SECTION FIRST.

THE REMEDIAL SYSTEM PRIOR TO THE MODERN REFORMS.

§ 5. Previous to any sweeping changes made by statute, justice was administered in England and in those States which had borrowed the English methods unaltered, by two distinct sets of courts, and by two different systems of procedure, the legal and the equitable. All the ordinary remedies which could be granted to a party in the courts of law as distinguished from those of equity, and in fact all the ordinary remedies which the common law knew and furnished, were administered through and by means of certain fixed and well-defined forms of proceeding, known as the "common-law actions" or "actions at law.” I say all the ordinary remedies, because in addition to those which were thus obtained by means of the determinate actions at law, there were some others, exceptional, ancillary, and extra-ordinary in their nature, which were obtained by means of certain special proceedings that were not properly actions. Among these special proceedings and they are mentioned as illustrations of my meaning only, were the writ of habeas corpus, the writ of mandamus, and the like. The number, nature, and purposes of these various common-law actions, and of these common-law special proceedings, were fixed, and had remained unchanged for several centuries. This fact was not, however, peculiar to England and to the common law. It is found to have been a universal principle, so far as the researches of historical jurists have thrown any light upon the subject, that in the earlier and formative periods of every national jurisprudence, and subsequently until a change was effected in them by direct legislation, the civil remedies were bound up in and administered by determinate forms of judicial procedure, which, while well defined and firmly established, were highly artificial and arbitrary, and of which the common-law actions may be taken as the types. The Roman and the English systems of jurisprudence are the only ones which have passed through an entire course of development, from the rudest archaic stage to a final condition of enlightened equity and refined morality, and whose history throughout this completed progress is open for our study. The law of other coun

tries, broken, fragmentary, and imperfect as it may have come to our knowledge, clearly shows the influence of the principle; but in that of Rome and of England it was established in its full force, and worked out its perfected results in the manner and form of the legal growth. The subject of the present section will be considered under three heads: I. The universal principle of legal development in respect to remedies and remedial rights; II. The workings of this principle in the Roman law; III. The workings of the same principle in the English law.

I. The Universal Principle of Legal Development in Respect to Remedies and Remedial Rights.

§ 6. In the very infancy of a nation, while the people with great potentialities are hardly emerged from the latter stages of barbarism, and the law is rude and severe without an element of equity or abstract justice and morality, there are found to exist a certain number of purely artificial and highly arbitrary forms of judicial procedure, which we may term actions, through which all the civil rights and duties acknowledged and provided for are protected and enforced. Their origin must be referred to the most primitive tribal customs of the peoples. These certain, fixed, and arbitrary forms are the very centre of the entire legal system; and there is hardly a general statement of primary rights and duties separate and apart from the statement of these actions and rights of action. The national code, to use a term which is very inappropriate to a law in such a shape, consists almost entirely in a description of these forms of procedure and of the strict and severe remedies which may be enforced by their means, and of the times when, occasions in which, and persons by whom,

they may be used. This original shape and character of the

national jurisprudence is preserved through long periods of the subsequent history. There appears to be some vital connection between these artificial and arbitrary external forms and the barbarian modes of thought, moral and religious conceptions; and only as the nation gradually works out of the barbarous into an enlightened condition does the arbitrary element of unyielding form begin to disappear, and to be replaced by simple and more just processes.

§ 7. Sir Henry Maine, in his great work, "Ancient Law," has

shown with absolute perfection of demonstration, that a national system of jurisprudence, in its progress from infancy to complete maturity, inevitably passes through three stages, or rather is developed by the means of three very different agencies, each of which, during the time when it is the ruling force, stamps upon the whole body of the law external and internal characteristics peculiar to itself. These three stages or means of development are (1) The use of fictions or fictitious forms contrived to meet some new occasion that has arisen in the social movement, which is done by evading the existing arbitrary rules, and at the same time preserving the appearance of retaining these same rules in full operation. (2) The introduction of equitable conceptions, modes of procedure, and tribunals, by which the judges openly and avowedly abandoning the ancient arbitrary modes and maxims, and even the very appearance of them, create in their stead new methods and rules based upon notions of abstract right and justice. The work of improvement during this stage is chiefly done by the courts in the free use of their highest function, that of legislation. (3) The use of direct, positive legislation, the legislature as the supreme power in the State consciously acting upon the law as a whole and effecting changes in it in accordance with some preconceived plan.

§ 8. In the first and second of these stages, and especially in the first, the external forms of action play a very important, and, in fact, the only part. Starting from its primitive, rude, incomplete condition, when it is little more than a collection of the arbitrary forms I have described, the law pursues its steady growth, keeping pace with the requirements of an advancing civilization; but the original, arbitrary forms dominate over the growth, control its movement, and determine its shape and character. The very growth itself consists in modifications and new applications of the old legal forms and actions to circumstances and cases which arise. The entire law, the national code, to use the expression still inaccurately, is not a statement in abstract of the primary rights and duties which govern the conduct of individuals, but a mere statement of the remedies which an individual may have under given circumstances, by pursuing certain arbitrary and artificial modes of action. All the improvement of and all the addition to the law consist in two classes of operations, both performed by the judicial magis

trates in the exercise of their high functions; namely, (1) the invention of entirely new forms of action to meet some want, to apply to some new classes of events or transactions which have arisen in the social activity; and (2) in the extending the old and existing forms of action so as to include cases and transactions not originally embraced within them. This work is almost entirely done by the judges, although occasionally the legislature intervenes, and at one blow effects the change or the addition. In both these two classes of operations, but especially in the latter one, fictions are freely resorted to, so as to effect the real improvement, the new adaptation, while preserving the appearance of a strict adherence to the ancient external form. It seemed to be a controlling notion in the minds of men during that period of development, to preserve the shell, the outside husk, with most scrupulous care, while the kernel was removed or replaced by fruit of another kind.

§ 9. The instance of the action of ejectment in the English law well illustrates my statement, both as to the general method of improvement and as to the use of fictions in pursuing that method. This action, when first invented, was designed solely to enable a tenant for years to recover possession of the demised land, during the continuance of the term, from some wrongful ejector who had taken and kept the possession. It assumed a real demise, an actual tenant, and a wrongful ejector who had the possession; it was used only under these circumstances; it contained no fictions, but was as real as any action known to the law. Prior to the allowance of the writ upon which the action was based, such a tenant had no means of enforcing his claim to the land. His interest was not looked upon as an estate, nor even as a right of any description which the courts would sustain. In the process of time, however, the tenant came to be regarded as clothed with a definite interest, a low kind of estate, and the action of ejectment was invented, as described, to protect his right and preserve his possession. This conception of the action continued until the reign of Edward III., or, as some say, until that of Henry VII. Subsequent to that time the judges began to contrive the series of fictions which rendered the action of ejectment such a strange anomaly to the legal student, and made it the usual and finally the only means of trying the title to lands between parties who adversely claimed to own the same in fee.

In the first place, instead of a real tenant, a fictitious tenant, John Doe, was substituted as the plaintiff, and a fictitious demise to him from the actual person who claimed to own the premises in fee and sought to establish his ownership by this legal proceeding. But as the arbitrary rule of the law required that the defendant in the action should be in possession, and as the adverse claimant of the fee might not be in possession, another set of fictions was contrived, and in this manner the action was at last completely transformed from its original purpose, and became the only mode for the trial of titles and the recovery of land by the absolute owner in fee.1

§ 10. In this manner a legal growth proceeds through long periods of the national history. The legislature interferes but seldom with the private law, with the rules which define and control the rights, duties, and relations of individuals; its occasional acts of amendment are to correct some glaring abuse, or to make some abrupt change which has seemed to the courts to be impossible by their ordinary judicial methods. The task of developing the law is thus left almost entirely to the magistrates; and they proceed step by step, as cases arise, by using the actions with which they are familiar, and by preserving the external forms thereof, only enlarging their scope, and increasing the number of special instances to which they apply. From this cause the private law, as a whole, still continues, during the periods described, to be an enumeration and statement of the remedies and reliefs which injured parties may obtain, under specified circumstances, by following the well-defined and arbitrary modes prescribed in the actions and special proceedings which the courts permit or require to be used. These general propositions will now be illustrated by reference to the Roman and the English legal history, during the first and formative stages of each.

II. The Workings of this Principle in the Roman Law.

§ 11. At the earliest stage of the Roman law, of which there is any certain trace remaining, and for a considerable length of time subsequent to the decemviral legislation, known as the Twelve Tables, there were five actions by which all civil rights could be

1 Spence, Eq. Jur. of the Ct. of Chan. vol. i., pp. 232, 233.