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really as susceptible of injury as the common law would have it. It would not be worth the pains; it would be spoilt in the making. All of our great and good men would have lost their characters, for not one of them but what has felt the stings of defamation. "Be thou as chaste as ice, as pure as snow, thou shalt not escape calumny," is the language of the greatest of men.

The rantings of the slanderer may hurt the feelings or wound the sensibi ities, but can seldom, if ever, injure a good character. But we cannot pursue this subject further.

Let us now take a hasty glance at the common law system of special pleading. Every legal system has its beginning, its maturity, its old age, and then passes away. The common law system of special pleading is very old; and if age is proof of wisdom the argument is at an end. For no other system has left so much behind in the oblivion of the past. It has indeed been blessed with a wonderful longevity. It witnessed the dawn of civilization; saw the first ray of light flash through the gloom of barbarism; it flourished in the days of chivalry, when our rude ancesters wore armor and went clad in complete steel; it was lusty in its youth, in the days of the warring Plantagenets; it had grown to manhood when Newton discovered the laws of gravitation and Gallileo first pointed his rude telescope to the stars; it survived the wars, cruelties and superstitions of the middle ages and emerged unhurt; ages rolled on; systems and creeds grew up, flourished and fell; rulers and dynasties passed away; ideas and fashions came and went, but it remained in the plentitude of its power, unimpaired. It lives to-day to behold the marvelous wonders of the present age; and stands ready to salute the dawn of the twentieth century before it passes away. We rise uncovered in reverence to its age. But, like all old things, in the march of progress it must inevitably pass away. It is now grappling in mighty conflict with the spirit and genius of advancing civilization, and is vainly struggling on the perilous edge, almost ready to fall.

Witness its decadence within the last fifty years. The innovations of the present half of the nineteenth century have demonstrated its uselessness, and falsified all of the predictions of its eloquent eulogists and most ardent admirers. A few years ago all of the lawyers and judges, with here and there a few exceptions, believed in the efficacy of the subterfuges and refinements of special pleading. Fifty years ago it was vehemently asserted, and firmly believed by all of the reverend judges, and the able lawyers as well, that it was impossible to conduct a law suit, or administer justice, without bring

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ing into play all of the appliances of this ancient system. Actions with their refined distinctions; declarations with their general and particular requisites; pleas with their technical qualities; replications with their absque hocs, and free from negative pregnants, together with a thousand other quirks, quibbles, fictions and falsehoods of special pleading, were considered absolutely necessary to the administration of justice fifty years ago. Fifty years ago this system prevailed quite universally with the English speaking nations of the world. But time and change have indeed wrought wonders. Only in the States of Maryland, Maine, New Jersey, New Hampshire, Virginia, Pennsylvania and Illinois does the system exist to-day, and in these States only in a modified form. Nowhere else does it prevail. All other States that once had it, have abolished it, and those that never had it, do not want it. Every nation of Europe, England alone excepted, has for ages administered justice without its aid or assistance, and the same is true of every Latin speaking nation of the world. England is the mother of this system of pleading; there it was born; there it flourished for quite six hundred years; there it was deeply rooted in the affections; there it was enshrined in the heart of every lawyer, for its praises were mingled with the earliest recollections of his childhood; there it was associated with all of the great trials, and praised by all of the great judges.

But the mother has discarded her offspring. Not a vestige of this system remains in England to-day. In England the occupation of the old special pleader is indeed gone. In England all of the forms of actions have been abolished. All of the vast brood of pleas and replications have been cast aside and relegated to the limbo of oblivion; and the parties can now approach the altar of justice without the fear of being turned aside by the quirks and quibbles of special pleadings. What a splendid consummation!

In view of these facts, is it not idle to say that this system is necessary to the administration of justice? But aside from this, when we divest ourselves of all predilection in favor of this system on the score of its antiquity, and submit it to the test of modern criticism, it fails to pass muster. Its rules contradict each other, and, in their application, defeat the purposes for which they were in tended. Let us see. The object of special pleading it is said, is to apprise the parties, the court and jury, by a legal and logical statement of the facts, of the precise question in dispute, and thereby arrive at a single, certain and material issue. But how do we reconcile this with the fact that the plaintiff is permitted to come forward with his declaration, containing a dozen or more counts asserting as

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many imaginary causes of action; and the defendant is permitted to present a dozen or more pleas asserting as many imaginary defences? Now, but break away from the conceits of antiquity and think. How in the name of common sense does this process inform the parties, or the court, or indeed anyone, of the precise question in dispute? The statement of an imaginary cause of action or defense does not inform the parties of anything, neither can it possibly lead to a single certain material issue. For a material issue can never arise, based on an imaginary state of facts. So it is plain that the object of the system is frustrated by the operatiou of its own rules.

Again, it is said that pleading is a statement of facts. But how do we reconcile this with other rules of the system which require a statement of falsehoods? The common law action of ejectment is based on a string of fabrications from the beginning to the end, even to the names of the parties. And the plaintiff has no standing whatever in an action of trover except at the expense of his veracity, he is compelled to assert two falsehoods in his declaration. The action of seduction is based on a miserable fiction. And what is a protestation in pleading but the statement of a falsehood coupled with the admission that it is a falsehood. Then again, the absurd doctrine of "giving color" in pleading is based on a disgusting fiction. Now it would seem that pleading is not a statement of facts, but the assertion of falsehoods. These illustrations are worthy of consideration, for they present facts pregnant with argument. They prove conclusively that the evolution of a single certain and material issue does not depend upon what is stated in the pleadings, but is evolved by the contention of the parties in the presentation of the facts to the court and jury regardless of what is stated in the pleading. For if a single certain material issue is evolved by the statement of a string of falsehoods it would be evolved without any statement at all.

But again, it is affirmed that pleading is a brief and concise statement of facts. This is certainly a travesty on truth. Take the precedents given in Chitty's Pleading. They were mostly written by ancient lawyers, who received pay in proportion to the number of words written; the more words the more pay; and the result is a lot of precedents filled with a jargon of words, and we are lost in the mazes of verbosity. And these precedents, with all their verbiage and tautology, have been handed down from age to age as rare ideals of perfection; as models singularly beautiful for perspicuity of statement and logical conciseness. And woe be to the lawyer who departs from these precedents, for the pains and penalties of defeat await him for his temerity.

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But now, as to certainty in pleading, this is said to be its greatest excellence. It was the great and good Lord Hobart who said nearly three hundred years ago, that certainty was the grace and beauty of pleading; and my Lord Coke said that certainty was the mother of quiet and repose in pleading. But let us see what this certainty is, what it consists of, that imparts such grace and beauty, and is the mother of so much quiet and repose. Our mediæyal ancestors (for remember that special pleading is the product of a mediæval age) in order to give this grace and beauty, and quiet and repose so highly recommended by these ancient sages of the law, invented three different "sorts of certainty." First, certainty to a common intent; second, certainty to a certain intent in general; third, certainty to a certain intent in every particular. Now, keep the fact steadily in view that these different sorts of certainty are the basis and foundation of the whole system; for your success is made to depend not indeed on the merits of your case or the justice of your defense, but on the conformity of your pleadings to one or the other of these imaginary sorts of certainty. I say imaginary, for these sorts of certainty are wholly incomprehensible. Not a philosopher that ever lived can rise to their conception. And nothing should excite the commiseration of the progressive lawyer to a greater extent than to see his unfortunate brother with his head clasped between his hands, poor fellow, in the anguish of confusion, racking his brain in the vain attempt to understand these three sorts of certainty. They are simply a jingle of words held up to the ear without meaning. There may be different degrees of belief, more or less particularity of statement, but never three different sorts or gradations of certainty. For certainty is a positive term and will not admit of the predication of uncertainty. But the rule is peremptory; your pleadings must conform to one or the other of these sorts of certainty; and as there cannot exist such sorts of certainty in fact, the standard of conformity must exist wholly in the imagination, depending largely on the caprices of the particular judge. And now what is the result? If your pleadings fall into the right sort of certainty, according to the fancy of the judge, and you win your case, for that reason, you are all right; and you can not appreciate what Lord Hobart meant by the grace and beauty of pleading. But, on the other hand, if you are luckless in the caprices of the judge and you fall into the wrong sort of certainty, then you go out of court cast down and hushed in the vexation of defeat; and now you can understand the observation of Lord Coke that certainty is the mother of quiet and repose in pleading.

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But once more it is said that this system is specially adapted to the speedy attainment of justice. How can this be true in the light of admitted facts. Whenever form and substance contend for the mastery in this arena, substance is invariably made to yield the conflict. A thousand instances could be given of the truth of this observation, but one will do. Your success is sometimes made to depend on your saying "to-wit" preceding your allegation in the declaration. These little "to-wits" are important factors in the science of special pleading. Their functions are discussed by the Supreme Court of Illinois in the case of Brown v. Berry, 47 Ill. 175. They are the sentinels placed along the legal highway to prevent the wheels of justice from running afoul of a variance. Now it would seem that a variance must of necessity be a very inconsequential, trivial sort of thing, that could be frightened away by one of these little "towits," but not so in pleading. If you say "to-wit," the variance is avoided and you escape unhurt; but if you fail to say "to-wit," your legal vehicle is smashed in contact with a variance, and your case falls to the ground, and all is lost and undone. And this is what is meant by a speedy attainment of justice. Finally, technicalities and refinements are the jewels of special pleading; they are the instruments of its power; and repleaders, non-suits and variances are the rich guerdons of its handiwork.

The great remedy for all the ills and evils of our law, is a less regard for ancient precedent and a greater regard for common sense, more modern instances and less ancient saws.