WOULD IT BE PRACTICABLE TO DIVIDE THE DOCTRINES OF EQUITY AMONG OTHER BRANCHES OF LAW AND TO CEASE TREATING EQUITY AS AN INDEPENDENT SUBJECT.

The law is conservative. It changes but slowly. Not when it sees that the adoption of a new doctrine or the abandonment of an out-grown principle would be simply beneficial or more just, does it adapt itself to the progress of the age, but only when of necessity it can no longer resist the pressure of progress and necessity for change.

This characteristic results:

1. From the habit of the law to wait for the legislative power to inaugurate changes.

2. The doctrine that the law's function is merely to authoritatively declare what is, not what should be the law.

3. The great respect for precedent, right or wrong, on the theory that it is better for the law to be certain than that it be just.

The extreme reluctance of the common law courts to allow such modifications and additions to its technical modes of procedure and the remedies allowed under it, as the moral sense of the people demanded, resulted in the establishment of that auxiliary system of jurisprudence known as the court of equity.

At the time of its establishment and while it was in process of development there was ample reason for its existence. These reasons continued to exist for a long time, but disappeared as the law gradually adopted equitable doctrines by granting what had before been purely equitable remedies, or recognizing equitable rights, or were swept away by legislative enactment. But the con

servatism of the law which had made the establishment of courts of equity necessary, now again, when that necessity no longer exists, prevents their abolition.

This reluctance of the law to go out of its established channels has influenced everything with which it comes in contact so that we find lawyers, as a class, loath to sanction any innovation; law teachers still cling to old methods, and law writers still use the same classifications and pursue in general the same order in presenting the subjects that were in vogue a century ago. In no branch of the law is this conservatism on the part of

text writers and teachers better illustrated than in the ancient method of teaching the subject of equity.

A history of general education reveals the fact that there have been Froebels and Pestalozzis, whose master minds have originated educational systems, and formulated educational doctrines more intelligent and logical than those of the centuries past. Because of their keener perception of the way in which the human mind works and develops, their systems have supplanted the older ones, but the treatment of equity in modern law schools and modern text books is the same equity that was taught when equity first assumed importance in English courts.

Recognizing in the method of treatment none of the great changes by legislative enactment, nor the growth of the law, the study resembles more a research into the customs and manners of the ancients than the study of a practicable branch of modern law.

There was a time when it could be urged with some reason that equity should be studied as a separate branch of our system of jurisprudence. When the two courts existed in fact and legislatures had corrected none of the manifest deficiencies of the law; when the two courts were in active and bitter rivalry and every point of difference was drawn sharply and distinctly, it could be plausibly argued that equity should be studied separate and distinct from the remedies obtainable in law courts. But though such a condition did exist, it has long ceased and now it is not only perfectly feasible but would result in immense advantage, to incorporate what is left of equity with the branches of the law they modify or perfect. Equity would not cease to be learned but it would be acquired incidentally and naturally instead of being treated as an isolated subject capable of complete divorcement from the legal doctrines affected by it.

Let us glance at a few of the topics usually treated in volumes on equity. To the subject of assignments there is usually a chapter devoted. At early common law it was necessary to invent some way in which a purchaser of another's right could be protected and secured in it and his right enforced. The stupid rule of the common law that it would not recognize mere rights (choses in action) as property subject to sale threw this

sense

burden on courts of equity. But by natural growth of the law and legislative enactments the rights of assignees have been recognized, and the rules protecting them and preserving the rights of third persons are in no peculiar to courts of equity. A simple enactment like Sec. 3748 of McClain's Iowa Code providing that all parties to actions whether at law or in equity shall be the real party in interest, sweeps out of existence the whole subject as a distinct doctrine to be treated as a peculiarity of courts of equity.

In studying contracts we discover that the remedies for violations of some contractual rights are entirely inadequate to meet the demands of justice. Specific performance is usually hinted at but the student leaves the subject of contracts feeling that something is lacking. Instead of completing the subject at the time and in natural and logical order by teaching along with the right to recover damages and rescind fraudulent contracts the further right to insist in certain cases on a performance of the contract according to its terms, students are sent to a section of an apparently different subject simply to complete their knowledge of contracts.

Another illustration is afforded by the doctrine of estoppel. It deals with evidence exclusively. It is an important branch of evidence but can never rise to the dignity of a branch of jurisprudence. A thorough treatment of evidence cannot leave out the doctrine of estoppel and if the exclusionary rule of estoppel is not thoroughly learned, there will be some exceedingly unpleasant and humiliating experiences later on. If estoppel be studied as a part of evidence it will be learned in its natural and logical order and at the proper time. The topic will be considered in its proper relations to other divisions of legal knowledge. If its consideration is postponed till later the student cannot help leaving evidence with an unpleasant feeling of not having mastered the subject. When the topic is studied later and he finds that he must apply it to piece out a half learned subject, studied some time before, it tends to confusion and uncertainty. I believe it to be not only practicable but absolutely necessary in order to keep abreast of the advances being made on other educational lines to cease treating equity as a separate branch

of the law, and submit, the following suggestions.

The first thing to do is to eliminate from consideration all the vast mass of matter, which, though formerly equitable, has long since ceased to be so on account of having been incorporated into the law or remedied by legislative enactment. What there is left should then be distributed among the other branches of the law to complete the former incomplete treatment of them. There would then be left nothing but the history of the courts of equity and equity procedure.

The study of any subject should always commence with a history of its growth. Thus by getting an idea of causes, and the peculiarity of the times that produced or tended to produce certain results we become better able to intelligently consider the topics themselves. This is especially so of law. What student has not felt the need of an accurate

knowledge of English history in order to understand the doctrines of real property? We spend two years in school studying dry facts which are apparently arbitrary and unreasonable. What seems SO dead and lifeless would have a flood of light thrown on it by a single lecture which would detail the history of the times, producing the peculiar circumstances upon which the doctrine is based. And so I say that not only as to equity but the study of law in general should commence with a history of law. Three months' solid work would be well spent in becoming familiar with the growth of law doctrines, the causes that brought them forth, or the times in which they were born, the courts as they existed in early times, and as they gradually developed, keeping pace with the development of modern ideas, the changes wrought. Every law student has felt the necessity of some such preliminary study to understand even the phrases and terms used in the English reports. But while this is true respecting the study of law in general it is especially true of equity, for nothing but historical reasons can be given for the existence of any of its doctrines or for the court itself. How futile then will be the efforts to obtain a clear understanding of its rules without having learned the reasons upon which they are based or the cause which brought them into existence.

Having laid the foundation for the study of

both law and equity by this preliminary historical study, the student will now be prepared to recognize in the study of any single branch of law, wherein it fails to furnish complete, adequate remedy. He will naturally turn to equity to see if it supplies the apparent deficiency. And thus by investigating concurrently the only two sources of authority, he will finish his investigations, with a full and complete knowledge. It will be objected that this method would be confusing. That the student will be apt to mix legal and equitable remedies and amidst the confusing negotiations of the law that are affirmed in equity he will become hopelessly entangled. Under the constantly growing reformed precedure this objection will have a continually lessening force. When the equity side of the court is entirely abolished as it is in California and twenty-two other States and territories; when it exists, but with but slight effect as in Iowa and when in a few years it will be entirely abolished everywhere with the disappearance of the excuses for its existence, it will then "be important to know only when a right exists and the mere arrangements of the sources of said rights will be of minor importance. If a lawyer knows his client has a right, enforcible somewhere, he can soon find where it is to be enforced. The main thing is to know the right exists. The present system fails just in this particular. When the law side of a subject is studied there are certain limits laid down beyond which you cannot go in seeking remedies. Then the student finds that many things that could not be obtained at law can be reached in equity. And the doctrines are so scattered from their natural order and application that instead of getting a clear idea of the exact extent to which equity supplements law, the student jumps to the conclusion that what cannot be obtained by a suit at law can be reached through a court of equity. Some of the most laughable experiences of the class room illustrates the false and distorted notions of the power and jurisdiction of courts of equity. The student finds that some of the questions that he had learned to consider settled, must be opened up to let in a new doctrine which changes his conclusions as to rights and liabilities under certain states of fact. Not having the limit of these modifications clearly defined in any way, his

ideas become hopelessly confused as to the extent of the doctrines he must unlearn, or the application of the new ones to be acquired. All this would be avoided by simply treating each branch fully when it is first studied.

In the study of contracts what would be more natural than to extend the consideration of the remedies beyond damages, and learn the subject thoroughly by studying the doctrines of specific performance and injunctions as affecting them. In like manner the effect on contracts of fraud, mistake, notice of intervening rights, the circumstances under which one can insist on reformation, re-execution, rescission or cancellation, all treated as separate topics for consideration when studying equity would more properly be treated when studying contracts. mentioned that equity has been largely robbed of its jurisdiction by legislative enactment. This is well illustrated by statutes governing the equitable doctrines of discovery, depositions and estoppel. These subjects should be treated along with the other doctrines of evidence.

I have

Dower rights are almost universally controlled by statute and should be treated with the other rules respecting real estate, as should mortgages and trusts of real property.

The subject of assignments to which a chapter is usually devoted by text books on equity I have already spoken of.. The limit of this article prevents a treatment in detail of the topics usually considered in equity. I am confident that an examination of the difficulties to be encountered in any particular instance will result in the conviction that they are not insurmountable and that the advantages to be derived will be real and far reaching. When this has been accomplished the final triumph of the reformed procedure will have been achieved.

G. M. VARNUM.

JURISDICTION OF CRIMES - VENUE-STATE COURT SITTING IN FEDERAL BUILDING.

EXUM V. STATE.

Supreme Court of Tennessee, Aug. 1, 1891. Mill & V. Code Tenn. § 4870, provides: "If, for any cause in the opinion of the court deemed sufficient, it shall be impracticable or inconvenient for any court to hold its sessions at the court-house or place designated by law, it shall be lawful for the court to hold its session, or any part thereof, at any room within the limits of the county town, and all its proceedings at such place, whether in civil or criminal cases, shall be as valid as if done at the court-house." Act Tenn. 1883, cedes to the federal government exclusive jurisdiction over the grounds, buildings, etc., of the United States government in Jackson, the county town of Madison county. Held, that where the circuit court of said county was temporarily sitting, with the consent and permission of the authorized agent of the United States government, in a room in the custom-house, and during such sitting the crime of perjury was committed, the State courts had jurisdiction to punish the offender.

TURNEY, CJ.: "If, for any cause in the opinion of the court deemed sufficient, it shall be impracticable or inconvenient for any court to hold its sessions at the court- house or place designated by law, it shall be lawful for the court to hold its session, or any part thereof, at any room within the limits of the county town, and all its proceedings at such place, whether in civil or criminal cases, shall be as valid as if done at the court-house." Mill. & V. Code, § 4870. At the time of the commission of the perjury charged and of the finding of the indictment the court-house was undergoing repairs, the court deemed it impracticable and inconvenient to hold its sessions therein, and by the consent and permission of the authorized agents of the United States government the circuit court held its session in a room of the custom-house, a building within the limits of the city of Jackson, the county town of Madison county, and within a few yards of the court-house. On a trial before that court of a case cognizable only in the State courts for the county of Madison the plaintiff in

indicted by the grand jury for the county then holding its sessions as a part of said courts in the same building. On conviction, the prisoner moved in arrest of judgment, on the ground that, by the session act of the legislature of 1883, the federal government has exclusive jurisdiction over the grounds, buildings, etc., and that such jurisdiction embraces all crimes committed on the premises. As a general proposition, that is certainly true; but if, by the law of the State, a court is authorized to occupy a room other than the courthouse, and the federal government, as it may certainly do, loans to the State court a room or rooms in its building, it, for the time of such loaning, makes a practical surrender of its right of occupancy, and recognizes the right of the State to be there in a judicial capacity, for the dispatch of the public business. Will the courtesy of one govern

ment to another absorb the jurisdiction of the latter? The jurisdiction of federal courts over crimes and misdemeanors is purely statutory. The laws of the State create and punish offenses which are not provided for in federal legislation. Must such offenses escape correction simply because committed on federal property, although detrimental to good order and morality? The crime of perjury in this instance was, if an offense at all, one solely against the State. There is in it nothing of which a federal court can take cognizance. If the State court cannot treat and punish it as a crime, it goes for nothing. If it goes for nothing, it must follow that it was not committed in a court. We must reach to the extent of holding that the organization of the court in the rooms it occupied by the courtesy of the general government was a nullity, and, as a consequence, all its proceedings, in all matters, civil and criminal, are absolutely void; and any officer who executes, or attempts to execute, process awarded by judgments or decrees of that court, is a trespasser.

If a State court may not, by the concurrent consent of State and federal authority, occupy, as a court, rooms in the custom-house, then in its attempt to do so it was a wrong done as to all litigants whose rights it assumed to pass upon. I was without the pale of all protection by the laws of the State, and a helpless subject of every contempt possible to be offered it. If it is holden that the State court lost its jurisdiction in going there, in a criminal proceeding, it must result in holding, also, that the State and federal governments cannot only not contract with each other, but, further, that they may not extend courtesies one to the other.

The law, as we see, authorizes the court to occupy rooms away from the courthouse. There is no restriction in the permission. The court is left to select the rooms and make its terms. It may arrange with any person; then why not with the United States government, the owner of the fee, with the absolute right of disposal? The broad jurisdiction over and within the public grounds and buildings ceded to the United States is for its own protection, and so long as the power to protect is preserved, there is no violation of the cession act. The terms in which the purposes of the act and the intention of the United States government are expressed convey the single suggestion of security against trespass, and its varying results, and were not intended to isolate the State from the federal government, or rice versa. There must be lawlessness attending the act of presence on the premises before jurisdiction for security is invoked for the action of the federal courts. In the kindness extended by the one and accepted by the other government in this instance there is neither moral nor legal wrong-no rights endangered. The jurisdiction of the United States has in nowise been interrupted. In coming to this conclusion we have not been unmindful of the decision of the Supreme court (Railroad Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. Rep. 995), and other federal court decisions on the question

of jurisdiction. We do not dissent from the principles they announce, but we think they are not applicable to the peculiar facts of this case. In none of them has consent been given to occupancy by the State. In none of them has the crime committed grown out of proceedings before a tribunal authorized to act therein, and recognized by both State and federal governments as a constitutional department. There was no comity to be recognized between sovereigns. Judgment affirmed.

NOTE. The decision of the court in the principal case is not entirely free from doubt, as will readily be admitted after a study of the dissenting opinion of Lurton, J., concurred in by Snodgrass, J., which we shall give in substance. In the act of the Tennessee legislature, ceding to the United States exclusive jurisdiction over the lot of ground on which the custom-house stands, there is no reservation of jurisdiction over offenses perpetrated within the cession, and such reservation would perhaps have been insufficient if contained in that act. An express cession of jurisdiction was indeed unnecessary in view of article 1, sec. 8 of the federal constitution. The consent of the legislature of the State to the purchase by the federal government of this site for a "needful building" would have operated to give effect to the provision cited, inasmuch as it confers upon the congress of the United States, power to "exercise exclusive legislation in all cases whatsoever" over such site. The jurisdiction thus conferred is identical with that of congress over the District of Columbia, the latter being provided for in the same clause and in the same words. This jurisdiction is exclusive of all State authority, and no authority other than that of the federal government can be exercised over such a site. This is well settled by both federal and State authority. The subject has been lately considered, and this jurisdiction defined in a very learned opinion by Mr. Justice Field in the case of Railroad Company v. Lowe, 114 U. S. 532. When a crime has been committed upon such a ceded parcel of territory, it can only be punished by that jurisdiction within which it was committed, and by that government having exclusive jurisdiction over the place of the offense.

In the case of United States v. Cornell, 2 Mason, 60, the opinion was by Judge Story. The defendant had committed murder within Fort Adams, situated in the harbor of Newport, R. I. The site was within the geographical limits of the State of Rhode Island, but on a parcel of territory purchased by the United States with the consent of the State. The act of cession was not a broad cession, but a simple assent by the State, reserving, however, the right to have civil and criminal process of the State executed within the ceded premises. The court held: First, that an express cession was unnecessary; consent to the purchase by the legislature operated to give exclusive jurisdiction of the government of the United States. Second, the reservation applied only to process issued for acts done within the State, and not for crimes committed within the ceded parcel. This reservation only operated to prevent the site from becoming a sanctuary for fugitives from the State's justice. The jurisdiction of the federal government was held exclusive over crimes committed within Fort Adams.

In Commonwealth v. Clary, 8 Mass. 72, it was held that the State could not take cognizance over any offense within the lands ceded for arsenal uses.

In 1 Met. (Mass.) 580, is found the opinion of the Supreme Court of Massachusetts, given in response to the interrogatory of the legislature, to the effect that persons residing upon lands ceded for dockyards, arsenals, etc., did not acquire the civil and political privileges of citizens of the State, and their children were not entitled to attend the public schools of the State.

In Sinks v. Reese, 19 Ohio St. 306, the Supreme Court of Ohio held that the inhabitants of an asylum for disabled volunteer soldiers, on a site ceded for hospital purposes, were not residents of the State, or entitled to vote therein.

In Wills v. State, 3 Heisk. 141, the Supreme Court of Tennessee held that the jurisdiction of the United States was exclusive over grounds temporarily occupied by United States troops while preparing the national cemetery grounds on the field of Shiloh. What is said in that case about the jurisdiction of the State within the cemetery grounds, seems to be a dictum construing the peculiar act consenting to the purchase of those grounds, and is not a sound exposition of constitutional law.

On the other hand, when the United States acquires title to realty within a State without the consent of the legislature, the jurisdiction of the State remains complete and perfect. This was ruled in Railroad Company v. Lowe, supra.

Though these principles are recognized as sound by the majority of the court in the principal case, the latter is held not to be controlled by them by reason of the fact that the offense committed by the appellant was that of perjury in a trial of a case before a State court sitting within the federal building by consent and courtesy of the custodian of the federal building. Perjury, like every other crime, must have a proven venue. This crime was committed, if at all, without the jurisdiction of Tennessee and within territory over which the jurisdiction of another sovereign was complete and exclusive.

It does not seem that the State of Tennessee can acquire jurisdiction over this territory by the mere courteous act of the custodian of the federal building, or that the federal government can lose a jurisdiction complete and exclusive conferred by the federal constitution, by reason of the permission extended the State court by the custodian of this building to hold its session within this site. Though the judgments of this court thus sitting beyond the jurisdiction of the State may be upheld as judgments of a court de facto, when objection to the jurisdiction was not taken in limine during the trial, and though it could have protected itself against a contempt in its presence as an attribute of a court de facto and not de jure, yet that the venue of this offense was within the jurisdiction of Tennessee simply because it was an offense committed in the course of the trial of a State cause before a court sitting without the territorial jurisdiction of the State, is something which the dissenting judges are not willing to concede.

The case of the majority must at last rest upon the proposition that the constitutional effect of the consent given by the custodians of this building was to deprive the United States of its exclusive jurisdiction over any crime committed within this site, as an incident of or during the course of the session of this State court.

The locus of the crime was beyond the State's jurisdiction, and no agreement or consent can defeat a jurisdiction conferred by the constitution of the federal government, or vest in a State court jurisdiction over territory purchased by the United States with