So far Blackstone. But what say other sages of Chancery law? By Lord Chief Justice Vaughan.—Argument on the case in Chancery Term Pasch. 22. ch. 2. Parkes 459. I wonder to hear of citing of precedents in matters of Equity: for if there be equity in a case, that equity is an univer Per Lord Keeper Bridgeman. Parkes,459. Certainly precedents are very necessary and useful to us, for in them we may find the reason of the equity to guide us: and besides, the authority of those that made them is much to be regarded: we should suppose they did it on great considera-sal truth, and there can be no Precetion and weighing of the matter: and it would be very strange and very ill if we should disturb and set aside what hath been the course for a long series of time and ages. dent in it: so that in any precedent that can be produced, if it be the same with this case, the reason and equity is the same in itself; and if the precedent be not the same case with this, it is not to be cited, as being nothing to the purpose. In Bochm and De Tastet, 1 Vez. and Beames, 326, Lord Eldon admits that even the orders of the court may be nullified and reversed by long continued dissonant practice. For the gross and manifold abuses that the Equity practice allows suitors to put in force against each other, (See Mr Vizard's letter to W. Courtenay, Esq. London, 1824.) This bungling intermixture of common law jurisdiction and equity jurisdiction, of Saxon law, and feudal law, and Roman law, and anomalous bench-made law, and statutory law is a system of ignorance and incongruity unknown elsewhere in Europe. It is in part gotten rid of in some among the United States, as in Massachusetts, in Pennsylvania, and far better than all, put together in the simple and natural code and practice of Louisiana; thanks to Edward Livingston. Why should we have one set of courts for quibbles, and another for common sense? Why should we try cases by jury in one set of courts, and without jury in another? Why should we have viva voce testimony in one court, and affidavit testimony in another? Why when a suit is nearly terminated in a court of law, shall a party be permitted to renew it for half a dozen years more in a court of equity? Why shall better testimony (by examination and cross-examination) in a court of law, be overthrown by worse testimony in a court of equity? Why shall the evidence of the parties, be excluded in a court of law, and admitted in a court of equity? And if admitted, why admitted under circumstances that nullify its value, and give every temptation, and every latitude to mendacity and perjury? without viva voce inquiry, without cross-examination, or confrontation, and with leisure to suit the evidence to the interest of the party it is intended to serve. If lawyers find reason to be enamoured of that incredible mass of contradiction and of barbarism called English law, and of a judiciary establishment, consisting, "of equity judges, common law judges, civil law judges, ecclesiastical judges, criminal judges, judges with juries, judges without juries, grand jurymen, common jurymen, special jurymen, sheriffs and sheriff's jurymen, coroners and their jurymen, justices of the peace for criminal matters, justices of the peace for civil matters, the peers in parliament who are a court of appeals, the court of exchequer a court of appeals, the court of the king's bench a court of appeal, courts of bankruptcy before commissioners, courts for insolvent debtors, courts of conscience, courts of requests, courts leet, courts baron, county courts, " (No. 4, Jurist 36)-if lawyers are in love with this complication of remedies, almost all of them diseases of an intolerable character, there is no good reason why the public should be in love with it, even in England. In these United States, much has been remedied, curtailed and improved; much, very much remains to be so, existing at present a curse upon the community. But does it not work well, said a lawyer to us, with whom we were arguing the point-Yes; well enough for the profession, ill enough for the people. Judge (Chancellor) Kent of New-York, a very good lawyer of the old school, says somewhere, that it will require the labour of a long life to qualify a man to become a common law judge: and the labour of a long life to qualify a man to become an equity judge. This, however, can be gotten over, on Cicero's definition of persona-Ego unus gero tres personas. So the barons of the Exchequer, are animals bipartiti; one half of each of them is an equity judge, the other half a common law judge. So in our Federal Courts, Judge Marshall, Judge Story, and their brethren, are of the same description: common law judges one morning, equity judges the next. Heaven knows how they contrive as to Chancellor Kent's objection. They become suddenly, we suppose, and intuitively, ex-officio vested with a long life's worth of knowledge, which they never spent an hour in acquiring before. There are some questions, however, relating neither to common law nor to equity, which they would fain get hold of if the people were idiots enough to permit them. But the sovereign people of each State, must reserve their own sovereignty to themselves, undegraded by this all-grasping tribunal. Speculations on Reform.-Hints only, suggestions, and those very brief are alone in our power. But they are not suggestions hit off at random and on the spur of the occasion: they are the result with us of much observation, much conversation, and much reflection. The hateful word codification has been employed. It is a word taken from the civil law, expressing that what has been done with that law, may with like reason be done with our law. The French have adopted it: the code Napoleon, so much calumniated by the bigots of the profession, is considered in France as a blessing to the nation, and is the basis of the mo-. dern codes of the most enlightened portion of Europe. We say without hesitation, that the sneers and sarcasms with which it has been treated, the assertions and prophecies of its useless ness, are the offspring of gross and impudent ignorance, silenced in England, by more accurate information of Continental facts; and uttered here in hopes of finding abettors more ignorant than those who abuse that code: a discovery not easy to be made. We have already the excellent digest of Comyns; we have already, half a hundred treatises on separate branches of the law, of which the pith and marrow might be comprized in one tenth of the compass, because the illustrative cases need not be copied. Why might not a committee divide the whole law into separate heads and branches, and collect under each the actual decisions of the courts, and no more? beginning with statute law. When this is done, why not enact this collection by legislative authority? Why is one law to consist chiefly of judgemade law-alterable according to the talents or the want of talents, the knowledge or the ignorance of a presiding judge? Oh! but doubts and decisions and cases upon cases will still arise in never ending profusion as heretofore. Will they? appoint then a decennial committee of revision, and you cure the evil. Let, that committee suggest what alterations appear to thei desirable. But the great reform is that adopted in Louisiana. Substitute a national system in lieu of a technical system. Let the one sole bearing of the system be the search after the real merits of the question. Extend, therefore, the principle of the imperfect statutes of Jeofail, till nullification for a technical mistake shall be heard of no more. Let the first process in every suit, be a distinct and accurate statement of the plaintiff's claim filed in the office as a ground for a summons, and a copy served on the defendant, requiring him in his own proper person to meet the plaintiff in court on a given day. Let each be heard and examined before the judge on his oath, and their respective admissions and denials put down in writing. Let the judge say, when they shall again appear to have their cause tried; before a jury if facts be denied, before himself if law be in question. Let the expense of proving a point denied, fall upon that party who is in the wrong. Let all costs be real costs, not taxed costs: this of itself would wring the truth out of the parties; and would be no more than justice. Let the parties, themselves, the very best of all witnesses, because they know most of the transaction, and all other witnesses who can throw light on the case, be admitted, under the observations of counsel and the charge of the judge as to the probable effect of bias. Let them be examined and cross-examined on oath. I have said on oath. I recant. Punish mendacity committed in court, as you now punish perjury: not perjury. The crime against society, is not the offence against the Deity: who without our impious intermeddling, will punish or not punish as to his infinite justice and mercy may seem fit. The evil is, injustice from misdecision: the crime is, mendacity in open court, producing or meant to produce, misdecision and injustice. This is the only offence against society; let society punish it eo nomine, and leave perjury to the cognizance of that tribunal with which society has no right to interfere. Abolish your Court of Chancery: give chancery powers to common law courts, and make a court of law what it ought to be, a court of justice. Why may not a court of law direct a bill of discovery, a bill to perpetuate testimony, specific performance of contracts, writs of estrepement of waste, ne exeats, and process to call parties into court, where, under the viva voce system we now propose, as many minutes would suffice in most instances to settle the justice of the case, as it now takes months or years, Let your civil causes be the exclusive business of one description of courts: your criminal causes of another: extend the principle of arbitration, and the powers of arbitrators, and enable this mode of trial (as by the act of William and Mary) to take place under rule of court in all cases where the parties are agreed to arbitrate. Let two decisions by jury out of three, be a final settlement of the cause. If civil causes should occasion too great a press of business, questions relating to marriagecontract and marriage-rights, wills, minors and orphans, executors, administrators and guardians, idiots and lunatics, insolvents, and other straggling portions of chancery powers might make a third set of courts. Let your judges sit, de die in diem, during nine months of the year, and make every writ returnable at as short an interval as convenience will permit, a week for instance: for under a preliminary viva voce examination of the parties, the time for trial might be fixed by the judge as the circumstances of the case required. VOL. V.-No. 10. 54 ABETOS Under a reformed system, it might be worth while to inquire, whether a fewer number than twelve might not constitute a jury. We are aware of the cogent arguments from their being twelve signs of the zodiac, twelve months in the year, twelve apostles, &c. but we doubt whether these ought to be considered as conclusive. Nor is it quite certain that the jury ought to be driven to tossing up, calculating averages, and such other devices to get over the objection of unanimity, so often the parent of perjury. Nor are we satisfied of the indispensable necessity of a grand jury. The system of law is at best sufficiently onerous to the community, without increasing the burthen unnecessarily by this very imperfect, and as it seems to us, useless tribunal. Oh! but all this is the wild dream of a reformer! Is it so ? Have you been in a court in Louisiana lately? If not, keep your assertion to yourself, till you have seen how much of all this can be beneficially accomplished, how easily, and to the people how satisfactorily. ART. VI.—The Life of the Right Rev. Jeremy Taylor, D. D. WHEN we say of Jeremy Taylor that he was born in a barber's shop, that he was the fellow of two Universities, and the husband of two wives, that he suffered poverty and a prison during the usurpation of Cromwell, and enjoyed Ireland and a bishopric after the Restoration, that he lived a life of shining virtue, and died a death of triumphant glory, we shall have transferred to our readers almost all the authentic information that has come down to us of this most rare and excellent divine. These mere outlines of a life, so varied, so troubled, yet so felicitous as his, are all his biographers can offer, and the imagination |