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those jurisdictions as considered under the aspects, under which they have been been hitherto viewed. There is a particular aspect, in which they have never, so far as I know, been viewed; but to which I shall, by and by, direct your minute attention.

In the meantime, it will be proper to consider a question, which has employed the talents of the most eminent writers on jurisprudence. Should the jurisdiction according to equity, and the jurisdiction according to law, be committed to the same court ? or should they be divided between different courts?

My Lord Bacon thinks that they should be divided : my Lord Kaims thinks that they should be united. All this is very natural. My Lord Bacon presided in a divided, my Lord Kaims was a judge in a united jurisdiction. Let us attend to their arguments : the arguments of such consummate masters will suggest abundant matter of instruction, even if we cannot subscribe to them implicitly.

The reason assigned by my Lord Bacon for preferring the division of these jurisdictions between several courts is, that if they are committed to the same court, the distinction between them will soon be lost; for that the discretionary will soon draw along with it the legal power.

My Lord Kaims admits, that, in the science of jurisprudence, it is undoubtedly of great importance, that the boundary between equity and common law be clearly ascertained ; because, otherwise, we shall in vain hope for

suitable for a trial by jury. In chancery the trial was not by jury, and the party might recite all of the evidentiary facts and circumstances, and call upon his adversary to answer them and submit to the dge whether those facts and the answers constituted a right to the relief prayed.

11 Ld. Bac. 253. Aph. 45.

just decisions. A judge, adds he, who is uncertain whether the case belong to equity or to common law, cannot have a clear conception what judgment ought to be pronounced. But, on the other hand, may it not be urged, that to divide, among different courts, things intimately connected bears hard upon every man, who has a claim to prosecute; because, before he bring his action, he must, at his peril, determine a point extremely nice—whether the case is to be governed by equity, or by common law ? Nor is the most profound knowledge always sufficient to prevent inconveniences upon this subject : for, though he may be perfectly acquainted with his own demand, he cannot certainly foresee the defence, nor divine whether it will be a defence at law or in equity. Weighing these different arguments, the preponderancy seems, in his opinion, to be on the side of a united jurisdiction. The sole inconvenience of a united jurisdiction—that it tends to blend common law with equity-may admit a remedy by an institute, distinguishing, with accuracy, their boundaries : but the inconvenience of a divided jurisdiction admits not any effectual remedy.'

Both these great men agree in one point--that the dis

1 Prin. of Eq, 49. [The supposition that the division of the jurisdiction between separate tribunals would enhance the danger, or that conferring both legal and equitable jurisdiction upon a single tribunal would obviate or lessen the risk, is demonstrated by experience to be a misapprehension. In a New York case the court held that, “If a party brings an equitable action even now when the same courts administer both systems, the party must maintain his equitable action upon equitable grounds or fail, even though he may prove a good cause of action at law" (Bradley c, Aldrich, 40 N. Y.504), and the courts of New York feel obliged to dismiss the suit under such circumstances. See Ketchum o. Depew, 81 Hun, N. Y. 271. The remedy lies in another direction, viz., in a broader privilege of amendment and the vesting of authority to transfer the cause from one docket to another upon just and reasonable terms. This may be done in several states,

The distinction between the nature of the jurisdiction rather than the name of the tribunal is the substantial thing to consider.]

tinction between common law and equity ought, by all means, to be preserved ; and one of them recommends even an institute to distinguish their limits with accuracy. With the becoming deference to such high authority, it may

be worth while to examine, whether, in the fluctuating situation of men and business, an attempt to fix permanently the line of division between law and equity would not be fruitless and impracticable. This line, I am apt to believe, will be found to change necessarily according to different circumstances--the state of property--the improvement of the arts—the experience of the judgesthe refinement of the people.

In rude ages, the first decisions of judges arose, prob ably, from their immediate feelings; in other words, from considerations of equity. In the course of their business, many similar cases would successively occur : upon these, similar decisions would naturally be given. A number of precedents, thus introduced, would, from the power of custom, acquire authority and respect. General rules would gradually be formed; and the utility of establishing them would become an object of attention. Those rules, however, upon a little further experience, would be found, at some times, too narrow; at other times, too broad. To adhere rigidly to them, at all times, would be to commit injustice under the sanction of law. To avoid an evil so alarming, it would be thought advisable, upon extraordinary occasions, to recede from general maxims, and to decide, as originally, according to the immediate sentiments of justice. In this manner, the distinction between equity and strict law was, probably, introduced : the former comprehended the established rules : the latter comprised their exceptions.

But when the exceptions became numerous, many of them also would be found to be similar, and, consequently, to require a similar decision. Those similar decisions

would, in time, produce a new rule ; and this new rule would, in its turn, give birth to new exceptions.

If this account of the matter is just--and it seems to be natural—law and equity are in a state of continual progression ; one occupying incessantly the ground, which the other, in its advancement, has left. The posts now possessed by strict law were formerly possessed by equity; and the posts now possessed by equity will hereafter be possessed by strict law.

In this view of the subject--and it is an interesting one -equity may be well deemed the conductor of law towards a state of refinement and perfection.

In this view of the subject, we can find no difficulty in pronouncing, that every court of law ought also to be a court of equity; for every institution should contain in it the seeds of its perfection, as well as of its preservation.

In this view of the subject, we shall find as little difficulty in pronouncing, that every court of equity will gradually become a court of law; for its decisions, at first discretionary, will gradually be directed by general principles and rules. Thus, in England, the court of chancery has gradually divested itself of its original and arbitrary character, and has approached to that of the courts of common law. Thus, again, in England, the courts of common law, animated lately with the spirit of improvement inspired by a liberal age, have enlarged their powers of just decision, and have advanced within the precincts of equity.

The particulars, in which they still differ, are, indeed, of importance; but I see no reason why the separate powers of chancery, placed there very properly, indeed, should be thought incommunicable to the courts of common law.

A power to compel discoveries by a party may, without any incongruity, be annexed to a common law jurisdiction.

This, to a certain degree, has been already done by a law of the United States. In the trial of actions at law, the courts of the national government are authorized to require the parties to produce books or writings in their power, in cases, in which they might be compelled to produce them by the ordinary rules of proceeding in chancery.

The power of granting commissions to take, upon interrogatories, the depositions of foreign, removing, or infirm witnesses is familiar, in practice, to the courts both of the United States and of Pennsylvania.?

The power of compelling a specific performance is, I apprehend, strictly and originally a power at the common law. In some of its unpropitious eras, indeed, the exercise of this part of its authority has, in most cases, fallen into disuse, and has not been revived, but anciently it subsisted in its full force and vigor; and, in one case, it is supposed to subsist in its full force and vigor to this day. I fortify my opinion by instances of the fact.

Fines or solemn agreements, acknowledged and entered of record, are well known to be of very high antiquity at the common law. It is generally, I believe, supposed, that they took place only in pleas respecting land. But the fact is unquestionably otherwise. Fines were executed in other pleas. If either of the parties violated the agreement, a suit upon it was commenced. When they both appeared in court; if they both acknowledged the writing containing the agreement; or if the agreement was stated to be such by the justices, before whom it was taken, and this was testified by their record; then the party, who had broken it, was in the king's mercy, and was attached till he gave good security to perform the concord in future—either the specific thing agreed on, if

i Laws U. S. 1 con. 1 sess. c. 20, s. 15.
[? This is now a very common practice in courts of law.]

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