8
THE GREEN BAG
isfy an ill-starred victim that his bad luck had thrown light upon "color" or "absque hoc?" The judge and the lawyer on the other side, they at least were satisfied; while the winning client wondered and praised God — or the law, in doubt perhaps of the real agent of his happiness, though certain "'twas a famous victory." But though men in middle life remember it, this is of the past, and only some ancient specimen of the order of special pleaders, outliving his day, now " casts a longing, lingering look behind," to the good old times. The layman is right; procedure has been a prison-house for the law. Many a crippled rule of substantive law traces its appearance back sooner or later to some phase of procedure — to set forms of action, jurisdiction, "niceties" of pleading. I need not speak in detail, for my associates under stand, and my neighbor layman would find his thoughts — or mine — confused in the technical language necessary to the discus sion; enough to allude to the fact that the common law, standing in the early and middle period of English history for all the ordinary internal affairs of men, was for centuries imprisoned within the narrow walls of some half-dozen forms of action, and that the attempt of the counsellors of Edward the First ' to set the prisoner free was fore doomed to failure. The lawyers disarmed the forlorn hope and turned it to their own account. There were now two victims to torment with curious and cunningly-devised mischief. I have already spoken of the elaboration of an artificial system of pleading, without the business raising so much as a suspicion that the artificial might not be suited to things real; of this enough, after a word more. The artificial modes of thinking handed down for centuries could not but affect the legal profession even after the change which swept away the substance of false ideas. Medieval ideas, medieval modes St. Westminster 2, chap. 24.
of reasoning, have not yet entirely let up their grip. A single illustration may be use ful even to my associates. There stands in our own books of pleading and evidence, in books not yet gone out of use, a rule to the effect that words of description in an allega tion identify the fact to be proved; and now, ergo, according to medieval thinking, the proof must be exact and literal; beginning with an artificial premise you must push your conclusion to the utmost extent of artificiality — it is all a matter of reason ing and though the reasoning is in the air, it is reasoning and must prevail. Now what has come to pass? Suit within thirty years, in Massachusetts, for slander; the plaintiff alleges that the words were spoken to the members of a certain corporation, which identifies the mode of publication; ergo the plaintiff must prove that the words were spoken before the corporation; the plaintiff proves that they were spoken to a person who as a matter of fact was a member of the corporation; that will not do, and the defendant leaves court rejoicing.1 I make but one more remark on the whole subject. The case just put is probably an expiring word. Only a remnant of the false remains, a considerable remnant it may be in some States, but still a remnant, with the tendency of that to disappear. Would our lay friend see sound doctrine fully asserting itself, he may see it working as if with a stroke at the whole fabric, in our statutes touching procedure; if he would see it work ing a revolution of the whole machinery in a day, let him see what was done in England in 1873, and my own associates might well look into the English "Statements of claim" as the substitute for the whole ancient system of forms of action. The situation is full of hope; the tendency is plain. There are other subjects for criticism which are not so much in the eye of the lay1 Perry v. Porter, 124 Mass. 338.
