Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1828-04-22


possible to contemplate asystem of administrative
justice, with II limited capacity OF judicial cOgni
lance, voluntarily created and obstnately adhered
TO, and TO pronounce il entitled 20 the merit of even
partial periection; and yet such was the system
which, In England gave rise 10 the separate Juris
dicton of the Chancellor IL was under these cir
! cumstlnccs also, that the hostility between the
Courts OF Law and Equity arose, when the Courts
OF Common Law, instead OF adopting the modes OF
proceeding proper for the dispensation OF real JUS
tice, by which the separate jurisdiction OF the
Chancellor would have been defeated, sought only
to oppose its institution, whilst by the rules of the
Courts Of Law, this Equity jurisdiction was con-
stantly extending its action; that in fact IL be-
came a necessary consequence OF the denial on the
part Of The Law Courts 10 dispense Equity. He as
sorted that the perfection of the system of jtriS
prudence could only be found where the first
tribunal TO which tSe parties reS0rted had the
complete poorer IF settling The controversy, and
this idea could only be properly illustrated by the
operation of forum competent 10 administer
the remedy to the extent OF the evil of injustice,
when practised under the most latent crcumstan-
ccs.
Sir, said Mr.. G., If it be true that the separate
ju risdiction of the equity forum, was brought into
operation by the want of science and true per
lection iii the rules OF administering law and at a
time when the courts OF law were but slowly add
vanciDg in the progress of Improvement, and Mt a
time when the courts OF law had not the auXili
airy aid TO be found in modern times. in the aJni
rable construction Of Legislative bodies, devoted TO
the Improvement Of the code of laws; how can IL
be assumed, that the union OF the two jurisdictions,
IL unknown, except 60 rude institutions! Would
IT not be raorc rational TO infer the approximation
oil the two, by the removal from the law courts
OF those forms Of pleading and Of evidence which
more particularly mark them, Us institutions OF an
unfinished and imperfect constitution? Would not
this be lawful inference under situations favor
able 10 improvement, such the Courts IN this
country ENJOY? He said striking example oil the
union Of the two ;urisdictions, occurred when I'M
der the Roman jurisprudence, the prgtor, because
possessed of the civil Jurisdictions of the consul; at
period OF the highest perfection an the juriSpru-
dence Of that country, that is 70 say, cotcmpora-
neously with the code of Justinian-the civil law
and the law of equity, was dispensed by the pr9-
tor-the pretorian law, was the law of equity,
since it was more than the arbitrary rules OF de-
csion established by that officer, and founded in
his view Of natural Justice exactly similar TO the
conscience of the Chancellor The time Of the l.
uion of these two jurisdiction as odvcried TO I'M
der the Roman jurisprudence, exhibit also. the
first instance Of the regulation and control of the
equitable tribunal, by proper rules and the conse-
qucnt abridgemcnt of the arbitrary course OF
that forum, by permanent principles and the col
lccted mass OF decisions, which had previously
formed no part Of the system. This was brought
about by statute law, although that statute was
the rcscript of an Emperor.
The whole history ofthe subjectin England proves
that the courts of law made voluntary abdicaton
Of the power Of dispensing equity, when they en-
tered upon their system OF law pleadings and tech
meal FORMS time and professional policy have
kept up the separation, until the system
seems 10 be founded in a natural difference
between law and equity. II would he suili-
cicnt, however, TO refer TO the practices of
other states 10 prove by example the entire fiction,
of the separation. Now, sir, said Mr. c., is il pos
ible that the fiction the origin OF which we have
seen, III the very imperiections of the science
of jurisprudence, can be so perfectly wise in its
original institution, as to be entitled TO the mmun
ties OF an entire supremacy over the legislative
WILL and a full security against any change
formations Such, sir, is the idea advanced in this
debate, for il has been said, that the very plan of
uniting the two jurisdictions, was rash expert
ment and nothing less than confederacy Of err
ror, against long established truth. / should sup
pose, that legislator oftlc present generation,
might in any country, justly claim the right TO
be enlarged from the grasp OF technical forms, and
more particularly in this country, should the claim
rest upon clear and indisputed grounds of consti-
tutional right. How is it, continued Mr.. c., that
The trainers of law should stand upon this high
ground OF exemption from the power of the legis
lature? Do gentlemen mistake the scafl0ljng for
the building, or are they fearful that the removal
OF any part of the scalIoldng, viii endanger the
solid structure ofiusdce, formed out Of materials
no less pure and granite, than the moral feelings
of society The province of modern legislation is
now to adorn and beauty the interior of the build
ing; and in this operation, nothing Is required,
which genius cannot produce from its own native
mine; and, surely, no system of pleadings or of
forms can substitute the great sources Of moral
justice So iarifom the practical separation of The
two Jurisdictions of law and equity being found
ed i'll positive principle of variance, they both
the same, as to the object and the forum OF equi-
ty, entitled as ii is in modern times 10 be called
the forum ofhumanty, will, in its union with the
legal tribunal, liberaliZe the of procee dng
and call 10 the aid of its authority and decisions
an accession Of public and Individual confidence
which must go, far, very far, III arTesng liga-
ton. Although much has been said, (and not al
together as il should have been said,) in ridicuc
and contempt OF this bill, yet, it shall not repress
the force ofmy own convictions, shall it deter
me from stating the reasons Of eXpediency; and il
is not the least OF these reasons that the change
proposed, is founded in that rational disregard of
legal subtiles, which has uniformly marked the
characters OF those most distinguished as orna-
monts of the bench At present, MIR. Speaker,)
the systems Of law and equity, administered as
they are under the idea of more discordance than
is compatible with proper views of tho whole sub
ject, serve but 10 multiply, to an almost infinite
extent, the means obligation, this nice and intri-
cate distinction. He said the lawyer, who had
not, in the course OF practice, often seen substan-
iial justice, yield to the forms of law was not in
existence; no man OF common sense would de-
ny, that every such case was Unnecessary, and C.
WINGED the defects Of the system, going 10 prove
That much OF the system of pleadings, adopted in
common law courts, was unfrendly to the inte-
rests OF real justice, and therefore, an imperfec
ton in the plan Of its administrators. He said a
Judge, dispensing law and equity according TO the
forms appropriate to each, would necessarily in
cline towards equitable rule of decision ia all
cases; and the economy of his own laboTs and time
would form a motive to induce such a COURSE
ne would act upon the principle, that it was better
to let the parties settle their controversv at law
than to he forced TO try the same case over again
on the equity tide ofhis courts. Again, the Judge