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But the rigidity which made them effectual for this purpose will make them, in a more settled order of things, an equally stubborn obstacle to improvement. Archaic justice binds the giants of primeval chaos in the fetters of inexorable word and form; and law, when she comes into her kingdom, must wage a new war to deliver herself from those very fetters. This conflict of substantial right and formalism is never exhausted; it is a perennial adventure of the Common Law, and perhaps the most arduous of all.
It has long ceased to be plausible, if it ever was, to regard strict insistence on form as a degeneration from some better pattern of justice which our remote ancestors were supposed to have followed in a simpler golden age.
Persons who talk of primitive simplicity, if any still do, confound rudeness of instruments and poverty in execution with simplicity of ideas. Prehistoric language, customs and superstitions are exceedingly complex. If there was ever an earlier stage in which they were otherwise, we know nothing of it.
The Genius of the Common Law - Online Library of Liberty
The history of modern culture is, in essentials, a history of simplification. Now formalism in law and procedure seems to have two roots, one rational and the other irrational. The rational ground is the need of a hard and fast rule to make it clear that the law is the same for all men. Suitors in the early age of regular justice are highly suspicious of personal favour and caprice, and will not hear of giving any room for discretion. As they apprehend it, a Court once allowed to relax the customary forms could make of the law itself whatever its members and managers for the time being pleased.
The irrational ground goes back to the oldest form of superstition, older than both statecraft and priestcraft, the prehistoric belief in symbolic magic. It is assumed that words have in themselves an operative virtue which is lost if any one word is substituted for any other.
He who does not Edition: These two motives, jealousy of personal authority and superstitious worship of the letter, are as different as possible in origin and nature, but they are by no means inconsistent. Rather they have been a pair of hands to tie the magistrate fast in bonds woven with the double strand of magic and policy.
Its operation is not at all confined to legal proceedings. Neither of the motives now mentioned will go very far towards accounting for the actual origin of ceremonies and formulas. For that purpose other causes would have to be discussed, and in particular the taste or instinct which leads men to clothe their collective action in dramatic and rhythmical shapes; an instinct not without a practical side, as the symbols it creates are both impressive at the time and easily remembered.
Ritual of one sort and another answers to a desire that lies pretty deep in human nature. But the further analysis of this, whether simple or complex, would help us very little just now.
Certainly it would not explain why legal forms, or any form, should be treated as invariable, for that is by no means a universal attribute of ceremonies. It is quite possible to have a type of ritual, even elaborate ritual, with considerable room for variations; longer and Edition: It is no less possible to be strict in matters of detail without holding that a slip is fatal.
Opinions differ as to the value of smartness in drill and equipment beyond what is positively needful, and some officers have been martinets. But surely no commander ever went so far as to tell his subalterns on the eve of going into action, that the battle would infallibly be lost, if a single button was awry.
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Therefore it seems to me that we must not be tempted to dally with the aesthetic history of ritual at large. It is too remotely connected with our specific subject of legal formation, and we may leave anthropologists to settle its proper place and importance in their own learning. There is an important distinction to be noted in the ways of early Germanic and probably of other procedure.
It is not correct to say that everything was formal, but rather that, whenever form was required, no relaxation or amendment was admissible. When the members of the Court originally the whole of the assembled free men had the means of acting on their own immediate knowledge, they could act without any form at all. Thus, in criminal justice, the manslayer who was pursued and caught red-handed was put to death without ceremony: Thus, in civil matters, it seems the county court could itself bear witness to a disposition made by a landholder whose right to make it was admitted, and then give judgment accordingly.
An external standard was demanded, but not in the rational sense in which my friend Justice Holmes has taught us to use the term. In this manner we find that formalism is at its strongest in archaic methods of proof, while executive acts, partly but not altogether by the necessary reason of their nature, are to a great extent exempt from it.
Now as to proof, the archaic view of it is quite simple. I do not say evidence, because there are no archaic rules of evidence; the conception is unknown. Evidence is offered with a view to leading a judge or a jury to some inference of fact which may determine or help to determine the decision of the case as a whole. But the archaic proof comes after judgment, not before. It is adjudged that John or Peter is to make his proof.
Not that he is bound to make it, as a modern student is tempted to think, but that he is entitled to make it, that he has the prerogative of proving as they said in comparatively modern Scottish practice. The Court awards proof to one or the other party, and then he is in possession of the cause. Let us suppose that the proof is by oath, which is the most regular and instructive case.
There is a process by which the adversary can stop the oath if he will, at his peril, challenge the swearer and his helpers as incredible.
He may seize the hand before it is uplifted to swear, or before it touches the relics on which the oath is to be made; he may bar the way into the church by stretching his arm or his sword across the door.
Herein, as in all steps of archaic procedure, he acts, at best, at his Edition: But he must act at exactly the right moment. The oath, once begun, may not be interrupted. On the other hand, the oath-taker and his helpers, when they have begun, must perform their parts exactly, not only in word, but in gesture. In the case of battle, the parties have an equal chance.
As for the man sent to the ordeal, he is already half condemned; if he were of good repute he would have claimed, and would have been allowed, to clear himself by oath. What he gets is a last chance of escape, and a better one, apparently, than most moderns would guess. I have never met with any case of such an offer ripening into performance, and I strongly suspect that they were not seriously meant or taken.
Neither ordeal nor trial by battle could be reduced to strictly ceremonial proceedings. And yet it is abundantly clear that trial by battle in civil cases did from an early time tend to become little more than a picturesque setting for an ultimate compromise.
Also we read of much incidental and preliminary ceremony: But it does not appear that every detail was essential, or that the Edition: Perhaps even in the fourteenth century, certainly in the sixteenth, it was an antiquarian pageant in which little mistakes were very possible. On the last occasion when battle was waged, in the early ninteenth century, 1 a fearfully and wonderfully adorned glove, supposed to be of medieval pattern, was thrown down in Court.
It was remarkable for having no fingers at all, 2 which would have been incorrect in a writ of right, but some one may have thought it was the proper practice in an appeal of felony. Long before this, however, the picturesque aspect of the ceremony had prevailed over the real archaic faith which takes adherence to every point of form in dead earnest. There is already something consciously romantic about the latter generations of the Middle Ages.
Perhaps this was not the least fatal symptom of decay. Such were the strange guardians among whom our lady the Common Law was born and cradled. For they were true guardians in their day. Caprice, even well meant and at Edition: Better even bad rules than a rule which is not of law. It was a great and a true word that Jhering spoke when he said: But the guardians became tyrants when, in a community growing civilized, the judicial results of a semi-magical ritual ceased to be tolerable, and the so-called judgments of God were openly deemed unjust alike by men of war and by men of religion.
Their ways could not be mended; they must be broken, and a new body must be fashioned for the justice which in its old embodiment was too visibly blind even in the eyes of twelfth century suitors. The masters who were no longer protectors but oppressors must be fought with and overthrown if the law were to be made an organ of living righteousness. Truly the spirit of our infant laws had need of a mighty champion.
It was written of the Church that kings should be her nursing fathers. No less truly might it be said of the Common Law. Indeed, we should be speaking almost literal truth if we said that our lady the Common Law never had much trouble with the forms of archaic proof.
By the time she had got to serious work they were hardly more dangerous than Giant Pagan. Proof by oath lingered through the Middle Ages, and much later, in the wager of law, but in so many ways hampered and discouraged that it is already something of a curiosity in the sixteenth century.
The real danger was more insidious. The ancient rigid formalism was dead but not exorcised, and the ghost of it walked, in some jurisdictions it still walks, disguising itself under more or less plausible reasons of logic or expediency. Without letting ourselves be too much entangled in the maze of technical details, let us now see how this came about. The king did not want to make it cheap; it had to support itself and be a source of revenue.
It was not to be had at all times or at all places; the commissioners of assize carried it round the country, but at considerable intervals. As for the older visitations of itinerant justices, the justices in eyre as they were called, they were quite as much bent on collecting fines, and discovering the irregularities which bred them, as on improving the administration Edition: Their appearance was certainly not welcome in the latter days of the thirteenth century, if it ever had been; and in the course of the fourteenth century the cumbrous machinery of the eyre was wholly superseded by the more convenient jurisdiction of the justices of assize.
When we speak of their jurisdiction and methods as supplanting those of the county court, it must not be understood that the process was sudden, or was ever logically completed.
Our lady the Common Law is not like a tidy French housewife whose broom sweeps out all the corners; one doubts whether she ever will be. Remnants of archaism, wager of law and such like, hung about the older forms of action. So far as it had a free hand, it did not charge men with crimes on suspicion and drive them to clear themselves, if they could, by absurd and precarious tests. It did not decide civil controversies by counting oaths or by competition in exact knowledge of verbal formulas.
It did make some serious attempt at ascertaining facts and applying intelligible rules of law to the facts of which the Court was possessed by admission or proof. Pleading in civil actions, down to the fourteenth century, was already a game of skill, but it was played by living discussion before the judges, who acted as moderators and directors. It ended, not in a judgment, but in a preliminary settlement of the points at issue. It provided certain remedies in Edition: The plaintiff had to show the Court how the facts he alleged brought him within some species of justice it professed to do.
He could not tell his story at large and leave the Court to find, with or without the aid of advocacy, what law was applicable. A dialectic process of some kind was necessary to fix the point for adjudication, and to guide the future practice of the professional counsellors who were now becoming the servants of the law.
This creative dialectic, working on a still fresh and plastic material, is what we find in the earlier Year Books; not official or formal records as we now know, thanks to Maitland, and as at least one American scholar suspected beforebut notes of young lawyers keen on learning their business, and eager to make sure how far they could venture to be ingenious without rashness.
They cared very little who the parties were, and less about the end of the case. Good pleading was their ambition; the art which commanded the approval of the Court and the confidence of clients, and might lead them one day to be serjeants themselves, canvassing points familiarly with the judges, and bring a fortunate few of them even to the Bench. When the semi-official talking in any cause in the Common Pleas was done, the students knew pretty well what was sound pleading in the general opinion of the judges and serjeants.
To be sure, some counsel were more obstinate in their own views than others.
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In the very latest days of oral pleading counsel might say to the Court, thinking his adversary had not the courage of his invention: Surely he will never dare to put that on the record! But in this case the Court promptly said it was well enough, and enrolled it on the spot. Only the graver doubts are set down as matter for solemn decision.
Then we have meetings of all the judges at which they argue with counsel and with one another, take new points, throw out hints and warnings for the benefit of juniors, with all the zest of their earlier days in the profession.
It was a highly technical affair, no doubt.Strangers When We Meet
Medieval lawyers and probably medieval laymen would have been shocked at the suggestion that it could be anything else. But the system was very far from being a hide-bound formalism. It was spoilt by abuse of its own power of free and varied development. Nevertheless good servants often want to be masters, and make very bad masters when they get their way. So it happened with common-law pleading and procedure. The mischief cannot be ascribed in any great measure to the partial survivals of extreme archaism.
Various devices kept them within bounds which made them practically harmless. It is true that this was not done without paying a price for it, but that is not the subject immediately before us. On the whole, what little was left of the genuine ancient formalism caused less inconvenience than might have been expected. But the old spirit of it was scotched, not killed, and the ghost fell to work, with only too much success, to effect a lodgment in Edition: John Bunyan made a pretty bad mistake when he represented Giant Pope as decrepit; if he could have looked outside England he would have seen the counterreformation making its conquests.
If so, they were mistaken in the same sort. The new material itself was attacked by a parasitic growth of later medieval exuberance.
Her charms might not allure us very much; they were fatal to scholars whose intellectual habits were in many ways like those of a clever schoolboy. The tendency to useless refinement is apparent even during the time of oral pleading; but the fatal step was the change from open discussion in Court to the delivery of written pleadings between the parties without any judicial control. Future editors of the later Year Books will probably be able to clear up various details.
The main points of the story, however, have long been well known. It would be tedious, and for our purpose useless, to follow the history of corruption and confusion in detail. Enough to say that the older forms of action remained comparatively simple but stiff and cumbrous, while the newer ones were elastic, but tricky because the limits of their elasticity were uncertain. The system was not even logical, for a strictly logical adherence to consequences would have brought the business of the Courts to a dead-lock; and the partial remedies applied by legislation, or by forensic and in some cases judicial ingenuity, did not even pretend to be consistent with any systematic doctrine at all.
In many cases there were alternative forms of procedure having different incidents wholly unconnected with the substance of the case; while in others, again for no intelligible reason, there was none, and moreover it was often difficult to be sure what the proper form of action was.
The work to which I invite the attention of any learned friends not yet acquainted with it making no apology to those who are, for they will require none was written by Hayes, while he was still a junior, about He was transferred to the House of Lords as Lord Wensleydale a few years after the drastic reformation, by the Common Law Procedure Act ofof the system he had so zealously maintained in the Court of Exchequer.
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I do not know that he made any great show of mourning for it when the thing was done; certainly the catastrophe did not shorten his life, for he was eighty-five years old when he died ina date within the professional memory of men still active on the bench and at the bar. When there was not any point of pleading before the Court, no man could handle matters of principle with greater clearness or broader common sense. Enough to remind the student that Crogate, being plaintiff in an action of trespass, replied de injuria to a special plea which he ought to have answered in some other way let our learned friends in New Jersey tell us how, if they will ; and that, as the Dialogue shows more at large, an attempted reform of pleading in England by the New Rules of led to an outbreak of new technicalities including an active revival of this particular form, which had become almost obsolete.
I had, however, fortunately prepared myself against this danger by bringing with me a very special traverse, which I immediately threw out to him as a bait. He greedily caught it and swallowed the inducement in a twinkling; but the absque hoc stuck in his throat and nearly choked him, and in the meantime I made my escape.
This plea was perhaps bad in form, as an argumentative general issue; but I was willing to run the risk of a special demurrer for the chance of entrapping my opponent into a denial of only one branch of my plea. But he replied by asserting that special pleading was an abominable system, and that I had made it much worse Edition: To the replication I demurred specially on the ground of duplicity; but to my astonishment the Court, on my refusing to withdraw my demurrer, most unceremoniously set it aside as frivolous, and gave judgment against me.
Crogate understand the necessity and elegance of the decision in his case. Incidentally he explains how the amount of special pleading varies with the form of action. In actions on contracts, if the facts are such as to render it necessary, according to the established rules of the court, to declare specially, great strictness and particularity are enforced, and the simplest questions are often involved in much complication of pleading; but if the case admits of the use of certain general or common counts which indeed are applicable in the great majority of ordinary actions the whole matter is left pretty much at large, and the most complicated questions are tried on simplest statements.
So in actions on torts, you may have more or less special pleading, entirely according to the form of action which you elect, or are obliged to adopt. Thus, if your goods are taken away, and you sue the wrong-doer in trespass as you did in your own case, Mr.
Crogate you will have special pleading in all its strictness; but if you choose to sue in trover, and make a fictitious statement that you casually lost your goods, Edition: If you are assaulted and beaten, you cannot escape special pleading by any fictitious allegation, but you are obliged to sue in trespass, and the defendant to justify specially. If you sue for a trespass to your land, however small the injury, the greatest strictness of pleading is required, but if you are actually turned out, you may recover the land itself by a fictitious mode of proceeding called ejectment, without any special pleading at all.
Judge, I see how the whole thing stands pretty clearly. The more you patch and mend a bad thing the worse you make it; and this is just what you have been doing by your New Rules. But what I want to know is, whether there are no courts where you can get justice, or something like it, without any special pleading? In consequence of an idle and absurd clamour on the part of the public, some inferior courts were Edition: But, if special pleading is a good thing, why is it done without in these courts?
Because of the expense and delay which the forms of correct pleading would occasion, and because neither practitioners nor judges could be expected to understand the system properly; and moreover, Mr. Crogate, in these trifling matters the greatest object is to administer substantial justice 1 in the simplest form and at the least expense.
Well, in my ignorance, I should have thought that would have been the object in great cases as well as small. But, pray, what mode of proceeding do you use instead of special pleading? The simplest process in the world. The forms of action have been practically abolished. The plaintiff gives a concise statement or notice of his claim, and the defendant of his defense where it is considered proper that he should do so in plain English, unfettered by the technical rules of pleading.
If either party really stands in need of further information, the judge requires it to be given; or if either party complains of surprise, and requires further time, he adjourns the trial upon just terms. The case being Edition: And does this answer? It has not been complained of.
In fact, suitors were so well satisfied with these new-fangled courts that they were anxious to go to them in cases which ought to have come to us. Secondly, when it clearly cannot be replied.
Thirdly, when it is probable that it may be replied. Fourthly, when it is probable it cannot be replied. And, fifthly, when it is altogether doubtful whether it can or cannot be replied. It must appear strange to a plain man that the evils of artificial pleading were felt a century before Hayes wrote, and some attempt was made to remedy them: But the science of special pleading having been frequently perverted to the purposes of chicane and delay, the courts have, of late, in some instances, and the legislature in many more, permitted the general issue to be pleaded, which leaves everything open, the fact, the law, and the equity of the case.
Our ancestors of the eighteenth century were not stupid or slothful. They knew the raiment of the law wanted mending, and they mended it as well as they could in their time, having also campaigns in Flanders and Jacobite rebellions to think of. But it was only patchwork, and ultimately the rents were made worse. After the common fashion of English public business, reforms were introduced piecemeal and without any settled plan, and so, while they lightened some of the most pressing grievances, they raised fresh difficulties, almost at every turn; and in the first half of the nineteenth century the confusion of common law pleading had become, as Serjeant Hayes found it, more intricate than ever.
I have not heard that in any American jurisdiction there was any judicial or other regulation whose effects were as disastrous as those of the New Rules made by the English judges in ; but I suppose that on the whole complaints of the same kind were pretty common, as otherwise it would be hard to account for the existence of modern codes of procedure in this and other States, and for various alterations short Edition: Phelps described to me many years ago, to the more elaborate scheme of Massachusetts, resembling in a general way that which satisfied our courts in England, under the Common Law Procedure Acts, from 1 to There is nothing to be said here about the other systems which coexisted with common law procedure in England down to our own time, and still have an independent existence in some jurisdictions.
At any rate there is nothing to show substantial influence in fact from those quarters, as distinct from the stock of learning and intellectual habit which was common to all educated persons in the Middle Ages. Our lady the Common Law did not reign alone, but her diplomatic relations with her consorts or rivals, whichever they should be called, were of the scantiest.
The common law treatises on pleading, down to Stephen inclusive, do not so much as mention the Courts of Chancery or Admiralty. So far as there was any influence it was the other way, and in the case of equity procedure not with the happiest results. Indeed, the vices of subtilty and prolixity found at least as easy subjects of temptation in the Chancery and the civilian jurisdictions as elsewhere.
By working on the quite sincere desire of those Courts to do perfect justice to all parties and Edition: There was just one genuine archaic element that persisted in the decadent forms of common law pleading: Somehow the parties must be driven to categorical contradiction on some single question of fact or law.
Down to the latest period of unreformed pleading this was declared to be a fundamental principle, and we have no right to doubt that, being repeated by so many sages of the law, the declaration was made with perfect sincerity. Those learned persons might have known, if they had ever considered the matter with their eyes open, that their ideal was incompatible with any practical handling of modern disputes arising out of modern affairs. Perhaps it would be too much to expect a Baron Surrebutter to stand apart from the technical point of view to which he was bred.
But at all events he could not help knowing that as often as not the apparent singleness of the final issue was merely formal. Such cases were not abnormal; on the contrary, they were very common, probably a great majority. Loose issues of that sort being exactly what the theory professed to regard as shocking, it is hardly too much to say that its principles were outraged every day.
The defendant who elected to rely on one special ground had to be very careful; but he Edition: The truth is that a severely logical application of the assumed principles of pleading would have been intolerable even to a generation of formalists, but nobody had the courage to say so. With such content as we may, we must even believe that our lady the Common Law, like many other good-natured people busied with more matters than they can attend to in person, allowed herself to be put upon and her customers harassed by fussy, greedy and sometimes dishonest underlings.
The warning is not out of date. Before we can understand the limits and the difficulties of possible remedies in the Middle Ages and even later, we must consider the perpetual conflict with external foes which had to be waged at the same time.
One kind of these, as they were the most shameless, were the most formidable, namely men who were strong enough, in parts of England remote from the central authority, to defy legal justice and legal process openly. Nowadays we do not easily realize the chronic persistence of such behaviour in a land whose rulers are seriously minded to keep order. Riot is not impossible in the most civilized of jurisdictions, but it is abnormal; it is at most an occasional scandal.
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