EQUITY SWALLOWING UP LAW.
Soara short time ago, we noticed the visit to this country of Mr. Dudley Field, who explained to our Law Reformers how the State of New York has abolished its Court of Chancery, and still gets just as much " equity" without it. The Law Amendment Society, in whose rooms the tale was told, were stimulated to inquire whe- ther England could not accomplish the same happy riddance, with as little loss. They appointed a Committee of professional men and merchants to inquire whether the principles of Law and Equity can be administered in the same courts and by the same form of procedure; paving regard in their inquiry to the provi- sions and operation of the New York Code. We have the result before us, in the shape of a report, drawn up by* one of the most able members of the Committee, Mr. Robert Lowe ; who has well occupied the intervals between his exertions in this country as a suitor at the Colonial Office for Colonial Reform, with exertions on behalf of the parent state in the cause of Law Reform. The Committee investigated the cause and nature of the distinc,: tion between Law and Equity ; balanced the advantages and dis- advantages flowing from the distinction; and considered the best plans for abolishing the distinction. The jurisdiction of the Court of Chancery was, in its origin, no- thing more nor less than a spiritual usurpation by the ecclesiasti- cal Chancellors of the fourteenth century. The technical rules in- capable of expansion, and the strict and unvarying judgments, which in earlier times the common law opposed to the tyranny of the barons or the corruption of judges, became intolerably re- strictive as freedom advanced and the social relations of the sub- ject became more complex. The clerical Chancellors therefore, after the example of the Praetors at Rome, assumed to exercise a personal compulsion over the citizen in cases where the rigid com- mon law would have omitted to assert some right or restrain some wrong. Their jurisdiction was at first the mere substitution of the arbitrium of a religious judge for the fixed decrees of the letter of the law : but in course of time the application of their discretion was regulated by fixed rules, which they drew in part from the civil law and in part from abstract morality and justice ; and at the pre- sent day the arbitrium of the judge prevails no more in Equity than in Law : precedent has superseded discretion, and the de- crees of the Chancellor—who has long ceased to be an ecclesiasti- cal personage—are no longer moulded on each individual wrong, but are binding in their application to entire classes of cases. We have thus two systems of jurisprudence, of different origin, prin- ciples of action, and modes of procedure ; the Equitable system having been originally framed to mitigate, correct, and assist the Legal but having now lost that flexibility and power of indivi- dualizing its relief which such an office would seem to require.
Only two advantages can be alleged in favour of preserving the division of jurisdiction thus established : the preservation of the ancient forms of common law, and the increase of professional skill attainable by the division of professional labour. The first can only have been mentioned by the Law Amendment Com- mittee to show their impartial attitude. At this time of day, when the injustice wrought by "forms of actions" has already condemned them to a speedy abolition, it is an anachronism to count the preservation of ancient forms as an advantage : if they be preserved, let them be preserved in the museums of the country for antiquarian inspection, and not in its forums for afflictive use. The second advantage is illusory ; for division of labour in the ac- quisition of substantive law would be obviously facilitated by the adoption of one uniform rule of formulary law. What, then, are the advantages ? Here is a list of them, which we will make plain by adding the pith of some of the striking il- lustrations which the Committee has industriously collected-
" 1st. The line which separates the two jurisdictions is so uncertain, that, in many cases, preliminary investigation of great nicety is required before it can be ascertained whether the remedy should be sought in Law or in Equity.
" 2d. In many eases a complete remedy cannot be had without having recourse to both Courts, and thus bringing two lawsuits instead of one. "'3d. Courts of Law are compelled to decide without reference to equit- ableprinciples; and consequently, to do injustice with a full knowledge of the fact, and an anticipation of the subsequent overthrow of their judgment by the interference of a Court of Equity. " 4th. Courts of Law and Equity in many instances administer the same law; and thus a party is liable to be twice vexed for the same matter, and to have the judgment of a court of Law in his favour rendered valueless by the adverse decision of the Chancellor on the same point. " 5th. The existence of two distinct systems of pleading and practice is of itself a great evil. " 6th. Courts of Equity are compelled to decree that the parties them- selves should carry their orders into effect, which occasions much endless trouble and expense."
To begin, then. In any case involving many complex interests, no lawyer is able to tell his client, fur certain, which is the proper court to ask relief from. In the great railway case of Moseley and Alston, which we all remember, a year or two ago, the counsel argued seven days before the Vice-Chancellor of England as to whether they ought to begin the fight in the Courts of Law or in
the Court of Chancery; Sir Launeelot Shadwell decided in favour of Chancery : but after five days more argument, on appeal before the Lord Chancellor, Lord Cottenham reversed the other de- cision, and handed the parties over to the Courts of Law. It was still possible that the Law Courts, more certain of the limited ex- tent of their province, would drive them back again into the region of Equity. So, in an old case reported by Peere Williams, the defendant stopped a suit in Chancery to recover the sum due upon a bond because an action at law would lie ; and then he got Chan- cery to stop the action at law, because there had been no consi- deration for the bond. How absurd, that the Court of Equity could not entertain the suit, and that the Court of Law could not retain the action ! But sometimes the Lord Chancellor will go into those Courts of Law for advice of the Judges on matter of law, or assistance of the Juries on matter of fact. When he has thus driven the suitor to the expense of proceedings before other tribu- nals, he maintains his independence by disregarding the advice and doing without the assistance which he has sought. In the case of Morris versus Davis, the Lord Chancellor put the suitors to the enormous expense of three trials at law, and after all decided the issue of fact for himself ; and everybody remembers how Lord Eldon once took the opinions of two benches of Law Judges, and then decided the law in a manner inconsistent with all their opinions. These expensive remedies offer such irresistible temptations to the wealthy and dishonest, that justice is actually Sought by the richest suitor. But not only are the two systems unparallel in procedure, they are antagonistic in principle. A Court of Law utterly shuts its eyes to the interest of the orphan for whom property is vested in trust—it sees only the trustee; but the Court of Equity views the infant as the owner, and the trustee as a person with a conseientious duty to perform. Equity views the purchaser of a debt as the owner of that debt ; but Law says that there cannot be such a thing as a purchase of a debt : so Equity is obliged to compel the seller to let the buyer use his name in an action at law for the recovery of the debt. At law, the husband can seize sI his wife's unsettled property ; and the law even encourages him to seize it, by holding that if he survive her, his right to it. will 'become indefeasible : therefore Equity will in some oases seize the husband himself, and make him hold the property "in trust" for his wife. Law and Equity carry their war so far that they seem unable to agree in their primary moral code. Practically, a deed which is foul in the Court of Chancery may be fair in the Court of Law ; for some in- struments which an Equity Judge would impound and destroy, the Judge and Jury at law must respect and enforce. This vile con- fusion of principle and justice involves even third parties in its consequences; for if a man let his land on lease, and then mort- gage his reversion, the person to whom he mortgages the land may, under very common circumstances, eject the leaseholder not- withstanding the lease, and take the land to himself. These things are not merely "fictions of the law," they are much worse than "shams "—they are moral lies, the habitual practice of which cannot but blunt the moral sense • and while they exist, the world has cause to say, not in any vulgar declamatory spirit but with serious truth, that no thorough lawyer can be a thoroughly moral man.
" What remedy can be devised to meet these numerous and glaring evils ?" You may amalgamate the two systems so as to embrace the juster principles of Equity in the system of Law. In doing this, you may preserve the existing jurisdictions concur- rently, simply importing the principles of Equity into the Courts of Law ; or you may abolish one of thesejurisdictions, and admi- nister the principles of both by the procedure of one of them, or by some newly-framed procedure. The first mode was tried by Lord Mansfield at the latter half of the last century, when he sought to take notice of equitable claims and defences in a court of Law. The main objection to it is, that under it the Court of Chancery would virtually become a court of appeal for the control of a large number of decisions in the courts of Law : you must therefore have but one jurisdiction to apply the principles of the two systems. But the modes of procedure in Chancery are so cumbrous and expensive, that to adopt them solely would be a falling back ; while against the adoption of the modes of procedure in the Law Courts there is the experience of the State of Pennsyl- vania. In that State there is no Court of Chancery : the principles of Equity and Law are administered as one code by the Courts of Law; the legal principle always yielding in case of conflict to the equitable : but the courts there admit, that with their rules of procedure they cannot enforce the just maxim that he who seeks equity must do equity, nor deal with more that two interests in the same suit. The remaining course, that of framing a new procedure suited to administer Law and Equity as a single code, is the one that has been adopted by the State of New York.
The inquiries of the Committee of the Law Amendment Society into the operation of that experiment were assisted by the Ameri- can Ambassador, Mr. Lawrence. A series of questions prepared for the purpose were forwarded by that gentleman to such quarters in the United States as should insure answers to them of the great- est jurisprudential weight and the most perfect freedom from any sort of bias. We understand that they settle the question in fa- vour of the New York Code, for the cheap and speedy administra- tion of justice which it has introduced. This fact will be more formally communicated to the public in due time. Meanwhile, the public will receive with deference and welcome the unanimous conclusions of the Law Amendment Committee-
" That justice, whether it relate to matters of Legal or Equitable cogni- sance, may advantageously be administered by the same tribunal; that where the principles of Law conflict with those of Equity, the latter shall prevail, to the exclusion of the former ; that all litigation, whether it relate to matters of legal or of equitable cognizance, may advantageously be sub- jected to the same form of procedure ; and that the rules of procedure be embodied in a code."
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