date

2 Jan y 1808 Jurisdiction Table. Table
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.
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  • Title: [2 Jan y 1808 Jurisdiction Table Table]
    Description: 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
  • Title: [26 Oct r 1807 Eldon's Bill]
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    Thus inconsiderable being the benefit which it is in the power of the principle of competition to render to the interests of justice on one hand /side/, on the supposition that the two supposed competing Courts are at liberty each of them to frame for itself its own rules, it remains to form an estimate of the benefit of uniformity, that benefit of which to obtain the benefit of competition it would be necessary to make /give up/ a sacrifice.

    For forming any conception of the value of the benefit of uniformity, there is no other mode /resource //method/ than to look for a case in which the opposite disadvantage has been exemplified. In Scotland the unity of the supreme Court being an effectual bar to every such exemplification, England is the country, Westminster Hall the place from which alone any apposite instruction of this kind can be derived unless the eye were to travel as far as France .

    In Westminster Hall, and all-providing though fantastic[?], besides the radical distinction between /Equity and/ Common Law and Equity by which the Court of Chancery is divided /separated/ from the King's Bench and Common Pleas and the Court of Exchequer from itself, the Court of Chancery as compared with the Equity side of the Exchequer, and the Courts of King's Bench and Common Pleas as compared with one another, and with the Common Law side of the Exchequer afford examples /so many exemplifications/ of the existence of diversiformity and of the prejudice /injury/ resulting from it to the interests of justice. The greater /more extensive/ this diversity, the more extensive the empire /demesne/ /field / of [...?] sincere: and the more extensive that demesne /field/, the more grievous the uncognosibility and uncertainty of the law, with the whole mass of fraud /all the frauds/ and oppression that grow out of it.
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    These cases to the treatment of which this pharmacopoeia of the Common Law (Equity Law) Courts is radically incompetant may be stiled chronical cases. They require the continued action of the operator, during an indefinate length of time.

    Fraud, Trust, Accident constitute the matter of the peculiar jurisdiction of a Court of Equity, observed the first lawyer who bethought himself of a writing a methodical treatise on the business of a Court of Equity. Fraud, trust, accident and so forth has from that time to the present been repeated by each succeeding writer on the same subject.

    Fraud, trust, accident it has in the meantime been discovered constitute who the matter of the jurisdiction of the old Courts that are not Courts of Equity. Since this discovery has been made, no man pretends any longer to know /to be able to conceive/ what it is that constitutes the peculiar business of a Court of Equity in contradistinction to that of a Court of Common Law.