Page:The Green Bag (1889–1914), Volume 07.pdf/29

 10

one, then for the first time executed," and conceded " that the testator thoroughly knew the rule and appreciated its force," citing Van Cortlandt v. Kip, 1 Hill, 590, in which, it seems (although the Court did not allude to it), Mr. O'Conor himself had contended for that doctrine! But the great lawyer did not suffer from the citation of his own contention as in the Tweed case, for the court steered him out of the diffi culty by applying the rule that the testator's clear intention to the contrary of the usual inference must prevail. In effect they held that in the light of the circumstances it would be absurd to suppose that Mr. O'Conor meant what he had said! It is noteworthy that Judge Rapallo, who wrote a concurring opinion in the Tweed case, did not vote in this case. CODIFICATION. It is amusing to read the following in Mr. Bigelow's paper: "He said that as far as he knew, he as much as any one was entitled to the credit of originating the reform of our system of procedure in 18478, the abolition of forms of action, and the abolition of the Court of Chancery. He said he made the plea for those reforms in the Constitutional Convention of 1846. He would on no aceount, he said, elaim for him self, or have anyone elaim for him the eredit of these, but he was quite willing to be instru mental in defeating the pretentions of any other person to their authorship. The line of remark had been suggested by the news then just received that Governor Cornell had ve toed the Field-Throop Civil Code' — an act on the governor's part with which he repeat1 There is an inaccuracy here : there never was any such thing as "the Field-Throop Code." The implication that Mr. Field ever collaborated with Mr. Throop would plant a thorn in Mr. Field's pillow and cause the ample ghost of Mr. Throop to wander at night, like Hamlet's, in search of an avenger. What Governor Robinson vetoed, was Mr. Throop's code of civil procedure (with which Mr. Field had nothing to do), and Mr. Field's three codes — the penal code, the code of criminal procedure, and the civil (gener al) code. It was this fell swoop that caused such "sat isfaction " to that ardent " reformer," Mr. O'Conor!

edly expressed the greatest satisfaction. Recurring to this subject of codification later, he said he doubted whether our civil law could be codified successfully; he in clined to think it could not,' and proceeded to place his doubts upon grounds substan tially the same as those which have been more recently set forth in Mr. James C. Carter's exhaustive and masterly discussion of that subject."2 To set up Mr. O'Conor, or for him to set himself up as the originator, or even as a champion of our practice codifica tion, is ridiculous. Old lawyers will not have forgotten his celebrated letter on code plead ing, and his avowal of his utter inability to "state the facts " in any case, and his fling at " the pleadings which come from the office of the chief codifier himself." But even according to Mr. O'Conor, as stated in Mr. Bigelow's paper, the old system of pleading was at least as bad as the new, for he said " he never knew a case in which the parties had been pleading for an issue a year that he could not find a defect of sufficient gravity to set their proceedings aside." In that letter Mr. O'Conor bewailed the new system because " a demurrer to any plead ing under the Code is a very dangerous step," and " there are no precedents which would be of use to one beginning to draw pleadings under the Code." It is difficult to imagine the state of mind of a lawyer who approved a system of pleading in which it was not " dangerous to demur." But Mr. O'Conor prided himself on his skill in plead ing. Mr. Carter assures us : " His pleadings were beautiful examples of art, and in his 1 Mr. Bigelow informs us that John C. Spencer once proposed to him that he join him and Benjamin F. Butler in preparing a code of the common law, but facing the probability that " they would conclude that the fruits of their labor would not be worth reporting to the Legisla ture," they abandoned the idea. They were too modest. 2Whether to indicate his approval or his disapproval ol the old system, or his opinion of his own skill, does not clearly appear, but he told Mr. Bigelow that " he never knew a case in w hich the parties had been pleading for an issue a year, that he could not find a defect of suf ficient gravity to set the proceedings aside."