Year: 1877

grounded in and built up Of form.


The civil action defined in this second
section is naturally to he construed by
reference to the civil action as formerly
known in this Territory, as abrogated in
1871, and MS now known in more than
half Of the United States and in Eng
land.


In the absence Of any clear limitation
of intent the construction must be that
such civil action, that the Civil Action
is in fact intended. But if the civil
action rs known in the Reformed Pro-
cedure be intended, then together with
it is adopted the intent and spirit in
which it had its rise. The words, :" all
common law forms of action and all dis
tinctions between law and equity are
hereby abolished" reclted at the begin
ming of the Codes, are inserted sr indus
tria. They were, from the first, entirely
unnecessary, save merely that they might
serve as an index finger pointing to the
legislative intent visible in the rest of the
section. How unnecessary they were,
will he more apparent as proceed.


The supposed substantial distinctions
between law and equity, whereby differ
ent rules were asserted and applied as
rules Of right in the two jurisdictions,
were connected more or less intimately
with the forms to which the course of
justice in the law Courts cOntormed. The
comn,ou law rules had necessary rela-
tion to common law forms of action.
They were fashioned and preserved by
reason of the rigiditY of the forms
through whicn they had to move. They
partook of the fo.mality that controlled
their application. But the substance,
which was sought to be advanced along
the iron rails of the common law by
means of this machinery of rules, was
justice, the very self-same substance that
was supposed freely to progress, without
track and without peculiar vehicle to-
wards any goal, upon the level and pol
ished plane of equity. A deep-seated
distinction between law and equity, I
say, never existed, if it had, there would
have been an anarchial conflict between
them. The corelative maxims, Ler Sc
gutter Gquittatem and Equitas Sequiter
Legena, would never have become prov
eIbs. The judgments Of the law trIbu-
mails would not have been suffered to be
revised in chancery, nor would the
chancery DEGREES have been acquiesced in
at law. There were not two sorts of
Justice, there we're not even two fuuda-
mental ideas of justice, prevailing in the
two jurisdictions. The basis the com
mon law action-'riyht reason" and the
basis of the chancery sait-'cquity and
good COINCIDENCE" were really one and the
same thing; that thing was substantial
Justice. And in the fundamental and
therefore true view, there never was and
never could be, when divorced from
form, a substantial distinction between
law and equity. Every distinction be-
tween them was the offspring of form
and Of form alone. Every distinction
between them is broken down and ami
hilated in this Territory by force of this
second section of our Code, unless some
where else contrary intent is clearly
Notwithstanding our whole statnte
with the utmost consideration of which
am consciously capable, / find myself
urable to announce that such an intent
is anywhere manifest. There is recog-
milton Of trial by jury. There is also
recognition of a trial by court, in issues
heretofore known as of chancery juris-
dction. But there is in this no promul-
CATION or recognition of an incompleted
merger of law and equity. The trial ot
jury never has anywhere stood in the
way, and does not now here stand in the
way, of complete unificaticn of practice
There is learned opinion, indeed, ito the
contrary. One, from whom it might
least be expected, writes "whether law
and equity, whether the legal and equi-
table method and remedies can I've COM
pletely united and consolidated in one
homogeneous system, similar to that
which prevailed in Rome during the la
TOR emnire NAV be doubted. l am of