Page:Harvard Law Review Volume 12.djvu/111

91 THE PRESENT AXD FUTURE OF EVIDENCE. 9 1 reform the proceedings in the courts of justice in this Common- wealth, except in criminal cases, subject to the approval of the legislature." It was unanimously adopted, and Mr. Curtis, with two other leading lawyers of the State, was appointed for the task. In 185 1 they prepared the draft of what has been since known as the " Practice Act." The commission proceeded cautiously, in some respects too cautiously, and consulted the bench and bar freely; their measure was accompanied by an admirable report of some twenty octavo pages, understood to have been prepared by Judge Curtis, which has still the merits of a legal classic, giving the reasons for their action. The bill was but slightly changed by the legislative committees to whom it was referred ; and it passed without dissent. It was a careful but radical change of the whole civil procedure of the State at common law. A few changes were made in 1852 by a repeal and re-enactment, but they left the law substantially the same, and Massachusetts has lived under it with success and great satisfaction ever since, making only occa- sional improvements. In Connecticut, in 1879, similar reforms were accomplished under the leadership of a distinguished lawyer, now a member of the Supreme Court of that State ;^ and other in_ stances might be cited in other States of our country. In England everybody knows of the great measures, under the general title of the Judicature Acts, which have been carried through in the last quarter of a century, under the impulse of Lord Selborne. But even without legislation, the judges have great power over the subject, direct as well as indirect. A system which mainly came into life at their hands and has been constantly moulded by them, by way of administering procedure, they can also largely re- shape and recast, if they will. But no court should enter upon this task that is not sure of its ground, that does not pretty well under- stand the history, nature, and scope of the existing rules, and see pretty clearly where it means to come out. With these preparations, however, the course taken from time to time by the English judges is, in a good degree, open to ours. By using strongly their power to shape the procedure and modify it by rules of court, they can, directly, do much ; and by discouraging an unjust and overstrained application of the rules of evidence, by construing them freely and in a large waj', by refusing to interfere with the rulings of the lower courts except in cases of abuse or of clear and important error, by ^ Hon. Simeon E. Baldwin.