it announces what steps must be taken in order duly to set in CHAP. XV. motion the machinery of the law-courts for the benefit either of a plaintiff or of a defendant.

Rules of procedure occupy so prominent a place in early society, and furnish so much curious illustration of the history of civilisation, that they have attracted a share of attention perhaps in excess of their real importance. One might almost suppose from the language of some writers that an elaborately organised Procedure may precede a clear recognition of the rights which it is intended to protect. It has been said that law is concerned more with remedies than with rights. It would be as reasonable to say that a field consists in its hedge and ditch rather than in the space of land which these enclose. In point of fact, a right must be recognised at least as soon as, if not before, the moment when it is fenced round by remedies. The true interest of the topic of Procedure is derived, first, from the close connection which may be traced between its earliest forms and the anarchy which preceded them1, and secondly from the manner in which the tribunals have contrived, from time to time, to effect changes in the substance of the law itself, under cover of merely modifying the methods by which it is enforced.

Adjective law, though it concerns primarily the rights Contents. and acts of private litigants, touches closely on topics, such as the organisation of Courts and the duties of judges and sheriffs, which belong to public law. It comprises the rules for (i) selecting the jurisdiction which has cognisance of the matter in question; (ii) ascertaining the Court which is appropriate for the decision of the matter; (iii) setting in motion the machinery of the Court so as to procure its decision; and (iv) setting in motion the physical force by which the judgment of the Court is, in the last resort, to be rendered

1 See, for instance, Maine's Early History of Institutions, lect. ix. and x. 'Trial by battle' was a late survival in England of regulated self-help. After the last reported case of the kind, Ashford v. Thornton, I B. and Ald. 405, it was abolished by 59 G. III. c. 46.

CHAP. XV. effectual. These rules, like those of substantive law, are primarily applicable to persons of the normal type, and only with certain modifications to abnormal persons.

tion.

Jurisdic- i. It is by no means the case that a remedial right is capable of being enforced everywhere. An English Court will for instance entertain an action for breach of contract quite irrespectively of the place where it was made, or broken, or in which the parties reside, but will hardly hear an application for a divorce unless the parties are domiciled in the country, nor would till recently try an action for trespass to land unless the land were within the realm.

Court.

The action.

Citation.

Pleadings.

ii. It is also necessary that proceedings be taken in the appropriate Court. Thus in England, even after the changes introduced by the Judicature Acts, it will usually be advisable that an administration suit should be commenced in the Chancery division, and a salvage suit in the Admiralty division, of the High Court of Justice. There are also matters which can only be tried in one or other of the divisions of that Court, and not in any inferior tribunal.

iii. The choice of the appropriate Court is a simple matter compared with rightly setting its machinery in motion. In this operation, which has been described by such phrases as 'legis actio,' 'l'instance,' 'la demande judiciaire,' 'action,' 'suit,' 'Verfahren,' the following stages are usually distinguishable.

1. The summons, or citation, by which the plaintiff brings the defendant into Court.

2. The pleadings, 'l'instruction de la cause,' by which the plaintiff informs the Court and the defendant of the nature of his claim, and the defendant states the nature of his defence. The defence may be to the effect that, even granting the truth of the plaintiff's allegations of fact, they are in law no ground for his claim against the defendant, or it may consist in denying altogether the facts alleged by the plaintiff, or in admitting them, but alleging other facts,

such as a release or the Statutes of Limitation, which neu- CHAP.XV. tralise the effect which they would otherwise have had. A defence of the last-mentioned kind was called in Roman law an exceptio,' and in England a plea in 'confession and avoidance1. A plea may be either dilatory,' showing that the right of action is not yet available, or 'peremptory,' showing that it is non-existent. The exchange of pleadings continues till it is clear how much is admitted and how much is denied on either side, and therefore what is precisely the dispute between the parties. This process may be carried on orally in the presence of the Court, as under the new code of Civil Procedure for the German Empire 2, or in writing or print, as in England. When well managed it gives much scope for dexterous intellectual fencing, but its tendency to over-subtlety has been a fertile theme for legal critics from the time of Gaius to that of Bentham 3.

3. The trial, hearing, or audience,' at which each of the Trial. parties endeavours to establish to the satisfaction of the Court the truth of the view maintained by him of the question at issue, whether it be one of law or one of fact; if of law, by citing authorities, if of fact, by adducing proofs. Proofs may be either documentary or oral, and certain rules exist in most systems with reference to their admissibility,

1 6

'Comparatae sunt autem exceptiones defendendorum eorum gratia cum quibus agitur: saepe enim accidit ut, licet ipsa actio qua actor experitur iusta sit, tamen iniqua sit adversus eum cum quo agitur.' Inst. iv. 13.

2

Civilprozessordnung für das Deutsche Reich, § 119. But in Anwaltsprozesse,' i. e. when professional representatives must be employed, disadvantages as to costs, and otherwise, follow, unless 'die mündliche Verhandlung' is 'durch Schriftsätze vorbereitet,' § 120: and copies of these writings are to be filed in Court, § 124. Cf. the recommendations of the Lord Chancellor's Committee on Procedure, 1881.

The 'legis actiones,' says Gaius, gradually fell into disrepute, 'namque ex nimia subtilitate veterum, qui tunc iura condiderunt, eo res perducta est, ut vel qui minimum errasset litem perderet;' iv. 30: and he gives the following instance, cum qui de vitibus succisis ita egisset ut in actione vites nominaret, responsum est eum rem perdidisse, quia debuisset arbores nominare, eo quod lex xii tabularum, ex qua de vitibus succisis actio competeret, generaliter de arboribus succisis loqueretur;' ib. 11. Cf. Bentham, Works, ii. p. 14.

CHAP. XV. amounting in some systems to a body of law of no little Evidence. complexity. Such a law of evidence' is more necessary

Judgment.

Costs.

when questions are tried by a jury than when they are decided by a professionally trained judge. Its objects are, on the one hand, to limit the field of enquiry, by the doctrine that certain classes of facts are already within the 'judicial notice' of the Courts, and by 'presumptions' by which certain propositions are to be assumed to be sufficiently proved when certain other propositions have been established; and on the other hand, to exclude certain kinds of evidence as having too remote a bearing on the issue, or as incapable of being satisfactorily tested, or as coming from a suspicious quarter. For the last-mentioned reason certain classes of persons, or persons occupying certain relative positions, are rendered incapable of being witnesses. There are also rules regulating the right of the parties to appear in person, or to be represented by advocates, and the order in which the parties or their advocates may tender their evidence and address the Court.

4. The judgment, by which the Court decides the question in litigation. It may relate to a right to property, or an ascertainment or a dissolution3 of status, or an affirmation of the due execution of a legal act, or an award of damages for a wrong, or an order for the specific performance or nonperformance of a certain act.

The judgment usually charges upon the losing side the 'costs' to which the other party has been put in consequence of the suit 4.

1 The German Civilprozessordnung is opposed to Presumptions and other so-called 'artificial' proofs; cf. § 259. The Einführungsgesetz, § 14, repeals laws restricting modes of proof. The theory of legal proof is no doubt largely due to the canonists, but it can hardly be said to have been wholly unknown to Roman law. See the opinion of Favorinus, apud Gell. Noctes A. xiv. 2. 2 E. g. on a declaration of nullity, or under the Legitimacy Declaration Act, 21 and 22 Vict. c. 93.

3 On a decree of divorce.

1 Cf. supra, p. 155.

5. The procedure on Appeal, when an Appeal is possible CHAP. XV. and is resorted to by either party 1. Appeal.

iv. Execution, whereby a successful party calls upon the Execution. officers of the Court, or other appropriate State functionaries, to use such force as may be necessary in order to carry the judgment into effect. It may be remarked that a successful defendant, except for the recovery of his costs, has obviously no need of execution, and that execution of a judgment in a civil cause is not ex officio, i. e. does not take place except on the demand of a litigant party.

parties.

Besides the original parties to an action, whose interests Extraneous are directly involved in it, other persons may be brought into it by the authority of the Court. In some actions, which involve wider interests than those of the parties, notice must be given to a State functionary, who may then intervene in the proceedings on public grounds".

A maximum interval may be fixed between each step in an Default. action, on pain of a decision being given 'in default' against the party who neglects to proceed in due course.

Adjective, no less than Substantive, law may be normal Abnormal or abnormal: that is to say, artificial persons, and such Law. Adjective varieties of natural persons as those considered in the preceding chapter, are in a different position with reference to suing and being sued from that occupied by ordinary individuals. The modifications of the rules of procedure which take place with a view to abnormal personality are of a somewhat technical character; and it may be sufficient here to refer, by way of illustration, to the rules of English law, that

The Sachsenspiegel gave a right of appeal to a dissentient member of the Court, as having an interest on public grounds that the law should be correctly stated.

2 See Code de Procédure Civile, P. I. liv. ii. tit. 4, De la Communication au Ministère Public; Gerichtsverfassungsgesetz für das Deutsche Reich, § 142; Civilprozessordnung, § 568; and, as to the Queen's Proctor, 23 and 24 Vict. c. 144. 8. 5.