92

The Green Bag

pleadings and records in all cases, civil and criminal, until the year 1730, when by act of Parliament English was again made the language of the courts for every purpose and for the sensible reason "that the common people might have knowledge and understanding of what was alleged or done for and against them in the process and the pleadings, the judgments and entries in a cause." Even at that day so simple a reform could not be effected without opposi tion. Raymond, Chief Justice of the King's Bench, led in the fight against it and could see nothing but evil to result from the innovation. A generation after, Blackstone, in his Commentaries, re gretted the change, and Ellenborough, in a still later day, preferred the use of a language which had never been the ver nacular of any people to his own Eng lish, dignified as it had been in verse and in prose by the genius of Spenser, Shakspere, Milton, Dryden, Pope, Addi son and Swift. An alien tongue thus persisted in the English courts for nearly seven hundred years and alien forms persisted for more than a century longer. What we know as the common law system of pleading exhibits the genius of the Norman rather than of the Saxon element in the Eng lish nation, but it held its place with astonishing tenacity, succeeding in what the Latin of the court records had not done, establishing itself in the English colonies and hindering there the admin istration of justice as much as at home. As it developed, it was formalism run mad. There was a form of action for each particular species of injury, and the form was essential. The three gen eral classes of action, real, personal and mixed, were further subdivided until, according to some enumerations, there were fifty-nine distinct forms, and around them grew up a vast amount of

learning, the possession of which was the chief equipment of the lawyer. If suit was brought in the wrong form there could be no change, but it must fail altogether and the unfortunate liti gant was not even advised how to bring his new suit, for the judgment against ,him told him only that he could not recover in the particular form he had adopted. Even where more than one form was open to use great care must be exercised, for the books taught that "by a judicious choice of the remedy, the defendant may be frequently pre cluded from availing himself of a de fense which he might otherwise estab lish." The injustice of precluding a proper defense or permitting an im proper one in any form of action does not seem to have received much con sideration. The subtleties and intrica cies of real actions became so great as to baffle the skill of the most experienced practitioners, and trial in these forms was so tedious, difficult and expensive that when it was permitted finally to try title in ejectment they became nearly all of them obsolete, and with them, says Reeve in his History of English Law, "was consigned to ob livion one third of the learning of the ancient law." The substituted action of ejectment was far from being a simple one. In stead of a plain statement of the case, each party setting out the facts as he held them to be, there must be intro duced the fiction of a lease and a lessee, and of an ejector and an ejectment, encumbering the pleadings with false issues. Fictions of other kinds were employed to confer jurisdiction upon particular courts. And the peculiarly sacred features of those old pleadings, which might not be questioned in any way, were the statements in them that everybody knew to be false.