Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1831-04-19
SENATE 0R VIRGINIA


passed the House of Delegates, "to establish q
court of Law and Chancery in each of the Coun-
ties of the Commonwealth, and in certain Corpo-
Iatons therein mentioned and upon the Substi-
tute reported by the Committee of the Senate, ia
whom the Bill was referred.
Mr.. MCCARTHY sad-Mr SPEAKER: In opening
THIS debate, shall not consume the time of the Sen
ate with minute discussion of the details of the
Bill, or of the Substitute. This duty will. be more
ably discharged by professional gentlemen. But
there principles contained IN the substitute
which consider highly important, and we'll worthy
of attention. in the formation of Judiciary sys-
tenn. For these principles, ] shall briefly express
my preference.
First then, l would have Chancery Courts, as
separate and distinct tribunals, abolished.
Let Common Law and Chancery Jurisdictions be
then blended in the Superior Courts" required by
the Constitution and provided for in the substitute
Let the Common Law forms of pleading be superse-
ded by the Chancery FORMS which are plain and
Ineligible. And let the Chancery practice of re-
sorting to written evidence, be also dispensed with,
and let oral testimony be given in open Court, in all
causes, except where dispositions de bene eSSe, are
now allowed by law to be taken. To these | will
add the jury trial, which should be preserved in a
controversies respecting property, and in suits be-
tween man and man." to the full extent required by
the Constitution. prefer the substitute, because
1t secures most OF these principles and preserves the
jury trial to much greater extent than is provided
for by the bill The substitute provides for the es-
tabllshment of Superior Court" in each County,
and invests it with Common Law and Chancery ju-
Yisdiction Both of these jurisdictions are to he
exercised by Judge, and in Court, under one
form of practice Our State and Federal Judiciaries
give proofs of the practicability of this union of
Jurisdictions.
The General Court, before the Revolution. the
present Court of Appeals and the County Courts of
the State; the Supreme Court, and the Circuit, and
District Courts of the United States, all furnish
practical illustrations of the fact, that Judge can
exercise Chancery and Common Law Jurisdictions
rs
Judge, they can be united in Court, and under
form of practice.
One of the objects of the substitute is to effect
this union, and thereby abolish separate Chancery
Courts and the separate expenses, delays and ncon
venleDces attending them If the principles of Law
and Equity are impartially considered, and properly
understood, the consolidation of the two Iurisdc-
tons will be found not only practicable, but. highly
desirable, the means of facilitating, of improving,
and of cheapenlDR the business of litigation. There
is in truth, no difference between Law and Equity
in principle, and why should there be in practice?
That they may be safely blended in the manner
proposed, is proven by Judge Blackstone, who, in
speaking of the two Courts, says" Whatever diff
ference there may be in the forms of practice arises
from the different constitution of their officers; or if
they differ in any thing essential one of them
must certainly be wrong, for truth and justice are
always uniform, and ought equally to be adopted by
them all" Here instructed and assured by
this great master Of jurisprudence, that the only
difference" between the two Courts is in the Storms
of practice arising from toe different constitution
of their oicers."f But this difference" is corrected
blythe substitute which requires but one form Of
practice, and but one set Of officers. But Judge
Blackstone farther says, that Equity in Its
true and genuine meaning, Is the soul and
spirit of all law" "But the very terms Of court
of equity, and court Of law, contrasted to each
other are apt to confound and mislead Us; if one
judged without equity, and the other was not bound
by any law. Where's, every description or illustra
ton 10 be met with which now draws a line between
the two jurisdictions, by setting law aud equity in
opposition 10 each other will be found tots!y
neous, or erroneous to a certain degree Thus,
in the FIRST place it is said, that il is the business Of
COURT Of equity in England TO sbate the rigour Of
the common law. But no such power is commended