CHAP. XV. or it may consist in denying altogether the facts alleged by the plaintiff, or in admitting them, but alleging other facts, such as a release or the Statutes of Limitation, which neutralise the effect which they would otherwise have had. A defence of the last-mentioned kind was called in Roman law an 'exceptio,' and in England a plea in 'confession and avoidance 1.' A plea may be either 'dilatory,' showing that the right of action is not yet available, or peremptory,' showing that it is non-existent. The exchange of pleadings continues till it is clear how much is admitted and how much is denied on either side, and therefore what is precisely the dispute between the parties. This process may be carried on orally in the presence of the Court, as under the new code of Civil Procedure for the German Empire2, or in writing or print, as in England. When well managed it gives much scope for dexterous intellectual fencing, but its tendency to over-subtlety has been a fertile theme for legal critics from the time of Gaius to that of Bentham 3. Trial. 3. The trial, hearing, or 'audience,' at which each of the parties endeavours to establish to the satisfaction of the Court the truth of the view maintained by him of the question at issue, whether it be one of law or one of fact; if of law, by citing authorities, if of fact, by adducing proofs. 1 'Comparatae sunt autem exceptiones defendendorum eorum gratia cum quibus agitur: saepe enim accidit ut, licet ipsa actio qua actor experitur iusta sit, tamen iniqua sit adversus eum cum quo agitur.' Inst. iv. 13. 2 Civilprozessordnung für das Deutsche Reich, § 119. But in 'Anwaltsprozesse,' i. e. when professional representatives must be employed, disadvantages as to costs, and otherwise, follow, unless 'die mündliche Verhandlung' is durch Schriftsätze vorbereitet,' § 120: and copies of these writings are to be filed in Court, § 124. Cf. the recommendations of the Lord Chancellor's Committee on Procedure, 1881. 3 The 'legis actiones,' says Gaius, gradually fell into disrepute, 'namque ex nimia subtilitate veterum, qui tunc iura condiderunt, eo res perducta est, ut vel qui minimum errasset litem perderet;' iv. 30: and he gives the following instance, 'cum qui de vitibus succisis ita egisset ut in actione vites nominaret, responsum est eum rem perdidisse, quia debuisset arbores nominare, eo quod lex xii tabularum, ex qua de vitibus succisis actio competeret, generaliter de arboribus succisis loqueretur;' ib. 11. Cf. Bentham, Works, ii. p. 14. Proofs may be either documentary or oral, and certain rules CHAP. XV. exist in most systems with reference to their admissibility, amounting in some systems to a body of law of no little complexity. Such a 'law of evidence' is more necessary Evidence. when questions are tried by a jury than when they are decided by a professionally trained judge. Its objects are, on the one hand, to limit the field of enquiry, by the doctrine that certain classes of facts are already within the ‘judicial notice' of the Courts, and by presumptions' by which certain propositions are to be assumed to be sufficiently proved when certain other propositions have been established; and on the other hand, to exclude certain kinds of evidence as having too remote a bearing on the issue, or as incapable of being satisfactorily tested, or as coming from a suspicious quarter. For the last-mentioned reason certain classes of persons, or persons occupying certain relative positions, are rendered incapable of being witnesses. There are also rules regulating the right of the parties to appear in person, or to be represented by advocates, and the order in which the parties or their advocates may tender their evidence and address the Court. 4. The judgment, by which the Court decides the question Judgment. in litigation. It may relate to a right to property, or an ascertainment2 or a dissolution 3 of status, or an affirmation of the due execution of a legal act, or an award of damages for a wrong, or an order for the specific performance or nonperformance of a certain act. The judgment usually charges upon the losing side the Costs. 1 The German Civilprozessordnung is opposed to Presumptions and other so-called 'artificial' proofs; cf. § 259. The Einführungsgesetz, § 14, repeals laws restricting modes of proof. The theory of legal proof is no doubt largely due to the canonists, but it can hardly be said to have been wholly unknown to Roman law. See the opinion of Favorinus, apud Gell. Noctes A. xiv. 2. 2 E. g. on a declaration of nullity, or under the Legitimacy Declaration Act, 21 and 22 Vict. c. 93. 3 On a decree of divorce. CHAP. XV. Appeal. Execution. Extraneous parties. Default. Abnormal Adjective 'costs' to which the other party has been put in consequence of the suit1. 5. The procedure on Appeal, when an Appeal is possible and is resorted to by either party 2. iv. Execution, whereby a successful party calls upon the officers of the Court, or other appropriate State functionaries, to use such force as may be necessary in order to carry the judgment into effect. It may be remarked that a successful defendant, except for the recovery of his costs, has obviously no need of execution, and that execution of a judgment in a civil cause is not ex officio, i.e. does not take place except on the demand of a litigant party. Besides the original parties to an action, whose interests are directly involved in it, other persons may be brought into it by the authority of the Court. In some actions, which involve wider interests than those of the parties, notice must be given to a State functionary, who may then intervene in the proceedings on public grounds 3. A maximum interval may be fixed between each step in an action, on pain of a decision being given in default' against the party who neglects to proceed in due course. Adjective, no less than Substantive, law may be normal or abnormal: that is to say, artificial persons, and such varieties of natural persons as those considered in the pre 1 Cf. supra, p. 157. Justinian's Legislation upon the subject is contained in Cod. i. 3. 13. Costs were in England eo nomine unknown to the common law, but were given to the plaintiff by 6 Ed. I. c. 1, to the defendant by 23 H. VIII. c. 15. At one time also the judgment contained a direction 'that the plaintiff (or the defendant) be amerced, or in mercy, "in misericordia domini regis," for his false claim (or, for his wilful delay of justice).' 2 The Sachsenspiegel gave a right of appeal to a dissentient member of the Court, as having an interest on public grounds that the law should be correctly stated. 3 See Code de Procédure Civile, P. I. liv. ii. tit. 4, De la Communication au Ministère Public; Gerichtsverfassungsgesetz für das Deutsche Reich, § 142; Civilprozessordnung, § 568; and, as to the Queen's Proctor, 23 and 24-Vict. c. 144, 8. 5. ceding chapter, are in a different position with reference to CHAP. xv. suing and being sued from that occupied by ordinary individuals. The modifications of the rules of procedure which take place with a view to abnormal personality are of a somewhat technical character; and it may be sufficient here to refer, by way of illustration, to the rules of English law, that an alien enemy has no 'persona standi in iudicio,' that a peer is privileged from arrest, as is a clergyman on his way to or from the performance of divine service, that if one of the parties in an action for a divorce be lunatic, the suit may proceed notwithstanding his, or her, inability to plead, and the recently abrogated rule that a husband must be joined in an action against his wife. CHAPTER XVI. PUBLIC LAW. The characteristics of public law. 'I CONSIDER,' says Lord Bacon, 'that it is a true and received division of law into ius publicum and ius privatum, the one being the sinews of property, and the other of government 1.' The nature of the distinction has been already explained 2. In private law the State is indeed present, but it is present only as arbiter of the rights and duties which exist between one of its subjects and another. In public law the State is not only arbiter, but is also one of the parties interested. The rights and duties with which it deals concern itself of the one part and its subjects of the other part, and this union in one personality of the attributes of judge and party has given rise to the view, from which we have already expressed our dissent, that the State, or, as it is expressed, the Sovereign, not only has no duties, but also has no rights properly so called 3 The conception of public, as opposed to private, law is due 2 1 Preparation towards the Union of Laws, Works, vii. 731. 3 Supra, p. 110. |