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the possibilities of a revision of the civil procedure of the people upon the subject embraced in the of this State, itself an empire, a brief historical legislation. The earliest known laws seem clearly statement of the growth and development of pro- to embody existing customs, and cannot be concedure in the tribunals of various nations may not sidered as statements of new principles or policies be without interest, and may aid in comprehending then for the first time promulgated. History is the great principles which underlie every well-con- especially meagre concerning the everyday affairs structed system of procedure.
of life, and the various social and business problems “ The history of law is a history of civilization.” which make for the happiness or prosperity of the Legislation is a mirror of the manners of the peo-people. ple, and by means of it, and of judicial practice “ History illustrate the fortunes of the great," and customs, the social, commercial and political but the annals of the common people are often undevelopment of communities may be traced with
written. Battles and seiges, conquests and changes reasonable precision. Mr. Tidd, in his great work of dynasty attract and engross the attention of the on English practice, says: “The practice of the historian, while the manners and customs and the court, by which the proceedings in an action are
daily life of the people seem to be overlooked. In governed, is founded on ancient and immemorial our study of the development of procedure, the inusage (which may not improperly be termed the formation afforded us by the ordinary historical common law of practice), regulated from time to
works has been very unsatisfactory, and we have oftime by rules, orders, statutes and judicial deci- ten been obliged to resort to original sources for sions. Practice is the law of the court, and as such
material upon which to form our judgment of the is a part of the law of the land. As questions arise
reason and course of judicial procedure. We have respecting the regularity of the proceedings, the
been so long familiar with written law, that it is courts are called upon to settle by judicial deci- * difficult for us to comprehend a state of society in
which law and judicial decision were the expression sions the course of their own practice, or to fix the
of the wisdom, or perhaps the caprice, of the ruler construction of the rules or statutes which have
or magistrate, who sometimes decided controversies been made respecting it.”
without regard to settled principles of law, and unModern law is so largely of a prescriptive char
trammeled by precedents. acter, that it is difficult to understand it without
In studying early procedure, we can only conjecexamining the sources of law; but these sources are singularly obscure, and history affords only in the earliest laws or codes. From this it is quite
ture what it probably was by what we find written meagre materials, prior to the period of written apparent that in the early stages of society the State, law, for the determination of the character of judi
as we now understand it, was only an umpire, or cial procedure. The legal customs which existed magistrates were a council of umpires, who only anterior to the period of written law, or written
interested themselves to see fair play and to settle history, can only be conjectured by the earliest
a controversy, sometimes of a physical character, laws, which may be considered as reflecting and after it had actually begun. In this stage men took embodying the existing customs. The Hindoo the law into their own hands, and sought redress Manu, Confucius, Lycurgus, Solon, and probably for their grievances in their own way, and the most the Roman Decemvirs and King Alfred, were not the State could do, from its imperfect conception of especially legislators, and their work in law reform its powers, was to regulate and control this attempcan hardly be dignified by the term of statutory ted private settlement of grievances. The State did enactment; but they performed the important ser not exert its judicial power to aid in commencing a vice of collecting, compiling, adapting and promul- suit, but undertook to regulate and control one algating customs recognized by the people; and they ready begun. It did not assume at first active jurperformed another important service of substituting isdiction, but “in later periods of development the written laws for loose, oral tradition, and the com tribunals took the lands or case of the defendmunication of a permanent public sanction to
ant into their own bands, using their power freely regulations previously accepted only as heavenly to coerce him into submission, and when finally the mandates or ineveterate habits. “ The change courts assumed control of judicial proceedings, and marks a phase when old simplicity and innovating required all litigants to submit their controversies necessities are beginning to combine their action, to the arbitrament of the court, there was a change and to crystallize into fixed shapes, leaving to a from contention in arms to a contention in a judicial much later period the conversion of the remaining tribunal.” and ever-fluctuating mass into similar definiteness.” It seems quite clear that the earliest method of Judging from our own experience, we may fairly con clisposing of controversies was by aribitration. This clude that a law at any given period in history re form of judicial procedure was afterwards made flects in some measure, if not entirely, the customs | compulsory, and even in the early colonial days in
our own State, arbitration as a method of settling among the most important of the early nations; disputes was imposed upon the colony by law; and and it will appear from this sketch that many of the from an examination of the forms of procedure in customs with which we are familiar are very old, various nations of antiquity, it would seem that the and have been observed thousands of years. judges were simply arbitrators; and the earliest Rollin says that the Egyptians were the first written law indicates that civil jurisdiction sprang | people to rightly understand the rules of governout of arbitration. As Mr. Hunter says in his work ment. Early Egyptian history shows the creation on Roman law, "the coercive authority of the State of a judicial tribunal composed of thirty judges grew out of the voluntary submission of its subjects, selected out of the principal cities, to form a body and is the keynote to the history of civil procedure or assembly for judging the whole kingdom. The in Rome.” Early judicial decisions probably did scrupulous care manifested by the ancient Egypno more than declare the right between contending tians in the administration of justice is shown by a parties, and the tribunals did not seem to possess peculiar provision which required all proceedings any machinery for enforcing obedience to their judg- to be in writing, because it was thought that the ments or degrees.
judgments of men might be affected by the eloIn studying the development of judicial pro- quence of advocates, which would be less influencedure among the ancient nations, we observe con tial if everything were reduced to writing. siderable similarity in matters of detail, but quite Among the Hebrews judicial procedure was marked differences in the structure of tribunals,
characterized by great simplicity and promptitude. and in the methods of administering justice. It
In early times the patriarch of each family was its was a striking characteristic of the northern nations judge. Afterwards the elders of a family, tribe or of Europe that the administration of justice was of city were its judges by natural right. In the wild a popular character, and was devolved upon the dernese Moses at first was sole judge and heard all order of freemen. The people either composed or
causes, both great and small, but the immense labor were largely represented in the judicial tribunals; thus imposed upon him prompted Jethro, his while under the Romans, and among the Asiatic father-in-law, to suggest the appointment of judges nations whose governments were of a patriarchal or
to dispose of small matters, leaving larger controdespotic character, popular representation in the
versies to be decided by Moses himself. These administration of justice was practically unknown. judges were to be “able men, such as fear God; The king himself was supposed to be the fountain
men of trutlı, hating covetousness," and their jurisand source of all wisdom and justice, and he either diction was divided and distributed so that they disposed of legal controversies in person, or dele
became the “rulers of thousands, of hundreds, of gated his authority to individual judges or magis- fifties and of tens;” these numbers representing trates, and defined their powers and jurisdiction. families, so that one judge would be the ruler over From these so-called barbarian or Gothic nations
ten families, another over fifty, and so on. After came the popular administration of justice, which, the Hebrews were established in Canaan, local long ago, developed into the trial by jury; but this magistrates were appointed for every city and viltribunal of the people was, at first, quite different lage. Samuel held a central court at Ramah, and from its modern successor.
also went from year to year in circuit to different The early Greeks undertook to popularize the cities and “ judged Israel in all those places.” Like administration of justice by the creation of an un
the early Romans, the Hebrews had no class correwieldy tribunal called a "dicastery,” and in later sponding to our lawyers, but the parties appeared times the Saxon county court brought in the neigh-before the judge in person with their witnesses, bors or freemen of the county and disposed of j and presented and pleaded their own cause. controversies in a rude and somewhat turbulent
The institutes of the Hindu law, or the ordiFrom all these methods, whether the tri
nances of Manu, which were translated by Sir bunal was composed of an individual or a limited
William Jones, comprise a code or system of laws number of persons, or of the general popular assem- relating to the rights and civil duties of the people, blies of Saxons or Greeks, or the Roman prætor or and regulating their public and private conduct, judex, we have derived, by slow and gradual growth Chapter eight, “ On judicature; and on law, private and combination, the system of procedure which and criminal,"contains 420 sections, and includes seems to us, in the main, so simple and efficacious, not only positive law, but rules of procedure. The
While we are unable to state with accuracy, in king was the supreme judge, and he had power to all cases, the special methods of procedure, we designate subordinate judges and assessors, to comhave been able to glean sufficient information to pose a tribunal, who heard and decided controverenable us to give a fairly clear view of the struc sies. This code contains simple rules regulating ture of tribunals and the methods of procedure the practice in the trial of ordinary actions; the
number and competency of witnesses; the suf inferior, yet acting in the regular discharge of an ficiency of evidence; the methods of procedure in official duty, under the authority of government, court, and the judgment and its enforcement. and under some sense of responsibility, the great There seems to have been no laws or attorneys, for superiority of this approach of a regular judicature the code requires the judge to examine the wit to a settled system of adınivistration of justice, was nesses and the parties. This code seems to contain so apparent to the people that their ancient native a written statement of the customary law of the tribunals were soon discarded, and the new order Hindus, and was probably compiled during the of judges, notwithstanding all their imperfections, ninth century B. C.
were appealed to in preference. There were at first The statement of Ilinlu law in the form of in
no advocates or solicitors. In ordinary questions, stitutes had the usual effect. The attention of the
the people generally appealed to the chief of the courts was directed to construing and applying the place, who took upon himself the office of justice institutes in the adıninistration of justice, and it of the peace, and accommodated the matter between seems that the decisions of the courts, and probably
the parties. When he thought more fit, he sent the opinions of learned men, called upon by the them before their local magistrates or arbitrators, rulers to construe the law, created a new body of
whom he appointed, and if the litigants refused to law, similar to the constitutions and digests follow-abide the result of the arbitration, the magistrates ing the Institutes of Justinian, in the later Romin disposed of the matter without appeal. jurisprudence. During the ministration of War
Among the Greeks the lack of judicial system ren Hastings as Governor-General of India, a trans
While they gave great lation of these digests, decisions and opinions was
attention to politics, and political and governprepared, and was called the “Gentoo Code.” This
mental questions, they seem to have had no wellwas prior to the translation of the institutes by Sir defined system of law or judicial procedure. All William Jones. Afterwarıls a further digest was
the people composed the court, and every trial was prepared under the authority of the English
first heard before a popular assembly. Precedents government, compiled from various digests and
had little weight, and every decision disposed of from commentaries on the institutes of law. From
the law and the facts in the particular case, and all these sources there grew up a quite complete each case was tried strictly upon its own merits, system of the administration of justice, and the without much regard to former decisions in similar Hindu law books disclose a procedure which greatly resembles that of the present day. The complainant Sir William Jones, in the “Prefatory Discourse" presented his grievance to the tribunal, who heard to his translation of the speeches of Isæus, gives an what he had to say, and if it appeared reasonable, a account of the progress of a law suit among the summons was either delivered to the complainant, ancient Greeks. According to this account, when or an officer was deputed for the purpose of citing a citizen thought himself wronged, and resolved to the adverse party. The person summoned was seek redress in a court of justice, his first step was brought into court, and stood beside the com to prefer his plaint, and to denounce the name of his plainant before the m:gistrate. Each party then adversary to the sitting magistrate, who examined stated his case, the complainant beginning, and the complainant, and if he thought the action their stories were written down in their presence. maintainable, permitted bim to summon the deAs the practice developed, attorneys were allowed. fendant to appear at a certain day. Where,a more The law of evidence is quite fully illustrated, and expeditious remedy was required the plaintiff was also the method of examining witnesses.
allowed to attach the person complained against Mr. Finlason, in his introduction to “ Reeves' and carry him directly before the court; but in History of English Law,” points out that in India most cases of civil injuries, the first process was by from very early times there had existed a system of citation or summons, and officers called summoners natural arbitration by the neighbors, which proba were constantly at hand. bly formed in that country the first attempt at any When both parties were confronted before the thing like an administration of justice, and which magistrate, he proceeded to a strict examination of substantially resembles the old Saxon county court, them, which was called the interrogation, and the being assemblies of the principal inhabitants, who parties litigant were permitted to interrogate one took cognizance of the disputes which arose among another, and their answers were set down in writthem, and made the best settlements they could. ing and might be given in evidence against them This was a system suited to an early state of society,
at the trial; and if the archou thought it necessary and which necessarily precedes a more regular ad- | he might adjourn the examination. The archon ministration of justice. But, as the author further prescribed the proper form of the action and observes, when judges were appointed, however admilted” the cause into court, after which pre
liminaries the party complaining put in his declara Professor Holmes, of the University of Virginia, tion or bill setting forth bis cause of action, which, an acute student and critic of Greek life and manwith the answer, were delivered orally before the ners, writing in an early number of the “ Forum ” tribunal, and then reduced to writing. Each (1875), remarks that it constituted no part of the party was obliged to deposit a certain sum mission of Greece to provide a science of jurisprupledge of prosecuting his claim or defense. The
dence. It was its mission to make multitudinous limitation of action was, in general, five years.
experiments in government for the education of huAfter the issue was framed, the archon cast lots manity in political organization, and for the discifor the judges or persons who were to decide the pline of men in the arts of freedom. This is of questions of fact. This tribunal, called a dicas
itself a grand contribution to social progress, and a tery,” answering substantially to our modern jury,
sufficient service to be rendered by any single race.” except as to numbers, was usually composed of 500
The energy and enthusiasm with which the Greeks men, but sometimes, in very important cases, there discharged this duty were not the most favorable were as many as 2,000, and a majority of votes de- i qualifications for the discovery and establishment cided the suit. The court was held in the open of the unswerving principles and precise regulations air, surrounded with a rope, and attended by offi- which law requires. Their types of government cers who kept off the crowd. The archon presided and their methods of litigation were equally adverse and introduced the cause.
to the production of such a result. The city was In addressing the court, the plaintiff, or his ad
the State. The whole community of fully enfranvocate, began, and the defendant, or his advocate,
chised citizens were statesmed. The people in pubclosed the argument, and there was only one speech lic assemblies constituted an absolutely sovereign for each party or issue. The advocates seem to body. The whole conduct of litigation, the whole have had the privilege of "summing up," or
order of public justice among the most litigious of making comments upon the evidence during the ancient nations displays al perverse indifference to progress of the trial. At the close of the evidence precedent, enactment, and often to right, in their and the arguments, a vote was taken by casting multitudinous and cumbersome dicasteries. Legal pellets or beans into an urn, a separate urn being customs, legal provisions, and statutory determinaprovided for each party or distinct issue, and the
tions were abundant, but received little respect, and presiding archon counted the pellets and announced
less observance, from the heated declamation of litithe result.
gation, from the tricky ingenuity of advocates, or Mr. Grote, in his “ History of Greece,"comment
from the factions temper of a mob judiciary. Foing on the dicasteries, says that, “taking their
rensic contention at Athens assimilated itself in general working, we shall find that they are nothing
most respects to a political debate. The appeal was but jury trial applied on a scale broad, systematic, made, not mainly to the law, not very earnestly to unaided and uncontrolleil, beyond all other histori
the facts, but to the passions, the whims, and the cal experience, and that they, therefore, exhibit in momentary necessities of the judicial crowd. The exaggerated proportions both the excellences and
whole body of citizens formed the court, and it condefects characteristic of the jury system, as compared
tinued to do so in theory, though inconveniences in with decision by trained and professional judges." practice, and a multiplication of business, comTo the genius of Pericles the Greeks owed the pelled their later distribution into several dicaster
ies. great reform in the judicial system which resulted
The judgments of this body were rendered in reducing the power of the magistrates and the
upon the law and the facts in each case, or, as Sir organization of the dicastery. Mr. Grote observes
William Jones observes, “every case was generally that “what Pericles really did, was to sever for the
decided by a kind of political law, to which no first time from the administrative competence of precedents were applied, and from which no rules the magistrates that judicial authority which had
were deduced.” originally gone along with it. The great men who
“ The inestimable social service of providing a had been accustomed to hold these offices were low- science of jurisprudence was reserved to be the ered both in influence and authority; while on the great labor and the crowning glory of the Romans.” other hand, a new life, habit, and sense of power
How effectually, how splendidly, how supremely, sprang up among the poorer citizens. A plaintiff and with what incessant effort and repeated transhaving cause of civil action, or an accuser invoking formation they accomplished this lofty duty, is appunishment against citizens guilty of injury, either parent from a careful study of the consummate to himself or to the State, had still to address him- system which we observe in all its grandeur ranging self to one or other of the archons, but it was only over a thousand years from the Twelve Tables to with a view of ultimately arriving before the dicas- Justinian. tery, by whom the cause was to be tried."
Sir Henry S. Maine opens his “Ancient Law”
with the remark that “the most celebrated system time the summons is a private act of the complainof jurisprudence known to the world begins, as it ant, and disobedience to the summons is not an ofends, with a code.” In theory the Roman system fense against the law. The whole length that the descended from the Twelve Tables, and the princi- Twelve Tables yo, is to legalize the exercise of force ples embodied in them were considered the source by a complainant to drag an unwilling defendant of all later Roman law. These tables were the most before the court. famous specimen of ancient codes, and their pro “Second, the Edict of the Prætors. The summulgation, about 450 B. C. marks an important mons is still the private act of the complainant, but epoch in the progress of Roman civilization. The disobedience is made a wrong, and the principle is principles of substantive law, as well as the rules of now established that it is the duty of a citizen to be practice stated in them, are probably merely the ready to answer in the courts of justice any comenunciation in words of the existing customs of the plaint brought against him. Roman people. Those customs, thus crystalized in “Third, the Imperial Constitutions. The sumwritten law, have, in many instances, been pre
mons is issued on the application of a complainant served, and we find them, after nearly twenty-four by officers of a courr of justice. This change was centuries, stated in modern law in almost, if not also made the means of giving notice to the person quite, the identical language used by the early sued, of the wrong alleged to be done by him." Roman compilers. The Romans steadfastly main The procedure under these three divisions is in tained the integrity of their judicial system, and many respects very like the procedure of to-day. firmly resisted all attempts to amalgamate with Many of the forms and methods adopted and inother systems. Their law readily adjusted itself to stitutedby Justinian are still preserved in our practhe internal changes that were constantly at work
tice. in Rome. “It was by a judicious mixture of the The early mode of summons "continued down to permanent or conservative, and the progressive re the golden age of literature, and the classical age of formatory spirit, that she was enabled to establish jurisprudence.” If he were able, the defendant and frame laws that in time gave her the empire of could resist arrest without exposing himself to any the world."
danger of punishment, and the complainant could The absolute sovereignty of the State is so clearly
not use force to take him before the magistrate, unrecognized and so freely conceded in modern times, less his refusal to go was in the presence of witthat it is difficult for us to comprehend the condi
The prætor changed this rule by making it tion of society in the early Roman period, when an offense for a person duly summoned to refuse to even the authority of the State to bring an alleged obey, and a plea to the jurisdiction of the court wrongdoer before its tribunal was denied. Even at could be listened to only before the court itself. the time of the Twelve Tables the State did not as It seems that even in this primitive period the yet claim to decide civil disputes, and only assumed defendant sometimes kept out of the way to avoid to furnish arbitrators, to wliom controversies might a summons, and the Twelve Tables provided no be submitted for decision.
remedy for such a case. This was, doubtless, due The first three of the Twelve Tables cover the
to the peculiar attitude of the law, which recog early law of procedure, embracing proceedings pre- nized no litigants until they were actually in court, limiminary to trial, including the commencement of and invoked the interference of the magistrate. the action, the trial itself and the execution. These
Another reason why a complainant had no remedy ancient actions were of a rude sort, and were against the defendant who kept himself concealed, not commenced by the service of written probably was that the early Roman law did not assummons, as in later times; but the complain
sume to seize the defendant's property, but only to ant summoned the defendant before the magis- punish him personally. The prætor introduced trate, and if he refused to go, the complainant execution against property, and inserted in his edict might take him by force, or “by the neck"; after
a notice to the effect that if a defendant concealed wards the complainant summoned the defend
himself to evade the summons, he would order his ant, by touching his ear, before the magistrate goods to be seized and sold. The next step was a who had jurisdiction. The magistrate was
public summons, which, in the reign of Justinian, sort of umpire, whose duty it was to see fair play, became an act of public authority, and gave the and the use of force was sanctioned to bring an al- | defendant formal notice of the claim made against leged wrongdoer before the tribunal, Mr. Hunter,
hin. in his work on Roman Law, says that the develop By the Twelve Tables a judgment debtor was ment of the subject of procedure in Rome marks given thirty days to pay the judgment, and after three distinct stages.
that time he could be arrested and taken before “First, the law of the Twelve Tables. At this the magistrate; and, upon failure to pay the debt,