will be honored, and charlatanism and vice but is the only means of ensuring it, as well as other and more desirable ends of human power and true human glory.

and gaming, and tippling and swearing, and
other fashionable vices, is only a partial illus-
tration of the ancient maxim-leges moribus
servient "the laws give way to manners."

And we

Fundamental, as well as other laws, yield to Our fundamental institutions are excellent -but they are not perfect-they have most of the more supreme law of public taste and pubthe elements of prolonged existence-but they lic sentiment. And, whilst the organic and are not indistructible. They will totter with municipal laws exist in name, they are dead in the decay, and must perish with the extinction practical power, when public virtue fails. of the public virtues which gave them birth, The laws have but little efficacy, unless they and have, in a manner, hitherto upheld them; are honestly and effectually administered. and they will be entombed in the same mau- And even in our own much favored country, soleum of departed glory and buried liberty. under the guardianship of our excellent ConIt is right and rational to love our country stitutions, we know that, sometimes the ambiand revere her institutions. But let not idol- tion of selfish demagogues, and the blind enatry usurp the throne of reason, nor a Narcis-thusiasm of misguided party spirit, and an sian fondness for form, tempt to blind delusion idolatrous devotion to distinguished names, or self-destruction. Such unreflecting enthu-have prevailed over the principles of supreme siasm is finely satyrized by Lucian, when he law, and furnished cause for much distrust, represents Plato as a voluntary exile from apprehension and despondence. Elysium for the ideal purpose of living in his ought to know, also, that here, as elsewhere, Utopian Republic-and such visionary abstrac- and in our own day, as in ancient times, there tions as those of Plato have built up and pulled is not always more than one Brutus in a whole down all the popular governments of the old tribe of "liberty men," who destroy a Cæsar Our Republic is for his ambition; and that the vaunted patriotand monumental world. more rational and solid-because, unlike all ism of contending parties, struggling as for the that had preceded its establishment, it is the palladium of the citadel, is sometimes nothing fruit of experience in the affairs of men, loftier or better than, the aggrandizement of a and is, therefore, adapted to the character and few aspiring men, whose great solicitude is, condition of the people and the nascent spirit not as to "how the government shall be adminof the age. But, depending for its ultimate istered, but (only as to) who shall administer And we cannot have forgotten, that destiny, on the popular breath, it must sink it." with the decay of public virtue, as certainly as Walpole has not been the only minister who manners have always governed, and will ever was ever put down by a selfish coalition, in govern laws. The history of all nations and ages the abused name of disinterested patriotism; of the world echoes the sentiment of Horace, and that Pultney, and Cartaret, and Newcastle, Quid leges sine moribus vane proficient!—and have not been the only leaders of parties, who, proves beyond question that, without proper when they triumphed over the antagonistparty education and moral principles and habits, all-out-Walpoled Walpole himself. The causes of these things may be found the pomp and circumstance of the most magAnd nificent civil and ecclesiastical establishments, in the credulity, ignorance and passions of deluded and degraded people. and all the laws, however numerous and good, a which legislative wisdom could enact, will be wherever these popular elements exist, deinsufficient for preserving order and maintaining magogues, and not honest patriots, will rule; justice among men. Montesquieu announced and selfishness, and passion, and party, & self-evident truth when he said that "the and not justice or the Constitution, will laws of education are the first we receive, and prevail in the administration of the Governshould have respect to the principle and spirit ment. of the government we live under." And we need not look to China or Confucius, or to Sparta, or to Lycurgus for an exemplification -we may find it in every age of the civilized world. Plautus and others complained that, at Rome, manners prevailed over the laws The only ultimate security against such long before the destruction of the commonwealth, which fell in the struggle between mal-administration or final destruction of our Cæsar and Pompey for the prize of empire;-own National Government, is the prevailing and it was not Casar, but the degeneracy of virtue and intelligence of the body of our a self-confident, luxurious, and flattered pop- freemen. Let them possess pure patriotism, ulace that brought the Roman Republic to its and public virtue, and sufficient intelligence to fatal end. We read in Tacitus that-"good enable them to think rightly for themselves, manners did more with the Germans than good and they will be sure to act for themselves, laws in other countries;" and in Lord Bacon, as it is their interest that they should act. that "it is an old complaint that Governments And then the Federal Constitution will be have been too "attentive to laws while they strong enough to protect the humble, the poor, have neglected the business of education." and the persecuted; then talents and virtue

This is bad enough, even if the forms of governments shall be preserved; and it is as certain as it is bad. But it cannot long continue without a Nero, who, throwing aside the mask of a more dissembling Augustus, will trample under his idolized feet, even the long insulted forms of free institutions.

The impotency of the laws against chivalry, will be rebuked and degraded; then innocence ean sleep in safety, conscience can feel secure, the tongue may utter what it has to say, and all honest and virtuous men may look to the Constitution of the land as the supreme law indeed, and feel assured that all their rights may be left with confidence to the protection of its broad panoply. But, without proper and general moral culture, this Constitution, perfect as it is, and asmuch as it cost, must fail, and the best hope ofChristian man must thus be lost.

ever been, and will always be secretly opposed to the dissemination, among the common people, of the ennobling light of true knowledge and personal independence. Honest and disinterested patriots and philanthropists alone, are sincerely desirous of the diffusion of universal moral light, and practical equality and independence.

Protestantism and popular instruction were coeval; and, as twin-sisters, they have gone together, and co-operated in the cause of human liberty and happiness. And all history proves, that no people can be free or happy, Liberty and security can be assured only by unless the great body be enlightened and imthe integrity and supremacy of the Consti-proved by proper education and disciplinetution and of constitutional laws. Rousseau moral, physical, RELIGIOUS and POLITInever uttered a more obvious and important CAL. This will be the only effectual antitruth than when he said-"A Republic is a dote against the pestilent aristocracy of sinisGovernment of Laws, not of demagogues or ter patronage; which, official and unofficial, is monsters." And; the following admirable de- the great canker of our institutions. fintion of a virtuous democracy, by Thucydides, Let no true lover of his country's glory or though theoretically true, has never been long the happiness of his race doubt that their only exemplified on earth, and never will be, until true safeguard is the virtue and intelligence the mass of the people shall be, what they of the mass of the people. It is the first duty, ought to be, honest, patriotic, and enlightened as it is the highest interest, of the common"it (a democracy) is a government that hath wealth, to provide all necessary and proper no respect to the few, but to the many-means for educating, or for compelling parents wherein, though there be an equality amongst to educate, in a suitable manner, every child all men with respect to their private contro- of the commonwealth, so far as to establish versies, yet, in conferring dignities, one man right habits and principles, and impart compeis preferred to another, not according to the tent knowledge of whatever-civil, moral, or reputation of his power, but of his virtue; and physical-freemen ought to know, in order to is not put back through the poverty or obscu-enjoy as they ought and might, the comforts rity of his person, as long as he can do service and blessings of rational nature, and to preto Commonwealth;-in which all are obedient serve, as they should and may, their civil to the laws, and living not only free in the ad-liberties and political rights; and, more essenministration of them, but also with one another tially, a proper opportunity should be afforded -void of jealousy in their ordinary intercourse to every citizen, howeve, poor or friendless, for -not offended at any man for following his own humor, nor casting on any, censure or sour looks-they converse freely with one another without fear of offence, fearing only to transgress against the public."

Such a society and such a government, presuppose the prevalence of true knowledge, and of private and public virtue approximating ane qualization of intellectual and moral power. As long as public opinion controls the laws, and whenever the moral condition of the mass of our free population is such as to enable a favored and selfish few to create or give tone to that opinion, there can be no constitutional or legal security; public functionaries will not be selected for their merit, but for their obsequiousness and destitution of principle; vulgar partyism, altogether personal, will prevail; public trusts will be prostituted to personal aggrandizement; public agents instead of being controlled by, will control public opinion; and the offices and public property of the people will be considered as spoils by the dominant party; and yet all will be done in the abused name and under the easy pretence of mock patriotism and democracy.

Kings, and Priests, and Demagogues, and all men of selfish and sinister ambition have

acquiring an accurate knowledge of his political rights and obligations. Such moral discipline is possible, and might be made universal and successful, by a provident, enlightened and determined public authority and patronage. And the first civil duty of every free State is, to effect such an object, as far as it may be possible, by the liberal, fearless, and persevering application of the proper and requisite means. And then it would be free indeedthen its institutions and laws would be effectual; and then its citizens might, with some truth, be called freemen, and not, as many must be, without efficient legislation on the subject of popular instruction, slaves to passion and ignorance, and blind puppets in the hands of the more wealthy and enlightened few, who must govern them absolutely-and then the people would become more rational, and less sensual, more moral, more industrious, more happy, and much more honored and powerful, as well as more intelligent and virtuous.

Without the aid of public authority and munificence an effectual system for diffusing, in a proper manner and to a proper extent, the useful elements of a popular instruction, can never exist; and, without such a system practically and universally enforced, these States will

never do justice to the people or their institu-may at last be solaced with an assurance that tions. Everything else is comparatively worthless; this, alone, will be everything; and, without it, nothing else will avail or be secure.

INTRODUCTORY ADDRESS

ON THE
THE HISTORY AND NATURE OF EQUITY.

[Delivered before the Law Class of Transylvania, November 1837.]

WER We, in either the subject or the manner, of this initial address, to consult your taste instead of your reason, it would not be, as we have determined that it shall be, an appropriate precursor to the didatic course of the coming winter.

You have come here to learn, and it is my business to try to teach-from the beginning to the end of the session-the rudiments of the most indispensable and comprehensive of all the departments of human science. Law, natural and civil, elementary and practical, is not only multiform, but illimitable-embracing and upholding all that is most interesting to individual and to social man, upon earth.

with the certainty and stability of a known and established code of law, it has, at last, been matured by the enlightened reason of many consecutive generations into a beautiful system of jurisprudence, regulated by principles of rational law, corresponding with the genius of our civil institutions. And now no branch of American jurisprudence is more elementary, and, excepting our organic laws, none is more useful in practice, than that denominated equity. Still, lawyers and judges are generally less acquainted with it than with any other branch of elementary, or practical law; and even some of these seem yet to consider it as an indefinable something, above positive law, and as uncertain as popular or

And therefore, as our aim is utility rather than show-naked truth rather than fantas-personal conscience. tic drapery-it is my present purpose to make a few very plain and general suggestions concerning one of the branches of civil jurisprudence; a topic which cannot be made both useful to the student and alluring to miscellaneous auditors. Our subject, being one of dry, deep, and complicated law, appeals to the sober and discerning intelligence of the understanding, scorns all the embellishments of poetry, and needs none of the graces of rhetoric.

That code of unwritten reason called "the common law" established in England and adopted, with various modifications, by all except one of our North American States, is divided into two primordial departments distinguished by the incongruous titles "LAW" and EQUITY." To exhibit an intelligible outline of the nature, origin, and history of the latter is the purpose of this preliminary dis

Although law and equity are generally contradistinguished, the one from the other, yet, when considered with proper precision, they are essentially identical in principle. Equity is law-otherwise it would be inconsistent with that certainty and security in the admin. istration of civil affairs which the supremacy of laws can alone ensure. Equity is justice too; but it is justice in a peculiar and technical sense; not variable, like the changing sentiments of the chancellor or the multitude, but as constant as the fixed and rational principles of civil right and civil law. In a judicial sense that cannot be equitable which is inconsistent with the law of the land. In the proper sense, a court of equity can neither make nor abrogate any rule of law; nor enforce what the law forbids; nor relieve from that which the law enjoins; nor decide otherwise than according to the principle and spirit of established Though its peculiar title is inappropriate law; nor interpret a contract or a statute so as and delusive, and many persons, therefore, to give to either an import different from that yet erroneously look upon it either as arbitrary which should be ascribed to it by any other and indeterminate, or as synonomous with judicial tribunal-the intention of the conmoral justice, nevertheless, Equity is as consis-tracting parties is their contract, and the intent, as well defined, and as scientific as any other portion of the common law. It was, in its rude and remote origin, as arbitrary and capricious as the unregulated discretion of a king or of his arrogant chancellor. But, though, for some succeeding ages and even as late as the days of Lord Chancellor Bacon, it was still immature and altogether inconsistant |

co urse.

tention of the Legislature is the law in every forum, and should, in all, be sought and determined according to the same principles and tests. In all these particulars, and in every essential respect, equity is law, and law is equity; and each, therefore, is justice according to the principles of civil right and obligation. Equity is but the philosophy of law-the

207

spirit and end of the law; and it may there- the legal right, or against whom there is a legal
fore be, not inaptly, defined to be rectified law demand, can be made parties; and generally,
administered in England by the lord chancel- but one cause of action can be litigated in one
lor, one of the king's ministers, and by subor- suit; but a court of equity, anxious to prevent
dinate courts of chancery, and in the most of multiplicity and to make its decrees conclusive
the states of the N. American Union by courts as to all matters, in any degree connected, and
of equity, in peculiar modes better adapted between all persons equitably interested there-
to the ends of perfect justice than the technical in, either immediately or consequentially, and
and imperfect remedies but too strictly adhered who may be anywise affected, will not only
to in those ordinary tribunals called "common
law courts.".

permit, but will require all subjects of controversy thus connected to be united in one suit, With the exception of a very few anomalies, and all persons thus interested or who may be the only difference between law and equity is, thns affected by its decree to be made co-parnot in the principle or rule or right, but in the ties, or antagonists parties; and it is not materemedy merely-and is, therefore, chiefly modal rial, if there be opposing parties, complaining -and this remedial difference is threefold--and defending, whether those interested on the that is: 1st. In the mode of suit. 2d. In the mode of proof and of trial; and, 3d. and principally, in the mode of relief. 1. An action in "a common law court" is brought by a writ and In all those distinctive particulars, courts of declaration of a prescribed form; the actor is called plaintiff, and a perilous and vexatious equity possess an eminent advantage over technicality is observed. A suit in equity is those of strict common law jurisdiction; for instituted by a summons and a bill in the style example; 1st. One suit in equity may effect of a petition adapted to the facts of the case the same end, which several actions at law and uninfluenced by form or technicality, and might not, as certainly and cheaply, attain. the complaining party is called the complain- 2nd. As there is no technicality in the pleadant. 2d. In an action in a "court of law," the ing in equity, justice is not liable to be vexed, proof is generally oral by witnesses in court, retarded, or frustrated by cobweb forms in and the defendant cannot be compelled to suits in chancery, as is but too often the case make any disclosure against himself; in a suit in common law actions. 3rd. The parties in equity, the proof is documentary; consist- having a right in equity to mutual discoveries ing 1st, of the answer of the defendant, who upon oath, may thus establish important facts may always, excepting in a few peculiar cases, which could not always be shown in legal acbe compelled to respond upon oath to all the tions. 4th. The depositions of witnesses may material allegation of the bill; an efficient pro- be taken in suits in equity, when in consecedure adopted from the modern or Justinane-quence of their remote residence, their persoan civil law, and also from the ecclesiastical nal attendance in other courts could not be courts, which appeal to the conscience of the procured. 5th. The modes of proceeding in parties litigant; and 2d, by depositions in writ- equity may secure an economy, and a certainty ing, which may be taken by a commission or and security, which might be, elsewhere, unatdedimus potestatum, beyond the jurisdiction of tainable. 6th. An enlightened and impartial the court where a common law tribunal would judge is more apt to make proper deductions have no authority to summons a witness; and from facts than an ordinary jury, and if a the trial in courts of equity, in imitation of judge, sitting in equity, desire an inquisition trials before the Roman Prætor and the courts he can have it for the purpose of informing Christian, is generally by the court without and aiding him in doubtful questions of fact; the intervention of a jury; and 3rd, the relief but once having jurisdiction, he will not remit in equity, unlike that given by a judgment of a a case to a common law tribunal for trial, and common law court in a prescribed or an unva- is never required to impannel a jury except in a rying form, whatever may be the character of few cases, in which some statute directs it; as, the case, is by a decretal order called a decree, for example, where there is an issue of devisaeither interlocutory or final, giving a full and vit vel non. And certainly there is, at this day, appropriate measure of justice according to and in this country, no peculiar value in the the circumstances of the case, and effectuating trial by jury except in criminal cases, and in the purpose for which all judicial remedy is those, perhaps, of tort; in none of which, has given; and which, not unfrequently, could not a court of equity, jurisdiction. 7th. But the be done by a court which is restricted to one most obvious and eminent advantage resulting simple mode of relief prescribed for and pecu- from proceeding in a court of equity arises liar to each form of common law suit. A court from the power to adapt the relief to the exiof equity, moreover, may enforce its decrees gencies of the case. Thus, for example, whilst and orders, in its own way, and according to for a breach of contract, a court of common its own discretion, by attachment or otherwise; law can only adjudge damages often inadebut a court of law can enforce its judgments quate, a court of equity may compel a specific by execution only. And, as to parties and execution; and whilst for fraud, damages only subjects of controversy, there is also an impor- can be adjudged in a common law action, a tant difference between suits in courts of equity rescission of the contract, and a restoration of and actions in courts of common law. In a property, and a reinstatement of the parties common law action, none but those who have in statu quo, may be decreed by a court of