The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

38.

THE DEVELOPMENT OF WRITTEN AND ORAL PLEADING1

By William Searle Holdsworth2

THE objection has often been urged, and justly urged, against a system of case law, that the true bearings of the decision cannot be understood without some knowledge of the system of procedure and pleading which prevailed when the case was decided. This objection applies with the greater force as we go further back in our legal history; and therefore it applies most forcibly to the Year Books. It would not perhaps be too much to say that to lawyers who know only our modern reports the Year Books are hardly intelligible. The reports therein contained appear in many cases to be merely reports of desultory conversations between judge and counsel, which often terminate without reaching a distinct issue either of fact or law. Even when a distinct issue of fact or law is reached they often tell us nothing of the final result. Much of their inconclusive character is due, no doubt, to their informal shape. Notes taken by apprentices during the hearing of the facts of cases at which they happened to be present will naturally possess such characteristics; and when these notes are copied, and perhaps freely edited, such characteristics will be emphasized. But it is our want of knowledge of the legal environment in which they were produced which is the chief cause of their obscurity. There are vast differences between the mediæval and the modern conception of a trial and all the ideas involved in the notion of a trial. Differences upon matters so fundamental will explain why familiar rules of law appear in the Year Books in unfamiliar guise. They appear there bound up with the intricate manœuvres made possible to a learned profession by an intricate procedure. We who live in a state of society far remote from that of the thirteenth century miss much of the reason which such intricacies may have had to the society in which they grew up; and reports intelligible to men living in that society and practising that system are not intelligible to us. The earlier Year Books, too, are, as we have seen, often only the note-books of the apprentice, and, as every student knows, nobody else’s notes can be as valuable as they are to the maker. At the same time it is only by the help of these notes, which grow fuller as time goes on, that we can accustom ourselves to the atmosphere of the mediæval law-court, and to the mind of the mediæval lawyer. Unless we can do this we shall never attain to any real knowledge of the spirit of the mediæval common law; and a knowledge of the mediæval common law is essential if we are to attempt a critical estimate of the work of the lawyers of the sixteenth and seventeenth centuries, who adapted its rules to the new needs and ideas of the modern state. Let us see, then, how far a consideration of certain differences between the mediæval and the modern in such vital matters as the rules of process and the rules of pleading will place us at the right point of view from which to look at the Year Books.

1. We must remember that when the Year Books begin the law is only just emerging from that primitive stage in which the securing of the appearance of the defendant is a difficult problem; and that it is still in that stage in which the difficulties of travel make process slow.1 Rules based upon primitive legal ideas, and upon physical necessities of an older age, became the permanent basis of an elaborate superstructure of technical rules. The rules of law upon this subject had become fixed before they had had time to become rational. It followed that with every increase in the complexity of the law these fixed rules became less rational and a greater hindrance to justice. Every action possessed its special machinery and its special formulæ for working that machinery.1 A lawyer who wished to do his duty by his client must be at home with all the capacities of that machinery, in order that he might know at each stage of the case what chances were open.2 Many a good case might be lost, or a bad case won, or, at least a decision upon it delayed, if the right step was taken at the right time, or if prompt advantage were taken of an unskilful move or a verbal error. It would be both tedious and useless to go into details about the process used to get a defendant before the court, and the various forms of process which might issue in the course of a case, or after it had been decided. In a real action the process to get the defendant before the court consisted, when ‘reduced to it slowest terms,’ of summons, seizure of the land into the king’s hand, and finally judgment, that the land be handed over to the demandant. Even then it was open to the tenant to reopen the whole dispute by means of a writ of right.3 It would be in very few cases that process could thus be reduced to its lowest terms. The validity of the summons might be questioned.4 Both the tenant and the demandant might cast many essoins—how many depended upon the kind of action brought. If there were several tenants they might at one time have delayed the proceedings almost indefinitely by essoining themselves alternately.5 In Edward III’s reign the practice was still possible in personal actions.6 In many cases the hearing of the case might be hung up by claiming a view of the premises; and we find much litigation upon the right to have a view.1 Then there might be vouching to warranty or aid prayer,2 and the person vouched or prayed in aid might wish to essoin himself. Protections must be reckoned with which would put the case without a day.3 Infants might intervene and claim their age; and this would mean that the proceedings would be stayed till the infant had attained his majority.4 All these various processes involved many writs and orders to the sheriff; and if the sheriff had taken the wrong steps to carry out the process, or if he had made any verbal fault in his returns, there was fresh material for disputes which delayed the hearing of the case.5 In 1344 it was noted that, ‘If the demandant omits in his process any part of his demand included in the original writ the whole is discontinued.’6 Booth tells us that the proceeding by the Grand Assize is very dilatory, and may become ‘vexatious to the Tenant by the Practice of the Demandant by not prosecuting and suing out Process as he ought, and many other Delays for want of Knights, there not appearing, or the like.’7 Process in the case of personal actions was almost if not quite as lengthy; but there were not all the opportunities for delay in the course of the case which were afforded by some of the real actions.8 The number of essoins allowed were not so numerous. There could be no vouching to warranty. But in the older personal actions the process was lengthy and ineffectual enough. There might be protections; there might as we have seen be fourching; and it was always possible to question the acts of the sheriff. One of the reasons for the spread of trespass was that, being a penal action, the process was comparatively speedy and effective. It was possible to arrest the defendant, and in the last resort to outlaw him. The plaintiff was not left, as in some of the older personal actions, without any other remedy than to keep distraining a contumacious defendant, who very likely had nothing by which he could be distrained.1 We must not forget that the ingenious means by which the three Common Law Courts encroached upon one another’s jurisdiction were merely perversions of their ordinary process which added to the technicalities of an already complicated system.2 Even in Edward I’s reign it was possible for the judges themselves to make mistakes. ‘How is it,’ said Berewick to the sheriff, ‘that you have attached these people without warrant; for every suit is commenced by finding pledges, and you have attached although he did not find pledges?’ &c. ‘Sir,’ said the sheriff, ‘it was by your own orders.’ ‘If it had not been so,’ notes the reporter, ‘the sheriff would have been grievously amerced, et ideo cave.’3 In Henry VI’s reign Fortescue C. J. was being pressed by the absurdity of a distinction which he was laying down as to when a writ of Scire facias would, and when it would not, issue against a person who has possession of the goods of one attainted. All he could reply was, ‘Sir, the law is as I say it is, and so it has been laid down ever since the law began; and we have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason.’4 When a judge of Fortescue’s eminence is obliged to confess that he cannot explain the reason for a given procedural rule, and is reduced to infer its reasonableness from a priori views as to the inherent reasonableness of the law, we may be sure that the rule is coming to be an antique incumbrance. In fact the rules as to process were the least reasonable part of the mediæval common law. It is upon them that we must place a large share of the blame which attaches to the common law of the fifteenth century for its failure to keep the peace, and to punish wrongdoing. Their intricacy served the purpose of the unscrupulous.1 It is not until much of this complicated process has gone out of use, with the decay of the real actions, that the common law will be able to take new life. But in the period of the Year Books the land law and the law of the real actions were the principal part of the common law. Therefore there are necessarily many cases in the Year Books taken up solely with elucidating the difficulties of process in these and other actions. These cases are naturally not very intelligible to us. The changes which made this learning obsolete rendered useless whole groups of cases reported in the Year Books.

2. The rules of pleading—the mode in which and the conditions under which the parties state the case which is to be tried—go far to determine the shape of many rules of law; and they obviously have a great influence upon the form which the report takes. In old days the defendant must meet a plaintiff who has properly stated his case with a full denial.2 Though this rule was long preserved it had become possible in Bracton’s day for a defendant, after making this full denial, to use divers ‘exceptions,’ and for the plaintiff to reply to these ‘exceptions.’3 But in his day these rules were confused. It is not till Edward I’s reign that we can see the beginnings of that peculiarly English branch of law—the science of pleading. The peculiarities of this science cannot better be described than in the words of Stephen4 :—

The question which the legal historian must answer is the question why the English mode of pleading was so different from that which we find in other systems of law. The answer will probably be found in the peculiarity of the old conception of a trial, and in the mode in which that old conception of a trial was adapted to the jury system.

The old conception of a trial was very different from our modern conception. The pleadings of the parties led up to some one of many modes of proof which might be either selected by the parties or adjudged by the Court.1 How those modes of proof worked it was impossible to inquire. All the legal interest of the case was centred in the questions which led up to the award of proof.1 And all those questions were subject to the fixed rules of the game which bound the judge as strictly as the parties; for it is a characteristic of these old procedural rules that the suitor is considered as having a legal right to their enforcement as against the court, and, therefore, a grievance against the court if they are not applied or misapplied.2 The jury became almost the only mode of proof at a time when these old ideas of a trial were still prevalent; and consequently the jury was regarded as settling the matter in the same final and inscrutable manner as compurgation, battle, or ordeal.3 Therefore just as in the older law all the legal interest in the case turned upon what we should now regard as preliminary matters, such as the rules of process for getting the parties before the court, and the rules which defined the modes in which they should state their case when they were before the court. Just as in the older law all these rules must be put in motion and strictly obeyed by the parties at their own risk, so now the parties must put in motion the complicated machinery of process, and define by their own pleadings with painful and literal accuracy the issue to be tried.4 Thus we get that which Stephen tells us is the characteristic feature of the English system of pleading—the settlement of the issue to be tried by the allegations of the parties.

But though the jury took the place of the older modes of proof, though the process and the pleading of an older age were adapted to the proof by jury, the growing elaboration of the law, and the differences between the test of the jury and the test of such proofs as ordeal or battle, begin a series of changes which eventually substitutes for the old system of proof the modern idea of a trial based upon the pleadings of the parties.

In the first place the jury were never expected to pass upon matters of law. It was open then to find a special verdict and ask for the judgment of the court thereon.1 It soon became clear that there were some issues which were purely issues of law. Thus we get a distinction between issues of fact and law which was foreign to a primitive procedure in which the assertion of the plaintiff was met by a denial of the defendant, and followed by an award of proof.2 In the second place it had become impossible to state a case fairly to the court, unless the parties were allowed to use many pleas (exceptiones, replicationes, triplicationes) of different kinds. It is true that the old ideas survived so far that a defendant must generally preface his defence by a denial; but after that he could urge any other pleas he liked. The rules about the pleading of these matters were at first confused. The pleas were long, argumentative, and double. But one important result followed from the new facilities allowed to the parties in the statement of their case. Many of the old formal words required to be spoken with literal accuracy by plaintiff and defendant gradually disappeared. In particular, the formal defence became merely a collection of words of court—formal words concealed in the record by an ‘&c.,’ the meaning of which has departed.3 The new learning as to exceptions threw the old rules into confusion.4 If Bracton had been followed by a generation or two of judges, bound by their orders to know something of the civil and canon law, the jury might have come to be regarded merely as witnesses, and not as a body to which the parties have agreed to refer the determination of the issue; and English law would then, like continental systems of law, have adopted a procedure based upon the procedure of the civil and canon law.1 But this was not to be. The newer ideas of pleading, drawn in the first instance from the Roman law, and necessitated by the growing complexity of the common law, were reduced to order, and given a shape which was peculiarly English, because it was determined by the peculiarly English use of the jury as a mode of proof. We have seen that the jury was put into the place of the older modes of proof with as little change as possible, and that the fundamental peculiarity of the English system of pleading—the settlement by the debate of the parties in court of the issue to be tried—was due to the survival of the older ideas as to a trial. For the same reason and in the same way the shape which these new rules as to pleading took was coloured, in the first place by some of the old ideas as to pleading which led up to the older methods of proof; and in the second place by the necessity for adapting the new ideas as to pleading to the requirements of the jury system. (1) Both the older and the newer modes of pleading were oral; and many of the fundamental rules of the common-law system of pleading were made and adapted to this system of oral pleading. ‘The abandonment of the practice of oral pleading,’ says Stephen,2 ‘led to no departure from the ancient style of allegation. The pleading has ever since continued to be framed upon the old principles and to pursue the same forms as when it was merely oral. The parties are made to come to issue exactly in the same manner as when really opposed to each other in verbal altercation at the bar of the court; and all the rules which the justices of former times prescribed to the actual disputants before them are as far as possible still enforced’ with respect to the later written pleadings. (2) The facts at issue were submitted to the jury as to one of the older modes of proof. But the new modes of pleading had made it possible for the parties to bring before the court complicated states of fact; and it was obvious that issues could not be placed before a reasonable body of men in the same manner as they were submitted to the decision of the older arbitrary tests. These two considerations are at the bottom of the requirements, which underlie all the rules of pleading, that the statements of the parties shall be material to the issue, single, and certain. The need for distinguishing between issues of fact and law, the need (occasionally) for distinguishing cases in which trial by jury was applicable from cases in which it was not,1 the need for ascertaining the venue from which the jury must come, the need for placing the point at issue in an intelligible form before the judge and jury, are at the bottom of these fundamental rules of pleading. Thus the problems which originated in the adaptation of the newer ideas as to pleading to the old conception of proof, and the problems which originated in the fact that the proof was now, not an arbitrary test, but the finding of a body of reasonable men, are the factors which determined the fundamental rules of the common-law system of pleading.

This system of oral pleading in Court leading to an issue which is submitted to the jury, as if the jury were the test or proof to which the parties have agreed to submit, affects the whole character of the reports in the Year Books. It was the oral pleading leading to the issue which interested the reporter. In the course of this debate many questions of law—material to the issue and immaterial—were mooted and discussed by Bench and Bar. What view the jury took of the issue of fact so formulated was of comparatively little interest to the legal profession, unless it was made the basis of further proceedings. Decisions upon an issue of law were no doubt interesting to the profession; but cases which involved such decisions were often adjourned, and the decision was, perhaps, never given. The judges, Professor Maitland tells us,1 were unwilling to decide nice points of law; ‘too often when an interesting question has been raised and discussed, the record shows us that it is raised and then tells us no more. A day is given to the parties to hear their judgment. A blank space for the judgment is left upon the roll, and blank it remains after the lapse of six centuries.’ Even if judgment were given, it might well be that the reporter did not happen to be in court on that day.2 In the meantime the report of the debate which led to the distinct formulation of the issue contained much sound learning and showed where the doubt lay. And so it is these arguments leading to the formulation of the issue which comprise the largest part of the cases reported in the earlier Year Books. Naturally as the argument proceeded new facts were elicited, old facts assumed new aspects, new legal points were suggested, all of which were taken down by the reporter, and edited and annotated for the benefit of himself and his friends. The Year Book, therefore, does not give us a report directed to establish some particular point. Rather, it gives us an account of the discussion which preceded the formulation by the parties and the Court of that point; and the matters discussed may bear very little relation to the issue reached.3 Sometimes no issue is reached.4 We are reminded of what must have taken place before the Praetor in iure when he was engaged, with the help of the parties and their counsel, in settling the formula. If we had some contemporary account of what took place before the Praetor, it would probably resemble the report in the Year Book far more closely than the report in the Year Book resembles the modern report of the arguments and the judgments upon an issue already determined by the pleadings of the parties.5

We may note, too, that in a report of this oral debate which preceded the formulation of the issue, the line between argument and decision will tend to become obliterated. Serjeants or apprentices present, but not engaged in the case, intervene with their advice;1 and what they say is naturally interesting to the profession. A judge even will condescend to give a little lecture for the benefit of the student.2 Naturally reports which record such proceedings will be discursive and conversational. In some of our older reports the reasons given by the judges for their formal decision are styled arguments. These Year Books are really the reports of arguments—arguments used by the Bar and the Bench. It was the argument rather than the final decision which interested the profession, partly because there was then no such rigid theory as to the binding force of decided cases as that to which we are accustomed, partly because the discussion and the elucidation of legal principles were to be found in the argument rather than in the dry formal decision, and partly because decisions upon points of law were often not given, or, if given, were difficult of collection by the private reporter.

It is clear that this fashion of oral pleading made for great freedom in the statement of the case. A painful accuracy was no doubt required in the wording of the writ, in the correspondence between writ and count, and in the observance of the elaborate rules of process. But when all objections to the writ and process had been disposed of, when the parties were fairly before the court, the debate between the opposing counsel, carried on subject to the advice or the rulings of the judge, allowed the parties considerable latitude in pleading to the issue. Suggested pleas will appear after a little discussion to be untenable; a proposition to demur will, after a few remarks by the judge, be obviously the wrong move. The counsel feel their way towards an issue which each can accept and allow to be enrolled.3 In fact, in the earlier part of this period it was not the strictness of the rules of pleading which hindered justice, it was rather the strictness and elaboration of the rules of process. This looseness in the rules of pleading was increased, perhaps almost necessitated, by the fact that the law of evidence, as we understand it, hardly as yet existed. So far are we from the rule of later law that evidence must not be pleaded, that we might almost say that oral evidence was generally brought to the notice of the court by pleading it.1 One or two illustrations (1) of the freedom of action allowed to counsel under this system of pleading, and (2) of the manner in which evidence was brought before the Court, will illustrate these causes for the differences between the Year Books and the later reports.

(1) Illustrations of the mode in which an issue was reached by discussion at the Bar under the superintendence of the Court will be found on almost every page of the Year Books. As a simple illustration we will take a case of the year 1309.2 ‘Alice brought her writ of entry sur disseisin against a Prior, and counted on her own seisin as of fee and of right in time of peace, saying, “Into which the Prior has no entry save after (post) the disseisin which one G. did to Alice.” Passeley: “She was never seised of fee and of right in such wise that she could be disseised.” Stanton J.: “That is no good answer in this writ, but it would be a good answer to say that G. did not disseise her.” Friskeney argued that Passeley’s answer was receivable because, if the plaintiff’s count claiming as of fee and of right were accepted by them, they might be estopped in any subsequent proceedings from denying that she held as of fee and of right. Stanton J.: “What you say is wrong. What enrolment are we to have in this case? I think it should be, ‘not so seised that she could be disseised,’ so your averment is not receivable.” Passeley: “The enrolment shall be, ‘not so seised in such manner as she demands so that she could be disseised.’ To this all agreed.” The Court will sometimes suggest a plea to meet difficulties suggested by counsel in argument;3 and the fact that the Court advised a particular mode of pleading was once stated as a reason why counsel adopted it.1 But sometimes the Court is only wise after the event, and delivers a lecture upon what, in its opinion, would have been the proper mode of pleading.2 Counsel once argued that what a party has pleaded and passed over without notice by the Court is wholly immaterial; and though the Court denied the proposition as thus broadly stated, there was probably a considerable element of truth in it.3 A survival of the old idea that a pleader’s words were not binding till avowed by his client no doubt made it the more possible to treat pleas as capable of amendment till one was reached by which counsel would abide.4 Whether or not this was so it is quite clear, as Reeves says,5 that everything advanced by counsel was, in the first instance, ‘treated as matter only in fieri which upon discussion and consideration might be amended, or wholly abandoned, and then other matter resorted to, till at length the counsel felt himself on such grounds as he could trust. Where he finally rested his cause, that was the plea which was entered upon the roll, and abided the judgment of an inquest or of the Court, according as it was a point of law or fact.’ We may note, too, that the complications of process sometimes gave to a pleader a chance of correcting an error which might otherwise have proved fatal. If the case were put without a day by a Protection, or, perhaps, by a default, the pleading must begin anew; and mistakes made on the occasion of the first pleading could then be amended.1

(2) The law knew the preappointed witness to deeds or charters: it knew also the written evidence of the deeds or charters themselves. It did not as yet recognize the independent witness called to testify to the facts of which he had knowledge; indeed, as Thayer has shown, the strictness with which the laws against maintenance were interpreted effectually discouraged him.2 The evidence, which in modern times is given by such witnesses, was at this period supplied partly by the jury, which the law was careful to draw from the neighbourhood of the occurrence,3 partly by the custom of pleading such evidence. For this reason questions turning upon the ‘venue’ of the jury are of much importance in the Year Books; and for the same reason counsel deem themselves to be in a manner responsible for the statements which they make to the Court. They examine their clients before they put forward a plea.4 They even decline to plead a fact as to the truth of which they have doubts.5 Sometimes, indeed, we see a distinction taken between the plea and the evidence for the plea when it is convenient to say that a statement is only evidence and not really a plea.6 But, as a general rule, it would be true to say that such distinct things as the pleadings, the statements of counsel, and the evidence for those statements are hardly distinguished in the Year Books.1 To this state of things must be ascribed some peculiar doctrines in the law of pleading. It was clearly difficult under these circumstances to bring to the notice of the jury, who knew something of the facts, the exact import of similar yet legally distinct states of fact, especially having regard to the rule that, if the special facts really only amounted to the general issue, the general issue only could be pleaded, and the case therefore necessarily left to the jury. It was equally difficult to separate clearly matters of fact from questions of law under a system in which the evidence for the facts stated in the pleadings, and the arguments of counsel were all involved in the pleadings themselves, and only extricated gradually in the course of the discussion which settled the issue to be tried. To these difficulties are due the doctrine of colour in pleading,2 and the demurrer to evidence.3 Both these doctrines were due to a desire to withdraw the case from the jury and to submit it to the Court, in cases in which it was thought desirable to have a clear decision upon the legal consequences of certain states of fact. The older modes of proof necessarily gave a ‘general verdict’; and it was equally possible for the jury, which had stepped into their place, to return a general verdict. Under a system which prevented the judge from clearly directing the jury as to the points of law involved in the case, the growing complexity of the law made it very dangerous to allow the jury to return such a verdict. Therefore these methods were devised for ousting the jury, and for getting a point of law decided by the Court. Both these doctrines lived on in the law long after their original raison d’être had disappeared. Neither can be understood, unless we understand the peculiar difficulties involved in the conduct of a case in court according to the procedure recognized in the fourteenth and fifteeth centuries.

Towards the close of this period this system of oral pleading began to be superseded by the system of written pleadings, which, when complete, were entered on the record. The practice in its final form is thus described by Stephen1 :—‘The present practice is to draw them (the pleadings) up in the first instance on paper, and the attornies of the opposite parties mutually deliver them to each other out of court . . . these paper pleadings at a subsequent period are entered on record.’ This change, it may be said, is merely a mechanical change; but, as Maine has noted,2 in reference to another change of a similarly mechanical character—registration of title—the effect of such a change on the fabric of the law may be considerable. Perhaps it was the more considerable because it was accompanied by another change, of even greater importance. It was just about this period that the practice of calling witnesses to testify to the jury was becoming common, and was giving birth to our modern law of evidence.3 The pleading which defines the issue begins to separate itself from the explanatory statements of counsel and their arguments upon points of law on the one side, and from the sworn evidence for the facts pleaded or stated on the other. These changes had considerable effects upon the jury, the court, the legal profession, the law report, and the law. In the first place, we shall say something of the manner in which these changes were effected, and in the second place, we shall summarize their results.

As to the date at which and the stages by which the practice of pleading by means of paper pleadings were introduced, we know very little. Gilbert thought that they began to be introduced in the reign of Richard II;1 but, as Reeves points out, there is very little foundation for this conjecture.2 It is probable, however, that the growth of technicality and formalism in pleading may have introduced some changes, so gradual that they were hardly noticed, in the mode of bringing the pleadings of the parties before the Court. That the rules of pleading were becoming formal and fixed is clear from the number of cases in the Year Books of Henry VI and Edward IV’s reigns which turned simply upon matters of form.3 In one case it is reported that the judges were reluctant to depart from a precedent laid down in the Novae Narrationes, though apart from this precedent they would have come to another conclusion.4 It appears, too, from this case, that they sometimes consulted the prothonotaries as to the proper form of plea; and no doubt a form of plea which was sanctioned after such consultation would easily harden into a fixed rule.5 Before a plea was entered on the roll there is sometimes a friendly discussion as to its form; and then the opposing counsel promises an answer on the following day.6 As to the exact mode of entering such pleadings on the roll, there was probably no very fixed practice. In a case of Henry VI’s reign three prothonotaries of the Common Bench summoned to give evidence on this point all differed. The Court apparently considered that the pleadings should be entered day by day as the case proceeded.7 This makes it the more probable that the conclusion which Reeves1 arrived at, after the study of the Year Books of this period, is correct.

But this further change to a system of paper pleadings was not well established, Reeves thinks, till the reign of Elizabeth. During the whole of the mediæval period the pleadings were usually pleaded by the serjeants or apprentices, and sometimes by the litigant in person at the Bar. They may have been enrolled as the case proceeded; and the copy of the roll may have been available to the pleader on the opposite side.1 But subject to this modification, which was no doubt caused by the growing complexity of the rules of pleading, the issue was settled in the old way. It is probable that we must look to the development of the law of evidence for the causes of the change to the later system of paper pleadings interchanged between the parties or their attorneys.

In the Year Book of 38 Henry VI we have perhaps the first and certainly an early mention of a ‘paper’ pleading.2 The tenant and his attorney in a writ of right had made default at nisi prius. The judges had recorded this default, and discharged the jury. In the Easter term the tenant came to the Bar, and his presence was recorded. Thereon Billing and Laicon, counsel for the defendant, prayed judgment against the tenant. Choke and Littleton were counsel for the tenant; and the tenant requested them to plead the fact that while coming to the former trial he and his attorney had been stopped by floods, in order that by this plea his former default might be saved. But these floods were alleged to have been in the county Palatine of Durham and another county; and the serjeants knowing nothing of the matter, and apparently suspecting the truth of these statements, declined to plead them.

Billing and Laicon then moved for judgment, commenting upon the character of a plea so suspicious that even the tenant’s own counsel would not plead it. Choke and Littleton then tried to excuse the tenant; but Prisot C. J. said to them:—

There was then some further discussion, and Moile J. gave it as his opinion that since the serjeants would not plead for the tenant, the tenant could do nothing else but go to the prothonotary and get a paper drawn up and plead the matter in this way.2 After further discussion on other days, it was finally settled ‘that the plea be recorded in the manner and form in which it is drawn without any amendment; and they charged the prothonotary to make no amendment,’ and then Billing and Laicon were told to answer to the plea. They demurred to it; and after some further discussion the Court told Choke and Littleton to argue the demurrer.

It is clear from this curious tale that persons not represented by counsel could get their pleas put into shape and written out on paper by the prothonotary or his clerk; and that he could then put this paper in as his plea. The Court does not consider it necessary to speak the plea for such a person, as under the old practice.1 It is also fairly obvious that, when the plea was put in or spoken, it might be amended before it was enrolled, for a special instruction is given that this extremely suspicious plea is not to be amended. We may also note that it is the party or his attorney, and not serjeant, who is identified with these paper pleadings; and we shall remember that Stephen, talking of the settled practice of later days, tells us that it is the attorneys of the parties who deliver these pleadings to one another. But for our purpose perhaps the most important point to note is the fact that as yet the serjeant who pleads a plea takes upon himself some responsibility for its accuracy. Though Moile thought there was no objection to such a manner of pleading when counsel had declined to plead, Prisot objected on the ground that it would be a bad precedent to allow persons represented by counsel to thus put in paper pleas.

In the course of the sixteenth century the practice of proving by witnesses the facts stated in the pleadings was growing.2 A very cursory inspection of Plowden’s reports will show this. It may be that here, as in other cases, the competition of the Chancery exercised a liberalizing influence upon the doctrines of the Common Law Courts. Persons whose witnesses were frightened by the prospect of proceedings for maintenance applied to the Chancellor for a subpoena directed to these witnesses. The witnesses, being thus compelled to testify, ran no risk of proceedings being taken against them.3 A statute of 1563 allowed process to issue to compel the attendance of such witnesses;4 and Sir Thomas Smith regards their presence as the usual accompaniment of a trial.1 This clearly tends to shift away from counsel the responsibility for the truth of pleas pleaded by him, and to take away Prisot’s objection to such paper pleas being put forward by persons represented by counsel; this being so, it would appear that even according to the view of Prisot, and certainly according to the view of Moile, there could be no objection to paper pleadings. We are not, therefore, surprised to find that in the later Year Books of Henry VII and VIII’s reign the questions argued are rather questions as to the form and effect of pleadings already settled, than questions as to the form which the issue shall take; and we can say the same thing of the earlier cases in Dyer’s reports. This clearly points to the growth of the practice of settling the pleadings out of court.2 When Sir Thomas Smith wrote, pleadings could be either written or spoken;3 and in 1584 the serjeants in Dowman’s case4 treat the distinction between the pleadings and the evidence for the pleadings as well settled. In fact the growing complexity of the science of pleading was making it a very special subject, to be learned best in the office of the prothonotaries.5 Their clerks were employed by the attorneys to draw up the pleadings,6 and often themselves acted as attorneys for the parties.1 At the same time the conduct of the case in court was becoming a very different thing, and demanded very different qualities now that there were witnesses to be examined and cross-examined. The skilful construction of pleadings became a branch of legal learning distinct from the actual laying of the proofs for the pleadings before the Court, and the maintenance of their validity in court. The art of the special pleader falls apart from the art of the advocate.2 The attorney who is brought into close contact with his client collects the facts and the proofs; either he or the special pleader puts them into shape, according to the minute and technical rules of pleading; the serjeant or the apprentice conducts the case raised by the pleadings through the Court, maintaining their validity, attempting to prove by his witnesses or documents the issues of fact, and arguing the issues of law.3

In describing these changes we have gone beyond the period of the Year Books. Neither the changes nor their effects were fully felt till well on into the sixteenth century. We shall here only briefly indicate their effects in order that we may be the better able to appreciate the differences between the mediæval and the modern law and law report.

(1) These changes affected the jury. When the pleadings were drawn up and the issue fixed before the parties came into court, when the evidence was given after the jury had been summoned, it is clear that the character of the jury will change from that of witnesses to that of judges of the facts.1 When this change has taken place the importance of drawing the jury from the locality of the disputed occurrence will be lessened. Thus many cases turning upon disputes as to venue which we find in the Year Books become obsolete. (2) They affected the Court. The practice of summoning witnesses to testify to the Court was the direct cause of the growth of our modern law of evidence, and of the growth of new modes of controlling the jury suited to the jury’s new position of judges of fact.2 (3) They probably affected the legal profession. They introduced a distinction between those who prepared the pleadings and settled the issue and those who conducted the case in court. It was in the sixteenth century that the Inns of Court began to insist upon the exclusion of attorneys.3 It may be that the new division of duties which these changes introduced helped to accentuate an existing division in the legal profession. The old distinction between the narrator and the attorney4 was sharpened and perpetuated by a new arrangement of the duties of the profession. (4) They certainly affected the style of the law report. We must know the pleadings to understand the argument and the decision; but it is the argument and the decision in which the interest of the case centres. Decisions which turn on mere matters of fact can be eliminated. Arguments or dicta which have no bearing upon the judgment can be likewise eliminated. Thus the modern report is no mere account of conversations between judge and counsel, leading to the formulation of an issue, in which it is difficult to distinguish argument from decision, and decision from dictum; the issue is already defined; and what is reported is the law laid down by the Court upon the point thus defined. Two consequences flowed from this. In the first place the argument of counsel tends to diminish in importance compared with the ruling of the judge. We have only to compare Plowden’s or Coke’s reports with our modern law reports to see the truth of this. In the second place it becomes possible to cite a case by name for the decision of a distinct point. The reports in the Year Books are, as we have said, reports of arguments upon legal topics relevant and irrelevant to the issue. One case will often touch upon many points: there are comparatively few cases which we could cite by name as laying down a special rule. For this reason the Year Books made excellent material for Abridgements; we could hardly construct from them a volume of leading cases. (5) Naturally these changes had a great effect upon the law. The newer mode of reporting which was thereby made possible tended to greater precision in the statement of the law—to a greater certainty and fixity in its principles. No doubt the new mode of written pleading tended to verbal refinements and subtleties in the statement of the case which too often defeated justice.1 As Roger North points out, the pleaders were less under the control of the Court than they had been in the old days.2 Perhaps, too, the greater fixity in the rules of law, which rested on the definite authority of well-known decisions, made the law less flexible than it was in the days when the mode of reporting made it necessary to cite discussions of, rather than decisions upon, a given rule of law. These difficulties were felt in the eighteenth and nineteenth centuries. In the sixteenth and seventeenth centuries the advantages of clearness and certainty must have been felt by both lawyers and laymen. A case which really settled a point upon which it was possible to cite many conflicting dicta from the Year Books must have been welcome to all. The separation of such things as the pleadings, the evidence for the statements of fact contained in the pleadings, and the decision was necessary in the interests of legal development. That the new rules which took the place of the old were perfect no one can assert. But we who saw the latter end of these new rules, and their gradual reform or abolition, will not be able to do them justice unless we look at them, not from the point of view of our modern needs, but from the point of view of the old system as we see it in the Year Books. Under these new rules sprang up the greater part of our modern common law, which in our own day has supplied the material for many excellent codifying statutes. As the Formula in Roman law bridged the gap between the period of the Legis Actiones and the procedure of the later Empire, so our rules of procedure under the régime of the strict law of pleading bridged the gap between the period of the Year Books and the modern Rules of the Supreme Court. In both cases the foundations of the greater part of what is valuable was laid in this intermediate period.

The Year Books represent the initial stage of the purely professional development of the common law. They picture for us that stage in a more personal and a more vivid way than any subsequent stage is pictured. Law reporting is in its youth. The law reporters do not, as we have seen, deem it beneath their dignity to notice the external incidents, the ‘scenes in court,’ which pass before their eyes.1 They give us what they see, and combine the functions of the journalist and the skilled legal reporter. For all that, we can see that the strength and the weakness of a purely professional development of law is much the same then as now. Its strength is the logical grouping of confused facts under general principles, the application of those principles in detail to new states of fact, the ingenuity with which old principles and old remedies are restricted or extended to meet the new needs, physical, commercial, or moral, of another age. We see these qualities most strikingly displayed in the gradual development of new principles of delictual liability, and new principles of contract, in the recognition of the interest of the lessee for years and the copyholder. Its weakness is caused largely by the very defects which are inherent in its virtues. It cannot take large views as to the state of this or that branch of the law. It can only advance step by step from precedent to precedent. It cannot disregard the logical consequences of its principles, though in practice their strict application may be inconvenient. It is loath to admit new principles, and will not do so unless compelled by such considerations as the loss of business consequent upon the competition of a rival Court. If once a rule or a set of rules have become established they cannot be removed, however great a hindrance they become. They can only be explained or modified; with the result that the rule with the modifications and exceptions added becomes a greater nuisance than the original rule itself. We can see from the Year Books that a purely professional development is not good for the health of any legal system. The unrestrained efforts of a hierarchy of professional lawyers is apt to produce results similar to those attributed by Maine1 to the unrestrained efforts of a hierarchy of priests; ‘usage which is reasonable generates usage which is unreasonable.’ English law at the close of the Middle Ages was suffering, as it suffered at the close of the eighteen century, from a development too exclusively professional. At both periods it stood in urgent need of revision by the light of outside public opinion, if it was to meet the new requirements of another age.

[1 ]This essay was first published as Part II of an article entitled “The Year Books,” in the Law Quarterly Review, vol. XXII, pp. 360-382 (1906), and has been revised by the author for this Collection; it will form a part of the author’s History of English Law, vol. II, to appear in 1908.

[2 ]Lecturer in St. John’s College, Oxford. A biographical notice of this author is prefixed to Essay No. 9, in volume I of this Collection.

[1 ]P. & M. ii. 589, 590.

[1 ]Articuli ad Novas Narrationes (Tottel’s ed. 1561), ff. 77 b, 78: ‘Igitur in omni casu primo opus est videre ac intellegere casum. Casuque bene notato et intellecto, tunc impetrare breve iuxta casum, et deinde super breve bene narrare secundum naturam actionis in forma superius recitata. Quia ubi non habetur bonum et certum breve, quod est omnium actionum fundamentum et originale, impossibile est manutenere bonum placitum, neque facere narrationem congruam, iuxta naturam brevis super quo narraturus est.’

[2 ]xxii. L. Q. Rev. p. 371, n. 6.

[3 ]P. & M. ii. 590, 591.

[4 ]e. g. Y. B. 1, 2 Ed. II (S. S.), 19.

[5 ]3 Ed. I, c. 43; 6 Ed. I, st. 1, c. 10; Reeves, H. E. L. ii. 36, 37.

[6 ]1 Y. B. 19 Ed. III (R. S.), 12; as Mr. Pike says, Introd. xxvi, “We see the defendants after seven years of successful fourching, left fourching in infinitum.”

[1 ]e. g. Y. B. 2, 3 Ed. II (S. S.), 141; early Roman civil procedure seems to have recognized something like the view, Greenidge, Civil Procedure in Cicero’s Time, 55, 56.

[2 ]Reeves, H. E. L. ii. 632.

[3 ]e. g. Y. B. 12, 13 Ed. III (R. S.), 316—a case which shows that this was so even when there were several defendants, and the protection was cast for one only; Reeves, H. E. L. ii. 615.

[4 ]For a hard case of this kind, see Y. B. 1, 2 Ed. II (S. S.), 150.

[5 ]See e. g. Rot. Parl. iii. 594 (7, 8 Hy. IV, no. 112), justice was delayed because the judges were ‘en divers opinions et ambiguities’ owing to the fact that on the panel a juror’s name was Congrove, while in the writs of Habeas Corpus and Distringas he was called Gongrove.

[6 ]1 Y. B. 18, 19 Ed. III (R. S.), 152.

[7 ]Real Actions 115, and the case there cited; cp. ibid. 157 for similar remarks as to process upon the writ of Formedon.

[8 ]Reeves, H. E. L. ii. 93.

[1 ]P. & M. ii. 591-3; Reeves, H. E. L. i. 452-6.

[2 ]Holdsworth, H. E. L. i. 87-9, 105, 106.

[3 ]Y. B. 30, 31 Ed. I (R. S.), 258.

[4 ]Y. B. 36 Hy. VI, pl. 21 (pp. 25, 26): ‘Sir la Ley est come j’ay dit et ad este tout dits puis la Ley fuit commence, et nous avons plusors courses et forms qui sont tenus pour Ley, et ont este tenus et uses per cause de reason, nient obstant que modo le reson ne soit prest en memory.’

[1 ]‘The law servyth of nought ellys in these days,’ ran Cade’s proclamation in 1450, ‘but for to do wrong, for nothyng is sped almost but false maters by colour of the law for mede drede and favour.’—Three Fifteenth Century Chronicles (C. S.), 96.

[2 ]P. & M. ii. 605.

[3 ]P. & M. ii. 605-12.

[4 ]Pleading (5th ed.), 137, 138.

[1 ]P. & M. ii. 599-600; Thayer, Evidence, 9, 10; Holdsworth, H. E. L. i. 136, 137.

[1 ]See e. g. Bracton’s Note Book, case 1115.

[2 ]P. & M. ii. 663-5; cp. Holdsworth, H. E. L. i. 296 for a survival of this idea in the Channel Islands; for a similar idea in Roman Law, see Sohm, Institutes (tr. G. Ledlie), ed. 1892, 153. Greenidge, Legal Procedure in Cicero’s Time, 84, speaking of the civil law formulae, says: ‘Nor is it at all likely that these civil “formulae” were preceded by any ruling in law, by any promise of an action, or in fact by anything of the nature of an edict. For the praetor could not promise where he could not refuse, and the ruling was not his, but that of the ius civile. So far the praetor professes to be only an exponent of something beyond and behind him.’

[3 ]Holdsworth, H. E. L. i. 155, 156.

[4 ]For an analogy in Roman Law cp. Girard, 952: ‘Il (le magistrat) donne simplement par son concours une sorte d’authenticité indispensable aux actes des parties spécialement à ceux du demandeur . . . son rôle est un rôle d’assistant sinon purement passif au moins un à peu près mécanique’; Greenidge, Legal Procedure in Cicero’s Time, 84.

[1 ]See e. g. Y. B. 3 Ed. II (S. S.), 187.

[2 ]P. & M. ii. 627, 628.

[3 ]Y. B. 20, 21 Ed. I (R. S.), 280, Louther said arguendo, ‘Every word spoken in court is not to be taken literally; they are only paroles de la court’; 3 Ed. II (S. S.), 35, 167; Y. B. 17, 18 Ed. III (R. S.), 584, Shardelowe says, ‘Many matters are counted by way of form which are not traversable’; P. & M. ii. 606; cp. the gradual disuse of the formal words of the Legis Actio; Cicero, Pro. Mur. 11, 25 (cited Greenidge, Legal Procedure in Cicero’s Time, 163, n. 1), says: ‘Primum dignitas in tam tenui scientia non potest esse. Res enim sunt parvae, prope in singulis literis atque interpunctionibus verborum occupatae. Deinde, etiamsi quid apud maiores nostros fuit in isto studio admirationis, id enuntiatis vestris mysteriis totum est contemptum et abiectum.’

[4 ]P. & M. ii. 609.

[1 ]P. & M. ii. 623, 655, 656.

[2 ]Pleading, 29.

[1 ]See The King v. Cooke (1824) 2 B. & C. 871 for a curious survival of this reason for certainty in pleading.

[1 ]Y. B. 3 Ed. II (S. S.), lxxi, and 69.

[2 ]Cp. xxii L. Q. Rev. p. 284, n. 10; Y. B. 3 Ed. II (S. S.), 197, information seems to have been supplied to the reporter by the clerk.

[3 ]Y. B. 3 Ed. II (S. S.), 31-6, 97, 116-8.

[4 ]Ibid. 16.

[5 ]For some account of this, see Greenidge, Legal Procedure in Cicero’s Time, 179-81.

[1 ]Y. BB. 21, 22 Ed. I (R. S.), 148, 242; 33-5 Ed. I (R. S.), 476.

[2 ]Y. B. 36 Hy. VI, pl. 21, p. 26, Fortescue sums up the points of the case for the benefit of the apprentices, serjeants, and others of his company; Y. B. 3 Ed. II (S. S.), 36, Bereford C. J. says to Westcote, ‘Really I am much obliged to you for your challenge, and that for the sake of the young men here, and not for the sake of us who sit upon the bench. All the same you should answer over.’

[3 ]Y. B. 3 Ed. II (S. S.), lxvi-lxviii.

[1 ]Thayer, Evidence, 114, 115.

[2 ]Y. B. 2, 3 Ed. II (S. S.), 136, 137.

[3 ]Y. B. 18 Ed. III (R. S.), 152, Sharshalle J.: ‘For that matter I should hold him to be a foolish pleader if he pleaded to the demandant’s action within the liberty, but he would say that he ought not to answer there because the tenements are outside the liberty, and upon that he ought to abide judgment, whereupon, if judgment were rendered against him, he would have the Assize.’

[1 ]Y. B. 11, 12 Ed. III (R. S.), 88, Trewith, after some pleading, seeing that the Court was against the writ, demanded that it should abate. ‘You shall not get to that,’ said Parning; ‘you have pleaded higher, and thereby affirmed the writ as good.’ ‘I vouch the record of the roll,’ said Trewith, ‘that it was not of my own accord, but by the advice of the Court.’

[2 ]Y. B. 14 Ed. III (R. S.), 60, ‘Scrope was on the bench and said: “What you say as to two bastards you say well, but, in God’s name, you might have saved yourself against her by way of replication . . . and this replication must have been entered on the roll.” ’

[3 ]Y. B. 11, 12 Ed. III (R. S.), 42, Trewith, ‘Whatever thing a party may plead and pass over without regard of the Court and join issue on a plea, then nothing shall be recorded except the issue; for of that which was spoken and pleaded before and waived without award, nothing shall be entered on the roll’; Hillary J., ‘You say wrong’; Y. B. 3 Ed. II (S. S.), 129, Bereford C. J., ‘You did not demur there. So you cannot take advantage of that.’ Cp. Y. B. 19 Ed. III (R. S.), 332, a counsel is allowed to amend his count before exception has been taken to it.

[4 ]Y. B. 3 Ed. II (S. S.), 129, and Introd. lxvi, lxvii.

[5 ]H. E. L. ii. 223.

[1 ]Y. B. 3 Hy. VI, Pasch. pl. 10, Formedon against J and A his wife; the demandant counted against them on a gift in tail made by deed to the ancestor of the demandant. Paston by mistake said by virtue of which the donor was seised, whereas he should have said donee; the husband made default then and at the petite cape; the wife prayed to be received to defend her title, and relied on the faulty count. Paston offered to plead anew, and he and Martin argued that this could be done; Babington contra; Cokain agreed with Paston and Martin, putting the case of a protection and a resummons, ‘Mettons que apres le count le parol uste este mis sans jour per protection, et ore le demandant ust sue resummons envers le tenant, ne duist le demandant or count de novel? jeo dis que si pur ceo que parol serra my sans jour pur ceo fuit le premier count alle et determine: et en resommons il serra pris sicome nul count ust jamais, et sicome il n’est jamais eu nul auter breve devant eyant regard al count; Sic hic’; cp. Y. B. 5 Hy. VII, Trin. pl. 4—this shows how conceivably rules of process might be used to save the consequences of an otherwise fatal error.

[2 ]Thayer, Evidence, 125-9.

[3 ]Holdsworth, H. E. L. i. 155, n. 9.

[4 ]Y. B. 14 Ed. III (R. S.), 248.

[5 ]Y. B. 38 Hy. VI, Pasch. pl. 13.

[6 ]Y. B. 14, 15 Ed. III (R. S.), 346.

[1 ]See Longo Quinto, 58, cited Thayer, Evidence, 133, 134.

[2 ]For this doctrine, see Thayer, Evidence, 118, 119; Reeves, H. E. L. ii. 629-32. ‘Suppose,’ says Reeves, ‘A enfeoffed B of land, and an assize was brought by a stranger against B, B could not plead these facts simply, as such plea would amount only to the general issue; he would be obliged to plead the general issue, and the case would be left to the jury. He, therefore, by a wholly fictitious averment, gave the plaintiff colour, i. e. a prima facie cause of action. Thus, after pleading that A had enfeoffed him, he would further plead, “that the plaintiff claiming by colour of a deed of feoffement made by the said feoffor, before the feoffement made to the said tenant (by which deed no right passed) entered, upon whom the said tenant entered,” this left a point of law for the Court, i. e. the validity of the alleged first deed, and thus the case was withdrawn from the jury’; see Y. B. 3 Ed. II (S. S.), 156.

[3 ]This is explained by Eyre C. J., delivering the opinion of the judges to the House of Lords, in Gibson and Johnson v. Hunter (1793) Dougl. 187, at p. 206: ‘If the party wishes to withdraw from the jury the application of the law to the fact, and all consideration of what the law is upon the fact, he then demurs in law upon the evidence, and the precise operation of that demurrer is to take from the jury, and to refer to the judge, the application of the law of the fact.’

[1 ]Pleading, 27, 28.

[2 ]Early Law and Custom, 357.

[3 ]Holdsworth, H. E. L. i. 159, 160.

[1 ]Gilbert, Origins of the King’s Bench (ed. 1763), 315.

[2 ]H. E. L. ii. 398, 399.

[3 ]H. E. L. ii. 619-53; at p. 620, he says: ‘Almost everything substantial in pleading . . . was settled by judicial determination in the reigns of these kings.’

[4 ]Y. B. 39 Hy. VI, Mich. pl. 43.

[5 ]Longo Quinto, p. 22; for another case, see ibid. p. 23, and Y. B. 33 Hy. VI, Mich. pl. 40; for cases in which the clerks either ask or give advice in matters of process or pleading, cp. Y. BB. 11, 12 Ed. III (R. S.), 426, 434; 13, 14 Ed. III (R. S.), 258, 310; 14, 15 Ed. III (R. S.), 74—rule noted as contrary to the opinion of the clerks.

[6 ]Longo Quinto, 35.

[7 ]Y. B. 39 Hy. VI, Mich. pl. 32; Y. B. 2 Ed. IV, Mich. pl. 14.

[1 ]H. E. L. ii. 621, 622; cp. Y. B. 16 Ed. III (R. S.), i, 64: ‘And note that after the adjournment the roll was amended on the prayer of the tenant, when the demandant had gone with his day, because the justices recorded that the roll did not accord with the plea.’

[1 ]Cp. Y. B. 21 Ed. IV, Mich. pl. 4 (p. 43): ‘Lendemain le pleintif en breve d’Error vient in propre person et pleda ce plee en le forme ensuant “ye have here, &c.”—en Englois [then follows the Latin entry on the roll giving the effect of the plea], A auter jour Catesby monstra tout le plee que il ad plede n’est pas bon.’

[2 ]Y. B. 38 Hy. VI, Pasch. pl. 13.

[3 ]‘Pourquoi il ala a Comberford protonotary et pria que il voille faire a luy papier de ceo matter; que fait issint; et puis il vint ove le papier et la prist a Choke a le barre, et luy pria a getter ceo en le Court, et issint il fist per son commandement sans pleder ou sans voier que fuit deins le papier, et cest papier, demour ove Copley un auter protonotary pur ceo que il avoit l’entrie de le matter a devant.’

[1 ]‘Prisot dit a eux. N’aures unques worship per tiels matters, issint faux et suspecious, car ceo matter n’aura nul favour icy, ne nul tiel; et il n’ad este use cy a mettre eins tiels papiers quand le party ad Consail ove luy sans eux pleder al barre overtement; car si cest point serra suffre nous aurons plusors tiels papier en temps avenir, que viendra eins desous un cloak, et il puit estre dit suspecious matter que son Consail ne veut pleder. Purquoi il dit a eux, si voules pleder cest matter, pledez, ou autrement il servira pur rien. Et ils respondent qu’ils n’osent pleder, ne ils ne scavent unques de le matter, mais come il avait dit; et disoient qu’ils ne voillent pluis mesler ove ceo.’

[2 ]‘Quand le party fuit icy, et son presence record, et command a pleder, et il vient ove sa matter a son Consail et ils ne voillent pleder le matter pur le suspecion, que poit il donques faire, mes va al’ protonotary et fait un papier et le mist eins pur son excuse, n’ad il donques bien fait?’

[1 ]Y. B. 11, 12 Ed. III (R. S.), 66: ‘And because the plaintiff was a poor man, and the Court itself had spoken the declaration, the defendant was driven to answer.’

[2 ]Holdsworth, H. E. L. i. 160.

[3 ]Stavern v. Bouynton, Cal. i, xix, petition to the Chancellor for a subpoena to the witness, ‘for the cause that he shuld noght be haldyn parciall in the same matier’; cp. Select Cases in Chancery (S. S.), No. 126.

[4 ]5 Eliz. c. 9, § 6.

[1 ]De Republica, Bk. 2, c. 18.

[2 ]In the Praxis Utriusque Banci (ed. 1674), 28, an order of Prisot C. J. and the other judges of the C. B. of Trin. 35 Hy. VI is cited as to the fees of the prothonotaries; for every ‘comen declaracyon, comen Plee en barre, comen replycacyon, and comen rejoinder in Plees personel,’ whether the defendant appear in person or by attorney the sum is 13s. 4d.; for personal pleas pleaded by a serjeant 2s. Does this show that the prothonotaries drew ordinary common form pleadings at this date? Smith, Republic, Bk. 2, cc. 1 and 14, talks of the prothonotaries settling the pleadings.

[3 ]Bk. 2, c. 12, he tells us that the judges ‘heare the pleading of all matters which do come before them: and in civill matters where the pleading is for money, or land, or possession, part by writing, and part by declaration and altercation of the advocates the one with the other, it doth so procede before them till it do come to the issue which the Latines do call statum causae.’

[4 ]9 Co. Rep. 9 b.

[5 ]Dyer C. J. (Praxis, &c. 42), in his charge in 1567 to a jury of attorneys appointed to inquire into misdemeanours in his court, says that he had himself acted as such a clerk.

[6 ]Praxis, &c. 40, Orders of the Judges of the C. B. Mich., 15 Eliz. No. 10, to the effect that no prothonotary’s clerk who is an attorney is to draw up ‘any paper or book of the office’ wherein he is a clerk, in a case in which there is special pleading, and in which he is the attorney of the plaintiff or defendant, unless the other side consent. See Rot. Parl. iii. 306 (16 Rich. II, No. 28), for a complaint of abuses arising from this practice; ibid. 642 (11 Hy. IV, No. 63), a petition that no prothonotary or filacier of either bench shall be an attorney is declined; and cp. ibid. 666 (13 Hy. IV, No. 49).

[1 ]Praxis, &c. 113, Orders of Hill. 8, Car. I, separated the office of clerk to the prothonotaries and the attorney. The former were to draw the pleadings; the latter prosecuted and defended actions for clients. We may note that the clerks were to serve six years in the office, and belong to an Inn of Chancery. Did this lead to the rise of the separate class of special pleaders?

[2 ]Smith, Republic, Bk. 2, c. 18, assumes that the trial is distinct from the pleadings; in fact the trial as he describes it has all the modern incidents.

[3 ]Smith, ibid., Bk. 2, c. 1, puts into one class the judges, serjeants, and counsellors, in another the prothonotaries, the attorneys, and solicitors; Greenidge, Legal Procedure in Cicero’s Time, 148, tells us that at Rome the pleaders (advocati) tended to fall apart from the eloquent patroni.

[1 ]Holdsworth, H. E. L. i. 160, 161.

[2 ]Ibid. 165, 166.

[3 ]Black Books of Lincoln’s Inn, i. 315 (Order of 1556); Dugdale, Orig. Jurid. 310.

[4 ]Manning, Serviens ad Legem, 125; Y. B. 32, 33 Ed. I (R. S.), xxxii; P. & M. i. 190, 191; cp. Greenidge, Legal Procedure in Cicero’s Time, 146, for a somewhat analogous distinction between the cognitor and the patronus; when a litigant is represented by a cognitor he does not intervene at all; but the patronus does not represent him; if he is not himself present he is undefended; ‘the patronus cannot take his place; he is only an able interpreter, intervening for the purpose of illustrating the law and marshalling the proofs in his client’s interests.’

[1 ]See Y. B. 3 Ed. II (S. S.), lxviii. Professor Maitland says of the introduction of written pleadings that, ‘It forced our common law into a prison-house from which escape was difficult. Instead of being able to ascertain the opinion of the judges about the various questions of law that are involved in the case, the pleader, without any help from the Court, must stake his reputation and his client’s fortune upon a single form of words.’

[2 ]Life of Lord Keeper Guilford (Jessopp’s ed.), i. 27, 28: ‘Now the pleadings are all delated in paper, and so pass the offices, and the Court knows nothing of much the greater part of the business that passeth through it: and when causes which they call real come on and require counting and pleading at the bar, it is done for form and unintelligibly; and whatever the serjeant mumbles it is the paper book that is the text: and the Court as little meddles with as minds what is done of that sort at the bar; but the questions that arise are considered upon the paper book. All the rest of the business of the Court is wrangling about process and amendments, whereof the latter had been mostly prevented, if the Court (as formerly) had considered the first acts of the cause at the bar when offered by the serjeants.’

[1 ]See xxii L. B. Rev. p. 278.

[1 ]Ancient Law, 19, 20.