stance and in their final form with the legal judgments which are obtained upon the same facts and for the same purposes. § 54. Having thus inquired into the essential nature of equity, and ascertained its constituent elements, we are enabled to discuss the theory or pure ideal of a union between law and equity with greater accuracy and certainty. The theory of a complete union or consolidation does not and cannot involve a change in the rules as to primary rights and duties, which form a most important division of equity. The entire municipal law now contains: (1) Legal rules defining rights and duties applicable to all the facts and circumstances which have been brought within the range of jural relations; (2) Equitable rules defining rights and duties applicable to certain determined classes of these facts and circumstances, which are additional and supplementary to the legal rules applicable to the same classes; and (3) Equitable rules applicable to a comparatively very small number of these facts and circumstances, which are really contrary and antagonistic to the legal rules applicable to the same. There is, therefore, no clashing or conflict, no doubt or uncertainty, as to the final absolute rights and duties of individuals, except so far as such conflict and uncertainty may spring from the existence of the very small number of rules in the third class, where the antagonism between law and equity does actually exist. It is certainly strange that in an age and country advanced in civilization the municipal law should present such an anomaly; it is certainly absurd, for example, that a married woman's contracts should be utterly void according to the doctrines of the law, while, according to the doctrines of equity, they may be valid and enforceable out of her property. If any change is to be made in accomplishing an absolute union, it must be in the legal and not in the equitable rules where this discord exists. The latter are confessedly the more just, and more in accordance with the sentiments and opinions of the age; while the former have become practically obsolete, and would be totally abandoned in any revision or codification of the entire jurisprudence. An absolute union, therefore, would leave in existence and in active operation all the rules of equity, which define primary rights and duties, and all the rules of the law, except those few in number which are directly opposed to some particular equitable doctrine or principle. The municipal law would thus be homogeneous and unified; and were it not for the distinction in the remedies, which would still remain, the names "law" and "equity" might be abandoned. § 55. The theory of an absolute union does not imply a change in or abolition of any remedies, either legal or equitable. The municipal law in the administration of justice, and for the purpose of maintaining the primary rights and duties of individuals, permits and uses (1) the remedies which the common law and the law courts contrived, and (2) those which equity and the equity courts contrived. There is no interference, no conflict, among them; there is even practically no superfluity, for the legal remedies which are identical in substance with the equitable ones appropriate to the same circumstances have become obsolete, and exist only in theory. This system of remedies and remedial rights is not in any proper sense double; it is single, uniform, and homogeneous, as far as homogeneity is practicable. The most that can be said is that under certain circumstances the injured party has, upon the same state of facts, an election among the different remedies offered him for his complete protection. Amid the infinite diversity of facts, circumstances, and relations which can occur in the movements of modern society, amid the endless variety of primary rights which must spring therefrom, and amid the countless forms which delicts or violations of duty may assume, it is impossible that the ultimate remedies and remedial rights should be reduced to any few and well-defined classes. Some classification, however, is possible, since it is possible to make some broad divisions of primary rights and of ordinary delicts; and the law long ago took advantage of this possibility, and made the classification as simple and as comprehensive as the nature and condition of the subject then permitted. The result was the three established forms of relief which have been known as legal: the judgment for the recovery of possession of land, for the recovery of possession of chattels, and for the recovery of money. Beyond these the forms and kinds of relief must of necessity be special, adapted to the innumerable varieties of facts, circumstances, and relations. Instead of curtailing, abridging, or abolishing any known kinds of equitable remedy, new and additional ones must, from time to time, be invented to respond to new wants, facts, and relations. No legislation will be needed to effect the modifications and additions which may become necessary in the progress of the social movement; for the courts possess the inherent power, which they have had and used from the earliest period, of meeting the new wants of to-day by means and instruments which had only a potential existence yesterday. We therefore, through this investigation into the very nature of law and of equity as correlative parts of one great whole, reach the conclusion, that a theory or pure ideal of a perfect union does not involve or admit the abolition of any equitable rules which define primary rights and duties, nor of any equitable remedies and remedial rights. which now exist. If any change should be made within the domain of primary rights or in that of remedies, it would consist in abrogating those few legal rules that stand in opposition to acknowledged doctrines of equity, and those few legal remedies and remedial processes that have become obsolete, because equity, under the same circumstances, furnishes the identical relief in a simpler and more efficacious manner. § 56. The legislation which created the reformed American system of procedure is in exact harmony with these conclusions. Not a provision is to be found in the code of any state adopting the new system which requires, suggests, or even intimates an abrogation of equitable primary rights, or equitable remedies and remedial rights; nor, in fact, can a provision be found which expressly contemplates an absolute unification of law and equity into a single homogeneous whole. The change provided for is not in primary rights nor in remedies, but in the methods, means, and instruments by which these primary rights are to be maintained, and these remedies secured. Undoubtedly a removal of all distinction between these external means and instruments, as it must produce an identity of remedial methods, will tend to obliterate all marks of distinction between the two great departments of primary rights and duties which are called equity and law, and to reduce them in time to a condition of oneness; but this result is an indirect though natural consequence of the reform legislation, and is not expressly provided for by the legislation itself. The most explicit and positive language contained in all the codes, but three, is the following: "The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished." There is plainly no suggestion here of a change in primary rights nor in remedies. "Actions and "suits" and their "forms are alone spoken of. Nothing is said even of a union between law and equity, and no hint is given of an alteration in the essential features of either, in the rights and duties which it creates, or the remedies which it confers. It is a misapprehension not only of the spirit but of the plain letter of the code to suppose that it affects the constitution of the municipal law, or goes below the external forms of procedure, the judicial machinery by which the law is made compulsive in the enforcement of its commands. There is thus a perfect accord between the actual legislation and the theory which has been deduced from an analysis of the essential notions of equity and of law. $57. As this theory does not contemplate a destruction of existing remedies, nor directly propose an immediate amalgamation of the two correlative departments of law and equity, and as it is confined to a union of external and formal methods, the question arises, What is meant by such a union of external and formal methods? How far is it possible, while retaining the primary rights and the remedies which have been called legal and equitable, to break down and destroy all distinctions between legal and equitable actions, and to construct a single judicial instrument for the prosecution of all civil remedial rights and the procuring of all civil remedies? It is my purpose, in the remaining portion of the present section, to give a purely theoretical answer to these questions, without reference to the terms of the positive legislation creating the reformed system of procedure. The absolute union or consolidation of external methods which is spoken of, regarded in its highest or ideal perfection, involves the notion of a single action by which to administer all remedies, legal or equitable, and to maintain all primary rights, which action should be the same for all species of relief, and under all possible circumstances. The sameness in this action, with reference to the proceedings therein and especially with reference to the legal or equitable remedies it is designed to confer, may consist in several particulars, which I shall examine separately, and in respect to each of which shall inquire whether an identity of method is possible. § 58. (1) There may be the perfect sameness in the manner of commencing the action under all circumstances, whatever be the nature of the remedy sought or of the primary right main tained. This feature of identity is certainly possible; and it is, moreover, very easy of attainment. That the mode of initiating. the proceedings, the forms and kinds of the process, may be the same for all actions and for all remedies, is too plain to require argument. Each of the codes contemplates at least this feature of identity, and no practical difficulty is found in carrying out the designs of the legislature. (2) The second feature of sameness may be in the method of stating all possible causes of action and of defence; that is, in the pleadings. In other words, the design of the legislature in uniting all modes of procedure may be that, whatever be the remedy invoked, whatever the primary right violated, the acts and facts which constitute the right and the breach of it should be stated in the same manner and according to the same principles. Notwithstanding the conflict of opinion upon this particular point to be found in some of the judicial decisions, I believe that the feature of unity here described is not only possible, but that it is in complete accordance with the highest and most scientific theory of judicial procedure. It is of course impossible that in every case, legal or equitable, the cause of action or defence should be stated in exactly the same manner and form, since there must be essential differences among causes of action and defences which no legislation can efface. It is possible, however, that all causes of action and all defences should be set forth in accordance with the same principle. It has been said that the common-law and the equity methods of pleading were very unlike, and that even since the codes a legal action must necessarily be stated in pursuance of the former, and an equitable action in pursuance of the latter mode. Whatever the courts may have decided, this proposition is not true; no such necessity exists. A single, uniform theory of pleading may be followed, and may be applied to every possible cause of action and defence. The common-law pleading did not state the facts exactly as they occurred, but rather the conclusions which the law inferred from such facts; and in the most frequent of all actions - assumpsit - it constantly charged upon the defendant the making of promises which were entirely fictitious. The equity system stated the facts, but it overlaid them with an unnecessary mass of evidence, unnecessary, I mean, as a statement of the cause of action or defence, and only useful as a means of making the party a witness in the cause either for or - |