THE FORMATIVE PRINCIPLES OF CIVIL PROCEDURE

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Formative Principles of Civil Procedure [article]

Illnois Law Review, Vol. 18, Issue 1 , pp. 1-36 Millar, Robert W. (Cited 62 times)

18 Ill. L. R. 1 (1923-1924)


2/37

LL NO S

L W

R V W

Volume XVIII

MAY, 1923

Number

1

THE

FORMATIVE

PRINCIPLES

OF

CIVIL

PRO EDURE I

By

ROBERT

W.

MILLARa

§ 1

INTRODUCTORY

It is probably

safe

to

say

that

the influence

of the

Roman law

upon the

procedure

of

the

English

common

law

courts had expended

its force

by the

end of

the

1200s.

1

It was

yet to operate

in

a simi-

larly indirect

-but

infinitely

more powerful way upon the procedure

of

the court

of chancery,

but

here

its work was

at all

events finished

by the

close

of

the

15 s

In

the

one

case,

the

indebtedness

to the

Romano-canonical

law,

circumscribed

and

formal

at

the

best,

has

only

recently

been

stressed; in

the other,

it has

been

too marked and

obvious

ever

to have

escaped

notice.

Apart

from these early

rela-

tionships,

the

civil

procedure

of

the English

law

has

lived

a life

to

itself.

No

doubt,

the set

off of mutual 'unconnected

debts

intro-

duced, as

a defense,

by

the

statute qf

2 Geo. II,

c. 22,

had its

ultimate

inspiration in the Roman

'compensatio,'

but

as equity had

been

pre-

viously

applying

the same

principle,

though limited

to the case

of

connected demands,

3

the

defense in

question

can

scarcely

be

deemed

a

conscious

borrowing

from an outside

source. The

declaratory

judgment,

recognized

by

the rules

under

the English

Judicature

a. Professor

of

Law

in

Northwestern

University.

1. See

Pollock

and

Maitland

History

of

English

Law

(2nd ed.) II

612;

Holdsworth

History

of the

English Law

III 472.

2.

In

the

time

of

Elizabeth and

her

immediate

successors,

the

common

rules

of

practice of

the

court

had become

well

settled,

differing

little in

principle

from

those

of

the present

day.

Spence

Equitable

jurisdiction

of

the Court of

Chancery

I 379.

The written

answer

apparently

dates

from

the

reign of Henry

VI,

but not

until

later

does it

become

sharply

differ-

entiated, in office,

from

the

demurrer

and

plea.

Kerly History

of Equity

67.

3

Whitaker

v

Rush

Amb.

407;

Chancellor Kent

in

uncan

v Lyon

3

Johns.

Ch.

351.


3/37

18

ILLINOIS

LAW REVIEW

Acts,

and

more

and more finding favor in

American

jurisdictions,

stands

on

a

somewhat

different

basis.

That manifestly

was

taken

over

from

the

law

of

Scotland

where

its

origination,

there

can be

little

doubt,

was

due to

Roman

law influence.'

But, in the

main,

Anglo-American

civil

procedure

has

gone

on its

way,

deriving

nothing

from

without

and

evolving

from

within

the elements

needed

for

-its

amendment

and

progress.

Educated

practitioners

have

always

known

something

in

an

academic

way

of the

classic

Roman

procedure,

but to the

later forms

developed

on

the

Continent

out of

the

coalescence

of Roman

and

Germanic institutions

they

have

paid

small attention.

Even

the

procedure

of

those courts

in

England

which conformed

closely

to

the

Romano-canonical

model

was

to

the

common

law

lawyer

a

thing

apart,

in

which

he took

as

little

interest

as in

its

Continental

cognates. It

sufficed

for

him

that the

methods

of

Doctors'

Commons

were

not

those

of Westminster

Hall.

This

narrowness

of

interest

is happily

much

less

pronounced

at the

pres-

ent

day, but there

is

still

a

tendency

on the

part of English

and

American

lawyers

to

forget

that

there

is

such a

thing

as civil

pro-

cedure

in other

systems

of

law

or else

to

feel

that the

procedure

of

other

systems

is

of

necessity

inferior

to

their

own.

But,

in this

lack

of

a procedural community, the

fault

is

not entirely

on

our

side.

Continental

scholars

have not

made

our

procedural

institutions

the

subject

of

the attention

that

they

deserve.

They

have, to be

sure,

been

attracted by

the

institution

of trial

by jury

and

have

investi-

gated

its

history with

an industry

and learning

which

have redounded

to our

immense

profit.

To

the

system as a

whole,

however,

they

have

given, in

general,

but

scant

and superficial

consideration.

This

is

due,

in

some

part,

we

may

well suppose,

to the

intricate

and

tech-

nical

rules

of

common

law

pleading

and practice

whose understand-

ing,

in

detail, would present almost insurmountable

difficulties

to

the foreign

student.

5

But,

in

larger

degree,

it is due to

the fact

that

the

very

much

greater

volume of

Romano-canonical

elements

in all

the

Continental

systems

serves

as

a common

bond

to unite

them in

a

sort

of

freemasonry

from

which

our

own

system

stands

apart.

Yet

this

attitude toward

the

English

system has

not prevented

Continental

scholars,

and more

particularly

the

Germans,

from

bringing

the

study

of

comparative

civil procedure

to

a

high

degree

4.

For

the history

of this

institution,

see

Borehard s

learned

article

The

Declaratory Judgment

Yale

Law

Journal

XXVIII

1-32, 105-150;

as

to

Scot-

land,

in particular,

pp. 21-24.

5

Etjelnann

( Der romanisch-kanonische

Prozess

199

speaks of the

English

procedure,

especially

before

the Judicature

Acts,

as

peculiarly

com-

plicated

and

of

thel

work of

the Swiss

writer,

Riattinan

Der

englische

Prozess,

published

in 1851,

as very

hard

to

understand.


4/37

PRINCIPLESOF CIVIL PROCEDURE

of development.

So

varied,

in

respect

both of

time

and place, have

been

the products

of

blended

Roman

and

Germanic procedural insti-

tutions

on

Continental

soil

that ample

material

for such

study

is

afforded

even without crossing

the

English Channel.

And as a

result of effort in this direction the Germans, brilliantly

seconded by

the Italians,'

have evolved a true science of

procedure-such

a

science as, in our

terminology, would be properly termed

procedural

jurisprudence.

The case

is otherwise with us. Our relative inattention

to com-

parative

study has caused us to miss

in large measure, to use

Hol-

land's

phrase,

the

possibility of separating the

essential

elements of

the

science

from its-historical

accidents.

'

Bentham's services

to

the cause of procedural

reform

cannot be

overestimated;

he supplied

invaluable

material for a future

science of procedure; but

he

can-

not

be said to

have

contributed much

to a

systematization of

general

principles.

Had Austin

been permitted to

accomplish

the

somewhat

detailed

consideration

of procedure projected

in

his outline,

it

is

doubtful whether

even this

would

have

laid an adequate basis for

theoretical study, since the

criticism appears to be a just one

that

both Austin and

Bentham

failed

to extend their

views

far enough

either

into the past, or

over

the legal systems

of other

times

and

countries.

By Austin's successors

procedure has never been

treated save in

an elementary and cursory

fashion.

9

Our

text

books

dealing

with procedure and procedural topics yield some place

to

history:

to

theory they yield little or none. Procedure

and

pro-

cedural topics, that is to

sayt, other than

Evidence,--a

field

into

which

science had

already

begun

to

cast glimmering rays

before

it

The

Romanisch-kanonische

Prozess

of Engelmann

with

his Mittel-

alterlich-deutsche Prozess

and R6mische Civilprozess (to

all three

of

which reference will

be

frequently

made

in the

course

of

this

article)

con-

stitute

his Geschichte

des

Civilprozess which

will

shortly

appear in

trans-

lation along with other Continental

materials

as

The History of

Continental

Civil

Procedure,

in the Continental Legal

History

Series, published by

Little, Brown

&

Co. of

Boston.

6.

The

condition

is different in

France: Bien

peu

de gens

y

jugent

la

procedure civile digne

d'une

itude th6orique s6rieuse.

.

Dans les

Uni-

versit6s, l'6tude

de la

procedure

est

languissante;

les chaires

de procedure

sont

pen

recherche~s.

On

sait d'ailleurs que

notre

litt6rature

juridique

n'est pas

bien

riche dans

le

domaine

de l procidure

civile;

nous n'avons,

en

France,

aucune revue srieuse des questions

de

proc6dure;

et

les

6tudes doc-

trinales

un peu

pouss~es sont ici peu

nombreuses. Tisyier

Le r6le

social et

6conomique

des

r6gles de la proc6dure

civile in Les m6thodes juridiques

(Paris, 1911)

105, 106.

7. Elements of

Jurisprudence (8th ed.)

8.

8 Bryce The Methods

of

Legal Science in Studies in History

and

Jurisprudence II 614.

9 Holland op. cit. 315-321; Amos

Science

of Jurisprudence 317-365;

Markby Elements

of

Law (4th

ed.) 417-427;

Salnwnd Jurisprudence (6th

ed.)

65-91, 437-453.


5/37

18 ILLINOIS LAW

REVIEW

was

lighted

to the

full

by the

genius of

Wigmore.

This subject

apart, we

cannot

but admit the

truth of

Kohler's

observation that

for

the

Anglo-American law, as for

the French,

there is

no science

of

procedure:

its procedural literature is still on a basis of

prac-

tical commentary.

10

Not the least of

the

contributions

for which theoretical

study

is

indebted

to German

procedural science

are

certain generalizations

which

it

has

made

concerning

procedural

method.

By such gen-

eralizations

it has

identified and delimited the fundamental

concep-

tions which consciously or unconsciously determine

the

form and

character of systems of procedure. These

it

has

enunciated

as

principles or maxims

with specific names,

sometimes

not altogether

apt, but sufficiently

serving the purpose of differentiation. Of such

basic principles ('Grundprinzipien'),

1

or, better, formative

prin-

ciples ('Prinzipien der

Gestaltung')

12 some

are common

to all sys-

tems; others

again

appeai

only

in given

systems and

may or may

not

be

antithetical to

corresponding conceptions

prevailing else-

where. A brief examination of

these

formative

principles and their

place

in

procedural history will be the subject of the

following pages.

2. BILATERALITY OF

THE

HEARING

Most

obvious, perhaps,

of the

conceptions in question

is the

idea that both

parties

must be heard:

the principle

of bilateralhear-

ing

('Grundsatz

des beiderseitigen Gehirs').

Inseparable from any

organized

administration of justice, it

is

expressed alike

by the

Roman

precept audiatur et

altera

pars and

the

rhyming

brocard

of mediceval

Germany: Eines mannes

red

ist keine red, der

richter

soil die deel verhoeren beed. '

3

( One man's

plea is no

plea:

in

justice. must of both

the hearing

be. )

It is a notion which at

the present

day is generally satisfied by

granting

to

the

other party due opportunity

to be

heard.

4

But

this

result has been one

of slow growth.

The

primitive conception

of an action as

the voluntary

submission of a controversy

to

the

10.

Zivilprozess

und

Konkursrecht

in

von

Holtzendorff s Enzyklo-

padie

der

Rechtswissenschaft

(1913) III

256.

11

Heilfrvn

and

Pick Lehrbuch

des

Zivilprozessrechts

(2nd ed.)

I

447.

12.

Von

Bar

Civilprozess

in

von

Holtzendorff s

Encyklopfidie

der

Rechtswissenschaft

(1882)

I

727

13

Kleinfeller Lehtbuch

des

deutschen Zivilprozessrechts 191;

Hille-

brand

Deutsche

RechtssprichwiSrter 217.

14. Stein

Das

Civilprozessrecht

in

Birkineyer s Encyklopidie der

Rechtswissenschaft 1179; von Bar

Civilprozess in von Holtzendorff s

Encykiopidie

der

Rechtswissenschaft (1882)

I

729.


6/37

PRINCIPLES

OF

CIVIL

PROCEDURE

decision

of

a superior

authority'

5

left

no

room for

proceedings

against

a

defendant

who

declined

to

appear.

So

it

is

that,

until

the

prator

introduced

some

measure

of

relief

y

the

use

of

the

'missio

in

bona'

as

a means

of

coercing

appearance,

the Roman

law

was

powerless

to

render

judgment

against

a

defendant

who

failed

to

appear either

voluntarily

or under

the physical

compulsion

of the

plaintiff.'

8

So,

too,

it

is that

the Germanic

law

had

no

other

re-

course

against

the

defaulting

defendant

than

to

constrain

him

by

means

of

outlawry

to make

his

peace

with

the offended

State

or

else

to

seize

-his

goods

as

a pledge

for

appearance.

17

The

idea

that,

if

the

defendant

has been

notified

according

to

law, the

court may

proceed

to judgment

in

his

absence

has

its

inception

in

the

con-

tumacial

procedure

of

the post-classical

Roman

law,' but

it has

had

a long

and

uphill

struggle

to overcome

the persistence

of

the

primi-

tive

notion.

The

history

of

procedure

down

to

very

recent

times

shows

the

clash

of

the two

ideas,

involving

as

it

does, in

the

realm

of

juristic

speculation,

the

question

whether

appearance

on

the

part

of

the

defendant

is

a right

or

duty.

19

For

the

case

of

default

on

the

part

of

the

defendant,

says

Kohler,

systems

of

procedure

exhibit

two

points

of

departure.

In

the

one

case,

no

proceedings

are

possible

without

the

co-operation

of

both

parties.

Here,

unless

the law

is

to

be a

dead

letter,

its

enforcement

a

matter

of grace

on

the

part

of

the

defendant,

measures

of

the

utmost

stringency

must

be

resorted

to

in order

to

compel

appearance.

Such

was

the

method

of

the

Frankish

procedure

and

the procedure

of

the

canon

law:

the

defendant

was

coerced

by means

of

outlawry,

excommunication,

putting

the plaintiff

into possession

of

his goods

('possessio

tedialis')

and

the

like.

In

the

other

case,

the

proceedings

go

on

despite

the

defendant's

failure

to

appear

and

are concluded

on

the basis

of the

plaintiff's

unilateral

demand.

Under

certain

circumstances,

this

might

take

place

in

the

Roman

law,

-but only

in

such

a

way

as

to

render

the cause

one

of

inordinate

length.

The

practice

in question

underwent

development

in

the

cities

of

mediaeval

Italy

and

by

the

15.

Maine

Ancient

Law

(3rd

Am.

ed.)

364.

16.

uq

Institutions

juridiques

des

Romans

II

747;

Greenid ge

Legal

Procedure

of

Cicero's

Time

255;

Keller Wach

Der

r~mische

Civilprozess

§

49;

Engelinann

De

r6mische

Civilprozess

105

155-6.

17 lenks

Law and Politics

in

the

Middle Ages

111,

223-224;

Engel

mann

Der

mittelalterlich-deutsche

Prozess

101-102;

Pollock

and

Maitland

History

of English

Law

(2nd

ed.)

1

49.

18.

Bruno

Contumacia

civile

in

Digesto

Italiano

VIII

3) 559;

Girard

Manuel

616mentaire

de

droit

romain

(5th

ed)

1075;

Engelinann

der

r~mische

Civilprozess

157

et

seq.

19.

See

Engelumnn

Der

Civilprozess:

Allgemeiner

Theil

161.


7/37

8

ILLINOIS

LAW REVIEW

celebrated

'Clementina

aepe

2 °

of 1306 was

sanctioned

for numerous

kinds

of

causes. The

dispositions

of

the

'Clementina' in

that regard

soon became

more or

less

general. In the

common

law

procedure

('Reichskammergerichtsprozess')

2

'

1

of

Germany both systems

pre-

vailed

down

to 1654.

The plaintiff might,

at his election, coerce

the

defendant

to

appear

or

proceed

in

his absence.

The Recess

of that

year

('jungste

Reichsabschied') 22

however, abolished in

general the

system

of

coercion

and

made

the

other

the rule.1

2 3

In our

own

law

the older

rule clung

tenaciously to

existence.

We

know

how, in common

law actions,

apart from

the cases

in

which

attendance

could be enforced

by arrest

of the person,

the

defendant,

in

Blackstone's

language,

was

gradually stripped

of

his

substance

-by repeated distresses till

he rendered

obedience

to

the

king's

writ.

2

4

Not

until the

1700s is the

plaintiff enabled

to

pro-

ceed

without the

presence of the defendant,

25

but the

old rule

still

receives

formal

homage in

the

shape of

an appearance

entered by

the

plaintiff

or

the defendant.

A true

judgment

by

default,

in the

present-day

sense,

although receiving

prior

recognition

in the United

States,

2 6

does not

obtain

in the English common

law

courts

until

20.

A

statute

of

Pope

Clement

V

introducing

measures

of

simplification

into the

existing canonical

procedure.

It was so

named

from the

word with

which it

opens:

Saepe

contingit

. Engelmann.

Der romanisch-

kanonische

Prozess,

etc.

86.

21. Strictly speaking,

there

is

a clear distinction

between

the

Reichs-

kammergerichtsprozess

and the

common law

procedure

of

Germany. The

former

was

the procedure,

based

on

the Romano-canonical

system,

which

was

followed by

the

Imperial

Chamber

of

Justice

('Reichskammergericht')

established

in 1495.

The

latter

was

the procedure

which,

through

the

agency

of

the

universities,

came later

to prevail very generally

in the

several states.

It represented

the Romano-canonical

procedure

of

the 'Reichskammergericht,'

as modified

by the influence

of Saxon

law. Its

name,

common

law pro-

cedure

('gemeine

Prozess';

'gemeinrechtliche

Prozess')

comes from

the fact

that

the

common law

of

Germany was

the

Romanized

law

attendant

upon

the reception

of

the

medieval

Roman

law.

While

this

common procedure

as

a system,

cannot

be

said,

perhaps, to have

existed prior

to

the 1700s, we

shall,

in

this

article,

use

the term as

including the anterior developthent

in the

'Reichskammergericht'

which it

incorporated.

See

Planck

Lehrbuch

des

deutschen Civilprozessrechts

I

6 7; Brunner

Quellen und Geschichte

des

deutschen

Rechts in

von Holtzendorff's Enzykloplidie

des Rechtswissen-

schaft 1913)

I 172.

22. To

the aggregate

of the statutes

passed by a given

Diet the name

'Imperial Recess'

('Reichsabschied'), 'recessus

imperii,'

was given because

of

their publication

upon

the

adjournment of the

body.

The 'last

Imperial

Recess'

('jungste Reichsabschied')

is that

of

1654,

since

the next

Diet, which

met at

Regensburg

in 1663, became

a

permanent assembly.

Brunner op.

cit.

I

158.

23. Civilprozess

und

Konkursrecht

in von Holtzendorif's

Enzyldo-

pidie

der

Rechtswissenschaft (1913)

III 301.

24.

Comm.

280.

25. 12 Geo.

I c. 29,

5

Geo.

II c. 27: Tidd

Practice

(9th ed.) 241.

26. See

e.

g.

Rev.

Laws of

Illinois

(1827)

313.


8/37

PRINCIPLES

OF

CIVIL

PROCEDURE

the

Common

Law

Procedure

Act of 1852.27

The

court of chancery

at first is

even

more

rigidly

fettered, -but

suffers less

severely

since

much

of its business

is such

as

in the nature

of

things cannot

be

transacted

without

the personal

presence

of

the defendant.

Orig-

inally

it

can coerce

only

by recourse

against

the person

of

the de-

fendant,

but

later

achieves

the

right

to

sequester

his

estate.

28

Then,

it

breaks

partially

loose

from

the old

rule

by exercising

jurisdiction,

after such

sequestration,

to

enter

a decree

pro

confesso

against the

contumacious

defendant.

But

this involves

many

gestures.

Sub-

pmna

attachment,

attachment with

proclamations,

commission

of

rebellion,

serjeant-at-arms,

sequestration-this

gamut must be

run

as

a preliminary

to

consideration

of the

plaintiff's demand.

29

In

time, these

proceedings

are

discarded and,

both in America

30

and

in

England,

3

1

a decree

pro confesso

may

be

entered

for

mere failure

to appear

after

due service.

In

England,

however,

as for

many

years at

law, an

appearance

is

entered for

the defendant,

and

this

ghost of

the old rule lingers

down

to

the

very

last

days

of

the

High

Court

of

Chancery.

82

Aside

from the

matter

of default,

the

principle

of

bilateral

hear-

ing is everywhere subject to certain

qualifications

deemed

by

the

law-making

authority

to

be

in

furtherance

of

justice.

Sometimes

the

qualification

proceeds

on

the ground

that

the

giving

of

notice

to

the

defendant

or

the delay

incident

thereto

might

render

futile any

action

of

the

court.

3

3

Temporary

injunction and

receivership

orders,

made

without

notice, are

examples

of this

in our own

law.

Ex-

amples

in

other

systems

are

the provisional

orders ('einstweiligen

Verffigungen')

of

the

German

Code,

for emergent

cases

( in drin-

genden

FAllen ),3'

and

the

provisional

suspension

of new

building

constructions and the

like

in

modern

actions

descended

from

the

Roman

'operis

novi

nuntiatio,'

35

as

the

Italian Idenunzia

di nuova

opera'

3

6

and

the

Spanish

'demanda

de

interdicto de

obra

nueva.

3

7

On

this ground,

too,

proceeds

in part,

at least,

our process

of

attach-

27

§ 26:

Martin

Civil

Procedure

12.

28. Gilbert

Forum

Romanum (Tyler's

ed.) 77.

29. Blackstone

Comm. III 444;

Hoffman

Chancery

Practice

(2nd ed.)

I

184-185;

arton

Suit

in

Equity

(Holcombe's

ed.)

84-92;

Daniell

Chanc-

ery

Practice

(1st

ed)

I 573 et

seq. 679-680:

30.

See

Hoffman op.

cit.

I

187

31. Daniell

op.

cit.

(2nd Am.

from

2nd Eng.

ed.) 593.

32. See

Griffith

Supreme

Court of Judicature

Acts

17

33

Von

ar Civilprozess

in

von Holtzendorff s

Encyklopldie

der

Rechtswissenschaft

(1882)

I

729.

34. Civilprozessordnung,

§ 937.

35.

runo

Denunzia

di

nuova opera,

etc., in

Digesto Italiano

IX

(I)

1009

1013 1 2

36.

Codice

di procedura civile

§

938 et seq..


9/37

8

ILLINOIS

LAW

REVIEW

ment

and

its

Continental

cognates,

the 'saisies

conservatoires'

of

the

French

law,

8

the 'sequestro conservativo'

of the Italian,

9

the

'Arrestprozess'

of the German.

4

0

Again,

the qualification

may

be

based

upon

the fact

that

the debtor

has

either

in

express

terms

or

by

the form

of

his undertaking

antecedently

waived

his right to

a

hearing

prior

to

the

issuance

of execution.

This

idea

was

unknown

to the Roman

law,

but

was

developed

by

the medieval

Italian

jurists

out

of a blending

of the Germanic

notion

of

private

seizure

of a

debtor's

goods with

the

Roman

maxim

'confessus

in jure

pro

judi-

cato

habetur.'

1

It

gave

rise

to

the

use

of the

so-called

'instrumenta

guarentigiata'

or

'secured

documents,'

by

which

the

debtor, in the

written

evidence

of his debt,

granted

to

his

creditor

the

right

of

execution

without

a precedent

hearing.

When

the

debtor

failed

to

pay,

therefore,

the

court issued

execution

against

his

property

on

the

ex

parte

application

of

the

creditor.

2

This was

known

as the

executive

procedure

and

is

the

parent

of

the

practice

prevailing

today in

France,

Italy,

Germany,

and elsewhere

which

gives

the

holder

of

a notarial

or other

public

document

evidencing

a liquidated

demand

an 'executory

title,'

that

is,

entities

him to

execution

with-

out

judicial authorization, upon obtaining

a

form of

certificate

from

the

notary

or other

officer

who

authenticated

the

instrument.

43

The

manifestation

of

the

same

idea

in the

English

law is

found

in the

judgment

by

confession

entered

on warrant

of

attorney or

'cognovit

actionem.'4

In

the

third

place,

qualification

of

the

principle

under

discussion

may arise merely

from

the

consideration

that,

in the

inter-

est of

expedition,

certain

kinds of

claims

may well

be

made

the

subject

of

a provisional

ex

parte

judgment

which

does not

prejudice

the

defendant's

rights. This

is

the case

with

the German

demand-

procedure

('Mahnverfahren'), a

derivative of

the

medieval Ger-

manic

law.

Such

procedure

is

applicable

to

certain unconditional

liquidated

demands,

and

permits

the

court,

on

the application

of the

plaintiff

and

without

notice

to

the

defendant

to enter

an

order of

payment

('Zahlungsgebot').

The

latter,

however,

becomes

ineffect-

37

Ley de

enjuiciamiento

civil

§

1663.

38.

Glasson

Pr&is

de

procidure

civile

(2nd

ed.) II

619 et

seq.

39.

Codice

di procedura

civile

§ 924 et seq.

40.

Civilprozessordnung

§

916

et

seq.

41. Engehnann Der

romanisch-kanonische

Prozess 9 ;

Klenfeller

Lehrbuch

des

deutschen

Prozessrechts

525

42.

Engelnmnn

op. cit.

91

43. Kleinfeller

ubi supra;

Glasson

op. cit.

II

239

et seq.;

Mortara

Principii

di

procedura

civile

(4th

ed.)

292

44.

See

Tidd

Practice

(9th ed)

559

et seq.


10/37

PRINCIPLES

OF

CIVIL

PROCEDURE

ive

if the

defendant,

to

whom

it

must be

communicated,

appears

and answers.

4

But

in

none

of

the

cases

mentioned

in

the

preceding

paragraph

are

we dealing

with

a

proceeding

which

is

unilateral

otherwise

than

conditionally.

The

first

and

third

of

these

qualifications

contem-

plate

purely

provisional

measures

against

the absent

defendant

who

is

later

to

have

his

day

in court,

while

the

second

invariably

admits

of

some

circumscribed

right

to

be

heard.

Moreover,

in many

in-

stances,

as

in

those

proceedings

exemplified

by

our

attachment

and

injunction,

his

rights

are

protected

by

the

exaction

of

security

from

the plaintiff. Such

qualifications,

therefore,

with

that

involved

in

the

idea

of

judgment

by

default,

represent

a

concession

which

the

main

principle

is

required

to

make

to the

exigencies

of

practical

justice,

but

in

no w y

actually

impair

the

universality

of

that

principle.

3. PARTY-PRESENTATION

AND

JUDICIAL

INVESTIGATION

Next

to be

noticed

is

the

so-called

'Verhandlungsmaxime'

(lit-

erally,

transaction-maxim ).

This

is

the

principle

which

expresses

the

idea

that

the

scope

and

content

of

the

judicial

controversy

are

to be

defined

by

the

parties

or,

conversely,

that

the

court

is

restricted

to

a consideration

of

what

the

parties

have

put

before

it.

Planck

Lehrbuch

des

deutschen

Civilprozessrechts. 4

6

When

the


dominates,

the

parties

lay

before

the

court

the

material

intended

to

serve

for

the

ascertainment

of the

true

content

of

the

legal

relation

obtaining

between

them,

the selection

of

such

ma-

terial

being

left

to

their

own

discretion.

The

court,

on

its part,

pas-

sively

awaits

the

presentation

of

such

material

and

interferes

only

so

far

as

is

requisite to

see

that

the

activity

of

the

parties

in

the

proceed-

ing

follows

orderly

method

and

does

not

over-step

the

appropriate

limits

set

by

law.

The

proceeding

thus

appears

in

the

form

of

a

transaction

of

the

parties

allowed

and

supervised

by

the

court.

Fitting

Der

Reichs-Civilprozess. '

47

The

so-called

'Verhand-

lungsmaxime'

represents

the

principle

thaf

the

court,

in

its decisions,

is

bound

by

the

material

presented

and

the

claims

advanced

by

the

parties.

When

we

say

that

it

is

bound

by

the

material

presented

we

mean

that

it may

consider

only

those

facts

and

means

of

proving

facts

which

the

parties

themselves

have

invoked

and

must

take

to

be true

allegations remaining

undenied.

When

we

say

that

the

court

is

bound

by

the

claims

advanced,

we

mean

that

it

may

not ,award

to

a

party

what

he

has

not

asked

for

.

45.

Kleinfeller

op.

cit

527

et

seq.

46.

94-195.

47.

(12th

and

13th

ed.)

1 6


11/37

8 ILLINOIS

LAW REVIEW

Kleinfeller, "Lehrbuch

des

deutschen Civilprocessrechts."

4

"The

statute conforms

to

the 'Verhandlungsmaxime'

when

it

assigns to

the

party the

function

of

assembling

the

cause-material

and limits

the

judge to

the

reception

of such

material."

Von Bar, "Civilprozess"

in

von

Holtzendorff s

"Encyklopadie

der

Rechtswissenschaft."

4 9

From

the nature

of the rights effectuated

in

civil procedure

follows, in every

rational system,

the

so-called

"Ver-

handlungsprinzip'

Since

the parties

may

freely dispose

of

their

rights;

it

must

be

left

to

them

to

say what

they shall

adduce by

way

of

attack or defense

Bunsen,

"Lehrbuch

des deutschen

Civilprozessrechts."

50

"The 'Ver-

handlungsmaxime'

has as

its

point of departure

the

idea

that the

par-

ties

are

under

an active

duty to

the

court.

Accordingly,

the parties

must

present

the

controversial

subject-matter

to

the

court,

i. e., make

and

support the

relevant demands and

designate

the

means of proof.

The court is under

no duty

independently

to

investigate

the-facts

of

the

case,

but

takes

them as presented

by the

parties."

Heilfron

Pick,

"Lehrbuch

des Zivilprozessrechts."

5

1

"The 'Ver-

handlungsmaxime'

is the principle

which

requires the

judge

to

receive

and

render

judgment upon

the

cause-material

in

the shape in

which

it is presented

by

the

parties."

Engelmann,

"Der Civilprozess:

Allgemeiner

Theil."

5

. "While

the

'Verhandlungsmaxime,'

on the one hand,

obliges

the judge to consider

all

declarations

that

the parties

would submit

to

his examination,

it

restrains him,

on the

other,

from considering

anything

that the parties

have

not

presented."

Various

facets of

the

principle,

as

thus

appearing, are

denoted

y the

following maxims

of the medizeval

Roman

law

'Nemo judex

sine

actore.'

'Da

mihi

factum,

dabo

tibi jus '

'Judici

fit

probatio.'

'Judex judicet

secundum allegata

et

probata partium.'

'Ne

eat judex ultra petita partium.'

'Ne

procedat judex

ex

officio.'

'Quod

non est in

actis non

est

in

mundo.'

It is manifest

that

'Verhandlungsmaxime,'

whether

we

trans-

late

it as "transaction-maxim"

or

as "trial-maxim,"

is

not

a particu-

larly felicitous

name

for

the

principle in

question.

ts shortcomings

in this

regard

are apparent to the

Germans themselves."

The term

48.

180.

49.

(1882)

I

727.

50.

193.

51. (2nd

ed.)

I 448.

s a

174.

53.

Von Bar

op. cit. 728;

Kleinfeller

loc

cit.; Heilfron and

Pick

loc cit.

54. Engelmann

"Der

Civilprozess:

Allgemeiner

Theil" 171

note

speaks

of the term

as "not

happily

chosen.


12/37

PRINCIPLES

OF CIVIL PROCEDURE

was

invented

by

the

jurist,

Nikolaus

Thaddius

G6nner,

who

is

credited

with

the

identification

of

the conception

here

involved,

and

first

appeared

in

his Handbuch

des

deutschen

gemeinen

Prozesses,

published

in

1801-1803.

55

Speaking

of what

appears to

be

the same

idea

and

recognizing

the

difficulty

of

finding

a shorthand

expression

for

it in

English,

Sir

Frederick

Pollock

calls

it, tentatively,

the

rule

of

neutrality.

56

But

this

seems

scarcely

definite

enough

to

com-

mend

itself

to

adoption.

In the

absence

of

a

more

apposite

name,

we

shall

call

it

here

the

principle

of

party-presentation.

Although,

by

no

means

adequate,

since

it

marks

but

one

side

of the

idea,

this

has

at

least the

virtue

of

being

less blind

than the

German

term

and

less

vague

than

rule

of

neutrality.

The

precise

opposite

of

the principle

just

dealt

with

is

expressed

by

the

'Untersuchungsmaxime'

or

'Inquisitionsmaxime'

( investiga-

tion-maxim ).

Principle

of

investigation

would

be

a sufficiently

correct

translation,

but

in

the interest

of

clarity

and to

bring

out the

contrast

to the

principle

of

party-presentation,

principle

o

judicial

investigation

is

a better

one.

As

will

be

seen,

the

contrast

here

presented

is

analogous

to

that

with

which

English

readers

are

already

familiar

in

the

field

of criminal procedure,

between

the

principle

of

accusation

and the

principle

of

judicial

investigation69

as applied

in

that

field.

Heilfrom

Pick,

Lehrbuch

des

Zivilprozessrechts.

57

The

prin-

ciple

of

judicial

investigation

is

that

principle

which

requires

the

judge

ex

officio

to

search

for

('inquirere')

the

material

or

absolute

truth:

his,

thus,

it makes

the

duty

of

ascertaining

and

considering

facts

which

the

parties

have

not

laid

before

him.

On

the

other

hand,

he

may

not,

without

inquiry,

consider

as

true

what

the

parties

have

agreed

upon

as

the

truth.

Kleinfeler,

Lehrbuch

des

deutschen Zivilprozessrechts.

58

The

principle

of

judicial

investigation

assigns

to

the

judge

the

duty

of

assembling

the

cause-material

through

his

own,

activity.

Bunsen,

Lehrbuch

des

deutschen

Civilprozessrechts.

59

The

prin-

ciple

of

judicial

investigation

forms

the

opposite

of

the

principle

of

55.

ngelrnan

loc.

cit Stintzing

and

Landsberg

Geschichte

der

deutschen

Rechtswissenchaft

III

(2)

147

et

seq.

56.

Expansion

of

the

Common

Law

34.

But

Sir

Frederick's

rule

of

neutrality

seems

to

include

as

well

the

idea of

party-prosecution,

hereafter

to be

considered.

Ibid. 32.

56a.

The

use

of

the

term judicial

investigation,

rather

than

investi-

gation,

as

a

rendering

of the

French

'instruction'

in

relation

to

criminal

procedure

and,

thus,

as

characterizing

the

Continental

principle

of

criminal

prosecution,

originated

with

Professor

Wigmore.

57.

2nd

ed.)

I

449.

58.

180.

59

194.


13/37

18

ILLINOIS LAW REVIEW

party-presentation:

it

permits a

free

and independent

exercise

of

the

judicial

activity in the proceeding

between

the parties.

Engelinann, Der

Civilprozess:

Allgemeiner

Theil.

6

The

prin-

ciple

of

judicial

investigation takes as

its point

of

departure

the

thought

that there

stands

over and

above the

parties a benefit

in law

('Rechts-

gut')

to

which

they

are both

subordinated,

that their

declarations,

there-

fore,

are only

a means

of

attaining

this benefit

and that such

attain-

ment

would never come to

pass

if they

were left

free to exercise

their

dispositive power

and thus to

pursue their own

aims

independently.

It

therefore

transforms

the

parties from

subjects of

private law

to objects

of the

general

legal

interest

and its

essence lies

in the fact

that

the

parties

lose the right

of

free use of

their

dispositive power

in favor

of

an augmentation

of the

judicial power. Thus,

on

the

one

hand,

the

declarations

of

the parties

are

considered not

as authoritative

expres-

sions of their

will,

but

as mere

proposals,

while,

on

the

other, the judge

is not

bound

by

these declarations,

but,

contrarywise,

is

entitled

to

do,

in his own

discretion,

what

has not

been willed

by

the

parties.

Planck,

Lehrbuch

des

deutschen

Civilprozessrechts.'

1

Under the

principle

in question,

the

as'ertairiment

of

the true content

of

the legal

relation between the parties

is

accomplished

by

the activity

of the

court. Within the

limits fixed

by law

this activity

is a

discretionary

one,

upon

which the parties,

by means

of prayers

and

motions,

may

exercise

a

supporting,

but not

a determining

influence.

The

proceeding

thus takes

the form

of a judicial

investigation

('inquisition,'

'instruc-

tion').

A

related

conception

requiring

notice in

the present

regard

is that

embodied

in the

so-called

'Dispositionsprinzip'-literally

principle of

disposition, -to

which, for reasons

that

will appear

as

w

proceed,

we

venture

to

apply

the

term principle

o dispositive

election.

This

principle

implies that

the

party

has full control

over

his substantive law

and procedural

rights

involved

in the

cause

and

denotes

his power of free

election

as

to the

exercise

or

non-exercise

of

these rights.

Thus one vested

with a

right

of action is

not com-

pelled to sue:

'Nemo

invitus agere

cogatur';

the

exercise

of

the

right by

means of the

action

is

left to

his unfettered

discretion.

So,

too,

it is for

the defendant

to

say

whether or

not he

will

assert

his

defense or

any part

of

it.6

2

And in

the

domain

of purely procedural

rights, the

taking or

not taking of

the sundry

procedural

steps which

the law

permits

to

the party, at his

option, is in

virtue of this

principle.

As

to the

exact degree

of

relationship which this principle

bears

to that of

party-presentation, opinions

are

not in accord.

One

60

159.

61. I

194 195.

62

Kleinfeller

op. cit.

182 183.


14/37

PRINCIPLES

OF

CIVIL

PROCEDURE

view

considers

the latter

to

be

a

component

of

the

former.

Another

insists upon

their

conceptual

independence.

Thus,

on the

one

hand:

Engelmann

Der

Civilprozess:

Allgemeiner

Theil.

'6 3

The

prin-

ciple

of

dispositive

election

consists

in

this,

namely,

that

the

party

has

the right,

by

means

of

jural

declarations

of will

(immediate

election)

or

by the

doing

or

not

doing

of

procedural

acts

(mediate

election),

to

control

the

legal

relation

in

controversy,

while

the

judge

is

under

the

duty,

so far

as consistent

with

the

aim

of the

judicial

proceeding,

of

heeding

these

dispositive

manifestations

as

declarations

of the

parties'

will

which

are

binding

upon

him

Of

this

principle

of

disposi-

tive

election

the

principle

of

party-presentation

forms

but

one

side

and

that,

as it

is

said,

the

reverse.

While

the

principle

of

dispositive

elec-

tion,

as

its

name

implies,

characterizes

the

acts

of the

parties,

the

prin-

ciple

of

party-presentation

defines

the

scope

of

judicial

action

cor-

responding

to

the

parties'

freedom

to

dispose

of their

rights.

What

this

view

does,

therefore,

is

to deny

to

the

principle

of

party-presentation

the

double

idea,

which

it

involves

according

to

what

seems

to be

the

common

acceptation,

of

(a)

party

activity,

and

b)

judicial

receptivity.

That

double

idea

the

view

in

question

expresses

y

the

principle

of

dispositive election,

confining

the

prin-

ciple

of

party-presentation

to

the

denotation

of

the

second

half,

viz.,

judicial

receptivity.

If

this

position

were

sound,

it

is

obvious

that

some

term

other

than

party-presentation

would

have

to be

sought

as

an

English

equivalent

of

'Verhandlungsmaxime.'

On

the

other

hand:

Kleinfeller

Lehrbuch

des

deutschen

Zivilprozessrechts.

64

The

principle

which

assigns

to

the

parties

the

free

exercise

of dominion

over

their

substantive

law

rights

is known

as

the

'principle

of

disposi-

tive

election.'

This

principle

is

not

to

be

confused

with

that

of party-

representation.

The

principle

of

dispositive

election

defines

the

range

of

action

in

assembling

the

cause-material;

the

principle

of

party-

presentation,

on

the

contrary,

determines

the

subject

and

method

of

such

action.

The

principle

of

party-presentation

is

the

means

which

renders

possible

the

parties'

exercise

of

dispositive

power,

but

it

does

not

give

the

power

itself.

There

are

varieties

of

procedure

where,

in

spite

of

the

recognition

of

the

principle

of

party-presentation,

the

par-

ties

are

in whole

or

in

part

denied

the

free

exercise

of

the

dispositive

power,

where,

thus,

the

controlling

principle

is

the

opposite

of

the

principle

of

dispositive

election,

the

principle

of

officiality

('Offizial-

prinzip').

The

principle

of

dispositive

election

grants

the

possibility

of

exercising

dispositive

power

over

both

substantive

and

procedural

rights

63

159

171.

64

182


15/37

18

ILLINOIS

LAW

REVIEW

And

again:

Bunsen,

Lehrbuch

des

deutschen Civilprozessrechts.

5

With

the

principle

of party-presentation

the principle

of

dispositive

election

has

per se

nothing to

do.

The second

view

commends

itself as

the better.

To treat

the


as a principle

relating primarily

to

the

scope

of

judicial

action is, for one

thing,

at

variance

with

its etymological

reference

to a supervised

transaction

of the parties.

Moreover,

as

the

conception

exhibits

the

judge

in

a

passive, the parties

in

an

active

r6le,

it is

the

function

of

the parties

rather

than

that

of

the

judge

which

ought here

to

be stressed.

In

a sense

it is

true, as

Engelmann

maintains,

that

the 'Verhandlungsmaxime'

is

included

within

the

principle

of dispositive

election,

but it

is not

true

in

the

sense

for

which

he contends. It

is

true only

to the

extent

that

the

for-

mer

would be

non-6xistent

without the

latter.

The real

state

of

the

case

appears

to

be that

indicated

by Kleinfeller.

It is

the principle

of

dispositive

election

which gives the

party

power

to

do or

not do

a

given

procedural

act;

it is the


which

enables

him

to

exercise,

in the judicial proceeding,

the

power thus conferred

upon

him.

7

The

exercise, under

the 'Verhandlungsmaxime,'

is thus

always within

the

limits assigned

by the

principle

of elective

dis-

position.

For

which reasons, our

translation

of

'Verhandlungs-

maxime'

as

principle of

party-presentation

may be

left undis-

turbed.

As to whether

or not there

has

been recognized

a conception

precisely

antithetical

to

that of

dispositive

election, the

case

is not

dear.

If

there is,

it is the

one expressed

by the

so-called

principle

of

officiality ('Offizialprinzip'). Kleinfeller,

as

noted

above, opposes

the

two.

Later he says:

The principle

of

officiality

is that prin-

ciple

which

deprives the

parties

of their

power

over the

subject-

matter

of the

proceeding,

so that

the

official

duty

of

the

judge

in-

cludes nbt only

application

of

the law,

but

also

the scope-determina-

tion of the

cause-material.

The

principle

of

officiality thus

is

char-

acteristic

of

a proceeding

whose subject-matter,

even

outside

the

cause,

is not

within

the

dispositive

power

of the

parties.

As

the

dominant

principle, it

may

lend to a civil

proceeding the

properties

of an

official

proceeding, similar to

a

criminal

cause,

as

[-by the

German

law] in

matrimonial

causes,

guardianship

matters,

affilia-

65

266.

66. See

Planek s

definition,

before

quoted.

67

Kleinfeller

loc. cit.


16/37

PRINCIPLES

OF CIVIL

PROCEDURE

tion proceedings

and proceedings

to cancel

a

declaration

of

death.

'

The

difficulty

presented,

however,

is

that,

as

thus

defined,

the prin-

ciple

in

question

is simply

the principle

of

judicial

investigation

as

applied

to

a

situation

where

the dispositive

power

of the

parties

is

lacldng

even

outside

the

cause :

it is

not

easy

to see

in

it

an exact

correlative

of

the

principle

of

dispositive

election.

For

other

authors,

indeed,

principle

of

officiality

is

merely

an

alternate

means

of designating

the principle

of

judicial

investigation.

6 9

The

principle

of

party-presentation

(effectuating,

as

it does,

the

principle

of dispositive

election)

has, in

civil procedure,

enjoyed

almost

uninterrupted

dominance

from

the beginning.

It

character-

ized

the Roman

system

in

all

its

three

stages,

and,

to

the fullest

extent,

the primitive

Germanic

procedure,

in

which

the

court

exer-

cised

the minimum

of

judicial

function.

It

entered

into the

various

systems

arising

from

the

fusion

of Germanic

and

Roman

elements,

and,

subject

to more

or

less

qualification,

is

paramount

in

all

civil

judicatures

of

the present

day.

70

The

only

example

of

a civil

pro-

cedure

wherein

the opposite

principle,

that of

judicial

investigation,

has been

preponderant

occurs

in the

Prussian

legislation

of

the

late

1700s,

begun

under

Frederick

the

Great.

Inspired

in considerable

68.

Op.

cit.

184-185.

69.

E. g.

Stein

Das

Civilprozessrecht

in

Birkmeyer s

Encyklopidie

der

Rechtswissenschaft'

1180;

Heilfron

and Pick

Lehrbuch

des Zivilprozess-

rechts

(2nd

ed.) 449, note

2a; Kisch

Deutsches

Zivilprozessrecht

I

1 5

70.

Germnany:

See

e.

g.

Fitting

Der

Reichs-Civilprozess

(12th

and

13th

ed.)

106;

Planck

Lehrbuch

des

deutschen

Civilprozessrechts

I 198;

Heilfron

and

Pick

op.

cit.

I 449.

France:

Notre

procidure

civile est

d'abord

trop

abandonnde

aux

parties,

i

leurs

avou6s

et avocats

on dit

que

les

parties

sont

maitresses

du

procs,

donc

de

la

proc6dure,

que

c'est

a elles

5 agir

et diriger

leur

proeds,

qu'elles

disposent

de

leurs

droits

et

par

suite

de la

procedure

qui

permet

de

les

faire

reconnaitre

et

respecter,

que le

juge

n'a

d'autre

function

que de

statuer

quand

'affaire

lui

sera soumise:

on

en

arrive

ainsi

a admettre

que

le

r6le

du juge

est jusq'au

jugement

at peu

pres

passif.

Tissier

R61e

sociale

de

la

proc6dure

civile

in Les

methodes

juridiques

120.

See,

also,

by

the

same

author:

Le

centenaire

du

code

de

proc6dure,

in

Revue

trimestrielle

de droit

civil

V

647.

Italy:

The

sphere

to which

a judicial

pronouncement

may

extend

is

determined

absolutely

by

the

demands

of

the

parties.

Moreover,

the

judge

should

not

ex

officio

seek

the

proof

of

the

facts, nor

guide the

work

of

the

parties

in

that search.

Mortara

Principii

di

procedura

civile

(4th

ed.)

31,

35.

Sweden:

If,

in the

ordinary

procedure,

the so-called

'principle

of party-

presentation'

('f~rhandlingsmaxime')

is

not

everywhere

a rule of

rigid

appli-

catiqn,

yet

it

predominates

to so

essential

a

degree

that it may

be

said

to

be

one

of

the

bases

of

procedure

in

civil

causes.

rooinm

Allmanna

civil-

processen

in Nordisk

retsencyklopxdi

IV

(2) 46.

Denmark

and

Norway:

.

A

second

basic

principle

is

that

of

party-presentation

('Forhandlingsmaxime').

The

parties

themselves,

in

all

essentials-for

no

guidance

from

the

judge

is

here

to

be counted

upon

or

given-must

set

forth

their claims

and

the

points

of

fact

which

support

them,

must

themselves

select

and

assemble

the

proofs.

Ipsen

Den

danske

og

norske

proces

in

Nordisk

retsencyklopodi

IV

1)

38.


17/37

8

ILLINOIS

L W

REVIEW

measure

-by Frederick's

obsession

that the

lawyers were to blame

for

the

unsatisfactory condition

of

civil

justice, the system which

was evolved

sought

to

minimize

their

influence

by

enlarging

the

functions

of the

court.

Having

its germ

in a provisional

code

adopted in

1747

for

Pomerania, which,

as

it is said,

anciently

was

called

'terra litigiosa',

1

1 the new scheme

was made general

law

in 1781 and,

finally, after

the accession

of Frederick

William II,

given

perfected

form

by the

General

Judicial Ordinance

('Alige-

meine Gerichtsordnung')

of

1793-5. In

this system,

the

plead-

ings of

the

parties

were

formulated,

under

the

supervision

of

the

court,

by subordinate

judicial officials

known

as

court

commission-

ers

('Justiz-Kommissare') who

also

appeared

for the

parties

at

the

taking of

proof. Representation

by advocate

was

confined to the

argument

(in writing) of

the questions of

law upon which

the

case

turned.

Thus

the

assembling

of the cause-material

was under

the

control

of

the court. The

change

in

fundamental principle

is

point-

edly

expressed

in

the

Ordinance.

While

the

parties are

required to

present

the facts

according

to the best

of their knowledge,

it is the

right and

duty of the

judge to be assured

of the

actual

facts of

the

case

and

to make personal

investigation

to that

end. One whose

allegation

is denied by his adversary is

to

acquaint

th

court with

the

means

whereby

the truth of the

disputed

point may be

dis-

cerned;

the judge, however, is

not

bound by these means,

but

has

the

right

and duty to

employ,

in

the

search

for

the truth, other means

appearing from

their statements

or

the connexity of their

proceed-

ings,

even

without the

express request

of the

parties.

7 2

This

sys-

tem remained

intact only for

forty years, when

it

began

to

succumb

under adverse

criticism.

It was supplanted

by

legislation

of 1833

and

1846,

re-intr6ducing in

effect

the

principle

of

party-presentation. 3

The

experiment

was

a

remarkable

one

and

one

whose failure makes

evident

a fact which

zeal

for

procedural

reform is,

even

with us,

sometimes

disposed to

obscure, namely,

that the

interesting

striving

of two

contending

parties

is,

in the long

run, an

infinitely better

agency

for

the

ascertainment

of truth

than

any

species

of pater-

nalistic

inquiry.

Anglo-American

civil procedure,

naturally,

conforms to the

principle

of

party-presentation.

The

-battles of

pleaders which

71.

A summary

view of the

King s plan

for the

regulation

of judicial

proceedings

by

M.

Formay,

Perpetual

Secretary

to

the Royal Academy

of

Sciences and

Belles

Lettres at

Berlin, in

The

Frederician

Code'

p. vi

(Edinburgh,

1761).

72

Schwarz

Vierhundert

Jahre

deutscher Civilprozess-Gesetzgebung

479-528.

Engelmatn

Der

romanisch-kanonische

Prozess etc..

203 et

seq.

73

Engelsann

op.

cit. 207 209.

But

see Schwartz

op. cit. 576

et seq.


18/37

PRINCIPLES

OF

CIVIL

PROCEDURE

were

fought

for six

centuries before our lady the Common Law at

Westminster,

says

Sir Frederick

Pollock,

were

true to

an

older

tradition,

and

the

tradition

is

still alive

under

all

the

changes

of

outward

form.

'The

rule

that

the

court

is

not

to

dictate

to

the

parties

how

they should

frame their

case

is one

that

ought always

to

be

preserved.

But

that

rule

is,

of

course,

subject

to

this

modifica-

tion and

limitation,

that

the

parties

must

not

offend

against

the

rules

of pleading

which

have

been

laid

down

by

the

law.'

74

Even

those

rules

are

not

generally

enforced

by

the

court,

except

on the

application

of

a

party.

Pleaders

may

let

a

cause

go

to

issue

on

demurrable

pleadings

if

they

choose,

and

there

are,

or

under

the

old

practice

were,

many

reasons

that

might

make

such

a choice

pru-

dent.

According

to the immemorial

custom

of

Germanic

procedure,

the court

will

have

nothing to

do

with making

inquiries

to find

out

things

for

itself.

It is

not

there

to

inquire,

or

to

do

any-

thing

on

its

own motion,

but

to hear

and

determine

between

parties

according

to

the

proofs which

the

parties

can bring

forward.

Outside

the

bounds

of

manifest

public

knowledge,

the court

knows

nothing

but

what

is properly

set

before

it

by

the parties

and,

except

for

quite recent

statutory

powers

which

in England

are

not

much

used,

has

no

means

of

informing

itself.

' 75

And

what was

true

of

the

common

law

court

was

true,

although

in lesser

degree

and in

less

spectacular

form,

of the

court

of

chancery,

from

the time

it

became

an

organized

tribunal.

In saying

this, we

do

not

overlook

Sir

Frederick's

observation

that

our

equity

procedure

.

is

in

essence

officious;

it represents

(though

in modem

times one

cannot

say

that

it

actually

has

been) an

active

inquiry

by

the

court,

aimed

at

extracting

the truth

of

the

matter

in

the court's

own

way.

'

7

Unquestionably, as

compared

with

those

of the

common

law,

its

methods,

in

one

sense, represented

an

inquiry,

but

it was

an

inquiry

whose

scope was determined

and whose

material,

in

general,.

was

sup-

plied

by

the

party:

it

was

not

such

an

inquiry

as

is implied

in

the

principle

of judicial

investigation.

Whatever

of investigative

char-

acter

manifested

itself

in the chancery

procedure

was

borrowed

from

the

canon

procedure,

and

that

the civil

procedure

of

the canon

law

at

all times

yielded

first

place

to

the principle

of

party-presentation

can

admit

of

no doubt.

7T

In

fact, the

principle

of

party-presentation

has been spoken

of

as

the canker

of

the

canon procedure.

s

The

74

Bowen

L.

J

in

Knowles

v

Roberts

1888)

38 Ch.

Div.

263,

270.

75.

Expansion of

the Common Law

33-34.

76. Ibid.

5

77 See

ndwnn ' Die Beweislehre

21-.

78

Brieglieb

Einleitung

in

die

Theorie

der

summarische

Prozess

§

13

ff

cited

by

Wieding

Der

justinianeische

Libeltprozess

706.


19/37

18

ILLINOIS

LAW REVIEW

practice

of

the

chancery

court

taking

evidence

of

its

own motion

to

inform

the

conscience

of

the

judge

7

9

does not appear

to have

ever

been

other

than an

exceptional one

0

and should no

more

be

deemed

indicative of the

general

principle

than

the

right of

a

com-

mon law judge

to

call

a witness of

his own motion.

It would have

been strange,

indeed,

if chancery

procedure,

the joint product

of

canon

and common

law,

had elected

to follow as

its governing prin

ciple

one

which was the

governing principle

of

neither

of its

con-

geners. But

any

question

here

existing can

relate only

to

the

very

earliest period

of the court of

chancery,

for Sir

Frederick,

himself,

says

that what he

considers

as

originally

the

ex officio

functions of

the

court

were

already handed over to

the parties

when equity

procedure

became settled,

and

the

procedure, though

differing much

in

form

from that of the

common

law courts,

was in

substance no

less

contentious.

8

'

Nowhere,

either

at common

law

or in

chancery,

does the prin-

ciple of

party-presentation

operate more

conspicuously

than in

the

field of

proof.

The

apportionment

of

the task of producing

evi-

dence

is

one of the

most

characteristic

features

of the

Anglo-Ameri-

can

system.

It is

placed wholly

upon

the parties

to

the

litigation;

it

is

not required

or

expected

of the

judge.1

8

2

But, as the

principle

of party-presentation

is nowhere

an

absolute one, so

we

meet

in our

law

with certain

recognitions of

its opposite, the

principle of judicial

investigation. Precisely

in

the

matter

of

proof

is such a one, for

it

is

a

long-established

rule

with us that the judge

may

call a

witness

not

called

y

the parties

without

derogating

from the

gen-

eral principle

that the

risk

and

burden

of producing

evidence

is

upon the

parties

themselves.

8

Down

to very recent

times the risk

and

burden,

in the

matter of

allegation,

also

rested upon

the parties,

and upon the

parties

exclusively.

While the court, without

objec-

tion

from the other

side, could

always

turn

away

a plaintiff

whose

allegations disclosed

a

case

not within

its

jurisdiction,

8

'

it could deal

no

further with

the allegations

sua

sponte.

Any

change in

the

allegations,

as

originally

put

forward,

had to come

about by

action

of the

parties.

5

But, under the

reformed

procedure,

both

in

a

79

Pollock

op.

cit.

74.

80.

See

Spence Equitable

Jurisdiction

of

the Court

of

Chancery

I

380 381.

81. Pollock

loc

cit.

82.

Wigmore

Evidence

IV

§

2483.

83. Ibid.

§ 2484.

84 Hill

v Moors

224

Mass.

163.

85.

THE FORMATIVE PRINCIPLES OF CIVIL PROCEDURE

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