Page:The Green Bag (1889–1914), Volume 21.pdf/112

 Conservatism in Legal Procedure It was claimed as a merit for the system that it brought the controversy to a single issue and so was peculiarly adapted to the institution of trial by jury. But the single issue often pre vented a party from making a full presentation of his case, and he was defeated upon the issue which had been framed when upon another he was plainly entitled to succeed. To remedy this evil the cause of action was per mitted to be stated in various forms in different courts and to each of these counts the defendant was permitted to interpose as many pleas as the ingenuity of counsel could devise. In a case re ported in the 23d Wendell there are thirty replications to one plea. Instead of a single issue there came to be so many that for the practical purposes of the case there was none at all. Every thing was done except to make a plain statement of the contention of each of the suitors. Burke fairly describes the legal procedure of his day in his "Vindi cation of Natural Society" :— The worst cause cannot be so prejudicial to the litigant as his advocate's or attorney's ignorance or neglect of the forms. A law suit is like an ill-managed dispute, in which the first object is soon out of sight and the parties end upon a matter wholly foreign to that on which they begun. In a law suit the question is, who has a right to a certain house or farm, and this question is daily determined, not upon the evidence of the right, but upon the observance or neglect of some forms of words in use among the gentlemen of the robe, about which there is even amongst themselves such a disagreement that the most experienced veterans in the profession can never be positively assured that they are not mistaken. . . . I remove my suit; I shift from court to court; I fly from equity to law and from law to equity; equal uncertainty attends me everywhere; and a mistake in which I had no share decides at once upon my liberty and property, sending me from the courts to a prison, and adjudging my family to beggary and famine. I am innocent, gentlemen, of

93

the darkness and uncertainty of your science; I never darkened it with absurd and contra dictory notions, nor confounded it with chicane and sophistry. You have excluded me from any share in the conduct of my own cause; the science was too deep for me; I acknowledged it; but it was even too deep for yourselves; you have made the way so intricate that you are yourselves lost in it: you err, and you punish me for your errors. Until the middle of the last century, within the memory of living men, this archaic procedure held its place wherever the jurisprudence of Westminster had sway, and it may be found still in force in one of the leading states of the Union, relieved, it may be, of some of its worst features. Take up Chitty's Pleading and Tidd's Practice, read the dreary casuistry you find in their pages and bear in mind that it remained until our day as an obstruction in the way of justice. The niceties and subtleties of the law of pleading were all settled at the expense of some suitor who cared nothing and should be held to care nothing for the forms employed, but who had a grievance and was entitled to a remedy, and as at the trial he could tell his case from the witness stand in plain English, so it should have been formulated by his counsel for trial in plain English in the pleadings. The steam engine was invented and im proved and became the motive power of manufactures, and of transportation on the water and on the land, the lightning was subdued and made to serve as an instantaneous messenger be tween the remotest parts of the earth, sinews of iron and steel in every field of labor were doing the work of human brawn, industry and commerce were revolutionized in all their methods, be fore the profession was brought to recog nize the truth that the best way for the purposes of justice, of stating a cause of action, or the defense to it,