§ 32. The fundamental conceptions embodied in the American system are natural and true. They are in perfect accord with the experience of mankind as shown in the history of legal development from an infancy of rude barbarism to a maturity of enlightened civilization. The whole course of such development consists in discarding rules, modes, and institutions, which were arbitrary and formal, and in bringing the law into an agreement with abstract justice and pure morality. We have now reached the stage when, by an act of legislation, our judicial proceedings have in theory at least been made simple, when natural methods have taken the place of the artificial, when the sole object of a forensic trial is to arrive directly at the truth, and when the search after the truth is not confined to any prescribed forms nor shut up between any rigid barriers. The theory is perfect; but the complete results anticipated from it in practice will not be reached unless the whole department of remedies and remedial rights shall be rearranged and reconstructed so as to be in harmony with the grand ideas embodied in the theory. Is such a reconstruction possible? We have seen that the system lately in use was based upon arbitrary external facts, facts which had no necessary a priori existence. The ancient law, in dealing with the department of remedies, in determining the extent of remedial rights, and in prescribing the means by which such rights should be enforced, generally ignored all the distinctions which exist in the very nature of things, and seized hold of collateral incidents which had no possible connection with the essential substance of the right to be maintained or of the relief to be granted. A single illustration will suffice. If the stipulations of a written agreement have been broken, the presence or absence of a morsel of wax or a wafer fastened upon the paper, and called a seal, determined which one of two distinct actions was the proper means of recovering compensation in the form of damages. Throughout the entire common-law modes we find this neglect of essential attributes and this reliance upon outside, immaterial, incidental features, which caused the English jurisprudence to appear arbitrary and even grotesque when compared with that of the enlightened states of continental Europe.

§ 33. All this must evidently be abandoned, if the spirit of the reformed procedure is to be carried out, and its object is to be attained. The remedies which the law provides for all violations

of primary duties and the rights to the same, must be arranged, classified, and described according to some qualities that inhere in their very nature; and to accomplish such a result is the ultimate design of the author in preparing this treatise. As a preliminary, however, to the final work of describing, arranging, and classifying the remedies themselves, it is important and indeed indispensable that the principles of the single judicial instrument for the prosecution of all remedial rights and the obtaining of all remedies, should be ascertained and stated. The Civil Action is therefore the special subject of the present volume.

§ 34. The single civil action for the protection of all primary rights and the enforcement of all primary duties is the central element of the new procedure. All distinctions between actions at law and suits in equity and between the different forms of common-law actions having been swept away, the suit in equity and the common-law actions themselves as distinctive judicial instruments have been abrogated, and in their stead has been substituted the one civil action. In its essential features and fundamental principles there is an absolute unanimity among all the codes; even the divergence from the common type already mentioned in those of three States is only nominal and apparent. There is, it is true, a certain amount of difference in the matters of detail connected with the prosecution of the action, in the incidental steps taken and acts done by the litigant parties from the first issue of process to the final enforcement of judgment by execution; but with all these variations in the mere practice, the action is everywhere the same in its essential conception and in all its organic elements. If we disregard, therefore, the external, and so to speak accidental details, the reformed American procedure, in its statutory creation, in its legislative intention, is a unit, a single, harmonious, identical system. It is possible for this purpose to be carried into effect, and for the procedure to be made in its actual administration what it was designed to be by its authors. In every State there already exists a body of judicial decisions giving a construction to those fundamental portions of the local code which directly relate to the civil action; and these decisions are based upon a statutory text which is everywhere the same in import, if not absolutely identical in language. By comparing, contrasting, and combining the interpretations thus given by the various tribunals, their agreements and discrepancies

can be ascertained, and a single harmonious result can be evolved, by which the ultimate objects of the reform itself shall be accomplished. I shall attempt to perform the work thus briefly indicated. I purpose to describe the civil action of the reformed American procedure; to discuss its fundamental principles; and to present it in all its essential features, as the single judicial instrument for the maintaining of all remedial rights and the obtaining of all remedies. In carrying out this design, I shall not deal with matters that are purely of practice; my purpose is to ascertain and state what the civil action is, and not how it is commenced, prosecuted, or ended.

§ 35. At the very outset of the undertaking it is necessary to determine with accuracy what are these essential principles and features which constitute the civil action, and which thus form the central element of the entire reformed procedure. First in importance, underlying the whole system, and from which all others flow as natural consequences, is the abolition of the distinction between actions at law and suits in equity. The new procedure is built upon this fact as its very corner-stone; every other characteristic feature of the civil action results from it as a necessary corollary. The interpretation given to this one legislative enactment by the courts of any State must determine the nature of the system which is created therein, whether it shall comply with or disregard the intent of the law-makers, whether it shall accomplish or defeat the objects of the reform. The first and most important step, therefore, in treating of the civil action, involves an exhaustive discussion of this principle. Its extent and limits must be established, and its full force and effect ascertained. Before any consistent theory of the civil action can be developed in even a single State, a principle of interpretation must be agreed upon and settled by the courts, so general and comprehensive that it can be applied to all the varying relations and phases of the action, and can be invoked with certainty and success in determining all the subordinate questions, and removing all the minor difficulties, which shall arise in constructing the body of practical rules that constitute the entire procedure; and this principle, when thus established in a general form, must be steadily adhered to by the judges without exception or deviation. The courts have, however, fallen far short of this ideal; and, to the casual observer at least, the product of their judicial labors

in respect to this particular subject-matter, seems to be a mass of uncertainty, confusion, and contradiction, although upon a closer examination it will be found that some substantial work has been done, some solid foundation of principle has been laid. The causes of this confusion are twofold. The first of them is intimately connected with the constitution of the courts themselves. From the inauguration of the reform there have existed two schools of judges, the one favoring a broad and liberal interpretation of the statute, a construction in accordance with the spirit of the legislation, and tending to fulfil its evident purpose as a measure in the highest degree remedial; the other favoring a narrow and technical interpretation, which should restrict the operation of the statute to its mere letter, and which should construe its language in such a manner as to produce the least possible change from the ancient common law and equity methods of procedure. Although the latter school has at no time controlled the highest courts of more than one or two States, and although it is rapidly disappearing even from them, and has in form quite disappeared from all the others, yet the effect of its theories and methods may be perceived with more or less clearness throughout the whole course of judicial interpretation wherever the reformed procedure has been adopted. The second cause of the uncertainty and confusion above mentioned is the occasional want of consistency among the judges of the liberal school, and their failure in particular cases to maintain and enforce the principle of interpretation which they had approved and adopted in a general form; and this is the cause which has been most efficient in preventing the growth of a procedure consistent in all its parts, and carrying out in all its details the full purpose of the reform. Although from the operation of these two causes there is in the work of the courts, taken as a whole, much confusion and not a little direct conflict, still there exists the material from which a complete, systematic, and consistent theory of the civil action may be constructed. The antagonistic element introduced by the school of judges who were openly hostile to the new procedure was chiefly confined to the earlier years of the reform; and the decisions rendered under the influence of their opinions have been to a great extent overruled or displaced by later judgments, which more nearly express the intent of the legislature. The inconsistencies between the principles of interpretation announced in a general and comprehensive

manner, and the practical application thereof to the special instances and subordinate details of the civil action, are also gradually disappearing; the traditions of the past, and the ancient doctrines and methods of the common law, are passing away from the memory of the bench and bar, and a closer conformity with the fundamental conceptions of the reform legislation is plainly to be seen in all the States. While, therefore, among the decisions which have been pronounced since the inauguration of the American procedure in New York in 1848, there are many, even of the highest courts, which must be rejected as utterly wrong, and as opposed to the very letter of the codes, and very many others which must be taken with extensive and important limitations; yet from the materials thus furnished by the tribunals of the several States, from a combination and comparison of their results, the true doctrines and correct rules relating to the civil action may be ascertained, collected, and arranged in such a manner as to present a complete system, a system that shall represent the spirit and design of the reform legislation, and that shall at the same time be founded, not upon any mere speculations of the author, but upon the solid and sure basis of actual judicial authority and precedent.

§ 36. As the abolition of the distinctions between actions at law and suits in equity is a fact so broad in its nature that within it are included all the other essential features of the civil action, its full significance must be accurately determined, if possible, at the very commencement of our contemplated work. I have shown in a preceding paragraph that, at a stage in the historical development of the Roman law, the "ordinary" jurisdiction of the magistrates was abolished, and all forms and species of judicial controversies were combined in the "extraordinary " jurisdiction. The result of this change was a complete amalgamation and unification of law and equity, so that the Roman civil law, as it is embodied in the Codes of Justinian, presents no trace of the dual nature which characterizes our own and the English jurisprudence, and which did at one time characterize that of Rome. The codes of procedure do not attempt to effect so radical and sweeping an alteration; the distinctions between law and equity are not abolished; these two departments of the municipal law, comprising their distinctive and peculiar primary rights and duties, and furnishing their special remedies, are left un