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authorities, and announces himself to the world as a pleader. The business of these gentlemen, as their name imports, is professedly the preparation upon folio sheets of those counterallegations called pleadings, which have already been described. They are also very generally consulted in the first stages of litigation, as to the expediency of commencing and defending actions; and at a later stage, as to the evidence which will be required at the trial. They are generally well versed in the art of pleading, and well informed in their profession generally; and being contented with a scale of fees ranging from a guinea to seven-and-sixpence, they are almost invariably consulted in the preliminary stages of a suit. But in addition to these employments, they all take pupils, if they can get them, who are allowed to attend daily in their chambers, and draw the rough drafts of pleadings and opinions, which are afterwards revised by the pleader. With this system of special pleading, therefore, is now associated the entire legal education of the common-law bar. It will be shown by-and-by how the defects of that education may be imputed to the school in which it is obtained. And as this topic will be referred to again, we need only remark here, that the technical and synthetical teaching, which is all that the pleader's chambers can supply, will seriously cramp the attainments of the bar until it is superseded by some healthier plan. Finally, no one will deny that the suitor is greatly aggrieved, who is compelled to run the risk of failure, not from the want of merits in his case, but because the ignorance, or negligence, or the mere error in judgment of his pleader may have taken a false step in the pleadings.
Having now introduced our inquirer into the secret laboratory in which the preliminary processes of the case must be worked out, and having seen how the whole matter of the dispute is thrown into the crucible of the pleader, where foreign substances are separated, and the controversy is made to assume the shape in which it is to appear at the trial, we will resume our sketch of the perils to which the suitor is exposed in the ordinary course of proceedings.
The cause may be supposed to have ridden safely over all difficulties up to the appearance of the defendant, and to have reached the pleader's chambers in the shape of instructions to draw the declaration. He quickly obeys those instructions, and that document is conveyed in the course of a few days by the plaintiff's attorney to the attorney of the defendant. He, in his turn, consults his pleader, and instructs him to prepare a plea. But at this and every other stage of the pleadings, the pleader has to consider whether he shall plead' or 'demur
that is to say, if the declaration, or any subsequent pleading, appears to the adversary to be insufficient upon the face of it, (according to the rules of pleading,) either as to the substance of the case, or the manner in which it is set forth, the pleader will have recourse to a demurrer. The effect of a demurrer (which may be either general or special, as it is addressed to the substantial or the formal insufficiency,) is to admit the facts stated in the pleading demurred to; to withdraw it from the consideration of a jury; and to submit to the court, to which the action belongs, whether the party demurring is not entitled to its judgment on the score of the insufficiency of such pleading. This is a risk to which every plaintiff and every defendant is now obliged to submit each pleading which he delivers to the other side. And thus it happens, to the disgrace of our judicature, that cases are disposed of in our courts upon points utterly immaterial to the real controversy between the parties. But if no opportunity presents itself for demurring, then the pleadings proceed through more or fewer stages, as the case may be, until one or more issues of fact are evolved. To describe the different categories under which pleas are ranged in the natural histories of this peculiar composition, would be tiresome and unprofitable: suffice it to say, that experience has furnished a complete armoury of weapons, of which the pleader will skilfully avail himself, according to the movements of the enemy. The warfare is carried on by dexterous subtlety rather than principles of law, and a victory in pleading is more a triumph of tactics, than of justice,
or reason, or common sense.
The narrative of the attorney has now reached to the joinder of an issue of fact between the parties. The next step is to submit that issue to a jury, for which end the cumbrous and antiquated machinery of a trial at Nisi Prius must be set in motion. The issue must be made up and delivered; the proceedings must be entered upon record' on a parchment roll, and that roll must be entered in the office of the court. Then comes a complicated process for assembling the jury. Two writs, called the venire and the distringas are required, although both are founded upon an obsolete practice, and are now pure fictions. Notice of trial must next be given, and finally, the cause must be ' entered for trial' by the judge's marshal. These costly, and for the most part idle ceremonies, must severally be performed to the letter. Any inattention to the minutest accuracy is obnoxious to very serious consequences. Lastly, the day of trial arrives. The judge and jury are seated. Then the junior counsel for the plaintiff opens-that is, reads a short abstract of the pleadings; the senior counsel states his case to the jury; the witnesses to
TRIAL AT NISI PRIUS.
517 prove it are examined; the counsel for the defendant makes his speech, and either calls witnesses or not, as he thinks fit; the judge sums up the evidence, and the jury return their verdict. Here it might be supposed that the weary and excited suitor would be at rest. But alas! though the verdict may be in his favour, it is too often a delusion and a snare. He still trembles at the thought that a new trial, with all its frightful accumulation of costs, may be granted in the ensuing term; or perhaps his defeated adversary may move the court above in arrest of judgment; or by various other means the case may be carried, by way of appeal, from the court to which it belongs to the Court of Exchequer Chamber, and from that court of appeal to the supreme tribunal of the House of Lords.
Such is a faint outline of the ordinary course of an action, and the pitfalls and snares and manœuvres to which the suitor in the superior courts is exposed. Such, too, is the course of practice through which every man who has ever brought an action in them must have passed, though much of it may have been concealed from his view. We invite our readers to remember the proceedings of the County Court, and then to look on this picture and on that.
We have seen, with considerable satisfaction, a Report which has lately been sent in by the commissioners appointed to examine the state of pleading and practice in the common-law courts. That document, which is placed at the head of this article, is the result of much labour and learning. It proposes to expunge many idle forms which are simply useless except to tax the suitor. It goes so far as to abolish the distinction between the forms of actions, and relaxes the present barbarous technicality required in the language of pleadings. But the learned commissioners have left one fatal poison in the system, which, in the present temper of society, will but tend to corrode and destroy it; for they hope to leave unscathed, in all its pristine glory, the very art of special pleading itself. Imbued with the atmosphere of our old legal system; bred in all its antiquated forms; familiar with the technical unrealities and technical jargon of Westminster, the commissioners have neither had the heart nor the nerve to consider their subject as res integra, and to recast the whole proceedings of the courts; but have been contented with paring down small excrescences, and abolishing some useless expenses, which still swell bills of costs. It may be, that their proposals will be carried into effect; but any such measure will be a mere measure of transition. The great experiment which has been already tried, to the entire satisfaction of the country, has leavened society with the desire for law
reform. It is in vain for the learned to smother any longer the searching inquiries of common sense. It is impossible to rescue their esoteric mysteries from the full glare of investigation. Litigation is sweet to human nature. We all rejoice in the reflection that we are able to enforce our rights. Some hundred thousands of suits have been tried before our new and popular tribunal, and the people are satisfied with its decisions. Few complaints have been heard against it, and no petitions have been presented for its abolition. Can we, then, be surprised, that if this court, which recognises neither the rules nor the practice of pleading, has so well answered its purpose, the public should conclude that what is good for the many must be good for the few? and that as the services of the special pleader have been dispensed with in one, so he may safely be cashiered in the other? Every man now feels it to be a grievance, that whilst he can enforce his claim to fifty pounds, without the intervention of the pleader, and without the aid of any forms except plain notices in the vernacular tongue, he cannot recover fifty guineas under similar circumstances, without running the gauntlet through all the ensnaring forms described above, besides many other difficulties which it would be tedious to detail. grievance lies in this, that the cause may be endangered on various grounds, as by the errors of his pleader, or the negligence or mistakes of his attorney, before it has even arrived at the threshold of the tribunal. Strange as it may seem, it is too true, that hundreds of suitors have heard the judgment of the court solemnly given against their just claims, because their special pleader had made some false step in the pleading, to which his artful adversary had eagerly demurred. It would be more tolerable if the special pleading were intelligible to common sense, and were capable of being understood and controlled by the suitor. But, on the contrary, it is an art of the subtlest texture, known in its depths to only a few scores of persons, and to the suitor hardly less comprehensible than the outlandish dialect of the Bosjesmans. He, therefore, does not even see, much less understand or control, the pleadings drawn in his case. The drafts are silently transmitted from chamber to chamber in the Temple, until one day he is, perhaps, informed by his attorney, with a face of dismay and vexation, that the enemy has 'demurred' to his last pleading. Then he discovers, to his amazement, that he must prepare for the solemn argument at Westminster of some nice point in the rules of pleading, which the lawyers, like surgeons in the anatomy theatre, will dissect at his expense with the keenest relish. Nor will his surprise be diminished, when he listens to the discussion of his own familiar
DIFFICULTIES IN THE WAY OF REFORM.
case, and hears the arguments of the counsel framed, and the judgment of the court delivered, upon grounds entirely artificial, and as foreign to the real merits of the cause as if it had been the suit of some other individual.
Now if there were no other specks in our system, here at least it is plain that there is ample room for improvement. To the objection that might have been plausibly urged in days gone by, that to dispense with pleading would be simply impracticable, experience now answers, that it is both practicable and safe. It may be urged, that the abolition of pleading will tend to relax the strict rules of evidence, and open the door for the admission of all kinds of proofs of all the possible points in the case. reply, that the authority of the judge at the trial is quite sufficient to confine the parties to the real points at issue, and that, armed also with ample powers of amendment, he will always be in a condition to see substantial justice done. If it were not true that this result would be thus secured, we should now see the County Courts as empty and unpopular as they are in fact crowded and appreciated. The truth is, that pleading was abolished in those courts, and the judges were left to shift for themselves. They at once comprehended their situation, and vigorously shaped their proceedings upon a new and independent model.
But we must not expect this great improvement to be originated by the legal profession. We have said that the education of the bar is connected with the system of special pleading. They act and re-act upon each other. He who has learned the art of special pleading, and stored his book-shelves and his mind with its curiosities, will always be unwilling to unlearn it. And that Art, which has thus nursed so many lawyers, and created so many splendid fortunes, is sure to meet with tenderness and respect from the great family who treat her as their mother.
In the department of legal education, then, not less than in the practice of the courts, there is great need of improvement. The present system of education is so defective, that a literal account of it may probably be thought incredible. The following statement, however, will be found to be strictly accurate. a young man from the university, or from school, proposes to go to the common-law bar, he is placed in the chambers of a special pleader. For the consideration of one hundred guineas, he will have the privilege of attending those chambers daily, and observing the business which passes through them. Here the acute and busy pleader quickly imbues a promising disciple with the spirit of his own subtlety. He delivers no lectures on the origin and principles of law, but he can quote, at a moment's notice, hundreds of the reported cases. He does not even discourse to