1. The Place of Common-Law Pleading in the Law.
2. The Importance of Common-Law Pleading.
3. The Functions of Pleading at Common Law.
4. The Development of Substantive Law out of Procedure.
5. Relation of Common-Law Pleading to Other Systems.
6. The Status of Common-Law Pleading Under the Codes.
7. Modern Procedure Under Codes, Practice Acts and Rules of Court— Merely Another Step in the Evolutionary Development of the Common Law.
COMMON-LAW PLEADING, the ancient Reign of Edward I (1272~1307)1 and further methodology used for bringing legal issues perfected during the Reign of Edward m before the Courts of England, is as old as the
I. See comment in Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. II, Of the -Principal Rules of Pleading, 147 (3d Am. Cd. by Tyler, Washington, B. C. 1892). Cf. The Statement of Sir Mathew Rain, in The ff155017 of the Common Law, c. VIII, 173 (4th Cd., Dublin, 1792).
COMMON-LAW PLEADING AND PRACTICE—STILL
SURVIVES AS THE BASIS OF MODERN
Anglo-Saxon Legal System and as new as yesterday’s cases before the Trial and Appellate Courts o( the United States. First formed and cultivated as a science in the
BASIS OF MODERN REMEDIAL LAW Ch. 1
In general on the subject of Common-Law Pleading, see the following:
Treatises: Glanvill, Tractatus de Legibus et Consuetudinibus regnit Angliae (1187—1189) INew edition edited by George B. Woodhine, 4 vols. (New Haven, 1932)]; Bracton, Do Legibus and Consuetudinibus Angliae (1250-4258) (London, 1640); Casus Placitorum, a collection of decisions of Judges, all of whom lived before 1260, according to Holdsworth, and which in style and subject matter anticipated the Year Books; Yet Assayer (before 1267), a tract on Procedure probably by Ilengham, and reported in Woodbine, Pour Thui’teenth Century Law Tracts (New Haven, 1910); Cadit Assisa (1267 or after), a summary of that part of Bracton’s Treatise dealing with the Assist 0f Mort d’Ancestor fnew edition by Sir Travers Twiss, London, 1878—1883]; Hengham, Magna (1270—1275), based on Bracton, and containing information on the rules of Pleading and Procedure in the Real Actions; Hengharn, Pana (1285 or after), containing Instruction as to Pleading and Procedure in certain Real Actions; Britton, Ancient Pleas of the Crown (Trans. by
F. M. Nichols, 1270); Fleta, An Epitome of Britton (1290); Articuli ad Novas Narrationes (1326— 1340), consisting for most part of Precedents of Pleading; Register of Writs (132G—1377); Pynson’s Book of Entries (1510); Fitzherbert, Natura Brevium (1534), a selection of Writs together with a commentary; Rastell’s Entries (1564); Theloau, Digest of Original Writs and Things Concerning Them (1579), a most orderly treatise on Procedure grounded on the Year Books and printed at the end of the 1687 edition of the Register of Writs; Coke, Book of Entries (1014); Powell, Attorney’s Academy (1623); Buer, Doctrina Placitandi, or The Art and Science of Pleading (1640); Coke, Declarations and Pleadings contained in his eleven Books of Reports (1650); Aston, Placita Latine Rediviva: A Book of Entries (1601—1878); Browne, Formulae beiie Pledtandi: A Boolr of Entries (1671, 1675); Liber Placitandi (London, 1674), a book of Special Pleadings containing Precedents; Vivian, The Exact
Pleader: A Book of Entries (1684); Clift, A New Book of Declarations, Pleadings, Verdicts, Judgments, and Judicial Writs, with the Entries Thereupon (1703, 1719); Lilly, A Collection of Modern Entries (1723, an English edition appeared in 1741); Euer, A System of Pleading, including translation of the Doctrina Placitandi, or the Art and Science of Pleading (Dublin 1701); American Precedents and Declarations (Boston, 1802); Wentworth, A Complete System of Pleadings (London 1797-49); Story, Selection of Pleadings in Civil Actions Subsequent to the Declaration (Salem 1805); Lawes, Elementary Treatise on Pleading (London 1806) list Am. from 1st London Cd. (Portsmouth, N. N. 1808)]; Booth, The Nature and Practice of Real Actions (1st Am. ed. New York 1808); Lawes, Practical Treatise
on Pleading (Boston 1811); Hening, The American Pleader and Lawyer’s Guide, 2 vols. (New York 1811); Chitty, Treatise on Pleading with Precedents, 3 vols. (~pringfleld 1833); Harris, Modern Entries, 2 vols. (Edited by Evans, Baltimore 1821); Jackson, Treatise on the Pleadings and
Practice of Real Actions (Boston 1828); Saunders, The Law of Pleading and Evidence in Civil Actions (2d Am. ed., PhiladelphIa 1831); Could, Treatise on the Principles of pleadings In Civil Actions (1832); Tyrwhltt, Pleading (London 1846); Williams, Introduction to Pleading and Practice (London 1857); Stephen, Principles of Pleading in Civil Actions, a View of the Whole Proceedings in a Suit at Law (3rd Am. ed. from 2d London cd, by Tyler, Washington, D. C. 1892); Evans, Pleading in Civil Actions (2d ed. by William Miller, Chicago 1879); Heard, Principles of Civil Pleading (Boston
1880); Maitland and Baildon, The Court Baron (London 1891); Chitty, Treatise on Pleading and Parties to Actions, with Precedents and Forms (London 1808; 16th Am. ed. by J. C. Perkins, Springfield 1879); Shlnn, Treatise on Pleading and Practice (Chicago 1892); MclCelvey, Principles of Common-Law Pleading (1st ed. New York 1894); Stephen, Principles of Pleading in Civil Actions (Am. ed. from 5th English ed., by Wihiston, Cambridge, 1895); Shinn, Treatise on Pleading and Practice. 2 vols. (Chicago 1890); Poe, Pleading and Practice in Courts of Common Law (Baltimore 1897); Perry, Common-Law Pleading (Boston 1897); Martin, Civil Procedure at Common Law (St. Paul 1905); Maitland, Equity, The Forms of Action at Common Law (Cambridge 1909); Woodbine, Pour ThIrteenth Century Law Tracts [on Pleading] (New Raven 1910), containing: Judicium Essoniorum (1267—1275), a tract on Essoing probably by Hong-ham; Eceptienes ad Cassandum l3revia (7285 or after), [tract on the Writs]; Modus Componendi Brevia or Cum Sit Necessarium (1285 or after), (a tract on the Writs]; Millar, Common-Law Pleading (Chicago 1914); Puterbaugh, Common Law Pleading and Practice In IllInois (6th ed. by L. D. Puterbaugb, Chicago 1916); Scott, Fundamentals of Procedure in Actions at Law (New York 1922); Shipman, Handbook of Common Law Pleading (3d ed. by Ballantine, St. Paul 1923); Winfleld, History of Conspiracy and Abuse of Legal Procedure (Cambridge 1925); Buhlen and Leake’s Precedents of Pleadings in Actions in the King’s Bench Division of the Nigh Court of Justice (8th ed. by W. Wyatt-Paine, London 1924; 9th ed., London 1935); O’Donnell, Procedure and Form~ of Common Law Pleading (Washington, B. C.
1934); Plucknett, Concise History of the Common Law (3d ed, London 1940; 4th ed., London 1948); Fifoot, History and Sources of the Common Law
(London 1949); Odgers, Principles of Pleading and Practice In Civil Actions In the nigh Court of Justice (1st ed., London 1891; 3d e,L, London 1897; 4th ed., London 1900; 5th ed., London 1903; 6th ed.,
(1327—1377) ,~ it has served each succeeding generation as an effective instrument in the Administration of Justice, and today is still very much alive, both as an Operating. System and as a guiding force in the recurring Waves of Reform designed to correct its abuses.
For more than Six Centuries, it was the only Method of Pleading in the Common-Law Courts of England—King’s Bench, ExcheqLondon 1906; 7th ed., London 1912; 14th ed., London 1952).
casebooks~ Ames, A Selection of Cases on Pleading (let ed., Cambridge 1875; 2d ed., Cambridge 1905); Shipp and Daish, Cases Illustrating Common-Law Pleading (Chicago 1903); Keen, Cases on Pleading (Boston 1905); Sunderland, Cases on Common-Law Pleading (Chicago 1013); Lloyd, Cases on Civil Procedure (Indianapolis 1915); Scott, Cases and Other Authorities on Civil Procedure (Cambridge 1915); Whittier and Morgan, Cases on Common-Law Pleading (St Paul 1916); Cook and Hinton, Cases on Pleading at Common Law (Chicago 1923); Reppy, Cases on Pleaffing at Common Law (New York 1928); Maglfl, Cases on Clvii Procedure (St. Paul
1927); Lloyd, Cases on Pleading jn Actions at Law (Indianapolis 1927); Clark, Cases on Common-Law Pleading (Cincinnati 1931); Keigwin, Cases on Common-Law Pleading (1st ed., Rochester 1926; 2d ed., Rochester 1934); Cook and Hinton, Cases on Pleading at Common Law (revision of Part I, Common Law Actions) (Chicago 1940); AtkInson, Introduction to Pleading and Procedure (Columbia 1940); Scott and Simpson, Cases and other Materials on Judicial Remedies (Cambridge 1946); Scott and Simpson, Cases and Other Materials on Civil Procedure (Boston 1950); Reppy, Introduction to Civil Procedure (Buffalo 1954).
5- In referring to the Improvement In the Science of Pleading, Sir Edward Coke declared: ‘In the Reign of Edward III (1327—i277) Pleadings grew to Perfection, both without lameness and curiosity; for then the Judges and Professors of Law were excellently learned, and then Knowledge of the Law
flourished; the Serleants of the Law, &c. drew their own pleadings, and therefore [it was] truly said by Justice Thirning, in the Reign of Henry IV (1399— 1413) that in the time of Edward III the Law was in a higher degree than it had been any time before; for before that time the Manner of Pleading w~s but feeble, In comparison of that It was afterward In the Reign of the same KIng.” 2 Coke, Lit. tieton, 304b, LIb. 3, Cap. 0, ~ 534 (1st Am. from the 16th European ed. by Francis Hargrave and Charles Butler, PhIladelphia, 1812).
uer and Common Pleas—and for two hundred years it was the exclusive procedural device leading to the Trial of Legal Issues in the United StatesIt was, however, subject to many defects,
due largely to the fact that the entire English Procedural System had grown up in a patchwork fashion,3 while the constantly expanding Substantive Law was outgrowing the Forms of Action which gave it birth. In the latter part of the Eighteenth and early part of the Nineteenth Centuries, under the impetus of Bentharn’s searing criticism of the existing System of Law in England, with its Courts, its Special Pleading, and its general atmosphere of Delay and Administrative Inefficiency, these restrictive influences be-caine clear to the people, a demand for Reform sprang up and the movement for the improvement of procedure slowly got under way,
The impact of this development, strangely enough, first bore fruit in America in the State of Louisiana, with the framing of Livingston’s Code of Practice ~ and the Penal Code in 1824, which latter was never adopted.~ This was followed in England by the adoption of the Rilary Rules in 1834,6 and
3. “The Remedial Part of the Law resembled a mass of patchwork, made up at intervals and by pIecemeal, withoutany preconceived plan or system, for the purpose of meeting the exigencies of the times by temporary expedientt” Walker’s Introduction to American Law, Pt, VI, Lecture xxxv, 569 (11th Cd., Boston, 1905).
4. Enacted by Louisiana in 1805.
5. Livingston’s Penal Code, which was a product of Intensive preparation, and was published in 1824, was never enacted Into Lair as such by the Legislature of Louisiana.
Edward LIvingston was born in 1764 and died In 1836, or about six years after Field began his ProfessIonal Career. A native of New York, and a brother of Chancellor Robert It. Livingston, his Penal Code of Louisiana, which was published in 1824, attracted great attention in England and on the Continent. David Dudley Field Centenary Essays, 19 (EdIted by Reppy, New York, 1949).
t The Hilary Rules, designed to restore the ancient
strict Common-Law theory as to the Scope of the
BASIS OF MODERN REMEDIAL LAW
in the United States by the New York Code of Procedure in 1848.~ Thereafter, in relatively quick succession, the English Parliament enacted the Common-Law Procedure Acts of 1852,8 1854,° and 1860,10 and the Supreme Court of Judicature Acts of 187311 and 1875,12 now for the most part replaced by the Supreme Court of Judicature (Consolidation) Act of 1925.13 And in 1938 the Supreme Court of the United States made effective the New Federal Rules of Civil Procedure.14 In conseGeneral Issue, were promulgated pursuant to the Law Amendment Act, 3 & 4 Wm. IV, c. 42, ~ 1 (1833).
For the history and effect of the Iliiary Rules in England, see article by Holdsworth, The New Rules of Pleading of the Hilary Term, 1 Cam.L.J. 261 (1923); for the history and effect of the Hilary Rules in the Several States of the United States, see, lieppy, The Ililary Rules and Their Effect on Negative and Affirmative Pleas under Modern Codes and Practice Acts, 6 N.Y.UL.Q.Rev. 95 (1929),
7- “After careful consideration and amendment by the New York Legislature, the draft tot a proposed code] was enacted into Law on April 12, 1548, N. Y.Laws 1848, c. 379, to become effective on July 1 of the same year. Written in the form of a Code Containing 391 Sections, it became known at once as the Code of Procedure or as the Field Code. This title was far too broad in scope as the Act related only to a small portion of the Adjective Law, and expressly retained the Old Common Law or Statutory Rule where not expressly abolished by the Code.” Reppy, The Field Codification Concept, in the David Dudley Field Centenary Essays, 17, 33— 34 (Edited by Reppy, New York, 1949).
8. 15 & 10 Vict. c. 76 (1852).
9- 17 & 18 Vict. C. 125 (1854).
it 23 & 24 Vict. c. 120 (1860).
11. 36 & 37 Vict. c. 06 (1873).
12- 38 & 39 Viet, c- 77 (1875).
13. 15 & 10 Geo. V. e. 49 (1925).
14. The Federal Rules were drafted by an Advisory Committee appointed by the Supreme Court under the authority of a Federal Statute enacted In j034. Act of June 19, 1934, ii 651, ~ 1, 2; 48 Stat. 1064, 28 U.S.C.A, ~ 723b, fl3c. See, on the earlier phases of the struggle for Federal Procedural Reform, artide by Shelton, The Reform of Judicial Procedure, 1 Va,flRev. 89 (1913).
For detailed Information concerning the adoptIon, background and drafting of the Federal Rules of CivIl Procedure, see Clark, Handbook of the Law
quence thereof, both at home and abroad, the System of Pleading as developed at Common Law, has been Modified by Judicial Decision, Changed by Statute, or by Rule of Court, and in some Jurisdictions ostensibly swept away in its entirety—so the Reformers thought—but subsequent events have cast grave doubts on this conclusion, as the solemn and stubborn fact is that Common-Law Pleading still survives as the basis of our Modern Remedial Law.’~
Select any individual and you will find that he is what he is today because of what his father and mother were yesterday; he cannot escape his ancestry, but must make his way through life with the physical, mental, moral and spiritual assets with which he was naturally endowed by the union of his parents. It is true that within certain limits he may seem to change with his environment,
of code Pleading, e. I, Eistory, Systems and Function of Pleading, 31—39 (24 Cd., St. Paul 1947).
In this connection it should be recalled that progress in the Reform of Criminal Procedure has followed up and to some extent paralleled the Reform of the Civil Procedure which has been under way since 1848. In 1930 the American Law Institute issued its Code of Criminal Procedure, which has subsequently substantially influenced State Criminal Procedural Developments In the Several States, In 1941, pursuant to the rule-making authority granted to the Supreme Court by Congress, the AdvIsory Committee on Rules of Criminal Procedure was appointed by the Court, which published two Prellmiaary Drafts, with motes, and its Final Report to the Court in July. 1944. The rules suggested therein were adopted, with certain modifications, by the Court on December 26, 1944, to become effective on March 21, 1946. The Court also gave directions that the Rules be reported to Congress In accordance with the terms of the Enabling Act, 323 U.S. 821, 65 S.Ct. CLXXIV (1944).
See, also, Editorial, “To Form a More Perfect Union”,