concise and technical as that of the courts of common law, and may be easily adapted to all the circumstances of the case, however complex and intricate. They have officers, called masters, to whom a variety of interlocutory or preparatory matters are referred, and who report upon them to the court, which either confirms the report or refers it back to the master. Courts of equity can allow before the cause is ripe more time than courts of common law for hearing, and therefore are able to permit amendments of technical errors in the pleadings or written statements of the parties, which in a court of common law would be fatal. Besides, proceeding on the liberal principles of the civil and canon law, courts of equity will not allow defects of form to defeat justice. Possessing such means of thoroughly investigating the whole merits of every case that comes before them, disengaged from the technicalities of common-law proceedings, and the hindrance of juries, courts of equity are enabled to make elaborate and long decrees, settling every detail of the rights of the parties. The peculiar constitution of a court of equity also enables it to deal with matters of administration arising out of the custody of the person and estates of lunatics2 and infants (which in the case of the former is delegated by the crown to the lord chancellor), and the management of trust-funds aud charities, in which a court of common law, not having the requisite establishment of officers, unable to decide a question of fact without summoning a jury, and tied down to a rigorous and inflexible form of proceedings, would be totally incompetent to proceed. Another peculiarity of the common law, from which a great part of the jurisdiction of equity arises, is the want of a power to compel a discovery on oath of facts in the exclusive knowledge of the party. In this, again, the common law differs from the civil law.3 Partly from a spirit of opposition to the civil-law professors, and partly because there seemed to be something inquisitorial in putting a man on his oath for the purpose of making him discover facts to his disadvantage, the common lawyers have ever opposed that proceeding. Under the name of the oath ex officio it was used in a most oppressive manner by the famous court of high commission. By the statutes 16 Charles I. c. xi. and 13 Charles II. stat. 1. c. xii., which abolished the court of high commission and star-chamber, the oath 1 "En cest court de chauncerie home ne sera prejudice par son mispleding, ou pour defaut de forme, mes solonque le veryte delmater, car it doit agarder solonque consciens et nemi ex rigore juris.”—Dyversite des Courts, edit. 1534, fol. 296. 2 See stat. 5 & 6 Vict. c. 84.; and Gen. Orders, 27th Oct. 1842; and stat. 8 & 9 Vict. c. 100. s. 2. 95, 96, 97, 98. 3 "Voluit prætor adstringere eum qui convenitur ex sua in judicio responsione: ut vel confitendo vel mentiendo sese oneret." -L. iv. ff. de interrog. in jur. faciend. ex officio was forbidden to be used.' But those statutes do not extend to oaths in a civil suit; and therefore it is still the practice, both in the spiritual courts and in equity, to demand the personal answer of the party himself on oath. Yet, if any question be put that tends to the discovery of any crime, the defendant may refuse to answer.2 It is obvious that in many species of cases the administration of justice may be impossible, without a power of compelling a party to discover what he is bound in conscience, but refuses, to confess. Courts of equity, instead of confining themselves, like courts of law, to the evidence of third parties appearing as witnesses, address themselves to the conscience of the defendant, and require him to answer on oath the matters of fact stated in the bill, or petition of complaint, of the plaintiff, if they are within his knowledge. The testimony of other persons is also taken by the court, to confirm or refute the facts so alleged. It is easy to perceive how very important this process must be, when we consider how great is the mass of human transactions in which there are no other witnesses, or persons having knowledge thereof, except the parties themselves.3 These peculiarities in the constitution and mode of proceeding of courts of equity enable them, not only to administer justice in cases with which the courts of common law are incapable of dealing, but to bring facts before them which courts of law cannot elicit, so as to place a case in a totally different point of view from that in which it would have appeared before a court of common law. Thus, a court of equity is able to administer complete justice in cases where a court of law would be either totally impotent, or could administer nothing but incomplete justice, or even injustice. Professor Story1 says, that "equity-jurisprudence may properly be said to be that portion of remedial justice which is exclusively administered by a court of equity, as contradistinguished from that portion of remedial justice which is exclusively administered by a court of common law." It would probably be difficult to give a clearer or more accurate definition of the boundary which separates equity from law, without a detail of the particular cases in which courts of equity give relief. With regard to the rules of jurisprudence, on which courts of equity decide cases, it is not necessary to say much. Any thing more than general principles on that subject would be inconsistent with the object of this work. Selden thus quaintly attacks the uncertainty of equity in his 1 Vide 12 Coke, Rep. 26, 27. 3 Story on Equ. vol. i. c. i. § 31. 2 Blackst. Com. b. iii. p. 447. day: "Equity is a roguish thing; for law we have a measure, and know what to trust to. Equity is according to the conscience of him that is chancellor; and as that is larger or narrower, so is equity "Tis all one, as if they should make the standard for the measure a chancellor's foot. What an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same with the chancellor's conscience." Spelman, Coke, Lamband, and even the great Bacon', gave their sanction to this opinion of the purely discretionary power of the chancellor sitting in equity. "But this," says Blackstone, "was in the infancy of our courts of equity, before their jurisdiction was settled, and when the chancellors themselves, partly from their ignorance of law (being frequently bishops or statesmen), partly from ambition or lust of power (encouraged by the arbitrary principles of the age they lived in), but principally from the narrow and unjust decisions of the courts of common law, had arrogated to themselves such unlimited authority as hath totally been disclaimed by their successors for now above a century past. The decrees of a court of equity were then rather in the nature of awards formed on the sudden pro re nata, with more probity of intention than knowledge of the subject; founded on no settled principle, as being never designed, and therefore never used as for precedents. But the systems of jurisprudence in our courts both of law and equity are now equally artificial systems, founded on the same principles of justice and positive law, but varied by different usages in the forms and mode of their proceedings; the one being originally derived (though much reformed and improved) from the feudal customs, as they prevailed in different ages in the Saxon and Norman judicatures; the other (but with equal improvements) from the imperial and pontifical formularies introduced by their clerical chancellors." It is pretty clear that in the early times to which this extract refers, the eminent prelates who held the office of chancellor were by no means so incompetent to exercise judicial functions learnedly and on settled principles, as Blackstone appears to have thought. Professor Story, though he somewhat uncharitably remarks that ecclesiastics" are not supposed to be very scrupulous in the exercise of power," shows that he is well aware of this, and that the solid grounds of Roman law on which our equitable jurisprudence was originally founded, is the chief cause of its present excellence.2 Our courts of equity by former decisions. 3 are bound to follow the principles established "There are," says Lord Redesdale, “certain 1 Blackst. Com. b. iii. c. xxvii. p. 432. 2 Story on Equ. v. i. c. i. § 21-23. 3 Blackst. Com. b. iii. p. 432, 433. principles on which courts of equity act, which are very well settled. The cases which occur are various; but they are decided on fixed principles. Courts of equity have in this respect no more discretionary power than courts of law. They decide new cases as they arise, by the principles on which former cases have been decided ; and may thus illustrate or enlarge the operation of those principles. But the principles are as fixed and certain as the principles on which the courts of common law proceed." The chancellors, who contributed by their decisions to establish those principles, were guided by the analogy of former cases, by the civil law, by their own opinions of justice and equity, by the common law, and by the 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. 2 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 prætorian 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.3 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 England by means of juries; and yet to invest the common-law judges with the power of deciding questions of fact, would deprive the liberties of the subject 1 Bond v. Hopkins, 1 Sch. & Lefr. 428, 429. 2 The course of study and training of a common-law 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. 3 Mitford's (Lord Redesdale) Pleadings, p. 6, 7. 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, and (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 English 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 equity-jurisdiction arose, but the juridical reasons for which it now exists. We shall have an opportunity of returning to the subject of courts of equity. CHAPTER III. OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND. 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. 1 When the chancellor sits at common law, he is of course incapable of deciding 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. 2 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. III. 35. and 1 W. IV. 69., and in Exchequer cases by stat. 2 & 3 W. IV. c. 54. |