easy conception and thorough comprehension of which must depend upon frequent use: and the more subdivided any branch of science is, the more terms must be used to express the nature of these several subdivisions, and mark out with sufficient precision the ideas they are meant to convey. This difficulty therefore, however great it may appear at first view, will shrink to nothing upon a nearer approach; and be rather advantageous than of any disservice, by imprinting a clear and distinct notion of the nature of these several remedies. And, such as it is, it arises principally from the excellence of our English laws; which adapt their redress exactly to the circunstances of the injury, and do not furnish one and the same action for different wrongs, which are impossible to be brought within one and the same description: whereby every man knows what satisfaction he is entitled to expect from the courts of justice, and as little as possible is left in the breast of the judges, whom the law appoints to administer, and not to prescribe the remedy. And I may venture to affirm, that there is hardly a possible injury, that can be offered either to the person or property of another, for which the party injured may not find a remedial writ, conceived in such terms as are properly adapted to his own particular grievance.

In the several personal actions which we have cursorily explained, as debt, trespass, detinue, action on the case, and the like, it is easy to observe how plain, perspicuous, and simple the remedy is, as chalked out by the antient common law. In the methods prescribed for the recovery of landed and other permanent property, as the right is more intricate, the feodal or rather Norman remedy by real actions is somewhat more complex and difficult, and attended with some delays. And since, in order to obviate those difficul

5 Previously, "real actions."

ties, and 'retrench those [267 delays, we have permitted the rights of real property to be drawn into question in mixed or personal suits, we are (it must be owned) obliged to have recourse to such arbitrary fictions and expedients, that unless we had developed their principles, and traced out their progress and history, our present system of remedial jurisprudence (in respect of landed property) would appear the most intricate and unnatural, that ever was adopted by a free and enlightened people.

But this intricacy of our legal process will be found, when attentively considered, to be one of those troublesome, but not dangerous, evils which have their root in the frame of our constitution, and which therefore can never be cured, without hazarding everything that is dear to us. In absolute governments, when new arrangements of property and 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 task 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 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 newmodelling 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 tranquility, the spirit of our military tenures began to decay, and at length the whole structure was reinoved, the judges quickly perceived that the forms and delays of the old feodal actions (guarded with their several outworks of essoins, vouchers, aid-prayers, and a hundred other formidable intrenchments), were ill suited to that [268] more simple and commercial mode of property which succeeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wisely avoided soliciting any great legislative revolution in the old established forms, which might have been productive of consequences more numerous and extensive than the most penetrating 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 so far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprizing judges, who have sate in 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 difficulty that attends them arises from their fictions and circuities: but, when once we have discovered the proper clew, that labyrinth is easily pervaded. We inherit 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. The inferior apartments,

now converted into rooms of convenience, are chearful and commodious, though their approaches are 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 reinedies. 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 [269] writer has well observed, "whoever considers how great a 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 conduce 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 him the modern method of prosecuting a writ of ejectment.

NOTE OF THE AMERICAN EDITOR TO CHAPTER XVII.

(49) By petition de droit, page 256.

The petition of right, as is generally agreed, makes its first appearance under Edward I. Opinions differ whether it was then a new institution, or took the place of an action at law against the king as against a private man, of which there is some little trace in the books, though probably resting in a mistake.

z Hawk. Abr. Co. Litt. pref.

**Quoted with omissions, 49 N. H. 590; 59 N. H. 434.

A third view seems possible; that then for the first time in the growth and development of legal rights the need was felt of a formal remedy by law for claims, which had previously been presented only in the shape of a petition de grace.

The petition showed a right not yet established to real or personal property, or a claim based on contract. The latter is a reason for thinking it may have been new (third view above). To base it on a tort would have been to imply that the king could have done a wrong. There is some question whether it lay for unliquidated damages even in contract, as was held in Thomas v. The Queen, Law R. 10 Q. B. 31, following The Banker's Case, 14 St. Trials, 1. There was no authority for such a petition in equity until 1860, by statute 22 & 23 Vict. c. 34, called the Petitions of Right Act, or Sir W. Bovill's Act, confirmed by Judicature Act of 1873, sections 16, 34. It could be tried in chancery or King's Bench.

There is a recent treatise on this subject by Walter Clode, The Law and Practice of Petitions of Right under the Petitions of Right Act, 1860, London, 1887, 8vo. pp. xi. 264, noticed in 4 L. Q. R. 211, April, 1888.