Front Page Titles (by Subject) 39.: CHARLES MCGUFFEY HEPBURN, THE HISTORICAL DEVELOPMENT OF CODE PLEADING IN AMERICA AND ENGLAND 1 - Select Essays in Anglo-American Legal History, vol. 2
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39.: CHARLES MCGUFFEY HEPBURN, THE HISTORICAL DEVELOPMENT OF CODE PLEADING IN AMERICA AND ENGLAND 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 2 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1908). Vol. 2.
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THE HISTORICAL DEVELOPMENT OF CODE PLEADING IN AMERICA AND ENGLAND1
The word “code” as a term of law
THE word “code” is of comparatively recent use by American and English lawyers. As late as 1850 its appearance among our terms of law was apt to excite remark, so rarely was it then found in such company;3 and its derivations “codify” and “codification” had scarcely escaped from the ridicule and abuse which had been heaped upon them as barbarous innovations in a bad cause. Apart from its derivations, however, “code” is an old word in English. It had appeared there, coming out of the Latin through the French, as early as the days of Chaucer; apparently it was on a secure footing in the language at the beginning of the fifteenth century. But at the beginning of the nineteenth century “code” was still without standing in the vocabulary of our law, on either side of the Atlantic.
Early use of “code” in English as a lay word
Its general use in English meanwhile had been that of a lay term, and of vague import. Because of the etymological meaning and use of its Latin original—codex, or caudex, the trunk of a tree, and hence the wax-smeared tablet of wood originally used by the ancients in writing, and so the writing itself—“code” in English might convey, and to some extent did convey, the general notion of anything reduced to writing. It is synonymous in most of the early dictionaries with our native word “book,” whose etymology, curiously enough, it parallels. More particularly it denoted a collection of writings. At the close of the eighteenth century Paley refers, as a matter of course, to the Bible as consisting of two “codes,” the “code, or collection, of Christian sacred writings” and the “code, or collection, of Jewish sacred writings.” More often, the word, while still a lay term, had a flavor of the law. Whether or not our older dictionaries define it merely as a “book,” “a volume,” they steadily define it as “a book of the civil law”; for the best-known collections of Roman law bore each the name of codex.
These two meanings are the only meanings which “code,” when used by itself in English, was popularly supposed to bear, until about the year 1800. It had no definite reference to any aspect of English law. When qualified, the word might indeed denote several distinct things in the field of law, widely separated in time and in their natures. It could refer to the code of Theodosius, published in the fifth century, or to the more famous code of Justinian, published a century later. The Ordonnances of Louis the Fourteenth might be called a code. The collection of Prussian laws which was published in French and in German under the auspices of Frederick the Great bore the name of “Code Frederic.”
Its long absence from our legal nomenclature, and the significance thereof
But all these applications of the word, both general and specific, lay outside of English and American law. “Code” found no place in Jacob’s Dictionary “explaining the rise, progress, and present state of the English law”; even ten editions and the added researches of Tomlins had failed to note it as a term of our jurisprudence as late as the year 1797.
The real significance of this should not be overlooked. It does not lie in the absence of the word from our legal nomenclature, but in the absence of the thing from our legal system. The word was at hand, ready for use, but at this time, the beginning of the nineteenth century, there was no one thing, actual or clearly designed, in the legal system of either England or the United States, to which “code” was naturally and specifically applicable.
Appearance of “code” as a term of modern law
A little after the year 1800 the word began to come into use among English and American lawyers as denoting something new in the scope and purpose of our jurisprudence. The French codes, promulgated at short intervals and with reiterated emphasis between the years 1804 and 1810;1 the writings of Jeremy Bentham, before and after this period—notably his View of a Complete Code of Laws, his offer to the president of the United States, and afterwards to the governor of every state, to prepare a code for the use of the American States, “or such of them, if any, as may see reason to give their acceptance to it,”2 his Codification Proposal, addressed “to all nations professing liberal opinions”; the codes actually drafted by Edward Livingston for the State of Louisiana,—these and other causes operated in the opening years of the nineteenth century to give the ancient word “code” an effective introduction as an important term of modern law.3 They gave it also a suggestive embodiment. It presently came to stand for something tangible in our science of law. More than this, it became the watchword of a new and aggressive spirit of law reform on both sides of the Atlantic.1 And it is significant of the progress which this reform has already made that the legal neologism “code” is now in the most familiar daily use by both the bench and the bar of all the United States.
Where code pleading of this type prevails
Apart from any question as to the merits of this type of pleading, its geographical extent gives it an easy preeminence over every other American and English statutory pleading, and over what is left of common law pleading. The latter was not so wide-spread in its palmiest days. For “code pleading” has already supplanted it or usurped its natural place in twenty-seven states of the American Union, and in essentials if not in the very letter has dispossessed common law pleading in its ancestral home, even in England, and found a way into India, into the colonies of Australia, into the Dominion of Canada, and widely elsewhere among the British Possessions. Following the sway of the Anglo-Saxon, it has encircled the earth. It may well claim the respect which is due to widest dominion.
Within the American Union code pleading now prevails in four of the Atlantic States, in three of the Central States, and almost exclusively in the West—in Connecticut, New York, North Carolina, and South Carolina; in Kentucky, Ohio, and Indiana; and through the vast region occupied by the contiguous commonwealths of Wisconsin, Minnesota, Iowa, Missouri, Arkansas, Oklahoma, Kansas, Nebraska, South Dakota, North Dakota, Montana, Wyoming, Colorado, Arizona, Utah, Nevada, Idaho, Washington, Oregon, and California.
The twenty-seven states named above make up what are commonly called the “code states”; there is a tendency to group all the other members of the Union as “common law states.” But here a distinction or two must be kept in mind. In every one of the United States statutory modifications of the older procedure have been so many and so great that the science of common law pleading no longer exists anywhere with us in its entirety. By “common law states,” then, is to be understood those states in which the pleading is partly according to common law rules, whether now existing as unwritten law or in the form of statutory enactments, and partly according to new statutory requirements, with the common law element predominating. The term may be applied, with more or less appropriateness, to the States of Maine,1 New Hampshire, Vermont, Rhode Island, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, West Virginia, and Florida, Illinois, and Michigan, the Territory of New Mexico, and the District of Columbia.
But not all the remaining states are “common law states” even in this loose sense. Massachusetts, Maryland, Tennessee, Georgia, Alabama, Mississippi, and Texas have not established “code pleading” in the sense already explained, but they have established fairly complete statutory systems, which, like “code pleading,” arise out of the common law,2 and in other respects are very near akin to “code pleading.” In a sharply drawn division between “code states” and “common law states,” they are to be ranked with the former. For convenience they may be referred to as quasi-code states.
The barbarian invasion of the codes
The change from common law pleading to code pleading of the type referred to in the preceding chapter came, when it did come, as suddenly as a barbarian invasion; and for many years it was hotly resisted as something barbarous by a host of able practitioners. Conservative lawyers have scarcely yet ceased to ascribe the change to a “love of innovation,” to “barbaric empiricism,” to the “suggestions of sciolists, who invent new codes and systems of pleading to order.”1
But such were far from being its real causes. The overthrow of common law pleading was not due to a mere whim of legislative vandalism. Its causes had grown out of an urgent, practical, long-felt need, out of an oft-repeated failure of justice, out of a public sense of substantial injustice. They had been gathering strength for centuries. Their beginnings lay in the very foundations of our older systems of pleading.
Their true source
Considered in their most general aspects, the causes of the change may be said to rest in one—an inveterate incongruity between our law of procedure and our substantive law. The former had early lost the power of developing along with the substantive law. It had petrified while our modern substantive law was still in its budding growth. But the chief grounds of complaint which were urged against common law pleading were more specific. They related to the wall of separation between legal and equitable relief; to the labyrinth of arbitrary forms of action at law; to the artificial restrictions of the common law as to joining parties and as to joining causes of action; to the concealment of the real facts of a case through the verbiage or the vagueness of common law pleading.
Nor did legislation in England or America omit all efforts to relieve the suitors. But there was little substantial progress. As formerly, so now, the task of change, when approached at all, was approached with trembling hands. In the four hundred years which preceded the American Revolution, in the seventy years which followed it, the reformatory statutes were comparatively few in number and all were timid in spirit. So timid and imperfect were they that the root of the evil remained untouched. The real causes of a mischief which was felt by all lay embedded in the foundation of a great and venerable system. They were not easily reached; their removal was not to be dreamed of. Meanwhile, our substantive rights steadily grew in number and complexity, and the art of pleading tended more and more to impede the practical administration of justice. “What would Sir Matthew Hale have said had he lived in these times of nicety and curiosity?” queried a learned English lawyer in 1820—“times in which pleading seems to be involved in all that perplexity can suggest or prolixity supply.”1 And what was true in England was true also in most of the American states, for the English precedents, brought to this country at the time of their most “sterile exuberance,” had been copied by our practitioners with painstaking care. On both sides of the Atlantic delays and expenses continued to wear out the patience of litigants and to confiscate their property. A steadily increasing number of suitors, driven to and fro from law to equity and from equity to law, entangled in a labyrinth of actions, or lost in a wilderness of words, suffered what they felt and knew to be a practical and substantial injustice. The demand for relief became more and more urgent, and slowly took form and movement.
The new movement in England Its rise—Jeremy Bentham
This growing demand was not a formless clamor of ignorance. Here and there among the lawyers were critical minds who saw the need for a change; and the cause of reform found a champion—as able, bold, and tireless as any reform could wish—in Jeremy Bentham.
His entrance into the history of English and American law is one of its dramatic incidents. He had been a pupil of Blackstone. In the year 1769, when Bentham was but twenty-one, the first complete edition of Blackstone’s Commentaries was published. High as Blackstone still stands in the esteem of lawyers on both sides of the Atlantic, the excellence of his book as a popular exposition of law is probably underrated among us. It is not only the typical achievement of the eighteenth century, in the history of our law,1 but it was the first book in which the general system of English law had been set forth in an attractive form, even with consummate literary skill. For the first time in our history the study of legal rules was not repellent. And the work had a further claim upon contemporary popularity. Our ancient legal doctrines, thus placed as in the gladsome light of jurisprudence, were also treated by Blackstone with the reverent spirit in which the rank and file of the profession then delighted to consider them, as worthy of their highest veneration. For Blackstone was an excellent representative of the legal mind of his day—that conservative mental attitude which regards whatever is established law as an immutable principle of justice; and he had expressed this spirit of the times more clearly, more elegantly, than it had ever been expressed before.
But hardly had Blackstone’s able and splendid laudation of the common law been heard than his pupil, Bentham, sounded a rude blast of opposition. It was the beginning of a long-continued assault upon entrenched abuses in the administration of justice. It was the first note of a contest whose end is not yet, but which has already accomplished the greatest revolution known in our law within the last six centuries.
The year for the beginning of this revolution, if a precise date can be given to so gradual a movement, may be said to have been 1776. It was the year of Bentham’s first book, his “Fragment on Government,” which, in general, was a criticism of Blackstone’s Commentaries at large and in particular was an attack upon his “Introduction.”2 Bentham himself has described his pamphlet—it was hardly more than that—as “the very first publication by which men at large were invited to break loose from the trammels of authority and ancestor-worship on the field of law.” But Bentham’s effective work came later. It continued for half a century, steadily growing in intensity, and ceased only when death stayed his hand in 1832.1
Bentham’s later influence.
For many years Bentham’s was the only voice raised against “ancestor-worship on the field of law.” His bold and vigorous attacks, however, set men to thinking. Slowly thoughtful lawyers gathered about him. His influence was felt on both sides of the Atlantic.2 His cherished plans, often radical to the extreme, were indeed never to be realized in full, at least within his century. Many of them were impracticable even according to present standards; nor have Anglo-Saxon peoples been able to cut loose from their historical development. But Bentham’s criticisms and those of his followers gave point and force to demands for relief which were founded on something more than theory—on a long-felt, substantial failure of justice. In some measure, also, the suggestions of Bentham’s analytical school supplied lines of action for reformers who urged less radical changes. “I do not know a single law reform effected since Bentham’s day,” said Sir Henry Maine in 1874, “which cannot be traced to his influence.”1 By slow degrees the movement grew until, about the year 1825, it assumed more than respectable proportions in both England and America.
Its first fruits
Excepting the sporadic case of the Livingston codes in Louisiana,2 the first tangible results of this movement appeared in England. Beginning in 1828—four years after the appearance of Stephen on Pleading—parliament appointed a series of commissions to inquire into the law of procedure, and other subjects, and report such changes as should be enacted. Very radical suggestions were considered by these commissions, but their recommendations to parliament, especially as to matters of pleading, were at first extremely conservative. It was still a prevailing doctrine that the existing rules of common law pleading were founded “in strong sense and in the soundest and closest logic, and so appear when well understood and explained.” The venerable system, it was said, could be adapted to the demands of modern times without impairing its integrity. Any attempt to erect a new system would cause greater mischief than the retention of the old.
This halting conservatism in the earlier stages of the movement is well shown in a report made in 1831 by the commissioners on common law practice and procedure.
“An opinion,” say these commissioners in their third report, “is entertained by some persons that all distinction as to Form of Action should be abolished and that the plaintiff should be allowed to state the circumstances of his claim, or complaint, in ordinary language, free from all restraint of technical method; and there are others who, without rejecting forms of action altogether, think that those which are now established should be resolved into more convenient and simpler divisions. We can not, however, persuade ourselves that, with respect to the forms now in common use, any considerable change would be expedient, with the exception only of the new shape which in our second report we have proposed to give to the action of ejectment. It is not that we are insensible to certain imperfections and inconveniences incident to these forms, for we feel that their classification is arbitrary and otherwise defective. But in this, as in so many other cases, we are presented with a choice of difficulties. To those who have observed the inconveniences which in other systems of judicature are found to flow from the want of fixed forms of action, it will scarcely be doubtful that they are an invention of real merit and importance. They tend most materially to secure that certainty in the right of action itself, which is one of the chief objects of jurisprudence; they form a valuable check to vagueness and prolixity of statement; and in this and other respects they are essential to the convenient application of the rules of pleading.”
Whether the other great evil, the separate administration of law and equity, should be abolished was hardly deemed a practical question at this time. It was apparently the general impression that the distinct systems for the administration of legal and equitable rights were founded in the nature of eternal entities. Nor was the question of their fusion brought to an issue in England until about thirty years later.
A spirit of criticism
Apart from actual legislation, these commissions and the movement of which they were a part had this result, at least: they shook the self-satisfied conservatism of the English bench and bar. A spirit of criticism was abroad in the land. Many became questioners of things established, even in the province of the law. So marked, indeed, was this new spirit among English lawyers that it presently attracted attention on the other side of the Atlantic, and roused a similar spirit there. “The zeal and activity with which the reform in the law has been conducted in England within the last few years,” said an American law writer in 1832,1 “present a strong contrast to the indifference with which the subject had for a long time previously been regarded in that country by the great body, both of the profession and the public. Till recently the lawyers, with very few exceptions, appeared to feel themselves bound, on all occasions, to stand forward in defence of the system under which they had been brought up. But now they are among the most busy in examining the law, pointing out its defects, and suggesting remedies.”
Rules of Hilary Term
The time, however, was not yet ripe for a radical reform. The official recommendations made by the parliamentary commissions referred to above fell far short of the suggestions considered by them; and the legislation which followed was no less conservative. It found its chief expression in the Rules of Court of Hilary term—the “New Rules” of 1834.1 But these hardly touched the weightier matters of reform. Fear of plunging into a chaos brought the movement to a pause at the very threshold of its work. The “new rules” were a compromise—a lame and unhappy compromise, as it turned out—between the conservatism of six centuries and the demand of modern criticism, of modern convenience; and they had a marked professional leaning towards the past rather than the future. Their chief aim was to remedy what were essentially but incidental defects and faults in the existing systems, the vagueness of general pleading, the prolixity of special pleading, the necessity of certain formal allegations. However well intended and highly praised, the “new rules” amounted to little more than “an attempt to stave off an immediate pressing difficulty by a patchwork scheme of modification and suspension.” And, like most such attempts, they not only fell behind the real needs of the day, but tended to retard the progress of reform. Through them the real reform of common law procedure in England was put off for twenty years.
The preliminary movement in the United States
Meanwhile, a similar movement had begun in America and, after some delay, was making startling progress here. Once fairly under way, the reform movement in several of the United States went at a leap beyond the boldest designs then entertained in England. The most radical schemes of reform were hastily vested with the authority of law. And it is to be remembered that the enactment of what was then appropriately enough called the “American system” preceded and, in a large measure, inspired the sweeping changes which characterize the English legislation of 1873.
Its premature expression in the Livingston codes
But just here it is worth while to go back a little in the history of American law and notice the curious episode of the Livingston codes. Speaking generally, the movement towards a statutory reform of common law procedure assumed a definite and aggressive shape in the United States at a somewhat later day than in England; but the new critical spirit whose earlier effects in England have been noticed had one tangible result of moment on this side of the Atlantic at a very much earlier day than these parliamentary commissions. It occurred in Louisiana under conditions which were quite out of the ordinary. Shortly after the acquisition of that territory by the United States, the question arose whether the provisions of the federal constitution as to the right of trial by jury and procedure according to the common law did not at one stroke impose upon Louisiana the whole system of English legal practice, unknown and repugnant although it was there. In 1804 a test case was made up. After earnest discussion the court held that, although the constitution of the United States required trial by jury, and made obligatory the observance of common law rules in appellate proceedings in federal courts, yet the people of Louisiana were free, in much the greater part of their legal procedure, to follow a different system. The way was thus opened for a liberal and rational treatment of the whole subject of judicial procedure. It was such an opportunity as Bentham dreamed of—such a result as, in 1804, was to be found nowhere else in the United States or in England. And, as it happened, a man worthy of the occasion was at hand. Edward Livingston had removed from New York to Louisiana shortly before the case just referred to came up for trial. He appeared for those who opposed the adoption of the common law procedure; and, following up his success in the courts, he recommended to the legislature a simplification of the existing system, which was a medley of civil and Spanish law. His suggestion meeting with approval, Livingston promptly drafted what was in effect a new code of procedure. It was adopted by the Louisiana legislature in 1805.1 Nor did the impulse cease with this. Fifteen years later the legislature provided for the appointment “of a person learned in the law” who should prepare and present a code of criminal law, “designating all criminal offenses punishable by law, defining the same in clear and explicit terms, designating the punishment to be inflicted on each, laying down the rules of evidence on trials, directing the whole mode of procedure, and pointing out the duties of the judicial and executive officers in the performance of their functions under it.”2
A little later this very comprehensive task was entrusted by the legislature to the hands of Mr. Livingston. With characteristic thoroughness he prepared complete codes of crimes and punishments, procedure, and evidence, and explained the nature of each with an elaborate introduction. His plan had been reported in advance to the Louisiana legislature; he had been earnestly requested to complete it, and he did complete it. But the codes when completed were not enacted in Louisiana. Their influence, however, both at home and abroad, was hardly the less for that. They were received with the highest praise in America and in Europe, and that by recognized leaders in the law. They have since proved “an unfailing fountain of reforms” on both sides of the Atlantic. Their influence was especially noteworthy in this respect: they went far towards demonstrating the advantages of codification “in giving precision, specification, accuracy, and moderation” to a system of law.1 They appeared, indeed, before the times were ripe for such a reform, but in no small measure they prepared the minds of men for the great changes which came a quarter of a century later. It is worth noting also, as indicating the intimate, mutual bearings of the reform movements in England and America, that Livingston looked to Bentham as his teacher in all these things.2
Rise of the New York code
Important and interesting as they were, the Livingston codes can hardly, however, be regarded as directly influencing the rise of code pleading in this country. The agitation which was immediately connected with that event began a little after the year 1826. It was most conspicuous in the State of New York, where the legal procedure had been modeled very closely after the English system, and where the relations with the mother country had continued to be both constant and intimate.3 By 1842 the movement had made such progress that a bill was introduced into the New York legislature “for the more simple and speedy administration of justice in civil cases in the courts of common law”; and, since law and equity were then separated by the New York constitution, another bill was introduced to bring about a like result in the courts of equity. These measures failed of their intended effect at the time, but, four years later, when the New York constitution was revised, the demand for a radical reform found more emphatic expression, and a remedy was attempted. The new constitution, adopted in November, 1846, abolished the court of chancery, created a court “having general jurisdiction in law and equity,”1 and required that the next legislature should provide for the appointment of three commissioners, whose duty it should be “to revise, reform, simplify, and abridge the rules and practice, pleadings, forms, and proceedings of the courts of record of this state, and to report thereon to the legislature.”2
This contemplated reform, even at its outset, was part of a larger plan, that of codifying the whole law, both substantive and adjective. For the New York constitution of 1846 provided also that the legislature, at its first session after the adoption of the constitution, should appoint three commissioners “to reduce into a written and systematic code the whole body of the law of this state, or so much and such parts thereof as to the said commissioners shall seem practicable and expedient.”3 The commission thus appointed was distinct from the one referred to above and differently constituted.4 Its members were designated in the New York statutes as “Commissioners of the Code,” while the members of the other bore the statutory name of “Commissioners on Practice and Pleadings.” The two commissions so divided the entire work between them that one took the codification of the law of procedure, and the other, the “Commissioners of the Code,” took the codification of the rest of the law. The work of this commission will be noticed hereafter; it is with the commission on practice and pleadings that we have now to do.
When it came to the appointment of the latter commissioners, the legislature prescribed their duty somewhat more explicitly, instructing them, in accordance with a memorial from fifty lawyers of New York, “to provide for the abolition of the present forms of action and pleadings in cases at common law; for a uniform course of proceedings in all cases whether of legal or equitable cognizance, and for the abandonment of all Latin and other foreign tongues, so far as the same shall by them be deemed practicable, and of any form and proceeding not necessary to ascertain or preserve the rights of the parties.”1
Nature of the undertaking
Most of the lawyers and many of the general public were hostile to so radical a change.2 The task imposed was, indeed, unparalleled in the history of English or American jurisprudence. A great and venerable system, deep-rooted in the past of a conservative profession and overshadowing the land, was to be supplanted in a day. The prejudices of thousands of practitioners must be disregarded and the habits of their daily lives reversed; the active opposition of many able men recognized as profoundly learned in the law must be overborne; a community accustomed, especially in such matters, to be led by their lawyers must be assured of safety in turning aside to follow a few reformers. In the face of such obstacles the three commissioners were asked to design and construct a new system which they could recommend as capable of doing all the work of the old, and doing it better.
Drafting the code of 1848
One member of the commission resigned rather than comply with the command of the statute. The other two, Mr. Arphaxed Loomis and Mr. David Graham, had publicly expressed themselves against changes so sweeping as those contemplated; but, disregarding opinions no longer held, they now accepted the appointment in the spirit in which it was made. Most opportunely, also, Mr. David Dudley Field, who at first had been thought too radical in his plans of reform to hold a place on the commission, was chosen to fill the vacancy, and the three united in the promptest execution of the work.
Some portions of the proposed code were already formulated in the two bills which had been submitted to the legislature in 1842, “for the more simple and speedy administration of justice in civil cases.” But, with all allowances, it is seldom that so great a work is accomplished in so short a time. The commission was first appointed by the legislature in April, 1847, and reorganized, as indicated above, in the following September; five months later it reported the draft of an act, in fifteen chapters, and nearly four hundred annotated sections, “to simplify and abridge the practice, pleadings, and proceedings of the court of this state.”
Impetuous haste in New York
So far we have dealt with code pleading in its formative state; we now come to its realizations. The official draft of the New York code, framed and filled in, as we have seen, with astonishing rapidity, was passed into an operating law no less quickly. The commissioners’ bill, “to simplify and abridge the practice, pleadings, and proceedings” of the New York courts, having been reported to the legislature about the beginning of March, 1848, was considered, amended in some eighty of its three hundred and ninety-one sections, and passed before the middle of the following month.1 And the new law, revolutionary as it was in theory and in its practical effects, went into operation on the first day of the following July.
Less expedition might have imperiled the whole enterprise. Opposition to the measure was bitter and intense, among both lawyers and laymen. Given time for organization, the “sons of Zeruiah,” it was feared, might again, as in Cromwell’s day,1 have been too strong for the spirit of law reform. But, being once clothed with the authority of actual, operating law, the new movement was better able to make head against that “antipathy to reformation” which lawyers feel, and, perhaps, are bound to feel.
The course in other states and countries
If the legislation thus begun had gone no further, the result would still have been among the great events in the history of modern law. But the really significant thing here is that the enactment of this New York code opened, as it were, the floodgates of reformatory legislation, and determined the course of its progress. Within five years after 1848, the older systems of pleading at law and in equity had been dispossessed of their inheritance by similar codes in Missouri, California, Iowa, Kentucky, Minnesota, Indiana, and Ohio; the civil procedure of Mississippi, Massachusetts, and Alabama had been largely reformed upon somewhat similar lines; the procedure of the English courts of law and of equity had been simplified by the acts of 1852. Within twenty-five years, that is, by the end of 1873, the New York code of 1848 had been enacted in substance, and often in its very letter, by sixteen other American commonwealths—Oregon, Washington, Nebraska, Wisconsin, Kansas, Nevada, Dakota, Arizona, Montana, Idaho, North Carolina, Wyoming, Arkansas, South Carolina, Florida,2 and Utah; the procedure on the law side of the federal courts had been brought into conformity with these same principles, wherever they prevailed in the state courts; and in England the great Judicature Act of 1873 had prescribed for our most ancient courts of law and of equity a more radical change of this same general nature than any which had preceded it in America—a greater change withal than any other in English law for six centuries.
Distinction in the order of treatment
Two or three distinctions are to be kept in mind—primarily, the distinction between the codes of the United States and the codes of the British Empire. They belong, indeed, to one movement, but the latter are a more recent development of code pleading. Their influence, however, is apparent in one or two of our later codes, that of Connecticut, for instance. The British codes, moreover, are the result of a gradual movement, whereas with us code pleading came per saltum. But the beginnings of the movement in both cases are not far apart. The year 1848 may be fixed as the date in America; the year 1852, as the date in England.
Within the United States also a distinction is to be kept in mind. Here the reform has three aspects. A majority of all the states have followed the lead of New York with more than common unanimity. For convenience we may call them the “code states,” which in fact is their more common designation in our legal nomenclature. Some states, however, while reforming their procedure upon similar lines, have not ventured quite so radical a change. These can not be called common law states—their departure from the older procedure is too radical for that. They are more nearly code states, but it is confusing to refer to them as such. Perhaps the most convenient way will be to group them under a distinct head, as “quasi-code states.” The progress of the change has affected also the procedure of the federal courts, but in a different and altogether unique way—their procedure at law being made to conform to that of the state in which the court is sitting, while their procedure in equity remains independent. The enactment of the reformed procedure in the United States has, therefore, these three heads, (1) Its progress in the “code states”—the procession, as it were, of the codes, their uniformity, and their stability; (2) Its progress in the quasi-code states; (3) Its progress in the federal courts.
In the British Empire the reform movement has been kept more closely within one path. The mother country leads the way; the colonial legislatures follow in her footsteps. The model here is found in the Judicature Acts and Rules of 1873 and 1875.
THE CODE STATES
Stability of the codes—In general
Drafted in haste and hurriedly enacted, as most of the codes were, they have naturally enough suffered frequent alteration at the hands of the legislatures. Change begot change in some codes with startling rapidity. But, in view of the character of the original legislation—its novelty, its wide scope, its varied application, the changes have been less radical and scarcely more frequent than might fairly have been expected. It held true of the codes as of legislation in general that a system complete and perfect in all its parts can not be struck out at a heat by the most able law-giver that ever lived. “No code,” says Austin, “can be perfect.”1 Almost all the codes, however, passed through the experimental stages and became established systems without material departure from the form in which they were first enacted. But there are two notable exceptions in New York and Florida.
The Experiment in New York
After twenty-five years of amendatory legislation2 and judicial construction, the New York code had reached, as its friends hoped, a definite and secure position. It had, indeed, sustained five hundred and fifty-one changes; the aggregate of its amendments had exceeded the total number of its sections. But many of these amendments were formal, and many were repeated attempts to frame the same section in a satisfactory form. Of the four hundred and seventy-three sections in the revised code of 1849, nearly one-half had never been amended in 1876. And among them were found the more important and substantial features of the original act. Moreover, the code as a whole had received extended judicial discussion; the practice provided by it had become fairly well understood. All reasonable criticism, it was believed, had been answered or was in process of being answered, without another revolutionary change.1
The New York revision in 1876
But at this point the spirit of innovation attacked the code, with serious results. In 1870 the New York legislature appointed a commission of three to revise and simplify all the general statutes of the state.2 Six years later this commission reported a bill for a new code of procedure, covering the ground of the existing code; and the bill was presently passed in an act of thirteen chapters and fourteen hundred and ninety-six sections, relating to the jurisdiction of the courts and the ordinary proceedings in courts of record. To this new code the statute gave a new name, the “Code of Remedial Justice,” for which, however, the popular phrase, the “Code of Civil Procedure,” was soon substituted by another enactment.3
While retaining the fundamental requirements of its predecessor, the new code differed from it widely in phraseology and in the nature of its provisions. It was reactionary in spirit. It showed a vast increase in bulk—a figure of Falstaffian proportions among the other codes. It was “built up under a microscope.” Its requirements ran into the most minute and trivial details of practice.1 So smothered in details were its principles that New York practitioners have since been working under a civil procedure which scarcely any approve, and which is far enough from the ideal of those who framed the original code, and from what they succeeded in constructing. However defective and faulty the code of 1848 may have been, the faults of this code of 1876 are greater still. Such degree of clearness as the old code possessed is obscured; its conciseness is rendered diffuse; its simplicity is made intricate; its authority, settled by thirty years of judicial construction, was destroyed, and the task of reconstruction again became necessary.2
Like the “Code of Procedure” in 1848, the “Code of Remedial Justice” in 1876 was but part of a proposed code of civil procedure. The remainder of the commissioners’ draft was reported in 1877 in the form of a bill containing nine chapters to be added to the thirteen chapters of the new code. This bill, however, met with such persistent opposition that it did not become a law until 1880.3 In the meantime the first thirteen chapters had been repeatedly amended. And from 1880 down “The Completed Code of Civil Procedure,” now numbering twenty-two chapters and almost four thousand sections, has been amended or supplemented at every session of the legislature no less copiously than before. With its annotations, the revised code makes “three gigantic volumes which appall the legal mind, and fill the lay mind with awe and dismay.”4
The proposed New York revision of 1896
Hasty, unsystematic, and piecemeal, these multitudinous changes only confirmed the character of this New York code of civil procedure as a “Brobdignagian conglomeration of heterogeneous rules of law and practice.” The evil grew to such proportions that in June, 1895, the legislature passed an act requiring the governor of New York to appoint a commission to “examine the code of procedure of this state and the codes of procedure and practice acts in force in other states and countries, and the rules of court adopted in connection therewith, and report thereon to the next legislature in what respects the civil procedure of this state can be revised, condensed, and simplified.”1 This commission was appointed at once. It speedily ascertained that the “very decided preponderance of opinion” among New York lawyers was in favor of a general revision of their code. The commissioners themselves were clear in the conviction that the civil procedure of New York could “doubtless be revised, condensed, and simplified, and the administration of justice thereby greatly improved.”
The commissioners’ recommendations, and the attitude of the bar
In December, 1895, they made a preliminary and suggestive report, looking to a thorough revision upon an historical basis.
“The civil procedure in the courts of this state,” say they, “is the product of many years of slow and halting growth, and a revision, such as might be justified by the terms of this law, should be the result of close study of principles and methods, and much deliberation. A commission should study not only the whole subject of procedure, historically and scientifically, but the comparative merits of different systems which are, or have been, in force in different states and countries. We are unwilling to submit a revision which does not embody substantially the result of such care and study, and hence, at this time, we deem it proper to suggest only general recommendations, with an outline of the changes proposed, together with a brief statement showing the development of civil procedure and the systems of practice in use in other states and countries.”2
In August, 1895, the commission sent to the judges and to nearly ten thousand other lawyers of New York a circular defining the possible scope of the proposed revision, and asking for the bar’s opinion upon the subject. The suggestions thus evoked have been many and varied. That the New York code of 1876 stands in need of revision appears to be taken for granted. “It is universally and properly condemned as the product of unskilled workmen, ill equipped for the task.”1 But some members of the New York bar, constrained by that “antipathy to reformation” which shows itself so quickly when a change in the law is proposed, urge that the code be let alone. Their argument is the argument of inconvenience. They would “avoid the uncertainty in practice which may be created by a new code,” and are far from claiming that the existing code is as systematic and convenient as it should be. Others suggest that the code of 1848 be restored as it stood in 1876, before the adoption of the “code of civil procedure.” Others point to the English reforms of 1873 and 1875—the judicature acts and rules2 —as in the true line of progress. Others are still more radical, and recommend an assimilation to the German or French practice. But the prevailing tone, at large as in the commission, appears to be in favor of a conservative reform upon an historical and comparative basis, with a view to embodying the best which the experience of other states and countries has to offer on the subject of a codified civil procedure.
The conservatism of the new movement
This aspect of the present reform movement in New York—its conservatism, but with reference to the results attained not in New York alone, but in all other commonwealths which have tried the experiment of codification—is very significant, so marked is it among some who recognize most clearly the faults of the present system of code pleading.
“While our code needs revision,” says the Albany Law Journal in September, 1896,1 “our bar and the public demand a careful, searching, painstaking examination as to its defects and methods by which they can be remedied, and deprecates anything like undue haste or work prepared by others than those specially fitted for the task, and who will give the necessary time and attention demanded by its importance. The sentiment of the bar as voiced by the state association requires that suitable provision shall be made for a thorough examination and analysis of the methods of procedure adopted in this country and abroad, and a selection of what is best and omission of what is most objectionable in our present code. We should either have the best work of the most thoroughly trained minds, which shall embody the best results of all human experience on the question, or we should let code revision remain a thing of the future, when such a result may be accomplished.”
“My first notion of the best method of revising this Brobdignagian conglomeration of heterogeneous rules of law and practice,” says Mr. Wm. B. Hornblower, of the New York City bar, referring to the code of 1876,2 “was to abolish it out of hand; substitute in its place a few general provisions as to pleading and procedure; authorize the courts to regulate by rules all other matters of practice, and relegate to other portions of the statutes the provisions of substantive law. Reflection, however, has satisfied me that this radical course would be unwise and inexpedient. This body of statutory rules, built up with so much care, although not with the most skillful workmanship, ought not to be ruthlessly destroyed. It has become the chart of our professional navigation in practice; many of its provisions have been judicially construed by the courts, and I am constrained to the conclusion that to abolish it out of hand would be a great mistake.
“The work of revision should be placed in the hands of men who can give, and who shall be required to give, their entire time to this business. It can not be done in fragmentary intervals of an active professional practice. Men who are to do the work should have salaries equal to those of the justices of the supreme court in the state at large, and they should be prohibited from practicing law during their term of office as commissioners. . . . The coöperation of the various bar associations throughout the state should be actively and earnestly sought by the commissioners, and their proposed revision should be submitted to these bodies in such shape and at such times as will enable them to carefully consider and criticise before the work of the commissioners is submitted to the legislature. There is always great danger in any work of this kind that we may take a step backward instead of forward. On general principles it is best ‘to let well enough alone,’ unless we are very sure that we are substituting for the ‘well enough’ a distinctly better thing. We can afford to wait and bear the ills we know rather than plunge ahead into ills that we know not of.”
The possible effect of the new movement
It is a strange sight to see these conservative forces of the bar, so long and so bitterly opposed to the New York code, thus arrayed in its support. But if this conservatism does not result in stagnation, if it merely keeps the movement to the lines of cautious progress, the outcome may be of farreaching benefit, although it fall short of “embodying the best results of all human experience on the question.”
The effect on other states is, of course, very problematical. General legislation by New York seldom fails to influence legislation far and wide in the Union. But the “code of civil procedure” which New York enacted in 1876 is without a following in the states which so readily adopted the New York “code of procedure” of 1848. Moreover, “the completed code of civil procedure” which became a law in New York in 1880 has been far less productive of similar legislation by other states than the proposed code of civil procedure which was submitted, eo nomine, to the New York legislature in 1850 and ultimately was rejected by that state. Apparently the impulsive movement of the early fifties has largely spent its force. The states which eagerly accepted the earlier results of codification in New York show no great readiness to adopt its later results.
Historical relation of code pleading to codification in general
The inception of the New York code of procedure of 1848, as has already been indicated, was part of a much more ambitious design—that of codifying the substantive law as well as the law of procedure. Both purposes found expression in the New York constitution of 1846; and the outcome was that the codification of the substantive law was entrusted to three “commissioners of the code,” while the codification of the procedure was assigned to three “commissioners on practice and pleadings.”
The former commission accomplished very little; but the movement which resulted in its appointment had far-reaching effects further on. In 1857 a new commission was appointed, with Mr. David Dudley Field, then for some years prominent in the commission on practice and pleadings, at its head.1 Its instructions were to reduce the substantive law of the state to a systematic code consisting of three parts, a “political,” a “civil,” and a “penal code.” The political code was completed in 1860; the other two were reported to the legislature in 1865. Only one of these codes has as yet become a law in New York—the penal code, and this after sixteen years of waiting.2 The civil code, however, has on two occasions been almost in touch of its goal, having twice passed both branches of the New York legislature and failed of ultimate adoption only for want of the governor’s approval.
Complete and partial codification
But, while failing of effect at home, this code of substantive law and the others have had great influence abroad. Their career has been something like that of the New York “code of civil procedure,” which was proposed at the beginning of the fifties. In the far West especially the results have been noteworthy.
Thus the civil code and the penal code drafted by the New York commissioners were adopted as early as 1865 by the territory of Dakota, the first English commonwealth to venture upon a codification of its substantive law.3 The state of California has had a full suit of codes since 1872—a political code, a civil code, a code of civil procedure, and a penal code, which includes a code of criminal procedure as its second part. Each of the four was a separate act and is commonly published as a distinct volume.1 A similar series of codes has been completed in the Dakotas, whose activity in codifying has been quite remarkable,2 and in Montana.3
Besides these instances of all-round codification, the half century since 1848 has seen many instances of partial codification, in addition to the codes of civil procedure. The latter, indeed, make not quite half the total list of codes now extant in the United States. Notably and naturally there has been great activity in codifying the law of criminal procedure. It began in 1850, with the enactment of a penal code in California;4 and nineteen other codes of criminal procedure have followed.5 By the same showing the codes of substantive law are still few in number. But it is to be remembered that piecemeal changes of the common law here have been very numerous. The result lacks the system of a code; but the repeated incursions of legislatures into the domain of the substantive common law have very greatly diminished its extent. Many of its doctrines have been overthrown, many have been brought within the statute book.
QUASI - CODE STATES
Their aspects in general
The causes which brought on the codes of civil procedure were not peculiar to any one state. They operated more or less strongly through all the Union, with the exception of Louisiana. The result is that the older systems of pleading have been greatly modified by statute even in that minority of our commonwealths which have not adopted the new pleading. In no state of the Union has common law pleading preserved its integrity. But in some states the modified system is more nearly that of the common law than the code system. These states, for convenience of reference, we may call “common law” states. There are other non-code states, however, in which the statutory changes have gone very far in the direction of “code pleading,” as that term is commonly understood. And these states, for the sake of a better term, we may call “quasi-code states.” They comprise Mississippi, Massachusetts, Alabama, Maryland, Tennessee, Georgia, and Texas. Historically considered, the changes in their procedure rank with those in the earlier code states. And they show in a partial yet very suggestive way the impetus and general character of the reform movement in the early fifties. Its causes and effects appear in nearly every state in the Union, and on both sides of the Atlantic. The surprising thing is that, with so brave a start, the movement has gone no further than it has, either in these “quasicode” states, or in the larger field of the “code” states.
THE ENGLISH CODE
State of the reform movement in England about 1848
Before the change considered in the foregoing pages—this change from common law to code pleading in the state and the federal courts of most of the American commonwealths—had run its course, a similar yet greater revolution had occurred in the ancestral home of the common law. The movements towards this end had taken definite form in England at a somewhat earlier day than with us; the year 1832 promised much for the cause of law reform on the other side of the Atlantic. But the chief immediate results in actual legislation were some partial reforms in the chancery, and the halting rules of Hilary Term of 1834. As things stood in the first year of Victoria’s reign, English law was entering upon another lease of youth, and thinking lawyers felt the new influence. “The flood-tide of 1832 had not yet ebbed. In letters, in science, in trade and industry, there was on all hands consciousness of fresh vigor and expectation of great results. As it must needs fall out, men’s expectation was in some things beyond the mark, in some, wide of it, in many, far short of it.”1 But, in matters of procedure, the enactment of the New York code of 1848 found the English legislators still standing in doubt over the weightier questions of reform.
Influence of the first American codes
The startling character of this New York legislation, however, its radical and extensive aims, going far beyond the boldest designs then entertained in England, had a notable effect there. The practical workings of the new system were watched by English reformers with care. Its comparative success stimulated them to new efforts. “While all people,” said an English law writer of that day,2 “are agreed that reform is needed, and while the new common law commission are issuing suggestions, halting and faltering, willing, perhaps, but unable, to free their minds from that peculiar tone which long and successful practice under our present system inevitably induces—a practical people in the western hemisphere have appointed a commission, and, quietly, expeditiously, and cheaply, and out of laws similar to our own and derived from us, have created a simple, single, and intelligible judicial system, which has hitherto worked well in the state (New York) by which it was first sanctioned, and has in consequence been adopted by several other states of the American Union. And let us not forget that it is not among a poor, homely, uneducated, and simple people that this great experiment in legislation is being tried, but among a people who are our rivals in commerce, equal to us at least in intelligence, wealth, and luxury, with all the wants of a high taste of civilization, and whose laws to be successful must embrace nearly as wide a field as our own. The boldness of the attempt, and the righteousness of the motives which led to it should at least command our respect and sympathy. We venture to express a hope that the example may not be entirely lost upon ourselves, but that it will stimulate our law reformers to raise their minds at once to the contemplation of a radical and efficient reform; for they now have before them a proof that it is possible to sweep away all preëxisting laws without rushing into chaos.”
The actual legislation on the subject
Whatever the inducing causes, actual reformatory legislation on the English procedure began anew, and more vigorously than before, shortly after the year 1848. But the movement was still a cautious one. As it turned out, the English reformers were to go further than the American reform has ventured to go, but they were still resolved that a venerable system should not be overturned, as in America, at a single blow. They felt their way slowly. The enactment of their leading reformatory statutes, which began in 1852, extended through twenty years.1
The more notable changes were at first by distinct series of statutes, relating respectively to the courts of law and the court of chancery; afterwards the whole system of English courts and their pleading, at law and in equity, were recast in one series of statutes. These reformatory enactments are accordingly divided into three distinct groups: (1) a series of statutes establishing a reformed system of pleading at law—the “Common Law Procedure Acts,” so called, whose course of enactment extended through eight years from 1852;1 (2) a series of statutes establishing a reformed system of equity pleading, enacted under different titles during the course of ten years from 1852;2 and (3) the judicature acts, whose beginning was in 1873, whose amendments have run through many years, 1875, 1877, 1879, 1881, 1884, 1890, 1891, and 1894,3 and whose end is not yet.
Common law procedure acts
The first of these statutes became a law in June, 1852, and went into operation in the following October.4 It was a right extensive enactment, running to two hundred and thirty-six sections, and including two schedules of forms—a short code of procedure, as it were, for courts of law. It was followed within two years by an amending and enlarging statute of more than one hundred sections,5 which in turn was followed, six years later, by another enlarging and moderating statute, the common law procedure act of 1860.6
These statutes, destined although they were to a short life in England, were no sudden growth. They were based in the main upon the reports of distinguished law commissioners whose labors had begun and produced some positive results as early as 1831. In other words, parliament was some twenty years preparing for the partial reform effected by the common law procedure acts.
Their effect in England.
Their direct effect was in large part negative; they pruned away the faults of the older pleading at law. Still they wrought great and positive changes for the better, a few of which may be noticed here.
“Causes of action of whatever kind,” it was provided, “may be joined in the same suit, provided they be by and against the same parties.”1
Much of the old verbiage was abolished. “All statements which need not be proved, such as the statement of time, quality, quantity and value, when these are not material; the statement of losing and finding, and bailment, in actions for goods or their value; the statement of acts of trespass having been committed with force and arms, and against the peace of our Lady the Queen; the statement of promises which need not be proved, as promises in indebitatus counts, and mutual promises to perform agreements, and all statements of a like kind, shall be omitted.”2 Special demurrers also are abolished, with all the frivolous learning which they rendered necessary.3 And, still more significant, the reform breaks down part of the wall of separation between the administration of law and the administration of equity; for, under the act of 1854, several equitable defenses were permitted.4
Their influence in America
The influence of these changes was quickly felt in America. Such notable alterations in common law procedure, deliberately made at its ancestral home, where its virtues stood in the clearest light, came at an opportune moment in some of our states, which were hesitating over the problems of reform. The commissioners who framed the Iowa code of 1860 left it on record that they were “most largely indebted” to the English common law procedure acts of 1852 and 1854.1 The Maryland act of 1856, “to simplify the rules and forms of pleadings and practice in the courts of law,” was in the main a close copy from the same statutes. Other states, also, although, like Maryland, unwilling to enter upon the new and untried way of the codes, found themselves able to follow this reform by English legislation. But, curiously enough, some of these same states were not able to follow the statutory reforms which were presently to come in England; so that, while the common law procedure acts already belong to ancient history in England, they have to-day a present interest in more than one community on this side of the Atlantic. For in several of our states the movement towards a simplification of the law has gone but little, if any, beyond the point reached by these statutes.
Their short life in England
But in England they were, as I have said, only a temporary expedient, soon to give place to far more extensive and radical legislation.
They left the reform incomplete in at least two points of vital importance. The great principle that a pleading should be a plain and concise statement of the material facts alone had not yet been established—it was still possible for substance to be sacrificed to form;2 and the wall of separation between legal and equitable procedure was still retained. The drift, however, was setting very strongly towards a simple, harmonious, and systematic procedure in which substantial justice should prevail over formal justice, so strongly that the common law procedure acts make a short chapter in the history of English law. Within twenty-five years they had given place to the very comprehensive scheme for reform prescribed in the judicature acts.
Chancery reform acts
Meanwhile a similar movement was making important changes in the administration of equity. In the year 1852, the year of the first common law procedure act, parliament passed also two statutes, one “to amend the practice and course of proceeding in the High Court of Chancery,”1 and one “for the relief of suitors of the High Court of Chancery.”2 They were followed in six years by the short but important chancery amendment act of 1858.3 Four years later came a “Chancery Regulation Act, 1862,” scarcely a page in length, but very significant in its requirements.4
The drift towards fusion
It is plain to see, in these enactments, that the court of chancery and the courts of law in England were now drifting rapidly towards the idea of “fusion,” which had been given effect in the American codes not long before. The act of 1852 permits chancery to require the oral examination of witnesses before itself.5 The act of 1858 confers on chancery power to award damages in some cases, and permits it to impanel a jury for the purpose of assessing damages or trying questions of fact “before the court itself.” Upon every such trial, “the Court of Chancery,” declares the statute, “shall have the same powers, jurisdiction, and authority as belong to any judge of any of the said superior courts sitting at nisi prius.”6 The short act of 1862 goes further into the fundamentals. It required that chancery should no longer refuse or postpone the application of remedies within its jurisdiction until questions of law and fact on which the title to such remedies depended had been determined or ascertained by courts of law, but that the court of chancery must determine every question of law and fact incident to the relief sought, “whether the title to such relief or remedy be or be not incident to or dependent upon a legal right.” There was a proviso, however, quite in harmony with the principle—when questions of fact before a court of chancery could be more conveniently tried by a jury at the assizes, it was declared lawful for chancery to direct such a trial.
But these statutes, like the common law procedure acts, were tentative measures; they failed to satisfy the demand of their day. The reformed system of equity pleading which they created flourished for twenty years and then was merged, with the reformed common law pleading, in the greater system created by the judicature acts.
Judicature acts. Chief characteristic of this stage
The most characteristic thing about this stage of the movement was its “fusion” of law and equity. The mischief which arose from their separation was early recognized. Before the passage of the first common law procedure act, indeed, a commission on law reform had reported that “a consolidation of the elements of a complete remedy in the same court was obviously, not to say imperatively, necessary to the establishment of a consistent and rational system of procedure.” About the time of the third common law procedure act, 1860, three law judges publicly declared that the existence of two conflicting systems of law recognizing inconsistent and incompatible rights, administered by two tribunals, each refusing to give effect to rights which would be enforced by the other, was not only an anomaly in jurisprudence, but had been found to be attended by practical inconvenience and mischief of the most serious character. In 1869, also, a judicature commission reported that “the first step towards meeting and surmounting the evils complained of would be the consolidation of all the courts of law and equity into one court, in which should be vested all the jurisdiction exercisable by each and all the courts so consolidated.” In the following year a bill constructed in conformity with this plan was introduced into parliament, but it failed of passage.
Passage of the judicature acts
The hour, however, was now almost ripe for the revolution. A similar measure, introduced by Lord Chancellor Selborne, was carried in 1873, the first and most important of the judicature acts.1 It was followed in 1875 by an amendatory and supplemental act,2 and both came into operation at the same time, November 1, 1875.3 This was in the Chancellorship of Lord Cairns, whose name and that of Lord Selborne will, therefore, says an English writer, “forever remain associated with the greatest and probably most useful change in the way of law reform which has taken place in this country for centuries.”4 But the movement which resulted in the judicature acts had been promoted by all the recent chancellors and by most of the leading judges.
The historical bearings of the judicature acts
The general effect of the judicature act of 1873 was to sweep away the English system of common law pleading even more completely than our codes have swept it away. And yet, as with us, the practitioner in England can not afford to forget the old procedure entirely.
Both the radical nature of this latest phase of the English reform and its historical bearings may be illustrated from the remarks of Mr. Montague Crackanthrope, of the English bar, before the American Bar Association in 1896.5
“The English system of common law pleading,” said he, “was finally swept away by the English judicature act of 1873. It had been encumbered with obsolete learning, and had been terribly abused by the ingenuity of pleaders during centuries of adroit manipulation. The abuses were not, I think, original, and much had been done to remedy them; but the system had fallen into discredit, and had become the scapegoat for the sins of the profession. It was determined that it should no longer be necessary to plead formal causes of action, but that each party should tell his plain tale unfettered by technicalities, or, as the rules expressed it, that his pleading should contain, and contain only, a summary statement of the material facts on which he proposed to rely.
The change was of enormous historical importance. The old system had been the mould upon which the whole common law had been gradually formed. All legal conceptions had been defined, analyzed, and formulated through the operation of that elaborate machinery. It provided a natural classification of the law, saving it from absolute chaos, so that students learned their principles as they went along, by mastering their procedure. Declarations, pleas, and demurrers have now become matters of antiquarian interest, as far as actual practice is concerned. But, until the whole system of English law shall be recast and codified, the old learning respecting them will be indispensable to all who wish to be sound common lawyers. Without it a great deal of quite recent authority will remain obscure, and the old books in great measure unintelligible. Even in so simple a matter as an action of contract, it is necessary to know the peculiar and not unromantic history of the action of assumpsit. In an action for injuries against a carrier we must still be familiar with the distinction between the breach of a duty to carry safely and a breach of a contract to carry, though we are no longer put to a choice between the one and the other form of action. And so long as written pleadings remain, the best masters of the art will be they who can inform the apparent license of the new system with that spirit of exactness and self-restraint which flows from a knowledge of the old.”
Rules of court instead of direct legislation
Their general purpose and main results considered, the English and the American system of pleading are in remarkable accord, as will presently appear;1 but they have one very salient point of divergence in the way in which they were framed. In the American codes almost all the principles and rules of judicial procedure were framed for but not by the judicial power. They were the direct work of the legislature. They exist in the forms of inexorable law. In the English system, on the other hand, almost all these principles and rules are framed for and by the judicial power, but under a delegated authority from the legislature. Excepting a few general provisions, the principles and rules of procedure in the English code exist not directly as statutes, but as rules of court. In other words, the courts themselves were permitted and required to build the complicated machinery which they must operate, and they may modify it as their experience suggests, without resorting to direct legislation. Parliament, however, was careful to retain a veto power upon proposed changes in procedure. By the terms of the act of 1873,2 all rules of court made in pursuance of the statute were to be laid before each house of Parliament within forty days next after the same were made, if Parliament was then sitting, or, if not, within forty days after the then next meeting of Parliament, and thereupon Parliament, by means of an address presented to the Crown within forty days, might cause any of these rules to become void and of no effect, “but without prejudice to the validity of any proceedings which may in the meantime have been taken under the same.”
Scope of the rules of court in the English code
The principle that the rules of judicial procedure may be framed in the first instance by judges of the superior courts is, of course, no novelty in either American or English law. It is hardly less familiar to the profession than rational. Every code state has its rules of court. Still better known are the equity rules of the federal system, framed by the Supreme Court of the United States under authority of the act of 1792—a partial code of procedure which has been before the country since 1822.1 Nor is it a strange doctrine with us that courts may, on their own motion and without direct resort to the legislature, repeal, amend, or add to the established rules of judicial procedure as experience or changing conditions require from time to time.2 The difference between the English code and our own in this respect is therefore in degree rather than in kind.
How far the rules of court extend in the English code may be illustrated from the judicature acts of 1873 and 1875. Under the terms of the act,3 rules of court might be made, at any time after the passage and before the commencement of the act, by order in council on the recommendation of certain judges for any of the following topics:
(1) For regulating the sittings of the High Court of Justice and the Court of Appeal, and of any Divisional or other court thereof respectively, and of the judges of the said High Court sitting in chambers; and,
(2) For regulating the pleading, practice, and procedure in the High Court of Justice and Court of Appeal; and,
(3) Generally for regulating any matters relating to the practice and procedure of the said courts respectively, or to the duties of the officers thereof, or of the Supreme Court, or the costs of proceedings therein.
From and after the commencement of the act, the Supreme Court was authorized “at any time, with the concurrence of the majority of the judges thereof present at any meeting for that purpose held (of which the Lord Chancellor shall be one) to alter and annul any rules of court for the time being in force, and to have and exercise” the power of making new rules on the subjects specified.
The statute proper1 numbers but one hundred sections, and the great majority of these relate to the constitution of the consolidated court, its jurisdiction, the powers of its different judges, its officers and offices. Rules of pleading are scarcely touched upon. But the statute as amended in 1875, when it went into effect, is followed by a schedule of “rules of court,” numbering sixty-three “orders” with an aggregate of four hundred and fifty-three sections, and dealing with the familiar topics of pleading which appear in the direct enactment of our codes.
It may be added that the power of the judges to alter, annul, or add to these rules has been somewhat freely exercised, notably in 1883, when a new code superseded the rules of 1873 and 1875. In 1893 there was another revision affecting a considerable number of the rules. They are sometimes referred to as the new rules of 1893.
The advantage of rules of court
There is, of course, much to commend this manner of framing the English code. A hurried legislative committee is hardly the body to define the rules of judicial procedure; it is naturally a task for the judges.
But, apart from this, the English codifiers appear to have had two other things in mind—(1) the certainty that use would presently reveal in the new pleadings errors and defects which should have a readier cure than direct legislation could afford; and, (2) the danger that however fully the rules of a statutory procedure might be in touch with the current needs of the day, the system would fossilize (as common law pleading has fossilized, as some of our codes tend to fossilize) unless the courts themselves were authorized and empowered to adapt their procedure readily to new conditions. The English code gives better heed than our own code to Lord Coke’s aphorism, Nihil simul inventum est et perfectum;2 and it is more nearly in line with the wise suggestion made by Austin about 1832. “No code,” said he, “can be perfect; there should, therefore, be a perpetual provision for its amendment on suggestions from the judges who are engaged in applying it, and who are in the best of all situations for observing its defects. By this means the growth of judiciary law, explanatory of and supplementary to the code can not indeed be prevented altogether, but it may be kept within a moderate bulk by being wrought into the code itself from time to time.”1
But, while American lawyers commend the plan which has been adopted for framing the English code, it is well to bear in mind that a similar plan, if adopted by the New York reformers in 1848, would probably have stopped short of any radical change. The rules of Hilary Term or some equally faltering reform would have been the main result. The legal mind was then, far more than now, timid of changes in the law, fearful of plunging into chaos if it left the trodden path. Crude as the reform of 1848 was in many respects, it was yet bold and stimulating. It enabled even lawyers to contemplate a radical departure from an established system of law as not necessarily fatal. It has been largely instrumental in bringing on the more radical, even if more cautious reforms of the English code, whose later development can now offer in return many valuable suggestions.
It does not follow, however, that the special feature which is under consideration—the use of rules of court instead of direct legislation for declaring and amending the principles of procedure—is entirely suited, in its length and breadth, to our conditions. The arrangement does indeed give the procedure much more elasticity than is possible when direct legislation must be invoked for every alteration which the experience of practitioners shows to be desirable. But so great a power of change may prove not an unmixed blessing. Its success presupposes not only a high degree of learning and prudence in the judiciary, but stability in the office of judge. A procedure which might change with the fancy of five-year judges would bring a host of evils in its train. Ever fruitful of contention and delay, a changeable procedure is a grievous burden to the community, which must pay the price of interpreting all new regulations of procedure, whether by rules of court or direct enactments.1 The safer principle is that alterations in the law should be made only when shown to be necessary; and other things being equal, that is the better system which tends to prevent unnecessary change.
The suggestive resemblance between English and American code pleading
The timid conservatism which marked the earlier history of the reform in England, and for years kept it in the rear of the similar movement on this side of the Atlantic, had evidently passed when the judicature acts and rules appeared. A new influence was abroad. The judicial spirit itself suffered a change. Technicality after technicality was brushed away with a rapidity which only those recognized who watched the process closely. Rules which a few years before had been deemed of essential importance were swept aside as worse than useless subtleties. The tide of ridicule turned back upon the common law itself. It was a Lord Chief Justice of England who suggested, in 1883, the formation of a museum of common law procedure. As the Yellowstone Park was intended to preserve “the strange and eccentric forms which natural objects sometimes assume,” he would have a kind of pleading park, in which the glories of the negative pregnant, absque hoc, replication de injuria, rebutter, and surrebutter, and all the other weird and fanciful creations of the pleader’s brain might be preserved for future ages, to gratify the respectful curiosity of our descendants, and “where our good old English judges, if ever they revisit the glimpses of the moon, may have some place in which their weary souls can still find the form preferred to the substance, the statement to the thing stated.”1
The common purpose of both systems
Quite as many of the old landmarks in pleading have been swept away by this recent English legislation as by the American codes. In many instances, indeed, the comprehensive provisions of the judicature acts and rules carry the change not only as far as the codes of civil procedure have gone, but considerably beyond the point at which American legislatures have deeemed it prudent to stop. The framers of the English system appear to have thought that the most direct course to the end which both systems have in view—a complete and final determination of a controversy in its entirety, and according to its essential facts—was to put the least possible restraint upon the discretion of the court in dealing with a case; on the other hand, our codes have kept closer to the common law theory that judges should be required to exercise no more discretion than is absolutely necessary. Where the provisions of the American system are imperative, the corresponding rules in the English system are often subordinated to the discretion of its judges, who may make such modification as is just, with a view to the convenient “determination of the real matter in dispute.” But the underlying principle of both systems is the same. They are in more than substantial agreement as to what they overturn and as to what they establish. One purpose runs through the changes in both—to establish a simple and uniform procedure in all civil causes, to open one broad and straight highway into a complete court of justice for every violated civil right. In each system the theory of the pleading has the same fundamental purpose, that of enabling the court to render substantial justice in one proceeding as to the whole controversy. The rules of practice, which point out the particular steps to be taken in the disposition of a case, do indeed differ under the two systems in many respects, but the rules of pleading under the judicature acts and rules are in remarkable accord with those of the American codes.1
Other codes in the British Empire.—General character of the English reform movement in the provinces
The movement which brought on the codes of civil procedure in the United States and the judicature acts in England was not confined to these countries. Wherever English law prevailed, the need of a more simple and direct relation between the substantive law and the law of procedure came to be regarded as an urgent and practical matter. Once fairly started by definite enactments in America and England, the reform spread so rapidly through the wide limits of the British Empire that “code pleading,” despite the radical nature of its changes and the ultra conservatism of practitioners, made the circuit of the earth in less than fifty years. The statutory changes in the British colonies commonly followed those of the mother country, both in time and in their general character; but in some instances they ran ahead of the actual legislation for England.
Indian code of civil procedure
This was especially true of British India, so long the great experimental field of English codification.2 As early as 1854 a body of commissioners in England, appointed under a statute of the previous year,3 addressed themselves to the task of preparing a simple and uniform code of pleading and practice for India. The result of their labors was an elaborate act, passed in 1859, and known as a “Code of Civil Procedure.” Greatly amended and revised, it now contains many provisions copied from the judicature acts; but it still keeps its name, code of civil procedure. Some of its provisions appear to come at first hand from the New York code; the differences, however, are many and suggestive.
Influence of the English judicature acts and rules
1 At a later day, the influence of the judicature acts and rules brought on similar legislation in widely separated commonwealths of the British Empire—in Ireland, in North America, in Australia, and elsewhere.2 The general result has been the rise within the British Empire, and for the most part since the year 1880, of an influential group of codes, similar in spirit, and often in the letter, to the great family of codes within the United States.
Value of the British codes to American code pleaders and the cause of reform
Further than this it seems unnecessary to go. Our interest in the codes of the British Empire is indirect—for purposes of illustration; and the examples already given will suffice.
But it may be said again, and in conclusion, that although indirect, the American practitioner’s interest in these codes is very considerable. They are later efforts towards the same end which is sought by code pleading in the American Union. They occupy a very wide field; they meet many diverse conditions. They have been framed in the light of our own experience, and themselves throw no little light upon the essentials of code pleading, and upon the path of development which the codes of the United States will naturally follow. For it is still true that the purpose declared in our earliest code, the code of 1848—“to simplify and abridge the practice, pleadings, and proceedings of the courts”—has been realized as yet in part only. Nor has the movement which brought on the code of 1848 and its successors in this country come to a perpetual end.
Our seven and twenty codes, even at the end of a half century, are a beginning, essentially bold and progressive, yet only a beginning, and as such often crude and imperfect. Certainly a final code was not to be expected as the direct result of this first movement in 1848 and its succeeding years.1 Sooner or later the movement to simplify our procedure will begin again. Already there are signs of the discontent which precedes organized efforts for reform. And it is possible, at least, that the present generation may see considerable progress towards the greater American code, which, while preserving the essentials of the existing system, will be at once more simple, elastic, and durable.
[1 ]These extracts are from a treatise of the same title, published in 1897 (Cincinnati: W. H. Anderson & Co.).
[2 ]Professor of law in the University of Indiana, since 1904. Davidson College, A. B. 1878, University of Virginia, LL. B. 1880; admitted to the Cincinnati Bar 1881; professor of law in the University of Cincinnati, 1897-1904.
[3 ]Cf. Burrill’s Law Dictionary, 2d ed., “Code.”
[1 ]The Civil Code (Code Napoleon), appeared in 1804; Code de Procédure Civile in 1806; Code de Commerce in 1807; Code d’Instruction Criminelle in 1808; Code Pénal in 1810.
[2 ]Cf. Bentham’s letter to President Madison, 1811; Bentham’s letter to the Governor of Pennsylvania, 1814; the latter’s message to the Pennsylvania legislature, 1816; Bentham’s communications to the governors of the several States, June, 1817; and his address to the citizens of the United States, July, 1817; see papers relative to Codification, 4 Bentham’s Works (Bowring ed., 1843), 451 et seq.
[3 ]With “code” came also “codify,” “codification,” etc. The latter are of Bentham’s extensive coinage.
[1 ]Then, as now, however, the word was ambiguous (cf. sec. 5, Hepburn’s Development of Code Pleading). Austin, for instance, points out that the term code, as signifying a body of law, “expressed in general formulæ arranged systematically, and complete, and the term codification, as meaning the reduction of an existing body of law into such a code, are not expressive.” . . . “We want,” said he, in 1832, “a term to denote a complete body of statute law being, or intended to be, the only positive law obtaining in the community.” (2 Austin’s Juris., 1061, 671.) But to express this idea, he could find no word so well suited as “code.”
[1 ]Maine, however, is sometimes included among the “code states” (So Dillon, Laws and Jurisprudence, 260n, and Phillips, Code Pleading, 166n, both quoting from Mr. David Dudley Field’s paper for the Columbian Exposition); but the published statutes of Maine fail to bear this out. It is rather a common law state with statutory modifications.
[2 ]It will be observed that Louisiana stands by itself in this classification; its system of pleading arises out of the civil law. The rules of civil pleading in Texas also had a different origin from the common law, but their statutory enactment has approximated the form of rules found in the “code states” generally.
[1 ]Such were the stock phrases, in use but yesterday. The introduction of Tyler’s Stephen on Pleading affords a good illustration. See also McFaul v. Ramsey, 20 How. (U. S.), 523, 525 (1857).
[1 ]Hale, Hist. Com. Law, 212, Runnington’s note.
[1 ]Cf. remarks of Pollock, in 3 Law Quar. Rev. 344 (1887).
[2 ]How clearly this little book struck the keynote of Bentham’s opposition to Blackstone, appears in the preface to the first edition. “If,” says Bentham, “it be of importance and of use to us to know the principles of the element we breathe, surely it is of not much less importance, nor of much less use, to comprehend these principles, and endeavor at the improvement of our laws, by which alone we breathe it in security. If to this endeavor we should fancy any author, especially any author of great name, to be, and as far as could in such case be expected, to avow himself, a determined and persevering enemy, what should we say of him? We should say that the interests of reformation, and through them the welfare of mankind were inseparably connected with the downfall of his works: of a great part, at least, of the esteem and influence which these works might, under whatever title, have acquired. Such an enemy it has been my misfortune (and not mine only) to see, or fancy at least, I saw, in the author of the celebrated Commentaries on the Laws of England: an author whose works have had, beyond comparison, a more extensive circulation, have obtained a greater share of esteem, of applause, and consequently of influence (and that by a title on many grounds so indisputable) than any other writer who on that subject has ever yet appeared. It is on this account that I conceived, some time since, the design of pointing out some of what appeared to me the capital blemishes of that work, particularly this grand and fundamental one, the antipathy to reformation.”
[1 ]It is a curious coincidence that the year of Bentham’s death is the year of the flood tide of the movement towards common law reform in England.
[2 ]See the note in Dillon’s Laws and Jurisprudence, 337.
[1 ]Maine, Early Hist. Institutions, 397. “If the analytical jurists [Bentham and his school] failed to see a great deal which can only be explained by the help of history, they saw a great deal which, even in our day, is imperfectly seen by those who, so to speak, let themselves drift with history.” Ib.
[2 ]Hepburn, Development of Code Pleading, sec. 76.
[1 ]7 Am. Jurist, 80.
[1 ]They were framed by the judges in pursuance of the statute of 3 & 4 Wm. IV., c. 24—an elaborate act which is as remarkable for its latitude in some questions as for its restrictions in others.
[1 ]Act of April 10, 1805. In many respects this code anticipated the codes of half a century later. “Under it, all suits were commenced by petition, addressed to the court and filed with the clerk, stating the names and residence of the parties, the cause of action, with places and dates, without prolixity, scandal, or impertinence, and concluding with a prayer for relief. The defendant was brought into court by citation, issued by the clerk, and served by the sheriff. On proof of service, and of failure to answer, judgment was entered in favor of the plaintiff. The defendant appearing and answering, either party could demand a jury.” Hunt, Life of Livingston, 117.
[2 ]Act of February 10, 1821.
[1 ]“You have done more in giving precision, specification, accuracy, and moderation to the system of crimes and punishments than any other legislator of the age, and your name will go down to posterity with distinguished honors.” Chancellor Kent to Livingston, in February, 1826. Hunt, Life of Livingston, 281.
[2 ]See 11 Bentham Works (Bowring ed.) 23, 51; Hunt, Life of Livingston, 96n.
[3 ]Cf. remarks of David Dudley Field, 25 Am. Law. Rev. 515, 519 (1891).
[1 ]Art. XIV., § 5, Art. VI, § 3, N. Y. Const. of 1846.
[2 ]N. Y. Const. of 1846, Art. VI, § 27.
[3 ]N. Y. Const. 1846, Art. I, § 17.
[4 ]Act of April 8, 1847, N. Y. Laws, ch. 59, § 8.
[1 ]Act of April 8, 1847, N. Y. Laws, ch. 59, § 8.
[2 ]“Whenever any considerable amelioration has been obtained, either in the form or in the substance of the law, in procedure or in doctrine, it has come from a minority of lawyers supported by the voices of laymen. I do not complain of this. It is the nature of the profession. The lawyer becomes wedded to old things by the course of his daily avocations. He reposes upon the past. He is concerned with what is, not with what should be. The rights he defends are old rights, grounded, it may be, in the ages that have gone before him. Nor is this conservative tendency altogether to be regretted. Rooted in the past, and covered with the branches of many generations, the legal profession may be said to stand like the oak as a barrier and shelter in many an angry storm, though it may at the same time dwarf the growth beneath. With its innumerable traditions and its sentiments of honor, it is one of the strong counteracting forces of civilization, and we should hold fast to it, with all its good and in spite of its evil, though we may have occasion to combat and overcome its resistance to reforms as often as new wants and altered circumstances make them necessary.” David Dudley Field, 1 Jurid. Rev. 18, 20 (1889).
[1 ]New York Laws, 1848, ch. 371, Act of April 12.
[1 ]Hepburn’s Development of Code Pleading, § 66.
[2 ]Which state, however, presently receded from this advanced position.
[1 ]Note his suggestion, that every code should contain a “perpetual provision for its amendment.” Juris. 697. Cf. Gibson, J., in Pennock v. Hart, 8 S. & R. (Penn.), 368, 378 (1822). Cf. Provision under English Code for alteration without resort to the legislature.
[2 ]The original code, that of 1848, remained in force until May 1, 1849, when it was reënacted with a host of amendments and supplements (N. Y. Laws, 1849, ch. 438, Act of April 11), the new act running to four hundred and seventy-three sections. In a little over two years this amended code was greatly changed by the amendatory act of July 10, 1851 (N. Y. Laws, 1851, ch. 479). Presently the latter act was itself amended in a large number of its sections (N. Y. Laws, 1852, ch. 392, Act of April 16). Other amendments followed, but in less volume, until the “revision” referred to in the text.
[1 ]Up to this point the history of the New York code is significant as being that of many codes, and not of the New York code alone; but from this on the story is rather a prophecy of what may happen in other codes if the noble art of statutory revision goes mad.
[2 ]N. Y. Laws, 1870, ch. 33, p. 100.
[3 ]N. Y. Laws, 1876, chs. 448, 449; N. Y. Laws, 1877, ch. 416, § 1. The term “Civil Code” may also be used; cf. Laws of 1892, p. 1491, Statutory Construction Law.
[1 ]“When we get into court on a motion to vacate an attachment, or an order of arrest, or an order for an examination before trial, five out of six of the orders we obtain are set aside because they do not state something that the code says they should state—for instance, we have failed to put in the address of the attorneys. All this is procedure run mad.” Wm. B. Hornblower, 53 Alb. Law Journ., 152 (1896).
[2 ]See remarks of Irving Browne, 3 Green Bag, 51 (1891).
[3 ]N. Y. Laws, 1880, ch. 178. Another chapter was added in 1890.
[4 ]Cf. 53 Alb. Law Journ., 151 (1896).
[1 ]N. Y. Laws, 1895, ch. 1036, Act of June 15.
[2 ]For the report in detail see 52 Alb. Law Journal, 390, 408, (1895); 53 Ib. 6 (1896).
[1 ]Cf. Article in 54 Alb. Law Journ., 202 (1896).
[2 ]As to which see infra.
[1 ]54 Alb. L. J., 193.
[2 ]In 53 Alb. Law Journ., 151 (1896).
[1 ]N. Y. Laws, 1857, ch. 266, Act of April 6.
[2 ]N. Y. Laws, 1881, ch. 676, Act of July 26. Cf. ch. 680. The same session of the legislature established, after a delay of thirty-one years, the New York Code of Criminal Procedure, reported by the first Commission on Practice and Pleadings; see N. Y. Act of June 14, 1881, ch. 504.
[3 ]This first operating civil code in America would make an octavo volume of some three hundred and eighty pages, including its short schedule of forms for deeds to land, bills of lading, etc. It numbers two thousand and thirty-four sections. It went into effect from the date of its approval, January 12, 1866. The Penal Code, an act of seven hundred and eighty-eight sections, went into effect a year earlier.
[1 ]The official designations of these codes and the order of their enactment are as follows: “The Penal Code of California,” Feb. 14, 1872, numbering with the amendments of the next year 1,614 sections; “The Code of Civil Procedure of California,” March 11, 1872, numbering 2,104 sections; “The Political Code of the State of California,” March 12, 1872, numbering 4,460 sections; “The Civil Code of the State of California,” March 21, 1872, numbering 3,543 sections.
[2 ]During the first ten years of Dakota’s existence as a Territory scarcely a session of its legislative assembly was passed, and the sessions were annual, without one or more codes being introduced and adopted out of hand. “These codes were taken either from those prepared by the New York Commissioners, or from other states in which codes based on the work of the New York Commissioners had been adopted.” (Cf. Preface of “Revised Codes of North Dakota, 1895.”) To make room for these activities it was found necessary now and then to repeal a code in short order.
[3 ]“Codes and Statutes of Montana in force July 1, 1895.” The work is complete in four volumes, even to a translation of Magna Charta.
[4 ]Cal. Laws, 1849-50, ch. 119, Act of April 20, 1850. The statute runs to 746 sections.
[5 ]Cf. 25 Am. Law Rev., 515, 526 (1891); 1 Jurid. Rev., 18, 22 (1889); 35 Am. Law Rev. and Reg. (N. S.), 548, 549 (1896); Anderson’s Dict., “Codifier.”
[1 ]See article by Sir Frederick Pollock, 3 Law Quart. Rev., 344 (1887).
[2 ]14 Law Magazine, N. S. (London), 1, 2, 17, 18 (1851).
[1 ]A good illustration of this conservative temper is found in 12 Solicitors’ Journal and Reporter (London), 643, 645 (1868). A leading article on pleading advocates “the giving up of the whole theory of the science of pleading,” as it then existed in England, for a system in which “the plaintiff should state in concise and simple language the facts upon which his claim arises,” and the defendant should state his defense in a like simple manner; but at the same time it is declared to be unnecessary to make “any sudden or violent change” in order to introduce these radical alterations. “New common law procedure acts,” says the writer, “might be passed modifying the procedure by degrees. It is now eight years since the last act upon this subject was passed, and it is full time that another step was taken along the path which has been already so successfully commenced.” It may be, however, that a course less bold than that which was taken by the New York reformers in 1848, would have been fatal to the reform in America.
[1 ]15 & 16 Vict., c. 76; 17 & 18 Vict., c. 125; 23 & 24 Vict., c. 126.
[2 ]15 & 16 Vict., c. 86; 15 & 16 Vict., c. 87; 21 & 22 Vict., c. 26; 25 & 26 Vict., c. 42.
[3 ]36 & 37 Vict., c. 66; 38 & 39 Vict., c. 77; cf. 39 & 40 Vict., c. 59: 40 & 41 Vict., c. 9; 42 & 43 Vict., c. 78; 44 & 45 Vict., c. 68; 47 & 48 Vict., c. 61; 53 & 54 Vict., c. 44; 54 & 55 Vict., c. 53; 57 & 58 Vict., c. 16.
[4 ]15 & 16 Vict., c. 76, “The Common Law Procedure Act, 1852.”
[5 ]17 & 18 Vict., c. 125, “The Common Law Procedure Act, 1854.”
[6 ]23 & 24 Vict., c. 126.
[1 ]15 & 16 Vict., c. 76, § 41. But the section did not extend to replevin or ejectment, and a court or judge had “power to prevent the trial of different causes of action together, if such trial would be inexpedient.”
[2 ]15 & 16 Vict., c. 76, § 49.
[3 ]Cf. 15 & 16 Vict., c. 76, § 51.
[4 ]Cf. 17 & 18 Vict., c. 126, §§ 83, 84.
[1 ]Report on Civil Code of Iowa, 1860.
[2 ]“Here was a case where all the necessary facts were before the court, and were sufficiently stated in the declaration, but the case could not be heard because these facts were not pleaded in the proper way. Because the plaintiff complained on those facts of a wrong done him independent of contract, he was not entitled to argue that there appeared upon the declaration a wrong done him by a breach of contract. If the arrangement of the words had been a little altered, and the plaintiff’s charge had been for breach of contract instead of for negligence, no difficulty would have occurred. If the plaintiff’s cause of action had been stated in plain and ordinary language instead of in a technical form, this difficulty would not have arisen.” 12 Solicitors’ Journ. and Rep., 643, 644 (1868), referring to the pleadings in Readhead v. Midland Ry., Q. B., 15 W. R., 831. The difficulties alluded to were finally avoided by the parties agreeing to take the judgment of the exchequer chamber on a special case without pleadings; cf. Law Rep., 4 Q. B., 379, 380 (1869).
[1 ]15 & 16 Vict., c. 86.
[2 ]15 & 16 Vict., c. 87.
[3 ]21 & 22 Vict., c. 26.
[4 ]25 & 26 Vict., c. 42.
[5 ]15 & 16 Vict., c. 86, § 39.
[6 ]21 & 22 Vict., c. 27, §§ 2, 3, 4.
[1 ]36 & 37 Vict., c. 66, “Supreme Court of Judicature Acts, 1873.”
[2 ]38 & 39 Vict., c. 77, “Supreme Court of Judicature Act, 1875.”
[3 ]Cf. 37 & 38 Vict., c. 83, extending the time of the act of 1873.
[4 ]12 Ir. Law Times, 528 (1878).
[5 ]The paper referred to, on “The Uses of Legal History,” appears in full in 54 Alb. Law Journ., 136 (Aug. 29, 1896).
[1 ]Hepburn’s Development of Code Pleading, §§ 225 et seq.
[2 ]36 & 37 Vict., c. 66, § 68.
[1 ]When the rules, then thirty-three in number, were promulgated in 7 Wheaton, pp. x-xiii.; cf. Act of May 8, 1792, c. 37, s. 2.
[2 ]Here also the federal equity rules afford a line of illustrations. The thirty-three rules of 1822 give place to a code of ninety-two rules framed by the Supreme Court in 1842 (see appendix to 17 Pet., pp. lxi-lxxvii). And the latter have been amended or added to on several occasions since. The facility with which this code is adapted to new conditions is illustrated in 1 Wall., v (1864); 7 Otto, viii (1878), 14 Otto, ix (1882); 144 U. S., 689-691 (1892); 149 U. S., 793 (1893); 152 U. S., 709-710 (1894).
[3 ]Cf. 38 & 39 Vict., c. 77, s. 17.
[1 ]36 & 37 Vict., c. 66.
[2 ]Co. Lit., § 372.
[1 ]Austin, Juris., p. 697.
[1 ]The price which has to be paid for alterations is indicated by the fact that between 1875 and 1890 the English courts handed down four thousand decisions on the judicature rules, and the principles intended to be worked out by them. See 34 Solic. Journ. and Rep., 244 (1890).
[1 ]Lord Coleridge, address at a reception by the New York Bar Association in 1883.
[1 ]For a brief comparison by Mr. David Dudley Field see 25 Am. Law Rev., 515, 525 (1891). The London Law Magazine and Review for 1879, Vol. 5 (4th Series), 59, 62, begins a somewhat elaborate comparison between the New York Code of 1848 and the Judicature Acts and Rules; but the writer concludes “that it is unnecessary to continue the comparison; anyone who has any knowledge of the two systems knows how closely the latter system follows the former (the New York Code) in theory, nomenclature, and substance.” But this may be a little misleading. The Judicature Acts and Rules, while in accord with the New York Code of 1848, do not copy its provisions.
[2 ]The codification of English law, both substantive and adjective, began in India as far back as 1829. It has resulted in several codes of great value to American and English students of the law, enactments which are now accessible in “The Anglo-Indian Codes,” edited by Mr. Whitely Stokes.
[3 ]16 & 17 Vict., c. 95, s. 28.
[1 ]A “Code of Civil Procedure of the Courts of East India Company” had been drafted, eo nomine, in 1853 and 1854, but was not enacted.
[2 ]A paper prepared in June, 1893, for the Columbian Exposition at Chicago, by Mr. David Dudley Field, gives the following as the list of the English colonies which at that date had followed the Judicature Act of 1873: “Victoria, Queensland, South Australia, Western Australia Tasmania, New Zealand, Jamaica, St. Vincent, the Leeward Islands, British Honduras, Cambia, Grenada, Nova Scotia, Newfoundland, Ontario and British Columbia.” This list is quoted in the form given above by Mr. Dillon (Laws and Jurisprudence, page 260 (1894),), and by Judge Phillips (Code Pleading, § 166 (1896),). I do not attempt to verify it, although it is apparently open to modification in some particulars. See also 1 Juridical Review, 22 (1889); 25 Am. Law. Rev., 524, 525 (1891).
[1 ]“I do not claim finality for Mr. Field’s code, or any other form of words. To adopt the perfect code at the first or second movement is to expect impossibilities. Moreover it is not certain that the absolutely perfect code can be framed until the book of the experience of society has been closed, and our civilization entered upon its decadence. It was so in Rome, and may be so with us. For, as new emergencies arise, and new wants appear, any code of human origin will require repairs, amendment, enlargement. The codes of civil procedure have not yet had their final touches. What I hope and claim is that before many years a code of rights as well as remedies, the same in substance, though very likely differing in detail, will be in force in every American state, and within the limits of its powers be adopted by federal legislation.” Hon. George Hoadly, in an address before the Yale Law School in 1884, 12 W. Law Bulletin, 106, 127.