Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1831-02-19

WOuTd
ed But the Chancellor at subsequent period OF the
Convention, had made other remarks upon the idente
proposition OF the secoud rssoco now under c0bside-
ration, which proved tha, the remarks referred TO by
gentlemen, must be taken with much restriction, ana
that or Kent did advocate the union OF uTls-
dc,ions which is now proposed by these resolutions
He (sIr CD had copied these remarks from the book
Of Debates aud would read them aud lsavs gentle
oooras, these remarks with those cited by others,
aud derive what advantage they could IA iAvor oi an
entire separation Of the ysems, aud the the Ui
eunas by Inch hey were to be adm n;stereG-lHers
MIR C.. read "a follows: Chancellor Kent remarked
That he he'd prepared no definite proposluoh Tor mo
consideration of the Conve ntoD hi. sentiments upon
the subject had been previously Submitted He thought
II exp-dent to vest in the subordinate Common Lato
Courts, Equity po,cers to limited extent Mr.
Munroe wished TO learn whether the Chancellor inttn-
dsd to recommend to the aeopls OF the State 10 oepu
Chancery powers with Common Law jGri'iic'ion''-
Chancellor Ken, replied, That he could not oresee
that such would destroy the system or RUN the
Stdte-the Chancety powers would probably become
too great TOR any one man to perform, and whetber
part confined to the OF the rolls Or vice
ChAnceiors, was not, perhaps. very material" After
this expression OF opinions the Chancellor cannot be re-
lied upon authority agens the principle OF uniting
the admnisra ion OF the two systems ia the hands OF
the same Judges ior in these remarks, he most dis
tincy eddi's the wisdom and expediency oil the mea'
sure. But the expression OF the Chancellor, "io
limited extent" may be relied upon by gentlemen in
the opposi,iou indicating that the Limitation TO which
the Chancellor referred ad reference the subjects
OF Equity jurisdiction and not TO its territorial extent
This he ardej mistaken pretaon; for class
of subjects to which this jurisdiction Ell ud be limited,
had not been mentioned in the whole debate That the
Limitation OF jurisdiction which the Chdnc ellor refer
red related to territorial extent, manifest the
euacments of the Legislature which followed the edop
ton of this principle into the CoDstuton OF New York
The charac OF the article OF the Constitution and of
the enactment showed that the convention and legis.a-
laure had in view the principles contained in Chan
ce'lor kenrs remarks, when tAey adopted them. As
matter OF history, he would read the article in tho
Constitution and the act Of the Legislature, with
view TO show that his Interpretation of the remarks
correct, The article of III. Constitution reads thus:-
q Stafa shall he al into
circuits, less than four, exceeding eight,
suhj ect TO the alteration OF The Legislature, from time
to ne as the public may require; for each of which
circuit shall be appointed, in the manner,
and hold his office 10y the tenure the justices
OF the supreme court and who shall posse the power
Of Justice of the supreme court at chambers and in
The trial of Issues joined in the supreme court and ia
courts OF oyer and terminer, aud goal deliveTy aud
such equity p0Uers may be vested In the said circuit
judges the county courts, in such other subor-
diuats courts the legislature may by law direct cub
Jet to the appellate jurisdiction OF the Chancellor.
The authority given TO the Legislature 10 estabsh cir
cult courts OF a and to unite 10 heir equity
powers, acted upon aud resulted in the passage OF
the following laws Every circuit Judge, within Tho
limits of his circuit, shall be Vice Chancellor and
sh ALL concWTentiy with the Chancellor, and erclusive-
iy OF any other circuit judge, have and exercise Gthe
original jurisdiction ami pooeys, which are oC
hereafter may be, vested ia the Chancellor ia all cases
and matters iva equity, and in all matters of which the
cognlzance 10, shall Le Uescd in the Chaaceior by
uirtue Of any statute in the following CASES.
81 Where such and matters hail have arisen
within the circuit OF such judge;
SO. Where the subject matter in controversy, shall
be situated Thin such circuit;
80. Where the defendants, persons proceeded
against, either OF them reside within such oli,s
Whatever may have been the limitation intended by
the chancellor, the Legislature adopted the principle
which the resolution under cOnSider afrns with
any mi alton OF the su5j cts, and the full ex.
tent possessed by the chancery cours.--It was due
however to that distinguished Jurist s,.t. that tn,
immediate question under consideration which induce
the remarks to which gent had ref srJed grew
out OF proposition to invest all the ehaacfy jurs-
dicdon OF the in the supreme cout-It was ar
gued, however, that separate chaacery court had
been retained 10 New York, Notwithstanding tkis union
Of jurisdiction in the circuit judges This is true; and
the commerce of Virginia extensi,s az that OF
New York, II might be necessary here, nor did the
present resolutions preventit. The Constitution gives
tho power, whenever is expedient to exercise it, In
seventeen Of these u States, these jurisdictions were
united in the courts, and he had rot heard that
the powers OF chancery not ssfully ana
efficiently executed in these States, in those where
the jurisdictions were separated. Our federal courts
and the court OF appeals clothed with both iursdc.
TONS and in both these courts the distinctive features
OF each system, were as accurately preserved they
would have been, oy separate tribunals And, indie ed,
the Of appeals settled ali the rules of equity and
chancery practices; and it singular that il the Two
systems were Incompatible ia the tribunal, the
OF deTieT resort should rave been entrusted with
both To make the argument OF gentlemen good the
tribunal should have been kept distinct throughout
The gentleman from enrico had with great accuracy
enumerated the several branches at litigation properly
belonging to equity, chaneery Jurisdiction and ar
gued that the adoption Of the principle Of the second
q
cent exercise. Mr.. q said, that chdncery powers
were precisely the same, by whatever tribunal exercis
ed; and the jurisdiction Of the Tribunals now sought 10
be invested with chaucery powers would be eSer,ed
these subj scts in the same as they were
nov, by the present chdncery courts; bat with more
despatch and economy. The resolutions did not ssek
destroy the slightest vestge of legitimate chancerv
jurisdiction; but TO change the tribunals and distribute
them mora generally AMONG the people with view TO
convenience, despatch, economy, and satisfaction. Mr.
G.. said that the rise Of the Chancery system, was
caused by any ncompability in the administration
of The systems by the Judge, but BY an unns-
cessary and rigid TECHNICAL construction OF the rules
Of the common law, by the Law judges Ii was the
fault Of the Courts of Law, not the necessity for the
separate system The introduction of Cbsncery Courts
as a separate tribunal for the administration of equity
had its origin in about the Of The
reign OF Richard 81, when the odous system Of uses
was introduced. This system oil uses created legal
estate in person, while the usuruci use, in
anoiher aud il some shines indeed, frequently happen
ed that the person holding the legal estate did
count for the profits but ainel them 10 himself 10
the deprivation of the e'est que. When tots was
the case resort was bad TO The Courts Of Common Law
but the judges determined that hey could afford no 10.
Jnsdv against the legal holder; and because remedy
could no, be found in the Common Law Courts tbe
Chapcellors, whose prerogave, I'll then, was very
humble and only subserVient TO the Courts OF Common
Law assumed jurisdiction OF the subject aud applied
remedy by appealing TO The conscience Of the parry,
add compelling bin 10 execute the use, notwilbstdnd'
ing he held he legal estate From tbf time forward,
these courts contioually eulirged their ludctsn by
croschng upon that Of the courts oi Jaw ana nave
accumulated a formidable amount Of Jurisdiction The
court OF common law have uniformity protested against