The Anomalous Condition of English Jurisprudence Considered with Especial Reference to a Proposed Fusion of Law and Equity

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated.1851 Excerpt: ... 21 CHAPTER III. ON THE LEGAL AND EQUITABLE ELEMENTS OF PROPERTY. In order to account for the sudden exaltation of the Equitable system of Jurisprudence in England, and to show the unworthy notions of political Justice at that time entertained, it is necessary to explain the precise nature of the grand distinction between what is called the Right to property, (or the Equitable interest, ) and the Possession of property, (or the Legal estate.) The mere enunciation of such a distinction may perhaps appear to the plain practical good sense of those, whose minds have not been inoculated with the jargon of an Inn of Court, to savour of a refinement too subtle to deserve serious attention: but how passing strange will they think it, that this distinction should have been the foundation of two separate and contrariant tribunals, neither of which respect, or acknowledge, the claims which prevail exclusively in the other; that Common Law should turn away when the question of Right is urged upon it, and Equity spurn with disdain the Legal owner, and, in the teeth of the adjoining tribunal, proclaim his title a farce 1 'Hinc illse lachrymse.' From this diversity of operations, and conflict of interpretations, has proceeded all the cumbrous complexity---the inefficiency and inconsistency--the needless and ruinous expensiveness--of our Jurisprudential machinery. And therefore I will entreat the reader's patience, whilst I present him, as concisely as I can, with an historical sketch of the rise and progress of the divorce between these incidents of property. The earliest trace of this division of ownership into its Legal and Equitable qualities, is to be found as far back as the times of the Roman Republic. The Laws of that great people, founded first upon the regal Const...