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In a commercial community, every thing connected with the administration of justice, and particularly the prompt and vigorous enforcement of legal liabilities, is so important, that no apology is necessary on our part, for calling public attention to a few observations on the subject. We do not now purpose to allude to criminal, nor to minor civil courts, but only to those of general civil jurisdiction, and the proceedings therein; a theme sufficiently copious for the limits of a monthly periodical.
After all the efforts of the legislature to promote the administration of justice, in this great commercial emporium, it must be admitted, with regret and mortification, that all those efforts have fallen far short of the accomplishment of the design, and that, at the present moment, every avenue to justice is practically choked up by the excessive accumulation of business; by the non-performance of the duties which devolve upon our courts.
is the obstruction, that the laborer is thereby deprived of the wages necessary for his immediate wants; the merchant delayed in the collection of his valid claims, until whelmed in bankruptcy and ruin; the widow and the orphan thwarted in the settlement of their estates, until rendered nearly or quite valueless by procrastination, or exhausted by fees and disbursements; and, though last, not least, the dishonest debtor, though solvent, deliberately incurs heavy costs of litigation, to procure the great delay thereby afforded, which hence becomes the cause, as well as the effect, of the great and unnecessary accumulation of contested suits. These evils, long and severely felt, and deeply regretted by every one at all conversant with the subject, have been looked upon as natural sequents of the late commercial difficulties, or as arising from defects in the laws organizing and regulating the practice of our respective courts. Few have inquired, and fewer have examined, to ascertain how far these evils might be obviated by proper exertion on the part of the judges, to whom the laws have confided the important trust of enforcing obedience to its mandates.
In England, with a population equal to the whole of the United States, two courts - the court of king's bench, and the court of common pleas - consisting of but twelve justices and judges in both, dispose of all the great mass of common law business arising in that great commercial nation. Here, the legislature has not been
wanting in the creation of a sufficient number of officers. In this city alone, are three law courts; a superior court with three justices; a court of common pleas, with five, and a circuit judge of the first circuit, comprising, beside this city, only the inconsiderable counties of Kings and Richmond; and each authorized to be kept perpetually open. Still, they are deeply burthened with an overwhelming load of pending litigations. In all the judicial circuits of the state, except the first, the circuit judges are ex officio vice chancellors ; but in this circuit, a vice chancellor is specially provided, to dispose of the equity business, thereby relieving the circuit judge of equity duties. Neither of these courts have the final disposition of important questions of law or equity, but the supreme court, or the chancellor, and the court for the correction of errors, beside, are occupied a great part of their time in determining questions carried up from this city. Still, the wheels of justice move tardily. They are so badly clogged, that they might almost as well stand still. More than fifteen hundred causes, arising in this one city, are in readiness for trial. Some of these have been ready for trial, or hearing, three to five years, and upward. More than fifteen thousand dollars' increase of costs and expenses is incurred monthly, from the delay; to say nothing of the immense amount of property locked up from use. Indeed, so enormous becomes the expense, and so many the new and unheard of items of fees, occasioned by delays, that lawyers, clerks, sheriffs, and judges, are beginning to be considered by many, as a common society of extortioners.
The evils of this delay are incalculably great. Must they be endured for ever? The alteration of the .constitution and laws is slow as a remedy, and is not of itself always effectual, as past experiments have abundantly shown. Can then these evils be obviated! This is now the question. Improvement in the manner and the energy conducting business, on the part of the judges, is a remedy, applicable at any time, to almost any extent; and if persisted in, will overcome every present obstruction, notwithstanding the defects in the laws themselves. Without the least disrespect to any of our judges, and certainly without any intention to reflect upon the motives of either, we shall venture to make some few observations touching the proceedings :
I. Before the vice chancellor of the first circuit; II. Before the circuit judge of the first circuit ; III. In the superior court of the city of New-York; and, IV. In the court of common pleas for the city and county of NewYork.
I. The creation of a vice chancellor in this circuit, to dispose exclusively of equity causes, was intended to remedy the long-complained of evil of delay in that department. From some cause, whether from the great increase of litigation or otherwise, the designed object has not been accomplished. On the contrary, with the protracted experiments of four or five years, and the application of the well-intended efforts of the present vice chancellor, this branch of our judiciary is more obstructed with business, and has less despatch in disposing of the same, than any other. At the October term, (1838,) the calendar was made up as usual in four classes, thus : First class, of bills taken
as confessed, fifty-two causes; second, of pleas and demurrers, thirteen; third, of causes on bills and answers, fifty-one; fourth, of causes on bill, answer, and replication and on pleadings and proofs, one hundred and seventy-two.
The first class of causes, with no opposition, merely formal foreclosures of mortgages, is summarily disposed of. Causes in the second class, usually require short arguments, as to the application of mere questions of practice, and perchance of law, to undisputed facts. The third class is likewise not tedious. It comprises those causes which the complainant is content to have argued upon the defendant's own version of facts. The fourth class embraces all causes wherein proofs are taken. All other causes have precedence to them. It might well be termed the 'deferred class.' It is the depositary of a huge mass of procrastinated business.
The first cause in this class, on the last October calendar, was at issue and ready for hearing, in 1828; the second, in 1831; the dates of issue of the successive causes range from that time downward to the present year. Thus it is plain, that this class now contains the bulk of the contested suits instituted in this circuit within the last seven years, and even longer. Beside these four classes of calendar causes, another class of business claims a share of the vice chancellor's attention. We allude to special motions. To this business, the second and fourth Tuesday in each month during vacations, and Monday of each week during terms, are devoted, in preference to all other business. These motions consist of preliminary applications to grant and dissolve injunctions, to appoint receivers, to set aside proceedings, etc., and in deciding which, the whole merits of causes are often successively considered and passed upon. With this amount of business undisposed of, and bearing constantly in mind the great injury suitors are suffering by delay, the vice chancellor ought to husband well his time, and, to that end, should prevent every unnecessary reading of papers, and preclude all prolix argument upon questions already well settled. He ought, generally, to be able to determine at once, on the statement of a case, whether there is any room for discussion as to the law, or for the detailed reading of papers as to the facts; and if none, the matter should be disposed of at once. By adopting this course, a justice of our state supreme court often disposes of some hundred and more special motions in a day; when, to have read the papers on which they are founded, would have consumed weeks. The vice chancellor ought to come into court early, and stay late, and never take papers
for examination, or consume time in writing opinions, except in cases of real doubt and substantial difficulty. Certainly, he should never spend time to give, much less write, reasons, merely to satisfy the party decided against, or to acquaint the bar or the public of his extensive erudition. There is more occasion for, and the less apology for the lack of, despatch of business before him. The amount of property locked up in his court is immense, and his decisions can be — and whatever his decision, in cases involving any considerable property and doubts as to equity, will be — appealed from, in spite of all learned reasons for his conclusions. The great object should be, to unclog the wheels of justice; to remove at once that great mass of causes, in which no real questions of law or of fact are pending; where nothing but downright wilfulness and fault of one of the parties invites the litigation. To draw a correct conclusion as to how far the vice chancellor acts up to these views, we will give a brief history of his proceedings, at the above-mentioned October term - a pretty fair
specimen of his modus operandi in doing business.
On the first day of the term, at twelve o'clock at noon, the vice chancellor took his seat, with a full bar in attendance, say seventy-five to one hundred lawyers, anxious for an opportunity to give their causes a jog. Instead of taking up business, even at that late hour, he proceeded, with great solemnity and due deliberation, to read his decisions in two causes. Thus he occupied one whole hour, incontinently supposing the members of the bar in attendance greatly edified, when in truth, vexed patience, and burning indignation at the unnecessary delay, obviously obstructed the hearing of a single sentence of these learned opinions, which were written, and might have been at once handed to the clerk, so that persons interested might examine for themselves. Is it not intolerable, that so many should not merely despair at the law's delay,' but should also be compelled to endure the vanity, if not the insolence of office, in thus consuming time to write, ay, to read also, these long yarns of legal disquisition The vice chancellor is not, however, alone in this unnecessary prolixity. It appears to be a distemper, almost universally prevalent with American judges. Our learned judges may have fallen into the erroneous supposition, that because the popular principle of our government dictates that political questions should be discussed in a manner readily to be understood by all classes of the people; and that, inasmuch as the mass of the people are the eventual judges of even the judicial decisions, they should therefore spin out their decision of a cause, as they would a speech to a popular assembly, just before election. But a judicial decision should, above all other things, be characterized by brevity, and a strict adherence to law and equity, without regard to popular notions. But to return to the vice chancellor. After delivering himself of the two learned opinions, he proceeded to hear a number of ex parte and other uncontested motions. These consumed but little time. After granting several decrees in mortgage cases, taken as confessed, which are mere matters of course, he actually reached the contested special motions, when three o'clock P. M. arrived, and the court, as in duty bound, adjourned for dinner; but, altogether unnecessarily, adjourned for the day. He might have held court three or four hours, at least, after dinner. Certainly it would not incommode him nor the bar so much as it does some of the litigating parties to have their suits postponed from term to term, and from year to year.
On Tuesday morning, at ten a. M., the court was again opened ; the special motions of Monday taken up, and actually finished, by three o'clock P. M. The court then adjourned till the next Monday; no doubt greatly overcome with the burthen of its immense labors ! The second, third, fourth, fifth, sixth, seventh, eighth, and ninth weeks passed off in pretty much the same manner, without a single cause in the second, third, or fourth classes being touched. On the tenth week, after hearing divers motions, the court adjourned for the term, having devoted some twenty days to special motions, two to taking decrees in suits not opposed; and not a moment to what should be the legitimate business of the term, namely, the hearing of really contested causes. What a perversion of justice! A court instituted by law to decide matters in controversy, deliberately determine to postpone all cases of real controversy! It will naturally be asked, what was the vice chancellor about, the residue of the time ? Was he idle ? Oh no! No doubt he kept constantly at work, after his way ; slowly plodding through endless papers, and writing opinions almost endless; oft times busily engaged in taxing costs, at one dollar to one dollar and fifty cents per bill, allowing injunctions at one dollar twenty-five cents each, and other similar business, appropriately appertaining to the office of a master in chancery. These last duties the law has improperly given the vice chancellor as a privilege, rather than imposed as a duty, to help make up an insufficient salary. Proceeding at this rate, what a hopeful chance of getting a cause, in the fourth class, to a hearing in the course of ten years! Under these circumstances, is it not the duty of the vice chancellor to quicken his own movements, shorten arguments, hold court more hours, plod less over cases, write shorter and fewer opinions, and read none, and thus put things on a better footing? Is it not intolerable, that he should sit and hear long-spun arguments on questions of practice, or upon any mere interlocutory motion ?—and more so, that he should, instead of deciding these cases on the spot, take the
papers, keep them under consideration for weeks or months, and then write and read solemn opinions thereupon ? If unable to do full justice to all, by the most satisfactory examination of cases, should he not divide the labors that he can bestow, so that all parties may get their proportion ?--and not allow those getting a chance to be heard, to take vengeance for the previous delay, by consuming as much time as they please? If he cannot, by some means, quicken the heretofore tardy footsteps of justice in his court, would he not do himself a credit, and give the statute a reproving commentary, by ceasing his ineffectual efforts, and resigning his office at once? In the mean time, we suggest as improve
1. Until all the old cases are finished, hold court every day at least eight hours.
2. Have certain hours in each day to attend to taxing costs, granting injunctions, and other chamber business.
3. Take the statement of counsel, that the proof of service of notices of motions is regular, or let the clerk examine before he files them, and not spend hours, every motion day, to hear the same read.
4. Hear a statement of facts on special and other motions, and not require papers to be read; never permit over five minutes' argument upon a motion, exclusive of the statement of the facts; take no papers; write no opinion; decide every motion at the time it is made.
5. In calendar causes, never write an opinion longer than merely to state the propositions, and a reference to, not a comment upon, authorities therefor, and certainly never read an opinion.
6. Never forget, for a moment, that hundreds are suffering grievous delay, and some almost starvation, for want of the efficient
exertions of the court.