ment and its Continental cognates, the 'saisies conservatoires' of the French law,38 the 'sequestro conservativo' of the Italian, the 'Arrestprozess' of the German. Again, the qualification may be 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.'41 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.42 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, entitles him to execution without judicial authorization, upon obtaining a form of certificate from the notary or other officer who authenticated the instrument.43 The manifestation of the same idea in the English law is found in the judgment by confession entered on warrant of attorney or 'cognovit actionem."44 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 ineffect

37. Ley de enjuiciamiento civil § 1663.

38. Glasson "Précis de procédure civile" (2nd ed.) II 619 et seq. 39. Codice di procedura civile § 924 et seq.

40. Civilprozessordnung § 916 et seq.

41. Engelmann "Der romanisch-kanonische Prozess" 90; Kleinfeller "Lehrbuch des deutschen Prozessrechts" 525.

42. Engelmann 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." 45

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.

Planck, "Lehrbuch des deutschen Civilprozessrechts."46 When the 'Verhandlungsmaxime' dominates, "the parties lay before the court the 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."

Fitting, "Der Reichs-Civilprozess."47 "The so-called 'Verhandlungsmaxime' represents the principle that 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. I 194-195.

47. (12th and 13th ed.) 106.

Kleinfeller, "Lehrbuch des deutschen Civilprocessrechts."48 "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 "Encyklopädie der Rechtswissenschaft."49 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."52 "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 medieval Roman law:53

'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.54 The term

52. 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 Thaddäus Gönner, 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.' 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."

9956

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 investigation56a as applied in that field.

Heilfrom & Pick, "Lehrbuch des Zivilprozessrechts."57 "The principle of judicial investigation .. is that principle which requires 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."

Kleinfeller, "Lehrbuch des deutschen Zivilprozessrechts."58 "The principle of judicial investigation assigns to the judge the duty of assembling the cause-material through his own activity."

Bunsen, "Lehrbuch des deutschen Civilprozessrechts."59 "The principle of judicial investigation forms the opposite of the principle of

55. Engelmann 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."

Engelmann, "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."61 Under the principle in question, "the ascertainment of the true content of the legal relation between the parties is accomplished by the activity of the

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.