Front Page Titles (by Subject) III.: SURREBUTTER CASTLE - The Genius of the Common Law
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III.: SURREBUTTER CASTLE - Sir Frederick Pollock, The Genius of the Common Law 
The Genius of the Common Law (New York: Columbia University Press, 1912).
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Perverse ingenuity, once let loose on the art of pleading, went for some centuries from bad to worse, notwithstanding occasional mitigations. 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.1
We may now proceed to see what the bastard formalism of pleading had come to in England in the second quarter of the nineteenth century, and we may use the guidance of a very learned person, Serjeant Hayes,2 afterwards a justice of the Queen’s Bench for a short time, who knew the system thoroughly and did his best to bring about its downfall. 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 1850. It is entitled ‘Crogate’s Case: a dialogue in the Shades on Special Pleading Reform.’1 One of the interlocutors is Baron Surrebutter, a transparent disguise for Baron Parke, or rather that half of him which was devoted to the technical side of process and pleading. He was transferred to the House of Lords as Lord Wensleydale a few years after the drastic reformation, by the Common Law Procedure Act of 1852, of the system he had so zealously maintained in the Court of Exchequer. 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 in 1868, a 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. The other personage is ‘the celebrated Crogate, who in his mortal state gave rise to the great case reported in 8 Co. 66, and whose name is inseparably connected with the doctrine of de injuria.’ As that doctrine is not intelligible without some detailed acquaintance with the forms of common law pleading, and has been obsolete for more than half a century alike in England and in New York, I shall merely observe that any one desiring an explanation of it may readily be satisfied in the adjacent State of New Jersey, where, if I am not mistaken, the replication de injuria is in full force to this day. 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 1834 led to an outbreak of new technicalities including an active revival of this particular form, which had become almost obsolete.
The shade of the learned Baron newly arrived in Hades complains to Crogate of his treatment by the court of Rhadamanthus, a court below, but from which, to the Baron’s indignation, error does not lie. He has deceived the vigilance of Cerberus, ‘whose multifarious head’ he says, ‘struck me as being decidedly bad on special demurrer. 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.’ Before Rhadamanthus, Baron Surrebutter relates, he was charged with having obstructed justice with the frivolous technicalities of special pleading. ‘I pleaded that special pleading was a wise and useful system, and that I had helped to remedy all its defects by the New Rules. 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 by the New Rules. 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.’ And so Baron Surrebutter finds himself in a whimsical limbo of pleaders and litigants, where former masters of the art are engaged in an interminable exchange of special pleadings, or attempting to frame undemurrable defences in actions brought under the New Rules.
The main part of the Dialogue consists of the learned Baron’s hopeless endeavours to make Mr. 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. ‘The forms of pleading are more or less strict, according to the nature of the action; and in many actions there is, in substance, no special pleading at all. 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, and that the defendant found and converted them; here he is allowed to deny the fictitious loss and finding, and may set up almost any possible defense, under a denial of the alleged ownership and conversion of the goods; or if you prefer to sue in detinue, and state a fictitious delivery or bailment of the goods to the defendant (which fiction he is not allowed to deny), you will have rather more special pleading than in trover, but considerably less than in trespass. 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.’ So did an accomplished master of the so-called science of pleading state the results attained after several centuries of elaboration. The irony of Hayes’s dialogue is completed by Baron Surrebutter’s account of the new-fangled county courts.1 It seems well to give this without abridgment, preserving Crogate’s part.
Well, well, Mr. 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?
Oh, yes. In consequence of an idle and absurd clamour on the part of the public, some inferior courts were established a short time back to enable the common people to sue for small debts and damages under twenty pounds; and in these courts, the proceedings are wholly free from the refinements of special pleading.
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 justice1 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 understood and ready for trial, he decides it, and there is an end of the matter.
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 . . . and it remains to be seen whether the effect will not be to transfer to them the great bulk of the civil business of the country, and to leave the Superior Courts without employment; a result which will be obviously fatal to the law of England.’
Baron Surrebutter then offers to give a classified exposition of the doctrine, considering, ‘First, when de injuria may clearly be replied. 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.’ But he does not get very far, for Crogate pays no attention to the exquisite distinctions reported in Meeson and Welsby, and runs away ‘in great anguish of mind’; and so ends the Dialogue. In a final soliloquy the Baron announces his intention of seeking out the learned Serjeant Williams, the editor of Saunders’ Reports, to discuss the high and dubious question whether a virtute cujus is traversable.
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: an attempt of which Blackstone tells us for the credit of enlightened eighteenth-century practice as he knew it, but in words including some express apology and much implied admission. ‘Formerly the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him. . . . 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.’ He adds that ‘so great a relaxation of the strictness anciently observed’ has not been found to lead to confusion in practice.1 So far well; but when Blackstone spoke of the Courts having improved matters ‘in some instances, and the legislature in many more,’ he was unconsciously pointing to a new source of trouble shortly to come. 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 1834; 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 of actual code pleading, from the simple and almost patriarchal method of Vermont, which Mr. 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 18521 to 1875.
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. It is doubtful whether in any case the practitioners at Westminster could have learnt much from them; for they started from a wholly different and much more ambitious conception of the Court’s office, namely that it had the duty or at least the power of finding out the truth of the matter for itself. 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 interests, they were able to present themselves in a specious guise; and they revelled in pleadings of enormous length and interminable verbal repetitions which had not even the merit of leading to the statement of any definite question for decision.
There was just one genuine archaic element that persisted in the decadent forms of common law pleading: the imperious desire for an authoritative decision of some kind rather than the best or the most complete solution. 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. A short and comprehensive denial of the plaintiff’s claim to fulfilment of duty or redress of wrong, a plea of Non Assumpsit or Not Guilty, might raise multifarious controversies of both law and fact, to be left ‘at large’ to a jury. 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 who elected to deny the plaintiff’s claim in the lump and take his chance on the evidence merely said, in effect: ‘I admit nothing and wait to see what you can make of it.’ We need not add, except for very innocent learners, that the party’s advisers made the choice, in every case where it was open, according to his interest as it appeared to them, and not with any further regard for the symmetry or congruity of their art. 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.
[1 ]The learned reader may see a few examples collected in a footnote, Pollock on Torts, 8th ed., 231.
[2 ]George Hayes, 1805-1869; called to the Bar 1830, Serjeant 1856, Justice, 1868.
[1 ]Privately printed, London, 1854, and privately reprinted 1892, together with other writings of Hayes, in a volume entitled Hayesiana. In the reprint there are divers minute typographical variations from the original; but they do not deserve to be enumerated by even the most minute bibliographer.
[1 ]Established in 1847. They are not in any way connected with the ancient county court. Their jurisdiction has been much extended in our own time.
[1 ]But in Hayes’s own preface there is a note on ‘substantial justice’ which must not be overlooked. ‘A good specimen of this favourite commodity is furnished in the following well-known decision: A defendant having alleged his inability to pay the plaintiff’s demand, the plaintiff admitted it, but maintained that though the defendant himself could not pay, he had an aunt who could; and the judge, being of this opinion, made an order against the aunt. This is said to be a leading county court authority, and is commonly cited as “My Aunt’s Case.” ’
[1 ]Bl. Comm. iii. 305, 306.
[1 ]The Massachusetts reform was of nearly the same date. I should not think it likely that the American and English draftsmen had any communication or knowledge of each other’s work.