But now, reflect a moment on this classification. A promise under seal must assuredly require a different proof from a promise not under seal; but what end is answered by calling one an action of covenant and the other an action of assumpsit? Or what good result can arise from limiting the definition of debt to the claim of a sum certain? Who sees not what a snare may be here laid for the feet of unwary suitors? The names of trover, detinue, trespass, give no information to the defendant; the substantial cause of action is stated in the declaration, and these names are mere useless additions. Yet the right name must be chosen, or it is fatal to the suit. If trespass be adopted instead of trespass on the case, the error is fatal; and yet mark how lucid, how intelligible, how satisfactory is the classification designated by these terms of art.
Trespass is the proper form of action when the injury has been committed with violence This looks sufficiently distinct. But then the violence may be either actual or implied; and the law will imply violence wherever the injury is direct, and the property injured of a tangible nature. In the most stealthy, peaceable entrance upon another man's land, the law implies violence. What, therefore, may or may not be said, in the usual phrase, to be done vi et armis, remains to be known, by no means from the nature of the facts themselves, but from arbitrary decisions of courts. To make out a class of actions as those committed with violence, and then to imply violence where in reality there is none, is first to make and then unmake the distinction. And yet, as some distinction is, for the embarrassment of suitors, to be retained, this implication of violence is restricted to cases where the injury is direct and not consequential; and what shall be denominated a direct and what a consequential injury, is again a matter of no small difficulty. Moreover, in order to sustain trespass, the property injured must be of a corporeal nature. It would be a sad solecism in the eye of the law to allow a man to bring trespass on account of his tithes—this being, according to definition, an incorporeal property, and from its nature, therefore, not subject to violence.
This barbarous nomenclature of actions might be swept away at once with considerable advantage. If the plaintiff "complaining" of the defendant, proceeded at once to a brief statement of his cause of action, this would answer all the purposes of pleading. It was said by the commissioners in the third report on the common law, that an abolition of these distinctions would entail "much uncertainty on the right of action." With utmost deference to the commissioners, this is a very strange assertion. These categories are known only to the lawyers; and surely a student of the law cannot be at a loss to distinguish the substantial ground of action from a mere formulary of pleading. A layman may often imagine he has a right of action where he has none. Did the commissioners mean gravely to assert that these categories, of which he knows nothing—or whether he knows them or not—could enlighten him as to the redress he is entitled to in a court of justice?
It is, however, in the inexhaustible armoury of quibble and objection which the law of evidence supplies him with that the generous advocate must feel the greatest amount of embarrassment and repugnance. It is his office to stand at the door of testimony, and thrust back every witness, and reject every document, he can, upon pleas which, whatever their original ground or design, he very well knows do not impeach the real value of the evidence rejected. But into this topic we must not enter. It is not our present object to write upon the reform of the laws. The subject would lead us much too far.
One general remark only we will venture to make. Neither in nor out of the profession must men yet be impatient with the frequent changes that our laws undergo. Though, in common with our author, we estimate highly a settled state of things, and have to deprecate the rashness of some too hasty legislators, we cannot yet "lay aside the knife." They are very inconvenient these partial changes, but there is no other mode of proceeding. Whilst we are living in the very city which we have to improve, and in great part to rebuild, what else can we do but pull down here and there a street at a time, and reconstruct it on a better plan? It is miserable work this pulling down. One is blinded by dust—one loses one's way; all seems ruin and confusion. But the new street rises—the rubbish is removed—the dust is laid; one finds one's way again, and finds it twice as short as before. It is only by successive changes of this kind that the great city of our jurisprudence can be adapted to the wants of its multiplied and changed inhabitants.
We ought perhaps to mention, that Mr Warren has been discreetly silent on some of the topics to which we have ventured to allude. He has very wisely avoided all questions of casuistry; and we trust that, in our glances on the moral position of the bar, we shall not be thought to have manifested any want of respect for a learned body, the members of which, in their individual character, stand as high in our estimation as those of any body whatever, and which, as a whole, presents a greater array of talent than in any other denomination of men could be met with. We revert once more to Mr Warren's very useful, able, and praiseworthy publication to wish him success, not only in this undertaking, which may be already said to be crowned with success, but in the still greater and more laborious enterprise which he has on foot, and which this specimen of his legal authorship shows him fully competent to achieve.
MARGARET OF VALOIS.
On the eighteenth day of August 1572, a great festival was held in the palace of the Louvre. It was to celebrate the nuptials of Henry of Navarre and Margaret of Valois.