第44章 VIII. (2)

Thirdly, Because there was then no known Action wherein a Person could recover his Possession, other than by an Assize or a Real Action; for till the End of Edw. 4, the Possession was not recovered in an Ejectione firmae, but only Damages.

Fourthly, Because an Assize was a speedy and effectual Remedy to recover a Possession, the Jury being ready Impannell'd and at the Bar the first Day of the Return. And altho' by Disusage, the Practisers of Law are not so ready in it, yet the Course thereof in those Times was as ready and as well known to all Professors of the Law as the Course of Ejectione firmae is now.

Touching the Reports of the Years and Terms of Hen. 4, and Hen. 5, I can only say, They do not arrive either in the Nature of the Learning contained in them, or in the Judiciousness and Knowledge of the Judges and Pleaders, nor in any other Respect arise to the Perfection of the last Twelve Years of Edw. 3.

But the Times of Hen. 6,as also of Edw. 4, Edw. 5, and Hen.

7, were Times that abounded with Learning and excellent Men.

There is little Odds in the Usefulness or Learning of these Books, only the first Part of Hen. 6, is more barren, spending itself much in Learning of little Moment, and now out of Use; but the second Part is full of excellent Learning.

In the Times of those Three Kings, Hen. 6, Edw. 4, and Hen.

7, the Learning seems to be much alike. But these Two Things are observable in them, and indeed generally in all Reports after the Time of Edw. 3. viz.

First, That Real Actions and Assizes were not so frequent as formerly, but many Titles of Land were determined in Personal Actions; and the Reasons hereof seem to be, 1st. Because the Learning of them began by little and little to be less known or understood.

2dly, The ancient Strictness of preserving Possession to Possessors till Eviction by Action, began not to be so much in Use, unless in Cases of Descents and Discontinuances, the latter necessarily drove the Demandant to his Formedon, or his Cui in Vita, &c. But the Descents that told Entry were rare, because Men preserved their Rights to enter, &c. by continual Claims.

3dly, Because the Statute of 8 H. 6. had helped Men to an Action to recover their Possessions by a Writ of Forcible Entry, even while the Method of Recovery of Possessions by Ejectments was not known or used.

The Second Thing observable is, That tho' Pleadings in the Times of those Kings were far shorter than afterwards, especially after Hen. 8, yet they were much longer than in the Time of King Edw. 3 and the Pleaders, yea and the Judges too, became somewhat too curious therein, so that that Art or Dexterity of Pleading, which in its Use, Nature and Design, was only to render the Fact plain and intelligible, and to bring the Matter to judgment with a convenient Certainty, began to degenerate from its primitive Simplicity, and the true Use and End thereof, and to become a Piece of Nicety and Curiosity; which how these later Times have improved, the Length of the Pleadings, the many and unnecessary Repetitions, the many Miscarriages of Causes upon small and trivial Niceties in Pleading, have too much witnessed.

I should now say something touching the Times since Hen. 7 to this Day, and therefore shall conclude this Chapter with some general observations touching the Proceedings of Law in these later Times.

And first, I shall begin where I left before, touching the Length and Nicety of Pleadings, which at this Day far exceeds not only that short yet perspicuous Course of Pleading which was in the Time of Hen. 6, Edw. 4, and Hen. 7, but those of all Times whatsoever, as our vast Presses of Parchment for any one Plea do abundantly witness.

And the Reasons thereof seem to be these, viz.