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a gradual change of manners have destroyed the original ideas, on which the laws were devised and established, the prince by his edict may promulge a new code, more suited to the present emergencies. But when laws are to be framed by popular assemblies, even of the representative kind, it is too Herculean a talk to begin the work of legislation afresh, and extract a new system from the discordant opinions of more than five hundred counsellors. A single legislator or an enterprizing fovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps an uniform, plan of justice: and evil betide that presumptuous subject who questions it's wisdom or utility. But who, that is acquainted with the difficulty of new-modelling any branch of our statute laws (though relating but to roads or to parish settlements) will conceive it ever feasible to alter any fundamental point of the common law, with all it's appendages and consequents, and set up another rule in it's stead? When therefore, by the gradual influence of foreign trade and domestic tranquillity, the spirit of our military tenures began to decay, and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the old feodal actions (guarded with their se. veral outworks of effoins, vouchers, aid-prayers, and a hun

dred other formidable intrenchments) were ill suited to that [ 268 ] more simple and commercial mode of property which suc.

ceeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wisely avoided foliciting any great legislative revolution in the old established forms, which might have been productive of consequences more numerous and extensive than the most pene, trating genius could foresee; but left them as they were, to languish in obscurity and oblivion, and endeavoured by a feries of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of remedial justice: and where, through the dread of innovation, they hesitated at going fu far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprizing judges, who have fate in

our

our courts of equity, to shew them their error by supplying the omissions of the courts of law. And, since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fundamental alterations. The only difficul:y that attends them arises from their fictions and circuities; but, when once we have discovered the proper clew, that labyrinth is easily peryaded. Our system of remedial law resembles an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult.

In this part of our disquisitions I however thought it my duty to unfold, as far as intelligibly I could, the nature of these real actions, as well as of personal remedies. And this: not only because they are still in force, still the law of the . land, though obsolete and disused; and may perhaps, in their turn, be hereafter with some necessary corrections called out again into common use; but also because, as a sensible writer has well obferved?, “ whoever considers how great a { 269 ) “ coherence there is between the several parts of the law, us and how much the reason of one case opens and depends " upon that of another, will I presume be far from thinking “ any of the old learning useless, which will so much con. ~ duce to the perfect understanding of the modern." And besides I should have done great injustice to the founders of our legal constitution, had I led the student to imagine, that the remedial instruments of our law were originally contrived in to complicated a form, as we now present them to his view: had I, for instance, entirely passed over the direct and obvious remedies by aflises and writs of entry, and only laid before hin the modern method of prosecuting a writ of ejectment,

2 Hawk. Abr. Co. Litt. pre:

a gradual change of manners have destroyed the original ideas, on which the laws were devised and established, the prince by his edict may promulge a new code, more suited to the present emergencies. But when laws are to be framed by popular assemblies, even of the representative kind, it is too Herculean a talk to begin the work of legillation afresh, and extract a new system from the discordant opinions of more than five hundred counsellors. A single legislator or an enterprizing sovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps an uniform, plan of justice : and evil betide that presumptuous subject who questions it's wisdom or utility. But who, that is acquainted with the difficulty of new-modelling any branch of our statute laws (though relating but to roads or to parish settlements) will conceive it ever feasible to alter any fundamental point of the common law, with all it's appendages and consequents, and set up another rule in it's stead? When therefore, by the gradual influence of foreign trade and domestic tranquillity, the spirit of our military tenures began to decay, and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the old feodal actions (guarded with their several outworks of effoins, vouchers, aid-prayers, and a hun

dred other formidable intrenchments) were ill suited to that [ 268 ] more simple and commercial mode of property which suc:

ceeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wisely avoided foliciting any great legillative revolution in the old established forms, which might have been productive of consequences more numerous and extensive than the most pene, trating genius could foresee; but left them as they were, to languish in obscurity and oblivion, and endeavoured by a series of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of remedial justice: and where, through the dread of innovation, they hesitated at going fu far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprizing judges, who have fate in

our

our courts of equity, to shew them their error by supplying the omissions of the courts of law. And, since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fundamental alterations. The only difficul:y that attends them arises from their fictions and circuities: but, when once we have discovered the proper clew, that labyrinth is easily peryaded. Our system of remedial law resembles an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult.

In this part of our disquisitions I however thought it my duty to unfold, as far as intelligibly I could, the nature of these real actions, as well as of personal remedies. And this not only because they are still in force, still the law of the land, though obsolete and disused; and may perhaps, in their turn, be hereafter with some necessary corrections called out again into common use; but also because, as a sensible writer has well obferved, “whoever considers how great a [ 269 1 “coherence there is between the several parts of the law, « and how much the reason of one case opens and depends " upon that of another, will I presume be far from thinking “ any of the old learning useless, which will so much con. « duce to the perfect understanding of the modern." And besides I should have done great injustice to the founders of our legal constitution, had I led the student to imagine, that the remedial instruments of our law were originally contrived in so complicated a form, as we now present them to his view": had I, for instance, entirely passed over the direct and obvious remedies by assises and writs of entry, and only laid before hin the modern method of prosecuting a writ of ejectment,

z Itawk. Abr. Co. Litt. ptei

CHAPTER THE EIGHTEENTH.

OF THE PURSUIT OF REMEDIES

BY ACTION; AND FIRST, OF THE ORIGINAL WRIT.

ITAVING, under the head of redress by suits in courts, 11 pointed out in the preceding pages, in the first place, the nature and several species of courts of justice, wherein remedies are administered for all sorts of private wrongs; and, in the second place, thewn to which of these courts in particular application must be made for redress, according to the distinction of injuries, or, in other words, what wrongs are cognizable by one court, and what by another; I proceeded, under the title of injuries cognizable by the courts of common law, to define and explain the specifịcal remedies by action provided for every possible degree of wrong or injury; as well such remedies as are dormant and out of use, as those which are in every day's practice, apprehending that the reason of the one could never be clearly comprehended, without some acquaintance with the other: and, I am now, in the last place, to examine the manner in which these several remedies are pursued and applied, by action in the courts of common law; to which I shall afterwards subjoin a brief ac. count of the pșoceedings in courts of equity:

In treating of remedies by action at common law, I shall confine myfelf to the modern method of practice in our courts of judicature. For, though I thought it necessary to throw put a few observations on the nature of real actions, how

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