PRIVATE WRONGS.
BOOK III.

CHAPTER THE SEVENTEENTH.

OF INJURIES PROCEEDING FROM, OR AFFECTING,
THE CROWN.

HAVING in the nine preceding chapters confidered the injuries, or private wrongs, that may be offered by the command and authority of the king, fignified by his original writs returnable in his feveral courts of juftice, which thence derive a jurifdiction of examining and determining the complaint; I proceed now to inquire of the mode of redreffing thofe injuries to which the crown itfelf is a party: which injuries are either where the crown is the aggreffor, and which therefore cannot without a folecifm admit of the fame king of remedy ^a; or elfe is the fufferer, and which then are ufually remedied by peculiar forms of procefs, appropriated to the royal prerogative. In treating therefore of thefe, we will confider firft, the manner of redreffing thofe wrongs or injuries which a fubject may fuffer from the crown, and then of redreffing thofe which the crown may receive from a fubject.

I. THAT the king can do no wrong, is a neceffary and fundamental principle of the Englifh conftitution: meaning only, as has formerly been obferved ^b, that, in the firft place, whatever may be amifs in the conduct of public affairs is not chargeable

.{FS}
^a Bro. Abr. t. petition. 12. t. prerogative. 2.
^b Book I. ch. 7. pag. 243-246.
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perfonally
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perfonally on the king; nor is he, but his minifters, accountable for it to the people: and, fecondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice ^c. Whenever therefore it happens, that, by mifinformation or inadvertence, the crown hath been induced to invade the private rights of any of it's fubject, though no action will lie againft the fovereign ^d, (for who fhall command the king ^e?) yet the law hath furnifhed the fubject with a decent and refpectful mode of removing that invafion, by informing the king of the true ftate of the matter in difpute: and, as it perfumes that to know of an injury and to redrefs it are infeparable in the royal breaft, it then iffues as of courfe, in the king's own name, his orders to his judges to do juftice to the party aggrieved.

THE diftance between the fovereign and his fubjects is fuch, that it rarely can happen, that any perfonal injury can immediately and directly proceed from the prince to any private man: and, as it can fo feldom happen, the law in decency fuppofes that it never will or can happen at all; becaufe it feels itfelf incapable of furnifhing any adequate remedy, without infringing the dignity and deftroying the fovereignty of the royal perfon, by fetting up fome fuperior power with authority to call him to account. The inconveniency therefore of a mifchief that is barely poffible, is (as Mr. Locke has obferved ^f) well recompenfed by the peace of the public and fecurity of the government, in the perfon of the chief magiftrate being fet out of the reach of coercion. But injuries to the rights of property can fcarcely be committed by the crown without the intervention of it's officers; for whom the law in matters of right entertains no refpect or delicacy, but furnifhes various methods of detecting the errors or mifconduct of thofe agents, by whom the king has been deceived, and induced to do a temporary injuftice.

.{FS}
^c Plowd. 487.
^d Jenkins. 78.
^e Finch. L. 83.
^f on Gov. p. 2. §. 205.
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THE
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THE common law methods of obtaining poffeffion or reftitution from the crown, of either real or perfonal property, are, 1. By petition de droit, or petition of right, which is faid to owe it's original to king Edward the firft ^g. 2. By monftrans de droit, manifeftation or plea of right: both of which may be preferred or profecuted either in the chancery or exchequer ^h. The former is of ufe, where the king is in full poffeffion of the hereditaments or chattels, and the party fuggefts fuch a right as controvert the title of the crown, grounded on facts difclofed in the petition itfelf; in which cafe he muft be careful to ftate truly the whole title of the crown, otherwife the petition fhall abate ^I: and then, upon this anfwer being endorfed or underwritten by the king, upon this anfwer being endorfed or underwritten by the king, foit droit fait al partie (let right be done to the party ^j) a commiffion fhall iffue to inquire of the truth of this fuggeftion ^k: after the return of which, the king's attorney is at liberty to plead in bar; and the merits fhall be determined upon iffue or demurrer, as in fuits between fubject and fubject. Thus, if a diffeifor of lands, which are holden of the crown, dies feifed without any heir, whereby the king is prima facie intitled to the lands, and the poffeffion is caft on him either by inqueft of office, or by act of law without any office found; now the diffeifee fhall have remedy be petition of right, fuggefting the title of the crown, and his own fuperior right before the diffeifin made ^l. But where the right of the party, as well as the right of the crown, appears upon record, there the party fhall have monftrans de droit, which is putting in a claim of right grounded on facts already acknowleged and eftablifhed, and praying the judgment of the court, whether upon thofe facts the king or the fubject hath the right. As if, in the cafe before fuppofed, the whole fpecial matter is found by an inqueft of office, (as well the diffeifin, as the dying without any heir) the party grieved fhall have monftrans de droit at the common law ^m. But as this feldom happens, and

.{FS}
^g Bro. Abr. t. prerog. 2. Fitzh. Abr. t. error. 8.
^h Skin. 609.
^I Finch. L. 236.
^j State Tr. vii. 134.
^k Skin. 608. Raft. Entr. 461.
^l Bro. Abr. t. petition. 20. 4 Rep. 58.
^m 4 Rep. 55.
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the
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the remedy by petition was extremely tedious and expenfive, that by monftrans was much enlarged and rendered almoft univerfal by feveral ftatutes, particularly 36 Edw. III. c. 13. and 2 & 3 Edw. VI. c. 8. which alfo allow inquifitions of office to be traverfed or denied, wherever the right of a fubject is concerned, except in a very few cafes ⁿ. Thefe proceedings are had in the petty bag office in the court of chancery: and, if upon either rof them the right be determined againft the crown, the judgment is, quod manus domini regii amoueantur et poffeffio reftituatur petenti, falvo jure domini regis ^o; which laft claufe is always added to judgments againft the king ^p, to whom no laches is ever imputed, and whofe right is never defeated by any limitation or length of time. And by fuch judgment the crown is inftantly out of poffeffion ^q; fo that there needs not the indecent interpofition of his own officers to transfer the feifin from the king to the party aggrieved.

II. THE methods of redreffing fuch injuries as the crown may receive from a fubject, are,

1. BY fuch ufual common law actions, as are confiftent with the royal prerogative and dignity. As therefore the king, by reafon of his legal ubiquity, cannot be diffeifed or difpoffeffed of any real property which is once vefted in him, he can maintain no action which fuppofes a difpoffeffion of the plaintiff; fuch as an affife or an ejectment ^r: but the may bring a quare impedit ^s, which always fuppofes the complainant to be feifed or poffeffed of the advowfon: and he may profecute this writ, as well as every other, as well in the king's bench as the common pleas, or in whatever court he pleafes. So too he may bring an action of trefpafs for taking away his goods; but not for breaking his clofe, or any other injury done upon his foil or poffeffion ^t. It would be equally tedious and difficult, to run through every minute

.{FS}
ⁿ Skin. 608.
^o 2 Inft. 695. Raft. Entr. 463.
^p Finch. L. 460.
^q Ibid. 459.
^r Bro. Abr. t. prerogative. 89.
^s F. N. B. 32.
^t Bro. Abr. t. prerog. 130. F. N. B. 90.
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VOL. III.

I I

diftinction

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diftinction that might be gleaned from our antient books with regard to this matter; nor is it in any degree neceffary, as much eafier and more effectual remedies are ufually obtained by fuch prerogative modes of procefs, as are peculiarly confined to the crown.

2. SUCH is that of inquifition or inqueft of office: which is an enquiry made by the king's officer, his fheriff, coroner, or efcheator, virtute officii, or by writ to them fent for the purpofe, or by commiffioners fpecially appointed, concerning any matter that intitles the king to the poffeffion of lands or teftaments, goods or chattels ^u. This is done by a jury of no determinate number; being either twelve, or lefs, or more. As, to enquire, whether the king's tenant for life died feifed, whereby the reverfion accrues to the king: whether A, who held immediately of the crown, died without heirs; in which cafe the lands belong to the king by efcheat: whether B be attained of treafon; whereby his eftate is forfeited to the crown: whether C who has purchafed lands be an alien; which is another caufe of forfeiture: whether D be an idiot a nativitate; and therefore, together with his lands, appertains to the cuftody of the king: and other queftions of like import, concerning both the circumftances of the tenant, and the value or identity of the lands. Thefe inquefts of office were more frequently in practice than at prefent, during the continuance of the military tenures amongft us: when, upon the death of every one of the king's tenants, an inqueft of office was held, called an inquifitio poft mortem, to enquire of what lands he died feifed, who was his heir, and of what age, in order to intitle the king to his marriage, wardfhip, relief, primer-feifin, or other advantages, as the circumftances of the cafe might turn out, To fuperintend and regulate thefe enquiries the court of wards and liveries was inftituted by ftatute 32 Hen. VIII. c. 46. which was abolifhed at the reftoration of king Charles the fecond, together with the oppreffive tenures upon which it was founded.

.{FS}
^u Finch. L. 323, 4, 5.
.{FE}
WITH
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WITH regard to other matters the inquefts of office ftill remain in force, and are taken upon proper occafions; being extended not only to lands but alfo to goods and chattels perfonal, as in the cafe of wreck, treafure-trove, and the like; and efpecially as to forfeitures for offences. For every jury which tries a man for treafon or felony, every coroner's inqueft that fits upon a felo de fe, or one killed by chancemedley, is, not only with regard to chattels, but alfo as to real interefts, in all refpects an inqueft of office: and if they find the treafon or felony, or even the flight of the party accufed (though innocent) the king is thereupon, by virtue of this office found, intitled to have his forfeitures; and alfo in the cafe of chancemedley, he or his grantees are entitled to fuch things, by way of deodand, as have moved to the death of the party.

THESE inquefts of office were devifed by law, as an authentic means to give the king his right by folemn matter of record; without which he in general can neither take, nor part from, any thing ^w. For it is a part of the liberties of England, and greatly for the fafety of the fubject, that the king may not enter upon or feife any mans' poffeffions upon bare furmifes without the intervention of a jury ^x. It is however particularly enacted by the ftatute 33 Hen. VIII. c. 20. that, in cafe of attainder for high treafon, the king fhall have the forfeiture inftantly, without any inquifition of this fort before office found, therefore by the ftatute 18 Hen. VI. c. 6. it was enacted, that all letters patent or grants of lands and tenements before office found, or returned into the exchequer, fhall be void. And, by he bill of rights at the revolution, 1 W. & M. ft. 2. c. 2. it is declared, that all grants and promifes of fines and forfeitures of particular perfons before conviction (which is here the inqueft of office) are illegal and void; which indeed was the law of the land in the reign of Edward the third ^y.

.{FS}
^w Finch. L. 82.
^x Gilb. hift. exch. 132. Hob. 347.
^y 2 Inft. 48.
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I I 2
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WITH regard to real property, if an office be found for the king, it puts him in immediate poffeffion, without the trouble of a formal entry, provided a fubject in the like cafe would have had a right to enter; and the king fhall receive all the mefne or intermediate profits from the time that his title accrued ^z. As on the other hand, by the articuli fuper cartas ^a, if the king's efcheator or fheriff feife lands into the king's hand without caufe, upon taking them out of the kings hand again, the party fhall have the mefne profits reftored to him

IN order to avoid the poffeffion of the crown, acquired by the finding of fuch office, the fubject may not only have his petition of right, which difclofes new facts not found by the office, and his monftrans de droit, which relies on the facts as found; but alfo he may (for the moft part) traverfe or deny the matter of fact itfelf, and put it in a courfe of trial by the common law procefs of the court of chancery: yet ftill, in fome fpecial cafes, he hath no remedy left but a mere petition of right ^b. Thefe traverfes, as well as the monftrans de droit, were greatly enlarged and regulated for the benefit of the fubject, by the ftatutes before-mentioned, and others ^c. And in the traverfes thus given by ftatute, which came in the place of the old petition of right, the party traverfing is confidered as the plaintiff ^d; and muft therefore make out his own title, as well as impeach that of the crown, and then fhall have judgment quod manus domini regis amoveantur, &c.

3. WHERE the crown hath unadvifedly granted any thing by letters patent, which ought not to be granted ^e, or where the patentee hath done an act that amounts to a forfeiture of the

.{FS}
^z Finch. L. 325, 326.
^a 28 Edw. l. ft. 3. c. 19.
^b Finch. L. 324.
^c Stat. 34 Edw. III. c. 13. 36 Edw. III. c. 13. 2 & 3 Edw. VI. c. 8.
^d Law of nifi prius. 202.
^e See book II. ch. 21.
.{FE}
grant ^f,
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Ch. 17.
grant ^f, the remedy to repeal the patent is by writ of fcire facias in chancery ^g. This may be brought either on the part of the king, in order to refume the thing granted; or, if the grant be injurious to a fubject, the king is bound of right to permit him (upon his petition) to ufe his royal name for repealing the patent in a fcire facias ^h. And fo alfo, if, upon office untruly found for the king, he grants the land over to another, he who is grieved thereby, and traverfes the office itfelf, is intitled before iffue joined to a fcire facias againft the patentee, in order to avoid the grant ⁱ.

4. AN information on behalf of the crown, filed in the exchequer by the king's attorney general, is a method of fuit for recovering money or other chattels, or for obtaining fatisfaction in damages for any perfonal wrong ^k committed in the lands or other poffeffions of the crown. It differs from an information filed in the court of king's bench, of which we fhall treat in the next book; in that this is inftituted to redrefs a private wrong, by which the property of the crown is affected, that is calculated to punifh fome public wrong, or heinous mifdemefnor in the defendant. It is grounded on no writ under feal, but merely on the intimation of the king's officer the attorney general, who “gives the court to underftand and be informed of” the matter in queftion; upon which the party is put to anfwer, and trial is had, as in fuits between fubject and fubject. The moft ufual informations are thofe of intrufion and debt: intrufion, for any trefpafs committed on the lands of the crown –l-, as by entering thereon without title, holding over after a leafe is determined, taking the profits, cutting down timber, or the like; and debt, upon any contract for monies due to the king, or for any forfeiture due to the crown upon the breach of a penal ftatute. This is moft commonly ufed to recover forfeitures occafioned by tranfgreffing thofe laws, which are enacted for the eftablifhment and

.{FS}
^f Dyer. 198.
^g 3 Lev. 220. 4 Inft. 88.
^h 2 Ventr. 344.
^I Bro. Abr. t. fcire facias. 69. 185.
^k Moor. 375.
^l Cro. Jac. 212. 1 Leon. 48. Savil. 49.
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fupport
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Ch. 17.
fupport of the revenue: others, which regard mere matters of police and public conveyance, being ufually left to be inforced by common informers, in the qui tam informations or actions, of which we have formerly fpoken ^m. But after the attorney general has informed upon the breach of a penal law, no other information can be received ⁿ. There is alfo an information in rem, when any goods are fuppofed to become the property of the crown, and no man appears to claim them, or to difpute the title or the king. As antiently in the cafe of treafure-trove, wrecks, waifs, and eftrays, feifed by the king's officer for his ufe. Upon fuch feifure an information was ufually filed in the king's exchequer, and thereupon a proclamation was made for the owner (if any) to come in the claim the effects; and at the fame time there iffued a commiffion of appraifement to value the goods in the officer's hands: after the return of which, and a fecond proclamation had, if no claimant appeared, the goods were fuppofed derelict, and condemned to the ufe of the crown ^o. And when, in later times' forfeitures of the goods themfelves, as well as perfonal penalties on the parties, were inflicted by act of parliament for tranfgreffions againft the laws of the cuftoms and excife, the fame procefs was adopted in order to fecure fuch forfeited goods for the public ufe, though the offender himfelf had efcaped the reach of juftice.

5. A WRIT of quo warranto is in the nature of a writ of right for the king, againft him who claims or ufurps any office, franchife, or liberty, to inquire by what authority he fupports his claim, in order to determine the right ^p. It lies alfo in cafe of non-ufer or long neglect of a franchife, or mif-ufer or abufe of it; being a writ commanding the defendant to fhew by what warrant he exercifes fuch a franchife, having never had any grant of it, or having forfeited it by neglect or abufe. This was originally returnable before the king's juftices at Weftminfter ^q; but

.{FS}
^m See pag. 160.
ⁿ Hardr. 201.
^o Gilb. hift. of exch. ch. 13.
^p Finch. L. 322. 2 Inft. 282.
^q Old Nat. Brev. fol. 107. edit. 1534.
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after-
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afterwards only before the juftices in eyre, by virtue of the ftatutes of quo warranto, 6 Edw. I. c. 1. and 18 Edw. I. ft. 2.^r but fince thofe juftices have given place to the king's temporary commiffioners of affife, the judges on the feveral circuits, this branch of the ftatutes hath loft it's effect ^s; and writs of quo warranto (if brought at all) muft now be profecuted and determined before the king's juftices at Weftminfter. And is cafe of judgment for the defendant, he fhall have an allowance of his franchife; but in cafe of judgment for the king, for that the party is intitled to no fuch franchife, or hath difufed or abufed it, the franchife is either feifed into the king's hands, to be granted out again to whomever he fhall pleafe; or, if it be not fuch a franchife as may fubfift in the hands of the crown, there is merely judgment of oufter, to turn out the party who ufurped it ^t.

THE judgment on a writ of quo warranto (being in the nature of a writ of right) is final and conclufive even againft the crown ^u. Which, together with the length it's procefs, probably occafioned that difufe into which it is now fallen, and introduced a more modern method of profecution, by information filed in the court of king's bench by the attorney general, in the nature of a writ of quo warranto; wherein the procefs is fpeedier, and the judgment not quite fo decifive. This is properly a criminal method of profecution, as well to punifh the ufurper by a fine for the ufurpation of the franchife, as to ouft him, or feife it for the crown: but hath long been applied to the mere purpofes of trying the civil right, feifing the franchife, or oufting the wrongful poffeffor; the fine being nominal only.

DURING the violent proceedings that took place in the latter end of the reign of king Charles the fecond, it was among other things thought expedient to new-model moft of the corporation towns in the kingdom; for which purpofe many of thofe bodies

.{FS}
^r 2 Inft. 498. Raft. Entr. 540.
^s 2 Inft. 498.
^t Cro. Jac. 259. 1 Show. 280.
^u 1 Sid. 86. 2 Show. 47. 12 Mod. 225.
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were
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were perfuaded to furrender their charters, and informations in the nature of quo warranto were brought againft others, upon a fuppofed, or frequently a real, forfeiture of their franchifes by neglect or abufe of them. And the conveyance was, that the liberties of moft of them were feifed into the hands of the king, who granted them frefh charters with fuch alterations as were thought expedient; and during their ftate of anarchy the crown named all their magiftrates. This exertion of power, though perhaps in fummo jure it was for the moft part ftrictly legal, gave a great and juft alarm; the new-modelling of all corporations being a very large ftride towards eftablifhing arbitrary power: and therefore it was thought neceffary at the revolution to bridle this branch of the prerogative, at leaft fo far as regarded the metropolis, by ftatute 2 W. & M. c. 8. which enacts, that the franchifes of the city of London fhall never be forfeited again for any caufe whatfoever.

THIS proceeding is however now applied to the decifion of corporation difputes between party and party, without any intervention of the prerogative, by virtue of the ftatute 9 Ann. c. 20. which permits an information in nature of quo warranto to be brought with leave of the court, at the relation of any perfon defiring to profecute the fame, (who is then ftiled the relator) againft any perfon ufurping, intruding into, or unlawfully holding any franchife or office in any city, borough, or town corporate; provides for it's fpeedy determination; and directs that, if the defendant be convicted, judgment of oufter as well as a fine may be given againft him, and that the relator fhall pay or receive cofts according to the event of the fuit.

6. THE writ of mandamus ^w is alfo made by the fame ftatute 9 Ann. c. 20. a moft full and effectual remedy, in the firft place for refufal or admiffion where a perfon is intitled to an office or place in any fuch corporation; and, fecondly, for wrongful removal, when a perfon is legally poffeffed. Thefe are injuries,

.{FS}
^w See pag. 110.
.{FE}
for
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for which though redrefs for the party interefted may be had by affife, or other means, yet as the franchifes concern the public, and may affect the adminiftration of juftice, this prerogative writ alfo iffues from the court of king's bench, commanding, upon good caufe fhewn to the court, the party complaining to be admitted or reftored to his office. And the ftatute requires, that a return be immediately made to the firft writ of mandamus; which return may be pleaded to or traverfed by the profecutor, and his antagonift may reply, take iffue, or demur, and the fame proceedings may be had as if an action on the cafe had been brought for making a falfe return; and, after judgment obtained for the profecutor, he fhall have a peremptory writ of mandamus to compel his admiffion or reftitution; which latter (in cafe of an action) is effected by a writ of reftitution ^x. So that now the writ of mandamus, in cafes within this ftatute, is in the nature of an action, and a writ of error may be had thereon ^y.

THIS writ of mandamus may alfo be iffued, in purfuance of the ftatute 11 Geo. I. c. 4. in cafe within the regular time no election fhall be made of the mayor or other chief officer of any city, borough, or town corporate, or (being made) it fhall afterwards become void; to require the electors to proceed to election, and proper courts to be held for admitting and fwearing in the magiftrates fo refpectively chofen.

WE have now gone through the whole circle of civil injuries, and the redrefs which the laws of England have anxioufly provided for each. In which the ftudent cannot but obferve, that the main difficulty which attends their difcuffion arifes from their great variety, which is apt at our firft acquaintance to breed a confufion of ideas, and a kind of diftraction in the memory: a difficulty not a little increafed by the very immethodical arrangement, too juftly complained of in our antient writers; but which will infenfibly wear away when they come to be re-

.{FS}
^x 11 Rep. 79.
^y 1 P. W^ms. 351.
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confidered,

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confidered, and we are a little familiarized to thofe terms of art in which the language of our anceftors has obfcured them. Terms of art there will unavoidably be in all fciences; the eafy conception and thorough comprehenfion of which muft depend upon frequent ufe: and the more fubdivided any branch of fcience is, the more terms muft be ufed to exprefs the nature of thefe feveral fubdivifions, and mark out with fufficient precifion the ideas they are meant to convey. This difficulty therefore, however great it may appear at firft view, will fhrink to nothing upon a nearer approach; and be rather advantageous than of any differvice, by imprinting a clear and diftinct notion of the nature of thefe feveral remedies. And, fuch as it is, it arifes principally from the excellence of our Englifh laws; which adapt their redrefs exactly to the circumftances of the injury, and do not furnifh one and the fame action for different wrongs, which are impoffible to be brought within one and the fame defcription: whereby every man knows what fatisfaction he is entitled to expect from the courts of juftice, and as little as poffible is left in the breaft of the judges, whom the law appoints to adminifter, and not to prefcribe the remedy. And I may venture to affirm, that there is hardly a poffible injury, that can be offered either to the perfon or property of another, for which the party injured may not find a remedial writ, conceived in fuch terms as are properly adapted to his own particular grievance.

IN the feveral perfonal actions which we have curforily explained, as debt, trefpafs, detinue, action on the cafe, and the like, it is eafy to obferve how plain, perfpicuous, and fimple the remedy is, as chalked out by the antient common law. In real actions 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 fomewhat more complex and difficult, and attended with fome delays. And fince, in order to obviate thofe difficulties, and retrench thofe delays, we have permitted the rights of real property to be drawn into queftion in mixed or perfonal fuits, we are (it muft be owned) obliged to have re-
courfe
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Ch. 17.
courfe too fuch arbitrary fictions and expedients, that unlefs we had developed their principles, and traced out their progrefs and hiftory, our prefent fyftem of remedial jurifprudence (in refpect of landed property) would appear the moft intricate and unnatural, that ever was adopted by a free and enlightened people.

BUT this intricacy of our legal procefs will be found, when attentively confidered, to be one of thofe troublefome, but not dangerous, evils which have their root in the frame of our conftitution, and which therefore can never be cured, without hazarding every thing that is dear to us. In abfolute governments, when new arrangements of property and a gradual change of manners have deftroyed the original ideas, on which the laws were devifed and eftablifhed, the prince by his edict may promulge a new code, more fuited to the prefent emergencies. But when laws are to be framed by popular affemblies, even of the reprefentative kind, it is too Herculean a tafk to begin the work of legiflation afrefh, and extract a new fyftem from the difcordant opinions of more than five hundred counfellors. A fingle legiflator or an enterprising fovereign, a Solon or Lycurgus, a Juftinian or a Frederick, may at any time form a concife, and perhaps an uniform, plan of juftice; and evil betide that prefumptuous fubject who queftions it's wifdom or utility. But who, that is acquainted with the difficulty of new-modelling any branch of our ftatute laws (though relating but to roads or to parifh-fettlements) will conceive it ever feafible to alter any fundamental point of the common law, with all it's appendages and confequents, and fet up another rule in it's ftead ? When therefore, by the gradual influence of foreign trade and domeftic tranquillity, the fpirit of our military tenures began to decay, and at length the whole ftructure was removed, the judges quickly perceived that the forms and delays of the old feodal actions, (guarded with their feveral outworks of effoins, vouchers, aid-prayers, and a hundred other formidable intrenchments) were ill fuited to that more fimple and commercial mode of property which fucceeded the former,
K k 2
and
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and required a more fpeedy decifion of right, to facilitate exchange and alienation. Yet they wifely avoided foliciting any great legiflative revolution in the old eftablifhed forms, which might have been productive of conveyances more numerous and extenfive than the moft penetrating genius could forfee; but left them as they were, to languifh in obfcurity and oblivion, and endeavoured by a feries of minute contrivances to accommodate fuch perfonal actions, as were then in ufe, to all the moft ufeful purpofes of remedial juftice: and where, through the dread of innovation, they hefitated at going fo far as perhaps their good fenfe would have prompted them, they left an opening for the more liberal and enterprising judges, who have fate in our courts of equity, to fhew them their error by fupplying the omiffions of the courts of law. And, fince the new expedients have been refined by the practice of more than a century, and are fufficiently known and underftood, they in general anfwer the purpofe of doing fpeedy and fubftantial juftice, much better than could now be effected by any great fundamental alterations. The only difficulty that attends them arifes from their fictions and circuities, but, when once we have difcovered the proper clew, that labyrinth is eafily pervaded. We inherit an old Gothic caftle, 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 ufelefs. The inferior apartments, now converted into rooms of conveyance, are cheerful and commodious, thought their approaches are winding and difficult.

IN this part of our difquifitions I however thought it may duty to unfold, as far as intelligibly I could, the nature of thefe real actions, as well as of perfonal remedies. And this not only becaufe they are ftill in force, ftill the law of the land, though obfolete and difufed; and may perhaps, in their turn, be hereafter with fome neceffary corrections called out again into common ufe; but alfo becaufe, as a fenfible writer has well obferved ^z,

.{FS}
^z Hawk. Abr. Co. Litt. pref.
.{FE}
“whoever
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Ch. 17.
“whoever confiders how great a coherence there is between the “feveral parts of the law, and how much the reafon of one “cafe opens and depends upon that of another, will I prefume “be far from thinking any of the old learning ufelefs, which “will fo much conduce to the perfect underftanding of the modern.” And befides I fhould have done great injuftice to the founders of our legal conftitution, had I led the ftudent to imagine, that the remedial inftruments of our law were originally contrived in fo complicated a form, as we now prefent them to his view: had I, for inftance, intirely paffed over the direct and obvious remedies by affifes and writs of entry, and only laid before him the modern method of profecuting a writ of ejectment.
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