COMMON LAW AND MODERN CODES 



By John D. Fleming 



About the year 1613, the year in wliich he was made Chief Justice 

 of the King's Bench, Sir Edward Coke wrote these words by way of 

 comment upon Littleton's exhortation to his student to have regard 

 to the science of well pleading: "Here is to be observed the excellency 

 of good pleading, and Littleton's grave advice that the student should 

 employ his courage and care for the attaining thereof, which he shall 

 attain unto by these means, first, by reading; secondly, by observation; 

 and thirdly, by use and exercise. For in ancient times the sergeants 

 and apprentices of the law did draw their own pleadings, which made 

 them good pleaders." And he adds one of his quaint etymologies 

 to the effect that placitum, a pleading (observe that he is speaking 

 not in terms of prophecy), is derived from placendo, "because it pleases 

 everybody"!' 



Coke refers the perfection of the art of pleading to the reign of 

 Edward IIL "In the reign of Edward III," he says, "pleadings 

 grew to perfection without lameness and curiosity." And Lord Hale 

 observes that though pleadings in the time of some later sovereigns 

 were "far shorter than afterwards, especially after Henry VIII, yet 

 they were much longer than in the time of King Edward III ; and the 

 pleaders, yea and the judges, too, became somewhat too curious 

 therein; so that art or dexterity of pleading, which in its use, nature 

 and design was only to render the fact plain and intelligible, and to bring 

 the matter to Judgment with a convenient certainty began to degenerate 

 from its primitive simplicity, and the true use and end thereof, and 

 to become a piece of nicety and curiosity." And Lord Hale accounts 

 for this needless length and nicety in part by the fact that the plead- 

 ings were mostly drawn by the clerks who were paid according to their 

 length and therefore took care not to study brevit}'.' 



■ 3 Co. Lit. p. 376. » 4 Afin. Inst. p. 608. 



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