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

to the strctness of the letter. But so also does n
court of law" "But there is not single rule of in
terpreting laws, whether equtably or strictly that
is not equally used by the judges in the courts both
of law and equity: the construction must be the
same if they differ, it is only court of law
may happen TO differ from another. Each endea
vouring to adopt the true sense of the law i'm cues
ton; neither enlarge, diminish, or alter that
sense, in single title" 1t is here, clearly proven
that law and equity the same in principle; and the
substitute seeks to amalgamate them in .superior
courts" under form of practice, with a common
jurisdiction Subjects which the bill makes cog
nizabe in both courts, under their separate forms
and jurisdictions And where the bill draws ''n line
between the two Jurisdictions, the substitute propo
ses to unite them. Where the bill would make
them separate and distinct the substitute would
make them one and the same. In relation &c the
pleadings, the substitute provides for the adoption of
the chancery forms, which pain, simple easy of
comprehension, and which require the facts touching
the sub Ject in controversy, to be disclosed on both
sides. 1t repudates the technical absudties of the
common law forms, and provides that cause shall
be prejudiced, dismissed for errors in the plead
ings. beg leave, here, to refer gentlemen to the
celebrated speech of Mr. Brougham ION the present
state of the law" to show the utter contempt, in
which the common law forms of pleading are held,
by that distinguished orator and jurlst. will not
trespass upon the time of the Senate, by reading
tracts from that speech; but refer particularly to
those parts of it, in which he describes the declara
tons In assumpsit and tfover, and the repugnant
pleas, to- the ndebitdtuS dsSunpSit, and debt on
bond He there proves, that under the common la w
forms of pleading, 1T is impossible, from the plead
ngs themselves, to ascertain the of action,
the grounds obedience. Oral testimony to be given
in court where the adance of the witness
can be procured, is another principle which COM
mands for the substitute my feeble support. But
wishing to argue the several principles advocate,
on authority, will read to the Senate, in support of
this branch of the subject, the opinions of the stan
dard author, which | have before quoted. ssThs
open examination of witnesses uiua uoce in the pre-
ssnce of all mankind, is much conducive to the
clearing up of truth. than the private and
animation taken down in H2$g. before an officer,
his clerk, in the eccesiasef COURTS and all others
that have borrowed their practice from the civil law;
where witness may frequently depose that in pri-
vte which he will be ashamed to testify in public
and solemn tribunal. There, an aFtful or careless
scribe, may make witness speak what he never
meant, 81 dressing up his dispositions hi his own
forms and language but he if here at liberty to
rect and explain bis meaning, if misunderstood,
which ne do, after his deposition is once
taken. Besides the occasional questions cf lac
the jury and Tho COUNSEL propoundsd the witness
es q sudden, viii sift the truth much betSeI
than formal set of interrogatories previously penn
ed and settled: and the confronting of adverse wit
nesses, is also another opportunity of obtaining
clear discovery, which never be had upon anu
, other mode of trial Nor is the presence of the
Judge, during the examination, matter Of small i'm
portance; for, besides the respect and awe, with
which his presence will naturally .inspire the Wit
nesses he is able, by and experience to keep the
: evidence from wandering from the issue. In short
by this method OF examination, and this only, the
=, persons who to decide upon the evidence, have
an opportunity of observing the quality age educa
ton, understanding, behaviour, and ncnations of
the witnesses: in which points, all persons must ap-
pear alike when their dispositions are reduced to
writing, and read to the Judge, in the absence OF
those who made them: aud vet as much NAV be fire.
quently collected from the in which the evi
dence is delivered, as from the matter" This argu-
nent, hr Speaker, in proof of the superiority of
o'0G coce over eorHen evidence, is altogether rress-
/ table.
But another argument, is furnished in support OF
this feature of the substitute, from the practical
application of oral testimony to all the causes that are
cognZabe in the United States courts In the first
vol. Of the laws of the United States page Cd, it is
provided, that Ihe mode of proof by oral testimony
and examination Of witnesses in open court shall be
the same IN all the courts of the United States as
well in the triaof equity, and of admiralty;
and CT maritime jurisdiction, as of actions at COM
mon law"
From this, it appears, that, in the federal courts
held in our State coral testimony is required to be
given sin open court in the trial of causes in e0uit
This then, s what the advocates of the substitute
wish to effect in the State courts and thereby to
get the truth of every question: and 10 prevent the
frauds, and to save The cost and delays incident to
taking dispositions. But the Bill provides not onlv
for the establishment of separate chancerv courts
but for the appointment aso of separate chancellors;
thus extending and perpetuating, in all respects the
evils OF the system 1t confers upon these courts the
same extensive jurisdiction controversies re-
speeding property" which is held and exercised
in our present chancery courts. In our courts of
taW, Controversies respecting property" involving
sums above twenty dollars amount, must be dec-
ded by the verdict Of jury In our courts of chan.
Gerry, controversies respecting property" involving
millions in amount, may be decided by chancellor
And yet, the Bill Of Rights, which is declared by the
hrst article of the Constitution to be the basis and
! foundation of Government" emphaticaly re-
qures that in controversies respecting property and
in suits between man and man, the ancient trial by
jury is preferable TO any oter and augM TO be held
sacred"
Why then, in defiance of this solemn mandate, is
the chancellor to be placed upon the ruins of the
Constitution, and empowered TO decide "controver-
sizes respecting property, according to ''usages" and
"conscience, without the Intervention of the Jury
triaR That moment Controversy respecting bro.
perty" finds its way into Sny that may be estab
lished, whether it be called chancsry or common
law court that moment should the Constitution pro-
tect it, and make it the subject of jury trial
Why then. this unauthorized feature in the Bill
which allows the chancellor to make epcroacbnents
upon that class Of controversies which are EXPRESS
ly reserved and set apart for the Jury triap WHY
seek by ordinary actof legislation to violate the
Constitution and to build up judiciary system upon
any other "basis and foundation than that prep sred
for il by the.ate Convention trust that we have
not been so long absent from masters, that we