small portion of the business of such a court to grant injunctions upon judgments obtained at law. This is a delicate duty, and should be entrusted to an independent court, which has as yet received no impressions of the cause, and to whom its previous merits are unknown.

We might suggest many other reasons, but we have not time for an ample discussion of such a subject. There is one objection, however, which we have heard repeatedly urged against these suggestions, which requires some answer. It is stated, that the courts of the United States are examples of the union of the powers of courts of law and equity, and that hitherto no inconvenience has been felt from this circumstance. Without stopping to inquire into the accuracy of this statement, we may be permitted to suggest, that there are some distinctions in reference to those courts, which deserve consideration. In the first place, those courts exercise but a limited jurisdiction in equity cases. This arises, not from any restriction of their powers upon the subject-matter, but from the qualified nature of their authority over persons. They can, in general, take cognizance of suits in equity, only where the United States, or aliens, or citizens of other states, are parties. Now it must be obvious, that the great mass of equity suits, in every state, must consist of controversies between citizens and inhabitants of that state; and that local laws will greatly swell that mass. Where there are few cases, a court either of law or equity may transact the whole business, without any serious inconvenience. But it is far otherwise, where suits mix up with all the concerns of society, and may have an indefinite multiplication. Besides, there is, or at least seems to be, under the constitution of the United States, an inherent difficulty in separating the supreme jurisdiction at law from that in equity. And precisely the same difficulty exists in the constitution of this state, and most urgently requires to be removed by an amendment. We hope, that this subject will not escape the attention of the convention, which may be called to amend the constitution, whether it be thought best to create, or not to create, a court of equity, at the present time. If ever such a court be created, it should be capable of having a distinct and independent existence given to it. But to return. Another circumstance as to the courts of the United States is, that, in six out of the seven circuits, state courts of equity have an existence, either connected with the courts of law, or with an independent organization. So that the learned judges have the fullest opportunities of becom

ing familiarly acquainted with the practice and principles of equity through their whole professional career; and, thus, may readily transfer into the circuit courts the local practice of the states within their circuits. Such is not the case, in general, in New England. These are considerations, which, in a combined view, ought very much to abate the strength of the objection, raised from the example of the judicial legislation of Congress on this subject.

In the next place, if a court of equity is to be established, and appeals are to be allowed from its decrees, those appeals ought not to be to any court of law, but to a distinct tribunal created for the purpose. From causes, which will readily suggest themselves to every juridical mind, and to which we have, in some measure, already alluded, a court of law, as such, cannot be presumed to be thoroughly conversant with the doctrines and practice of equity. And, if it be entrusted with a superintendence over that subject, it must happen, that decrees will often be reversed without sufficient reasons, and the court of equity sink from its natural elevation to the level of the inferior courts in the state; and that the personal character of the Chancellor will settle the authority of decisions, and thus open the path to personal influence and judicial jealousies; or that the decrees will be affirmed without much consideration, leaving to the court of appeals little more effective power than that of registering the decrees. We are among those, who believe, that the existence of rival coördinate courts has the most salutary influence upon all judicial proceedings. They act as checks and balances to each other; and, if their judgments are to be reviewed, it should be by a tribunal of a distinct organization, common, if you please, to both, but sufficient in independence and dignity to prevent any undue ascendancy by either. England owes much of the perfection of her jurisprudence to this striking feature in the structure of her government. She has rival tribunals of law and equity, where the pride and learning of the profession and the bench are stimulated to the noblest purposes, the advancement of justice, and the redress of injuries, by that perpetual watchfulness, which keen intelligence and sincere devotion to the law never fail to stir up in ambitious minds.

While on this subject, we are disposed to recall the public attention to a Report made to the legislature of Massachusetts, and printed by its order, in the year 1808, recommending the establishment of an independent court of equity. We dare say this document is totally forgotten, as most of our unsuccessful legislative proceedings

are, by the public at large, and perhaps by most of the committee, who reported it. It has been consigned, as most other statepapers are, to some dark and obscure corner of some lumber-loft in the State House, there to await the dissolution of their mortal remains by the gradual operation of time, and moulds, and vermin, "unwept, unhonored, and unsung." Would it not be for the reputation and dignity of our state government, if, instead of leaving our public legislative documents to perish, some pains and some money were employed to preserve a number of copies bound and lettered in the state archives, that posterity may know the progress of our legislation, and find some public indexes to those subjects, which interested the public mind, and gave a new direction to public inquiry? We doubt, whether there exists, in the whole Commonwealth, at this moment, a single regular series of the reports, bills, and other proceedings of our legislature, which have been printed at the expense of the government, even within the last twenty years. Surely, this is a most wanton indifference to our public concerns; and it will be regretted, deeply regretted, when it can no longer be within the reach of common diligence to collect them. It should be made the special duty of our Secretary of State, to have bound, and kept in his office, at least twenty copies of all documents printed by order of the legislature; and to have a transcript in bound volumes of all manuscript proceedings, reports, bills, &c., acted upon in any shape, by the legislature at every session, with a suitable index for reference. In this way next generation would not be in utter and irretrievable ignorance of our domestic legislative history, full of instruction, as it must be, both as to what we ought to avoid, and what we ought to cherish.

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But to return to the Report,* to which we have alluded, and which we accidentally found in searching our papers for another purpose. It contains a summary of the practice and principles of courts of equity, in some of the points most applicable to our jurisprudence. Since the period, in which it was made, the legislature has by law cured some of the defects enumerated in the Report; but the substance of it is just as true now, as it was at that time. We transcribe from it the following paragraphs, which we commend to the careful perusal of our statesmen and jurists.

*This Report was made by a committee, of which the writer of this article was chairman.

"Courts of equity, as contradistinguished from courts of law, have jurisdiction in cases, where the latter, from their manner of proceeding, either cannot decide at all upon the subject, or cannot decide conformably with the principles of substantial justice. Whenever a complete, certain, and adequate remedy exists at law, courts of equity have generally no jurisdiction. Their peculiar province is to supply the defects of law in cases of frauds, accidents, mistakes, or TRUSTS. In cases of fraud, where an instrument is fraudulently suppressed, or withheld from the party claiming under it; where an unconscientious advantage has been taken of the situation of a party; where a beneficial property is injuriously misappropriated; equity interferes, and compels complete restitution. In cases of accident, or mistake, where a contract has been made respecting real or personal estate, and by reason of death cannot be completed; or where, by subsequent events, a strict performance has become impossible; where, in consequence of a defective instrument, the intention of the parties is in danger of being defeated; or where a want of specific performance cannot be compensated in damages; equity administers the proper and effectual relief. In cases of trust, where real or personal estate, by deed, will, or otherwise, is confided to one person for the benefit of another; where creditors are improperly preferred or excluded; where numerous or discordant interests are created in the same subject-matter; where testamentary dispositions, for want of a proper trustee, are not fulfilled; and where fiduciary estates are, by connivance or obstinacy, directed to partial or unjust purposes; equity applies the principles of conscience, and enforces the express or implied trusts according to good faith.

"Sometimes, by fraud or accident, a party has an advantage in proceeding in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice, if the suit be suffered; and equity, to prevent such a manifest wrong, will interpose, and restrain the party from using his unfair advantage. Sometimes one party holds completely at his mercy the rights of añother, because there is no witness to the transaction, or it lies in the privity of an adverse interest; equity, in such cases, will compel a discovery of the facts, and measure substantial justice to all. Sometimes the administration of justice is obstructed, by certain impediments to a fair decision of the case in a court of law; equity, in such cases, as auxiliary to the law, removes the impediments. Sometimes property is in danger of being lost or

injured, pending a litigation; equity there interposes to preserve it. Sometimes oppressive and vexatious suits are wantonly pursued, and repeated by litigious parties; for the preservation of peace and of justice, equity imposes, in such cases, an injunction of forbearance.

"These are a few only of the numerous cases, in which universal justice requires a more effectual remedy than the courts of common law can give. In proportion as our commerce and manufactures flourish, and our population increases, subjects of this nature must constantly accumulate; and, unless the legislature interpose, dishonest and obstinate men may evade the law, and intrench themselves within its forms in security. One or two striking instances, applicable to our present situation, will illustrate these positions. In this Commonwealth, no adequate remedy exists at law to unravel long and intricate accounts between merchants in general; and between partners the remedy is still less efficacious to adjust the partnership accounts. A refractory or fraudulent partner may seize the books, papers, and effects of the firm, and cannot by any process be compelled to disclose or produce them. In many instances, therefore, neither debts can be recovered, nor accounts be adjusted by them, unless both parties are equally honest, and equally willing. Great evils have already arisen from this cause; and still greater must arise, unless equity be brought in aid of law. In cases of pecuniary and specific legacies, no complete remedy lies to compel a marshalling of the assets, or an appropriation of them according to the intention of the testator; and, where the interests of the parties are complicated, great injustice must often ensue. In cases of trusts, created by last wills and testaments, which are already numerous, no remedy whatsoever exists to compel the person, on whom the fiduciary estate devolves, to carry them into operation. He may take the devised property, and, if his conscience will permit, may defy all the ingenuity and all the terror of the law. Mortgages afford a great variety of questions of conflicting rights, which, when complicated, are beyond the redress of the ordinary courts; nay, more, may often be the instruments of iniquity under their judgments. A discovery on oath seems the only effectual means of breaking down the barriers, with which the cunning and the fraudulent protect their injustice. The process, by which the goods, effects, and credits of debtors are attached in the hands of their trustees, is often inefficient, and sometimes made the cove