of the Court, admitted, with a frankness which did him honor, that a mistake had been made in the previous cases.* I will quote largely from his opinion, as a model of clear statement and manly concession, which I wish were more followed. He said:

"The only errors assigned are based on the intermingling of legal and equitable remedies in one form of action.

"Such an objection would be available in the Circuit and District Courts of the United States. The process Act of 1792 expressly declared that in suits in equity, and in those of admiralty and maritime jurisdiction, in those courts, the forms and modes of proceeding should be accorded to the principles, rules, and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law, subject to such alterations and additions as the said courts respectively should deem expedient, or to such regulations as the Supreme Court should think proper to prescribe. The Supreme Court, in prescribing rules of proceeding for these courts, has always followed the general principle indicated by the law. Whether the Territorial courts are subject to the same regulation is the question which is now fairly presented.

"In the case of Orchard vs. Hughes a majority of this Court was of opinion that the Territorial courts were subject to the same general regulations in equity cases which govern the practice in the Circuit and District Courts. That was the case of a foreclosure of a mortgage in the Territorial court of Nebraska, and the court, under a Territorial law, not only decreed a foreclosure and sale of the mortgaged premises, but gave a personal decree against the defendant for the deficiency. We had decided, in Noonan vs. Lee, that under the equity rules prescribed for the Circuit and District Courts, such a decree could not be made.

"The majority of the Court now applied the same rule in the case of Orchard vs. Hughes, although it was decided by a Territorial court. Following out the principle involved in that decision, we subsequently, in the case of Dunphy vs. Kleinsmith, reversed a judginent of the Supreme Court of Montana, on the ground that the case (being in the nature of a creditor's bill filed to reach property which the debtor had fraudulently conveyed) was a clear case of equity, while the proceedings therein exhibited no resemblance to equity proceedings, there being a trial by jury, a verdict for damages, and a judgment on the verdict...

"On a careful review of the whole subject, we are not satisfied that the decisions are founded on a correct view of the law."

And quoting certain portions of the organic act of Montana, one of which provided that its "Supreme and District Courts

* Hornbuckle vs. Toombs, 18 Wall., 652.

respectively shall possess chancery as well as common-law jurisdiction," he went on to say:

"Now here is nothing which declares, as the process Act of 1792 did declare, that the jurisdictions of common law and chancery shall be exercised separately, and by distinct forms and modes of proceeding. The only provision is, that the courts named shall possess both jurisdictions. If the two jurisdictions had never been exercised in any other way than by distinct modes of proceeding, there would be ground for supposing that Congress intended them to be exercised in that way. But it is well known that, in many States of the Union, the two jurisdictions are commingled in one form of action. And there is nothing in the nature of things to prevent such a mode of proceeding. Even in the Circuit and District Courts of the United States the same court is invested with the two jurisdictions, having a law side and an equity side; and the enforced separation of the two remedies, legal and equitable, in reference to the same subject-matter of controversy, sometimes leads to interesting exhibitions of the power of mere form to retard the administration of justice.

"In most cases it is difficult to see any good reason why an equitable right should not be enforced, or an equitable remedy administered in the same proceeding by which the legal rights of the parties are adjudicated. Be this, however, as it may, a consolidation of the two jurisdictions exists in many of the States, and must be considered as having been well known to Congress, and when the latter body, in the organic act, simply declares that certain Territorial courts shall possess both jurisdictions, without prescribing how they shall be exercised, the passage by the Territorial Assembly of a code of practice which unites them in one form of action, can not be deemed repugnant to such organic act."

Notwithstanding these decisions of the highest courts of this State and of the United States, a vague impression lingers in some minds, which finds expression now and then, that there is, after all, some distinction in the nature of things between law and equity, between legal rights and equitable rights. We have been so long accustomed to hearing of legal estates and equitable estates, of legal remedies and equitable remedies, that we are apt to drift, before we are aware, into the belief that Nature herself has ordained a distinction between the two, and that the world is divided into things legal and things equitable. For this cause, I think it will not be time wasted if I attempt to go a little into the reason of the matter, to show, as I think I can, that there is nothing substantial in the distinction, which is, after all, little more than a play upon words.

All that we can fairly gather from their debates of the intentions of the framers of our own State Constitution is, that they did not intend to express an opinion on the subject one way or the other. But, if the framers of the Federal Constitution had intended both to "recognize and establish the distinction between law and equity," they would naturally have manifested their intention by unmistakable language. They understood the force of words, and there was no motive for concealing their intentions. The debates in the Convention do not show the intention supposed, nor do the outside discussions. Two of the most powerful States, Pennsylvania and Massachusetts, not only had no courts of equity, but they had no equity practice in their ordinary courts. It is most improbable, therefore, that their statesmen should have wished to establish and perpetuate such a distinction.

Fusion of law and equity is an expression common in England, though little used in this country. We express the same general idea by the phrase, union' of legal and equitable remedies. When it is said that the two jurisdictions are so essentially distinct that there can be no real union, or that, if a union were possible, it is forbidden by the State and Federal Constitutions, it is in effect declared that we are bound hand and foot to a system of dual justice; and that the great faculty of rendering judgment according to right is not and can not be

Two distinct questions are thus involved in the general inquiry, one whether law and equity are in the nature of things incapable of fusion; the other, whether if the fusion be possible by nature, it is made impossible by organic law.

To the former question, the answer is perfect, that throughout Continental Europe the separation of law and equity is at present unknown. Rights are in general the same as in England and America. There is no impediment, therefore, in the nature of things, to the perfect union of law and equity, or, to express differently the same idea, to the complete obliteration of every distinction between them.

The classification in our jurisprudence of rights as legal or equitable follows, and is created by the different jurisdictions. Instead of the two classes of rights being made the reason or the pretext for two jurisdictions, the truth is, that the two

jurisdictions are the reasons or the pretexts for the classification.

Are there not, however, legal rights and equitable rights? Certainly there are, but only because there are legal remedies and equitable remedies. Once abolish the distinction between the latter, and the distinction between the former perishes with it. Where the two systems exist in their natural vigor, a plaintiff may recover judgment in a court of law, and the defendant may recover against him in a court of equity, to prevent the execution of the first judgment. A rational and commendable state of things truly! And yet it prevailed in this State until 1848, and in England until 1875. I once heard Lord Westbury denounce as "a shame, that a plaintiff should be able to recover judgment on one side of Westminster Hall, and on the other side be branded as a fraudulent rogue for having recovered it."

Are there not, nevertheless, legal and equitable estates? Yes, but are they not so simply because they are recognized as such by the legal and equitable courts? A legal estate is one cognizable in a court of law, an equitable estate is one cognizable in a court of equity. What other distinction is there between them? And if there be none, then they disappear the moment the two courts and the two modes of procedure are blended.

In some of the statutes, framed upon the principles of the New York Code, there is an express provision that, when the legal and equitable rules clash with each other, the latter shall prevail. Such a provision may be expedient, from abundant caution, but I conceive it nevertheless to be unnecessary, because it is implied in the blending of the procedure.

Seeing, now, that the distinction between law and equity is not a natural one, but wholly artificial, let us come to the second question, whether this artificial distinction, besides being recognized, is established by the Constitutions of this State and the United States, a question which I would now consider upon the text of the Constitutions alone, without regard to the decisions already made, as I have stated, by the highest courts of the two governments.

For this purpose I can do no better than to suppose a case

by way of illustration. Let us suppose that a people had inherited two systems of courts, one for men and the other for women, and that the courts in which men were plaintiffs were called courts of law, with one form of proceeding and a jury, and those in which women were plaintiffs were called courts of equity, with a different form of proceeding and no jury, and that this people, in changing their constitution, had provided for a new court with "general jurisdiction in law and equity," would it be a sound argument that in the new court there must be one form of procedure where a woman was plaintiff and another for a man? Do not smile at the illustration, and say that the supposition is absurd, because no people could ever be so besotted as to establish different courts for different sexes. If the reason of the thing be alone considered, this would be no more absurd than to have a court of equity to give judg ment on a mortgage, and a court of law to give it on the accompanying bond, as was once the case in New York, and is now the case no doubt in several of the States. We know how it happened that we had our courts of law and courts of equity; and that the reason, if reason it may be called, was purely historical; for no people under the sun would ever think of constructing, if they had not inherited, two such systems.

There are other provisions of the two Constitutions that must not be lost sight of, in our examination of the subject.

The Constitution of New York has two: one, that "the testimony in equity cases shall be taken in like manner as in cases at law, and, except as herein otherwise provided, the Legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and equity that they have heretofore exercised"; and the other, that "the trial by jury in all cases, in which it has been heretofore used, shall remain inviolate for ever." Neither presents the least difficulty. Taking testimony in the same way in the two classes of cases tends rather to unite than to separate them. And as to the cases in which trial by jury has been heretofore used, it is easy to enumerate or describe them. They have been described as cases for the recovery of money, land, or chattels, and perhaps for divorce. I have not heard that any one has yet found a defect in the description.