The Formative Principles of Civil Procedure

Formative Principles of Civil Procedure [article]
Illnois Law Review, Vol. 18, Issue 1 , pp. 1-36 Millar, Robert W. (Cited 62 times)
18 Ill. L. R. 1 (1923-1924)
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ILLINOIS
LAW REVIEW
MAY, 1923
Volume XVIII
Number 1
THE FORMATIVE PRINCIPLES OF CIVIL

PROCEDURE-I
By ROBERT W. MILLARa
1.
INTRODUCTORY
It is probably safe to say that the influence of the Roman law

upon the procedure of the English common law courts had expended
its force by the end of the 1200s.1 It was yet to operate in a similarly indirect -but infinitely more powerful way upon the procedure
of the court of chancery, but here its work was at all events finished
by the close of the 1500s.2 In the one case, the indebtedness to the
Romano-canonical law, circumscribed and formal at the best, has
only recently been stressed; in the other, it has been too marked and
obvious ever to have escaped notice. Apart from these early relationships, the civil procedure of the English law has lived a life to
itself. No doubt, the set off of mutual 'unconnected debts introduced, as a defense, -by the statute qf 2 Geo. II, c. 22, had its ultimate
inspiration in the Roman 'compensatio,' but as equity had been previously applying the same principle, though limited to the case of
connected demands,3 the defense in question can scarcely be deemed
a conscious borrowing from an outside source. The declaratory
judgment, recognized by the rules under the English Judicature
a. Professor of Law in Northwestern University.
1. See Pollock and Maitland "History of English Law" (2nd ed.) II
612; Holdsworth "History of the English Law" III 472.
2. "In the time of Elizabeth and her immediate successors, the common
rules of practice of the court had become well settled, differing little in
principle from those of the present day." Spence "Equitable jurisdiction of
the Court of Chancery" I 379. The written answer apparently dates from
the reign of Henry VI, but not until later does it become sharply differentiated, in office, from the demurrer and plea. Kerly "History of Equity"
67.
3. Whitaker v. Rush Amb. 407; Chancellor Kent in Duncan v. Lyon
3 Johns. Ch. 351.
18 ILLINOIS LAW REVIEW
Acts, and more and more finding favor in American jurisdictions,

stands on a somewhat different basis. That manifestly was taken
over from the law of Scotland where its origination, there can be
little doubt, was due to Roman law influence.' But, in the main,
Anglo-American civil procedure has gone on its way, deriving
nothing from without and evolving from within the elements needed
for -its amendment and progress. Educated practitioners have
always known something in an academic way of the classic Roman
procedure, but to the later forms developed on the Continent out of
the coalescence of Roman and Germanic institutions they have paid
small attention. Even the procedure of those courts in England
which conformed closely to the Romano-canonical model was to the
common law lawyer a thing apart, in which he took as little interest
as in its Continental cognates. It sufficed for him that the methods
of Doctors' Commons were not those of Westminster Hall. This
narrowness of interest is happily much less pronounced at the present day, but there is still a tendency on the part of English and
American lawyers to forget that there is such a thing as civil procedure in other systems of law or else to feel that the procedure of
other systems is of necessity inferior to their own. But, in this lack
of a procedural community, the fault is not entirely on our side.
Continental scholars have not made our procedural institutions the
subject of the attention that they deserve. They have, to be sure,
been attracted by the institution of trial by jury and have investigated its history with an industry and learning which have redounded
to our immense profit. To the system as a whole, however, they
have given, in general, but scant and superficial consideration. This
is due, in some part, we may well suppose, to the intricate and technical rules of common law pleading and practice whose understanding, in detail, would present almost insurmountable difficulties to
the foreign student.5 But, in larger degree, it is due to the fact that
the very much greater volume of Romano-canonical elements in all
the Continental systems serves as a common bond to unite them in a
sort of freemasonry from which our own system stands apart.
Yet this attitude toward the English system has not prevented
Continental scholars, and more particularly the Germans, from
bringing the study of comparative civil procedure to a high degree
4. For the history of this institution, see Borehard's learned article "The
Declaratory Judgment" Yale Law Journal XXVIII 1-32, 105-150; as to Scotland, in particular, pp. 21-24.
5. Etjelnann ("Der romanisch-kanonische Prozess" 199) speaks of the
English procedure, especially before the Judicature Acts, as "peculiarly complicated" and of thel work of the Swiss writer, Riattinan, "Der englische
Prozess," published in 1851, as "very hard to understand."
PRINCIPLES OF CIVIL PROCEDURE
of development. So varied, in respect both of time and place, have

been the products of blended Roman and Germanic procedural institutions on Continental soil that ample material for such study is
afforded even without crossing the English Channel. And as a
result of effort in this direction the Germans, brilliantly seconded by
the Italians,' have evolved a true science of procedure-such a
science as, in our terminology, would be properly termed "procedural
jurisprudence."
The case is otherwise with us. Our relative inattention to comparative study has caused us to miss in large measure, to use Holland's phrase, "the possibility of separating the essential elements of
the science from its-historical accidents. '" Bentham's services to
the cause of procedural reform cannot be overestimated; he supplied
invaluable material for a future science of procedure; but he cannot be said to have contributed much to a systematization of general
principles. Had Austin been permitted to accomplish the somewhat
detailed consideration of procedure projected in his outline, it is
doubtful whether even this would have laid an adequate basis for
theoretical study, since the criticism appears to be a just one that
both Austin and Bentham failed to "extend their views far enough
either into the past, or over the legal systems of other times and
countries."
By Austin's successors procedure has never been
treated save in an elementary and cursory fashion. 9 Our text books
dealing with procedure and procedural topics yield some place to
history: to theory they yield little or none. Procedure and procedural topics, that is to sayt, other than Evidence,--a field into
which science had already begun to cast glimmering rays before it
The "Romanisch-kanonische Prozess" of Engelmann with his "Mittelalterlich-deutsche Prozess" and "R6mische Civilprozess" (to all three of
which reference will be frequently made in the course of this article) constitute his "Geschichte des Civilprozess" which will shortly appear in translation along with other Continental materials as "The History of Continental
Civil Procedure," in the Continental Legal History Series, published by
Little, Brown & Co. of Boston.
6. The condition is different in France: "Bien peu de gens y jugent la
procedure civile digne d'une itude th6orique s6rieuse.
Dans les Uni-
versit6s, l'6tude de la procedure est languissante; les chaires de procedure

sont pen recherche~s. . . . On sait d'ailleurs que notre litt6rature juridique
n'est pas bien riche dans le domaine de la procidure civile; nous n'avons, en
France, aucune revue srieuse des questions de proc6dure; et les 6tudes doctrinales un peu pouss~es sont ici peu nombreuses." Tisyier, "Le r6le social et
6conomique des r6gles de la proc6dure civile" in "Les m6thodes juridiques"
(Paris, 1911) 105, 106.
7. "Elements of Jurisprudence" (8th ed.) 8.
8. Bryce "The Methods of Legal Science" in "Studies in History and
Jurisprudence" II 614.
9. Holland op. cit. 315-321; Amos "Science of Jurisprudence" 317-365;
Markby "Elements of Law" (4th ed.) 417-427; Salnwnd "Jurisprudence" (6th
ed.) 65-91, 437-453.
was lighted to the full by the genius of Wigmore. This subject

apart, we cannot but admit the truth of Kohler's observation that
for the Anglo-American law, as for the French, there is no science
of procedure: its "procedural literature is still on a basis of practical commentary." 10
Not the least of the contributions for which theoretical study
is indebted to German procedural science are certain generalizations
which it has made concerning procedural method. By such generalizations it has identified and delimited the fundamental conceptions which consciously or unconsciously determine the form and
character of systems of procedure. These it has enunciated as
principles or maxims with specific names, sometimes not altogether
apt, but sufficiently serving the purpose of differentiation. Of such
basic principles ('Grundprinzipien'), 1" or, better, formative principles ('Prinzipien der Gestaltung') ,12 some are common to all systems; others again appeai only in given systems and may or may
not be antithetical to corresponding conceptions prevailing elsewhere. A brief examination of these formative principles and their
subject of the following pages.
place in procedural history will be the
I
2.
BILATERALITY OF THE HEARING
Most obvious, perhaps, of the conceptions in question is the

idea that both parties must be heard: the principle of bilateralhearing ('Grundsatz des beiderseitigen Gehirs'). Inseparable from any
organized administration of justice, it is expressed alike by the
Roman precept "audiatur et altera pars" and the rhyming brocard
of mediceval Germany: "Eines mannes red ist keine red, der richter
soil die deel verhoeren beed."' 3 ("One man's plea is no plea: in
justice. must of both the hearing be.")
It is a notion which at the present day is generally satisfied by
granting to the other party due opportunity to be heard. 4 But
this result has been one of slow growth. The primitive conception
of an action as the voluntary submission of a controversy to the
10. "Zivilprozess und Konkursrecht" in von Holtzendorff's "Enzyklopadie der Rechtswissenschaft" (1913) III 256.
11. Heilfrvn and Pick "Lehrbuch des Zivilprozessrechts" (2nd ed.) I
447. 12.
Von Bar "Civilprozess" in von Holtzendorff's
"Encyklopfidie der
Rechtswissenschaft" (1882) I 727.
13. Kleinfeller "Lehtbuch des deutschen Zivilprozessrechts" 191; Hillebrand "Deutsche RechtssprichwiSrter" 217.
14. Stein "Das Civilprozessrecht" in Birkineyer's "Encyklopidie der
Rechtswissenschaft" 1179; von Bar "Civilprozess" in von Holtzendorff's
"Encykiopidie der Rechtswissenschaft" (1882) I 729.

decision of a superior authority' 5 left no room for proceedings
against a defendant who declined to appear. So it is that, until the
prator introduced some measure of relief by the use of the 'missio
in bona' as a means of coercing appearance, the Roman law was
powerless to render judgment against a defendant who failed to
appear either voluntarily or under the physical compulsion of the
plaintiff.'8 So, too, it is that the Germanic law had no other recourse against the defaulting defendant than to constrain him by
means of outlawry to make his peace with the offended State or
17
The idea that,
else to seize -his goods as a pledge for appearance.
if the defendant has been notified according to law, the court may
proceed to judgment in his absence has its inception in the contumacial procedure of the post-classical Roman law,' but it has had
a long and uphill struggle to overcome the persistence of the primitive notion. The history of procedure down to very recent times
shows the clash of the two ideas, involving as it does, in the realm
of juristic speculation, the question whether appearance on the part
19
"For the case of default on
of the defendant is a right or duty.
the part of the defendant," says Kohler, "systems of procedure
exhibit two points of departure. In the one case, no proceedings
are possible without the co-operation of both parties. Here, unless
the law is to be a dead letter, its enforcement a matter of grace on
the part of the defendant, measures of the utmost stringency must
be resorted to in order to compel appearance. Such was the method
of the Frankish procedure and the procedure of the canon law: the
defendant was coerced by means of outlawry, excommunication,
putting the plaintiff into possession of his goods ('possessio tedialis')
and the like. In the other case, the proceedings go on despite the
defendant's failure to appear and are concluded on the basis of the
plaintiff's unilateral demand. Under certain circumstances, this
might take place in the Roman law, -but only in such a way as to
render the cause one of inordinate length. The practice in question
underwent development in the cities of mediaeval Italy and by the
15. Maine "Ancient Law" (3rd Am. ed.) 364.
16. Cuq "Institutions juridiques des Romans" II 747; Greenid.ge "Legal
Procedure of Cicero's Time" 255; Keller-Wach "Der r~mische Civilprozess"
49; Engelinann "De" r6mische Civilprozess" 105, 155-6.
17. lenks "Law and Politics in the Middle Ages" 111, 223-224; Engelmann "Der mittelalterlich-deutsche Prozess" 101-102; Pollock and Maitland
"History of English Law" (2nd ed.) 1 49.
18. Bruno "Contumacia civile" in "Digesto Italiano" VIII (3) 559;
Girard "Manuel 616mentaire de droit romain" (5th ed) 1075; Engelinann
"der r~mische Civilprozess" 157 et seq.
19. See Engelumnn "Der Civilprozess: Allgemeiner Theil" 161.
celebrated 'Clementina Saepe'2 of 1306 was sanctioned for numerous

kinds of causes. The dispositions of the 'Clementina' in that regard
soon became more or less general. In the common law procedure
('Reichskammergerichtsprozess') 2'1 of Germany both systems prevailed down to 1654. The plaintiff might, at his election, coerce the
defendant to appear or proceed in his absence. The Recess of that
year ('jungste Reichsabschied') ,22 however, abolished in general the
23
system of coercion and made the other the rule.1
In our own law the older rule clung tenaciously to existence.
We know how, in common law actions, apart from the cases in
which attendance could be enforced by arrest of the person, the
defendant, in Blackstone's language, was "gradually stripped of his
substance -by repeated distresses till he rendered obedience to the
king's writ."24 Not until the 1700s is the plaintiff enabled to proceed without the presence of the defendant, 25 but the old rule still
receives formal homage in the shape of an appearance entered by
the plaintiff for the defendant. A true judgment by default, in the
present-day sense, although receiving prior recognition in the United
States,2 6 does not obtain in the English common law courts until
20. A statute of Pope Clement V introducing measures of simplification
into the existing canonical procedure. It was so named from the word with
which it opens: "Saepe contingit
."
Engelmann. "Der romanischkanonische Prozess," etc. 86.
21. Strictly speaking, there is a clear distinction between the "Reichskammergerichtsprozess" and the common law procedure of Germany. The
former was the procedure, based on the Romano-canonical system, which
was followed by the Imperial Chamber of Justice ('Reichskammergericht')
established in 1495. The latter was the procedure which, through the agency
of the universities, came later to prevail very generally in the several states.
It represented the Romano-canonical procedure of the 'Reichskammergericht,'
as modified by the influence of Saxon law. Its name, "common law procedure ('gemeine Prozess'; 'gemeinrechtliche Prozess') comes from the fact
that the "common law" of Germany was the Romanized law attendant upon
the reception of the medieval Roman law. While this common procedure
as a system, cannot be said, perhaps, to have existed prior to the 1700s, we
shall, in this article, use the term as including the anterior developthent in the
'Reichskammergericht' which it incorporated. See Planck "Lehrbuch des
deutschen Civilprozessrechts" I 6-7; Brunner "Quellen und Geschichte des
deutschen Rechts" in von Holtzendorff's "Enzykloplidie des Rechtswissenschaft" (1913) I 172.
22. "To the aggregate of the statutes passed by a given Diet the name
'Imperial Recess' ('Reichsabschied'), 'recessus imperii,' was given because
of their publication upon the adjournment of the body. The 'last Imperial
Recess' ('jungste Reichsabschied') is that of 1654, since the next Diet, which
met at Regensburg in 1663, became a permanent assembly." Brunner op. cit.
I 158.
23. "Civilprozess und Konkursrecht" in von Holtzendorif's "Enzyldopidie der Rechtswissenschaft" (1913) III 301.
24. Comm. III 280.
25. 12 Geo. I c. 29, 5 Geo. II c. 27: Tidd "Practice" (9th ed.) 241.
26. See e. g. Rev. Laws of Illinois (1827) 313.
the Common Law Procedure Act of 1852.27 The court of chancery

at first is even more rigidly fettered, -but suffers less severely since
much of its business is such as in the nature of things cannot be
transacted without the personal presence of the defendant. Originally it can coerce only by recourse against the person of the defendant, but later achieves the right to sequester his estate. 28 Then,
it breaks partially loose from the old rule by exercising jurisdiction,
after such sequestration, to enter a decree pro confesso against the
contumacious defendant. But this involves many gestures. Subpmna, attachment, attachment with proclamations, commission of
rebellion, serjeant-at-arms, sequestration-this gamut must be run
as a preliminary to consideration of the plaintiff's demand. 29 In
time, these proceedings are discarded and, both in America30 and in
England, 31 a decree pro confesso may be entered for mere failure
to appear after due service. In England, however, as for many
years at law, an appearance is entered for the defendant, and this
ghost of the old rule lingers down to the very last days of the High
Court of Chancery.82
Aside from the matter of default, the principle of bilateral hearing is everywhere subject to certain qualifications deemed by the
law-making authority to be in furtherance of justice. Sometimes
the qualification proceeds on the ground that the giving of notice to
the defendant or the delay incident thereto might render futile any
action of the court.3 3 Temporary injunction and receivership orders,
made without notice, are examples of this in our own law. Examples in other systems are the provisional orders ('einstweiligen
Verffigungen') of the German Code, for emergent cases ("in dringenden FAllen"),3' and the provisional suspension of new building
constructions and the like in modern actions descended from the
Roman 'operis novi nuntiatio,' 35 as the Italian Idenunzia di nuova
opera' 36 and the Spanish 'demanda de interdicto de obra nueva.37
On this ground, too, proceeds in part, at least, our process of attach27. 26: Martin "Civil Procedure" 12.
28. Gilbert "Forum Romanum" (Tyler's ed.) 77.
29. Blackstone Comm. III 444; Hoffman "Chancery Practice" (2nd ed.)
I 184-185; Barton "Suit in Equity" (Holcombe's ed.) 84-92; Daniell "Chancery Practice" (1st ed) I 573 et seq. 679-680:
30. See Hoffman op. cit. I 187.
31. Daniell op. cit. (2nd Am. from 2nd Eng. ed.) 593.
32. See Griffith "Supreme Court of Judicature Acts" 170.

33. Von Bar "Civilprozess" in von Holtzendorff's "Encyklopldie der
34. Civilprozessordnung, 937.
35. Bruno "Denunzia di nuova opera," etc., in "Digesto Italiano" IX
(I) 1009, 1013, 1020.
36. Codice di procedura civile 938 et seq..
ment and its Continental cognates, the 'saisies conservatoires' of the

9
French law,"8 the 'sequestro conservativo' of the Italian, the
40
Again, the qualification may be
'Arrestprozess' of the German.
based upon the fact that the debtor has either in express terms or
by the form of his undertaking antecedently waived his right to a
hearing prior to the issuance of execution. This idea was unknown
to the Roman law, but was developed by the medieval Italian jurists
out of a blending of the Germanic notion of private seizure of a
debtor's goods with the Roman maxim 'confessus in jure pro judicato habetur.' 1 It gave rise to the use of the so-called 'instrumenta
guarentigiata' or 'secured documents,' by which the debtor, in the
written evidence of his debt, granted to his creditor the right of
execution without a precedent hearing. When the debtor failed to
pay, therefore, the court issued execution against his property on
the ex parte application of the creditor. 2 This was known as the
"executive procedure" and is the parent of the practice prevailing
today in France, Italy, Germany, and elsewhere which gives the
holder of a notarial or other public document evidencing a liquidated
demand an 'executory title,' that is, entities him to execution without judicial authorization, upon obtaining a form of certificate from
43
The
the notary or other officer who authenticated the instrument.
manifestation of the same idea in the English law is found in the
judgment by confession entered on warrant of attorney or 'cognovit
actionem.'4 In the third place, qualification of the principle under
discussion may arise merely from the consideration that, in the interest of expedition, certain kinds of claims may well be made the
subject of a provisional ex parte judgment which does not prejudice
the defendant's rights. This is the case with the German "demandprocedure" ('Mahnverfahren'), a derivative of the medieval Germanic law. Such procedure is applicable to certain unconditional
liquidated demands, and permits the court, on the application of the
plaintiff and without notice to the defendant to enter an order of
payment ('Zahlungsgebot'). The latter, however, becomes ineffect37.
38.
39.
40.
Ley de enjuiciamiento civil 1663.

Glasson "Pr&is de procidure civile" (2nd ed.) II 619 et seq.
Codice di procedura civile 924 et seq.
Civilprozessordnung 916 et seq.
41.
Engehnann "Der romanisch-kanonische
Prozess" 90; Klenfeller
"Lehrbuch des deutschen Prozessrechts" 525.

42. Engelnmnn op. cit. 91.
43. Kleinfeller, ubi supra; Glasson op. cit. II 239 et seq.; Mortara
"Principii di procedura civile" (4th ed.) 292.
44. See Tidd "Practice" (9th ed) 559 et seq.
ive if the defendant, to whom it must be communicated, appears

and answers.4"
But in none of the cases mentioned in the preceding paragraph
are we dealing with a proceeding which is unilateral otherwise than
conditionally. The first and third of these qualifications contemplate purely provisional measures against the absent defendant who
is later to have his day in court, while the second invariably admits
of some circumscribed right to be heard. Moreover, in many instances, as in those proceedings exemplified by our attachment and
injunction, his rights are protected by the exaction of security from
the plaintiff. Such qualifications, therefore, with that involved in
the idea of judgment by default, represent a concession which the
main principle is required to make to the exigencies of practical
justice, but in no way actually impair the universality of that
principle.
3.
PARTY-PRESENTATION AND JUDICIAL INVESTIGATION
Next to be noticed is the so-called 'Verhandlungsmaxime' (literally, "transaction-maxim"). This is the principle which expresses
the idea that the scope and content of the judicial controversy are
to be defined by the parties or, conversely, that the court is restricted
to a consideration of what the parties have put before it.
6
Planck, "Lehrbuch des deutschen Civilprozessrechts."4 When the
court the
the
before
lay
parties
"the
dominates,
'Verhandlungsmaxime'
material intended to serve for the ascertainment of the true content of
the legal relation obtaining between them, the selection of such material being left to their own discretion. The court, on its part, passively awaits the presentation of such material and interferes only so
far as is requisite to see that the activity of the parties in the proceeding follows orderly method and does not over-step the appropriate limits
set by law. The proceeding thus appears in the form of a transaction
of the parties allowed and supervised by the court."
47
"The so-called 'VerhandFitting, "Der Reichs-Civilprozess."'
lungsmaxime' represents the principle thaf the court, in its decisions,
is bound by the material presented and the claims advanced by the
parties. When we say that it is bound by the material presented we
mean that it may consider only those facts and means of proving facts
which the parties themselves have invoked and must take to be true
allegations remaining undenied. When we say that the court is bound
by the claims advanced, we mean that it may not ,award to a party what
.
he has not asked for
45. Kleinfeller op. cit 527 et seq.
46. 1 194-195.
47. (12th and 13th ed.) 106.

, Kleinfeller, "Lehrbuch des deutschen Civilprocessrechts."4
"The
statute conforms to the 'Verhandlungsmaxime' when it assigns to the
party the function of assembling the cause-material and limits the
judge to the reception of such material."
Von Bar, "Civilprozess" in von Holtzendorff's "Encyklopadie der
Rechtswissenschaft."4 9 From the nature of the rights effectuated in
civil procedure follows, in every rational system, the so-called "Verhandlungsprinzip' . . . Since the parties may freely dispose of their
rights; it must be left to them to say what they shall adduce by way of
attack or defense
Bunsen, "Lehrbuch des deutschen Civilprozessrechts."50 "The 'Verhandlungsmaxime' has as its point of departure the idea that the parties are under an active duty to the court. Accordingly, the parties
must present the controversial subject-matter to the court, i. e., make
and support the relevant demands and designate the means of proof.
The court is under no duty independently to investigate the-facts of
the case, but takes them as presented by the parties."
Heilfron & Pick, "Lehrbuch des Zivilprozessrechts." 51 "The 'Verhandlungsmaxime' is the principle which requires the judge to receive
and render judgment upon the cause-material in the shape in which
it is presented by the parties."
Engelmann, "Der Civilprozess: Allgemeiner Theil."5 . "While the
'Verhandlungsmaxime,' on the one hand, obliges the judge to consider
all declarations that the parties would submit to his examination, it
restrains him, on the other, from considering anything that the parties
have not presented."
Various facets of the principle, as thus appearing, are denoted
by the following maxims of the medizeval Roman law :5
'Nemo judex sine actore.'
'Da mihi factum, dabo tibi jus!'
'Judici fit probatio.'
'Judex judicet secundum allegata et probata partium.'
'Ne eat judex ultra petita partium.'
'Ne procedat judex ex officio.'
'Quod non est in actis non est in mundo.'
It is manifest that 'Verhandlungsmaxime,' whether we translate it as "transaction-maxim" or as "trial-maxim," is not a particularly felicitous name for the principle in question. Its shortcomings
in this regard are apparent to the Germans themselves." The term
48. 180.
49. (1882) I 727.
50. 193.
51. (2nd ed.) I 448.
5sa 174.
53. Von Bar op. cit. 728; Kleinfeller loc. cit.; Heilfron and Pick loc. cit.
54. Engelmann "Der Civilprozess: Allgemeiner Theil" 171, note, speaks
of the term as "not happily chosen."
was invented by the jurist, Nikolaus Thaddius G6nner, who is

credited with the identification of the conception here involved, and
first appeared in his "Handbuch des deutschen gemeinen Prozesses,"
published in 1801-1803. 55 Speaking of what appears to be the same
idea and recognizing the difficulty of finding a shorthand expression
for it in English, Sir Frederick Pollock calls it, tentatively, the "rule
of neutrality."56 But this seems scarcely definite enough to commend itself to adoption. In the absence of a more apposite name,
we shall call it here the principle of party-presentation. Although,
by no means adequate, since it marks but one side of the idea, this
has at least the virtue of being less blind than the German term and
less vague than "rule of neutrality."
The precise opposite of the principle just dealt with is expressed
by the 'Untersuchungsmaxime' or 'Inquisitionsmaxime' ("investigation-maxim"). "Principle of investigation" would be a sufficiently
correct translation, but in the interest of clarity and to bring out the
contrast to the principle of party-presentation, "principle of judicial
investigation" is a better one. As will be seen, the contrast here
presented is analogous to that with which English readers are
already familiar in the field of criminal procedure, between the
principle of accusation and the principle of judicial investigation69
as applied in that field.
57
"The prinHeilfrom & Pick, "Lehrbuch des Zivilprozessrechts."
requires
which
principle
is
that
.
.
.
investigation
judicial
of
ciple
the judge ex officio to search for ('inquirere') the material or absolute
truth: his, thus, it makes the duty of ascertaining and considering facts
which the parties have not laid before him. On the other hand, he
may not, without inquiry, consider as true what the parties have agreed
upon as the truth."
58
"The
Kleinfeler, "Lehrbuch des deutschen Zivilprozessrechts."
principle of judicial investigation assigns to the judge the duty of
assembling the cause-material through his own, activity." 59
"The prinBunsen, "Lehrbuch des deutschen Civilprozessrechts."
ciple of judicial investigation forms the opposite of the principle of
55.
Engelrnan loc.
cit; Stintzing and Landsberg "Geschichte der
deutschen Rechtswissenchaft" III (2) 147 et seq.

56. "Expansion of the Common Law" 34. But Sir Frederick's "rule of
neutrality" seems to include as well the idea of party-prosecution, hereafter
to be considered. Ibid. 32.
56a. The use of the term "judicial investigation," rather than "investigation," as a rendering of the French 'instruction' in relation to criminal
procedure and, thus, as characterizing the Continental principle of criminal
prosecution, originated with Professor Wigmore.

57. (2nd ed.) I 449.
58. 180.
59.
194.

party-presentation: it permits a free and independent exercise of the
judicial activity in the proceeding between the parties."
Engelinann, "Der Civilprozess: Allgemeiner Theil." 60 "The principle of judicial investigation takes as its point of departure the thought
that there stands over and above the parties a benefit in law ('Rechtsgut') to which they are both subordinated, that their declarations, therefore, are only a means of attaining this benefit and that such attainment would never come to pass if they were left free to exercise their
dispositive power and thus to pursue their own aims independently. It
therefore transforms the parties from subjects of private law to objects
of the general legal interest and its essence lies in the fact that the
parties lose the right of free use of their dispositive power in favor
of an augmentation of the judicial power. Thus, on the one hand, the
declarations of the parties are considered not as authoritative expressions of their will, but as mere proposals, while, on the other, the judge
is not bound by these declarations, but, contrarywise, is entitled to do,
in his own discretion, what has not been willed by the parties."
Planck, "Lehrbuch des deutschen Civilprozessrechts.' 1 Under the
principle in question, "the as'ertairiment of the true content of the legal
relation between the parties is accomplished by the activity of the
court. Within the limits fixed by law this activity is a discretionary
one, upon which the parties, by means of prayers and motions, may
exercise a supporting, but not a determining influence. The proceeding
thus takes the form of a judicial investigation ('inquisition,' 'instruction')."
A related conception requiring notice in the present regard
is that embodied in the so-called 'Dispositionsprinzip'-literally
"principle of disposition,"-to which, for reasons that will appear as
we proceed, we venture to apply the term "principle of dispositive
election." This principle implies that the party has full control over
his substantive law and procedural rights involved in the cause and
denotes his power of free election as to the exercise or non-exercise
of these rights. Thus one vested with a right of action is not compelled to sue: 'Nemo invitus agere cogatur'; the exercise of the
right by means of the action is left to his unfettered discretion. So,
too, it is for the defendant to say whether or not he will assert his
defense or any part of it.62 And in the domain of purely procedural
rights, the taking or not taking of the sundry procedural steps which
the law permits to the party, at his option, is in virtue of this
principle.
As to the exact degree of relationship which this principle
bears to that of party-presentation, opinions are not in accord. One

60. 159.
61. I 194-195.
62. Kleinfeller op. cit. 182-183.
view considers the latter to be a component of the former. Another

insists upon their conceptual independence.
Thus, on the one hand:
'6 3
"The prinEngelmann, "Der Civilprozess: Allgemeiner Theil.
ciple of dispositive election consists in this, namely, that the party has
the right, by means of jural declarations of will (immediate election)
or by the doing or not doing of procedural acts (mediate election),
to control the legal relation in controversy, while the judge is under
the duty, so far as consistent with the aim of the judicial proceeding,
of heeding these dispositive manifestations as declarations of the parties'
will which are binding upon him
. . . Of this principle of disposi-
tive election the principle of party-presentation forms but one side and
that, as it is said, the reverse. While the principle of dispositive election, as its name implies, characterizes the acts of the parties, the principle of party-presentation defines the scope of judicial action corresponding to the parties' freedom to dispose of their rights."
What this view does, therefore, is to deny to the principle of
party-presentation the double idea, which it involves according to
what seems to be the common acceptation, of (a) party activity,
and (b) judicial receptivity. That double idea the view in question
expresses by the principle of dispositive election, confining the principle of party-presentation to the denotation of the second half, viz.,
judicial receptivity. If this position were sound, it is obvious that
some term other than "party-presentation" would have to be sought
as an English equivalent of 'Verhandlungsmaxime.'
On the other hand:
64
"The
Kleinfeller, "Lehrbuch des deutschen Zivilprozessrechts."
principle which assigns to the parties the free exercise of dominion
over their substantive law rights is known as the 'principle of dispositive election.' This principle is not to be confused with that of partyrepresentation. The principle of dispositive election defines the range
of action in assembling the cause-material; the principle of partypresentation, on the contrary, determines the subject and method of
such action. The principle of party-presentation is the means which
renders possible the parties' exercise of dispositive power, but it does
not give the power itself. There are varieties of procedure where, in
spite of the recognition of the principle of party-presentation, the parties are in whole or in part denied the free exercise of the dispositive
power, where, thus, the controlling principle is the opposite of the
principle of dispositive election, the principle of officiality ('Offizialprinzip'). The principle of dispositive election grants the possibility
of exercising dispositive power over both substantive and procedural
rights
63. 159, 171.

64. 182.
And again:
Bunsen, "Lehrbuch des deutschen Civilprozessrechts."' ' 5 "With the
principle of party-presentation the principle of dispositive election has
per se nothing to do."
The second view commends itself as the better. To treat the
'Verhandlungsmaxime' as a principle relating primarily to the scope
of judicial action is, for one thing, at variance with its etymological
reference to a supervised transaction6 of the parties. Moreover, as
the conception exhibits the judge in a passive, the parties in an
active r6le, it is the function of the parties rather than that of the
judge which ought here to be stressed. In a sense it is true, as
Engelmann maintains, that the 'Verhandlungsmaxime' is included
within the principle of dispositive election, but it is not true in the
sense for which he contends. It is true only to the extent that the former would be non-6xistent without the latter. The real state of the
case appears to be that indicated by Kleinfeller. It is the principle
of dispositive election which gives the party power to do or not do a
given procedural act; it is the 'Verhandlungsmaxime' which enables
him to exercise, in the judicial proceeding, the power thus conferred
upon him. 67 The exercise, under the 'Verhandlungsmaxime,' is thus
always within the limits assigned by the principle of elective disposition. For which reasons, our translation of 'Verhandlungsmaxime' as "principle of party-presentation" may be left undisturbed.
As to whether or not there has been recognized a conception
precisely antithetical to that of dispositive election, the case is not
dear. If there is, it is the one expressed by the so-called principle
of officiality ('Offizialprinzip'). Kleinfeller, as noted above, opposes
the two. Later he says: "The principle of officiality is that principle which deprives the parties of their power over the subjectmatter of the proceeding, so that the official duty of the judge includes nbt only application of the law, but also the scope-determination of the cause-material. The principle of officiality thus is characteristic of a proceeding whose subject-matter, even outside the
cause, is not within the dispositive power of the parties. As the
dominant principle, it may lend to a civil proceeding the properties
of an official proceeding, similar to a criminal cause, as [-by the
German law] in matrimonial causes, guardianship matters, affilia65. 266.
66. See Planek's definition, before quoted.
67. Kleinfeller loc. cit.

'
tion proceedings and proceedings to cancel a declaration of death."
The difficulty presented, however, is that, as thus defined, the principle in question is simply the principle of judicial investigation as
applied to a situation where the dispositive power of the parties is
lacldng "even outside the cause": it is not easy to see in it an exact
correlative of the principle of dispositive election. For other
authors, indeed, "principle of officiality" is merely an alternate
69
means of designating the principle of judicial investigation.
The principle of party-presentation (effectuating, as it does,
the principle of dispositive election) has, in civil procedure, enjoyed
almost uninterrupted dominance from the beginning. It characterized the Roman system in all its three stages, and, to the fullest
extent, the primitive Germanic procedure, in which the court exercised the minimum of judicial function. It entered into the various
systems arising from the fusion of Germanic and Roman elements,
and, subject to more or less qualification, is paramount in all civil
judicatures of the present day.70 The only example of a civil procedure wherein the opposite principle, that of judicial investigation,
has been preponderant occurs in the Prussian legislation of the late
1700s, begun under Frederick the Great. Inspired in considerable
68. Op. cit. 184-185.
69. E. g. Stein "Das Civilprozessrecht" in Birkmeyer's "Encyklopidie
der Rechtswissenschaft' 1180; Heilfron, and Pick "Lehrbuch des Zivilprozess-
rechts" (2nd ed.) 449, note 2a; Kisch "Deutsches Zivilprozessrecht" I 105.
70. Germnany: See e. g. Fitting "Der Reichs-Civilprozess" (12th and
13th ed.) 106; Planck "Lehrbuch des deutschen Civilprozessrechts" I 198;
Heilfron and Pick op. cit. I 449.

France: "Notre procidure civile est d'abord trop abandonnde aux
parties, i leurs avou6s et avocats . . . on dit que les parties sont maitresses
du procs, donc de la proc6dure, que c'est a elles 5 agir et a diriger leur
proeds, qu'elles disposent de leurs droits et par suite de la procedure qui
permet de les faire reconnaitre et respecter, que le juge n'a d'autre function
que de statuer quand 'affaire lui sera soumise: on en arrive ainsi a admettre
que le r6le du juge est jusq'au jugement at peu pres passif." Tissier "R61e
sociale de la proc6dure civile" in "Les methodes juridiques" 120. See, also,
by the same author: "Le centenaire du code de proc6dure," in "Revue

trimestrielle de droit civil" V 647.
Italy: "The sphere to which a judicial pronouncement may extend is
determined absolutely by the demands of the parties." Moreover, "the judge

should not ex officio seek the proof of the facts, nor guide the work of the
parties in that search." Mortara "Principii di procedura civile" (4th ed.)
31, 35.
Sweden: "If, in the ordinary procedure, the so-called 'principle of partypresentation' ('f~rhandlingsmaxime') is not everywhere a rule of rigid applicatiqn, yet it predominates to so essential a degree that it may be said to be
one of the bases of procedure in civil causes."
Brooinm
"Allmanna civil-
processen" in Nordisk retsencyklopxdi" IV (2) 46.

Denmark and Norway: ". . . A second basic principle is that of
party-presentation ('Forhandlingsmaxime'). The parties themselves, in all
essentials-for no guidance from the judge is here to be counted upon or
given-must set forth their claims and the points of fact which support
them, must themselves select and assemble the proofs." Ipsen "Den danske
og norske proces" in "Nordisk retsencyklopodi" IV (1) 38.
measure -by Frederick's obsession that the lawyers were to blame

for the unsatisfactory condition of civil justice, the system which
was evolved sought to minimize their influence by enlarging the
functions of the court. Having its germ in a provisional code
adopted in 1747 for Pomerania, which, as it is said, "anciently was
called 'terra litigiosa', ' 1 1 the new scheme was made general law
in 1781 and, finally, after the accession of Frederick William II,
given perfected form by the General Judicial Ordinance ('Aligemeine Gerichtsordnung') of 1793-5. In this system, the pleadings of the parties were formulated, under the supervision of the
court, by subordinate judicial officials known as "court commissioners" ('Justiz-Kommissare') who also appeared for the parties at the
taking of proof. Representation by advocate was confined to the
argument (in writing) of the questions of law upon which the case
turned. Thus the assembling of the cause-material was under the
control of the court. The change in fundamental principle is pointedly expressed in the Ordinance. While the parties are required to
present the facts according to the best of their knowledge, it is the
right and duty of the judge to be assured of the actual facts of the
case and to make personal investigation to that end. One whose
allegation is denied by his adversary is to acquaint the court with
the means whereby the truth of the disputed point may be discerned; the judge, however, is not bound by these means, "but has
the right and duty to employ, in the search for the truth, other means
appearing from their statements or the connexity of their proceedings, even without the express request of the parties. 7 2 This system remained intact only for forty years, when it began to succumb
under adverse criticism. It was supplanted by legislation of 1833 and
1846, re-intr6ducing in effect the principle of party-presentation."3
The experiment was a remarkable one and one whose failure makes
evident a fact which zeal for procedural reform is, even with us,
sometimes disposed to obscure, namely, that the interesting striving
of two contending parties is, in the long run, an infinitely better
agency for the ascertainment of truth than any species of paternalistic inquiry.
Anglo-American civil procedure, naturally, conforms to the
principle of party-presentation. "The -battles of pleaders which
71. "A summary view of the King's plan for the regulation of judicial
proceedings" by M. Formay, Perpetual Secretary to the Royal Academy of
Sciences and Belles Lettres at Berlin, in "The Frederician Code' p. vi
(Edinburgh, 1761).
72. Schwarz "Vierhundert Jahre deutscher Civilprozess-Gesetzgebung"
479-528. Engelmatn "Der romanisch-kanonische Prozess" etc.. 203 et seq.
73. Engelsann op. cit. 207, 209. But see Schwartz op. cit. 576 et seq.
were fought for six centuries before our lady the Common Law at
Westminster," says Sir Frederick Pollock, "were true to an older
tradition, and the tradition is still alive under all the changes of
outward form. 'The rule that the court is not to dictate to the
parties how they should frame their case is one that ought always
to be preserved. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the
74
Even
rules of pleading which have been laid down by the law.'
the
on
except
court,
the
by
enforced
those rules are not generally
on
issue
to
go
application of a party. Pleaders may let a cause
old
the
under
or
are,
demurrable pleadings if they choose, and there
practice were, many reasons that might make such a choice prudent. . . . According to the immemorial custom of Germanic
procedure, the court will have nothing to do with making inquiries
to find out things for itself. It is not there to inquire, or to do anything on its own motion, but to hear and determine between parties
according to the proofs which the parties can bring forward.
Outside the bounds of manifest public knowledge, the court knows
nothing but what is properly set before it by the parties and, except
for quite recent statutory powers which in England are not much
used, has no means of informing itself. ' 75 And what was true of
the common law court was true, although in lesser degree and in
less spectacular form, of the court of chancery, from the time it
became an organized tribunal. In saying this, we do not overlook
Sir Frederick's observation that "our equity procedure . . . is in
essence officious; it represents (though in modem times one cannot
say that it actually has been) an active inquiry by the court, aimed
at extracting the truth of the matter in the court's own way.'"7
Unquestionably, as compared with those of the common law, its
methods, in one sense, represented an inquiry, but it was an inquiry
whose scope was determined and whose material, in general,. was supplied by the party: it was not such an inquiry as is implied in the
principle of judicial investigation. Whatever of investigative character manifested itself in the chancery procedure was borrowed from
the canon procedure, and that the civil procedure of the canon law at
all times yielded first place to the principle of party-presentation can
admit of no doubt. 7T In fact, the principle of party-presentation
' s
The
has been spoken of as "the canker of the canon procedure."
270.
263,
Div.
38
Ch.
(1888)
Roberts
v.
Knowles
in
J.
L.
Bowen
74.
75. "Expansion of the Common Law" 33-34.
76. Ibid. 15.
77. See Endwnn '"Die Beweislehre" 21-.

78. Brieglieb "Einleitung in die Theorie der summarische Prozess" 5
13 ff. cited by Wieding "Der justinianeische Libeltprozess" 706.
practice of the chancery court taking evidence of its own motion

"to inform the conscience of the judge" 79 does not appear to have
ever been other than an exceptional one 0 and should no more be
deemed indicative of the general principle than the right of a common law judge to call a witness of his own motion. It would have
been strange, indeed, if chancery procedure, the joint product of
canon and common law, had elected to follow as its governing principle one which was the governing principle of neither of its congeners. But any question here existing can relate only to the very
earliest period of the court of chancery, for Sir Frederick, himself,
says that what he considers as originally the ex officio functions of
the court "were already handed over to the parties when equity
procedure became settled, and the procedure, though differing much
in form from that of the common law courts, was in substance no
less contentious." 8'
Nowhere, either at common law or in chancery, does the principle of party-presentation operate more conspicuously than in the
field of proof. "The apportionment of the task of producing evidence is one of the most characteristic features of the Anglo-American system. It is placed wholly upon the parties to the litigation;
it is not required or expected of the judge.18 2 But, as the principle
of party-presentation is nowhere an absolute one, so we meet in our
law with certain recognitions of its opposite, the principle of judicial
investigation. Precisely in the matter of proof is such a one, for it
is a long-established rule with us that the judge "may call a witness
not called by the parties
without derogating from the gen-
eral principle that the risk and burden of producing evidence is

upon the parties themselves."8 " Down to very recent times the risk
and burden, in the matter of allegation, also rested upon the parties,
and upon the parties exclusively. While the court, without objection from the other side, could always turn away a plaintiff whose
allegations disclosed a case not within its jurisdiction,8 ' it could deal
no further with the allegations sua sponte. Any change in the
allegations, as originally put forward, had to come about by action
of the parties.8 5 But, under the reformed procedure, both in a
79.
80.
380-381.
81.
82.
Pollock op. cit. 74.

See Spence "Equitable Jurisdiction of the Court of Chancery" I
Pollock loc. cit.
Wigmore "Evidence" IV 2483.
83. Ibid. 2484.
84. Hill v. Moors 224 Mass. 163.

85. "Pleadings are prepared by counsel, and upon him rests the responsibility for imperfections which may render them unserviceable to the
client. It is not the province of the judge to order a correction of errors or
number of American jurisdictions 6 and in England, the court is

now permitted, in certain cases, to effect amendments of the pleadings, of its own motion. Thus, by the English rules, an amendment
of this kind may be made so as to add or strike out parties plaintiff
or defendant, or "for the purpose of determining the real question
8' 7
To this extent,
raised by or depending upon the proceedings."
been yielded
has
investigation
judicial
of
principle
the
therefore,
place in the field of allegation. The tendency probably is to give it
even further room in both directions, for the ideal lies in some appropriate combination of the two principles, with ascendancy always
reserved for that of party-presentation.
4.
PARTY-PROSECUTION AND JUDICIAL PROSECUTION
The respective functions of party and judge with reference to

the content of the cause are one thing; their respective functions
with respect to the going forward of the cause are quite another.
In the latter regard we must take into consideration the contrast
presented by the conceptions of 'Parteibetrieb' (literally "partyimpulsion") or 'Selbstbetrieb' (literally "self-impulsion"), on the one
hand, and 'Offizialbetrieb' (literally "official impulsion"), on the
other. Adherence to English idiom requires us to translate these
opposites as "party-prosecution"and "judicial prosecution."
Kohler, "Zivilprozess und Konkursrecht" in von Holtzendoiff's
s
"Enzyklopfdie der Rechtswissenschaft":88 "Prosecution of the cause
('Prozessbetrieb') is the activity which urges it forward from stage
to stage. This activity may be assigned to the party or the court.
Accordingly we distinguish between party-prosecution and judicial
prosecution."
Heilfron & Pick, "Lehrbuch des Zivilprozessrechts" :89 "In a system governed by the principle of party-prosecution it is for the party
("ne procedat judex ex officio") to see to the progression of the proceeding by means of summons, production of evidence and the like; in
the removal of defects, though on application he may permit this to be done.'
Ten'Broeck v. Orchard 79 N. C. 518. "A decree, of itself, cannot operate to
change or amend the pleadings. This must be done by the application of
the party, and leave of the court. The court may suggest, or even direct,
an amendment; but, in such case, it remains with the party to amend or
not, as he may elect. It is beyond the power of the court ex mero motu,
to amend the pleadings, or eliminate any part thereof." Caldwell v. King
76 Ala. 149.
86. See Valencia v. Couch 32 Cal. 339; De Celles v. Casey 48 Mont. 568;
Hough v. Porter 51 Or. 318; Cosgrove v. Metropolitan Co. 71 N. J. L. 106.
87. R. S. C., 0. XVI r. 11; 0. XXVIII r. 12; "Annual Practice" (1922)
240, 445, 461.
88. (1913) III 303.
89. (2nd ed.) 1 451.
a system governed by the principle of judicial prosecution, this duty

falls upon the judge."
Engelmann, "Der deutsche Civilprozess" :90 "Where by reason of
the institution of an action, it devolves upon the judge to do all acts
serving to bring about its determination, we speak of 'judicial prosecution'; where it devolves upon him only to do the particular act which
the parties demand as the immediate object of their activity, we speak
of 'party-prosecution.'"
Engelmann, "Der Civilprozess: Allgemeiner Tlheil" :91 "We make
here the distinction between party-prosecution and judicial prosecution,
according as the basic nature of the procedure obliges the judge, on the
one hand, to do only specified acts as requested, or, on the other, all
acts serving to the ultimate determination of the cause. Under the
principle of party prosecution, the party exercises such control over
the claim that the continuation and termination of the suit remain dependent upon repeated motions made by him. Thus, the judicial organ
becomes active only upon such a motion and relapses into inactivity
as soon as the particular thing moved for has been accomplished. Thus,
too, inaction of the party means inaction of the court and brings the
cause to a standstill. Under the principle of judicial prosecution, on the
contrary the court, with the institution of the suit or, in certain special
cases, by the bringing forward of the demand, receives from the hands
of the moving party the duty as well as the right, not only to do the
several judicial acts as they may be requested, but to do all things
necessary to determine the claim itself. In such case it does not relapse
into inactivity until this end has been attained or the party has withdrawn his claim. Care must be taken not to consider as opposites the
principle of party-presentatibn and that of judicial prosecution. . .
That the principle of party-presentation and the principle of judicial
prosecution are compatible is exemplified by the German common law
92
system and the later Prussian."
To put the case in still another way, the principle of partyprosecution represents the phenomenon, with which we are sufficiently familiar, that, in general, the court will take no step in the
case except on motion of the party. Its opposite is that, once an
action has come into being, the court, with or without motion, will
cause to be taken all steps necessary for its due adjudication. But
where the principle of party-presentation obtains, such action on the
part of the court must in nowise infringe the right of the parties,
under that principle, to define the subject-matter of the adjudication.
Along with the principle of party-prosecution there always, and
necessarily, exists a greater or less degree of power in the judge to
direct and supervise the proceeding. He "has to see that the suit
from beginning to end is conducted in the mode appointed by law,
90. 209.
91. 178-179.
92. I. e., from 1846 to 1879. Heilfron and Pick op. cit. I 459, note.
that light and shade are equally distributed, that the parties, without hindrance or restriction, may utilize all means which the law
has given them for the effectuation of their rights and especially
for the adduction of their proof." 93 In other words, "it is selfevident that in the double end of (a) conducting an externally well
ordered proceeding and (b) bringing to examination, in this proceeding, the cause-material as fully and correctly as possible, there
are attributed to the court certain powers in relation to the formal
and substantial shaping of the case, which it is authorized and
required to apply in this regard. The activity which subserves such
double end is known as 'Prozessleitung'."' " This term (literally
"cause-guiding") may be rendered, at the risk of some inexactness,9 5 as "direction of the proceeding" and, by a borrowing from
an English writer/6 we may speak in this regard of the court's
"directive power." The direction in question is classified as formal
and substantial, negative and positive. It is formal when it has to
do with the external progress of the cause, e. g., setting a cause for
hearing, substantial, when it tends to clarify the cause-material,
e..g., examination of a witness by the court. 97 It is negative when
it cuts off the parties from irrelevant measures, positive, "in so far
as it contributes to the commencement, continuation and termination
of the proceeding and insures an adequate basis for judgment."98s
In the Germanic procedure, initiative in prosecution lay entirely
in the hands of the parties. 9 "The parties before the court are
wholly answerable for the conduct of their own cases. Litigation is
a game in which the court is umpire."100 The first two periods of
the Roman procedure-those of the 'legis actio' and formulary
systems-show such initiative to be with the parties in general,' 0"
although the court is not without the right to do certain things on
its own motion.102 In the third period of the Roman procedurethat of the libellary system--the power of the court over the cause
93. Bunsen "Lehrbuch des Civilprozessrechts" 84.
94. Heiipron and Pick op. cit. I 467.
95. In the German literature, the term 'Prozessdirection' has been used
to express only one phase of the conception here involved. Engelmann "Der
Civilprozess: Allgemeiner Theil" 121.
96. Finlacon "An Exposition of Our Judicial System and Civil Procedure as Reconstructed under the Judicature Acts," 89.
97. Engelnann op. cit. 121; Kleinfeller "Lehrbuch des deutschen Zivilprozessrechts" 209-211.
98. Engelmann loc. cit
99. Id. "Der mittelalterlich-deutsche Prozess" 39.
100. Pollock "Expansion of the Common Law" 32.
101. Engeltnann "Der r~mische Civilprozess" 104.
102. See Wieding "Der justinianeische Libellprozess" 709.
became so augmented, 0 3 while still leaving much to party initiative,

that the system may be warrantably treated as one of judicial prosecution.'" The Romano-canonical procedure, especially after the
infusion into it of the large measure of judicial directive power
given by the 'Clementina Sape," 0' may be similarly classed.'09
While its offspring, the German common law system, like itself,
subscribed in formal theory to the maxim "ne procedat judex ex
officio," the extent of control permitted to the court is here, too,
occasion for regarding the system as subject to the principle of judicial prosecution.1 0 7 Under the common law procedure, "the parties
need not act until ordered to do so by the court: to see to the going
,
forward of the cause was the official duty of the judge.
In the Prussian system of 1793-5, the principle of judicial prosecution was a natural corollary of the principle of judicial investigation which there took the ascendant. 0 9 And when that system was
departed from, Prussian legislation, reverting, in this regard to the
principles of the common law, retained the principle of judicial
prosecution along with the substantial re-introduction of the principle of party-presentation." x0 The French system has always conformed to the opposite principle. "It leaves the sequence and time
of the several steps wholly to the discretion of the parties, in the
expectation that the parties' own interest will find the speediest and
most suitable way. The court waits until the parties lay before it a
question as ripe for decision, and, after each decision, is 'd6saisi,'
i. e., it awaits a new act of the party.""' This attribute of the
103. See Bethmann-Hollweg "Der r~mische Civilprozess" III 32-33.
104. So by Heilfron and Pick op. cit I 287, 452, note, 459 note. But
cf. Engelmann "Der r~mische Prozess" 152-153.
105. Engelnwnn "Der romanisch-kanonische Prozess" etc. 135.
106. "In the ecclesiastical practice, every step in a cause regularly takes
place in open court, under the direction and supervision of the judge . . .
the court is active, assuming the supervision and control of the proceedings
in an action from beginning to end." Langdell "Summary of Equity Pleading" (2nd ed.) 43, 45.
107. Heilfron and Pick op. cit. I 459, note; Engelmann "Der Civilprozess: Allgemeiner Theil" 179; Stein "Der Civilprozessrecht" in Birkmeyer's "Encyklopfdie der Rechtswissenschaft" 1185. 'Cf. Engelmann "Der
romanisch-kanonische Prozess" etc. 135.
108. Stein ubi sup.
109. Heilfron and Pick loc. cit.; Schwartz "Vierhundert Jahre deutscher
Civilprozess-Gesetzgebung" 524.
110. Heilfron and Pick op. cit. I 459, note; Engelumnn "Der Civilprozess: Ailgemeiner Theil" 179.
111. Stein ubi sup. "Un caractire essentiel de la procidure franiaise,
c'est qu'elle est dirigde par les parties: le demandeur n'a pas besoin d'autorisation du tribunal pour assigner le ddfendeur, et c'est aux deux parties A
chercher les moyens d'instruction les plus utiles i leur cause, et i les proposer
aux juges dont l'office se borne y prdsider, s'ils les jugent admissibles, et,
dans le cas contraire, A les dcarter." Garsonnet and Cizar-Bru "Trait de
French system has found its way, in part, into the existing German
by what
procedure. In general, therefore, the latter is characterized
112
party-prosecution."
"modified
a
as
described
is
The Anglo-American procedure, it is scarcely necessary to say,
-has at all times allowed the upper hand to the principle of partyprosecution. It has left it to the plaintiff to urge forward the cause
in chief, to the defendant to prosecute his defense. To see that a
party acted in his own interest or to act in his stead it has never
regarded as part of the judicial office. Failure to act it attends with
certain disadvantageous consequences, but under this sanction, it
leaves the parties untrammeled. Here as elsewhere, however, a certain measure of directive power is wielded by the court. In the
common law procedure, outside the actual trial of the case, that
power, for the most part, is of the kind above described as formal,
i. e., relating to the external progression of the cause, and of a very
limited character at that. But at the trial its applications may be
those of substance, among which are to be included three of Bacon's
"four parts of a judge in hearing," viz., "to direct the evidence; to
moderate length, repetition or impertinency of speech; to recapitu-"
late, select and collate the material points of that which hath been
said."' 1 3 Exclusion of evidence on the court's own motion, examination of a witness called by the parties, regulation of the arguments of counsel, direction of a verdict sua sponte, charging the
jury, are all instances of the exercise of this substantial power. But
the common law has a uniform course of proceeding for all casestrial by jury upon the issues of fact developed by the pleadings, trial
by the court where the issue relates to matter of record,--from
which it is not at liberty to depart. There is an almost complete
absence of that form of directive power which consists in adapting
4
In the chancery
the. course of proceeding to the particular case.1
procedure the directive power is much larger. Not only .does the
Procedure" (3rd ed.) II 45. In the course of a brilliant argument for increase of the directive power of the French judges, Tissier says: "Nous
avons en France une conception.trop individualiste de la proc6dure civile.
On consid&re volontiers le proces comme un duel dans lequel les deux
parties peuvent fixer le moment de la lutte et dans lequel aussi chacun a le
droit de profiter des fautes de son adversaire." "Le centenaire du code de
procedure" in "Revue trimestrielle de droit civil" V 652. citing Jacquelin
"-volution de la procdure. administrative" 18 et seq.
112. Bunsen "Lehrbuch des deutschen Civilprozessrechts" 287; Engelmann "Der deutsche Civilprozess" 209. The Austrian Code of Civil Procedure ('Civilprozessordnung') of 1895 has been highly praised for the
extent of directive power which it assigns to the court. Tissier op. cit. 649
et seq.; Schtartz "Vierhundert Jabre deutsche Civilprozess-Gesetzgebung"
692 et seq.
113. "Of Judicature."
114. Finlason "An Exposition of Our Judicial System," etc., 89, 294.
court have greater latitude in respect to the external progression of

the cause, greater latitude in dealing with the evidence, but the
system of references to masters and the right to direct an issue of
fact for trial before a common law court, enable it, in a not inconsiderable degree to adjust the course of proceeding to the cause.' 15
This degree, however, was small as compared with what it has
since become, in England, for common law and equity causes alike.
Under the judicature Acts, the directive authority in general, and
especially the branch of it last mentioned, have experienced a notable
development The powers given by the Judicature Act of 1873 and
the Rules of 1875, with regard to direction by the court of inquiries
and accounts, of the formulation of issues, of the stating of a special
case, of reference to a referee, of trial by a judge alone or by a
judge with a jury or with assessors, of the trial at different times
and in a different mode of separate questions of fact in the same
cause, marked a striking inroad upon the principle of party-prosecution."16 But this inroad has been made even deeper by the Rules of
1883 and later years. The institution of the summons for directions
under which the Master, in the first instance, now "decides how the
action is to be conducted from appearance till judgment .
and
may give whatever directions he thinks right, though neither

party has asked for them,"111 even to dispensing with pleadings,
"exhibits the continued increase of official control over the conduct
of actions, as opposed to free liberty for the litigants to do as they
'
The English rules have not assigned to the court the
see fit."""
German common law courts' function of seeing to the forward
movement of the cause: they have by no means dethroned the principle of party-prosecution. -But while leaving this principle paramount, they have elevated the directive power to a position probably
higher than that which it occupies in any other existing system of
civil procedure. The present tendency of procedural reform in
America, reacting from the distrust of the judiciary evinced by state
legislation of the early and middle 1800s, is likewise in favor of
extending the directive power. It hesitates, however, at driving this
to the English extreme.
5.
SEQUENCE, PRECLUSION AND CONTINGENT CUMULATION
A system of procedure may or may not provide for the vertical

division of the cause into stages each of which is assigned for the
115. Op cit. 90-91. ,
116. Op. cit. 299, 300, 305, 325, et seq.

117. Odgers "Principles of Pleading and Practice" (7th ed.) 65, 66, 67.
118. Rosenbaugm "The Rule-making Authority" 108.
taking of certain procedural steps. Of such division, represented

in our own system chiefly by the separation of allegation and proof,
the most highly organized example, perhaps, is afforded by the fourteen or fifteen terms of the Romano-canonical procedure, beginning
with the term 'ad dicendum contra commissionem' (i. e., for challenging the authority of the judge) and ending with the term 'ad
producendum omnia instrumenta, acta et munimenta,'-the term "to
propound all things" of the English ecclesiastical courts-followed
by the formal 'conclusio in causa."' 9 Where the proceedings, under
the law are articulated in this wise, the system is said to be governed
by the principle of legal sequence ('Prinzip der gesetzlichen Reihenfolge'). Where such articulation is not so prescribed, the governing principle is that of discretionary sequence ('arbitriire Reihenfolge'). 120
Given the existence of such stages, it may or may not be the
rule that a particular step must be taken at the allotted stage or not
at all. When such is the rule we speak of the existence of "preclusive stages" ('Prd.klusivstadien') .121 Operating here is the principle of preclusion ('Priiklusivprinzip'), which is simply the expression of the indispensable idea, obviously present, to a greater or
less degree, in all systems, whether the procedure is articulated or
not, that a party who fails to act at the time appointed is thereafter
barred or precluded from acting. For preclusion resulting from the
presence of stages, the German literature has no special name, but,
for the sake of brevity, it will be referred to here as "stage-preclusion."
What has been termed (though not. it would seem, with entire
exactness) an "artificial exaggeration"' 122 of the principle of preclusion is found in the so-called 'Eventualmaxime' or principle of
"eventuality." which may -be more conveniently designated in English as the principle of contingent cumulation. This might also be
termed the principle of mass-attack or mass-defense, since what it
insists upon is that the party at a given stage bring forward simultaneously, and not consecutively, all items of allegation or proof per119.
Engelmnanyt "Der romanisch-kanonische Prozess" 68; Stein "Das
Civilprozessrecht"
1190.
120.
in Birkinwyers "Encyklopddie der .Rechtswissenschaft"
Stein op. cit. 1185. Engelnmnn, following Menger, distinguishes be-
tween the principles of 'formale Ordnung' and 'arbitrire Ordnung,' that is

to say, formal and discretionary order of proceeding. "Order of proceeding,"
in this sense, includes not only the idea of sequence in the procedural steps,
but also that of fixation of time and place. "Der Civilprozess: Allgemeiner
Theil" 195.
121. Engelnzann op. cit. 206.
122. Ibid. 209.
taining to that stage, whether consistent or inconsistent with each

other, even though the disposition of one of these items would render
unnecessary consideration of the others.
Bunsen, "Lehrbuch des deutschen Civilprozessrechts":123
"Accord-
ing to the principle of contingent cumulation, every step pertaining to a

given stage was required to be taken at that stage . . . Since dissimilar steps, e. g., the denial of the plaintiff's allegations and the lodging of a plea in confession and avoidance (exception) had to be taken
at the same time, the union was only 'in eventum,' that is to say, the
one allegation or act was joined only for the event that the other turned
out to be unsuccessful. Hence the name 'Eventualprinzip."'
Heilfron & Pick, "Lehrbuch des Civilprozessrechts."' 124 "The
principle of contingent cumulation is the principle under which the
cause is divided into a number of different stages, in each of which
the party, to prevent its exclusion, must bring forward all the material
upon which he intends to rely for that stage. Thus, he must adduce
'in omnem eventum' even the material which he proposes to use only
as a second line of attack or defense, that is to say, in the event of
need."
Von Bar in von Holtzendorff's "Encyklopidie der Rechtswissenschaft."' 25 By this principle it is prescribed "that all means of attack
and defense, concurring to the same end, shall be presented once for all
and disposed of together at the appropriate stage, even if one or more
of these means are such as to become of importance only after the
failure of the preceding (principal) means with which they are joined."
Engelmann, "Der Civilprozess: Allgemeiner Theil."'' 26 The principle in question "requires the simultaneous presentation of all allegations and proof directed to a given end for the case ('in omnem
eventum') that this end is not attained by a single allegation or item
of proof. It is also known as 7the principle of concentration ('Konzentration der Rechtsbehelfe')."'2
So far as a contrasting principle is identified -by name it is that

denoted by the principle of unity of the cause ('Einheitlichkeit';
'Einheit der Verhandlung') or procedural freedom ('Prozessfreiheit') which signifies that, the parties being in court, allegation or
proof may be presented as need arises down to the time of judgment.' 28 But, as is evident from the use of the word "unity," this
principle excludes the idea of any preclusion arising from the existence of stages129 (apart, of course, from the case of default) and
123.
124.
125.
126.
127.
maxime'
328, note.
(2nd ed.) I 457.
(1882) I 737.
208-209.
For a somewhat different application of the term 'Konzentrationssee Kleinfeller "Lehrbuch des deutschen Zivilprozessrechts" 195.
128. Heilfron and Pick op. cit I 457; Bunsen op. cit. 327, note 1; Kleinfeller op. cit. 279.
129. See Heilfron and Pick op. cit. I 458.
so fails to present a direct antithesis to the principle of compulsory

cumulation. In other words, it is antithetical not only to the last
mentioned principle but to the principle of stage-preclusion as well.
The idea of stage-preclusion finds place in the early history of
judicature: it appears both in the Germanic and the Roman procedures. The Germanic, occupied as it was with the task not of
deciding the controversy, but of regulating the proof, utilized a
succession of stages for the performance of this task. While the
whole number of such stages was variable, three were constant.
The first was for determining whether the parties were properly
before the court, the second for determining which party should
have -the right to make proof, and pronouncing "that famous 'Be'
weisurtheil,' which disposed of cases before they were tried,"' the
third for overseeing the proof and determining whether it had succeeded. Each stage was dosed by a judgment which, unless formally impeached, irrevocably concluded the parties as to the question
upon which it passed.' 3' In the Roman procedure, during its first
two periods, the separation between 'jus' and 'judicium' accomplished
a similar result.132 When, in the 'legis actio,' the prmtor concluded
3
the hearing 'in jure' with the words "Diis honorem dico,"'1 it stood
established that the action chosen by the plaintiff well lay, that the
defendant had denied the plaintiff's right and that, accordingly, the
34
controversy was to move within certain lines.1 When, under the
formulary system, he awarded the formula to the plaintiff, the scope
of the controversy was definitely fixed: neither the elements of the
claim nor the basis of the defense was susceptible of change. With
the advent of the libellary system, however, and the disappearance
of the distinction between 'jus' and 'judicium,' the procedure became
a unitary one. Except for dilatory defenses, the parties were at
liberty to advance new allegations and proof down to the rendition
of judgment. 35 In the Romano-canonical procedure, the stages
which we meet with, as indicated above, take the form of set terms
130. Thayer "Preliminary Treatise on Evidence" 9.
131. Engelmann "Der mittelalterlich-deutsche Prozess" 107 et seq.;

Schwartz "Vierhundert Jahre deutscher Civilprozess-Gesetzgebung" 413, 417.
132. Heilfron and Pick op. cit. I 457, note; 'von Bar op. cit. 737. But
this was merely an external phenomenon. The action or cause, accurately
were
speaking, was the 'judicium' alone. The previous proceedings 'in jure'
of an administrative, not of a judicial nature. Engelmann "Der romische
Civilprozess" 164, 134-135. And see Schwartz op. cit. 414.
133. Engelmann "Der r5mische Civilprozess" 166.
134. See Bethmann-Hollweg "Der r~mische Civilprozess"I 119-120, 179;
Karlowa "Der r~mische Civilprozess zur Zeit der Legisactionen" 341 et seq.,
346 et seq.
135. Engelnmnn "Der r~mische Civilprozess" 168; Bethmann-Hol weg

op. cit. III 290, 266-267.
assigned for the performance of the various procedural acts. But

apart, again, from the case of dilatory exceptions, there is no absolute preclusion for failure to act at the appointed term. 38 The
'Clementina Sape' .in providing a form of summary proceeding'8 7
abolished, for that, the stated terms and, at the same time, by the
extensive power over dilatory exceptions 13 8 which it conferred on
the judge, furnished, as it is said, the germ of the principle of contingent cumulation. 39 In the German common law procedure, the
original scheme borrowed from the 'solennis ordo' of the Romanocanonical system became influenced by surviving Germanic ideas of
precedural segmentation and preclusion.1'
The Romano-canonical
terms were substantially modified,' but, under the influence of the
practice prevailing in the courts of Saxony, the old Germanic proof
judgr~ent was called into service and adapted to the new method of
proof in such wise that the cause fell into three rigid stages.142
The first stage was that of allegation, closed by a proof-judgment or
interlocutor prescribing (a) the matter to be proved, (b) the burden
of proof and (c) the place of proof. In the second stage took place
the proof-proceeding. The third stage was occupied by the written
arguments and was closed by the final judgment. By the proofjudgment the parties were concluded as to allegation, by the proofproceeding as to proof. 43 Moreover, "the stages of allegation and
proof had each subordinate stages of a preclusive character."' 44 It
is in this system that the principle of contingent cumulation first
136. Engelmann "Der romanisch-kanonische Prozess" 68, 58; Schwartz
op. cit. 414-415.
137. Incidentally, it is this summary form which influenced the English
chancery procedure ". . . there is . . . authority to show that all suits
in chancery were regarded as summary from the earliest times. In summary
causes the judge was said by the canonists to proceed 'simpliciter et de piano,
ac sine strepitu et figura judicii' (constitutions of Clement V, B. 5, tit. xi, c. 2
['Clementina saepe']). And in a report made to the chancellor in the time
of Elizabeth, by two masters in chancery, who were also doctors of civil
law, it is said: 'The judge (in chancery), may and ought to proceed summarily, "de piano sine figura judicii."' Acta cancellarie, 613." Langdell
"Summary of Equity Pleading (2nd ed.) 47, note.
138. Von Bar "Der Civilprozess" in von Holtzendorff's "Encyclopedie der
139. Engelmann "Der romanisch-kanonische Prozess," 87-88. But this
germ is really to be sought in a previous papal enactment, viz., a decretal
of Innocent III, issued in 1204: "decernimus, ut infra certum tempus a iudice
assignandum omnes dilatoriae proponantur." Corp. Jur. Can. Cap. IV de
exc. 2, 25 -, von Bar loc. cit.; Schwartz op. cit. 76; Engelinann.op. cit. 58.
140. Schartz op. cit. 415 et seq.
141. Ibid. c. III, passim.
142. Ibid. 418 et seq.; Engelinann op. cit. 124, 129.
143. Engelitann op. cit. 136-137.
144. Kohler "Zivilprozess und Konkursrecht" in von Holtzendorff's
"Enzyklop~die der Rechtswissenschaft" (1913) III 327.
attains to full dominion. It was already the rule of the canon law
that dilatory exceptions should be cumulated.4 5 To this was added,
first, the requirement that all peremptory exceptions should be put
in simultaneously and, later, the requirement that the peremptory
exceptions should be united with the denial. 4 6 Finally, by the Recess of 1654, already mentioned, it was prescribed that all defenses
of whatsoever kind, whether dilatory or peremptory (save only
those declinatory of the forum, or, as we would say, pleas to the
jurisdiction), were to be pleaded together "on pain of preclusion,"
4 7
and that the plaintiff should proceed in like manner in his replies.1
In practice the same principle was extended to the adduction of
proof. 48 The object of this measure, as of those preceding, was the
prevention of delay, but, says Kohler, in language reminiscent of
some over-fervid denunciations of our own common law system,
the principle which it established "led to monstrous formalism and
basic eccentricity, so that finally a party was compelled to allege
wholly contradictory things, the one in the first line, the other for
the case that the first was unavailing: the presentation of the case
was a most unnatural one and, what is more, the use of such contradictory allegations prejudiced the cause of candor and honorable
dealing."'14 9 The Frederician reforms, in installing the principle of
judicial investigation in the Prussian procedure, denatured the principle of contingent cumulation by turning, it into what was substantially a precatory form, and the wide discretion which the court was
given here over the conduct of the proceedings reduced the operation of the principle of preclusion everywhere to a minimum.15 By
the Prussian legislation of 1833 and 1846, however, the separation
of the cause into stages was resumed in a modified form and the
principle of contingent cumulation was again given clear recognition.' 5 '
Aside from the case of dilatory and formal defenses, no
rigid stages exist in the French procedure, which was largely influ145. Ante, note 139;, Schwartz op. cit. 76.
146. Kleinfeller "Lehrbuch des deutschen Zivilprozess" 194; Schwartz
op. cit. 76, 82-83.
147. Schwartz op. cit. 118. Engeltnann "Der romanisch-kanonische
Prozess" 140; von Bar "Der Civilprozess" in von Holtzendorff's "Encyklopidie der Rechtswissenschaft" (1882) I 737; Wieding "Der justinianeische
Libellprozess" 734. A similar provision in the Recess of 1570 had become
ineffective through opposition of the practitioners, Schwartz 109-110. See
Kleinfeller "Lehrbuch des deutschen Civilprozess" 194.
148. Von Bar op. cit. 738.
149. Op. cit. 263.
150. Schwartz op. cit. 523 et seq. See Heilfron and Pick op. cit. I 295,
459, note.
151. Schwartz op. cit. 576 et seq. 583; Engelmann "Der romanischkanonische Prozess" 208-209.
enced by the 'Clementina Sxpe' in this and other regards, 152 nor
does it exhibit more than slight traces of the principle of contingent
cumulation. 53 The order of the proceedings is determined by the
parties themselves, and, on the merits, allegations and proof are
precluded only by the rendition of judgment. 15' Subject to a higher
degree of directive power on the part of the court, 155 a similar freedom of action is left to the parties by the existing German system.
It presents "no stage which serves a given end and is not capable of
serving any other. The Code of Civil Procedure thus stands in
opposition to the common law procedure in so far as it excludes the
idea of two stages of the cause,--in one of which nothing but allegation and in the other nothing but proof may be brought forward,-separated by an irrevocable judgment." Dilatory exceptions must
be disposed of before the hearing on the merits. This apart, it is
the general rule that "preclusion of a party from the use of his
means of attack or defense comes about only with the rendition of
judgment; down to this point of time each party at any hearing-day
may adduce new allegations and withdraw previous allegations, as
well as bring forward new means of proof and new proof-exceptions
('Beweiseinreden'). The right to adduce new allegations, however,
does not permit the plaintiff to change in substance his cause of
action."' 56 This qualification, indeed, is true not only of the German procedure, but of all unitary systems originating in the
Roman law, from -the Roman libellary system down. Ordinarily
the right to such a change ('mutatio libelli'; 'Klageinderung') is
152. Kohler op. cit. 262; Heilfron and Pick op. cit. I 295.
153. 169, Code de procddure civile, expressly provides that a declinatory
exception ("demande en renvoi") shall be advanced before any other exception or defense. By 186, dilatory exceptions, as recognized under French
law, must likewise come before a defense on the merits, but if there is more
than one, they must be put in together. While the FrCnch law recognizes a
considerable number of exceptions, classifiable as peremptory under the
canon law, these are all objections to the form of the procedure, never
defenses to the merits. They are not called "peremptory exceptions," but, in
general, "exceptions de nullit" or simply "nullitds." For the whole class of
exceptions, as thus constituted, declinatory, dilatory and "nullits," all of
which must precede defenses on the merits, a certain order of pleading is
prescribed with preclusive effect. Thus dilatory exceptions, while requiring
to be pleaded together, come before one species of "nullit" and after another.
Glasson "Prdcis de proc6dure civile" (2nd ed.) I 682-683, 714. See Garsonnet
and CGzar-Bru "Trait de procedure civile" (4th ed.) III 5 et seq.
154. Stein "Das Civilprozessrecht" in Birkmeyefs "Encyklopidie der
Rechtswissenschaft" 1192; Schwartz op. cit. 607.
155.
See Tissier "Le centenaire du code de procedure" in "Revue
trimestrielle de droit civil" V 648-649.

156. Engelmann "Der deutsche Civilprozess" 77, 78.
gone after the defendant has joined in contesting the action. 15 7 In

the Scottish procedure a certain caesura of the cause is effected by
the interlocutor which "closes the record" after the settlement of the
pleadings. Following the Judicature Act of 1828168 no amendment
of the pleadings, at all substantial, was allowed after the close of
the record, except in the case of matter of fact 'noviter veniens ad
notitiam,' but this was changed by the Court of Session Act of
1868 ;"59 and "the rule now is to allow, upon certain conditions, any
and every amendment to be made, even after the record has been
closed, which is necessary for the just decision of the cause between
the parties to it,"' 60 subject to the prohibition of certain basic
changes in the plaintiff's demand. 6 ' Moreover, the Judicature Act
of 1828 introduced the principle of contingent cumulation in almost
exactly the same way as did the German Imperial Recess of 1654.
For it provided that all grounds of defense. both dilatory and peremptory, should be stated at one and the same time. And the repeal
62
of the provision in question has not changed the rule in practice.
True to its Germanic origin, the English common law procedure
has made conspicuous use of the principle of preclusion. The distinction between the two main stages of allegation and proof, not
occasioned, but necessitated by the existence of jury trial, has been
at all times, and more especially since the introduction of written
pleadings, one of its strongly marked characteristics. In the chancery'procedure, from the Romano-canonical influence and the very
nature of the court, preclusion is by no means the same keen-edged
instrument. There is separation between the stages of allegation
and proof, but no inflexible barrier divides them.
So far as a change in the original allegations is concerned, the
common law separation between allegation and proof has operated
preclusively, but this is only the continuation of an earlier and narrower preclusion. The original writ, in its quality of delegation of
royal authority to hear the case, definitely sets the bounds of the
plaintiff's demand and effectually prevents a change in the basic
character of the cause of action: in Roman terms there can be no
'mutatio libelli.' As to the defense the early rule is not strict at all.
157. Wieding "Der justinianeische Libellprozess" 692; Conset "Practice
Courts (2nd ed.) 79; Boehnzer "Principia iuris canonici"
of
513.the Ecclesiastical
158. 6 Geo. IV c. 120 s. 10.
159. 31 and 32 Vict. c. 100 s. 29.
160. Mackay, "Practice of the Court of Session" 1 482-483.
161. Ibid. 485-487; Monteith Smith "Amendment of Record" in Green's
"Encyclopaedia of Scots Law I 217.
162. Mackay op. cit. I 430; Monteith Smith "Defenses" in Greciz's
"Encyclopaedia" IV 156.
In the days of oral pleading there is much latitude in the amendment of the defensive statements, as also of the plaintiff's counterallegations. But when the party "finally rested his case, that was
the plea that was entered upon the roll, and abided the judgment of
the inquest or of the court, according as it was a point of law or
fact."' 6 3 With entry on the roll and expiration of the term the
allegation is beyond recall. So when, for the allegations, writing has
taken the place of the spoken word, amendments may come only
when the pleadings are 'in paper.' After entry of record, there can
be no amendment at a subsequent term. 164 Surely in this we get a
glimpse of the lockfast segments of the Germanic procedure. Two
palliatives of the rule develop in the course of time. First, there is
the practice of not entering any of the proceedings of record until
the exigencies of the case demand, until, that is to say, demurrer
book or nisi prius roll must be got ready for hearing of issue of
law or trial of issue of fact. In the second place, there is the increasing tendency not to apply the rules too strictly. But, once the
trial of fact has been commenced, the possibility of amendment
disappears: the distinction between allegation and proof comes in
this way to mark the line of preclusion. This condition endures for
a long period and is not relieved until legislation comes to the
rescue. The process is begun in America: in England it is not until
the statutes of 9 Geo. IV c. 15 and 3 & 4 Win. IV c. 45, permitting
amendments to cure variances arising at the trial that some measure
of relief is afforded the suitor. Later legislation has everywhere
brought it about that the court has full discretionary power to permit amendments down to the time of judgment, taking care that no
prejudice is worked to the opposite party. In the chancery procedure, on the other hand, the attitude toward amendment has
always been a benignant one. It insists that the plaintiff by amendment shall not make an entirely new case, but that entirely reasonable requirement is the extent of its absolute prohibition. Though
it will not in general allow the pleadings to be changed after examination of the witnesses, it will depart from this rule in special
instances. 65 So flexible are its methods in this regard that it scarce
needs the aid of latter-day legislation to wield the full measure of
amending power.
Another notable manifestation, in the common law system, of
the principle of preclusion, as directed to allegation, is occasioned
163. Reeves "History of English Law II 223, cited by Holdsworth
"History of English Law" III 482.
164. Bac. Abr. "Amendment and Jeofail" (A), (G).

165. Mitford "Pleadings in Chancery" (5th ed.) 385-388.
by the rigid sequence which it prescribes for dilatory pleas. These

must be pleaded in a certain order, so that if a plea of, say, the
third class, is held bad on demurrer, it is too late for the defendant
to interpose a plea belonging to the first or second class. The defendant, in other words, is precluded from falling back on a defense,
anterior in point of order to the one which has been found insufficient in law. This institution is adapted from the Romano-canonical
learning. 166 It is not improbable, however, that its remoter origin is
16 7
TChanto be found in Germanic ideas of procedural segmentation.
cery, on the contrary, does not develop any very distinct doctrines
on this point, having comparatively little occasion to deal with
declinatory or dilatory defenses. Theoretically, perhaps, it recognizes a preclusive sequence as between dilatory pleas, but we hear
8
little or nothing of its application. 16
Our common law procedure, too, in its later stages gives place
to the principle of contingent cumulation, though within much
straiter confines than either the common law system of Germany or
the Scottish procedure. When, in 1704, the Statute of Anne, departing from the tradition of singleness,, permitted the use of plural
pleas in bar, by leave of court, it did not in terms prescribe that all
should be pleaded together. But the character of the system was
such as not to permit an instant's doubt that this had to be the case.
Accordingly, the defendant, availing himself. of this enactment, of
necessity pleaded 'in omnem eventum.' In its very essence, each
plea was a complete answer to what it purported to answer, and the
use of a number of pleas was necessarily for the event that one or
more, less than all, should turn out to be incapable of proof. It
thus became the common and almost constant practice to join inconsistent defenses, mutually contradictory in point of fact, i. e., traverses with pleas in confession and avoidance. In the chancery procedure, this principle was only sparingly admitted. Lord Redesdale's
reason for the general rule against the use of double pleas, viz., that
it would lead to the court deciding "upon a complicated case which
might not exist,"'' 69 sums up one of the most powerful arguments
166. Pollock and Maitlaid "History of English Law" (2nd ed.) II 614.
167. See Schwartz "Vierhundert Jahre deutscher Civilprozess-Gesetzgebung" 416, citing Planck "Beweisurtheil" 43. Such a prescribed order
appears to have been unknown to the Roman law. Wieding "Der justinian-
eische Libellprozess" 54-56.

168. See Beames "Pleas in Equity" 53, 57-60, cited in Story "Equity
Pleadings" (10th ed.) 591 note 4, 593 note 3. As appears from the latter
reference, the lack of any thoroughly established rules on the point is evidenced by the observation attributed to Lord Thurlow that he "did not know
what a plea in abatement in equity was."
169. Mit-ford "Pleadings in Chancery"' (5th ed.) 296.
34
against this principle. Yet, in :so far as the defendant used his
answer as a pleading, there was no obstacle to his including more
than one defense within its allegations, and if he sought to rely upon
more than one defense by answer, all, in principle, were to be stated
in the one document. But there was no room here, as there was at
law, after 1704, for alleging together defenses which were mutually
contradictory,--especially as, save in rare instances, the answer was
under oath.. In its chancery rather than its common law form the
principle in question is carried into the American codes: the defendant by his answer is allowed to allege any number of defenses
provided that these are consistent in point of fact. "Only one
answer is contemplated, and all the defenses which he elects to make
must be-embraced within it. ' '17o But in all except a very few Code
jurisdictions it is stretched, in one direction, to its fullest extent by
requiring matters in abatement to be included along with matters in
bar. 7 ' The principle has also found lodgment in the English procedure under the Judicature Acts. Here matters in abatement are
presented, in effect, by summary motion, but so far as matters
peremptory are concerned, the defendant, subject to the right of the
court to strike out "embarrassing" matter, may "raise by his statement of defense, without leave, as many distinct and separate, and
therefore inconsistent, defenses as he may think proper.' 72 And
all defenses upon which he intends to rely must be so included in
the single statement of defense. Since the Rules wisely refrained
from the American Code measure of requiring the answer to be
under oath, the principle as it now exists in the English practice is.
rather that of the common law than of the chancery procedure,
defenses inconsistent in point of fact being to a certain extent permitted.93 It is thus interesting to notice how procedural legislation,
in different lands and at different times, has sought to utilize this
principle of contingent cumulation for a common end, that of expediting the disposition of the cause. In the German common law
system, the unfortunate effects which appear to have attended its
introduction seem to have been due not to any inherent fault of
170. Bliss "Code Pleading" (3rd ed.) 345.
171. Ibid.
172. Per Thesiger, L. J., in Berdan v. Greenwood 3 Ex. D. 255, cited
in Odgers "Principles of Pleading and Practice" (7th ed.) 215.
173. "Now I cannot construe that Order [0. XIX r. 4] as prohibiting
inconsistent pleadings . . . There is no difference in this respect between
the practice in the Chancery Division and the practice in the Queen's Bench
Division, where, we know. ever since the Judicature Acts have passed, inconsistent defenses, such as never indebted and payment, are daily pleaded, and
they give rise to no trouble." Per Lindley, L. J., in In re Morgan, 35 Ch. D.
492, 500-501.
the principle but to the stringent preclusion with which the statute
expressly attended it, as well as the peculiarities of the structure
into which it was knitted. Under all the Anglo-American systems,
however, the application of the principle at the present day is constantly tempered by the discretionary power of the court to permit
amendments of the pleadings. So that, with us, it represents, in the
words of von Bar, as applied to its rudimentary form in the Roman
ecclesiastical law, "not a rigid rule but a canon of expediency which
1 74
gives way to considerations of justice."
With preclusion in the field of evidence the Anglo-American
procedure is likewise acquainted, but chiefly on its common law side.
Common law trial by jury has required that the presentation of the
facts shall be conducted at a single hearing, interrupted only by the
necessities of rest and nutrition., It has required, also, that, once
the case has been closed and submitted to the jury, no additional
evidence shall be presented. Within the lines thus laid down, however, the regulation of the order of evidence is, in the main, left to
the discretion of the court. An item of proof, for example, omitted
from the case in chief may, by the court's permission, be introduced
in rebuttal. For the orderly conduct of business, and for that reason only, is the trial divided into stages; none of these stages works
absolute preclusion. Not until the jury has retired to consider its
verdict does a strict line of preclusion appear. Severance of the
questions of fact for the purposes of -trial, as may take place under
the English rules, necessarily brings this principle of preclusion into
greater play. On the chancery side preclusion as to evidence is yet
further deferred. Under the classic practice, new evidence might
even be received on a petition for rehearing or on appeal from the
Rolls to the Lord Chancellor.175 No absolute line of preclusion is
17
And modern
reached until the formal enrollment of the decree
legislation, certainly, has not made the rule any stricter. In both
systems allegation is a condition precedent to proof, but preclusion
of the evidence for want of allegation depends upon the extent to
which new allegation is precluded, or, in other words, upon the possibility of amending at the trial or hearing.
It is a common remark of the German procedurists that the
principle of contingent cumulation is incompatible with an oral as
174. "Civilprozess" in volt Holtzendorf's "Encyklopidie der Rechtswissenschaft (1882) I 737.
175. Maddock "Chancery Practice" (2nd ed.) II 483, 578.
176. Blackstone Comm. III 454.
distinguished from a written procedure. 7 7 This is undoubtedly true

in a procedure like that of present-day Germany where the definitive
pleadings are the oral statements made, at least in principle, at the
time of submitting the evidence, and the trial itself is without a
jury. For in that case it may well be said that "the oral proceeding
only permits the doing of one thing after another.' 7 8 The natural
method of proceeding, then, is for the judge to hear and decide the
several questions seriatim. Not so with the oral procedure of our
common law system. The common law trial by jury permits of no
such flexibility. The jury is there to try all the issues and these are
to be submitted to them en bloc. Consequently, whenever the defendant interposes a double defense, both points, however inconsistent, have to -be submitted to one and the same jury at one and the
same time. Thus, the principle of contingent cumulation, ever since
its introduction into the common law system, has operated there in
the field of evidence as well as in the field of allegation, notwithstanding the orality of the proceedings. By the singularly felicitous
provision of the English Rules alluded to above, it is open to the
court to prevent this undesirable situation. For that provision
gives 'the court power to order that "one or more questions of fact be
tried before the others,' '1 79 and thus enables it to take the verdict
of the jury seriatim on each of several defenses interposed by the
defendant. So that, as in the German system, a decision for the
defendant on the first of two grounds of defense would render it
unnecessary to deal with the other.
(To be continued)
177. Kleinfdler "Lehrbuch des deutschen Zivilprozessrechts" 194; Engel-
mann "Der Civilprozess: Allgemeiner Theil" 209.

178. Kleinfeller loc. cit.
179. R. S. C., 0. XXXVI r. 7.

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THE FORMATIVE PRINCIPLES OF CIVIL

It is probably safe to say that the influence of the Roman law

18 ILLINOIS LAW REVIEW

Acts, and more and more finding favor in American jurisdictions,

PRINCIPLES OF CIVIL PROCEDURE

of development. So varied, in respect both of time and place, have

Dans les Uni-

versit6s, l'6tude de la procedure est languissante; les chaires de procedure

18 ILLINOIS LAW REVIEW

was lighted to the full by the genius of Wigmore. This subject

BILATERALITY OF THE HEARING

Most obvious, perhaps, of the conceptions in question is the

PRINCIPLES OF CIVIL PROCEDURE

18 ILLINOIS LAW REVIEW

celebrated 'Clementina Saepe'2 of 1306 was sanctioned for numerous

PRINCIPLES OF CIVIL PROCEDURE

the Common Law Procedure Act of 1852.27 The court of chancery

32. See Griffith "Supreme Court of Judicature Acts" 170.

18 ILLINOIS LAW REVIEW

ment and its Continental cognates, the 'saisies conservatoires' of the

Ley de enjuiciamiento civil 1663.

Engehnann "Der romanisch-kanonische

Prozess" 90; Klenfeller

"Lehrbuch des deutschen Prozessrechts" 525.

44. See Tidd "Practice" (9th ed) 559 et seq.

PRINCIPLES OF CIVIL PROCEDURE

ive if the defendant, to whom it must be communicated, appears

PARTY-PRESENTATION AND JUDICIAL INVESTIGATION

45. Kleinfeller op. cit 527 et seq.

18 ILLINOIS LAW REVIEW

PRINCIPLES OF CIVIL PROCEDURE

was invented by the jurist, Nikolaus Thaddius G6nner, who is

cit; Stintzing and Landsberg "Geschichte der

deutschen Rechtswissenchaft" III (2) 147 et seq.

prosecution, originated with Professor Wigmore.

18 ILLINOIS LAW REVIEW

bears to that of party-presentation, opinions are not in accord. One

PRINCIPLES OF CIVIL PROCEDURE

view considers the latter to be a component of the former. Another

will which are binding upon him

. . . Of this principle of disposi-

63. 159, 171.

18 ILLINOIS LAW REVIEW

67. Kleinfeller loc. cit.

PRINCIPLES OF CIVIL PROCEDURE

der Rechtswissenschaft' 1180; Heilfron, and Pick "Lehrbuch des Zivilprozess-

13th ed.) 106; Planck "Lehrbuch des deutschen Civilprozessrechts" I 198;

Heilfron and Pick op. cit. I 449.

by the same author: "Le centenaire du code de proc6dure," in "Revue

determined absolutely by the demands of the parties." Moreover, "the judge

one of the bases of procedure in civil causes."

processen" in Nordisk retsencyklopxdi" IV (2) 46.

18 ILLINOIS LAW REVIEW

measure -by Frederick's obsession that the lawyers were to blame

PRINCIPLES OF CIVIL PROCEDURE

77. See Endwnn '"Die Beweislehre" 21-.

18 ILLINOIS LAW REVIEW

practice of the chancery court taking evidence of its own motion

without derogating from the gen-

eral principle that the risk and burden of producing evidence is

Pollock op. cit. 74.