic forms and clumsy machinery.

Stephen remarks, after stating at length various objections to this system of pleading: "Another objection to the system of pleading, and one more formidable, perhaps, than any that has been above suggested, is to be found in the excessive subtlety and needless precision by which some parts of it are characterized. The existence of these faults cannot fairly be denied, nor that they bring upon suitors the frequent necessity of expensive amendments, and sometimes occasion an absolute failure of justice upon points of mere form."

Said one of the greatest lawyers this country ever produced: "What with the common counts and the general issues, we have now in most cases really no

The objects alluded to in the last quotation were to facilitate the preparation of a case for trial, and to place the facts alleged, denied or admitted, in such a shape as to be most readily intelligible to judge and jury.

Now we have shown, we think conclusively, that rarely was any information conveyed to the respective parties of the nature of the demand, or the character and scope of the defense; and what was unintelligible to the parties themselves must have afforded little light to those who were to disentangle the law from this mass of verbiage, or to pass upon the facts.

How could our former system of pleading have rendered the claim or defense intelligible to the jury? Had there been but one single, certain, material issue, as was first intended, doubtless the praise so lavishly bestowed upon the common law system of pleading might in a degree have been merited; but when we remember that there were in nearly all cases several counts, and several pleas to each count, and again several replications to each plea, making in the end ten, fifteen, or, as in one case we have cited, thirty separate and distinct issues, this claim of merit as to its clearness and simplicity must, we think, be abandoned.

This

The eulogists of the old system contended, however, that the evidence on the trial made sufficiently clear the nature and extent of the claim and defense. may have been true where the object of the action was not wholly defeated by the excessive technicality of the old forms of pleading; yet we must remember that the trial always has this result, and that it should be the object of all pleading, by outlining that claim and defense, to provide in some degree beforehand for that result.

Moreover, under the old forms of actions, where a case having steered clear of nonsuits was prosecuted to judgment, the necessity that the jury should bring in a verdict, parts of which were not based upon, but really contradicted by, the evidence of the trial, seems not the absolute perfection of logic or good

sense.

In no better position was the court. The pleadings ostensibly were intended to separate the issues of law and fact; but the cumbrousness of the methods by which this result was sought to be accomplished, so clogged the way, that it became impossible to reach this end. The multiplication of issues, some material, others not, but the materiality of which only evidence could determine, surely was of little assistance to the judge in disentangling what should have been separated and arranged systematically for him beforehand.

The pleadings in the court of equity were more simple and direct.

The bill of the complainant corresponded to the declaration in a court of law. The bill was divided into several parts, termed, respectively, the stating part, the charging part, the interrogatory part, and the jurisdiction clause.

The extent to which the changes as to the determining of the sufficiency of pleadings went, was for a long time a matter of doubt and discussion, several distinguished judges holding directly opposed views in opinions in cases in the first half-dozen volumes of Howard's Practice Reports.

It is unnecessary for us to go into an enumeration, much less an examination, of these opinions, delivered at a time when, as a learned justice remarked, "with shaken nerve he started out to relay the foundations of the science of legal pleading," which in his opinion had been entirely broken up. It will be sufficient for our present purpose to state briefly why we believed the justice erred in supposing that the Code had broken up the real science of pleading.

When the wheels of the new legal machinery, unclogged by the bias and opposition of our judges, had begun to run smoothly, the incorrectness of many of the early views as to the object and effect of the Code reform became evident. Some part of this incorrectness we have already seen in our examination as to how far the distinctions of law and equity were abolished in the general amalgamation of the two systems of procedure. The commissioners in every part of their work show that they intended to abolish form, not substance. No fiat of a legislature could abolish the distinctions between law and equity. Their separate existence is inherent in the nature of things; and all the Code proposed to and did do, as we have endeavored to point out, was as far as possible to combine and blend the administration of law and equity into one system, adopting for the expedition of justice a remedy common to both, but leaving the inherent differences of each intact.

Apply now this principle running all through the Code to the point under discussion. Many of the old rules established in reason and good sense were of the greatest use for the furtherance of justice. Take, for instance, the old rules providing that pleadings should not be hypothetical, nor argumentative, nor untrue, nor in the alternative. These were rules which no one could reasonably suppose the Code proposed to abolish; for without them there could be no possible hope that the reform would touch any vital part of the old abuses. The Code moreover calls, in the complaint, for a plain and concise statement of facts constituting a cause of action, without unnecessary repetition, and makes similar provisions as to the language of the answer and reply; yet this result could never have been arrived at from the enactments of the Code, should there have been an abolition of those old rules, whose object was to secure directness and conciseness in the statement of the claim or defense.

Many of these rules were framed to regulate the proper introduction of testimony. "It is not necessary to state matter of which the court takes notice ex-officio," ran the old rule of pleading; and as a rule of evidence alone Greenleaf reproduces the rule intact. Chitty, under the old rule that "it is not necessary to allege what the law will presume," says that, in an action for words, as for saying a man is a thief, the plaintiff has no occasion to aver that he is not a thief; and it were idle to affirm that any different rule is in force under our present system of pleading. On the same principle, no one now would, in an action on contract, think of alleging that the defendant was not an infant.

All needless, arbitrary forms and rules were abolished; but the great principles of our common law,

whose existence was logical and whose intent equitable, remained as they were, untouched by the innovation of the Code; and the abolition of the rules of pleading went only to the abolition of those rules whose existence was made necessary by the retention of the forms of action.

To sustain our position, we quote in conclusion the remarks of a learned judge, in Buddington v. Harris, 6 How. Pr. 412: "The principles of pleadings, whatever the system, are always the same. Its office is to present the cause of action on one side, and a defense on the other. This is not less true under our present system than under the former. Names are changed, useless forms and technical rules are abolished, but the principles remain unchanged." To the same effect is the opinion of Judge Duer, in Fry v. Bennett, 1 C. R. 250. (To be continued.)

MAN

CHRIST AND THE LAWYER.

ANY towns boast of a rural beauty found within their precincts, which they display for the purpose of picture-making from a neighboring belfry or other available heighth.

If the town has sufficient age and the maples and elms have spread so as to "touch and kiss" from opposite sides of the street, the boast rarely fails of justification. Possibly the landscape is uniform in flatness, but that is relieved by the refreshing coolness of the shade suggested and the cheerful associations running along with it.

Not unfrequently in these pictures is seen, breaking up their sameness, the tall cone of the Lombard poplar, its slender form giving prominence to it in such places; but it associates no alluring shade and suggests heat and conscription and that which gathers to itself indeed but puts forth all efforts in one direction-upwards-and covers in the end when it falls merely a line on the earth.

Among men, every calling in life, the professions included, presents to the leisurely observer a similar picture; since in their divers aggregates men attain to about the same growth and development excepting here and there the swelling dome of an oak or the graceful form of an elm listlessly swaying above its neighbors. The view in whatever field taken, however, will disclose some zealots thrusting themselves sharply into sight, whether it lies among lawyers, physicians, clergymen, scientists or manualists. But zealots, like the Lombard poplar, grow only on a line; they thrust their root downward for support and their stem upward for glory. They serve in such scenes chiefly as comfortless breakers-up of flat uniformity. A zealous clergyman recently preached from an influential desk, taking for his text Luke x, 25: "A certain lawyer stood up and tempted him, saying, 'Master, what shall I do to inherit eternal life?'" He also read and commented upon the parable connected with this passage, as a part of his sermon.

If the Sabbath is a day for sweet repose and calm reflection, a delight, this clergyman did not improve the occasion rightly, nor allure any one into such enjoyments; nor did he present Christ as "The Great Physician," the "Balm of Gilead," so desired by all, but rather as the supernatural controversialist, who tripped and threw in the most admirable manner his interlocutor. Nor did the lawyer appear as a well-read scholar and disciplined thinker, devoted to the learn

ing of the law and eminent among his countrymen as such, but as an impudent and sharp-witted fellow whom it became necessary to meet and put down; nor was the lawyer made an unwilling witness, even, to the correctness of Christ's teaching and claims to the Messiahship, but a subtle trap setter, whom Christ caught in this net he had spread.

It is not proposed, however, to keep within the heated air of that discourse, and report so hot a philippic, but to get into cooler atmosphere and point out in this article some things very germane to the text which the clergyman did not say.

It matters little so far as the scripture lesson is concerned whether "lawyer" is the proper rendering of the original voμLos or whether it should be ecclesiastic as the Germans have it in their version, or legis interpres, "jurist," as Beza has it in his, since it doubtless means one skillfully versed in the jurisprudence of the Jews, or one thoroughly up in the Mosaic law; besides,

1st. The word tempted was the tap-root of the sermon in question, as it is of all others of like strain, and it was pushed earthward to steady the cone going skyward. But the word is an unfortunate and incorrect rendering of the Greek exeipa¿wv, trying, proving, whose root is eрa, proof, as in this sentence from Demosthenes τῳ πειραν ἔργῳ δεδωχέναι, the proof to be given by work. In Beza's rendering the word is tentans, testing. In the French it is eprouver, to prove, and in the German it is versuchte, tried. Vide Am. Bible S. Pub. in these languages. In short, the word does not predicate any ill, not even a questionable act or thought on the part of its subject, the lawyer. Nor does the context. The question put by the lawyer is in the first person, "what shall I do to inherit eternal life?" not what shall others do, nor in the abstract what must be done? It is a direct personal inquiry of the Master and about himself.

The lawyer reasoned doubtless, "I have observed this rabbi, his fame is all over the land. He is no ordinary person. He leads in the synagogue; when he rises no one else speaks. He invites inquiry, and answers with more than Solomon's wisdom. It is asserted that he is the very Messiah, but other men have claimed to be Him and have proved impostors. I know from my reading that the Messiah is to come, and it is of the utmost importance for me to know whether this one is He. How shall I determine it? He talks constantly of the eternal life, and we dispute among ourselves how we shall obtain that life. If he is the expected Messiah he certainly knows and will plainly tell. I will put to him a pertinent question. Accordingly he rose in the face of the synagogue and courteously propounded the question of a sincere inquirer.

Christ hears him in the temper in which the inquiry is made. There is no reproof, no unmasking a discovered duplicity in return, but a ready recognition of the learning and worth of his interrogator. Christ appeals to his already acquired knowledge and as to one who really did know and asks him "What is written in the law-how readest thou?" i. e., how, reading, understandest thou it? αναγινώκεις.

The lawyer and the rabbi are now in accord - the honor of being asked by so renowned a teacher-perhaps by the Messiah Himself to state before the people his knowledge of the law is accepted in all its worth. He does not hesitate. He knows the letter of the law, but he knows too qui hæret in litera, hæret in cortice,

and that that will not meet the requirement. He will answer by passages little quoted by the Jews of that day, but which express the spirit of all the law. And a wonderful answer it is. Christ immediately sets his approval upon it. How many sermons preached could Christ approve so fully? Not only does he approve and pronounce the answer right, but he adds "do this and thou shalt live."

This remarkable answer consists of two passages of scripture quoted from widely separated portions of the law and are brought into juxtaposition here for the first time on record. They express the doctrine of, not the liturgical Jews, but of accepted Christianity, and yet are taken bodily from the Mosaic law. The first sentence, being the words of Moses, is found in Deut. vi, 5, "Thou shalt love the Lord thy God with all thy soul and with all thy might;" and the second is part of the xivth verse of the 18th chapter of Leviticus, being the words of the Lord to Moses, "and thy neighbor as thyself."

These two propositions constitute a perfect syllabus of the law of Sinai - of the first and second tables the Ten Commandments.

2nd. It is a theological as well as a political truth, that a rule or canon has just such force and authority as the received interpretation allows it. Give to the Devil the interpretation of the scripture and it matters not that it is God's revelation, it will work no good. The Jews interpreted the word neighbor as they did all of the law so as to apply it to themselves only and to exclude all gentiles. A Jew should love a Jew and befriend him, but he might without violation of the received interpretation of the law hate and wrong a gentile. Thus we can see how wise and far-seeing was this remarkable man "a certain lawyer." He had eliminated from out of all the law the two propositions that perfectly expressed its spirit. There only remained the interpretation. The first proposition of his answer had come through the rough experience of the Jews to withstand all debate. It was correctly interpreted to exclude all idols and idolatry and inIcluded only the accepted Jehovah. But the second proposition was exposed to a misleading controversy― who was "thy neighbor?" He well understood the commonly received interpretation of the term and doubted it. Moreover, he saw that the Master did not, no more than had Jehovah in history, confine his beneficence exclusively to the Jews; and so he, willing to justify himself, asked "who is my neighbor?"

We have in "tempted" above and here in "willing" and "justify" correlative translations; so designed, doubtless, as to place an ill construction upon the motives of the lawyer in his questioning of Christ, a design that the narrative does not warrant and which the Greek does not at all sustain. The word "willing,” Beлwv,should be rendered desiring and “justify,” déxaíeiv, palpably means to set right-to set himself right, as used in connection with the accompanying pronoun, that is, to do that which is right.

Christ understood the lawyer, and answered him by the parable of the Good Samaritan, closing with the simple question: "Which now of these three thinkest thou was neighbor unto him that fell among the thieves?" And he said, "He that showed mercy on him." Then said Jesus unto him "Go and do thou likewise."

Thus this narrative discloses an occurrence in the history of Christ deeply interesting and instructive.