Hale presided, and of which several other very eminent lawyers were members; but their labors were frustrated by the disordered state of the times so that, from the reign of Edward I. till the issuing of the commission in the ninth year of the reign of George IV., there has been no general revision of the English law. The incidents of military tenure thus continued to be referred to in judicial argument, although long before abolished; and the manifest intention of parties to a deed continued liable to be defeated, because it was supposed, in law, that there must always be a tenant seized of the freehold to attend the lord's court, and to defend any real action that might be brought by an adverse claimant. Thus, too, much perplexity and confusion have been occasioned by the entire want of system in the various periods of limitation, and the incongruous variety of remedies allowed for the recovery of real property.1

§ 336. The time at length arrived when the astounding number of real actions, and actions pertaining to the realty, enrolled in the annals of English jurisprudence, with the exception of a petty remnant, was, at a single blow, annihilated. Not longer since than the reign of William IV. (by the statute of 3 and 4 Will. IV. c. 27), all real and mixed actions, with the exception of the writ of right of dower, or the writ of dower, unde nihil habet, quare impedit,2 and ejectment, were utterly abolished; and, by the same statute, the right and title of the real owner of land are extinguished, and in effect transferred to the person whose possession is a bar to the remedy, at the end of twenty years, under the statute of 21 James I. c. 16. Thus, in the congratulatory language, and somewhat rapturous mode of expression, of a late English author, "The blessed amending hand,' to adopt the language of the famous Edmund Plowden, has grasped, as it were, the very heart-strings of the law. The statute for the limitations of actions, &c. (3 and 4 Will. IV. c. 27, s. 36),

1 Report of Real Property Commissioners.

2 The action of quare impedit is brought by a person complaining that he has been improperly deprived of ecclesiastical patronage, -an action now of rare occurrence in England, there having been but seven cases in which it was brought for the last fourteen years. Warren's Law Studies, 262.

3 See ante, pp. 12, 13, 14. And section xxxvi. of the statute referred to, in Appendix, p. xiv.

See ante, § 5. And section xxxiv. of the statute referred to, in Appendix, p. xiv.; and Incorporated Society v. Richards, 1 Dru. & Warr. Ch. R. 258.

has swept away-shade of Fitzherbert !-indiscriminately, between fifty and sixty species of actions-a most fertile source of difficulty and confusion to the reader of our ancient laws-leaving only six, or, at the most, nine (including the three real and mixed) forms of action now known or used in the common law."1

§ 337. The establishment of a limitation of twenty years, and the abolition of real actions, was recommended by the English real property commissioners, as tending "greatly to diminish litigation, and saving the owners of real property from much vexation and expense to which they are at present exposed, sometimes in defending their possession, and still more frequently when they attempt alienation." By the alteration they propose, say they, "the practical, efficient remedy for recovering possession, would not be impaired." Before they ventured, however, they state, to recommend so important a measure as the entire abolition of real actions, they made diligent inquiry into the practical operation of this system of law, and, from the result, they conclude, that "it would have been beneficial to the community if real actions had been abolished from the time when the modern action of ejectment was devised." Many real actions have been brought in England, within the last one hundred years, after the remedy by ejectment was barred; but the commissioners could not learn that more than one or two had succeeded; that "they have generally originated in schemes of unprincipled practitioners of the law, to defraud persons in a low condition of life of their substance, under pretence of recovering for them large estates, to which they had no color of title."

§ 338. In the English colonies in America, land was considered as partaking, much more than in England, of the nature of commercial property; and the title to lands, in this country, has ever been essentially allodial. In the State of Maryland, before the year 1732, it was true, as a general rule, that the lands were no otherwise liable to

1 Warren's Law Studies, 24. "We will conclude," says Lord Coke, in closing his Institutes, "with the aphorism of that lawyer and sage of the law (which we have heard him often say), 'Blessed be the amending hand.'" Lord Coke's Fourth Inst. Epsil. Warren's note.

2 Coombs v. Jordan, 3 Bland (Md.), Ch. R. 302, which refers to Attorney-General v. Stewart, 2 Meriv. Ch. R. 153.

be taken or extended, in satisfaction of debts, than according to the law of England; and, prior to that time, there are many instances in which lands were so extended by elegit. But the peculiar circumstances of the province, the scarcity of money, and the small proportion of personal to real estate, seem to have given rise to a wish, among the people, that land should, in some way, be made entirely subject to be seized and sold for the satisfaction of debts. This general disposition is indicated by some principles peculiar to the law of Maryland, in relation to imperfect legal titles, to equitable interests in land, and to the real estates of deceased debtors, which were established as a part of the Maryland code antecedent to that period.1 The tenure prescribed in all the old colonial charters or patents was free and common socage, and even that does not exist in some of the United States; and, if it can be said to exist anywhere in this country, it is only in theory, as it partakes of the essential qualities of allodial estates. An estate in fee-simple, in the United States, now simply means an estate of inheritance; and whether a person holds his land in pure allodium, or has an absolute estate in fee-simple, is considered perfectly immaterial; for his title is virtually, and for every essential purpose, the same.3 Under the New York statute of 1787, the notion of realty, in the technical sense of the feudal law, was entirely exploded; "unless," says the author of Commentaries on American Law, it may be supposed to be lurking in the general declaration, that the people of the State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State." "And thus," adds the same learned writer, "by one of those singular revolutions incident to human affairs, allodial estates, once universal in Europe, and then almost

66

1 See opinion of the Court in Coombs v. Jordan, 3 Bland (Md.), Ch. R. 303. The obligations of feudal tenure are not recognized by the earliest laws of Massachusetts. From the discretion vested in the courts, it was some time before the law of descents was settled with precision; and the law which gave a double portion to the oldest son was not repealed till 1789. The first legal tribunals of the country were formed upon a plan of almost patriarchal simplicity; the legislative and judicial functions being generally united in the same persons; and the forms of judicial proceedings were, for a considerable time, but little known or regarded. See Stearns on Real Actions, 61.

21 Story's Com. on the Const., in which the substance of them is stated. Socage is

a tenure of land by certain services in husbandry, and not knight's service.

8 3 Kent's Com. 513.

4 Ibid.

universally exchanged for feudal tenures, have now, after the lapse of many centuries, regained their primitive estimation in the minds of freemen." 1

§ 339. Yet, to this day, in the United States, although "the insolent right of primogeniture," as Gibbon calls it, has been very generally abolished, together with the preference given to males in titles, by descent, we remain, in respect to the remedies attached to the feudal system, tenacious of its vestiges. It is, indeed, "a sort of anomaly in the history of jurisprudence."2 By the revised statutes of New York, however, real actions have been abolished, and the action of ejectment retained, without any of its ancient fictions,3 and extended to all cases, in which a person is entitled to recover an estate in any land, in fee, or for life, either as heir, devisee or purchaser; and by those of Massachusetts and Maine,5 all writs of right and of formedon, and all writs of entry, with the exception of those on demandant's own seisin, have been abolished. The commissioners on the civil code of Pennsylvania, in 1835, were of opinion, that the action of ejectment might be modified, so as to be resorted to as a substitute for the greater part at least, of real actions; but they are, nevertheless, retained as part of the law of that State, though the action of ejectment is the only one in common use. A writ of entry, sur disseisin, &c., may be maintained in Pennsylvania, though the action is not encouraged in cases where an ejectment will answer as a complete remedy. The writ of right and possessory real actions in Virginia, were put under statutory limitations, as late as the year 1830; and as late as the year 1834, there was a decision in an action of formedon in remainder in New Hampshire, in which a common recovery, levied in 1819 (the defence to the action), was learnedly discussed.10 The writ of right was retained by the territorial law of

1 3 Kent's Com. 513. And see Cornell v. Lambs, 2 Cow. (N. Y.), R. 612.

6 Report of Commissioners on Civ. Code of Pennsylvania, 58, 59, cited in note in 4 Kent's Com. 71.

7 Barnet v. Ihrie, 17 Serg. & Rawle (Penn.), R. 174; and s. c. 1 Rawle, R. 44.

8 Witherow v. Keller, 11 Serg. & Rawle (Penn.), R. 271.

9 See Appendix, p. lxxxi.

10 Frost v. Cloutman, 7 N. Hamp. R. 9.

Michigan, and the writ of disseisin by statute in Indiana.1 Real actions may be considered in force in all those States, which were colonies, as a part of the common law, unless they have been expressly abolished, although if a statute expressly declares, that twenty years' possession will give a title, real actions must be brought within that time. Actions of formedon were held to be within the statute of twenty years' possession of Rhode Island of 1766.2 The action which has been, and is, most commonly used in Rhode Island, for the recovery of real property, is trespass and ejectment (a simple proceeding), which, by the late revision of the statutes of that State, is limited to four years; the claimant being thus left, at the end of that period, to his remedy at common law.

§ 340. Still it must be agreed, that, in those States where real actions have been continued in practice (stripped, as they have been, of the cumbrous appendages of essoins, protections, aid-prayers, vouchers, and parol demurrers, which made them intolerable in their native country), they have been judiciously adapted to the advancement of justice and to the correct decision of questions of title to real property. More especially has such been the case in Massachusetts. The action of ejectment has never been at all in use in Massachusetts, for the trial of titles, and the law commissioners, who reported the late revised statutes, did not propose to require it. They proposed to retain the writ of entry, which had been commonly used, as being simple and convenient, and much more effectual than ejectment. In the writ of entry which they proposed, the claimant alleges that he was seized of the premises within twenty years, and has been disseised by the tenant; if so, he now has a right of entry, and upon the general issue this is substantially the question to be tried, which is precisely the same as upon the general issue in ejectment. It appears, therefore, that this writ of entry is adapted to try the same title, and substantially in the same manner as is done in the action of ejectment, and in a form more simple and convenient. But the principal ground of preference is stated to be, that the writ of entry is a

1 Rev. Stat. Indiana, 1838.

2 Inman v. Barnes, 2 Gall. (Cir. Co.), R. 315; and see Inglis v. Sailor's Snug Harbor, 5 Peters (U. S.), R. 187; and Barnet v. Ihrie, supra.

3 See Appendix, p. lvi.

4 Stearns on Real Actions.

5 Notes to Rep. of Mass. Com., Part iii. p. 154.