Front Page Titles (by Subject) 44.: CHRISTOPHER COLUMBUS LANGDELL, THE DEVELOPMENT OF EQUITY PLEADING FROM CANON LAW PROCEDURE 1 - Select Essays in Anglo-American Legal History, vol. 2
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44.: CHRISTOPHER COLUMBUS LANGDELL, THE DEVELOPMENT OF EQUITY PLEADING FROM CANON LAW PROCEDURE 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 DEVELOPMENT OF EQUITY PLEADING FROM CANON LAW PROCEDURE1
PLEADING IN THE ECCLESIASTICAL COURTS
THE system of pleading which has prevailed in courts of equity was derived partly from the common-law system, and partly from that of the civil law, as administered in the English ecclesiastical courts; though much more from the latter than from the former.
2. It will be assumed that the reader is already acquainted with the elementary principles of common-law pleading; and therefore that system will be referred to, as occasion arises, without preliminary explanation. But one who is unacquainted with the elements of equity pleading must be supposed, a fortiori, to be ignorant of civil-law pleading. It is necessary, therefore, to begin with an exposition of the leading principles of the latter system, unless all reference to it is to be dispensed with. The latter course would undoubtedly be practicable; but it is hoped the following pages will convince the reader that it would not be desirable.
3. The procedure of the ecclesiastical courts is called the civil-law system, not because it ever prevailed among the ancient Romans, but because it has grown out of the latest Roman procedure, and because it prevails generally in those countries and jurisdictions which derive their procedure from the Romans. In what points it is like the procedure which prevailed in the time of Justinian, and in what points it differs from that procedure, cannot be stated in detail, for we have very little direct information in regard to the latter. We are still more in the dark, as to the long period between the reign of Justinian and the revival of learning in the twelfth century; but from the latter epoch we have abundant information in the writings of civilians and canonists, and in the legislation contained in the “Corpus Juris Canonici.” The earliest of these writings exhibit the system in full operation, substantially as it has remained ever since; but they seldom give any information as to its previous history. As thus exhibited, the system is characterized by two striking features, of which there is no trace in the Roman procedure, and which clearly originated after the time of Justinian. They relate to the mode of proof; and they consist, first, in requiring each party to a suit to submit to an examination under oath by his adversary, his answers being evidence against him as admissions or confessions, but not in his favor; secondly, in requiring all the witnesses in a cause to be examined before the trial, and in secret, their testimony being reduced to writing by the examiner in the form of depositions, and kept secret until all the witnesses have been examined on both sides.
4. The introduction of these changes had put a new face upon the procedure generally, and in particular upon the system of pleading. The changes in the latter, however, consisted in the addition of new requirements, all the principles of the previous system still remaining in full operation. What those principles were may be ascertained with sufficient certainty, notwithstanding the want of direct information before referred to; for we know from the “Corpus Juris Civilis,” and from the remains of ante-Justinian law, the nature of the system which existed in the times of the classical jurists, and which was in form abolished ad 294;1 and from that, and the modern system, it is easy to construct a skeleton of that which intervened. Indeed, it differed but slightly in principle from that which preceded it, known as the formulary system. Under the latter, the names of the pleadings were as follows: intentio, exceptio, replicatio, duplicatio, triplicatio, quadruplicatio, &c. After the abolition of the formulary system, the term “intentio” gave way to that of “libellus;” but the other names remained so far as any specific names were made use of.
5. The libel contained a very brief statement of the plaintiff’s case, its object being not to state the facts which the plaintiff would prove at the trial, but to identify the claim, to indicate its legal nature, and to specify the relief which the plaintiff sought; and thus to enable the defendant to decide whether he would resist the claim or submit to it, and to assist the judge in framing his sentence.1 The exception stated the legal nature of the defence in the same brief manner that the libel stated the plaintiff’s case, and it was always consistent with the libel, i. e., it was always what a common-law lawyer would call a plea in confession and avoidance. The replication bore the same relation to the exception which the exception bore to the libel, i. e., it set up matter which, if true, would destroy the exception without denying its truth. All the subsequent pleadings were of the same character, each bearing the same relation to the one immediately preceding which the latter bore to the one next preceding. When the party whose turn it was to plead could allege no matter which would destroy the last pleading without denying its truth, the pleadings terminated.
6. There was no pleading corresponding to a demurrer with us. Instead of that, every pleading had to be submitted to the judge and receive his approval before it could be pleaded. If it was not objected to by the adverse party, it would generally be admitted as of course. If it was objected to, the judge would hear an argument, and would then make an order admitting or rejecting the pleading, as the case might be; or, instead of rejecting it, he might order it to be amended. An order admitting or rejecting a pleading produced no further effect upon the action than the terms of the order imported. In no case did it terminate the action, like a judgment on a demurrer with us. If a pleading was rejected, it was simply out of the case, and there was no technical objection to the party’s pleading another plea; and, if he did not, the only consequence was that the pleadings stopped where they were, and the cause went to trial with the same effect as if no attempt had been made to plead the unsuccessful plea.
7. Nor was there any pleading corresponding to our traverse. The necessity of such a plea with us arises from the technical rule that an affirmative pleading which is not denied is admitted; but no such rule ever prevailed in the civil-law system.1 The object of the rule with us is to reduce the controversy to a single issue, to be tried by a jury; but the civil law aimed at nothing of that kind. It is true that, when a libel was admitted by the judge, the defendant was required to state orally in court whether he admitted or denied its truth (25); and, if he denied it, he was said to contest the suit. But this bore no analogy to our pleas by way of traverse, nor was it a pleading at all. The ceremony as well as the name (litis contestatio), was derived from an older and obsolete system of procedure. The defendant had an unqualified right to put the plaintiff to his proof in all cases, and a denial of the libel meant no more than that; hence the defendant always denied the truth of the libel, unless he decided to submit to the plaintiff’s demand. Indeed, he must do so; for if, when called upon in court, he admitted the truth of the libel, sentence was pronounced immediately in the plaintiff’s favor. Nor would the failure of the defendant to answer at all, when called upon, amount to an admission. Nothing but an express admission would have that effect. The only effect of the defendant’s failing or refusing to answer was to embarrass the plaintiff in the prosecution of his suit, the technical rules of procedure requiring a litis contestatio before any further step could be taken. The plaintiff’s remedy, therefore, was to call upon the court to compel the defendant to answer.1 After the defendant had contested the suit (suit in that connection meaning simply the plaintiff’s case stated in the libel), it was in order for the defendant to plead an exception, if he had one. But, as the libel stated the plaintiff’s case in very brief and general terms, most defences would amount to a denial of the libel, and so would not be pleaded. In the great majority of cases, therefore, the libel would be the only pleading in the case, and the next step after the litis contestatio would be the trial. If the defendant pleaded an exception, the plaintiff was considered as denying it as of course, there being nothing corresponding to the litis contestatio, as to any pleading after the libel.2 The exception, therefore, was immediately followed by the replication, and so on, until the pleadings were ended.
8. The next step was the trial. This took place before the judge alone, and there seems to be no doubt that the witnesses were called, and examined and cross-examined orally, as at a jury trial with us. There were or might be as many stages in the trial as there were pleadings. The first stage consisted of the trial of the plaintiff’s case as stated in the libel. For this purpose the plaintiff would first put in his evidence in support of his case, and the defendant would then put in his evidence, if he had any, in contradiction. The evidence bearing upon the libel being exhausted, the next stage was the trial of the exception; which proceeded in the same manner as the trial of the libel, except that the defendant began, he having the burden of proof as to his exception. In this manner the trial proceeded, until all the evidence bearing upon each of the pleas in succession was exhausted, each party being required in turn to prove his own pleading, if he would avail himself of it. When the evidence was all in, the advocates were heard, and the cause was submitted to the judge for his decision.
9. The judge examined the evidence in the order in which it had been put in. If he decided that the libel had not been proved, that was an end of the cause, the remainder of the pleadings and the evidence bearing upon them going for nothing. If he decided that the libel had been proved, he then proceeded to examine the evidence upon the exception. If he decided that that had not been proved, there was again an end of the cause, and sentence was pronounced in the plaintiff’s favor, just as if there had been no pleading subsequent to the libel. If the exception was found to be proved, the judge next proceeded to the replication, and so on to the end. Whenever any plea in the series was found not to be proved, that decided the cause against the party who had thus failed in his proof. But finding a plea to be proved was never decisive of the cause, unless the plea was the last of the series. Whoever succeeded on the last plea, all the previous pleas having been proved, of course won the cause.1
10. In a trial at common law, on the contrary, there is properly but one stage, the contest from beginning to end being upon the issue joined between the parties; and the pleadings in the cause are of no importance upon the trial, except as leading up to and explaining the issue.1 The verdict of the jury also simply finds the issue in favor of the plaintiff or the defendant, and this finding decides the cause, and judgment is entered accordingly. Yet the judgment may have no apparent connection with the issue, for the judgment is founded upon the declaration, and is always that the plaintiff do or do not recover the claim therein stated; while issue may be joined upon some wholly different question, e. g., whether the defendant was a married woman when she entered into the contract sued upon. While the contest, therefore, is always upon the issue joined, the object of the contest is always the case stated in the declaration; and the reason why judgment may be entered in the plaintiff’s favor upon a claim which has neither been the subject of proof nor of finding by the jury is, that the claim has been admitted by the defendant’s plea; for the defendant must either put the declaration in issue by a traverse, or he must admit it by a plea in confession and avoidance, and it is only when the defendant pleads in confession and avoidance that issue can be joined upon any matter not stated in the declaration.
11. In the civil law also the object of the contest is always the same, namely, the case stated in the libel, and the sentence is always founded upon the libel, being either that the plaintiff recover his claim, or that the libel be dismissed; and yet the decision of the cause may turn upon a wholly different question, namely, whether some subsequent pleading has been proved or not. But whatever the decision may turn upon, the plaintiff can never recover without proving his libel; and, if sentence is pronounced in the plaintiff’s favor, it is based upon the proof of the libel, and not at all upon the proof which has won the cause, if that relates to some subsequent plea. The reason why the decision may turn upon some plea subsequent to the libel, while the sentence is always based upon the libel and the proof in support of it, is, that the sole object of all the defendant’s pleas is to defeat the libel on grounds independent of its truth, while the sole object of all the plaintiff’s pleas subsequent to the libel is to prevent the defendant’s accomplishing his object. Hence, when the decision turns upon any plea subsequent to the libel, and is in favor of the plaintiff, it involves two points,—first, that the libel is true; secondly, that it is not defeated upon any ground independent of its truth. So the reason why a verdict at common law, upon an issue joined upon a plea subsequent to the declaration, decides the cause, is, that it decides in effect that the defendant has or has not defeated the declaration upon grounds consistent with its truth.
12. Finally, it will be found that all the essential differences between a trial at common law and by the civil law, arise from this; namely, that by the common law a cause goes to trial with everything alleged in the pleadings on either side admitted,1 except the single point upon which issue is joined, while by the civil law it goes to trial with nothing admitted.
13. It has been assumed hitherto that the defendant pleaded his exception, if at all, after the litis contestatio. But sometimes it was pleaded before the litis contestatio took place, and as a general rule it had to be so pleaded when it was dilatory, i. e. when it did not go to the merits.2 In that case, the exception was followed immediately by the other pleadings in their order as before stated; and, when the pleadings terminated, the cause was ready for a trial of the exception and the subsequent pleadings, but not for a trial of the libel, there having been no litis contestatio. The trial, therefore, began with the exception, and proceeded in the manner before stated. If the decision was in the defendant’s favor, the libel was dismissed, and the suit was ended; but if it was in the plaintiff’s favor, it simply rid the plaintiff of the exception, just as if the exception had been rejected by the judge as being bad upon its face. The suit then proceeded from the point where it stopped, i. e., the litis contestatio took place; and if the first exception was merely dilatory, and the defendant had another exception going to the merits, he might now plead that, and everything would then proceed as if there had been no previous exception. If the defendant had no further exception to plead, the cause would then go to trial upon the libel alone.1
14. When the important changes referred to in § 3 were introduced into the civil-law procedure, everything might still have proceeded (and it is reasonable to suppose that at first everything did proceed) as before until the pleadings terminated; but at that point there was a necessary divergence, for, instead of the cause being ready for trial as before, all the testimony must now first be taken in writing. But that was not all, for the witnesses were to be examined in secret; i. e., no one could be present but the witness under examination, the judge, and the notary, the latter reducing the answers of the witness to writing. Each of the parties was also liable to be examined at the election of his adversary; and though the principle of secrecy did not apply here, yet parties (like witnesses) could only be examined by the judge,2 and neither the adverse party nor his representatives had any right to be present.
15. How then were these examinations to be conducted? The method which would most naturally occur to us would be for the counsel for each party to prepare interrogatories in writing for each witness or party to answer. But this method was not adopted, and it is believed that, for the purposes of such an examination, it would have been inferior to the method actually adopted, which was as follows: When the pleadings were completed, each of the parties, if he wished to examine his adversary, prepared a detailed statement in writing of the facts in support of his own pleadings, so far as he supposed them to be within the knowledge of his adversary. This statement was divided into paragraphs, which were numbered, and each paragraph was called a position (positio), and hence the document as a whole was called positions. It was brought into court and submitted to the judge, and by him admitted, or rejected, or ordered to be amended, precisely as in case of a pleading; though the questions which would arise upon it would be very different, being similar to those which would arise upon questions put to a witness. The positions having been admitted by the judge, the adverse party was required to appear before him, or his assistant, and be examined. The judge used the positions as the basis of his examination, framing oral questions upon them, and requiring the examinee to answer as to every point stated in the positions, but not requiring him to go any further, or into any more detail than the positions did. The positions were answered separately, as if they had been a series of interrogatories. The answers were reduced to writing, and when completed, sworn to, and filed, a copy was furnished to the party who had exhibited the positions; and who was thus enabled to learn how much of his case he must prove by witnesses, for he had no occasion to examine witnesses as to any thing admitted by his adversary, such admissions being conclusive.
16. Accordingly, the next step was for each party to prepare a statement of the facts which he expected to prove by witnesses. This was drawn in the same manner as the positions, but it was distinguished by a different name; each paragraph being called an article, and the document as a whole being called articles. The articles were brought into court and admitted or rejected or amended in the same manner as positions.1 Having been admitted, the judge next granted to the parties a certain length of time in which to examine their witnesses, and which was called a term probatory. The witnesses were examined upon the articles in the same manner as the parties upon positions, except that it was strictly secret, as before stated; but there was this difference between parties and witnesses that, the testimony of the latter being evidence against the adverse party, he was entitled to cross-examine them; and though he was obliged to do this in ignorance of what they had testified to on their examination in chief, yet he was perfectly informed as to what each witness might have testified to, for he was furnished with a copy of the articles, and was informed upon which of them each witness was to be examined. The cross-examination was by means of written interrogatories delivered to the judge; and the adverse party was not furnished with a copy of these, as it would enable him to tamper with the witnesses, and instruct them how to answer. The document containing a witness’s answers was called a deposition; the witness being said to depose, and being called a deponent; terms which were never applied with reference to the answers of a party, he not being a witness.
17. Each party was bound at his peril to take all his testimony before the term probatory expired, unless he could get it enlarged by applying to the judge; for, at the end of the term probatory, the testimony was published, and, after that, no more testimony could be taken, the object of secrecy being to prevent the perjury and subornation of perjury, which it was thought would be committed if parties were permitted to examine witnesses at their leisure with a full knowledge of what had been already testified to.
18. It has been stated that both parties and witnesses were examined by a judge; but this ceased to be the case practically at a very early period. Instead of that, parties were permitted to prepare their own answers to the positions with the aid of their own counsel; but they were still in legal contemplation taken by the judge, and were sworn to before him when completed. If they were not satisfactory to the adverse party, he could object to them; and if he made good his objections, the judge would compel further answers. As to witnesses, their examination came to be conducted by the notary (i. e. the judge’s clerk), the judge simply swearing them to their depositions.
19. When the testimony was published, it was competent for either party to apply to the judge to have any portion of it suppressed as incompetent or illegal; but it must be for reasons which had not come to the party’s knowledge till after publication, for such objections must be raised at the earliest opportunity, in order that they might be remedied, if possible. As examples of objections which could be raised after publication, if a witness in testifying went beyond the articles, the adverse party could have so much of his testimony suppressed as being a surprise to him. Such testimony was said to be extra-articulate. So if a witness on cross-examination went beyond the interrogatories, the party cross-examining him could have the testimony suppressed, he not being bound to receive answers from a hostile witness which he had not called for. Such testimony was said to be extra-interrogate.
20. The testimony being completed and published, and all objections to it disposed of, the cause was ready for a hearing or argument, for such it was now more properly than a trial.
21. There being no difference in substance between positions and articles, it was an obvious and easy step to combine them in one document, each paragraph being made both a position and an article. This was accordingly done, at least in some jurisdictions; and the course then was first to require the adverse party to answer all the positions and articles to the extent of his knowledge, and afterwards to prove by witnesses, if possible, whatever the adverse party denied or refused to admit. In this way all distinction between positions and articles came in time to be lost sight of in great measure. Another possible step, though less obvious and easy, was to combine the positions and articles with the pleadings proper. This also was done in certain jurisdictions; and in particular such has been the practice from time immemorial in the English ecclesiastical courts.1 The system of pleading which resulted from this combination will be described presently.
22. As to when, where, and by whom the change from oral to written evidence, and the changes connected with it and consequent upon it, were introduced, there appears to be little direct information. It seems pretty clear, however, that they were of recent introduction in the twelfth century, if, indeed, they were introduced before the thirteenth century; and that they originated with the canonists, having been first introduced into the spiritual courts.1 During the twelfth and thirteenth centuries, the canonists paid great attention to the subject of procedure, in that respect taking the lead of the civilians proper. They were in a much better position also to make their influence felt, as they had in the Pope and in the councils of the church a central authority which was acknowledged throughout western Europe; a consideration of decisive importance in reference to the subject of procedure, as it is necessarily founded upon positive law, and so is in its nature local. Upon the whole, there is little doubt that, during the period in question, the civil-law procedure was moulded into the shape that it has ever since retained, and that it was mainly done by the canonists.2 No apology, therefore, is required for resorting to spiritual, rather than secular, courts for a type of this procedure.
23. As to the English ecclesiastical courts, they were established by an ordinance1 of William the Conqueror, upon the model of the spiritual courts which had long existed on the continent of Europe. The ordinance expressly directed that the new courts should not be governed by the municipal law of England, but by the canon law (canones et episcopales leges); i. e., by the same law which governed all spiritual courts which recognized the authority of the Pope. Nothing was said expressly upon the subject of procedure; but it was assumed that the adoption of the canon law included its precedure; which was accordingly introduced in all its integrity, and has continued to be the procedure of those courts from that day to this. Down to the time of the Reformation, the only appeal from the highest of those courts was to the Pope,2 and by his Decretals he regulated their procedure in common with that of all other spiritual courts which acknowledged his authority. It is stated by competent authority that, as a matter of fact, the practice of the English courts was identical with that of the Pope’s consistory court at Rome.3 After the Reformation, everything proceeded in those courts as before, there being no interference from without (until since 1830), and the courts themselves not being disposed to make changes. Moreover, the judges and practitioners of those courts being all educated in their own system, and having no connection with the secular courts, their procedure has not been influenced perceptibly by the common law.
24. In directing attention, therefore, to this procedure, one can claim for it, in addition to the fact that it is the immediate source of equity procedure, all the interest and importance that belongs to the best type of civil and canon law procedure.4 To this, however, one qualification must be made; namely, that, from the limited nature of the ecclesiastical jurisdiction, it does not call into requisition all the resources of the civil-law procedure. Thus, by that system actions are either in personam or in rem; but, as the ecclesiastical courts have no jurisdiction over property, they do not entertain actions in rem. So also they have no power to interfere with the personal liberty of the subject or citizen; and hence the subjects of arrest and bail make no figure in their procedure. It is for these reasons that the procedure in admiralty seems at first sight to differ so materially from that of the ecclesiastical courts. But this furnishes no argument against resorting to the ecclesiastical procedure for our present purposes; for it is still true that the procedure in equity has been derived wholly from that source, so far as it is of civil-law origin.
25. It remains to describe the course of pleading in the ecclesiastical courts, as it actually takes place. The libel combines in itself the libel proper, and also the positions and articles founded upon it. The effect of this is, that the libel is neither brief and general, as it originally was, nor does it state the facts of the plaintiff’s case according to their legal effect, as at common law; but it goes to the other extreme, and sets forth the plaintiff’s evidence in the same detail with which it is to be proved; so that the defendant will obtain a perfect knowledge from the libel of everything that the plaintiff will be at liberty to prove in support of his case. Nor is this confined to what is to be proved by witnesses or by the defendant’s admissions; for, if any part of the plaintiff’s evidence consists of written instruments, the plaintiff states in a distinct paragraph whatever he will have to prove to make the instrument evidence, and annexes the instrument itself to the libel.1 When completed, the libel is brought into court, and is either admitted or rejected, as before explained. If it is bad in substance as a pleading,—that is, if it does not state any case in the plaintiff’s favor, admitting it all to be true,—of course it is absolutely rejected. On the other hand, if it states evidence which is inadmissible, or states admissible evidence improperly, there being still enough remaining to make out a case, it will be reformed. Being finally settled and admitted, the litis contestatio takes place,1 it seldom happening in practice that a dilatory exception is pleaded before the litis contestatio. Assuming that the defendant contests suit negatively, the usual practice is for the plaintiff to proceed immediately to the proof of his libel, before any pleading on the part of the defendant; and accordingly, upon the conclusion of the litis contestatio, the judge orders the defendant to be cited to answer the libel in the quality of positions, and assigns a term to the plaintiff for the proof of it in the quality of articles. The plaintiff, however, does not begin to examine witnesses, nor does his term probatory begin to run, until the defendant’s answers are brought in (15). These are called personal answers, to distinguish them from pleadings, which are always in the name of the party’s proctor. The personal answers being filed, and being found satisfactory, the plaintiff proceeds to examine witnesses in the manner before stated, upon such paragraphs of the libel (in the quality of articles) as have not been sufficiently admitted by the defendant. The defendant also cross-examines the plaintiff’s witnesses, if he wishes to do so, by means of interrogatories; but he can examine no witnesses of his own as yet, for he has brought in no articles.
26. When all the plaintiff’s witnesses have been examined and cross-examined, and before their testimony has been published, the defendant must plead. All pleadings subsequent to the libel are called simply allegations. The defendant must bring in an allegation of some kind if he wishes to examine any witnesses, and it will always consist of a statement of his evidence. What evidence it must contain will depend upon the nature of the defence. If the latter is negative, i. e., consists merely in denying the plaintiff’s case, the allegation will consist of positions and articles merely, setting forth such evidence as the defendant has in contradiction of the evidence stated in the libel. If the defence is affirmative, the allegation must contain an exception, and positions and articles to support it; i. e., it must set forth sufficient evidence to establish the affirmative defence, the defendant having the burden of proof as to that. If the defendant has evidence also in contradiction of the plaintiff’s case, he should set that forth; for he may avail himself of as many defences as he has, whether affirmative or negative, the common-law rule against duplicity having no place in the system.1
27. The defendant’s allegation (commonly called a responsive allegation) being brought in and admitted, the same proceedings take place for proving it as in case of the libel, including personal answers from the plaintiff.
28. These proceedings being concluded, the plaintiff prepares and brings in his second allegation. This may consist, first, merely of evidence in rebuttal of contradictory evidence on the part of the defendant; or, secondly, of evidence contradictory of the defendant’s affirmative defence; or, thirdly, of evidence to prove an affirmative replication on the part of the plaintiff; or, fourthly, it may contain two or all three of these elements. It cannot contain, without special leave, any evidence in support of the plaintiff’s original case; for that should have been set forth in the libel. And the same rule holds in regard to all the allegations or pleadings of each party after the first; i. e., he must set forth his evidence at the proper time, or lose the opportunity of doing so.1
29. The same proceedings take place for the proof of the plaintiff’s second allegation as upon the previous pleadings; and this process of bringing in an allegation and proving it, by each party alternately, is continued until the case and defence respectively are exhausted.
30. It is said to be in the discretion of the court how long it will permit the allegations to continue;2 but this cannot mean that the court will stop them before the parties have had an opportunity to develop fully their case and defence respectively.
31. As a matter of fact also, the allegations seldom extend beyond the third, i. e., the second on the part of the plaintiff.3 But this must not be taken as indicating that the plaintiff is entitled to the last allegation upon principle; for the defendant rather has that right. At least, if the plaintiff’s second allegation contains the matter of a replication in the Roman sense, the defendant is entitled to set up a duplication if he has one, and even to set forth evidence in denial of the replication; otherwise, the plaintiff would be permitted to recover, in case the decision turned upon the replication, without giving the defendant any opportunity to be heard upon the decisive question in the case. Accordingly, it was a rule of the Roman law that the defendant was entitled to the last plea.4 At common law either party is entitled to plead as long as he has anything to allege; but, as he cannot plead affirmatively without admitting the last pleading of his adversary to be true, there is no danger of abuse in that direction; while in the civil law either party may wish to prolong the pleadings for illegitimate purposes.
32. It is observable that, as the plaintiff alone is seeking relief, and as his relief must be founded upon the libel alone, the latter differs from all the subsequent pleadings in concluding with a prayer for the relief to which the plaintiff supposes himself entitled. This is called the conclusion of the libel, and the plaintiff is held to great strictness in framing it. As his proof cannot go beyond the allegations of evidence in the libel, so his relief cannot go beyond the conclusion. Any of the plaintiff’s evidence, therefore, which does not support both the allegations and the conclusion of the libel, will go for nothing, however important it may be in itself.1
33. It has been seen that, at common law, all the facts alleged by either party, and not expressly denied by the other, are admitted on the face of the pleadings, while in the civil law every fact alleged must be proved, if any use would be made of it. Conversely, however, in the civil law each party is relieved, in a mode unknown to the common law, from either alleging or proving any facts which have already been alleged by the other side. By the common law a party is never bound by the allegations in his own pleadings, i. e., they can never be used against him as admissions either in the same suit or in another suit;2 but by the civil law a party is held to admit the truth of every fact which he alleges, the rule being qui ponit fatetur; and this admission is conclusive. In other words, all the allegations of each party are to be taken as true at the election of his adversary.3 This rule originated with the introduction of positions and articles; and, as all evidence must be set forth in the pleadings before it can be proved, it is of extensive application. It makes it necessary, before alleging a fact, to consider carefully whether the controversy may take such a turn as to make it evidence against you.1
34. This difference in the two systems well illustrates the different theories upon which they are founded. The object of pleading at common law is not, as in the civil law, to give notice to the parties respectively and to the court of the facts intended to be proved, but to separate the law from the facts, and to narrow the latter down to a single issue, with a view to a trial by jury. Hence, the pleadings are regarded, not as statements by the respective parties of what they claim to be the truth of the case in point of evidence (and to which it would be reasonable to hold them), but as statements by their counsel of what they claim to be the legal effect of the evidence to be produced. To hold a party to the correctness of such statements would be to make the opinions of his counsel upon matters of law conclusive against him. Such a rule, however, if it existed at common law, would have but little application, as it would seldom happen that the alternate pleadings by which an issue in fact is developed would furnish material evidence upon the trial of that issue.
35. The parties having brought in all their allegations respectively, and all the witnesses on both sides having been examined and cross-examined, the testimony is next published; and, if either party then thinks any further steps necessary on his part before the hearing of the cause (19), they should be taken without delay. Before the cause can be brought to a hearing, however, the following formal proceedings must take place after publication: First, a term must be assigned to propound all things, i. e., the judge must appoint a day upon which each party, if he has anything further to offer, shall bring it forward. When either party is ready for the hearing, if he desires to speed the cause, he should apply to the judge to assign such a term. On the day so appointed, if nothing further is propounded, the judge, on the application of either party, assigns a day to conclude the cause; on which day the judge declares the cause concluded, and assigns a day to hear sentence.
46. Having thus shown that equity derived its doctrines, as well as its powers, from its mode of giving relief, and that it borrowed the latter directly from the ecclesiastical courts, it remains to inquire to what extent the procedure generally of those courts was adopted in chancery. In form it cannot be said that it was adopted at all, that is, the ecclesiastical procedure was never made as such the procedure of the court of chancery. On the contrary, the procedure of the latter court was professedly built up, or rather left to grow up, as an independent system. Sometimes it followed the analogy of the ecclesiastical procedure, and sometimes that of the common-law procedure; but undoubtedly it derived most of its important characteristics from the former.
47. In particular, it followed the ecclesiastical courts almost literally in its mode of taking the testimony of witnesses, and in requiring each party to submit to an examination under oath by his adversary. It ought, therefore, to have adopted the ecclesiastical system of pleading in all its essential features. To what extent it did so we shall see hereafter.
48. In what relates, however, to the formal mode of conducting the proceedings in a suit, chancery has followed the common law; and this has caused much misapprehension as to the origin of the system in other respects.
In the ecclesiastical practice, every step in a cause regularly takes place in open court, under the direction and supervision of the judge. The proceedings in court are for the most part oral, but the clerk takes minutes of them as they occur; and these minutes, when fully written out, make a complete history of the cause.1 Each party is bound at his peril to be present in court during the progress of the cause; and hence neither is bound to give notice to the other of any step to be taken. Whenever an act is required to be done in writing, the writing has to be filed with the clerk, and, until so filed, the act is not considered as done. Hence, the clerk’s files and his minutes constitute the sole evidence of the state of the cause, and of what has been done in it. And, as the judge is supposed to know whatever it is the duty of his clerk to know, all the proceedings in an action in legal contemplation remain in the breast of the judge, i. e., he has judicial knowledge of them, and so requires no evidence from the parties on that subject.
At common law, on the other hand, the formal proceedings in an action are chiefly conducted out of court by the attorneys of the respective parties, pursuant to established rules. Each attorney is required, as a rule, to give notice in writing to the other of every step taken by him in the cause, or intended to be taken, as the case may be. When either intends to apply to the court for any purpose, he must give the other notice in writing of such intention, and of the time when the application will be made. The application is called a motion, and the decision of it is by an order formally drawn up in writing. All the acts of the court are by orders in writing, in which the court speaks directly, and not through its clerk. When papers are required to be filed with the clerk, it is generally only for permanent preservation, and after they have served their purpose. The clerk keeps no history of causes pending, and neither he nor the court is supposed to know (nor does commonly know in fact) what has been done in a particular cause, nor even that any such cause is pending, such knowledge being generally confined to the respective attorneys.1 Therefore, every motion is decided wholly upon the evidence adduced on behalf of the respective parties.
In one system, therefore, the court is active, assuming the supervision and control of the proceedings in an action from beginning to end; in the other, it is passive, leaving the respective attorneys to conduct their proceedings in their own way, and on their own responsibility, making it the duty and interest of each to see that the other proceeds correctly, and subjecting each to the risk of having his proceedings set aside for irregularity, or treated by the other as nullities and disregarded. And these differences extend to the conduct of the pleadings. In both systems, the pleadings are in writing, but in the civil law, as has been seen, no pleading can be received or filed without the sanction and direction of the court, while at common law they are filed or served, without even the knowledge of the court: and, if a pleading is supposed to be bad, the adverse party cannot bring it before the court for the purpose of having it rejected or reformed; he can only raise the objection in the first instance by demurrer, and that is followed by a final judgment for or against the party demurring. It is true that the court, instead of giving judgment, may permit the defeated party to amend his pleading, or withdraw his demurrer, as the case may be, but it still leaves him to act upon his own responsibility, and at his own risk.
In all these particulars, chancery follows chiefly the common law;1 and this fact will be found to have had an important influence upon the system of pleading in chancery.
49. In the ecclesiastical courts, causes are distinguished as plenary or summary. In what has hitherto been said of procedure in those courts, it has been assumed that the cause was plenary. The distinction was chiefly a technical one, a summary cause differing from a plenary one in little more than in having no litis contestatio, no term assigned to propound all things, no term to conclude, and no formal conclusion. This distinction never existed in chancery, for the reason that all causes there are summary. Hence, the ceremonies peculiar to plenary causes are unknown to chancery procedure.1
50. In the ecclesiastical courts, there is no distinction between matter of record and matter not of record; nor is there any use made of parchment. At common law, all the more important proceedings in an action (e. g., writs, pleadings, verdict, and judgment) are engrossed upon parchment rolls, and constitute matters of record. In this respect chancery followed the common law, and there were special reasons for its doing so. For, in the first place, all writs issuing under the great seal were required to be upon parchment, and it was by means of such writs, as we have seen, that the chancellor exercised his whole jurisdiction. Again, chancery has a common-law side as well as an equity side, and the former is much more ancient than the latter; and, as a common-law court, it had a staff of clerks, known as the Six Clerks, who occupied an office together, and had charge of all its records. Therefore, when the equity jurisdiction arose, it was natural that the proceedings should be made matter of record; it may even have been deemed necessary to their validity.
51. In the ecclesiastical courts, all clerical duties were performed by or under the direction of one officer, who was known as the registrar of the court, and in his office all books and papers relating to the business of the court were kept. This office was adopted by the Court of Chancery, and the registrar has always been properly the clerk of that court. But the office of registrar having properly nothing to do with records, and the Six Clerks being already in charge of all the records of the court, and all writs being issued by them, the result was that the clerical duties of the court were divided between the registrar and the Six Clerks; the latter having charge of everything that went upon parchment, the former of everything else. It thus happened that the pleadings were filed in the Six Clerks’ office. As to decrees, they were first drawn up and entered by the registrar in his book, but they were not complete for all purposes until they were enrolled in the Six Clerks’ office.
52. On the common-law side of the court the Six Clerks not only filled the office of clerk of the court, but they were also the attorneys in all actions and proceedings prosecuted in that court, i. e., each party to every action or proceeding was obliged to employ one of the Six Clerks as his attorney;1 and, when the equity jurisdiction arose, they claimed and established the sole right to be attorneys also in all equity suits. Each Six Clerk, however, had ten subordinate clerks under him, by whom the business of the office was chiefly transacted; and in course of time these subordinate clerks, under the name of clerks in court, became the attorneys of the court, instead of the Six Clerks.2 But as they confined themselves to their office, and only superintended the formal proceedings in suits, another class of practitioners grew up, under the name of solicitors, who came to be the persons directly employed by clients in all suits in equity, the clerks in court being employed by the solicitors. Thus, until within a recent date, there were three classes of practitioners in equity; viz., solicitors, clerks in court, and barristers or counsel. There was nothing corresponding to this in the ecclesiastical courts where the practitioners were divided into proctors (procurators) and advocates, corresponding to attorneys and barristers at common law. Proctors and advocates (who practised indiscriminately in the ecclesiastical, admiralty, and prize courts) were wholly separated (as much so professionally as if they had been in another country), from the practitioners in the common-law courts, and in the Court of Chancery. There never was any such separation between the practitioners in the Court of Chancery, and in the common-law courts. The clerks in court, of course, confined themselves wholly to the Court of Chancery; but every solicitor, as a rule, was also an attorney at common law; and, until about the beginning of the present century, there was only a partial separation between the barristers practising in chancery, and those practising in the common-law courts. For these reasons, there has been a constant tendency to assimilate the procedure of common-law and equity, as well as to separate the latter from the system from which it took its origin.
[1 ]This essay forms §§ 1-35, 46-52, of “A Summary of Equity Pleading,” 1877 (Cambridge: C. W. Sever).
[2 ]1826-1906. Harvard University, A. B. 1849, LL. B. 1853, LL. D. 1875; Beloit College, LL. D. 1875; member of the New York Bar. 1853-1870; Dane professor of law in Harvard University, and dean of the faculty of law in the same, 1870-1895; emeritus professor in the same, 1895-1906.
[1 ]C. 3, 3, 2.
[1 ]“In libello tria debent esse scripta: res quae petitur, et causa petendi, et nomen actionis. Res autem petitur singulariter, ubi est singularis: putà, peto codicem. Item universaliter, si est universalitas: ut haereditas. Item generaliter, si generalitas petatur: ut peto rationem meorum negotiorum gestorum, quae administrasti. Causa autem est inserenda: ut dicam, quia emi: vel similem causam dicam Item actio: ut actio ex empto, vel similis actio. Forma ergo petitionem in hunc modum: Peto Codicem, quia emi: et hoc per actionem ex empto. Et omnia quae plura ponuntur superflua sunt, nisi sint ad specificationem rei.” Gloss upon the word libellum, in Novel. 53, c. 3, § 1. “Debet libellus esse ita clarus, ut reus possit ex eo deliberare an velit cedere vel contendere.” Maranta, Ordo Judiciorum, Pars VI., tit. De libelli oblatione, nu. 2. “In primis igitur, reo in assignato termino comparente, judici libellum actor offert, et illum ita clarum et planum, ut ex ejus inspectione deliberare reus valeat, utrum cedere velit, an contendere; atque ut, si contendum sit, despicere valeat judex, quemadmodum à re concipienda sit sententia. Nihil enim aliud est libellus quam brevis scriptura, claram actoris intentionem continens, et contra adversarium necessariò concludens.” Lancelotti, Inst. Jur. Can. Lib. 3, tit. 7.
[1 ]“Non utique existimatur confiteri de intentione adversarius, quo cum agitur quia exceptione utitur.” D. 44, 1, 9. And see Stephen on Pleading, Appendix, Note 54.
[1 ]Oughton, Ordo Judiciorum, tit. 61, note (c), § 2.
[2 ]“Super exceptionibus non necesse litem contestari.” 2 Brown’s Civil and Adm. Law (2d ed.), 359, note.
[1 ]“En résumé, on voit que l’intentio, l’exceptio, la réplique, la duplique, etc., forment une chaîne de propositions subordonnées les unes aux autres: si le demandeur ne prouve pas son intentio, le juge doit absoudre, sans s’inquiéter des exceptions; si l’intention est prouvée, le juge, avant de condamner, doit examiner l’exception. Si l’exception n’est pas prouvée, il doit condamner sans avoir à s’occuper de la réplique qui devient inutile; si, au contraire, l’exception est vérifiée, le juge doit absoudre à moins qu’il n’y ait une réplique, et ainsi de suite; de telle façon qu’à chaque anneau de la chaîne, se reproduit l’alternative de la condamnation ou de l’absolution.” Bonjean, Traité des Actions (2nde éd.), I., 440.
[1 ]This statement must be qualified; for, when the action sounds in damages, if the jury find in favor of the plaintiff, they must assess his damages; and they do this upon the basis of what is stated in the declaration.
[1 ]This does not include any allegations in the declaration affecting the amount which the plaintiff is entitled to recover, i. e. the amount of his damages; which the plaintiff must always prove. See § 10, n. (2).
[2 ]Maranta, Ordo Judiciorum, Pars VI., tit. De exceptione, nu. 7; Oughton, Ordo Judiciorum, tit. 60.
[1 ]Oughton, tit. 60, note (l).
[2 ]It does not follow that these examinations were conducted by the judge who heard and decided the cause; for by the civil law a judge could delegate his authority to an assistant. Of this nature are surrogates in the ecclesiastical courts, and masters in the court of chancery.
[1 ]As to positions and articles generally, see Maranta, Pars VI., tit De positione, seu articulorum productione; Gaill, Pract. Obs. 79.
[1 ]Oughton, tit. 61; Conset’s Practice, Part III. c. 2, sect. 4 (2d ed. p. 95). It appears from Gaill (Obs. 79, nu. 3) that the same practice prevailed in the imperial court of Germany.
[1 ]In the Decretals of Pope Clement V., Lib. 5, tit. 11, c. 2, it is said (circ. 1307): “Positiones ad faciliorem expeditionem litium propter partium confessiones, et articulos ob clariorem probationem, usus longaevus in causis admisit.” And the Glossator (John Andreae, the most celebrated canonist of the fourteenth century), in commenting upon this passage, says, positions and articles had been in use from the time of Pope Gregory IX. (ad 1227-1241). See 2 Brown’s Civil and Adm. Law (2d ed.), 374, note.
[2 ]About the middle of the twelfth century, Gratian completed his codification of all the canon law then existing. This is known as Decretum Gratiani, and constitutes the first part of the “Corpus Juris Canonici.” As it makes very little reference to procedure, it is evident that that subject had not yet attracted the attention of churchmen. The second part of the “Corpus Juris Canonici” consists mainly of Decretal Epistles, issued by various Popes from the middle of the twelfth to the end of the thirteenth century, though there are some of a later date. During this period the Papal power was at its height; and, as the spiritual courts were one of the chief instruments for maintaining and extending this power, the subject of procedure in these courts received great attention. Accordingly, procedure assumes a very conspicuous place in the Decretals (as they are commonly called). There are three principal collections of these (viz., those of Gregory IX., those of Boniface VIII:, and those of Clement V.), each of which is divided into five books; and the second book of each is devoted wholly to procedure. One of the earliest and most celebrated treatises upon procedure was written in the thirteenth century by a canonist (William Durand), and it followed the arrangement of the Decretals. The title of the treatise was “Speculum Juris,” and so great was its celebrity that its author was commonly known by the name of Speculator.
[1 ]This ordinance will be found at large in Ancient Laws and Institutes of England (8vo ed.), i. 495; 2 Burn, Eccl. Law (Phillimore’s ed.), 33; Stubbs, Select Charters (2d ed.), 85. And for a commentary on it. see Coote, Eccl. Pr. pp. 6-17.
[2 ]Appeals to the Pope were abolished by the statutes of 24 Henry VIII., c. 12, and 25 Henry VIII., c. 19.
[3 ]Coote, Eccl. Pr. 10.
[4 ]The best sources of information upon the procedure of the ecclesiastical courts are the following: Oughton, Ordo Judiciorum (1738); Report of Commissioners upon the Ecclesiastical Courts (1832); Burn, Ecclesiastical Law (Phillimore’s ed.), tit. Practice (1842); Coote, Ecclesiastical Practice (1847). Of the foregoing works, the first is much the most celebrated; but the second will, it is believed, be found the most instructive by those who are unacquainted with the subject; while the third and fourth are particularly valuable for the forms which they contain. Oughton is in Latin; but the first part of it has been translated by James T. Law, and published with notes, under the title of “Forms of Ecclesiastical Law.”
[1 ]For the mode of doing this, see Coote, 331, 334.
[1 ]This ceremony is thus described by Oughton, tit. 61: On the day assigned to the defendant to answer the libel, the plaintiff’s proctor shall say to the judge, in the presence of the defendant’s proctor: “I pray an answer to the libel according to the terms of your lordship’s assignation.” Defendant’s proctor: “Protesting against the said libel for its too great generality, ineptitude, obscurity, nullity, and undue specification, for answer thereto, I say, for the purpose of contesting suit negatively, that the statements contained in said libel are not true, and, therefore, that the prayer thereof ought not to be granted.” Plaintiff’s proctor: “The libel is articled, and I therefore repeat the same in the quality of positions and articles (in vim positionum et articulorum), and I pray that it may be so repeated by your lordship, and admitted.” Judge: “We repeat the libel in the quality of positions and articles, and it shall be considered as so repeated; and we admit it in the quality of positions and articles.” Plaintiff’s proctor: “The libel is articled, and repeated in the quality of positions and articles, and I therefore pray an answer to the positions of the same from the defendant or his proctor.” Defendant’s proctor: “I do not believe the positions to be true.” Plaintiff’s proctor: “I allege that I shall be more aided by the answer of the principal party than by that of his proctor appearing in the cause. May it therefore please your lordship to decree the principal party to be cited to answer personally the positions of said libel.” Judge: “We decree the principal party to be cited to answer personally the positions of the said libel [on such a day].” Defendant’s proctor: “I dissent; and I pray a term to be assigned to the plaintiff to prove the libel.” Judge: “We assign for proof three [or as the case may be] court days.” Defendant’s proctor: “I dissent, on account of the length of the term.”
[1 ]“Nemo prohibetur pluribus exceptionibus uti, quamvis diversae sint.” D. 44, 1, 8. “Is, qui dicit se jurasse, potest et aliis exceptionibus uti cum exceptione jurisjurandi, vel aliis solis; pluribus enim defensionibus uti permittitur.” D. 44, 1, 5.
[1 ]3 Burn, Eccl. Law, 190, 191.
[4 ]Kaufmann’s Mackeldey, 211.
[1 ]“In libello non attenditur quid, quale, et quantum narretur, sed quantum ex narratis concludatur, quia conclusio libelli restringit narrata ad ea, quae expressè in conclusione dicuntur.” Gaill, Pract. Obs., Lib. 1, Obs. 61, nu. 15.
[2 ]Boileau v. Rutlin, 2 Exch. 665.
[3 ]Maranta, Pars VI., tit. De Positione, etc., nu. 6; Gaill, Lib. 1, Obs. 79, nu. 6; 3 Burn, Eccl. Law, 264; Greville v. Tylee, 7 Moo. P. C., 320, 330.
[1 ]Oughton, tit. 54, note (c), § 4.
[1 ]Specimens of minutes will be found in 3 Burn, 209, 221, in Coote, 845-855, 921-924, and in Floyer’s Proctor’s Practice, 143-172. Any order or direction of the court, made or given orally, is technically termed an assignment, e. g., the court assigns the plaintiff’s proctor to bring in a libel the next court day. Hence, the clerk’s minutes are frequently called assignations, and the book in which they are entered the assignation book. The minutes, being memorials of the acts of the court, they are also frequently themselves called acts and the book in which they are entered the book of acts. When an act of court, or an act of a party, is done orally in open court, and entered in the minutes, it is said to be done apud acta, i. e., in the acts or minutes.
[1 ]There is a seeming exception to this when the court sits for the trial or argument of causes; for there is then a list made of all causes ready for trial or argument, and they are taken up in the order in which they stand in the list; and, while causes remain in this list, they are under the active supervision and control of the court for the purpose for which the list was made, namely, that of regulating the order in which, and the time when, the causes shall be respectively tried or argued.
[1 ]It seems, however, that this was not so in early times; for in a collection of orders, of the time of Henry V. (Sander’s Orders in Chancery, 7 c.), it is made the duty of the registrars to write all the acts of the court, placing the names of the parties and of their attorneys at the head of all acts, as is done in the ecclesiastical courts. (Compare Floyer, 143-172). They are directed also to enter the dates when all pleadings are exhibited and placed on file. They are styled “notarii sive tabelliones.” and all the terms which are applied to them accord entirely with the ecclesiastical practice. It seems that the registrar’s book, in which all orders and decrees in chancery are entered, was originally the assignation book of the ecclesiastical courts; and this may explain the fact that all orders and decrees (i. e., all acts of court) are drawn up by the registrar and entered in his book. In the ecclesiastical courts, when an act of court is in writing (e. g., a definitive sentence), it is drawn up by the proctor of the prevailing party, and presented to the judge for his approval and signature, and, having been signed, it is filed, not entered in a book.
[1 ]This is obvious upon inspection; but there is also authority to show that all suits in chancery were regarded as summary from the earliest times. In summary causes the judge was said by the canonists to proceed “simpliciter et de plano, ac sine strepitu et figura judicii.” (Constitutions of Clement V., B. 5, tit. 11, c. 2.) And in a report made to the chancellor in the time of Elizabeth, by two masters in chancery, who were also doctors of civil law, it is said: “The judge [in chancery], may and ought to proceed summarily, ‘de plano sine figura judicii.’ ” Acta Cancellariae, 613.
[1 ]A similar state of things formerly existed in all the common-law courts.
[2 ]See Ex parte The Six Clerks, 3 Ves. 589.