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."8 By Austin's successors procedure has never been treated save in an elementary and cursory fashion. 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 say, 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 "Römische 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 procédure civile digne d'une étude théorique sérieuse. Dans les Universités, l'étude de la procédure est languissante; les chaires de procédure sont peu rechercheés. On sait d'ailleurs que notre littérature juridique n'est pas bien riche dans le domaine de la procédure civile; nous n'avons, en France, aucune revue sérieuse des questions de procédure; et les études doctrinales un peu poussées sont ici peu nombreuses." Tissier, "Le rôle social et économique des régles de la procédure civile" in "Les méthodes 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; Salmond "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." 9910

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')," or, better, formative principles ('Prinzipien der Gestaltung'),12 some are common to all systems; others again appear 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 place in procedural history will be the subject of the following pages.

Most obvious, perhaps, of the conceptions in question is the idea that both parties must be heard: the principle of bilateral hearing ('Grundsatz des beiderseitigen Gehörs'). Inseparable from any organized administration of justice, it is expressed alike by the Roman precept "audiatur et altera pars" and the rhyming brocard of medieval Germany: "Eines mannes red ist keine red, der richter soll die deel verhoeren beed." ("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.14 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 “Enzyklopädie der Rechtswissenschaft" (1913) III 256. 11. Heilfron and Pick "Lehrbuch des Zivilprozessrechts" (2nd ed.) I 447. 12. Von Bar "Civilprozess" in von Holtzendorff's "Encyklopädie der Rechtswissenschaft" (1882) I 727.

13. Kleinfeller "Lehrbuch des deutschen Zivilprozessrechts" 191; Hillebrand "Deutsche Rechtssprichwörter" 217.

14. Stein "Das Civilprozessrecht" in Birkmeyer's "Encyklopädie der Rechtswissenschaft" 1179; von Bar "Civilprozess" in von Holtzendorff's "Encyklopädie der Rechtswissenschaft" (1882) I 729.

decision of a superior authority15 left no room for proceedings against a defendant who declined to appear. So it is that, until the prætor 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.16 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 else to seize his goods as a pledge for appearance." The idea that, 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,18 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 of the defendant is a right or duty.19 "For the case of default on 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 medieval Italy and by the

15. Maine "Ancient Law" (3rd Am. ed.) 364.

16. Cuq "Institutions juridiques des Romans" II 747; Greenidge "Legal Procedure of Cicero's Time" 255; Keller-Wach "Der römische Civilprozess" § 49; Engelmann “Der römische Civilprozess” 105, 155-6.

17. Jenks "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.) I 49.

18. Bruno "Contumacia civile" in "Digesto Italiano" VIII (3) 559; Girard "Manuel élémentaire de droit romain" (5th ed) 1075; Engelmann "der römische Civilprozess" 157 et seq.

19. See Engelmann "Der Civilprozess: Allgemeiner Theil" 161.

celebrated 'Clementina Sæpe'20 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') 21 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 system of coercion and made the other the rule."23

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." 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, 20 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 development 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 “Enzyklopädie 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 Holtzendorff's “Enzyklopädie 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. 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. Subpœna, 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." In time, these proceedings are discarded and, both in America3° and in England, 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.32

31

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.33 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 Verfügungen') of the German Code, for emergent cases ("in dringenden Fällen"), 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 'denunzia di nuova opera' 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.

34

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 "Encyklopädie der Rechtswissenschaft" (1882) I 729.

34. Civilprozessordnung, § 937.

35. Bruno "Denunzia di nuova opera," etc., in "Digesto Italiano" IX