conduct of persons who had been disputing, but who suffered their
quarrel to be appeased (Maine, Ancient Law, ch. x.). The use of
technical language in pleading at an early date came to be regarded
as so important that, as Gaius tells us, the party who made even the
most trifling mistake would lose his suit. This excessive reverence
for formality is a universal characteristic of archaic law. In the
second period, that of the procedure by formulae, the issue which
the judex decided was made up by the praetor in writing from the
statements of the parties before him. The formula was a short summary
of the facts in dispute in technical language, with instructions
to the judex, and corresponded to what would now be called
the submission or terms of reference to an arbitrator chosen by the,
parties. The part of the formula which contained the plaintiff's
claim was called the intentzo. Any equitable defence included in
the formula was set up by means of an exceptio, which was either
peremptory, denying the right of the plaintiff to recover at all,
or dilatory, denying only that the action could be brought at the
time or by the particular plaintiff. The plaintiff might meet the
exceptio by a replication, the defendant on his side might set up a
duplicatzo, and the plaintiff might traverse the duplicatio by a
triplicalio. The parties might proceed even further, but beyond
this point the pleadings had no special names. Actions bonae
fidei implied every exceptio that could be set up; in other actions
the exceptio must be specially pleaded. From the formula the
judex derived his whole authority, and he was liable to an action
for exceeding it. He could not amend the formula: that could
only be done by the praetor. In the third period the formula
did not exist, the plaintiff's clalm appearediein the summons
(libellus conventionis), and the defendant might take any defence
that he pleased, all actions being placed on the footing of actions
bonae fidei. The issue to be tri was determined by the judge
from the oral statements of the parties.
English System.—The English system of pleading seems to have drawn largely from, if it was not directly based upon, the Roman. Bracton (lemp. Henry III.) uses many of the Roman technical terms. Pleading was oral as late as the reign of Henry VIII., but in the reign of Edward III. pleadings began to be drawn up in writing, perhaps at first more for the purpose of entry on the court records than for the instruction of the court (see 2 Reeves, History of English Law, p. 398). The French language was used until 1362, after which English was used for oral pleading, but Latin for enrolment, except for a short period during the Commonwealth. Latin was the language of written pleadings at common law until 173I. The period of the Roman formula has its analogue in the period of the original writ in England.[1] The writ was at first a formal commission from the Crown to a judicial officer to do justice between the parties, the claim being made by a count (conte, narrative). The issue of the writ was part of the prerogative of the Crown, unlimited until the Provisions of Oxford (1258) forbade the issue of fresh writs except “writs of course” (de cursu) without the consent of the council. Gradually the writ came to absorb the count and included the plaintiff's claim and sometimes the nature of his evidence. The defendant pleaded to the writ. The writ became the universal form of instituting proceedings in the king's court, irrespective of the method of trial which followed, and probably grew fixed in form about the reign of Henry II. (see Bigelow, History of Procedure, ch. iv.). At a later date the writ again tended to approach its earlier form and to split into two parts—the writ of summons and the declaration or plaintiff's claim. The writ of summons was addressed to the defendant, and not. as the original writ, to a judicial officer. The pleadings became the act of the party, differing in this from Roman law, in which they were a judicial act. The writs became precedents for the forms of action, which, like the writs, were limited in number. The plaintiff's declaration was a substantial repetition of the writ. In the writ, as in the formula, the slightest failure in form was as a rule fatal. “The assigning of a writ of a particular frame and scope to each particular cause of action, the appropriating process of one kind to one action and of a different kind to another, these and the like distinctions rendered proceedings very nice and complex, and made the conduct of an action a matter of considerable difficulty.” (1 Reeves, Hist. of English Law, p. 147). Fines were levied for mistakes in pleading, non-liability to which was sometimes granted by charter as a special privilege to favoured towns. In both Roman and English law fictions, equity and legislation came to mitigate the rigour of the law. In England this result was largely attained by the framing of the action of trespass on the case under the powers of the Statute of Westminster the Second (1285), and by the extension of the action of assumpsit to non-feasance. The difficulties and technicalities of the common law system were met by elaboration of what is known as “special pleading,”[2] which became an art of the utmost nicety, depending on numerous rules, some of them highly technical (see Coke upon Littleton, p. 303). Those who made it their business to frame pleadings were called special pleaders. They were not necessarily members of the bar, but might be licensed to practise under the bar. At one time it was usual to practise for a time as a special pleader before call to the bar. Such licences are now rarely sought, and the Law List of 1906 contained only one name of a special pleader who was not a barrister. The art became necessary because of the absolute particularity with which claims must be framed, and the narrowness of the powers of amendment possessed by the courts. The result was that substantive law was smothered in procedure, and the practical questions at issue were of less moment than the phraseology in which they were to be stated. As an extreme instance, a learned judge in the 19th century challenged a pleading for putting the year without adding A.D., on the ground that “non constat that A.C. might not be intended.”
Some of the difficulties as to amendment were removed by the statutes of Jeofails (j'ai failli) beginning in 1340. But until the 19th century the courts of common law and equity worked side by side in Westminster Hall, administering each their own system without due regard to the other; and even in so simple a matter as the right of a defendant to set off against a claim on him a debt due to him from the plaintiff required statutory provision. Many of the defects and technicalities of the common law system were removed by the Common Law Procedure Acts and the general rules of practice made thereunder. Wide powers of amendment were given, and the parties were allowed to raise and try claims which theretofore could have been dealt with only in courts of equity. In the court of chancery the pleadings used were bill (or in certain public matters an information by the attorney-general), answer and replication.[3] Demurrers were used, or “exceptions” could be taken to the bill or answer. They differed from the common law forms by being much more diffuse, by pleading matters of evidence, and in that the answer was on oath. Beyond the replication chancery proceedings did not go, the place of further pleadings being supplied by amendment. Exceptions might be taken to the bill or answer on various grounds. Equity pleadings were signed by counsel. On the creation of the divorce court the pleadings authorized were (and still are) as follows: petition (which must be verified by oath), answer (which is so verified if it goes beyond a mere denial) and reply; and a special pleading called “act on petition” (derived from the ecclesiastical courts) with answer thereto, generally used for the determination of some preliminary question in the suit, e.g. the domicile of the husband. In the court of admiralty the pleadings used were petition, answer, reply and conclusion. In the probate court the common law terms were used (declaration, plea and replication), but the procedure was not the same as in the common law courts.
Under the old common law system[4] as modified in the 19th century the pleadings in use were as follows:—
1. Declaration, made up of one or more counts (contes), or modes of framing the plaintiff's claim so as to state his grievances in fact in a form suggesting the appropriate remedy at law, and concluding by demand for a plea. The counts were spoken of as common or special according as the facts of the case allowed the use of common
- ↑ The original writ was so called to distinguish it from the judicial writ, which was a part of the process of the court. The judicial writs still exist, e.g. writs of certiorari or fieri facias.
- ↑ The ingenuity of the pleader showing itself chiefly in framing special as opposed to general pleas, the term “special pleading” grew to be used for the whole proceedings of which it was the most important part.
- ↑ In Chancery the “English Bill,” so called from its being in the English language, had existed, according to G. Spence, as early as the reign of Henry V. (Equitable Jurisdiction, i. 348).
- ↑ Bullen and Leake, Precedent of Pleading (3rd ed., 1868).
