Imágenes de páginas

statutes of the realm. Out of these materials the science of equity is formed. It is a great and intricate structure, to be learned only by long and laborious study, and exclusively administered by a distinct branch of the legal profession.1

The existence of the jurisdiction of equity entirely distinct from the ordinary courts has been severely blamed. Professor Story brings forward the authority of the Romans in support of our separate courts of equity. But that learned commentator seems to have forgotten, for a moment, that the distinction between the prsetorian and > civil-law jurisdictions was obliterated as soon as the Roman law attained its full perfection.

The best argument in favour of our English system is, that it would be impossible to unite the two jurisdictions in any true sense, without a most dangerous change in the constitution of our courts of common law.2 The common-law courts are the true guardians of the liberty of the subject, and indeed of the whole public law of the kingdom. The restraints, and technicalities, and invariable forms of the common law, are better securities to the subject, unmixed with the more general and ductile rules of a court of equity; and it would be difficult, or perhaps impossible, to maintain very long the distinction between them, if both law and equity were administered as parts of the same jurisdiction. It would, moreover, be impossible to administer the equitable jurisprudence of Eng

1 The course of study and training of a common-lav student are different from those of one who intends to go to the Chancery bar. The two branches of the profession are quite distinct, though it occasionally happens that, for parliamentary reasons and political convenience, an equity judge is taken from the common-law bar, which has sometimes produced serious inconvenience.

• Mitford's (Lord Redesdale) Pleadings, p. 6, 7.

land by means of juries; and yet to invest the commonlaw judges with the power of deciding questions of fact, would deprive the liberties of the subject of a most important security, and subvert one of the fundamental principles of the common law.

It will, perhaps, be answered, that those cases only which now come before courts of equity might be decided by the ordinary courts without a jury. It would, however, be extremely difficult to draw by any enactment a clear distinction, establishing when juries should, and when they should not, be summoned. But if this were done, the distinction between law and equity would remain precisely as it is now. The judges would then sit sometimes at law, and sometimes in equity, as indeed the House of Lords, the lord chief baron, or one of the barons of the Exchequer, and even (in a few cases) the lord chancellor, now do.1

The only change produced would be the loss of all the advantages arising from division of labour.

It is true, that in all the countries where the civil law prevails, there is no such distinction of courts as we have in England.2 But in those countries there is no trial by jury in civil cases.3

We have now examined the general principles on which the distinction between law and equity in our En

1 When the chancellor sits at common law, he is of course incapable of decidrng a question of fact. If such a question occurs, he sends it to be tried in the court of Queen's Bench, because he has not the necessary process to summon a jury. Maddock, Chanc. Pract. p. 6.

1 Story on Equ. v. i. c . i. p. 28. L. Kaimes on Equity, introd. p. 27-30.

3 In Scotland there are no separate courts of equity. Erskine, Inst. b. i tit. iii. § 22. Trial by jury in civil cases has been there introduced to a limited extent by statutes 59 Geo. HI. 35, and 1 W. IV. 69.

glish jurisprudence is grounded. It is only necessary to point out to the learned reader that these pages profess to contain, not the historical causes whence the equityjurisdiction arose, but the juridical reasons for which it now exists.

We shall have an opportunity of returning to the subject of courts of equity.



Having considered the law of England, its various divisions or parts, and the sources whence they are derived, as well as the materials out of which they are formed, we must proceed to take a review of the countries where that law, with more or less restrictions, obtains, and which partake of the benefits of the British constitution.

And, first, of the kingdom of England.

The kingdom of England comprehends the principality of Wales and the town of Berwick-on-Tweed.1

Wales, which was originally a distinct country, governed by its own native chiefs and princes, (who are said to have owed homage as vassals to the English crown,)2 has, by the conquest of Edward the First, and divers statutes, been incorporated with and assimilated to England.3 The principality of Wales, however, retained a jurisdiction separate from that of the king's superior courts at Westminster, until the statute 11 Geo. IV.

1 Blackst . Com. b. i. Introd. p. 111.

1 V. Camden, Britan. 2 Mod. 11. Blackst. Com. b. i. Introd. p. 94.

» Barrington, Obs. on Stat. 12 Ed. I. Statutes 28 Ed. III. st. i. c. ii; 27 Hen. VIII. c. xxvi.; 34 and 35 Hen. VIII. c. Xxyi.; 18 Eliz. e. viii.; 27 Eliz. c. ix.; 1 W. and M. st. i. c. ixvii.; 9 and 10 W. III.; 8 Geo. I. c. xxv. § 6; 4 Ann, c. xvi. § 24; 7 and 8 Will. III. c. xxviii.; 11 and 12 W. III. c. ix. § 2; 20 Geo. II. c. xlii. § 3; 11 Geo. IV. and 1 W. IV. c . lxx.

and 1 Will. IV., abolished the Welsh courts. That statute extended tire jurisdiction of the courts at Westminster to Wales, and placed the administration of justice there on the same footing as in the remainder of the kingdom of England.

With respect to the town of Berwick-on-Tweed, it was originally a part of the kingdom of Scotland, but was conquered by Edward L, who (after its cession, by Edward Balliol, to be united with the realm of England) granted to it a charter of liberties, which was confirmed by Edward III.; that king added the further privilege, that the town should be governed by the laws and usages which it enjoyed before its conquest. Its constitution was, however, altered and put upon an English footing by a charter of king James I.; and its liberties, franchises, and customs, were confirmed in parliament by the statutes 22 Ed. IV. c. 8, and 2 Jac. I. c. 28. These peculiar franchises have given rise to the custom of specially mentioning the town of Berwick-on-Tweed in proclamations and other public instruments. It is, however, clearly part of the realm of England, being represented by burgesses in the House of Commons, and is therefore bound by acts of parliament, whether named therein or not. This is declared (perhaps superfluously, as Blackstone observes,) by the statute 20 Geo. II. c. 42.

The town of Berwick is comprised in the late act to provide for the regulation of municipal corporations in England and Wales, and its municipal constitution placed on the same footing as that of other towns which are counties.1

Blackstone informs us, that the main or high seas are

1 Stat. 5 and 6 W. IV. c. txxvi. sched. A. and sect. cix. Lord Mansfield, in Hall v. Campbell (Cowp. 110), states the curious fact, that " Berwick after the conquest of it was governed by charters from

« AnteriorContinuar »