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the possibilities of a revision of the civil procedure of the people upon the subject embraced in the of this State, itself an empire, a brief historical statement of the growth and development of procedure in the tribunals of various nations may not be without interest, and may aid in comprehending the great principles which underlie every well-constructed system of procedure.

"The history of law is a history of civilization." Legislation is a mirror of the manners of the people, and by means of it, and of judicial practice and customs, the social, commercial and political development of communities may be traced with reasonable precision. Mr. Tidd, in his great work on English practice, says: "The practice of the court, by which the proceedings in an action are governed, is founded on ancient and immemorial usage (which may not improperly be termed the common law of practice), regulated from time to time by rules, orders, statutes and judicial decisions. Practice is the law of the court, and as such is a part of the law of the land. As questions arise respecting the regularity of the proceedings, the courts are called upon to settle by judicial decisions the course of their own practice, or to fix the construction of the rules or statutes which have been made respecting it."

Modern law is so largely of a prescriptive character, that it is difficult to understand it without examining the sources of law; but these sources are singularly obscure, and history affords only meagre materials, prior to the period of written law, for the determination of the character of judicial procedure. The legal customs which existed anterior to the period of written law, or written history, can only be conjectured by the earliest laws, which may be considered as reflecting and embodying the existing customs. The Hindoo Manu, Confucius, Lycurgus, Solon, and probably the Roman Decemvirs and King Alfred, were not especially legislators, and their work in law reform can hardly be dignified by the term of statutory enactment; but they performed the important service of collecting, compiling, adapting and promulgating customs recognized by the people; and they performed another important service of substituting written laws for loose, oral tradition, and the communication of a permanent public sanction to regulations previously accepted only as heavenly mandates or ineveterate habits. "The change marks a phase when old simplicity and innovating necessities are beginning to combine their action, and to crystallize into fixed shapes, leaving to a much later period the conversion of the remaining and ever-fluctuating mass into similar definiteness." Judging from our own experience, we may fairly conclude that a law at any given period in history reflects in some measure, if not entirely, the customs

legislation. The earliest known laws seem clearly to embody existing customs, and cannot be considered as statements of new principles or policies then for the first time promulgated. History is especially meagre concerning the everyday affairs of life, and the various social and business problems which make for the happiness or prosperity of the people.

"History illustrate the fortunes of the great," but the annals of the common people are often unwritten. Battles and seiges, conquests and changes of dynasty attract and engross the attention of the historian, while the manners and customs and the daily life of the people seem to be overlooked. In our study of the development of procedure, the information afforded us by the ordinary historical works has been very unsatisfactory, and we have often been obliged to resort to original sources for material upon which to form our judgment of the reason and course of judicial procedure. We have been so long familiar with written law, that it is difficult for us to comprehend a state of society in which law and judicial decision were the expression of the wisdom, or perhaps the caprice, of the ruler or magistrate, who sometimes decided controversies without regard to settled principles of law, and untrammeled by precedents.

In studying early procedure, we can only conjecin the earliest laws or codes. ture what it probably was by what we find written From this it is quite

apparent that in the early stages of society the State, as we now understand it, was only an umpire, or magistrates were a council of umpires, who only interested themselves to see fair play and to settle a controversy, sometimes of a physical character, after it had actually begun. In this stage men took the law into their own hands, and sought redress for their grievances in their own way, and the most the State could do, from its imperfect conception of its powers, was to regulate and control this attempted private settlement of grievances. The State did not exert its judicial power to aid in commencing a suit, but undertook to regulate and control one already begun. It did not assume at first active jurisdiction, but "in later periods of development the tribunals took the lands or case of the defendant into their own hands, using their power freely to coerce him into submission, and when finally the courts assumed control of judicial proceedings, and required all litigants to submit their controversies to the arbitrament of the court, there was a change from contention in arms to a contention in a judicial tribunal."

It seems quite clear that the earliest method of disposing of controversies was by aribitration. This form of judicial procedure was afterwards made compulsory, and even in the early colonial days in

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our own State, arbitration as a method of settling disputes was imposed upon the colony by law; and from an examination of the forms of procedure in in various nations of antiquity, it would seem that the judges were simply arbitrators; and the earliest written law indicates that civil jurisdiction sprang out of arbitration. As Mr. Hunter says in his work on Roman law, the coercive authority of the State grew out of the voluntary submission of its subjects, and is the keynote to the history of civil procedure in Rome." Early judicial decisions probably did no more than declare the right between contending parties, and the tribunals did not seem to possess any machinery for enforcing obedience to their judgments or degrees.

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In studying the development of judicial procedure among the ancient nations, we observe considerable similarity in matters of detail, but quite marked differences in the structure of tribunals, and in the methods of administering justice. It was a striking characteristic of the northern nations of Europe that the administration of justice was of a popular character, and was devolved upon the order of freemen. The people either composed or were largely represented in the judicial tribunals; while under the Romans, and among the Asiatic nations whose governments were of a patriarchal or despotic character, popular representation in the administration of justice was practically unknown. The king himself was supposed to be the fountain and source of all wisdom and justice, and he either disposed of legal controversies in person, or delegated his authority to individual judges or magistrates, and defined their powers and jurisdiction.

From these so-called barbarian or Gothic nations

Rollin says that the Egyptians were the first people to rightly understand the rules of government. Early Egyptian history shows the creation of a judicial tribunal composed of thirty judges selected out of the principal cities, to form a body or assembly for judging the whole kingdom. The scrupulous care manifested by the ancient Egyptians in the administration of justice is shown by a peculiar provision which required all proceedings to be in writing, because it was thought that the judgments of men might be affected by the eloquence of advocates, which would be less influential if everything were reduced to writing.

came the popular administration of justice, which, long ago, developed into the trial by jury; but this tribunal of the people was, at first, quite different

from its modern successor.

Among the Hebrews judicial procedure was characterized by great simplicity and promptitude. In early times the patriarch of each family was its judge. Afterwards the elders of a family, tribe or city were its judges by natural right. In the wilderness Moses at first was sole judge and heard all causes, both great and small, but the immense labor thus imposed upon him prompted Jethro, his father-in-law, to suggest the appointment of judges to dispose of small matters, leaving larger controversies to be decided by Moses himself. These judges were to be "able men, such as fear God; men of truth, hating covetousness," and their jurisdiction was divided and distributed so that they became the "rulers of thousands, of hundreds, of fifties and of tens;" these numbers representing families, so that one judge would be the ruler over ten families, another over fifty, and so on. After the Hebrews were established in Canaan, local magistrates were appointed for every city and village. Samuel held a central court at Ramah, and also went from year to year in circuit to different cities and "judged Israel in all those places." Like the early Romans, the Hebrews had no class corresponding to our lawyers, but the parties appeared before the judge in person with their witnesses, and presented and pleaded their own cause.

The early Greeks undertook to popularize the administration of justice by the creation of an unwieldy tribunal called a dicastery," and in later times the Saxon county court brought in the neighbors or freemen of the county and disposed of controversies in a rude and somewhat turbulent manner. From all these methods, whether the tribunal was composed of an individual or a limited number of persons, or of the general popular assemblies of Saxons or Greeks, or the Roman prætor or judex, we have derived, by slow and gradual growth and combination, the system of procedure which seems to us, in the main, so simple and efficacious. While we are unable to state with accuracy, in all cases, the special methods of procedure, we have been able to glean sufficient information to enable us to give a fairly clear view of the structure of tribunals and the methods of procedure

The institutes of the Hindu law, or the ordinances of Manu, which were translated by Sir William Jones, comprise a code or system of laws relating to the rights and civil duties of the people, and regulating their public and private conduct, Chapter eight, "On judicature; and on law, private and criminal," contains 420 sections, and includes not only positive law, but rules of procedure. The king was the supreme judge, and he had power to designate subordinate judges and assessors, to compose a tribunal, who heard and decided controversies. This code contains simple rules regulating the practice in the trial of ordinary actions; the

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number and competency of witnesses; the sufficiency of evidence; the methods of procedure in court, and the judgment and its enforcement. There seems to have been no laws or attorneys, for the code requires the judge to examine the witnesses and the parties. This code seems to contain a written statement of the customary law of the Hindus, and was probably compiled during the ninth century B. C.

The statement of Ilindu law in the form of in

stitutes had the usual effect. The attention of the courts was directed to construing and applying the institutes in the administration of justice, and it seems that the decisions of the courts, and probably the opinions of learned men, called upon by the rulers to construe the law, created a new body of law, similar to the constitutions and digests following the Institutes of Justinian, in the later Roman jurisprudence. During the administration of Warren Hastings as Governor-General of India, a translation of these digests, decisions and opinions was prepared, and was called the "Gentoo Code." This was prior to the translation of the institutes by Sir William Jones. Afterwards a further digest was prepared under the authority of the English government, compiled from various digests and

from commentaries on the institutes of law.

From

all these sources there grew up a quite complete system of the administration of justice, and the Hindu law books disclose a procedure which greatly resembles that of the present day. The complainant presented his grievance to the tribunal, who heard what he had to say, and if it appeared reasonable, a summons was either delivered to the complainant, or an officer was deputed for the purpose of citing the adverse party. The person summoned was brought into court, and stood beside the complainant before the magistrate. Each party then stated his case, the complainant beginning, and their stories were written down in their presence. As the practice developed, attorneys were allowed. The law of evidence is quite fully illustrated, and also the method of examining witnesses.

Mr. Finlason, in his introduction to "Reeves' History of English Law," points out that in India from very early times there had existed a system of natural arbitration by the neighbors, which probably formed in that country the first attempt at anything like an administration of justice, and which substantially resembles the old Saxon county court, being assemblies of the principal inhabitants, who took cognizance of the disputes which arose among them, and made the best settlements they could. This was a system suited to an early state of society, and which necessarily precedes a more regular administration of justice. But, as the author further observes, when judges were appointed, however

inferior, yet acting in the regular discharge of an official duty, under the authority of government, and under some sense of responsibility, the great superiority of this approach of a regular judicature to a settled system of administration of justice, was so apparent to. the people that their ancient native tribunals were soon discarded, and the new order of judges, notwithstanding all their imperfections, were appealed to in preference. There were at first no advocates or solicitors. In ordinary questions, the people generally appealed to the chief of the place, who took upon himself the office of justice of the peace, and accommodated the matter between the parties. When he thought more fit, he sent them before their local magistrates or arbitrators, whom he appointed, and if the litigants refused to abide the result of the arbitration, the magistrates disposed of the matter without appeal.

Among the Greeks the lack of judicial system was very remarkable. While they gave great attention to politics, and political and governmental questions, they seem to have had no welldefined system of law or judicial procedure. All the people composed the court, and every trial was first heard before a popular assembly. Precedents had little weight, and every decision disposed of the law and the facts in the particular case, and each case was tried strictly upon its own merits, without much regard to former decisions in similar cases.

Sir William Jones, in the "Prefatory Discourse to his translation of the speeches of Isæus, gives an account of the progress of a law suit among the ancient Greeks. According to this account, when a citizen thought himself wronged, and resolved to seek redress in a court of justice, his first step was to prefer his plaint, and to denounce the name of his adversary to the sitting magistrate, who examined. the complainant, and if he thought the action maintainable, permitted him to summon the defendant to appear at a certain day. Where, a more expeditious remedy was required the plaintiff was allowed to attach the person complained against and carry him directly before the court; but in most cases of civil injuries, the first process was by citation or summons, and officers called summoners were constantly at hand.

When both parties were confronted before the magistrate, he proceeded to a strict examination of them, which was called the interrogation, and the parties litigant were permitted to interrogate one another, and their answers were set down in writing and might be given in evidence against them at the trial; and if the archou thought it necessary he might adjourn the examination. prescribed the proper form of the action and admitted" the cause into court, after which pre

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liminaries the party complaining put in his declaration or bill setting forth his cause of action, which, with the answer, were delivered orally before the tribunal, and then reduced to writing. Each party was obliged to deposit a certain sum as a pledge of prosecuting his claim or defense. The limitation of action was, in general, five years. After the issue was framed, the archon cast lots for the judges or persons who were to decide the questions of fact. This tribunal, called a "dicastery," answering substantially to our modern jury, except as to numbers, was usually composed of 500 men, but sometimes, in very important cases, there were as many as 2,000, and a majority of votes decided the suit. The court was held in the open air, surrounded with a rope, and attended by officers who kept off the crowd. The archon presided and introduced the cause.

In addressing the court, the plaintiff, or his advocate, began, and the defendant, or his advocate, closed the argument, and there was only one speech for each party or issue. The advocates seem to have had the privilege of "summing up," or making comments upon the evidence during the Er progress of the trial. At the close of the evidence and the arguments, a vote was taken by casting i pellets or beans into an urn, a separate urn being provided for each party or distinct issue, and the presiding archon counted the pellets and announced

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Professor Holmes, of the University of Virginia, an acute student and critic of Greek life and manners, writing in an early number of the "Forum" (1875), remarks that "it constituted no part of the mission of Greece to provide a science of jurisprudence. It was its mission to make multitudinous experiments in government for the education of humanity in political organization, and for the discipline of men in the arts of freedom. This is of itself a grand contribution to social progress, and a sufficient service to be rendered by any single race.” The energy and enthusiasm with which the Greeks discharged this duty were not the most favorable qualifications for the discovery and establishment of the unswerving principles and precise regulations which law requires. Their types of government and their methods of litigation were equally adverse to the production of such a result. The city was the State. The whole community of fully enfranchised citizens were statesmen. The people in public assemblies constituted an absolutely sovereign body. The whole conduct of litigation, the whole order of public justice among the most litigious of ancient nations displays a perverse indifference to precedent, enactment, and often to right, in their multitudinous and cumbersome dicasteries. Legal customs, legal provisions, and statutory determinations were abundant, but received little respect, and less observance, from the heated declamation of litigation, from the tricky ingenuity of advocates, or from the factious temper of a mob judiciary. Forensic contention at Athens assimilated itself in

Mr. Grote, in his "History of Greece," commenting on the dicasteries, says that, "taking their general working, we shall find that they are nothing but jury trial applied on a scale broad, systematic, unaided and uncontrolled, beyond all other historical experience, and that they, therefore, exhibit in exaggerated proportions both the excellences and defects characteristic of the jury system, as compared with decision by trained and professional judges." To the genius of Pericles the Greeks owed the great reform in the judicial system which resulted in reducing the power of the magistrates and the organization of the dicastery. Mr. Grote observes that "what Pericles really did, was to sever for the first time from the administrative competence of the magistrates that judicial authority which had originally gone along with it. The great men who had been accustomed to hold these offices were lowered both in influence and authority; while on the other hand, a new life, habit, and sense of power sprang up among the poorer citizens. A plaintiff having cause of civil action, or an accuser invoking punishment against citizens guilty of injury, either to himself or to the State, had still to address himself to one or other of the archons, but it was only with a view of ultimately arriving before the dicastery, by whom the cause was to be tried."

most respects to a political debate. The appeal was made, not mainly to the law, not very earnestly to the facts, but to the passions, the whims, and the momentary necessities of the judicial crowd. The whole body of citizens formed the court, and it continued to do so in theory, though inconveniences in practice, and a multiplication of business, compelled their later distribution into several dicasteries. The judgments of this body were rendered upon the law and the facts in each case, or, as Sir William Jones observes, "every case was generally decided by a kind of political law, to which no precedents were applied, and from which no rules

were deduced."

"The inestimable social service of providing a science of jurisprudence was reserved to be the great labor and the crowning glory of the Romans." How effectually, how splendidly, how supremely, and with what incessant effort and repeated transformation they accomplished this lofty duty, is apparent from a careful study of the consummate system which we observe in all its grandeur ranging over a thousand years from the Twelve Tables to Justinian.

Sir Henry S. Maine opens his "Ancient Law"

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with the remark that "the most celebrated system of jurisprudence known to the world begins, as it ends, with a code." In theory the Roman system descended from the Twelve Tables, and the principles embodied in them were considered the source of all later Roman law. These tables were the most famous specimen of ancient codes, and their promulgation, about 450 B. C. marks an important epoch in the progress of Roman civilization. The principles of substantive law, as well as the rules of practice stated in them, are probably merely the enunciation in words of the existing customs of the Roman people. Those customs, thus crystalized in written law, have, in many instances, been preserved, and we find them, after nearly twenty-four centuries, stated in modern law in almost, if not quite, the identical language used by the early Roman compilers. The Romans steadfastly maintained the integrity of their judicial system, and firmly resisted all attempts to amalgamate with other systems. Their law readily adjusted itself to the internal changes that were constantly at work in Rome. "It was by a judicious mixture of the permanent or conservative, and the progressive reformatory spirit, that she was enabled to establish and frame laws that in time gave her the empire of

the world."

The absolute sovereignty of the State is so clearly recognized and so freely conceded in modern times, that it is difficult for us to comprehend the condition of society in the early Roman period, when even the authority of the State to bring an alleged wrongdoer before its tribunal was denied. Even at the time of the Twelve Tables the State did not as yet claim to decide civil disputes, and only assumed to furnish arbitrators, to whom controversies might be submitted for decision.

The first three of the Twelve Tables cover the early law of procedure, embracing proceedings prelimiminary to trial, including the commencement of the action, the trial itself and the execution. These ancient actions were of a rude sort, and were not commenced by the service of a written summons, as in later times; but the complainant summoned the defendant before the magistrate, and if he refused to go, the complainant might take him by force, or "by the neck "; afterwards the complainant summoned the defendant, by touching his ear, before the magistrate who had jurisdiction. The magistrate was sort of umpire, whose duty it was to see fair play, and the use of force was sanctioned to bring an alleged wrongdoer before the tribunal, Mr. Hunter, in his work on Roman Law, says that "the development of the subject of procedure in Rome marks three distinct stages.

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time the summons is a private act of the complainant, and disobedience to the summons is not an offense against the law. The whole length that the Twelve Tables go, is to legalize the exercise of force by a complainant to drag an unwilling defendant before the court.

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Second, the Edict of the Prætors. The summons is still the private act of the complainant, but disobedience is made a wrong, and the principle is now established that it is the duty of a citizen to be ready to answer in the courts of justice any complaint brought against him.

"Third, the Imperial Constitutions. The summons is issued on the application of a complainant by officers of a courr of justice. This change was also made the means of giving notice to the person sued, of the wrong alleged to be done by him."

The procedure under these three divisions is in many respects very like the procedure of to-day. Many of the forms and methods adopted and instituted by Justinian are still preserved in our practice.

The early mode of summons "continued down to the golden age of literature, and the classical age of jurisprudence." If he were able, the defendant could resist arrest without exposing himself to any danger of punishment, and the complainant could not use force to take him before the magistrate, unless his refusal to go was in the presence of witnesses. The prætor changed this rule by making it an offense for a person duly summoned to refuse to obey, and a plea to the jurisdiction of the court could be listened to only before the court itself.

It seems that even in this primitive period the defendant sometimes kept out of the way to avoid a summons, and the Twelve Tables provided no remedy for such a case. This was, doubtless, due to the peculiar attitude of the law, which recog nized no litigants until they were actually in court, and invoked the interference of the magistrate. Another reason why a complainant had no remedy against the defendant who kept himself concealed, probably was that the early Roman law did not assume to seize the defendant's property, but only to punish him personally. The prætor introduced execution against property, and inserted in his edict

a notice to the effect that if a defendant concealed himself to evade the summons, he would order his The next step was a goods to be seized and sold. public summons, which, in the reign of Justinian, became an act of public authority, and gave the defendant formal notice of the claim made against him.

By the Twelve Tables a judgment debtor was given thirty days to pay the judgment, and after

that time he could be arrested and taken before

"First, the law of the Twelve Tables. At this the magistrate; and, upon failure to pay the debt,

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