INTRODUCTION. LETTER I. You complain to me that, although utterly ignorant of law, you are constantly compelled to exercise your own judgment on legal points: that you cannot always have your solicitor at your elbow; and yet a contract for the sale, purchase, or lease of an estate, a loan, or, perhaps, even an agreement to make a settlement on a child's marriage, must be entered into at once; and it is not until you have gone too far to retreat that you learn what errors you have committed: that you are even at a loss in giving instructions for your will, and wholly incapable of making the most simple one for yourself: that you cannot readily comprehend your solicitor when you seek his advice: that, in a word, you have been plunged into a lawsuit, which a slight previous knowledge might happily have prevented. It is, unquestionably, a matter of profound regret, that so large a proportion of contracts respecting estates should lead to litigation. It is equally to be regretted that, however desirous the man of property may be to understand the effect of his daily contracts, there is no source to which he can apply for the desired information. You ask me to remove the cause of your complaint, and in particular to point out the precautions to which you should attend in selling, buying, mortgaging, leasing, A settling, and devising estates. You express, besides, a desire to know something in a popular way of the nature of the different interests in property, and of the mutual rights of yourself and your wife, and of your power over your children, which would lead me to introduce the new law of divorce to your notice. You further ask me to give you some general hints as to your conduct in the character of a trustee or executor, which may keep you from harm. In short, you want, in the form of familiar letters, what is now so much in vogue, a work upon an interesting subject calculated "for the million," whom I should be but too happy to assist such a work, whilst it imparts knowledge, may, perchance, beguile a few hours in a railway carriage. I have in my youth and in my manhood written much for the learned, in the law; why should I not, at the close of my career, write somewhat for the unlearned? This I shall proceed to do concisely, and without encumbering my pages with many technical phrases. I must premise, that I shall say little which is not warranted by decided cases; but I shall not burden you with references to them, as they lie scattered in many a bulky volume to which you have not access. 1869. You really are a little exacting in asking me, at the end of seven years, to recast my former Letters to you. I am, however, flattered by your care of them, and I have complied with your request; but so many alterations have been made in the law, and the administration of it, during the time which has elapsed, that I have found the task much more laborious than I could have anticipated or you could have imagined. I must now close my correspondence with you: it has been pleasant, but too fatiguing in its conclusion. DISTINCTION BETWEEN LAW AND EQUITY. 3 LETTER II. To enable you to understand some terms which I must necessarily use in speaking of the remedy for breach of contract, I must explain the difference between law and equity. It is peculiar to the constitution of this country, that the law on the same case is frequently administered differently by different courts; and that not from a contrary exposition of the same rules. It must sound oddly to a foreigner, that on one side of Westminster Hall a man shall recover an estate without argument, on account of the clearness of his title; and that on the other side of the Hall his adversary shall, with equal facility, recover back the estate. In all other countries, if we except America, which adopted in a great measure our laws, the law is tempered with equity; and the same grounds rule the same case in all the courts of justice. The division of our law into what is termed legal and equitable, arose partly from necessity and partly from the desire of the ecclesiastics of former times to usurp a control over the common-law courts. Our legal judges heretofore adhered so strictly to technical rules, although frequently subversive of substantial justice, that the Chancellors interfered, and moderated the rigour of the law according, as it is termed, to equity and good conscience. The judges in equity soon found it necessary, like the common-law judges, to adhere to the decisions of their predecessors; whence it has inevitably happened, that there are settled and inviolable rules of equity, which require to be moderated by the rules of good conscience, as much as ever the 4 FUSION OF LAW AND EQUITY. most rigorous and inflexible rule of law did before the Chancellors interposed on equitable grounds. However, as the law of property is now administered in the different forums, allowing for the imperfection of all human laws, it exhibits a splendid and comprehensive code of jurisprudence. Legislative attempts have been made to give to our supreme courts of law equitable jurisdiction over contracts; but they have, in a great measure, necessarily failed, and they never can succeed until the requisite machinery is provided in the commonlaw courts to enable them to perform the duties which now devolve upon the Court of Chancery. As some equitable powers have been conferred on courts of law,* so some legal powers have been conferred on courts of equity,† the object in both cases being to enable each court to give all the relief to which the suitor is entitled. It is left to the discretion of the equity judge to try an issue of fact before a jury at common law, before a jury in Chancery, or before the court without a jury. One of the learned equity judges, at the request of one party, sent an issue to be tried at common law. The observations which were attributed to the learned judge led to an explanation between him and his bar, who could not admit their incompetency to execute the duty cast upon them by the legislature. This happily was explained to the satisfaction of both the bench and the bar. It does not appear to me desirable to give to all our courts the like jurisdiction. America has been referred to as a great example of the benefits of the fusion of law and equity. But there were great complaints in that country against the mode in which equity was administered; and I do not understand that law and equity have been united there, although now the same judge administers * 15 & 16 Vict., c. 76; 17 & 18 Vict., c. 125. + 21 & 22 Vict., c. 27; 15 & 16 Vict., c. 86, s. 61, 62. DISTINCTION BETWEEN LAW AND EQUITY. 5 both law and equity, sitting alternately as a common-law or an equity judge, as occasion may require, just as our Court of Exchequer formerly exercised both jurisdictions. We should always bear in mind that it is not a question whether, as an abstract proposition, we should sever law and equity, but the question is whether, now that they have been severed for centuries, it is wise to unite them generally. Many powers may with great advantage be extended to both jurisdictions, which now or formerly were confined to one; and this is the direction which legislation takes. A scheme for giving to common-law courts most of the powers of courts of equity was introduced into the House of Lords by Lord Chancellor Campbell, and referred to a select committee, by whom nearly all its provisions were rejected; and as no application was made to the House to restore them, they did not pass. I felt it my duty to oppose them, and I was powerfully supported. The essential difference between law and equity, as it affects the subject upon which I am writing, consists in this, that equity will give you the thing itself for which you have contracted; whereas the law can only give you a pecuniary compensation for the dishonesty of the other party in not fulfilling his contract. Thus, if you were to sell your estate to your neighbour Tompson, and were afterwards, disliking the bargain, to refuse to convey it to him, he would have it in his election to proceed against you either at law or in equity. If he resolved to proceed at law, he would bring an action against you for the recovery of damages for breach of contract, and a jury would decide the amount of the damages which you ought to pay, but still you would retain the estate in the same manner as if you had never contracted to sell it. But if he wished to have the estate itself, he would file a bill in equity against you, for what is termed |