, 1870-05-02
TWEEDLErDuM AND TwEEn1E-DEE.

that this proposed reform should have been
rejected
The so-ca1lcd distinction between law
and equity, Ike thst between to1ms of &C
hon, rests upon series Of tictions.
Equity is as purely system OF law as the
common law itself, for both are the con-
densed essence derived from long course
Of judicial decisions In the origin Of
equity it WIS an appeal to the Chancellor
in case in which the law afforded no rem
edy. But for centuries this distinction hns
been purely fictitious, as the rules for ad-
mi1istcring equity relief, so called, have,
by Judicial decision, been crystal
Ized into as inAexible and
rigid system Of law as the
rules for rendering o Judgment at common
law. One evil Of the distinction is often
to compel the bringing of IN action at law
and suit in equity, where, were the dis
fnct1on abolished, one action wouldsufics.
Another is that cases begun in one court
must frequently be defeated, and an action
commenced in another to obtain the relief
demanded. For instance, plaintiff who
has designed merely to land money to the
defendant, for which he takes notes, With an
agreement that he shall have q share
of the profits derived from the uss
Of the money, might be met by the plea
that the agreement relative to profta, as
stated BY himself, made him o partner.
Under our present syston, his action at law
would be dismissed, and he must bring 3
new action in equity for the settlement of
partnership accounts; and il, in the mean
time, the statute Of limitations had run
against his demand, he lost altogether,
Under the simpler system, he might change
his application for Judgment to accommo-
date the action to the facts. Millions Of
casea hare thus arisen Where justice has
been thwarted and innocent itigants have
been mulcted in heavy Sums for costa, with
no other benefit to the world than to settle
the necessary choica to be made between
two, three or four modes of doing thing
which should have bean allowed to be done
in either way.
The distinction between forms of actions,
as assumpsit, detinet, trover, trespass, t1es-
pass Oh the case, &c, all originated in 4
very simple state Of early Saxon life, in
which it Was almost invariably true that, if
one man had u right of action, it must be
because the other had promised (asxumpsiD
to pay him something, or detained (detinsD
his property, OF had found (tr0rer) his stray
cattle and had not returned them, or had
entered upon his lands and committed an
injury, or the Ike But as actions became
complicated and cases arose which did not
properly belong to any Of these classes, IN
stead of inventing new one, or stating the
actual facts of each new case as it arose,
the lawyers adopted system of legal hc-
tions whereby they imagined tho case to
belong to particular class, when they knew
it did not By this means they managed to
range all cases, more Or less clumsily, under
these primitive designations
There is really no relevancy between the
wrongful entry On anothers lands and the
seduction of the owners daughter, Nor is
is there any relevancy or sensible connec-
ton between the loss a parent sustains in
the seduction of his child and the value of
the lost services Of the child. Yet, by q
series Of detions, trespass, which. so far as
it had any meaning at all, could only mean
the wrongful entry on another's premises,
was expanded to include all those cases of
injury to tho person which might, by
legal fiction, be presumed to orig
inato in an. entry, with wrong
fu1 intent, on anothsrs lands These, on
the facts. may not hare involved any actual
hespasa, but for the purposes Of the case q
fictitious trespass was assumed, and they
were, therefore, called hespasses on the
case, aud more briefly s'case." By another
fiction, it is assumed that the ruin of a
daughter under p is legal and pecuniary
injury to the father only and not to the
child. And, by still another legal fiction, it
il assumed that the nature of the injury il
not d loas Of virtue, or Of character or
reputation, or future chances of marriage,
for none OF these could be attributed
to the parent; but it is a loss
Of the pecuniary value of the
child:s services. But, having established,
OF even assumed, q loss Of sarvicez, even
though it might be proved that no rem
dition Of services by the child had erer oc-
Cured, OF ever would, the jury wore then
at liberty to give damages for the wound
ed feelings Of the. parent IN An action OF
81 Hespass on the case" to such an amount
IS they saw fit, in punishment Of the se-
duction. The wrong arrived at In the end
is seduction The loaa designed to be COM
pensated by damages is the loss Of reputa-
ton and social position. They have no
more TO do with trespass than with petit
larceny.
Il class of 1nwyers cling to these fctions
lust AS physicians cling to their Latin pre-
scriptions just as all men who are the
masters Of mess Of technIcalities which
erect barrier between their pursuit and
the common mass, and give. them
the appearance of special knowl-
edge, cling to their only means Of
superiority. If an uneducated man asks
physician what ails him, and is told that
he (the physician) does not know, his pa
tient dismisses him instantly. II, how
erer, he says the diagnosis is critical; TINT
there Is combination Of zymotic 6ymp-
| toms of the pe1icardia, &C., the patient
mistakes obscure nonsense for profound
learning, and is satisfed. It is comforting
to au men who are seeking knowledge to be
talked to in an unknown tongue The dew
otee at the altar feels better when his sins
are confessed in Latin OF Hebrew than
in English. # they arc con-
fefsed in English, his first step
is to confess them himself, and the next
=, 7eara them uncaufessed. Wherever
any class of men obtain an exclusive pre-
eminence over the people, it is by accumu-
1atine and monopolizing some sort OF use
full, or useless, learning.
| The principal function which these dis
tinctlons among forms Of action and pre-
scribed forms Of pleading now perform is
OF this character. They supply every law
yer with two-penny worth Of cheap cru.
dition, so thoroughly absurd and useless in
itself, that nobody in any other occupation
IN life is likely to remember it, and
hence it is always heard by 1aymen
with sense OF novelty and adrnira-
ton. The mere use Of the terms
savors Of that superior knowledge which
impresses the client with confidence. A
lawyer may have no real knowledge Of the
decisions which bear on the question in
yolved. He could not predict the result o.
tho expense of the action. But by the TINT
be has loarnedly explained to his client why