CH. VIII.] SPECIAL PLEADING. 385 to ransack the English language for expletives and synonymes, the result of which is a mass of obscure phraseology, such as even a tutored intellect can hardly comprehend. That a certain kind of astuteness is required for these feats of wordy legerdemain is true, but it is the least enviable of mental gifts, and it is distressing to think how constantly the rights of parties depend upon the degree of skill with which English lawyers are able to make themselves familiar with the rules and jargon of such a system. Of late years the evil seems to have increased; although, even in the time of Sir Matthew Hale, its condemnation was pronounced by that great lawyer in the following terms: "In ancient times the pleadings were drawn at the bar, and the exceptions also taken at the bar, which were rarely taken for the pleasure, or curiosity of the pleader, but only when it was apparent that the omission, or the matter excepted to, was for the most part the very merit and life of the cause; and purposely omitted, or mispleaded, because his matter or cause would bear no better. But now, the pleadings being first drawn in writing, are drawn to an excessive length, and with very much laboriousness and care enlarged, lest it might afford an exception not intended by the pleader, and which could be easily supplied from the truth of the case, lest the other party should catch that advantage which commonly the adverse party studies; - not in contemplation of the merits, or justice of the cause, but to find a slip to fasten upon; though, in truth, either not material to the merits of the plea, or at least not to the merits of the cause, if the plea were in all things conformable to it."1 1 History of the Common Law, i. 303. On one occasion where an obviously sham and tricky plea had been placed upon the record, Lord Mansfield said that if such an instance occurred again he would ask the S And it may be a question (which is asked with all reverence and respect) whether our courts of law are not too prone to lend an attentive and favourable ear to the minute and subtle points of objection, which ingenious triflers, in the solitude of their chambers, delight to raise. Res enim sunt parvæ, propè in singulis literis atque interpunctionibus verborum occupata. It is useful to remember the maxim that apices juris non sunt jura, and we may perhaps be permitted to doubt whether it ought to be material to the decision come to by the highest judicial tribunals on the rights and liabilities of parties, whether the pleadings at a particular stage have "given colour; or whether a traverse has been improperly taken upon a traverse; or the plea ought to have concluded with an absque hoc; or whether it amounts to a "negative pregnant?" 2 It may be said that facilities for amendment name of the pleader who had drawn it. He did not explain what consequences would follow; and perhaps the intimation was something like the awful threat of "naming a member in his place," by the speaker of the House of Commons. Sir Fletcher Norton, when speaker, was once asked what would be the result of such a proceeding,-upon which he answered with solemn gravity, "Heaven only knows, sir!" Cic. pro Murena, ii. γωνιοβόμβυκες, μονοσύλλαβοι, οἵσι μέμηλεν τό σφιν, τὸ σφῶιν, καὶ τό μιν, ἠδὲ τό νιν. Greek Epigram. 2 For the benefit of unprofessional readers I may mention that this elegant expression is used to denote such a form of denial as may imply or carry with it an affirmative. For instance, in an action of trespass for entering the plaintiff's house, the defendant pleaded that he entered by the leave and license of the plaintiff's daughter. The plaintiff replied that the defendant did not enter by her license. This was held to be ambiguous; for it might mean either that no license was given, or that the defendant did not enter by virtue of the license. Myn v. Cole, Cro. Jac. 87. Therefore, as Hobart says, it doth " inveigle and not settle the judginent on one point." Perhaps the term might be applied to such a denial as was given by the lady, who "oft repented, And, whispering she would ne'er consent, consented." CH. VIII.] SPECIAL PLEADING. 387 are now given which did not formerly exist. This is true; but amendments are expensive luxuries, and the unhappy client has to pay dearly for the slip of his pleader, made perhaps in a matter wholly irrelevant to the real merits of the case Quicquid delirant reges plectuntur Achivi. Let me, however, not be misunderstood. In protesting against the abuse of a system, which, if rightly understood and kept within due limits, is a most efficacious means of promoting the ends of justice, I would avail myself of the words of Lord Mansfield, who, while he censures what is evil, does not forget to praise what is good. "The substantial rules of pleading," he says, are founded in strong sense and in the soundest and closest logic, and so appear, when well understood and explained, though, by being misunderstood and misapplied, they are often made use of as instruments of chicane." 1 66 But whatever may be the defects or merits of the system, a knowledge of pleading is indispensable to an English advocate; and what old Rastell says in the following passage is strictly true: "This book entituled a collection of entrees, contayneth the forme and maner of good pleading, which is a great part of the cunning of the law of England, as the Right worshipfull and great learned man Syr Thomas Litleton, knight, sometime one of the Justices of the Common place, in his third book of Tenures, in the chapter of confirmation, saith to his sonne." 2 The points in dispute between the parties are evolved in 1 Robinson v. Raley, 1 Burr. 319. the preliminary contest that takes place before the cause comes on for trial in the court. The pleadings are the chart by which the advocate must steer his course in the conduct of a case. He must know what is admitted, and what is denied on both sides-how far the admissions extend, and the force and effect of the denial-what is the exact issue in the record at which all the evidence must point or be rejected as irrelevant. He must be ready to argue at a moment's notice on some subtle question of variance when his adversary applies for a non-suit, on the ground that a different contract has been proved from that stated in the declaration. This may happen either because the consideration turns out to be different; as, for instance, when part of it has been omitted in the declaration; or because the promise relied upon is in legal effect not that which has been established by the evidence having been, perhaps, in the alternative or conditional, whereas it has been declared upon as absolute. I will not weary the reader by pursuing this subject, which cannot be discussed without the aid of technical knowledge, and in which the unprofessional part of the public can take little or no interest. But besides its technicalities, the English law is little favourable to the cultivation of oratory, owing to its enormous and unwieldy mass. This tends to suffocate the fire of genius, and deaden the imagination, which shrinks back in affright from the aspect of the thousand volumes in which are enshrined the mysteries of our jurisprudence. The immensus aliarum super alias acervatarum legum cumulus continues yearly to increase, and threatens to render the study of law a hopeless task. Each session of parliament gives birth to a bulky volume of statutes to swell the numerous progeny of legislation, And what shall be said of our reports? CH. VIII.] EXTENT OF THE ENGLISH LAW. 389 When we speak of the common law as unwritten, we amuse ourselves with a fiction; for although it is said to reside in gremio judicum, and to be handed down traditionally from generation to generation, we know that for the last five centuries it has existed in written and printed records with which we must make ourselves familiar in order to understand it.1 To use the words of Roger North, "the gross of law lecture lies in them :" and if in his time he could speak of the "reports of cases now almost innumerable," when the number did not amount to fifty volumes, what would he think of them at the present day when they cannot be estimated at less than six hundred? 2 The common law may be compared to a plant whose seed is in itself; and if we may judge from the number of reports which annually issue from the press, it germinates with appalling fecundity. The decisions of the judges, like the responsa prudentum amongst the Romans, profess to be merely its exposition they are declaratory not enacting- but they do, in fact, constitute the common law, and every judgment of a court The oldest reports extant in the English law are the Year Books, which were written in law French (a strange and uncouth patois), and extend from the beginning of Edward II., in 1307, to the latter end of the reign of Henry VIII., in 1547. They were first printed in the reign of James I. They contain decisions of the courts collected by four reporters, who were specially appointed to this office, and received a yearly stipend from the crown. In order to ensure accuracy, these learned personages used to meet and confer together, collating their notes of cases. It has been calculated that in 600 volumes of Law Reports there are not less than 240,000 points, i. e. rules or principles of law.-See HoFFMAN'S Course of Legal Study, Pref. an American work which I had not seen before these sheets were committed to the press, but which confirms, in a striking manner, some of the opinions expressed in the present chapter. |