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The promulgation of this legislation embodying the collective wisdom and learning of France, and adding new dignity to the throne of her king, Louis XIV, was due to the genius and ability of that Prince's great minister—with whose name it must for all time be associated,—Jean-Baptiste Colbert.
Now, it is no small compliment to its unknown compiler, that the little Guidon should in after years have been the foundation on which was built up in the Ordonnance all that is there to be found on the subject of insurance. Of this Pardessus gives ample acknowledgment when he says 1, 'Aussi presque toutes les décisions du Guidon ont-elles été adoptées et converties en loi par l'Ordonnance de Louis XIV, du mois d'août 1681, qui forme encore (1831) le droit commun de l'Europe.'
The law of Insurance is set out in Chapter vii of Book iii, in Articles 42 and 45 of which is reproduced the particular legislation of the Guidon, just considered.
Article 42 re-enacts the doctrine of Protestation, which, as Valin in a note points out, is in accordance with the earlier teaching of the Guidon,
Article 45 is as follows 3:
'En cas de naufrage ou échoument, l'assuré pourra travailler au recouvrement des effets naufragés, sans préjudice du délaissement qu'il pourra faire en temps & lieu, & du remboursement de ses frais, dont il sera cru sur son affirmation, jusqu'à concurrence de la valeur des effets recouvrés.'
The principle of permission to work for the recovery of property is accepted by Valin, as it previously had been by Cleirac, without comment, its inherent propriety no less than its ancient origin having, it would seem, long removed it from the region of controversy. But Valin is careful to explain that this permission has relation only to the ultimate right of the assured to abandono, which right was not to be prejudiced thereby; while in many cases—if he would avoid the imputation of fraud- it was the bounden duty of the assured to assist his underwriters; as, for example, where being on board with his merchandise, he was in a position to exercise effective control over it.
If then a duty in 1681, it must a fortiori have been a duty in the early days of insurance, out of which arose the rules afterwards to
p. 371. ? Commentaire sur l'ordonnance de la marine du mois d'août 1681; Ed. Rochelle, 1766, p. 96. This work first appeared 1760. Valin died 1765. 3 Ibid., p. 98.
Emerigon also states this in very clear terms, Traité des Assurances, 1783 ; éd. par Boulay-Paty, Rennes, 1827, tom. ii, p. 235.
ascertaining the venue from which the jury must come, the need for placing the point at issue in an intelligible form before the judge and jury, are at the bottom of these fundamental rules of pleading. Thus the problems which originated in the adaptation of the newer ideas as to pleading to the old conception of proof, and the problems which originated in the fact that the proof was now, not an arbitrary test, but the finding of a body of reasonable men, are the factors wbich determined the fundamental rules of the common-law system of pleading.
This system of oral pleading in Court leading to an issue which is submitted to the jury, as if the jury were the test or proof to which the parties have agreed to submit, affects the whole character of the reports in the Year Books. It was the oral pleading leading to the issue which interested the reporter. In the course of this debate many questions of law-material to the issue and immaterial -were mooted and discussed by Bench and Bar. What view the jury took of the issue of fact so formulated was of comparatively little interest to the legal profession, unless it was made the basis of further proceedings. Decisions upon an issue of law were no doubt interesting to the profession; but cases which involved such decisions were often adjourned, and the decision was, perhaps, never given. The judges, Professor Maitland tells us ', were unwilling to decide nice points of law ; 'too often when an interesting question has been raised and discussed, the record shows us that it is raised and then tells us no more. A day is given to the parties to hear their judgment. A blank space for the judgment is left upon the roll, and blank it remains after the lapse of six centuries. Even if judgment were given, it might well be that the reporter did not happen to be in court on that day”. In the meantime the report of the debate which led to the distinct formulation of the issue contained much sound learning and showed where the doubt lay. And so it is these arguments leading to the formulation of the issue which comprise the largest part of the cases reported in the earlier Year Books. Naturally as the argument proceeded new facts were elicited, old facts assumed new aspects, new legal points were suggested, all of which were taken down by the reporter, and edited and annotated for the benefit of himself and his friends. The Year Book, therefore, does not give us a report directed to establish some particular point. Rather, it gives us an account of the discussion which preceded the formulation by the parties and the Court of that point; and the matters discussed may bear very little relation to the issue reached? Sometimes no issue is reached? We are reminded of what must have taken place before the Praetor in iure when he was engaged, with the help of the parties and their counsel, in settling the formula. If we had some contemporary account of what took place before the Praetor, it would probably resemble the report in the Year Book far more closely than the report in the Year Book resembles the modern report of the arguments and the judgments upon an issue already determined by the pleadings of the parties 3.
1 Y. B. 3 Ed. II (S. S.), Ixxi, and 69.
? Cp. above, p. 284, n. 10; Y. B. 3 Ed. II (S. S.), 197, information seems to have been supplied to the reporter by the clerk,
We may note, too, that in a report of this oral debate which preceded the formulation of the issue, the line between argument and decision will tend to become obliterated. Serjeants or apprentices present, but not engaged in the case, intervene with their advice *; and what they say is naturally interesting to the profession. A judge even will condescend to give a little lecture for the benefit of the student". Naturally reports which record such proceedings will be discursive and conversational. In some of our older reports the reasons given by the judges for their formal decision are styled arguments. These Year Books are really the reports of arguments--arguments used by the Bar and the Bench. It was the argument rather than the final decision which interested the profession, partly because there was then no such rigid theory as to the binding force of decided cases as that to which we are accustomed, partly because the discussion and the elucidation of legal principles were to be found in the argument rather than in the dry formal decision, and partly because decisions upon points of law were often not given, or, if given, were difficult of collection by the private reporter.
It is clear that this fashion of oral pleading made for great freedom in the statement of the case. A painful accuracy was no doubt required in the wording of the writ, in the correspondence between writ and count, and in the observance of the elaborate rules of process. But when all objections to the writ and process had been disposed of, when the parties were fairly before the court, the debate between the opposing counsel, carried on subject to the advice or the rulings of the judge, allowed the parties considerable latitude in pleading to the issue. Suggested pleas will appear after
| Y. B. 3 Ed. II (S. S.), 31-6, 97, 116-8.
2 Ibid. 16. 3 For some account of this, see Greenidge, Legal Procedure in Cicero's Time, 179-81. * Y. BB. 21, 22 Ed. I (R. S.), 148, 242 ; 33-15 Ed. I (R. S.), 476.
“ Y. B. 36 Hy. VI, pl. 21, p. 26, Fortescue sums up the points of the case for the benefit of the apprentices, serjeants, and others of his company ; Y. B. 3 Ed. II (S. S.), 36, Bereford C. J. says to Westcote, “Really I am much obliged to you for your challenge, and that for the sake of the young men here, and not for the sake of us who sit upon the bench. All the same you should answer over.'
a little discussion to be untenable ; a proposition to demur will, after a few remarks by the judge, be obviously the wrong move. The counsel feel their way towards an issue which each can accept and allow to be enrolled 1. In fact, in the earlier part of this period it was not the strictness of the rules of pleading which hindered justice, it was rather the strictness and elaboration of the rules of process. This looseness in the rules of pleading was increased, perhaps almost necessitated, by the fact that the law of evidence, as we understand it, hardly as yet existed. So far are we from the rule of later law that evidence must not be pleaded, that we might almost say that oral evidence was generally brought to the notice of the court by pleading it?. One or two illustrations (1) of the freedom of action allowed to counsel under this system of pleading, and (2) of the manner in which evidence was brought before the Court, will illustrate these causes for the differences between the Year Books and the later reports.
(1) Illustrations of the mode in which an issue was reached by discussion at the Bar under the superintendence of the Court will be found on almost every page of the Year Books. As a simple illustration we will take a case of the year 1309 3 'Alice brought her writ of entry sur disseisin against a Prior, and counted on her own seisin as of fee and of right in time of peace, saying, “Into which the Prior has no entry save after (posl) the disseisin which one G. did to Alice.” Passeley: “She was never seised of fee and of right in such wise that she could be disseised.” Stanton J, : " That is no good answer in this writ, but it would be a good answer to say that G. did not disseise her.” Friskeney argued that Passeley's answer was receivable because, if the plaintiff's count claiming as of fee and of right were accepted by them, they might be estopped in any subsequent proceedings from denying that she held as of fee and of right. Stanton J.: “What you say is wrong. What enrolment are we to have in this case? I think it should be, 'not so seised that she could be disseised, so your averment is not receivable.” Passeley: “ The enrolment shall be, “not so seised in such manner as she demands so that she could be disseised.” To this all agreed.' The Court will sometimes suggest a plea to meet difficulties suggested by counsel in argument *; and the fact that the Court advised a particular mode of pleading was once stated as a reason why 1 Y, B. 3 Ed. II (S. S.), lxvi-lxviii.
? Thayer, Evidence, 114, 115. 3 Y. B. 2, 3 Ed. II (S. S.), 136, 137.
* Y. B. 18 Ed. III (R. S.), 152, Sharshalle J.: 'For that matter I should hold him to be a foolish pleader if he pleaded to the demandant's action within the liberty, but he would say that he ought not to answer there because the tenements are outside the liberty, and upon that he ought to abide judgment, whereupon, if judg. ment were rendered against him, he would have the Assize.'
counsel adopted it? But sometimes the Court is only wise after the event, and delivers a lecture upon what, in its opinion, would have been the proper mode of pleading ? Counsel once argued that what a party has pleaded and passed over without notice by the Court is wholly immaterial; and though the Court denied the proposition as thus broadly stated, there was probably a considerable element of truth in it 3. A survival of the old idea that a pleader's words were not binding till avowed by his client no doubt made it the more possible to treat pleas as capable of amendment till one was reached by which counsel would abide 4. Whether or not this was so it is quite clear, as Reeves says, that everything advanced by counsel was, in the first instance, 'treated as matter only in fieri which upon discussion and consideration might be amended, or wholly abandoned, and then other matter resorted to, till at length the counsel felt himself on such grounds as he could trust. Where he finally rested his cause, that was the plea which was entered upon the roll, and abided the judgment of an inquest or of the Court, according as it was a point of law or fact.' We may note, too, that the complications of process sometimes gave to a pleader a chance of correcting an error which might otherwise have proved fatal. If the case were put without a day by a Protection, or, perhaps, by a default, the pleading must begin anew; and mistakes made on the occasion of the first pleading
; could then be amended .
1 Y. B. II, 12 Ed. III (R. S.), 88, Trewith, after some pleading, seeing that the Court was against the writ, demanded that it should abate. "You shall not get to that,' said Parning ; 'you have pleaded higher, and thereby affirmed the writ as good.'. 'I vouch the record of the roll,' said Trewith, 'that it was not of my own accord, but by the advice of the Court.'
? Y. B. 14 Ed. III (R. S.), 60, 'Scrope was on the bench and said: "What you say as to two bastards you say well, but, in God's name, you might have saved yourself against her by way of replication ... and this replication must have been entered on the roll." ;
3 Y. B. 11, 12 Ed. III (R. S.), 42, Trewith, 'Whatever thing a party may plead and pass over without regard of the Court and join issue on a plea, then nothing sball be recorded except the issue ; for of that which was spoken and pleaded before and waived without award, nothing shall be entered on the roll'; Hillary J., 'You say wrong'; Y. B. 3 Ed. II (S. S.), 129, Bereford C.J., 'You did not demur there. So you cannot take advantage of that."
* Y. B. 3 Ed. II (S. S.), 129, and Introd. lxvi, lxvii. 5 H. E. L. ii. 223.
6 Y. B. 3 Hy. VI, Pasch. pl. 10, Formedon against J and A his wife; the demandant counted against them on a gift in tail made by deed to the ancestor of the demandant. Paston by mistake said by virtue of which the donor was seised, whereas he should have said donee ; the husband made default then and at the petite cape; the wife prayed to be received to defend her title, and relied on the faulty count. Paston offered to plead anew, and he and Martin argued that this could be done ; Babington contra; Cokain agreed with Paston and Martin, putting the case of a protection and a resummons, 'Mettons que apres le count le parol uste este mis sans jour per protection, et ore le demandant ust sue resummons envers le tenant, ne duist le demandant or count de novel ? jeo dis que si pur ceo que parol serra my sans jour pur ceo fuit le premier count alle et determine: et en resommons il serra pris sicome nul count ust jamais, et sicome il n'est jamais eu nul auter