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Extremely like the above actiones legis are the writs used in the English courts of law. Those writs are framed for, and adapted to, every branch or denomination of actions, such as detinue, trespass, action upon the case, accompt, and covenant, &c.; the same strictness obtains in regard to them as did in regard to the Roman formulæ above-mentioned: there is the same danger in misapplying them, or in failing in any part of them: and, to use the words of an English law-writer on the subject, “ Writs must be rightly directed, or they will be nought. In all writs, care must be had that they be laid and formed according to their case, and so pursued in the process thereof."'*
The same formality likewise prevails in the English pleadings and conduct of the process as obtained in the old Roman law proceedings ; and in the same manner as the Roman jurisconsults had their actionis postulationes et editiones, their inficiationes, exceptiones, sponsiones, replicationes, duplicationes, &c., so the English lawyers have their counts, bars, replications, rejoinders, sur-rejoinders, rebutters, sur-rebutters, &c. A scrupulous accuracy, in observing certain rules, is moreover necessary in the management of those pleadings. The following are the words of an English law-writer on the subject : “ Though the art of pleading was in its nature and
the value of the slave killed by another citizen- Ajo te hominem meum occidisse, teque mihi quantum ille hoc anno plurimi fuit dare oportere. For damages done by a vicious animal-A10 bovem Mævii servum meum, Stichum, cornu petiisse et occidisse, eoque nomine Mævium, aut servi æstima. tionem præstare, aut bovem mihi no:ræ dare, oportere; or, Alo ursem Mævii vulnus intulisse, et Mævium quantum æquius melius mihi dare, oportere, &c.
It may be observed, that the particular kind of remedy which was provided by the law for the case before the court was expressly pointed out in the formula used by a plaintiff; and in regard to this no mistake was to be made. Thus, in the last-quoted formula, the words quantum æquius melius show that the prætor was to appoint inferior judges both to ascertain the damage done, and determine finally upon the case, according to the direction he previously gave them; these words being exclusively appropriated to the kind of actions called arbitrariæ, from the above-mentioned judges or arbitrators. In actions brought to require the execution of conventions that had no name, the convention itself was expressed in the formula ; such is that which is recited above, relating to work done by the plaintiff, &c.
* Jacob's Law Dictionary. See Writ.
design only to render the fact plain and intelligible, and to bring the matter to judgment with convenient certainty, it began to degenerate from its primitive simplicity. Pleaders, yea and judges, have become too curious in that respect; pleadings at length ended in a piece of nicety and curiosity, by which the miscarriage of many a cause, upon small trivial objections, has been occasioned."*
There is, however, a difference between the Roman actiones legis, and the English writs, which is, that the former might be framed when new ones were necessary, by the prætor or judge of the court, or, in some cases, by the body of the jurisconsults themselves,—whereas writs, when wanted for such new cases as may offer, can only be devised by a distinct judge or court, exclusively invested with such powers, viz., the High Court of Chancery. The issuing of writs already existing, for the different cases to which they belong, is also expressly reserved to this court; and so important has its office on those two points been deemed by lawyers, that it has been called, by way of eminence, the manufactory of justice (officina justitiæ). Original writs, besides, when once framed, are not at any time to be altered, except by parliamentary authority.t
Of so much weight in the English law are these original delineations of cases, that no cause is suffered to be proceeded upon, unless they first appear as legal introductors to it. However important or interesting the case, the judge, till he sees the writ he is used to, or at least a writ
* Cunningham’s Law Dictionary. See Pleadings. of Writs, legally issued, are also necessary for executing the different incidental proceedings that may take place in the course of a lawsuit, such as producing witnesses, &c. The names given to the different kinds of writs are usually derived from the first Latin words by which they began when they were written in Latin, or at least from some remarkable word in them, which gives rise to expressions sufficiently uncouth and unintelligible. Thus a pone is a writ issued to oblige a person in certain cases to give sureties (pone per vadium, and salvos plegios). A writ of subpæna is to oblige witnesses, and sometimes other classes of persons, to appear before a court. An action of qui tam is that which is brought to sue for a proportional share of a fine established by some penal statute, by the person who laid an information; the words in the writ being, Qui tam pro domino rege, quam pro seipso in hac parte sequitur, &c.
issued from the right manufactory, is both deaf and dumb. He is without eyes to see or ears to hear. And, when a case of a new kind offers, for which there is yet no writ in being, should the Lord Chancellor and Masters in Chancery disagree in creating one, or prove unequal to the arduous task, the great national council, that is, parliament itself, is, in such emergency, expressly applied to: by means of its collected wisdom, the right mystical words are brought together; the judge is restored to the free use of his organs of hearing and of speech ; and by the creation of a new writ, a new province is added to the empire of the courts of law.
In fine, those precious writs, those valuable briefs(brevia) as they are also called by way of eminence, which are the elixir and quintessence of the law, have been committed to the special care of officers appointed for that purpose, whose offices derive their names from the peculiar instruments they respectively use for the preservation of the deposit with which they are intrusted; the one being called the office of the Hanaper, and the other of the Small Bag.*
To say the truth, however, the creating of a new writ, upon any new given case, is matter of greater difficulty than the generality of readers are aware of. The very importance which is thought to be in those professional forms of words, renders them really important. As every thing, without them, is illegal in a court of common law, so with them every thing becomes legal; that is to say, they empower the court legally to determine upon every kind of suit to which they are made to serve as introductors. The creating of a new writ, therefore, amounts, in its consequences, to the framing of a new law, and a law of a general nature too. Now the creating of such a law, on the first appearance of a new case, which law is afterwards to be applied to all such cases as may be similar to the first, is really a matter of difficulty: espécially, when men are yet in the dark as to the best kind of provision to be made for the case in question, or even when
* Hanaperium et Parva Baga, the Hanaper Office, and the Petty-Bag Office. The first and last of these Latin words, it may be observed, do not occur in Tully's works. To the care of the Petty-Bag Office those writs are trusted in which the king's business is concerned ; and to the Hanaper Office those which relate to the subject.
it is not, perhaps, yet known whether it be proper to make any provision at all. The framing of a new writ, under such circumstances, is a measure on which lawyers or judges will not very willingly either venture of themselves, or apply to the legislature for that purpose.
From the above-mentioned real difficulty in creating new writs on one hand, and the absolute necessity of such writs in the courts of common law on the other, many new species of claims and cases (the arising of which is, from time to time, the unavoidable consequence of the progress of trade and civilisation) are left unprovided for, and remain like so many vacant spaces in the law, or rather like so many inaccessible spots, which the laws in being cannot reach: now this is a great imperfection in the distribution of justice, which should be open to every individual, and provide remedies for every kind of claim which men may set up against each other.*
To remedy the above inconvenience, or rather in some degree to palliate it, law fictions have been resorted to, in the English law, by which writs, being warped from their actual meaning, are made to extend to cases to which they in no shape belong.
Law fictions of the kind we mention were not unknown to the old Roman jurisconsults; and, as an instance of their ingenuity in that respect, may be mentioned that kind of action in which a daughter was called a son.t Several instances might also be quoted of the fictitious use of writs in the English courts of common law. A very remarkable expedient of that sort occurs in the method generally used to sue for the payment of certain kinds of debt, before the Court of Common Pleas; such (if I mistake not) as a salary
* The act of uniformity of process in civil actions, 2 Will. IV. .c. 30, has to a great extent simplified the inconsistencies pointed out in this chapter with regard to original writs.—Ed.
of From the above instance it might be concluded that the Roman jurisconsults possessed still greater power than the English parliament ; for it is a fundamental principle with the English lawyers, that parliament can do every thing, except making a woman a man, or a man a woman.
[De Lolme here sets forth the omnipotence of Parliament as a maxim, which Blackstone declares to be a figure of speech rather too bold. See Supplementary Illustrations, No. 5.- Ed.]
for work done, indemnity for fulfilling orders received, &c. The writ issued in these cases is grounded on the supposition, that the person sued has trespassed on the ground of the plaintiff, and broken, by force of arms, through his fences and inclosures; and, under this predicament, the defendant is brought before the court: this species of writ, which lawyers have found of most convenient use, to introduce before a court of common law the kinds of claim we mention, is called in technical language a clausum fregit. In order to bring a person before the Court of King's Bench, to answer the demands of much the same nature with those above, a writ, called a latitat, is issued, in which it is taken for granted that the defendant insidiously conceals himself, and is lurking in some county, different from that in which the court is sitting; the expressions used in the writ being, that “he runs up and down and secretes himself :” though no such fact is seriously meant to be advanced either by the attorney or the party.
The same principle of strict adherence to certain forms long since established, has also caused lawyers to introduce into their proceedings fictitious names of persons, who are supposed to discharge the office of sureties; and in certain cases, it seems, the name of a fictitious person is introduced in a writwith that of the principal defendant, as being joinedin a common cause with him. Another instance of the same high regard of lawyers, and judges too, for certain old forms, which makes them more unwilling to depart from such forms than from the truth itself of facts, occurs in the abovementioned expedient used to bring ordinary causes before the Court of Exchequer, in order to be tried there at common law; which is, by making a declaration that the plaintiff is a king's debtor, though neither the court, nor the plaintiff's attorney, lay any serious stress on the assertion.*
* Another instance of the strict adherence of the English lawyers to their old established forms, in preference even to the truth of facts, occurs in the manner of executing the very act mentioned in this chapter, passed in the reign of George I. for preventing personal arrest for debts under forty shillings. If the defendant, after being personally served with a copy of the process, does not appear on the appointed days, the method is to suppose that he has actually made his appearance,