Page:Harvard Law Review Volume 4.djvu/72

56 56 HARVARD LAW REVIEW, system, is a plea in confession and avoidance, was, in the Roman system, merely a supposition of the truth of the opposite case, an anticipation of a possible proof of it, and an avoidance of it ; nothing was really admitted. As illustrating this, I quote in a note from Professor Langdell's clear account of a procedure which is thought to have " differed but slightly in principle " from that of the period to which I now refer.^ Now, under such a method, where every case presents, at the trial, a clear and unchangeable affirmation and denial, the phrase onus probandi (and so the leading Latin maxims about it) may have a very simple meaning. The proof, the burden of proving, belongs to the actor ; it cannot shift, and cannot belong to the reus, whose function is not that of proving, but the purely negative one of repelling or making ineffective the adversary's attempts to prove.^ (2.) It would be possible to conduct legal controversies, as well as others, without any written or recorded pleadings, or in disregard of them. It has often been done. The convenient practice of trying cases upon agreed facts, whether resting on a statute ^ or on the practice of the courts, will readily come to mind. As regards everything following the declaration in civil cases and the indictment in criminal cases, we are familiar in modern times with that state of things, — indeed the common law has always known it.* An oral plea of not guilty and a written general 1 Equity Pleading (2 ed.), ss. 4-14. "There were ... as many stages in the trial as there were pleadings. The first stage consisted of the trial of the plaintiff's case as stated in the libel. For this purpose the plaintiff would first put in his evidence in support of his case, and the defendant would then put in his evidence, if he had any, in contradiction. The evidence bearing upon the libel being exhausted, the next stage was the trial of the exception, which proceeded in the same manner as the trial of the libel, except that the defendant began, he having the burden of proof as to his exception. In this manner the trial proceeded, until all the evidence bearing upon each of the pleas in succession was exhausted, each party being required in turn to prove his own pleading, if he would avail himself of it (s. 8). . . . Finally it will be found that all the essen- tial differences between a trial at common law and by the civil law, arise from this, namely, that by the common law a cause goes to trial with everything alleged in the pleadings on either side admitted, except the single point upon which issue is joined, while by the civil law it goes to trial with nothing admitted" (s. 12). This system has largely survived on the continent of Europe, in Scotland, and in our equity procedure. 2 This is equally plain in any simple case under our system, such as Ilingeston v. Kelly, 18 L. J. N. s. Ex. 360 (a neat case), and Phipps v. Mahon, 141 Mass. 471, a like in- stance, where the thing is well expounded. 8 E.g., St. IS & 16 Vic. c. 76, 8. 46.
 * Co. Lit. 283.