7th. As already suggested, whenever, according to rational law, there is a right neither recognized nor interdicted by the Saxo-Nor-equity accrued-and the second class consists man common law, a court of equity will uphold it, and the judicial discretion of the chancellor is governed by the code of universal reason and natural right, as understood and defined by elementary writers and eminent ju rists. come into court with clean hands-that is, he should be so qualified as to operate justly and must have been fair, just and punctual. 3rd.consistently with the spirit and end of all statThe vigilant only, and not the supine or neg-utory bars--and, therefore, in cases of fraud ligent, are entitled to the consideration of a and mistake, in which there may be either an court of equity. 4th. A court of equity will action at law or a suit in equity, time in equity not enforce a penalty, or forfeiture, or an op- will be computed only from the discovery, and pressive contract. 5th. A court of equity will not, as in a common law action, from the pernot compel a bona fide purchaser to make dis-petration of the fraud. covery, nor permit an infant to be prejudiced Cases of exclusive jurisdiction in equity are, by the negligence of the prochien amy or guar-in respect to the application of the statute, dian ad libem, nor take a bill for confessed of two classes-the first class embracing those against infancy. 6th. For many practical ends, cases in which, if there could be any legal remequity considers that as done which ought to edy, it might be barred by the statute; as, for be done. example, a superior equitable right to land, of which the holder of the legal title had been adversely possessed for 20 years after the of all those cases in which, had there been a legal remedy, it would not have been subject to the operation of the statute; as, for example, an express trust or a mortgage, unaffected by either proof or presumption of an adverse possession in fact. In the first class, the statute 8th. Reciprocity and conscience limit the applies just as it would against a legal remediscretion of a chancellor in affording or with-dy; but in the second class, it may operate holding remedy in cases-especially of concur- and can only operate presumptively. rent jurisdiction-and the rescission and spe- When the only difference is in the form of cific execution of contracts will present appo- remedy, the modern law will apply the statute site illustrations of this kind of equitable dis-of limitations as a presumptory bar to a suit cretion. Thus a court of equity cannot rescind in equity, whenever, on the same facts, it a contract on the single ground of inadequacy, would be so applied to an action in a different unless it be so gross as per se to indicate forum, if such were the remedy for the same fraud-but if the party, who is most to be cause. This is what is called the adoption of benefitted by an unequal executory agree- the statute by analogy. ment, sue for a specific execution of it, the But when the statute would not have apcourt may, on the ground of hardship alone, plied effectually as a bar to a legal, it can nevrefuse to give relief, and remit the complain- er bar an equitable remedy for the same cause ant to his ordinary legal remedy, which, in of suit. This, too, is analogy; and the class of such a case, may be deemed all sufficient for cases most fitly illustrative of this branch of the purposes of justice contemplated by the the modern doctrine, is that of mortgages and spirit of the law. In such a case the chancel-express technical trusts. Let us, for example, lor has no discretion to relieve a party from take the case of a suit to foreclose a mortgage the legal obligation of a contract which was 20 years after the debt became due, the mortvoluntary and uninfected by fraud-and yet he should not use his extraordinary power for enforcing it, when the legal remedy is deemed sufficient for all the ends of full and perfect justice. 9th. When parties are in equali jure, the de-bar-and therefore the same fact cannot so opfendant must prevail-and when equities are equal in quality, the oldest is preferred according to the maxim―qui prior est tempore potior est jure. 10th. Equity not only follows the law, that is, the principles and analogies of the law, but it has also adopted rules partly analogical and partly peculiar respecting the limitation of suits by time. gagor having, all the time, retained the possession of the mortgaged land. If an action of ejectment, to place the mortgagee in possession, had been brought, the lapse of 20 years would not have operated per se as a statutory erate in the suit of equity to foreclose. But in both cases-and in each equally and aliketime would operate as a presumptive bar. The reason why time would not, in either case, operate as a statutory bar, is because the possession, in its origin, was under the mortgage, and therefore amicable, and not adverse, unless proved to have become so in fact-and such proof may result from an ostensible possession in fact, in the character of owner, and not as mortgagor, or from a presumption of law arising from the lapse of 20 years unexplained. But such a presumption does nat operate inflexibly, like the statute, which can be eluded only by proving some exception provided for in its saving clause-but may be repelled and defeated by proof of any fact inconsistent with No statute of limitation, being, in terms, applicable to suits in equity, no statutory limitation can apply proprio vigore to courts of equity. But those courts have, upon a principle of analogy, voluntarily adopted the statute of limitations in all cases of concurrent jurisdiction, and apply it in such cases, excepting in those of fraud and mistake, precisely as it applies to the concurrent remedy in courts the legal presumption. of law. But as, in such cases, it was adopted The lapse of 20 years is now the fixed perivoluntarily, it was but reasonable that it od of prima facie legal presumption, in all com mon law remedies, whatever may be the form eral sketch of the history and principles of of remedy or mode of relief. And, therefore, equity in England. It exists and is practised in an action on a bond which had been due in most of the States of our Union substanmore than 20 years, though the defendant, tially as in England, whence, at different could not here availably plead any statute of times, and with various modifications, it has limitations-nevertheless, if he plead pay- been adopted here. No court had chancery ment, the court will instruct the jury that the powers in Virginia prior to 1700-nor in New lapse of 20 years unexplained is presumptive York prior to 1701. And equity, administered proof of payment, and that, in the absence of in some of the states by distinct courts, and in any countervailing fact, they should find for the others by courts, like that of the Exchequer in defendant. England, combining both legal and equitable But proof of a partial payment, or of ac-powers-was not matured into a well defined knowledgment of the debt, or of inability of system in any of the United States sooner than defendant to have paid, within the 20 years, about the close of the last century. But being may be sufficient to repel the legal presump now established on principles of universal tion, and entitle the plaintiff to recover. reason and justice, which are infinite and eterSo, in a suit to foreclose a mortgage, if the nal, and as expansive as the destiny of man, mortgagor plead payment or release, a con- it will progressively improve and be improved, tinued possession by him for 20 years after and assimilate and be assimilated, until there the debt became due, would, unexplained, be shall be but one law, in name, in substance presumptive proof of the payment or release, aud in practice and especially in this our and the law would then also presume that his land of intellectual independence, where the possession had, from the time payment was science of jurisprudence, as well as every due, been in his own right, and not as mort-branch of practical knowledge, may find its gagor. But, as in the suit on a bond, proof by the mortgagee of any fact inconsistent with these legal presumptions, might be sufficient to repel them, and entitle him to a decree. The same principle applies to every suit in equity, by a beneficiary against his trustee, who had been in possession more than twenty years. most congenial soil and vivifying snn, and where the coming generation may achieve and enjoy the noblest of the many moral triumphs of our race. The vexatious delays and uncertainty to which litigants are generally subjected in courts of chancery, are not ascribable to any defectiveness in the principles or peculiarity But in all such cases, proof of adverse pos- in the doctrines of equity, but result altogether session in fact, openly and ostensibly held from the unsuitable organization of most of for 20 years, would make the time operate as a those courts, and the loose practice which genstatutory, and not merely as a presumptive erally characterizes them. And whatever may bar, however tortious such conversion and be the excellence of theoretic equity, practical usurpation or breach of trust may have been; equity must ever be liable to just criticism for in every such case, the, party wronged without some essential improvement in organihad a known cause of suit, and from the mo-zation. As long as our Circuit Courts in Kenment of its accrual the statute commenced tucky shall continue to exercise, by distinct running; and the possession being adverse, and the only difference being in the form of suit, analogy applies the limitation in equity just as it would have applied as a bar to a legal remedy, had any such been appropriate. remedies, the powers of Judges both of equity and strict common law, suits in chancery will be protracted, neglected, defectively prepared, and of course, often and almost always erroneously decided. Nevertheless, with all our pracWe may now see how material the dif- tical defects, which could be easily remediedference is between a statutory and a presump- equity is, in many respects, even here emitive bar, and how indiscriminating and delu- nently useful; and we cannot doubt the day is sive are those dicta which suggest that, as be-not far distant when, by proper reform in its tween mortgagor and mortgagee, the posses-administration, it will be made in practice sion by either of these for 20 years operates as what it is in principle-the most just, efficient a statutery bar against the other. and rational branch of the common law. But still, as policy and uniformity require It will appear from the foregoing sketch of a that even in such cases there should be some mere outline of equity, that it is law and jus fixed rule of prescriptive limitation, courts of tice in a peculiar and rational sense-law in its equity have, in imitation of the statutory limi-spirit, and justice in its essence-not the sumtation to the right of entry, adopted 20 years as mum jus of the letter of the law, which, like the period of legal presumpiton against a dor-that of the gospel, killeth, and which theremant equity; but which period, unlike the fore is often summa injuria, but that regulated period adopted in cases of concurrent remedy, and enlightened justice which is the basis of does not, in such a case, operate inflexibly as all happiness, and which, therefore Cicero in a statutory bar, but only presumptively; and his offices, declared to the "omnium dominajet therefore any fact that will rebut the arbitrary regina virtutum," "the mistress and queen of presumption thus arising from the lapse of 20 all the virtues. And it will be seen also that years, in a case of the second class, exclusively equity is not now what it once was in the days cognizable by a court of equity, will be suffi- of Aristotle, of Papinian, of Grotius, or even cient to defeat the prima facie bar to the suit. of Bacon-the personal "discretion of a good The foregoing is a very imperfect and gen-man" or the correctrix of that in which the law, in consequence of its universality, is de- the enjoyment of property and of mental indefective"--but that it is more nearly what pendence. Blackstone defined it to be, "the soul and spir- But we must not forget that equity--vast it of all law," and by which "positive law is and useful as it must be admitted to be-is construed, and rational law is made." And, only one of the many streamlets that contrimoreover, it will become manifest that equity, bute to the shoreless reservoir of universal as now practised in England and in these law. Even equity, and the more technical and states, has never been exactly defined by any ancient common law combined are, to the great publicist or jurist, and is not, even now, easi- ocean of all law, but like our noble rivers, ly defined, though it may be well understood." Mississippi and Missouri, whose commingled It may be here also perceived how-through distinguishable, are destined to a more perfect volumes-limpid and turbid-though long the principles of her civil code, blended with union and identity in the continued flow of the common law by courts of equity-fallen Rome will continue to maintain by her reason,tributions to the bosom of the great deep. one majestic stream bearing its beneficent conan extensive and indestructible empire for And thus it is evident that, wherever the countless ages after the destruction of all the Anglo-Saxon tongue is spoken, modern Engother and more pretending monuments of her lish equity is among the most useful of the elerepublican glory, or imperial power and mag-ments of that copious system of civil jurisprudence, which is the rule of civic right and duNor can it escape observation that-with ty-the mother of all other arts and sciencesthe exception only of the christian religion-the upholder of order and liberty-the conserequity is the best friend that woman has, or vator of peace-the creator and preserver of all ever had. It does not, like the gothic common the social relations-the guardian angel of the law, destroy the separate legal existence of the most endearing charities of domestic life-the wife by merging it in that of her husband-tutelar divinity that guards infancy, weaknor make coverture a state of vassalage-nor,ness, and innocence-and without the proteceven like the civil law, give to wives incon-tion of whose strong panoply this earth would sistent rights and injurious authority--but it be a wilderness, our whole race savages, and will, to a just and rational extent, protect mar- our moral world itself a cheerless, trackless, ried women in their personal identity, and in hopeless waste. nificence. PRELECTION. Lexington, Nov. 27th, 1838. Sir--We, the undersigned, having been appointed by the Law Class of Transylvania University, a committee to wait upon your honor, respectfully request a copy of your Introductory Lecture for publication, believing it to be a just and able eulogy on the life and public services of the late Hon. John Boyle. Respectfully, your ob't servants, WILLIAM T. BARBOUR, HON. GEORGE ROBERTSON, Committee. Lexington, Nov. 28th, 1838. Gentlemen-Thanking you and the Law Class for your kind sentiments, I commit to your discretion and disposal the Introductory Lecture, a copy of which you have requested for publication. Yours, respectfully, RTSO G. ROBERTSON. Messrs. Barbour, Carradine, Robards, Singleton. ADDRESS. tive models of the virtues which made them and our country great, and which alone will ever ennoble and bless the nations and countries of the earth. It is the sacred duty of every generation to Jenlightened liberty that the lives of the virtupreserve faithful memorials of the characterous great who have lived and are buried in our and conduct of its distinguished men. The own America, would exhibit the most attracmemory of the illustrious dead should never be lost in the oblivion of time. Biography is the soul of history. The maxims and motives and destinies of prominent men, as exemplified, from age to age, in the moral drama of our race, constitute the elements of historic philosophy, and impart to the annals of mankind their only practical utility. When, and only when, illustrated by the life of an eminent man, virtue or vice, knowledge or ignorance, thus personified, is seen and felt as the efficient lever of the moral world. The lives of conspicuous men help to characterise their day and country, and, like sign boards on the high-ways and the bye-ways through the wilderness of human affairs, tell the bewildered pilgrim where he is going, what way he should go, and the weal or the woe of his journey's end. Here, with trembling hand, the gifted Burns Points to the ruin and despair which lie in ambush on the broad and voluptuous turnpike on which his noble genius was driven to destruction-here sits the cold bust of the captive Napoleon, scowling on the iron railway, where the steam-car of unrighteous ambition, exploding with a tremendous crash, shivered all his gigantic hopes and projects of power-and here, too, stands the god-like statue of our Washington, consecrating the straight and narrow pathway of virtue, which leads the honest man to everlasting happiness, and the pure patriot to immortal renown-and here, every where, we see exemplifications of the vanity of worldly riches, the wretchedness of selfish ambition, the usefulness of industry, and charity, and self-denial, and blissfullness of cultivated faculties, and of moderation in all our desires and enjoyments. The lessons, thus only to be usefully taught, are practical truths echoed from the tombs of buried generations in the mother tongue of all mankind. The Anglo-American Heroes and Statesmen, from the Pilgrim Band of Plymoth Rock to that more illustrious group signalized in our memorable revolution, stand out in bold relief on the column of history; and the humbler, but not less noble pioneers and hunters of Kentucky, and the primitive founders of the great social fabric of this blooming valley of the West, have left behind them monuments more enduring than storied urns or animated busts. But the personal history of most of these nobles of their race is yet told only by the tongue of tradition. And the story of the deeds of many of them is, even now among ourselves, listened to as romance. Our own favored Commonwealth, though young in years, is venerable in deeds. Kentucky has been the theater of marvelous events and of distinguished talents. Though not more than 68 years have run since the first track of civilization was made in her dark and bloody wilderness, yet she has already had her age of chivalry, her age of reason and religion, liberty and law. She has her battle-fields as memorable, and almost as eventful as those of Marathon or Waterlooand she has had heroes, orators, jurists and lawgivers who would have been conspicuous in any age or country. But neither biography nor general history has done justice to their memories. Most of that class of them, whose lives were peaceful and whose triumphs were merely civic, have been permitted to slumber under our feet without either recorded eulogy or biographic memorial. The memory of the Nicholases, the Breckinridges, the Browns, and the Murrays, the Allans and the Hugheses, the Talbotts and the Bledsoes, the Daviesses and the Hardins, the McKees and the Andersons, the Todds, the Trimbles and the Boyles, of whom, in their day, Kentucky was justly proud, should not longer remain thus unhonored and unsung. Influenced by a strong sense of personal and public obligation, we will now attempt to sketch a brief outline of one of these our depar Greece, and Rome, and France, and England, have honored their dead and contributed to the stock of useful knowledge among men by graphic memoirs of their conspicuous Philosophers, Heroes, Statesmen, and Bards. And Plutarch's parallel Biographies of Greeks and Romans, and Johnson's Lives of the British Poets-scholastic as the one, and garrulous asted great. the other must be admitted to be-are among Among the honored names of Kentucky, the most valuable of the repositories of practi-John Boyle, once Chief Justice of the State, is cal wisdom. deservedly conspicuous. Modest and unpreBut it is in our age of rectified reason and Itending, his sterling merit alone elevated him |