Page:The Green Bag (1889–1914), Volume 07.pdf/30

 Charles O Conor. later years, when he had more leisure, to draw a bill in equity or an answer was a genuine delight to him." (The italics are mine.) What a pity to have all this spoiled by the compulsion to " state the facts "! It is true that Mr. O'Conor, in the Consti tutional Convention of 1846, favored the blending of law and equity in one form of procedure, but this was the only point on which he was in harmony with the reformers, and this was not original with him. (See the letter of Hon. David Dudley Field, in the foot note.1) 1 " Two great measures of legal reform have been undertaken in New York, one the reform of procedure, the other the codification of the Common Law. In re spect of the latter, I have never heard that Mr. O'Conor advocated or approved such a codification. "In respect of the former, all that he ever did, so far as I know, was to advocate, together with several other members, on two occasions, the blending of law and equity in one form of procedure. The only proposition he made was to offer the following as one of the judiciary sections : ' A code of procedure in civil suits shall be established within two years, subject to alteration by law. The Supreme Court, subject to control by law, shall establish uniform rules of practice for all civil courts in this State, except the Court of Appeals.' His speech on that occasion contained among other things the following, which may be taken as his most pointed utterance on the subject : — The Convention had been informed by the chair man that the committee had determined by a considerable majority to bring together the administration of what was called law and equity and to direct justice in these two forms to be administered in the same courts, acting, as the chairman informs us, in some measure under the idea that at some period these two forms or methods of administer ing civil justice might be perfectly blended, so that there should no longer be recognized or known such a distinc tion as law and equity — a distinction which it must be admitted it would be highly desirable to abolish. He deemed it an evil that we should have recognized in the constitution by an express provision the truth of that saying which the unlearned in the metaphysics of law or legal practice are apt to indulge in when they find fault with a legal decision — to wit, that law is one thing and equity or good conscience is another. He thought there was no ground for the distinction, and that civil justice in all its forms and phases might be and ought to be adminis tered in the same tribunals and in one uniform mode of procedure.' — Argus Report, p. 378. "It thus appears, that these views had already been discussed in the Convention and so stated by Mr. Kuggles, chairman of the committee on the judiciary. Once after wards, on the 10th of August (p. 440), the question came up again, and Mr. O'Conor repeated the same views, and at the same meeting Mr. Stetson offered the following, page 444 : —

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"' And to the end that ultimately the jurisdiction of law and equity may not be separately administered, and that the two may be blended into one harmonious system, the legislature shall provide by law, as far as may be, a common form of procedure for remedies arising under both jurisdictions.' "See also pages 486 and 560 of the Argus Report of the Convention. In both instances his motion was de feated, and I do not find that he returned to the subject. Finally he voted against the Constitution altogether (page 838). He seems to have given law reform the go-by ever afterwards. If he once lifted a linger to help it, the move ment is unknown to me. The real authors of the two lawreforming provisions in the State constitution were Mr. Campbell P. White, a New York merchant (see pages 77, 82, 460, 642), and Mr. Levi S. Chatfield, a lawyer from Otsego, afterwards Attorney General (see page 643). Other members of the Convention held and advocated similar views, such men as Mr. Hoffman, Mr. Taggart, Mr. Nicole, Mr. Harris, Mr. Kirkland. "So much for the Convention of 1846, and Mr. O'Conor's action therein. My part in law reform is partly explained in my article, published in the ' American I-aw Review' for August, 1891, and afterwards separately pub lished. But even this does not tell the whole story. From the time that I came to New York as a law student I have had hold of the subject, more or less. The idea of a code is older than Justinian. It is the taking it up and carrying it to a successful ■ accomplishment that is the real task. * Hie labor, hoc opus est.' Long before the Con vention of 1846, that is in 1842, I submitted a reforming scheme to the Legislature, which was the forerunner, if not the cause, of the movement in the Convention. "I went to O'Conor to get him to sign the memorial to the Legislature which begot the first code of civil procedure, after I had obtained the signature of ViceChancellor M'Coun, and Mr. O'Conor said coldly, 'I suppose I must sign this.' That I suspect was his last and only act in support of law-reform. This memorial was as follows : — "' To the Senate and Assembly of the State of New York : "'The memorial of the undersigned, members of the Bar in the city of New York, respectfully represents that they look with great solicitude for the action of your honorable bodies in respect to the revision, reform, simpli fication and abridgment of the rules and practice, plead ings, forms, and proceedings of the courts of record. They are persuaded that a radical r«form of legal procedure in all its departments is demanded by the interests of justice and by the voice of the people; that a uniform course of proceeding in all cases legal and equitable is entirely practicable, and no less expedient; and that a radical reform should aim at such uniformity, and at the abolition of all useless forms and proceedings. "' Your memorialists therefore pray your honorable bod ies to declare, by the act appointing Commissioners, that it shall be their duty to provide for the abolition of the present forms of action and pleadings in cases at common law, for a uniform course of proceeding in all cases, whether of legal or equitable cognizance, and for the abandonment of every form or proceeding not necessary to ascertain or preserve the rights of the parties.'" Mr. Field also wrote, in a letter to the New York "Evening Post," in January, 1846, five months before the convening of the Convention, as follows: —