ducing the effect we speak of is, technically expressed, the following; "That after the declaration, the parties must at each stage demur, or plead by way of traverse, or by way of confession and avoidance;" the meaning of which will be best explained, and the working best shewn, by an example.

If A. for instance, were to complain of B., he would set out in writing the grounds of his demand, to which B. would be called upon to reply in one of three ways:-by objecting to the sufficiency in point of law of the facts alleged, (i. e. by demurring); by denying the truth of the complaint, (i. e. pleading by way of traverse); or, admitting its sufficiency and truth, by stating facts, which prevent the circumstances relied upon by A. from having the effect attributed to them, (which is termed pleading by confession and avoidance.) If the first course, that of demurring or objecting to the legal sufficiency of the complaint, is chosen, the objecting party is taken to admit the facts, the dispute becomes altogether a question of law, and judgment is given for him in whose favour that question is decided, without requiring any evidence to circumstances. If, according to the second method of proceeding, B. denies or traverses the charge or any essential part of it, the parties are immediately at issue, and a time is fixed for determining the case by proof. But if, declining both of these methods, the defendant confesses the complaint and alleges a new line of circumstances in answer, as, that after the debt became due it was released to him by A.; then a change takes place in the position of the parties, and A. is called upon in turn to deny the truth or legal competency of the defence, or to allege other facts subversive of the effect of those set out by B.; as, in answer to the defence of a release, that such release was extorted by violence; upon which B. is called upon as before to demur, traverse, or state fresh matter; and thus the disputation proceeds, till either some essential circumstance is affirmed on one side and denied upon the other, or till the parties mutually admitting the assertions of each other, are at issue as to the legal effect of some one of the pleadings; a conjuncture which in most cases very speedily arrives, and cannot indeed be long protracted by the utmost

' Stephen on Pleading, 157.

ingenuity of a disputant.1 Details of circumstances must occasionally be prolix, as we can neither circumscribe their actual combinations, nor ascertain, beforehand and without a knowledge of the evidence, to what extent an allegation is diffuse; but it is quite impossible to wander from the point or to become illogical without immediate exposure, whilst the rule exemplified above prevails. This, however, it is unnecessary to press; as those whose censures we are most anxious to examine admit the merits of the mode we have described, but deny our courts the praise of following it. They mistake the exception for the rule; they know that a great deal of prolixity has crept in; that various anomalies are discernible; that legal forms appear preposterous to those who are ignorant of the history of our courts; and gladly availing themselves of the facilities for imposition afforded by the intricacies of the inquiry, and often possibly deceived themselves, a certain class of writers have thought proper to inform the public that a whole profession is in league against it, resolved on fostering a practice which has not the semblance of a principle to rest on, but is vague, confused, and contradictory throughout. Here, however, they shall speak for themselves, and we trust the reader will pardon the length of the extract in consideration of the weight of the authority.

"What is desirable in the operations of the first stage is, 1st, That the affirmations and negations with respect to the facts should be true; and 2dly, That the facts themselves should be such as really to have the quality ascribed to them. For the first of these purposes, all the securities, which the nature of the case admits of, should be taken, for the veracity of the parties. There is the same sort of reason that the parties should speak truly, as that the witnesses should speak truly. They should speak, therefore, under all the sanctions and penalties of a witness. They cannot, indeed, in many cases, swear to the existence or non-existence of the fact ; which may not have been within their cognizance. But they can always swear to the state of their belief with respect to it. For the second of the above purposes, namely, that it may be known whether the facts affirmed and denied are such as to possess the quality ascribed to them, two things are necessary; the first is, that all in

A departure takes place when, in any pleading, the party deserts the ground that he took in his last antecedent pleading, and resorts to another. This is fatal.

vestitive and devestitive facts, and all acts by which rights are violated, should have been clearly predetermined by the legislature, in other words, that there should be a well-made code; the second is, that the affirmations and denials with respect to them should be made in the presence of somebody capable of telling exactly whether they have the quality ascribed to them or not. The judge is a person with this knowledge, and to him alone can the power of deciding on matters so essential to the result of the inquiry be entrusted.

To have this important part of the business done, then, in the best possible way, it is necessary that the parties should meet in the very first instance in the presence of the judge. A. is asked, upon his oath, to mention the fact which he believes confers upon him or has violated his right. If it is not a fact capable of having that effect, he is told so, and his claim is at an end. If it is a fact capable of having that effect, B. is asked whether he denies it; or whether he affirms another fact, either one of those, which, happening previously, would prevent it from having its imputed effect, or in a civil case one of those which, happening subsequently, would put an end to the right to which the previous fact gave commencement. If he affirmed only a fact which could have neither of these effects, the pretension of B. would be without foundation.

Done in this manner, the clearness, the quickness, and the certainty of the whole proceeding are demonstrated. Remarkable it is, that every one of the rules for doing it in the best possible manner, is departed from by the English law, and that, to the greatest possible extent. No security whatsoever is taken that the parties shall speak the truth; they are left with perfect impunity, aptly by Mr. Bentham denominated the mendacity-licence, to tell as many lies as they please. The legislature has never enumerated and defined the facts which give commencement, or put a period to or violate rights; the subject, therefore, remains in a state of confusion, obscurity, and uncertainty, And, lastly, the parties do not make their affirmations and negations before the judge, who would tell them whether the facts which they allege could or could not have the virtue ascribed to them; they make them in secret, and in writing, each along with his attorney, who has a motive to make them not in the way most conducive to the interests of his client, but in the way most conducive to his own interests and those of his confederates, from the bottom to the top of the profession. First, A., the plaintiff, writes what is called the declaration, an instrument for the most part full of irrelevant absurdity and lies; and this he deposits in an office, where the attorney of B., the defendant, obtains a copy of it, on paying a fee.

Next B., the defendant, meets the declaration of A., by what is called a plea, the form of which is not less absurd than that of the declaration. The plea is written and put into the same office, out of which the attorney of the opposite party obtains a copy of it on similar terms. The plea may be of two sorts; either, 1st, a dilatory plea, as it is called; or, 2dly, a plea to the action. To this plea the plaintiff may make a replication, proceeding through the same process. To the replication the defendant may put in a rejoinder. The plaintiff may answer the rejoinder by a sur-rejoinder. This, again, the defendant may oppose by a rebutter, and the plaintiff may answer him by a sur-rebutter.

All this takes place without being once seen or heard of by the judge; and no sooner has it come before him, than some flaw is perhaps discovered in it, whereupon he quashes the whole, and sends it to be performed again from the beginning."1

Now, in the first place, the reader will have the goodness to observe that demonstration, in this writer's vocabulary, has a very different signification from what it bears in ordinary dis

course.

"Done in this manner," (i. e. with a code anticipating all possible combinations of facts, and a judge acquainted with each one of its provisions and fully competent to an extemporary application of them) "the clearness, the quickness, and the certainty of the whole proceeding are demonstrated!"

And what, we should be glad to know, what scheme or theory may not be proved the best, by assuming that every thing is attained which your opponent denies to be attainable? Fit my balloon, an aeronaut might say, with a machine to raise and lower it at pleasure and a rudder to direct its course, and the facility of travelling in the air is clearly and undeniably made out. Give me a place to stand on, said Archimedes, and I will move the world; but unluckily he could not find one, and the world continues as it was. Why, a code like that supposed and argued from is what even Bentham never dared to hope for! We have been told by him, that all the libraries of the Continent could not furnish a collection of cases equal in variety, in amplitude, in clearness, and instructiveness, to the English Reports. "Nor," adds he, " to the composition of a complete body of law, (in which, saving the Suppl. to the Enc. Brit. Art. Jurisprudence.

1

requisite allowance to be made for human weakness, every imaginable case shall be provided for, and provided for in the best possible manner,) is any thing at present wanting but an arranging hand.” 1

Some lawyers undoubtedly there are with skill and knowledge sufficient to render almost all this store available. Ask one of these if there are precedents enough to decide even a majority of the cases submitted to him; if he is not often driven to equivocal analogies, and often to bare conjecture, or a wavering balance of possible constructions. Every practical lawyer must answer that he is; and yet it is unhesitatingly assumed that no dispute could ever be delayed by doubts as to the legal inference to be drawn from circumstances except by reason of the remissness of the legislature.

Here, however, we are wandering to a topic which may be hereafter the subject of an article, and which it is not necessary to decide on now. Though the system recommended by the Encyclopedist cannot produce the whole of the predicated result unless in co-operation with a perfect code, though under existing circumstances much time must frequently be wasted in settling legal doubts, it is not the less desirable to bring parties to an issue as cheaply and speedily as possible; and, if oral pleading would facilitate the process, it is certainly our duty to adopt it. But before we say one word of its advantages we shall take the liberty of reminding our readers that pleading in the presence of a judge was, in fact, the custom of those ancestors whose wisdom is a by-word for contempt; and that the practice was sedulously adhered to till long experience had made known its imperfections. The parties or their counsel came before the judge exactly as is suggested in the first paragraph of the extract, pursued precisely the same mode of vivâ voce disputation, with the same attention to those rules of logic which are deemed sufficient to make every thing precise, and which are still the foundation of our system. Should authorities be called for, there are enough of them below to establish the truth of the assertion; and, therefore, we are under the necessity of supposing that Mr. Mill was ignorant of the history of our laws; or that he took from thence his beau

Bentham on Codification. 23 Bl. Comm. 293.

Reeve's Hist. Chap. 23. Stephen's Plead. 34.