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son from imprisonment, or an extinguishment of the debt by the consent of three fourths of the debtors; and the judges have always maintained the integrity and constitutionality of these laws, when the contract was entered into subsequently to the passage of the law, in opposition to the sophistications of the United States Court.
Upon the whole, with the exception of the law of real property, and the doctrine of warranty in contracts, there is more seeming than real ditference between the great body of the civil law and the common law, as modified by equity. It might be inferred a priori, and the state of things attirms the inference, that among civilized nations, the natural sense and wants of mankind must lead to the same conclusions on subjects daily brought home to their apprehensions and feelings. The error is, that a system of law adopted for and by a barbarous people, in a simple, warlike, and rude state of society, is yet retained by a people who are now in a high state of civilization and refinement; that the various and involved affairs of a nation are yet to be regulated by rules wholly insufficient to meet their variety and complexity. Endless have heen the statutes to alter and change so as to meet the new situation and condition of mankind. The expedient of a court of chancery, and the adoption of a system of equity, have alone enabled the people to tolerate and live under what is denominated the common law.
This has produced a cumbrous and awkward machine for the administration of justice. The point is not so much that of changing any part of the law, but whether the law should throw off its cumbrous and ridiculous forms, its inapplicable maxims and rules, and be new modelled into a plain, clear, and beautiful system of regulations for the government of society. That man must be perversely ignorant who would pretend to deny, that the present state of jurisprudence in England does not wholly differ from the state of the law when the barons made their resistance to clerical usurpation in the famous speech Nolumus leges Angliæ mutari, and that the difference is owing principally to the adoption in part of a system of law which was then rejected. The common law is no longer the common law, except in the retention of useless forms and maxims—it is preposterous to call it so after so large a portion of the civil law has been engrafted under the title of equity. Let any man conversant with the subject, read Sugden's Vendors, and the Chancery Reports, and he will find how much has been bor. rowed without acknowledgment for the loan, and how much even the law of real property has been modified by civil law
principles. On the other hand, the civil law has borrowed the institution of juries, the examination of witnesses viva voce, and the whole law of evidence.
Blackstone has compared the common law to an antiquated castle, which has many spacious apartments, although the entrances are narrow and inconvenient. It may be asked, who would live in an antiquated castle when he might inhabit a convenient, elegant, and simple modern mansion, having not only spacious apartments, but easy and noble entrances, and a beautiful arrangement. It is a most convincing proof that some change is necessary, that the language of all the ablest writers on the common law, from Lord Coke down to this time, is the language of apology for its cumbrous awkwardness. Blackstone himself regrets, that some more simple procecding is not adopted in place of the inconvenient fiction of a forcible ejectment.
Of the entrances to the temple of justice we will now speak.
The practice is exceedingly simple. There are no particular forms of action. The circumstances of the case are stated in a short, perspicuous manner. There is no inducement to verbiage or tautology, as the attorney gets neither more nor less whether his petition or answer be long or short. The defendant admits or denies, compensates, and even sets up a claim wholly distinct if he pleases, viz. pleads in re-convention. Thus, if a defendant is sued for the price of a horse, he may not only deny, compensate, &c. that particular demand, but may, in his answer, exhibit his claim against the plaintiff for a carriage sold him, and obtain judgment as in an original suit against him. Any number of causes of action, however different in kind, may be joined in the same suit if they belong to the same individual. Compensation, or set-off, is allowed, whether the defendant acquired his set off before or after suit brought, or even after judgment, under an equitable regulation as to costs. Either party may interrogate the other with the same effect as in chancery. This rule should be amended so as to make him appear in person before the judge or jury, and submit to a regular examination, where his adversary requires it.
An action for the possession of land is brought as any other, and the plaintiff is bound to attach copies of his titles to his
petition. In like manner must the defendant, if he relies on writ. ten title.
If any one is turned off forcibly, he recovers possession and damages, by suing within a year, without regard to title; the defendant may then institute his suit for the property. In any
other case, the defendant can always turn an action for the possession, into an action for the property, by setting up title.
Actions of boundary are brought by plaintiffs, setting forth that he owns adjoining the defendant, his title, and what he insists to be the boundary between them. The defendant sets forth his title and claim of boundary. Whoever fails pays costs; or if the boundary of neither be established, but some other, the costs are borne equally.
These proceedings are wonderfully simple, compared with the fiction of ejectment.
Judgment is never rendered for one thing in order to get another. Bonds are given for the sums really due, and you recover judgment for that with the interest from the time of nonpayment. The fiction of losing and finding is not resorted to, but a simple statement is made that defendant is in possession of your property, and refuses to give it up.
If a suit is instituted without the amicable demand, viz. a demand, with a threat of a suit, plaintiff pays his own costs. With certain exceptions as to suits for immovables, partitions, &c. the defendant can only be sued in his own parish. If the judgment is for a specific thing, it is enforced by attachment and distringas. Injunctions are granted by the special order of a judge, on a petition sworn to, and on giving bond to answer in damages.
Sequestrations of particular property to which plaintiff claims right, are obtained on similar terms. The appearance in court of an absent defendant, who has left no sufficient at. torney, is enforced either by attaching, or by sequestrating his property and revenues; this last mode is more particularly used, when the object is to litigate the title of real property, and the defendant is an absentee. In all cases where the legal appearance in court of an absent person is coerced, and he does not appear
person in due time, the judge appoints an attorney of the court to defend him, and makes to him an allowance out of the property in proportion to his labour, and the importance of the matter.
The petition is served with the citation or writ, and the defendant has ten days after service to answer. The courts are open all the year to originate suits and return process, and eight months for the trial of causes, There are no juries in civil or criminal cases, unless one of the parties chooses to demand trial by jury. One half if not three fourths of all suits are tried by the court alone; so far as the trial by jury is desirable, it is more within reach in Louisiana, for there it may be resorted to in every suit; here, in all chancery suits, it is at the pleasure of the chancellor. Attachments create a lien in favour
of the creditor attaching, whether resident or non-resident, and executions reach credits, moneys, stock, and every kind of right and interest. There is neither issue roll nor judgment roll, nor continuances, except on the minutes of the clerk—the suit is tried on the original papers, and the judgment is signed on the original petition, and entered in the minutes of the court.
The Court of Appeals revises, whether the judgment of a judge, or the verdict of a jury, as to fact as weil as law, and gives damages for frivolous appeals. When they reverse the verdict of a jury, they either direct a new trial, or decide the case themselves finally. In the exercise of this discretion, they have never used this high power where there is contradictory evidence, and seldom unless the evidence be all documentary, and the verdict clearly the result of prejudice or feeling, nor ever in cases of pure damages.
Appeals are taken up by a statement of facts agreed on by the parties, or settled by the judge, as the testimony is taken down by the clerk. But the verdict of a jury may be made final by submitting facts, as it is called, somewhat similar to issues out of chancery-it then resembles a special verdict; even in this case, the circuit judge can order a new trial. It is not too much to say, that the Court of Appeals is at present composed of men equal in ability to any similar number of judges in the United States. Suits may be terminated with great promptness where there is no excuse of absent witnesses, commissions, new trial, or similar cause of delay, and it is fol. lowed up by the attorney. A suit can be instituted in the court of the first instance in the city, and finally decided by the Court of Appeals in three months. There are no separate courts of chancery, nor are they at all necessary. The principles of equity are embodied with the law. No state where the common law exists in any thing of its primitive condition, can be well governed without distinct courts of chancery.
The bar receive no compensation in the shape of fees or costs—each client remunerates his own advocate. All copies of petitions, papers, &c. are made by the clerks, and served by the sheriff, and the profession have little manual or peripatetic drudgery to perform. A few notaries do all the convey. ancing. As there are no folios to be paid for, every thing is done in brief. The abolition of taxed costs or fees, or the substitution of some graduated per centage, would effectually destroy the multiplication of words without knowledge. This improvement would wonderfully diminish the expense of suits -it would be a labour-saving machine-four fifths of the wri. Vol. I.
ting now used would be dispensed with ; but it might also diminish the number of attorneys. It would not at all affect the higher class of advocates—the profession must be paid. A case of practice for decision seldom occurs, as there are no attempts to quibble a party out of court, and because there is no end to be answered by it.
I have thus given you a rapid sketch of the state of the law, and of the adininistration of justice, in Louisiana. No one pretends that it is perfect; parts are retained from respect to the feelings and prejudices of the ancient population of the country; but it contains the great ingredients for completing a system as perfect as humanity will admit. That it is vastly superior to the system of law administered in most of the other states, I entertain no doubt-it is infinitely more simple, and better adapted to the state of society. I have heard lawyers express the sentiment, that it mattered not to them wbat the law was—it was their business to live by its administration. With such men, and with such sentiments, my soul holds no communion. I despise the man who would not, if he could, infuse into the minds of men the spirit of peace and justice, which would render unnecessary judges, courts, and their appendages, as I would the physican who would refuse to create an atmosphere which would heal all diseases. The evil may be lessened. An approximation to perfection is within reach, and to that the ambition of honourable men should be directed, much more than to private gains. In another letter I will give you my views on the practical advantages of reducing law to a written code. Your obedient servant,
LETTER II. SIR—With regard to the advantages to be derived from reducing the law to a written code, permit me to speak in measured and explanatory terms. That the reduction of law to a code can ever dispense with the necessity of the profession, and enable every man to be his own lawyer, is an idea which every one who understands the organization of society, will pronounce weakly theoretical, and if practicable, would never be practised. The subdivision of labour, which is found so advantageous to all classes, forbids it—the degree of complexity necessarily attendant upon any system of law which is to adjust the rights of individuals in a complicated state of society, forbids it. But that it would render law, as a science, more