later empire, may be doubted. I am of the opinion that such a result cannot be reached until trial by jury is abandoned, and the magistrate is left to decide both the law and the facts in every civil proceeding. While the jury trial lasts, there are difficulties. in the way of an absolute unity of method which seem to be insuperable. What the union between law and equity effected by the American codes of practice actually is, what consequences in the administration of justice and in the granting of civil remedies this union must necessarily produce, if the spirit and the letter of the legislation are obeyed, I shall show in a subsequent portion of this treatise. As the necessity for a separate court of chancery arose in great part from the use of the jury trial by the common-law courts, it hardly seems possible that this necessity has now been obviated, or that the equity tribunals and methods can be absolutely merged in those of the common law, and still less that the common-law tribunals and methods can be so merged in those of equity, as long as the jury trial— the original element of distinction continues to exist. § 24. In thus describing the progress of our law, and the methods by which it has been built up, created, I may properly say, through the exercise of the judicial legislative function of the courts operating by the decision of individual cases, I have explained the peculiar external form as well as the internal nature of that law as a complete system. For the larger part of the history the development has taken on the form of extending, modifying, enlarging, improving, and adding to the various actions, their comprehensiveness, their application to the new facts, events, and relations constantly arising in the movements and advance of society and civilization. During that period it was impossible to separate the fundamental principles, the abstract rules which determine the primary rights and duties of individuals, from the more arbitrary and technical rules which relate directly to the procedure and to the methods and processes by which the judicial remedies were granted to suitors. This statement is abundantly verified by an examination of the published records in which the acts of the courts have been preserved. A study of the books of reported decisions, published prior to a very recent time, shows that the judges seldom attempted to view the law as a body of general rules based upon great principles of right and justice, or to consider it apart from the mere external modes in which it was made applicable to individual cases. Their opinions almost uniformly discussed the narrow question, whether such or such an action was proper under the circumstances before them, and whether the steps taken in it had been regular, and, if irregular, what effect was produced by such default upon the claims of the litigant parties. Doubtless more general and fundamental principles were often involved in these apparently technical discussions; but they were involved in a very subtle and obscure manner, so deeply involved as to be very difficult of apprehension. It is true that in more recent times there has been a great and most beneficial change. The courts of equity never being so much restricted by external and rigid forms, their notions and methods at last produced a marked effect upon the common-law judges and lawyers. The latter tribunals felt the influence, and were led to look at the substance behind and distinct from the forms. In the second place, a succession of learned and able commentators and text-writers had done much to mould separate and important portions of the jurisprudence into a logical, scientific, and homogeneous form. Finally, the stage of direct legislation had commenced, and both in England and in the United States, whole departments of the private law had been put into a statutory shape, and some progress had been made towards an exhaustive code. In fact, the private law of England and of the United States had reached a period of its development analogous to that of the Roman law before the decline of the empire had begun, after the creative function of the prætors had virtually ceased, and while the writings of the great jurisconsults and the constitutions of the emperors were the principal sources of the law, and were transforming it from the fragmentary shape of the Edicts into the philosophical order and symmetry exhibited in the Institutes of Gaius. Notwithstanding this change-almost revolution-which had commenced within the last fifty years, and which had probably been more thorough in the United States than in England, the old system of formal actions and technical modes of procedure still exerted a very decided influence through the whole body of the law, and still reigned supreme in the department of remedies and remedial rights. SECTION SECOND. REMEDIES AND REMEDIAL RIGHTS PRIOR TO THE MODERN REFORMS IN PROCEDURE. § 25. The division into legal and equitable relief, and the common-law forms of action, presented a theoretical and a practical classification of remedies and remedial rights, which was universally accepted as not only proper, but as the only one possible under the circumstances. Here was a system ready made; and, no matter how artificial and arbitrary it was, no other could be adopted as long as the ancient practice prevailed. We therefore find that all the English and American treatises, commentaries, and digests, so far as they treat of remedies, have followed the order which the common-law system of actions suggests, without a question as to its practical efficiency, whatever might be thought of its theoretical correctness. In fact, this classification was practically efficient; that is, it enabled the court and the bar to go through with the routine of business without much liability to mistake growing out of the method itself. I will illustrate this statement by a familiar example. Whatever may be said of reform in the law, of amending it so that it may be more consistent, logical, and scientific, the most important practical duty of the lawyer is to procure some relief for clients whose legal rights have been invaded. In this country at least the great mass of men go on with their affairs, trusting to their own knowledge or to their luck, until a difficulty is actually encountered; and then they apply to a lawyer. His first and in general only duty in such case is to ascertain what remedy is furnished by the law applicable to the facts disclosed to him, and to obtain that remedy, if possible, through the action of the courts. In determining this most important, practical question, What is the appropriate remedy, and what are the client's remedial rights? the established divisions which I have described lie open before him as an almost unerring guide. He can easily decide whether the case falls within the department of equitable or within that of legal rights, duties, and reliefs. The lines which separate these two grand departments are so well defined that in the vast majority of instances he could not err in making his choice, except through the grossest ignorance or negligence. - If the case is legal rather than equitable, the lawyer has next to determine the form of remedy awarded by the law courts to which his client is entitled. Here, again, the field is so carefully mapped out, the divisions are so plain, that his task is comparatively easy. If the matter in controversy is the ownership of a tract of land or of a specific chattel, and the object of the litigation is to declare such ownership and to recover possession, he knows that ejectment in the one case, and replevin in the other, must be the judicial instrument by which the rights are to be asserted. If the relief is to be pecuniary, the question presents itself, and can be answered as soon as asked, - answered almost mechanically, Is the cause of action the breach of a contract, or is it some tort to person or property? If the former, the distinctions between debt, covenant, and assumpsit are patent, and any error in the choice is virtually impossible; indeed, all the lawyer has practically to do is to ascertain whether the contract is sealed or unsealed, for every case of simple contract, although it creates a debt, may be, and naturally would be, sued in assumpsit. If the cause of action is a tort, mere ordinary knowledge, a very moderate acquaintance with the modern rules of procedure is sufficient to determine the choice between trespass, case, and trover. Although in former times the difficulty of distinguishing between trespass and case was often very great, although the special rules which governed their use were technical, even absurdly technical, this difficulty had long ago disappeared, this technicality had long ago been removed. It sometimes happened that the facts presented to the lawyer did not bring the client's case within any of these ordinary forms of procedure; neither a suit in equity nor any common-law action could afford the relief applicable to the situation. Even in such an exceptional instance the common law provided other and special methods, and the choice between them was comparatively easy. § 26. There were thus many and great practical benefits connected with, and arising out of, the system of procedure which has lasted through so many centuries. Conceding that the system, as a whole, was based upon no scientific, logical, or true principles, that it was arbitrary and artificial, that sometimes it had been wedded to technicality in such a degree as to produce gross injustice to suitors, yet, as this technical habit of mind had passed away, there was left a method of arranging, classifying, and administering remedies and remedial rights which was clear, definite, certain, and easy to be understood and to be worked out in actual practice. The lawyer knew exactly what remedies the courts would grant in a given case, and the form, manner, and means by which such remedy was to be sought and obtained. There was an order, a classification, running through the whole department of civil remedies which could be acquired by an exercise of the memory; and although the reasons upon which that classification was based were, like much of so-called legal reasoning, a mere formula of words, without any real meaning, yet, when the artificial premises were conceded, the results could be understood. The system, however, did not rest upon its reasoning so much as upon dogmatic authority, precedent, and habitual use. § 27. While an order, a classification, of remedies and remedial rights thus existed, perfect of its kind, practically adapted to the administration of justice in the manner which had long prevailed in England and in this country, this order and classification were founded upon, inseparably united with, and indeed a part of, the artificial method of administering justice which I have described, and which is so familiar to every lawyer, the division of courts into law and equity, the separation of the entire jurisprudence into legal and equitable, and the use of fixed forms of action and of special proceedings for the obtaining all the remedies which the common-law tribunals conferred upon suitors. The artificial peculiarities of the remedial department, the very order, arrangement, kinds, and classes of remedies, and of means for their attainment which were so certain, well defined, and comprehensible, depended upon broader and deeper peculiarities, which lay at the bottom and pervaded the whole superstructure of our law. A change in the latter renders a change in the former inevitable. When a fundamental reform has been accomplished, when the artificiality and arbitrariness in the whole body of the law have been removed, when the division-wall between law and equity has been broken down, when all the separate forms of legal actions have been abolished, the raison d'être of the existing classification of remedies and remedial rights also disappears. I would not be misunderstood in this statement. The remedies themselves, the final reliefs which are granted to litigant parties who establish their rights, remain unchanged; ownership of specific tracts of |