The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1892-02-18

of the courts for the settlement OF orClin-
airy disputes. This is seen in the efforts
made by Boards of Trade and other com
mercial bodies to establish committees of
arbitration and Boards of Referees for the
settlement of disputes among members.
The points of view of the profession and
the public are not the same. They are,
in fact, widely different. How great
that difference is is indicated by the fol-
lowing extract from public address of
distinguished jurist. 'sThere are two
points of view from which Jurisprudence
is generally regarded. One, that from
within, as she appears to the priests Of
the sacred temple of justice, who vener-
ate even her most trivial rites and guard
her mysteries from the profane. That is
the professional aspect of the science.
The reverse of the picture is the appear
ance she presents to the unwilling votar-
les who are forced to do homage at her
shrine, to whom she seems arrayed in
motley robes addressed in an unintelli-
gible iargon, issuing incoherent mandates
and making little but a lottery of strife"
While should be unwilling to subscribe
to the accuracy of this picture so wildly
drawn but which has much of the extra
vagance of antithetical statement, yet it
at least expresses the extremes of senti-
ment which exist, and may well cause
every lover of his profession to ask what
basis of truth exists for the complaints
that are made as to the law s delay. and
how serious are the defects in our pres
ent juridical system. Maine is one of the
few states of the Union that has adhered
most strictly to the system of laws and
forms of procedure that We receive as a
part of our English inheritance. With
comparatively slight notifications we
are using the same forms of action and
method of procedure which existed i'll
the time of the Tudors and Stuarts,
and which were elaborated by the
learning of Saunders, Coke and
Hale. We have only partially liberated
ourselves from system of pleadlngs so
replete in refined distinctions and arbl-
trary technicalities that the logic of the
schoolmen seems simple by comparison
and whose merits, however great as
system of formal logic, could not survive
the tardy recognition, that under its
operations, form often supplanted sub
stance aud the interests of suitors were
sacrificed to the subtilty of the pleaders.
And yet so great is the reverence for
these ancient forms. SO much are they,
supposed to inhere in the nature OF things
that it will seem to many as lacking i'll
proper appreciation of the monuments OF
the past to speak of them in other than
terms of respect. Our adherence to Eng
lish precedents and ideals has been so
strict that we have perpetuated the dis
tinctions between law and equity as if
there were some natural difference be-
tween them, which assigned them to
different categories and required different
instrumentalities for their administration.
And yet the two are but parts OF one
system and supplement- each other, and
their separate growth is due to the Pc
culiar conditions under which the juris-
prudence of England was developed.
Not till English jurisprudence outgrew
the narrow limitations of the feudal sys-
TEN and took on something of the larger
growth of the civil law, did equitable
Jurisdiction and doctrines assume their
normal importance in the development
of English law. The growth OF equity is
due to recognition of the limitations
and defects of the common law, and to-
day we recognize the fact that equity is
the most elastic, comprehensive and val
liable feature Of our judicial system, and
yet our distrIlst of it has been so great IN
the past, that not until the year 1874 did
the legislature confer upon the Supreme
Judicial Court of this State full equity
jurisdiction, and today we are still suffer
ial distinctions between these two sys-
TENS which are largely due to the jeal-
ousy and want of harmony which existed
between the courts of equity and common
law in England and which are perpetuated
by our system of procedure. Mainly by
judicial legislation have equitable de-
fences, which are in the highest degree
meritorious, gained footing in common
law actions and that only to a very limit
ed extent, and yet itwould be difficult to
state on theoretical grounds why the dis
tinctions between these two systems
should be continued, especially when
both systems are administered by the
same court. There is no natural reason
based ON grounds of comparative Jurls-
prudence for the distinction, and the
blending of the two systems under more
simplifed forms of pleadings, which
would eliminate the obsolete fictions and
useless technicalities of our present sys-
TEN, would not only be consistent with
the practice of other nations, but promo
tive of Justice and the rights of sultors.
So much is sacrificed to ancient models
and forms which grew up under condi-
tions which have now disappeared.
These views will doubtless seem to many
extreme. ill considered and unwise, and
vet they are in line with the tendencies
of the day and the changed conditions OF
modern life. 1 believe they are in harmo-
ny with the views of many OF our own
profession. l knowgwhat is claimed in
behalf of the present system. l can al
most hear the solemn protest from wise
Judges and learned LAWYERS at the icono-
elastic spirit which would overthrow
so many monuments of the past,
and introduce confusion where order
and system now reign, but it must not be
forgotten that changes not less radical
than these have been successfully intro
duced into many of our sister states with
the approval of leading members of our
profession. A wider acquaintance with
these reformed methods of procedure in
recent years and better opportunity to
Judge something of their practical work
ing have removed much of the distrust
which is excited by the first suggestions
of such reforms We must not forget
that in our adherence to these ancient
formulas, we have not even the support
of the country from which they were de-
rived. England, under the leadership of
some of it's most distinguished judges
and statesmen and with the approval of
a large part of the English bar, has
swept away the most conspicuous OF