950 
ite than according to right. What ef- 
fect then can eloquence poilibly have, but 
“ to. warp or confound the judgment ot the 
a And indeed, cf what ufe is the 
-jucge, but to explain the law and to elu- 
eidate and fam. up the evidence to the 
jury; and this being the caie, what pol- 
fible plea can be urged for the employ- 
ment of counfel, and the enormous eme- 
Tuments which they demnve from the mi- 
fery and ditrefs of their teliow-creatures ? 
POURTHLY. | ‘There oaght to be ove 
faz, one form of adsniniiter: ing juflice in 
every. nation. J believe oe peek im 
Great Britain are agreed with refpect to 
‘our écclefiatical.and other ey oe where 
the civil law is the criteron of juitice. 
But. there is another topic.on ae there 
is leis harmony of opinion, only, 1 be- 
hieve, becaufe it is lef{s underttcod, and 
That is waat are called Courts of Equity. Te 
@ obvious, that té make any dittinétion 
Between Saas and Law, is a burlelque 
-epon the fatter. But the truth is, in the 
matter in queition, no fuch diftinétion ex- 
its, except where the abiurd relics of the 
foudal fyRem interfere; the batis of our 
faw is, or ought to be, equity; and our 
courts of equity are as much bound by 
precedent and abfolute law, as the other 
courts. it has been an erroneous opi- 
‘nion, that the courts of equity are intend- 
ed to abate the rigour of the common Jaw, 
but whoever will look into Judge Black- 
fione’s third volume, wall fee that no fuch 
power is contended for, nor can paey 
be exerciied. 
‘The oniy advantages which our courts 
‘of equity poflefs, may, in fact, be confined 
to two ngs: ‘rit. ‘In certain cafes it 
amay be uleful to examine the par ties chem- 
felves in a fuit upon oath, which cannct 
be done in a court of common law, but 
the courts of equity are invefted with this 
authority. _ 2dly. A court of common 
daw admits only of cral evidence, whereas 
ima court of equity, interrogatories ad- 
miniftered to a witnefs reliding in a fo- 
reign country and his depofitions taken 
are competent evidence. Now could any 
thing be more ealy than to invelt the 
eommon law courts with a difcretionary 
authority in thefe two inftances, and to 
fabmit the mais of evidence thus ‘collected 
to the judgment ofa jury? Or can there 
be any reafon whatever ‘or creating a dif- 
tinct court, merely to fupply thefe two 
defects in our natignal Juri prugencer 
Net to fpeak of the expence, of the te- 
dioufnefs of the proces, of the difcrepany 
of the forms from that excellent practice 
eftablithed ia our common law courts, | 
Heads of an E fay on Civil Furifprudence: 
‘and a 
{ Sup. 
cannot help confidering the prefent courts 
of equity as an a&ual violation of the 
Britijo confiitution... It is the vital princi- 
ple of that conf ftitucion, decidediy ex- 
preffed in the Magna, Charta. =- * That 
‘¢ no man fthall be taken or imprifoned, 
« or deprived of any property, privilegey 
‘* or franchife; but by the ai chips of 
“< his peers or tht law of the lan - 
Now, juppoimg (which however many 
will not admit) that the words; law of 
the bai wd, form an exception to the trial 
by jury in certain caies, this muft, at alt 
events, neceflarily refer to fome tribunal 
exifting at the period when the Magua 
Chan was enacted (pollibly to the trials 
appeals before taé Houfe of Lords). 
Now, the Court of Chancery is a fungus 
arifing, God knows how! out ef the arbi- 
trary power claimed by fome of.our an- 
cient monarchs to interfere in the pro~ 
cefles of the common law courts, and its 
jurifdi&tion was certainly unheard of for 
centuries after the enaéting of Magza 
Coarta. Can any thing then be more ab- 
furd, than, when _ the conttitution of 
Gieat Britain lays exprefsly,---* That 
<¢ no man fhall be judged as to his perfon 
eer, property, otherwite than by the 
<< verdict of his peers or equals! \’--to 
leave one-third of the property (as. to 
value) which is brought into litigation, 
at the arbitrary and difcretionary autho- 
rity ef a sINGLE Jupce! and (te 
heighten the agen that judge de. 
sendant and removeable at the pleafure of 
the crown! 
If the trial by jury 1s a pr ivilege which 
is worth contending for---if the mede of 
adminiitering of juftice in our common 
law courts, 1s (as 1 really think) worthy 
in moft reipects of admiration, how are 
we to account for the public folicifm of 
permitting this grofs imnovaticn- on the 
conftitution---this entire neglect of thofe 
paliadiums of Britith liber ty-- © The 
<¢ Trial by Jury and the Law of the 
(a4 Land!” e 
Such are. my fentiments, in general, 
on this important fubject. It appears 
plain to me, that a perfect and rational 
code of civil law muft be fyftematical 
and harmonious, not founded on jarring 
princi iples, or inconfiftent fyitems of civil 
policy. That it fhould be fimple and 
intelligible to the people, whofe guide and 
dire&tion, as to their civil conduct, it is 
intended to be; that juftice, in a well re- 
gulated Rate, fhould be adminiftered gratis 
or nearly fo; and that there fhould be 
but one fyftem of law and juitice to per- 
vade the ticbhens Tn {peaking upon this 
fubje& 
, 
