476
The Green Bag
the want of any allegation or averment on account of which omission a demurrer could have been maintained.’ But the courts invariably annul such enactments, in so far
as they attempt to cure errors of substance, that is, all errors reviewable upon general demurrer, or what amounts to the same thing, upon motion in arrest, and the other methods above pointed out, of calling the court's attention to the fact that there is nothing before it upon which to act. The courts, it is true, seldom by name quote the maxim De nan apparentibus. There is a percep tible effort to ignore maxims, and to discover and set up ‘new’ fundamental principles of law. But the human mind has percep tions of justice which will not be denied. It works, under its own laws, in obedience to these perceptions, and asserts them in the most unexpected ways.
observed, too, that some of our leaders of the bar are doing their best to eliminate pleadings, and substitute the Turkish method of transferring property. Some of our tn’ bunals have succeeded in getting away from the ‘technicalities’ of pleadings, and have substituted the method of pleading for recovery of a horse, and allowing the pleader to recover on his ‘theory of the case’ that what he really wants is not a horse, but a cow. The position of these courts seems to be that this is a speedy method of justice, and puts an end to litigation by letting the parties ‘fight it out on the merits‘ without bothering with form. But when some other court has the problem put up to it, on col lateral attack, whether such a judgment for
“What does not judicially appear, is pre sumed not to exist.’ It is so simple, as to need no citation. For instance, the law
a cow instead of a horse is coram non judice, and void, then it begins to look doubtful whether the litigation is ended, or whether it is just beginning. ‘Consider the land marks which thy fathers have set.’ It is a fairly safe proposition that the Roman
presumes ownership from possession.
knew how to govern, and therefore, how to
Pos
session, like convenience, necessity and reason, is one of the big facts in the law. It is a basic, pivotal position. Therefore if A is in possession of property, B cannot recover it from him without stating (De non appar cntibus) and proving (Frustra probatur) a cause of action. To let B take the property without stating, and then proving, a cause of action, would be to deprive A of his prop
erty without ‘due process of law.’ This is just as true in England, where they have no written constitution, as it is here, where we have. The written constitution does not change the situation on this side of the At
lantic in the slightest degree. It is an inherent perception of the justice of the thing that leads the white races to require a plaintifi‘ to set out his cause of action where all may see it and know what it is. The difierence is not one between a written con stitution and an unwritten or prescriptive one. It is the difference between a consti
tutional government (written or unwritten)
on the one hand, and a despotism, on the other. The Sultan of Turkey can take a man's property and life without the useless forms of procedure. They are too techniml
for him.
The English and American govern
ments have to observe these inconvenient ‘technicalities’—that is the difference be tween the two kinds of government-—a difference fundamental enough. It is to be
keep the peace, and therefore how to end litigation. He had plenty of experience, and he has handed down to us no maxim that the writer has heard of, telling us that
pleadings can safely be waived. It is also safe to say that minds like Bacon's, Mans field's,
Ellenborough's,
Kent's,
Marshall's
and Story’s understood the necessity of a record which would stand the tests of res adjudicata and of collateral attack. Neither do they countenance waiving the plead ings. . . "Procedure is one of the most, if not the most, important subject of the law. Un fortunately it has also been one of the most abused and neglected. Knowledge of procedure necessitates knowledge of the whole law;
and,
e
converso
the
‘substantive’
branches of the law cannot be understood without a knowledge of procedure. Yet we have become inoculated with the idea
that the law can be partitioned and studied in individualized branches, while the very process has permitted its life forces to esmpe us. We are taught by learned authors that procedure is a local, statutory afiair; that there are no fundamental, immutable prin ciples in procedure; that the student need but learn the main body of principles of the
‘substantive’
law,
and
procedure
will
take care of itself. “These writers are correct: Procedure has
