prevails in the laws of England," said, on a recent occasion, that great judge, Lord Tenterden, "to be founded upon, and to be adapted to, the peculiar mode of trial established in this country-the TRIAL BY JURY and that its object is to bring the case, before trial, to a simple, and-as far as practicable-single question of fact; whereby, not only the duties of the jury may be more easily and conveniently discharged, but the expense to be incurred by the suitors, may be rendered as small as possible. And experience has abundantly proved that both these objects are better attained where the issues and matters of fact to be tried are narrowed and brought to a point by the previous proceedings and pleadings on the record, than where the matter is left at large to be established by proof, either by the plaintiff in maintenance of his action, or by the defendant in resisting the claim made him upon * "" The origin of this peculiar and admirable system must be referred, in all probability, to the practice of ORAL pleading†; which, as it was universally in use among the early judicatures ‡, prevailed in this country in the reign of Henry III., and was not finally abandoned till about the middle of the reign of Edward III. The contending parties appeared actually in court, either personally or by their attorneys; and their case * Per Tenterden, C. J., Selby v. Bardons, 3 B. & Adol. p. 16. + See a curious specimen from the Year Books, of vivá voce pleading in the Appendix. Steph. on Pl., p. 31, App. note 7 (2nd ed.). was stated vivá voce in the presence and under the superintendence of the judges, who compelled the parties "so to manage their alternate allegations, as at length to arrive at some specific point or matter affirmed on the one side and denied on the other *.” This specific point was called "THE ISSUE" (exitus— because the parties were at THE END of their pleading +), and was of two kinds—an issue in law, or an issue in fact: being referred for decision, in the former case to the judge, in the latter to the jury. This system of oral pleading was, as already intimated, probably discontinued in the reign of Edward III. What may be termed a paper war was introduced in its stead; i. e., the complaining party, through the medium of his attorney and pleader, in the first instance writes the statement of his case, and * Steph. on Pl., p. 32. An issue is, when both the parties join upon somewhat that they refer to a trial, to make AN END of the plea (i. e. suit). -Finch's Law, p. 396. "This phrase of issue occurs at the very commencement of the Year-books, (i. e. 1 Edward II.)—but the author has not traced it to an earlier period. In some instances, the expression 'isser d'empler' occurs; which may be translated to get out of,' or 'finish the pleading,'-and clearly marks the meaning and derivation of the term issue. In the reign of Edward IV., we find the Latin term thus regularly defined: exitus idem est quod finis, sive determinatio placitandi.-Year-book, 21 Edw. IV. 35. It is observable that the parallel word fin appears to have been used, in the same sense, in Normandy. See Comm. de Terr., lib. ix. c. 27."-Steph. App. Note (10). "The terms issue in ley,' and issue en fet,' occur as early as the third year of Edw. II. See the Year-book, 3 Ed. II. 59.” -Steph. App. Note (10). sends it for a written answer, to the attorney and pleader of his opponent. Such, in a word, was, and is now, the "art and mystery" of "Special Pleading;" such are the proper functions of "Special Pleaders." It will not require much reasoning to show, that the simplicity was far outweighed by the inconveniences, of our earlier method of conducting litigation; and that the infinitely more numerous and complicated questions arising in modern times, rendered imperative the adoption of a much more deliberate and accurate adjustment of the matters in dispute. Settled forms of statement were gradually introduced +; rules calculated to ensure precision, The term itself has occasioned no little misunderstanding. "Pleé, in French-in English, plea-were anciently used to signify suit, or action. While used in this sense, they gave rise, respectively, to the words pléder and to plead; of which the primary meaning was, accordingly, to litigate, but which, in the later English law, have been taken in the more limited sense of MAKING ALLEGATION IN A CAUSE. Hence the name of that science of Pleading,' to which this work relates. This variable word," continues Mr. Stephen," has, indeed, still another and more popular use, importing the forensic argument in a cause; but it is not so employed by the profession."—Steph. on Pl., App. note (1), 2nd ed. +"Policrates. ** Why, if your position is true, cannot a plain just narrative of the circumstances of fact be sufficient of itself; and the bare state of the case be its own form? Eunomus.-This might do very well for the few who are endowed with uncommon good sense; but it is not the easiest and most direct way for the generality of people, who would never be able to tell their own story on record, in a small compass. Forms, of some sort, are the consequence of any thing becoming an art. What do we mean by "an art," but a collection of certain rules for doing any thing in a set perspicuity, and other important objects, were from time to time prescribed by the judges *, who required a rigid adherence to them: and thus, by the experience of centuries, special pleading was moulded into a science-a great and admirable science-to the development of which have been devoted the anxious attentions of some of the subtlest intellects, of the most learned men that any country has produced. Consider the extraordinary difficulties through which such a system must have laboured the pleader of each party straining every nerve,--resorting to the profoundest stratagems-to secure his client the advantage, often misleading and bewildering all parties concerned ;-the scope afforded, for this purpose, by the prodigious variety and complexity of legal rights, wrongs, and remedies! The wonder is, surely, under such circumstances-not that such a system should have many and glaring faults-that it should not unfrequently have afforded an opportunity of defeating the ends of justice, but that, struggling through so many obstacles, it should ever have been capable of reduction to a science, such as it unquestionably is, a science, too, so eminently calculated to answer the ends of distributive justice, as every day's practice demonstrates it to be. It certainly is form?-I will add, too, that these forms are more concise and convenient in themselves, than any one general form can be.-Wynne's Eun. pp. 198-199. * See Steph. on Pl. Appendix, Note (38). The judges are now expressly empowered to frame such rules. See 3 & 4 Will. iv. c. 42, § 1. not, nor ever was, and probably never will be, a popular system. None has ever been so unsparingly, so violently abused. Its subtlety-its complexity— its fictions-its delays-have been a thousand times execrated, in the bitterest terms: but, chiefly, by whom? By those of the public who fancy themselves to have been its victims; and also by indolent and superficial students. It is, undoubtedly, a system very difficult to be understood and appreciated: and so, surely, are logic, metaphysics, mathematics. The technical terms colour,' continuance,' negativepregnant,' certainty to a common intent,' absque hoc's,' 'departure,' 'duplicity,' 'common bar,' &c. &c., used by the pleader, ought surely to be no more exclaimed against than the sub-contraries,'' subalterns,' differentia,'' non-distribution,' enthymeme,'' sorites,' ostensive reduction,' &c. &c. of the logician, or the technicalities of the algebraist or metaphysician. The true reason why one science is so exclaimed against on grounds really applicable to them all, is, that the mysteries of special pleading are 66 6 6 6 My academical readers will excuse me for suggesting," says Blackstone," that the terms of the law are not more numerous, more uncouth, or more difficult to be explained by a teacher, than those of logic, physics, and the whole circle of Aristotle's philosophy; nay, even of the politer arts of architecture, and its kindred studies, or the science of rhetoric itself. The law, therefore, with regard to its technical phrases, stands upon the same footing with other studies, and requests only the same indulgence."-3 Bla. Com. 321, 322. |