Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1875-03-04

and equity jurisdictions were consolidated
and uniform mode Of proceeding estab-
lished. State after State has adopted this
measure, following New York closely, I'M
til now we are told by a law writer Of some
note that about half the States have re-
moved the distinctions between legal and
equitable proceedings. The last State
which adopted the system is North Caroli-
ma. 1t will no doubt be established in the
Federal courts so soon as a majority Of the
States adopt il. 1t has existed in no cOun-
try except England and some of the States
which inherit her laws. Sir Edward Sug-
den says: at sounds oddly to foreigner
that on one side Of Westminster Hall a
man shall recover an estate without argu-
ment on account of defects of title, and that
on the other side bis adversary shall with
equal facility recover it back. In all other
countries the law is tempered with equity,
and the same grounds rule the same cases
in all the courts of justice alike"
This system of double judicature had its
origin in England, under peculiar circum-
stances. The authority of the Chancellor,
the "Keeper of the Kings Conscience" was
upheld in the early age Of the English
law as a prerOgative necessary to give le-
AlEl W NliC ldAN4Co Al1lEhAAb WIFI WY WV
without remedy by the rules Of common
law. The application, in the form Of a pc
titiOn, was addressed to the'LOul Chan
cell9r, the proof taken in writing, and his
edicts rested in those ages much upon un-
defined discretion and arbitrary power. 1t
was resisted by the mass OF the people and
by TIE great body Of the lawyers working
in the common law courts. They stood
upon the old law of the land, with its jury
trial and oral testimony, which was regard
ed by the people as the bulwark Of public
liberties. awe are unwilling to change
the laws of England" was the declaration
of the House Of Commons, made on sew
eral occasions. The authority Of the Chan
cellor was maintained by the ecclesiastics,
standing on the Roman law, from the vast
fountains of which both rights and RENE
dies were drawn to supply the deficiencies
of the existing system Of English law. The
Chancellor was generally an ecclesiastic.
The Master Of Rolls and the Masters in
Chancery were prOfcients in Roman law.
The English people could not, in the ma
ture of things, ignore the existence of the
most comprehensive and enlightened body
of laws then in existence, and which was
taught IN the two great universities Of the
kingdom and in schools over great part Of
Europe.
In the conflict which ensued over these
separate systems, the supporters Of the
English common law maintained them
selves in the common law courts, where the
great body of the judicial business was
done, and the civilians sustained their sys-
TEN in the Ecclesiastical courts, and courts
of Admiralty, and 10 a considerable eX-
tent in the courts Of chancery.
After the lapse of centuries, the courts of
chancery still rest their irregular, fragmen-
tary and underlined jurisdiction on the ina
bility of the courts of common law, without
legislative assistance, to furnish any rene
dy or any adequate remedy for, all griey-
ances. The judiciary act Of 1889 provided
that courts of chanceTy should give no
relief except where an adequate remedy
could not be administered in a court Of
law with its jury trial and oral testimony.
The great fact, then, upon which this
double system of iudicatuTe rests is the in
competency of the Cir nit Court, with its
present jurisdiction, to do justice and the
consequent necessity Of anOth court TO
supply its deficiencies. The Cir
cult Courts cannot do complete
Justice in cases where equitable
wrongs are to be redresSed without the ad-
ditiOnal powers possessed and exercised by
courts Of chancery. The result is a COM
plicated systet. Of jurisprudence, two sys-
TENS Of pleadings, two modes Of tIial aud
of proof, and judgments and DEGREES differ
ing in their essential features, making a
judiciary system dilatOry and oppressive,
with a border warfare perpetUally raging
I0rrr1flaraE nf laV0arf-
ments.
This court system was finally established
in England in 1916, 10y James l., after a
bitter controversy between chief Justice
Coke and the Lord Chancellor EllssmOre,
but it has never given satisfaction. 1t was
abolished under the PrOteCtOrate of CUOm-
well, but, Parliament falling to supply the
deficiencies in the original common law
courts, the chancery system was restored
on the restoration of the Stewards. In
1852, commissioners were appointed by the
Crown to report on the state Of the admin
istratiOn of justice, the courts being over
burdened with business. They reported
in FAVOR of the abolition of the existing
system, and the consolidation of the legal
and equitable Jurisdictions as "indis-
pensable to the establishment Of rational
system of Jurisprudence" On the return
Of the report, Parliament abolished com
mon law actions and established a system
Of pleadings at law and in chancery ex-
treRely concise, and let in equitable de-
fenses to certain actions at law,
but declined to abolish the gigan-
tic evil of their systematic trial of legal
and equitable Tights-in different courts
and by different modes Of proceedings.
This was left to scourge the people a
while longer. After full trial of the i'm
proved system, from 1852 to 1869, it was
found that it did not relieve the courts, to
any satisfactory extent, Of prolonged and
burtheHsOme litigation. Seven Of the
most eminent lawyers and judges Of the
kingdom were appointed TO report upon
the existing evils and the measures neCes-
sary to remove them. They reported as
the former commissioners mad done, and
an act was passed to consolidate the juris-
dictiOns, which took effect on the I'd day of
November, 1874. The old Judges were all
retained and were authorized 10 make
rules necessary to carry the system into
effect.
The american Lar ReCielg says of this
act: "The old courts have been entirely
swept away, with very little Of sentimental
regard for them or their antiquity, and
their Jurisdictions consolidated in a new
court. 1t seems to have been intended TO
blot out all traditions and prejudices which
might embarTass the working Of the new
system. The new court is to be guided by
rules for the concurrent administration Of
law and equity, and in every case the court
is TO give effect to all existing rights and
duties, whether they exist by common law
or by equity, or are created by statute.
Each party is to receive relief on equitable
grounds against the claim Of the other party
which he would have received in equity.
In any cause, all matters connected with
the subject of the cause are to be adjudi-
Gated, so thai multiplicity of pro-
ceedings are to be avoided;
and wherever there is any conflict
between the rules of equity and those Of
common law the rules Of equity shall pre-
vail. This was not hurried measure. 1t
was not accomplished by ardent refOrmers,
bent on destroying existing institutions; it
was passed and approved by the most con
servative class in England. The measure
was brought forward by the Lord Chancel-
lOr, and discussed by the most eminent
Lawyers in the House of Lords, and, after
it left that body, it was again criticised and
discussed in the House of Commons. The
public discussion in the newspapers indi-
Gated the feeling Of the profession, and of
the educated classes in regard it. The
act bears, in every part, the marks Of an
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