date

19 July 1805 Evidence Note
19 July 1805

Evidence

Note?

Introd. Jurisprudential

Ch. II Vices

Ex post facto

Equity Jurisdiction

The distinction /notion/ of one sort of law under the name of Common Law to be administered by one sort of Court under the name of a Court of Common Law and another sort of law under the name of Equity to be administered by another sort of Court under the name of a Court of Equity is altogether peculiar to England - Why? Because England has Juries, other Countries have no Juries.

Among the aberrations necessary to the existence of Society there are some that are capable /which it is possible/ of being carried on with the intervention of these ephemera Judges. There are others which it is not possible to carry on with the intervention of these [aphemera[?]] Judges.

The operation which it /is/ has been possible to be carried on in that original and English mod [...? ...? to England] have been carried on in a mode resembling that which without much variation is in use in all other Countries.

Abundant are the cases and these amongst the most important in which from the courts of justice by the universal /explicit/ confusion or rather declaration of lawyers themselves, Justice is not to be obtained at all /at any price/ from the Courts of Equity, not but at their own outrageous price. Such there between the two is the condition and [...?] of the suitor: compleat injustice, or more than ordinarily ruinous justice: vexatious, expensive and dilatory justice.
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    In the Courts of Common Law the business of procedure is carried on upon one plan. In the Courts of Equity the business of procedure is carried on upon another plan as different from the other as any that can be conceived. Two plans here different for the accomplishment of the same object may be both wrong; and if to run counter to every end of justice is to be wrong are both wrong, but they can not both be right.

    Not only did they travel /wish/ in use the execution of the same work /sort of business/ upon discordant and repugnant principles, but among the occupations of one of these sort of Courts is that of stopping and undoing the work of another /the other/. [When Penelope unravelled by night the web she had been compelled to weave by day, it was for the declared proposed purpose of impeding the work and not of forwarding it.] It To do this and that and other is contrary to equity and good conscience. So says /saeth/ the suitor in Equity to the Court of Equity. It is so it is indeed contrary to equity and good conscience, says the Court to the Plff in effect, as often as upon the ground /strength of the [...?]/ then made by the Plff it acceeds to his demand. Contrary to equity and good conscious? to do what? To do that very thing which the Courts of Common Law are constantly employed /occupied/ in doing, because the not doing it would be contrary to justice.

    My property /land is withholden/ is taken from me. I apply for redress to the only Court /Court which in this case in question prefers to give in [...?]/ to which I can apply for it, a court of common law. When the Common Law storehouse of factitious expense, vexation and delay has been exhausted, and the time is come when it is no longer possible for the Common Law Court to forbear rendering a justice, I am dragged into a court of Equity, in which the process of factitious expense, vexation and delay recommences with improvements: to a Court of Equity, in /by/ which my demand is decided upon on principles disregarded by the Court of Common Law; the facts being also decided upon by evidence not there admissible and obtained by a mode of enquiry altogether different.
  • Title: [10 March 1807 Judicial Justice]
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    By the inadequate simplicity of the original scheme Common Law, being alike debarred from recognizing the possibility of misdecision pro tanto in respect of conditionality, hence in any case where to render the decision commensurate to the ends of justice modification in respect of conditionality was requisite, and one amongst so many other proper grounds for the necessity of a recourse to the more unshackled authority of a Court of Equity, proceeding on the ground work of Roman Law.

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  • Title: [4 July 1805 Evidence Introd]
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    On the subject of the power of a Court of Equity the following is the information given as by /from/ the highest living authority among methodical writers.

    1. That it is difficult to discover by what means the Court of Justice in England, usually termed Courts of Equity, have obtained the jurisdiction which they now exercise. Accordingly no such discovery is there communicated.

    2. That their authority and the extent of it have been subject of much question. Accordingly, for any thing that is here done to put an end to such question, so they do or may still continue.

    3. That the limits on their duty seem now to be in a great degree, though perhaps not compleatly ascertained. "To indicate the limits of a man's power (if that be what is here meant by duty) is to show in respect of such and such prevents what he can not do: shewing what he can or does do indicates the course of the power, but does not indicate nay limits to it. Diverse the things which the Court do and therefore can do are spoken /[...?]/ of in the course of the book. But if any thing of which it is said that they can not do it, no mention is to be found.

    4. That a cause is the cause which has tended to prevent the bounds between the line[?] jurisdictions from being compleatly ascertained ..." is "the liberality with which of late years the Courts of Common Law have noted and adopted the principles of decision established in the Courts of Equity." This /That by/ liberality the whatever limits may have been previously set to the power of the Courts of Common Law may have been proportionably enlarged will not here be denied that by the same liberality any limits have been set to the power of the Courts of Equity is not assisted nor could be (as it should seem) consistently with the truth of things. The number of the individual cases over which the Courts of Equity exercise their jurisdiction /power/ may be more or less reduced by this liberality, but not the number of sorts of causes. Courts of Equity do prohibit men from carrying their causes to Courts of Common Law: Courts of Common Law do not prohibit men from carrying causes to Courts of Equity.