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REFORM IN THE COURTS OF EQUITY.
that security; every man who is a trustee, and every man who has a trustee; he who signs an agreement relating to real property; all companies, and all partnerships, and almost all transactions of accounts, are now liable to this awful jurisdiction. In some of these cases the courts of common law have a concurrent jurisdiction with those of equity. But the maxims which rule these decisions, and the nature of the relief they administer, are of a different description in each. As an illustration of this diversity of views, the example of a trustee may be adduced, who, by merely passing from the Court of Common Pleas to its nextdoor neighbour the Court of Chancery, appears in two different characters. In the former the trustee is received as the legal representative of a trust-transaction, and the cestuique trust, or person for whom the other is trustee, is bowed out of court, as having no appreciable character at common law. But in the Courts of Equity, on the contrary, it is the cestuique trust who is the favourite object of contemplation, whilst the trustee is treated as a subordinate and ministerial personage. So again, the mortgagor and mortgagee undergo similar striking transmutations in the eye of the courts of law and equity. The law persists in viewing the lender, or mortgagee (to whom the property which forms the security has been conditionally transferred), as the actual owner of that property. Equity regards the borrower as the true owner of the property, which view consists with the practice of society.
With regard to the redress which they administer the two systems are equally at variance. Whilst the courts of law are almost entirely limited to giving damages for injuries received, those of equity can issue injunctions to prohibit by anticipation the violation of rights, and under certain circumstances will enforce the specific performance of contracts. These are most valuable powers. The perpetuation of testimony in cases where litigation is probable at a future day, but has not yet commenced, is another instance of the peculiar and valuable functions of equity. But we see no reason whatever why these and other useful powers should not be conferred by parliament upon the high magistrates of the common law. We do not say that a fusion of the two jurisdictions would be convenient, or work well. whenever this question is discussed, it should be borne in mind that there is no philosophical distinction between them. On the contrary, it is a distinction of an arbitrary and local kind, and rests upon no solid grounds whatever. It is a popular delusion to suppose that the Courts of Equity are invested with some large discretionary powers, which may really be used for purposes properly called equitable. In other words, it is often believed
that when the law pronounces its severe decision in obedient harmony to stringent rules, as where Shylock craves the penalty and forfeit of his bond, and the law has recognised the force of his demand, the debtor may yet fly to the refuge of equity, and say with Bassanio
This notion is founded upon a mistake. For though the jurisdiction in equity was indeed originally intended to supply some of the defects, and mitigate some of the severities of the law, it has long ceased to administer equity in that true sense of the term. ἔστι δε ἐπιεικὲς τὸ παρὰ τὸν γεγραμμένον νόμον δίκαιον. Τ this be the true definition of equity, then our courts have no claim to that name. The subjects and the mode of exercising their jurisdiction are as defined and as inflexible as those of law. If Bassanio had made the application we have quoted above, and requested a judge in Chancery to dispense substantial justice to him by over-ruling some reported decision, he could only reply
'It must not be; there is no power in Venice
Can alter a decree established.
"Twill be recorded for a precedent;
In short the judges of equity are no more equitable than the judges of law. Both profess to dispense justice, and both work by the line and by the rule. The only court of equity (properly so called) which we possess, is to be found in the legislature, which, from time to time, alters, modifies, and softens our laws. No one, therefore, need be alarmed by the idea that to amalgamate the powers of law and equity would be to break down a philosophical distinction. But whether this point be reached or not, it is to be hoped that the present inquiry will not be quite abortive. The system of written depositions, and written crossexaminations, the absence of the witnesses from the court, the perpetual references to the master, and the fearful costliness of every step in each cause, to say nothing of the monstrous length of the bills and answers in equity, furnish abundant materials for reflection and reform. And so rapidly has public opinion grown to a head upon this subject, that it will be impossible to settle the question of Chancery Reform until all its valuable powers are brought within the reach of the humblest individual who believes himself to need their intervention.
The state of the Ecclesiastical Courts has stirred the public mind less violently. But it is not from any merit of their own
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that they have hitherto escaped with their lives. The subject has been frequently brought before the legislature, but hitherto nothing has been done. In name they are spiritual courts, and so far as they deal with matters properly ecclesiastical it would be unjust to disturb their jurisdiction. But no good reason can now be adduced why peculiar tribunals, laws, and lawyers, should be retained for the settlement of causes relating to wills and to marriages. These, as well as tithes and church-rates, are matters of a temporal nature, and fall with propriety under lay jurisdiction. They are subjects which never ought to have been dealt with by peculiar rules, but ought rather to be submitted, like other questions of civil right, to the decision of the temporal courts of the realm. The necessity of employing a proctor to obtain letters of administration and probate of a will, and the costs entailed upon estates by that process, which is very frequently required to be gone through, in both the archiepiscopal provinces, are too well known to need description. But we entreat the attention of parliament to this and similar, and pray that these grievances may be redressed in time, before the accumulated anger of society shall sweep down the institutions themselves.
The criminal law of England has received a great and important improvement from the masterly hand of Lord Campbell. All useless technicalities have been abolished, and it is now almost impossible to defeat justice by the suggestion of nice points unconnected with the merits of the case. Indeed, there is now no branch of English law in such a satisfactory state as the criminal, nor is it susceptible of much further improvement except by being compressed into a code.
Of the laws relating to the transfer of real property, it is impossible in our last page to write at length. We can only say, that no one who has had experience in such transactions can be ignorant that they operate as a heavy burden upon landed property. In whatever way the landowner proposes to deal with his land, whether by sale, or settlement, or mortgage, his title is always subjected to a solemn investigation. We do not blame the lawyers whose bills of costs appear heavy; for their labour is often great beyond belief. And where small properties are transferred, the cost of the operation is a very serious tax upon the selling value of the land. The blame is to be attached to the legislature and the landowners, who neglect to lighten the burdens upon land by a better arrangement for its transfer. Here, in fact, are the speediest and most accessible means of relief, if the interested classes would only seize them firmly. A general register of real property will effect the desired object
of cheapening and simplifying conveyances; it would ultimately add strength to every man's title; and it would immediately multiply the dealings with land as an available and marketable commodity.
On reviewing, in conclusion, the topics we have been engaged in discussing, one fact is clearly brought into view. The laws by which this great empire is held together are to be sought for piecemeal in dispersed and miscellaneous fragments. We have no aggregate collection of laws to refer to, which is available and intelligible to the citizen. One part is to be sought for in the great volumes which contain our statutes; another in the reports of cases in equity and common law; a third in the minds of the living judges; a fourth in the treatises of the civilians; a fifth in the books and rules of the canonists; and a sixth in the laws of war, by which the army and the navy are controlled. In these dispersed elements of laws lie the materials for constructing a code. The laws of England are not more multiplied than those of other nations, but they are far more unconnected and inaccessible. To collect, to compress, and to define them; to gather from the decisions of judges now living, and those of their predecessors, the principles, if any, which have guided them; to fashion them into definite propositions, and thus to create out of chaos fixed and organic forms, is the most dignified and useful work that yet remains for England. Let those who are gifted with faculties for this high function remember, that they who take a part in its successful achievement will earn for themselves a place in the history of the world, and render an immense service to their race. For when a code of English laws is presented to the nation, it will not be confined within the boundaries of our island. It will be carried from colony to colony, and lay the foundation of the jurisprudence of the whole Anglo-Saxon people. We trust that the time is approaching when this collection of our laws will be effected. The spirit of the age is in its favour. If our laws contain sound principles, they will then be discovered and enunciated; and if none can be found, they must be drawn from the stock of other
Fuit hæc sapientia quondam,
Publica privatis secernere, sacra profanis.
This might be truly predicated of the Romans; and if the Pandects and the Institutes were more studied by our lawyers, it may yet be truly predicated of England also.
ART. X.—(1.) The Sacraments: an Inquiry into the Nature of the
ONE of the most remarkable characteristics of this singular age of ours is its powerful tendency to an artificial reproduction of the past. This tendency meets our observation, for good or for evil, in every department of thought and action. In the domain of philosophy, Aristotle is gradually resuming at least a portion of that intellectual empire from which, three centuries ago, he was so rudely deposed. In that of science, the profoundest researches and most eager controversies at present carried on fall within the department of paleontology; while the newest discoveries-if discoveries they are, and not merely dreams-threaten us with the explanation of the ghosts and revival of the witches of the middle ages. In the political world, statesmen and rulers have found practical problems springing out of questions which once would have been deemed the exclusive property of antiquaries; the idea of Race has assumed a singular degree of importance; and the affinities and feuds of a thousand years ago, between Celt and Saxon, Scandinavian, Sclave, and Teuton, have made their influence felt in the course of revolutions and the fate of empires. Meantime, strangely enough, the nearer past has its representation too: a second Napoleon tramples the liberties of France, and menaces the peace of Europe, while the more legitimate despots set their faces against all of which the nineteenth century is the symbol, and invoke the traditions of absolutist diplomacy and the divine right of monarchs. In the wide circle of art this refluence of thought and feeling to their ancient channels has been yet more observable, especially at the points of contact between art and religion. It is revolutionizing our psalmody, not perhaps without some danger of substituting for meretricious vulgarity an overstrained and bald simplicity. But it is in architecture that its influence is most visibly triumphant, showing itself in every new ecclesiastical building, whether Popish cathedral or Dissenting college, and inspiring alike the pedantic prettiness of Pugin, and the philosophic profundity of Ruskin.
Such being the present humour of this restless, excitable age, it would be marvellous indeed if that vast system of spiritual