Daily Richmond Whig. [volume] (Richmond, Va.) 1828-1831, 1831-04-16
Tbs Constitutional aaIbtp.
SENATE OF VIRGINIA.

Court of Law aud Chancery in each of he Coun-
Tics Of the Commonwealth, and IN certain Corpo-
tations therein mentioned" and upon the Subst- |
tuie reported By the Committee Of the Senate, t.
whom the Bll was referred.
Mr.. MCCARTHY said-Mr. SPEAKER: In opening !
this debate, shall not consume the time Of the Sen
ate with minute discussion of the details Of the !
Bin, 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 our Judiciary eys-
TEN. For these principles, shall briefly express
my Preference
First them would have Chsncery Courts. as |
sparate and distinct tribunals, abolished
Let Common Law and Chanecry Jurisdictions, be |
thea blended in the Superior Courts required by /
the Constitution, and provided for in the substitute.
Let the Common Law forms of pleading b. superss-
ded by the Chanccry forms. which PLAN and
intc!!igiblc. And Let the Chancery practice of re
sorting to written evidence, be also dispensed with,
aud let oral testimony be gwen in open Court IN all
causes except whore dispositions de Iens esss, are
nov allowed by law to De taken. To these | will
I'd the jury trial, which should be preserved in "al
controversies respecting property and in sui.s be-
tween man and man." to the full extent REQUIRED nv
the Constitution. | prefer the substitute because
it OF these principles and preserves tn.
jury trial to much greater extent than is provided
for by the bill The sub~tltu,e provides for The cs-
tablsnncDt OF n "Sucerier Court" in each County
and invests It with Common Law and Chancerv ii-
risdlcton. Both Of these Jurisdictions are to be
exercised by one judy and in one Court under
give proofs Of the practicabty Of this union Of
lursdctlciis.
The General Court, before the Revolution the
present Court of Appeals, and the County Courts of
the State; the Supreme Court ,3nd the Circuit and
District Courts Of the United States, all furnish
practical illustrations OF The ac, That Judge can
exercise Chancery and Common Law Jurisdictions.
Ii then these two jurisdictions be untcd in 0ue
Judge, they can be united one Couit, and under
form Of practice.
One OF the objects OF the substitute is to effect
this union, aud thereby TO abolish separate Chancrry
Courts, and the separate expenses delays and ncon-
VcN.Cncos attending them II the principles of Law
and Equity are mparially considered. and properly
understood, the consolidation Of the two Iursdc-
lions Wi be found not only practicable. but highly
desirable, the means OF facilitating. OF Improving
and ut c:ieapsoing the business III litigation There
is IN truth no difference between Law aud Equity
in pr!ucipe, and why should there be IN practice?
That hey may be- safely blended IN the manner
proposed, Is proven by Judge Blackstone, who, in
81 'ak.ng Of the two Courts. says-" w hatevcr diff
ference here may be IN the forms of praciice
from the different constitution Of their oiicer
they dI.!'r III any thing essential one Of them
must certainly Re wrong, for truth and Justice n re
always uniform, and ought equally be adopted by
chem I'LL Here we are instructed and assured hy
this greet master of jurisprudence, that the only
"A.f renee between tH two Courts Is "a the forms
u! practice arising fo!n tnr different constitution
OF Their officers" Bat nis "diIrrence' Is Corrected
b. he substitute which requires but one form of
practice, and but one sat at officers. But Judge
Blackstone farther says, that Equity in It's
tFrc and genu ne meaning, is the soul and
spirit OF all law" But tn. Very terms of court
Uf eQnI'y, and court Of Law a CDurhste,l Ia rarh
o.lIer. apt confuuud and instead W. n, II enc
ludnad Without "Qui'.,, and tho ~ her WA not bound
by any law Whereas, every description or ilus,ra
ton 10 be met with, which, draws line b.iy
the two jurisdictars, by setting law and equity IN
opposition To each other, VI be found totally erro
n7:ous, or erroneous to certain degree" ''1'hns
in tho first place 1t Is said that is tho business of
court OF equity in England, TO abac the rlcour of
the common law But no such power ia amended
Tor ''it is sad that court OF equity determines
according to the spirit oi the rule, aud not acordinY
TO the st'icneBs of the letter But so also do., q
court OF law" But there rs q sing. rule Of IN
terpretns laws, who her cquitably or strictly tbut
Is not equally used by the Judges, in the conr, both
OF law and equity: the construction most D. the
snmo; orh they differ, il Is only ore CONT of law
may happon To diisr tron another Each eutea
Vorring to adopt the true of the Jag in dues
ton; neither can enlarge. diminish or alter that
s'.ns-, single title" 1t Is here clearly proven
That law and equity are tho in principle; md thu
substitute seeks TO amalgauaIe them IN superior
Courts under form of practice with common
JGrsdttlon over subjects which the bill makes coz
nzab!" III both courts, under their separate foruIs
aUd jurisdictions. And where the bill draws ..o line
beiVocn the two dUrsc:ious, the subsli;ut. prouo-
El5 to unite them. Where the bill would make
tiein separate ana distinct, the substitute would
maize sheIn one and the same. In relation 10 tho
IoadIngs, the substitute provides for the udoOion of
the chancery forms, which plaa, simple easy OF
comp chGnsOD, and which require tue facts tonchiur
I'c sHUJeCU III controversy To DO disclosed both
sd"s IL repudates the technical absurdlties Of the
common law forms, and provides that no cause shall
DC Pr"Jnd'ccd, dismissed for errors in the pead
ings beg leave, here, to refer gentlemen to the
celebrated speech OF Mr BrougIatn, on the present
state OF the law" to show the utter contempt, in
%"ich the common law forms of pleading are held
by that distinguished orator and iurst will not
-rspass upsn the time OF the Senate by reading ey
tracts from that speec but refer particularly to
thIse p arts Of T., which he describes the deciara
lions ~ as5umpsl and trOver, and the repurnunt
pleas, to the tF"eGtdfus GssaMpat, md to debt ON
bond lie there proves, that under the common law
hrm5 OF pleading, II IS impossible frum the plead
ngs themselves, 10 ascertain the causes Of action or
The grounds ofdct,ncc. Oral testimony TO be piyen
IN open court, where the attendance of The witnesses
can DC procured Is another principle which com.
mands Tor the substitute my feeble support But
wishing TO argue the several principles advocate
on authority viii read to the Senate in snpport of
ihis branch Of the subject tie opinions Of the .ton
Gard author, which / have before Quoted n,rb;,