The Green Bag
628
Now, formalism in law and procedure
King's tion of oofl'ers the King's and enhance court as the to procure reputa~
seems to have two roots, one rational
and the other irrational.
The rational
ground is the need of a hard and fast
rule to make it clear that the law is the same for all men. The irrational ground goes back to the oldest form of super stition, the prehistoric belief in sym bolic magic. It is assumed that words have in themselves an operative virtue which is lost if any one word is substi
ease and satisfaction to suitors, were the means not precisely of abolishing the inflexible and cumbrous old procedure — we had not formally begun to abolish anything—but of relegating it to an obscurity where it was speedily for gotten, and so completely forgotten, too. that professed antiquarian lawyers could, almost down to our own time, believe
tuted for another.
trial by jury to be immemorial.
Such formalities were the strange guardians among whom Our Lady of the Common Law was born and cradled. They were her true guardians in their
Form for form's sake has been a harsh mistress, and the demon of subtlety for
Better even bad rules than a rule
subtlety's sake has been the cause of tremendous evils. The evils have not been due to the archaic forms of the
which is not of law. It was a great and true word that Ihering spoke when he
law, but, in most cases, to the degenera tion of the archaic forms into something
said:
else.
day.
"Form is the sworn enemy of
caprice. She is Freedom's twin sister.” The giants are stark and grim figures
in our sight, yet their force cleared a way for the gods through chaos, and without them the gods would never have come to Valhalla. But the guardians became tyrants when, in a community growing civilized, the judicial results of
semi-magical ritual ceased to be toler able, and the so-called judgments of God were openly deemed unjust alike by men of wax’ and by men of religion. Their ways could not be mended; they must be broken, and a new body must be fashioned for the justice which, in its old embodiment, was too visibly blindI
even in the eyes of twelfth century suitors.
It was written of the Church that
kings should be her nursing fathers. No less truly might it be said of the com mon law.
The King's overriding power,
a power both to devise and to execute, was the only one strong enough for the work. Royal inquests, royal precepts
and decisions, ingenuity of royal officers at least as eager to bring fees into the
III. SURREBUTTER CASTLE Perverse ingenuity once let loose on the art of pleading, went for some centu
ries from bad to worse, notwithstanding occasional mitigations. We may see what the bastard formalism of pleading had come to be in England in the second
quarter of the nineteenth century if we use the guidance of a very learned per son, Sergeant Hayes, afterward a Justice of the Queen's Bench for a short time, who knew the system thoroughly and did his best to bring about its downfall. tury Ourwere ancestors not stupid of the or eighteenth slothful. They cen. knew the raiment of the law wanted mending, and they mended it as well as they could in their time, having cam
paigns in Flanders and rebellions to think of. But it was only patchwork, and ultimately the rents were made worse. After the common fashion of English public business, reforms were
introduced piecemeal and without any settled plan, and so, while they lightened some of the most pressing grievances,
