ADDRESS

OF

JOHN RANDOLPH TUCKER,

President of the Association.

My Brothers of the Bar of Virginia:

It has seemed to me that I cannot better manifest my appreciation of the honor you have conferred upon me, than by an attempt to contribute something to the full consideration of the important question of Reforms in the Civil Procedure of the State.

My own feelings in regard to this subject are such as conduce to candor in its consideration; for while I do not think the present practice is an intolerable grievance, yet I recognize its defects. And while I do not regard the proposed reforms as panaceas for all ills, yet I clearly perceive their value. The disease of which we complain is not mortal, nor the medicine prescribed an absolute and perfect cure.

Let the temper of our minds be adjusted to a fair view of the evils which exist, and of the adequacy of the remedy proposed for their removal. Let us not obstruct change, from a too tenacious devotion to a method which has won the praises of the best judicial minds of the past, nor too readily yield to the charms of novelty in the reforms proposed, the good of which is always more obvious than the occult evils which may be developed in their practical operation. The outcry of ignorance, the result of incapacity or indolence, to make our science easy to be understood and practiced by all, is a demand of the impossible. We will find at last that there is more true science, including intelligence to comprehend and skill to express legal principles, in the broad

and unfenced field of equity pleading than in the cramped and technical formulæ of procedure in the courts of law.

In this Association we must rise to a wide contemplation of the real purposes of all procedure; to a critical and careful comprehension of existing defects, and to a sagacious selection of the best method of pruning and grafting this noble old system, so as to give it a more vigorous vitality and greater efficiency for good. Thus will it bear more abundant fruit, while its beauty and symmetry will not be marred.

The science of Pleading is the science of Statement. It demands qualities, which must belong to the narrator, the biographer, the historian; perspicacity to perceive, and perspicuity to express in natural, logical and orderly arrangement, the essential facts, excluding all non-essentials, to the determination of any question. He who strips from the pivotal issue resulting from these essential facts, the dreary and needless details, will be attractive, logical, convincing. But he who mingles these in in-. discriminate confusion will write books never to be read, and conduct causes which will never be won by him; though they may be, in spite of him.

President Allen once said that Mr. John R. Cooke (a great advocate) so stated his case that it needed no argument; and he rarely made one. The simple narrative of truth is the Logic of Nature, and is the highest art of the Forensic Pleader.

Much and able discussion has been heard as to codification, and I am free to say that it has its proper place with limitations. Where statutes “in pari materia” have filled statute books in irreconcilable confusion, the unification of these in a single formulation; or the prescription of formalities requisite to the validity of business transactions; or the codified settlement of a vexed subject of judicial decisions-as in the enactment of Judge Stanard's view of voluntary settlement in Hunter v. Waitethese are the appropriate functions of a code. But I agree that the attempt to fix by rigid formulation the ethical principles. which underlie judicial decisions, or to attempt to define when definition is either impossible or injurious, because putting shackles on the essential and wise discretion of a judicial mind, is beyond the province of codes, checks the progress and limits the expan

sion of jurisprudence by its restrictions on the intellectual liberty of its ministers.

But I do not see any reason why the procedure of parties in the courts should not be regulated by a code, but great reason why it should be. Nothing would be a greater evil than that the forms of procedure for obtaining justice should be uncertain, perplexing, and subject to the changing moods of judges in the several courts, or at different periods. An historic sketch of civil procedure will not be deemed inappropriate.

The juridical lis, like all natural altercation, must consist in the opposite statements by litigants of their respective pretensions. Each of these will tend, from his standpoint, to mingle in confusion, essentials with non-essentials; and it is the supreme function of judicature to invent a procedure whereby the chaff of needless averment will be driven away, and the grain of needful allegation will be left for adjudication. Each must be fully heard by the other, and both by the judge. Audi utrasque partes is the cardinal maxim of all fair adjudication. Neither party can prosecute or defend, unless each knows the grounds of defence or prosecution of the other, and no judge can reach a just decision unless he is made cognizant of the grounds on which both rest their respective pretensions. How can any system meet these essential requirements, unless the parties set forth their respective grounds of prosecution and defence in open, clear, full and specific allegations?

The methods by which these results have been attained have been various, ranging from the rude, simple and primitive oral contention of suitors, to the refined and often too technical written pleadings of more civilized people.

In the early judicature of the Roman Republic a system of formulæ prevailed, of I which need not particularly speak. They were ordained by the Prætor (the chief justiciary of the Republic) and a specimen of them is given by Mr. Pomeroy (1 Equity Jurisprudence, sect. 3, N. 2), and Mr. Spence (1.Spence Equity 220) has given some account of them.

The specimen referred to bears strong analogy to the original writ in the English procedure. It stated the cause of action, the redress sought, and a direction to the Judex or recuperationes to

give judgment for the Actor (plaintiff), unless Reus (the defendant) showed good cause against the claim. The formula contained the statement of facts by Actor (demonstratio), the redress demanded (intentio), and the judgment to be rendered (condemnatio).

This system grew to be so technical and refined as to cause the Prætor to change it to what became prevalent in the time of Justinian and thereafter.

This Justinian procedure bears strong resemblance to the Common Law procedure, and is worthy of notice.

Actions were in rem, in personam, and mixed. Actor, qui provocaverit ad judicium, stated his claim by intentio or narratio. Reus, defended by responsio, which denied wholly (our general issue), or by exceptio, in which he confessed the narratio, but alleged new matter in excuse or discharge (confession and avoidance). The exceptio might be of matter per quam actio perimitur aut differtur-peremptory (in bar)-or dilatory (in abatement. To this exceptio of Reus, Actor put in replicatio (re-unfolding), and to this in regular sequence came duplicatio (rejoinder), triplicatio (sur-rejoinder), etc., etc. (Justinian Inst. B. 3-4; Mackenzie Rom. Law, Pt. 5, ch. 3-5.)

This system wrought out by a simple and direct method a single, definite and pivotal issue.

But it is curious to note, that in the progress of civilization, the Prætor, as chief justiciary, expanded the procedure and enlarged the remedies of the judicature. Actions were allowed quasi contractus, where Reus ex æquo et bono was bound to do or pay to Actor (our implied assumpsit), or for a surety against his principal, or his co-surety, etc.

Then the Prætor, where no pivotal issue could be made up, decreed according to equity and right, granted interdicts (injunctions), (Justinian, B. 4, Tit. 15.) set aside fraudulent gifts by a debtor in favor of his creditors (Domat, § 1623, et seq.; Mackeldy Rom. Law, § 528); and we find a case of a creditor's bill in "the competition of creditors" (Mackeldy, § 521-528).

The Equitas of the Prætor, defined by his edict on his accession to office, permeated the whole judicial procedure-for all the courts were subject to his control-and thus law and equity in