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superior courts of Common Law (King’s Bench, Common Pleas and Exchequer) knew the writ system with its forms of action. Litigation could only be commenced if a suitable remedy was available and, because the available writs in the register of writs became fixed, this was not necessarily the case. The English Courts of Equity (basically the Court of Chancery and the Equity side of the Exchequer) knew a procedure that was more akin to the Romano-canonical procedure of the European Continent. In equitable cases, the Chancery was not bound by a fixed list of writs.

In the nineteenth century, this system changed considerably. The first step was taken in the United States of America. There, the 1848 Code of Procedure of the State of New York, drafted by David Dudley Field (1805-1894), was to some extent influenced by the Romano-canonical model and abolished the distinction between Common Law and Equity in the field of procedure. It introduced a uniform procedure for Common Law and Equity which knew only one ‘form of action’, that is the ‘civil action’ (Clark, 1993; Van Rhee, 2003).

Other Common Law countries followed suit. In India, for example, this happened with the introduction of the 1859 Code of Civil Procedure, whereas in England itself the Judicature Acts 1873-1875 brought about a system that resembled, to a certain extent, the system of the 1848 New York Code (Van Rhee, 2005). South Africa is a special case. After the Cape had been taken over by England from the Dutch in 1795, the Roman-Dutch law continued to reign supreme in the field of substantive law. However, a procedural system was introduced that was based on English law. An important difference between England and South Africa was that in the latter country the distinction between Common Law and Equity was not introduced in the field of procedure because it was absent in substantive law; substantive law remained Roman-Dutch (De Vos, 2002).

On the Continent of Europe, the medieval Romano-canonical procedure formed the basis of further developments. It was not only based on Roman law, but also on canons from the second part of Gratian's Decretum, the law of northern Italian cities and papal decretals. Originally applied within the ecclesiastical sphere, the learned Romano-canonical procedure soon became the model for the modernisation of procedural law within the secular courts. In Europe, most superior courts like the Reichskammergericht for the German States, the French Parlement de Paris, as well as the Grand Conseil de Malines in the Low Countries knew a procedure that was inspired by the learned Romano-canonical model. During the so-called ‘codification period’ (roughly the late 18th century until – in some countries - the end of the nineteenth century), the learned procedure exerted considerable influence, both in a positive and in a negative way. In a positive way because many of its basic features were adopted by the codes of civil procedure that were introduced all over Europe (often through the intermediary of the 1806 French Code de procédure civile), and in a negative way, because various features that were felt to be unsuitable to nineteenth century conditions were substituted by their opposite (an oral instead of a written procedure, the hearing of witnesses in public instead of behind closed doors) (Van Caenegem, 1973; Van Rhee, 2000).

An aspect of the Romano-canonical procedure that was left untouched by many of the Codes was the relatively passive position of the judge which resulted in undue delay and high costs. An early but in the end unsuccessful attempt to introduce an active judge was the First Book of the Corpus Iuris Fridericianum of Frederic the Great of Prussia, dating from 1781. More successful was the procedural model advocated in Austria by Franz Klein (1854-1926) at the end of the nineteenth century. This model became the focus of attention in Continental Europe and beyond (Jelinek, 1991). In his programmatic work Pro Futuro Klein stated, amongst other things, that an active judge would be a solution to undue delay and high costs (Klein, 1891). The judge should


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