The History of the Common Law of England [58]
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. First, Because in ancient Times the Pleadings were drawn at the Bar, and the Exceptions (also) taken at the Bar, which were rarely taken for the Pleasure or Curiosity of the Pleader, but only when it was apparent that the Omission or the Matter excepted to was for the most part the very Merit and Life of the Cause, and purposely omitted or mispleaded because his Matter or Cause would bear no better: But now the Pleadings being first drawn in Writing, are drawn to an excessive Length, and with very much Labouriousness and Care enlar ged, lest it might afford an Exception not intended by the Pleader, and which could be easily supplied from the Truth of the Case; lest the other Party should catch that Advantage which commonly the adverse Party studies, not in Contemplation of the Merits or Justice of the Cause, but to find a slip to fasten upon, tho' in Truth, either not material to the Merits of the Plea, or at least not to the Merits of the Cause, if the Plea were in all Things conform to it. Secondly, Because those Parts of Pleading which in ancient Times might perhaps be material, but at this Time are become only mere Styles and Forms,