The Making of Good Method of Procedure

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Method of procedure is that which relates to the arrangement of acts, deliberations, or proceedings in a cause. This legal term is used to denote the systematic arrangement of all transactions involved in any case, whether civil or criminal.

The method of procedure has been traditionally defined as “that which relates to the arrangement of acts, deliberations or proceedings in a cause.” Thus, it includes all those rules by means of which cases are brought up for judgment and sentence. It comprises what were formerly known as pleadings, evidence and exceptions, it also reminds before different tribunals for further evidence, requests for adjournment (or continuances), postponements and such like proceedings as may be necessary until an entire trial shall have taken. The object of the method adopted in any legal system is to prevent the institution of suits becoming an instrument for delay, vexation or oppression. There are certain technical rules which have been developed by the courts out of a regard to justice rather than to strict logic.

A distinction was formerly made between civil and criminal procedure, the former being based upon principles derived from Roman law while the latter was influenced by canon law. The distinction was never very clear even in systems having two separate codes, for instance that of Louisiana where it became entirely lost in what were designated as “parlements” but are now simply called tribunals. In these there are still distinct powers of judgment and execution co-existing with one another under different titles. They are always subject to appellate review except that it is not the appellate court that finally decides guilt or innocence, but that certain functions are discharged by different courts at different stages of the proceedings. The criminal law has now so far developed as to become differentiated from civil procedure with its own traditions and principles which are peculiarly its own.

The English common law never had anything corresponding to this double proceeding system. Its development has been evolutionary rather than revolutionary yet there have been times when some such changes would have added to its efficiency. It has gone on utilizing old procedures until they became obsolete instead of discarding them at once and substituting new ones in their place.

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This is particularly true of extradition both as between England and Scotland; Wales; Ireland; the American colonies; Canada; India; the Dominions of the Crown; and as between one colony, province or state and another.

The first Act of Parliament for extradition was passed two hundred years ago in the reign of George II It is still on our Statute Book although it has been recast several times. Before 1784 there was no machinery at all for extradition – each separate kingdom had its local laws by which criminals who had committed crimes in one part were brought to justice elsewhere. The nearest approach to extradition took place under what used to be called “letters rogatory” – i.e., letters from a superior court addressed to an inferior asking them to cause A B’ s attendance on a certain day. These are difficult things for lawyers still but not as difficult as they were.

The State is supreme in all matters involving its own existence and safety: within these limits it can do anything it chooses – but only so far as its laws empower it to do it – with society we have little or nothing to do until we come down to recent times when States began to exert their power over members of the society as such. They wanted money, and you could not get money justly from those who owed it, so they passed acts for taking it from them by force. The State, as society, deliberated and contrived how to make a profit out of its members: as government – a recent avatar – it proceeds to other schemes for plundering those who do not belong to the favoured classes.

The question of right or no-right is wholly omitted from political discussion except in two cases: one where a person’s own rights are invaded; the other where an invasion of the “rights” of another is alleged as a justification for encroachment on some other party. In both cases those whose supposed interests are affected take care that the discussion shall bear very little reference to facts or principles.

In ancients there was this check upon governments: they were visible and tangible, and the people could at any moment visit with their resentment or punish them. In modern times they are hidden and imperceptible; immunity is the universal cry; accountability the general wish.

The making of a good method of procedure is thus one of the chief problems for lawyers. If we had no procedure what would happen ? The trial of issues, or suits as they were formerly called, might go on far better under a proper system; but there would be nothing to stop innocent people being taken up and imprisoned and even hanged without any process of law.

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