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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)
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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.
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18
ILLINOIS
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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.
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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.
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18 ILLINOIS LAW
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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.
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PRINCIPLES
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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.
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ILLINOIS
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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.
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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..
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ILLINOIS
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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.
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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
'Verhandlungsmaxime'
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
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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.
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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.
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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.
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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
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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
'Verhandlungsmaxime'
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
'Verhandlungsmaxime'
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.
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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.
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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.
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PRINCIPLES
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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.
8/18/2019 THE FORMATIVE PRINCIPLES OF CIVIL PROCEDURE
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.