§ 12. As these most ancient forms became disused, and were finally abandoned, their place was supplied by certain other judicial processes, to which the generic name, formula, was given, conducted before the magistrates of whom the most important were the prætors (prætor urbanus and prætor peregrinus). The Roman prætor corresponded to the English judges, common law and equity, while the "judex" performed the functions of the English jury. As the English courts have built up by gradual accretions the greater part of the law of England, so did the prætors, as truly and by the use of the same judicial legislative function, build up the largest part of the Roman jurisprudence, which, after being put into a more comprehensive and scientific shape by the labors of the great jurists under the empire, was at last codified by the orders of Justinian. The legislative work of the English and American courts is done in the judgments and opinions rendered upon the decision of cases after the events have happened which call for such official utterances. The same work of the Roman prætors was done in the edicts (edicta) which they issued upon taking office, and which in process of time became one continuous body of law, each magistrate taking that which had been left by his predecessors, and altering, amending, and adding to the same as the needs of an advancing civilization required. The form of this edict was peculiar. Instead of laying down general abstract propositions defining primary rights, or publishing formal commands similar to modern statutes, the magistrates announced that under certain specified circumstances a remedy would be granted by means of a designated action. In this manner the edictal or prætorian law took on the peculiar form I have already described, and ever kept in view the remedies and the actions by which they might be obtained as the very central conception of the whole system. § 13. From generation to generation and from century to century ideas of abstract right and justice more and more controlled the legislative action of the prætors; ancient arbitrariness was gradually abandoned, and practical rules became equitable. This result was accomplished by three separate processes, -(1) by extending the old forms of action to new cases, (2) by con Justinian, Introd. pp. 59-62. See also by Gaius, pp. 407-422; Commentaries of "Roman Law," by Lord Mackenzie, pp. Gaius, by Abdy and Walker, pp. 257315-317; Poste's Elements of Roman Law, 269. triving new actions analogous to the old ones, and (3) finally, by inventing actions entirely different in principle and in method. Fiction played a prominent part in the earlier stages of this progress, and equity in the later. The proceedings thus described were called "ordinary," and were strictly analogous to the English common-law action tried before a court and jury. The prætor was the magistrate who announced the law in his edict, and who applied this law to each case as it came before him, by designating the legal principle that controlled it, and by indicating that rule in the pleadings as the guide to its final decision. The prætor himself did not make this decision nor pass upon the issues of fact. They were referred to a special tribunal constituted for that purpose, generally a single "judex" or juryman, sometimes a single "arbiter," who seems to have had greater latitude and discretion than the judex, and in a few specified cases a larger body of jury men, who were then termed "recuperatores," or "centumviri." § 14. Side by side with this ordinary jurisdiction of the prætor, there grew up the extraordinary jurisdiction, in the exercise of which he decided both the law and the facts without the interposition of any judex or jury, and unhampered by any technical requirements as to the proper "formula" or action. Nothing could be simpler than the whole proceeding; the plaintiff alleged the facts making out his cause of action; the defendant answered, setting up his defence whole or partial; the magistrate decided. In this manner the prætor was enabled to grant remedies not provided for by any specified action, and to base his judgments upon notions of right and justice. In this extraordinary jurisdiction of the Roman prætor we plainly have the prototype of the English Court of Chancery, and of its equitable powers and principles. Among the remedies invented in the exercise of this extraordinary jurisdiction, and for which there was no provision made by any known action or formula, were interdicts, which answered to our injunctions, both preventive 1 See Sandars's Inst. of Justinian, Introd. p. 70. It has sometimes been said the entire functions of the prætor are reproduced in the modes of the Court of Chancery; but this is a mistake, and can only have resulted from a misconception of the Roman juridical system. The par allelism between the prætor wielding his ordinary" jurisdiction and the commonlaw courts, and between the prætor wielding his "extraordinary" jurisdiction and the Court of Chancery, is absolutely perfect. and mandatory; restitutions (restitutiones in integrum), by which a person was restored to his former position; the enforcement of trusts (fidei-commissa); and the settlement of insolvents' estates (missio in bonorum possessionem). In these remedies we find all the most important and peculiar kinds of relief conferred by the modern Court of Chancery, and all the grand principles which make up the body of modern equity. Interdicts, which were in fact broader in their scope than our injunctions, because they were used to restrain acts of mere violence, played a very prominent part in the theory of remedial rights. Restitution was the name applied to a large class of remedies adapted to differing circumstances and answering to numerous special decrees granted by our equity tribunals. The modern doctrine of trusts was confessedly borrowed from the fideicommissa; and, although its scope has been greatly enlarged, the principle which underlies it is the same. Finally, the missio in bonorum possessionem was the origin of the systems of bankruptcy which form a stable part of the jurisprudence of all European nations. This equitable procedure, after running side by side with the ordinary or legal, grew in importance, and became in time the only practical method in use, every litigation being turned into the prætor's extraordinary jurisdiction. At length, by a constitution of Diocletian (A. D. 294), all causes in the provinces were required to be tried in this manner; and shortly after the same rule was made universal throughout the empire.1 The codification made by the direction of Justinian contains only this sensible and natural mode of administering the remedial department of the law, because the ancient formalism had long before disappeared. III. The Workings of this Principle in the English Law. § 15. The same facts, the same underlying principles, and the same course of development are shown in the bistory of the English law. Bracton (A. D. 1256-1259) modelled his treatise upon the Institutes of Justinian, and thus gave his work the appearance of some scientific order and method; but his book was certainly in advance of the time in which it appeared, and the law 1 See Lord Mackenzie's Roman Law, p. 319. for many generations and even centuries did not follow the logical system which he borrowed from the civilian institutional writers and commentators. With those jurists he divided all actions, all the common-law actions, for as yet the equitable jurisdiction of the Court of Chancery was unknown-into real, personal, and mixed; and this classification has been preserved to our day, although it is utterly without any practical results.1 § 16. Real Actions. Real actions were based upon the plaintiff's, or demandant's as he was called, right of property in the specific thing which was the subject of controversy, his dominium ; they were brought to establish this ownership, and sometimes his right of possession against an adverse claimant who had taken possession and asserted ownership. In this respect they were identical with and plainly copied from the group of actions in the Roman law termed "vindications" (vindicationes), but differed from the latter in being confined to lands. For movables there was no real action, no vindication, and damages alone could be sued for. The ancient real actions in the English law were separated into two classes, the petitory, in which the controversy was concerning the property and right (super proprietate et jure), and sought to establish such property; and the possessory, in which the controversy was concerning the possession. The petitory real actions were (1) the writ of formedon, of which there were three varieties, in the descender, in the remainder, and in the reverter; (2) the writ of quod se deforcias, for owners of life estates, such as dower and the like; and (3) the writ of right, to recover the absolute fee. The possessory real actions were (1) the writ of entry, and (2) the writ of assize, of which there were two varieties, assize mort d'ancestor, and assize of novel disseisin. The relation of the possessory to the petitory actions was such that an appeal to the former did not preclude the subsequent use of the latter, while on the contrary the first use of petitory actions prevented all recourse for ever afterwards being had to the possessory.2 § 17. Mixed Actions. The only mixed actions spoken of by Bracton were those employed for the partition of lands among 1 Bracton and his Relation to the Roman Law, by Güterbock, trans. by Brinton Coxe, pp. 150, 151. 2 For a fuller description of these real actions, their special objects, and their procedure, see Blacks. Comm. bk. iii. ch. 10, pp. 180-197. co-owners. Others, however, were subsequently invented and placed without much regard for logic in this class. The most important of them were the action of ejectment, which always preserved the form of a mere possessory proceeding, although it finally took the place of even the petitory real actions as the means of trying titles; the action of waste, in which the possession of the land wasted by the tenant and damages for the injury were recovered; and quare impedit, which was confined to certain ecclesiastical property. § 18. Personal Actions.- Personal actions (in personam) were directed against the particular person liable; and the final remedy which they conferred was always a sum of money. They were separated, according to the nature of the act which was the occasion of putting them in motion, the omission or delict of the defendant, into those ex contractu and those ex delicto or maleficio. The arrangement made by one text-writer of authority, Mr. Chitty, in his treatise on Pleading, includes in the class ex contractu debt, covenant, assumpsit, detinue, and account, and in the ex delicto trespass, case, trover, and replevin. It is difficult to see why detinue should be called an action ex contractu, and replevin an action ex delicto. Neither more than the other is founded upon contract, and both are in their essence actions in vindications, and seek to recover the very corpus of the goods. This is a striking example of the utter want of consistency and logical order running through the treatment of the common law by the best of its text-writers, and resulting partly from the arbitrary division of things into real and personal, lands and chattels, and of property therein into real and personal estates. Because the taking or the detention is in itself an act of wrong, and not an agreement, some writers range both detinue and replevin in the class ex delicto. rem, § 19. A sketch of the origin and progress of these actions through various stages will illustrate the workings in the common law of the general principle that I am discussing. At the earliest times there were only four personal actions, - debt and covenant strictly ex contractu, and trespass and detinue. An action was commenced by the issuing of a process from the court, called the original writ, which briefly described the injury, omission, or wrong alleged against the defendant, and indicated by proper technical phrases the form of the action which would |