date

2 Jan y 1808 Jurisdiction Table Table
2 Jan y 1808

Jurisdiction Table Table VII

Uses[?]

VI. Divisions of the field of jurisdiction grounded on the metaphysical or say logical, as contradistinguished from the topographical, principle of demarcation - third use?

This type, though not coming under the head of Appeals, is brought to view by the Table: exhibiting, as it does, the different scales of jurisdiction, that have place in the different divisions there marked out.

Inconveniences of this diversity are 1. complication; with its attendant evils, viz. uncertainty, and uncognoscibility on the part of the law: litigation, with its vexation and expence, the result of the undetermined[?] situation of the lines of demarcation supposed to be drawn between division and division.

Few of these divisions have at present any use. Those in which the advantage bids fairest for preponderating at present over the inconvenience seem to be the jurisdictions of the Spiritual lords, the Admiralty[?] Court, and the Privy Council: in the two latter instances, in respect of the necessity which the Executive power may occasionally be under, of consating[?] the temper of foreign powers or of the inhabitants of distant dependencies.

In some instances, the demarcation never had from the beginning any rational, nor any other than an historical cause: in others, where at

one time a rational cause existed, it has long ceased to exist.

English division into Common Law jurisdiction and Equity jurisdiction, a division not founded on nature, not produced by any rational cause, and peculiar to English jurisprudence. The historical cause was the [...?] of the original scheme of English judicature; an imperfection which rendered it necessary to call in the Roman law: English Judges, from stupidity and disregard to the ends of justice, being central[?] to render themselves instruments in the hand of a wrongdoer, as well as to permitt the most grievous wrongs to remain without a remedy. The distinction purely arbitrary: Equity causes being such and such only, to which the Roman mode of procedure happens to have been applied. Extend the application of this mode[?], you extend Equity: narrow it, you narrow Equity: abolish it, you abolish Equity
Similar Items
  • Title: [2 Jan y 1808 Jurisdiction Table. Table]
    Description: 2 Jan y 1808

    Jurisdiction Table. Table VII

    2

    Notes

    English distinction between King's Bench, Common Pleas, Exchequer and Common Law Chancery jurisdictions - a distinction the rational causes of which, if it ever had any have long ago ceased. Accident set up the barriers; mutual and universal rapacity has in many parts broken them down. Competition, a state of things which in the institution of the divisions was not only not arrived at but endeavoured to be excluded, brought forward of late years in the character of an advantage, to reconcile the people to a system of confusion produced by rapacity, working by fraud and usurpation.

    Felicity of Scotch judicature, in being free from this sources of complication, as well as that produced by the distinction between Law and Equity.

    Scotch Court of Exchequer: a judicatory necessary perhaps at the time of its establishment; less necessary, if at all, at present.

    Absurdity and inequity, fraud and hypocrisy - See Duress attached to the distinction between Law and Equity: - the same Judge acting with equal regularity and complacency, in execution[?] of two repugnant rules[?] of action: two repugnant systems of substantive Law: stopping with one of his hands the work he has been doing with another: giving to A at one time, what on a call from B he is predetermined to take back from A at another. Common Law, a weaker sort of law, by which a precarious [...?] is sold at an inferior price: Equity Law, another sort of law, on which, as being stronger, a higher price is put. When, on payment of the Common Law price, the less opulent of two litigants has been put in possession of an article of property, the Judge, titles remaining unchanged, on securing from the Equity price[?], adjudges the property to the more opulent customer, and calls this Equity.
  • Title: [1823. Feb. 27. Greece. J.B's Observations]
    Description: 1823. Feb. 27.

    Greece. J.B's Observations on particular Articles

    Judiciary

    Now as to the plan I would propose for a Judiciary.

    1. The whole territory of the state, say on the present occasion Greece, I would divide into Judicial Districts: the number, of course, not at present determinable: each such Judicial district into Judicial sub-districts, for the demarcation of which, extent of territory and of population should conjunctly be taken into account.

    For the sake of simplicity and uniformity, and for a further reason that will soon be visible, the limits of these several Judicial Districts should be the same as those of the several Election Districts, by each of which, a Member is sent to the Legislative Senate. The limits of the several Judicial Sub-districts, may perhaps be the same with those of the several Election sub-districts, into which it may be convenient that the Election districts be divided, for the purpose of collecting, at so many voting offices, the several parcels of votes, which are from thence to be transferred altogether to the Election district voting office, at which the aggregate number of the votes given in that district are collected, sorted, and counted. Whether, of any of these Judicial Sub-districts, there shall be any ulterior division into sub-sub-districts, must remain to be determined by particular local considerations. For these Judicial districts, the only source of division I should employ, is - the territorial; no such source as that which has so generally been employed, and which may be termed the logical or metaphysical: a source taken from the nature of the Judicial business done: no such division, for example as that between civil and penal suits or causes, or that between civil and ecclesiastical suits or causes between commercial and non-commercial suits or causes: no such division as that under English Law, and thence under the English-bred Law of some of the Anglo-American United States, between Law cases and Equity cases. Reason. From any such principle of division, spring two great evils: one is, needless and useless addition to the number of Judicatories: the other is, in the case of this or that suit or cause, doubt and contestation, to the cognizance of which of two or more Judicatories it appertains. To this general rule, a few exceptions, but to no very considerable extent in the aggregate, will be of necessity suggested by the peculiar circumstances in which some classes of public functionaries find themselves placed.

    For
  • Title: [18 July 1805 Evidence Note]
    Description: 18 July 1805

    Evidence

    Note?

    Introd. Jurisprudential

    Ch. II Vices

    '' Ex post facto

    Equity Jurisdiction

    As to the bounds as between Equity and Common Law of the four magical words, three of which from Lord Coke, Fraud in Lord Coke's time [...?], Trust In Lo Coke's time confidence, and accident, it seems now pretty generally understood but they afford no light at all. As to selecting /indicating/ bounds, where none exist none can be indicated. But as to lights, there are two other words which had they been thought of would have thrown rather more light on the subject than any on of the above four cabbalistic ones. These are - complex causes or in one word complexity, and Jury. Complex causes are peculiarly suitable to the mode of procedure persued in a Court of Equity in contradistinction to a Court of Common Law: and the more so the more complex. why in contra-distinction to a court of Common Law? because except a expected in a few particular cases, a Court of Common Law can give no ultimate decisions without a Jury: and /of a cause which/ when a cause has swelled to a certain degree of complexity, that a Jury should take any rational cognizance of it if they matter physically impossible.

    Why again is it that a Court of Equity is so continually and in some instances so exclusively well adapted /adapted/ to the taking cognizance of the complex causes? Because, the mode of its procedure how bad soever in other respects is such as enables it to take cognizance of the most complex causes. For the different modes of complexity, are ways in which a cause may become complex see the Table of Complexity or Complex Causes.

    To the time which a /set of men acting in the capacity of a Jury are/ Jury is capable of employing about a cause there are limits and these comparatively narrow: to he time which a single Judge, or set of men acting together in the character of professional Judges, are capable of employing about a Cause, there are no such limits. When a cause is in the way of Common Law tried before a Jury the /[...?]/ best evidence, viz: that of the defendant, (and no matter if the only evidence) is carefully excluded. When a cause is tried /carried in/ in a Court of Equity, that same evidence, though not suffered to be extracted in any other than a bad mode, is extracted early in the suit, and is the first that is extracted.