TOPICS OF THE DAY.
"THE FUSION OF LAW AND EQUITY." No passage in her Majesty's Speech from the throne is more cal- culated to cheer the legal reformer, than that in which she suggests "such a further fusion of Law and Equity as may be ne- cessary to insure that, in every suit, the rights of the parties may be determined by the court in which the suit is commenced." But few persons, indeed, out of the profession of the law, are aware that there are two jurisdictions in operation in England, which if they do not always contradict each other, at all events have not unfrequently rendered each other inoperative. Those who possess the knowledge of this difference generally have had to purchase it by a bill of costs.
Law is a rule of action, certain and definite, and is administered by statute and precedent. Equity is also a rule, but it is laid down after the events have occurred which calls for its decision, and it applies not so much as a guide for the future, because it is tempered by considerations less affecting the rights of man- kind in general, as those of the particular suitors who have sought its exposition. But it is difficult to obtain an accurate definition of the two jurisdictions ; so difficult indeed that even legal writers are lost in describing their landmarks. "Equity softens the rigour of the law," is a maxim so often quoted, that in the popular mind it is supposed to be possessed of power to en- form natural justice statutes and laws immemorial notwithstand- ing. No view can te more unsound, for Equity is as much bound by the acts of the Legislature, as is the Common Law : Dr. John- son, however, is responsible for much of the popular error, for he has defined ihe Court of Equity as an institution where "the Chancellor bath power to temper the written law, and subjecteth himself only to the law of nature and conscience." Another writer, Sir James Macintosh, represents Eq.uity as differing from Common Law in its subject, but chiefly varying in its modes of trial, proof, and relief. Blackstone denies that it is the duty of Equity to soften the rigour of the law; • and, he asserts, that a Court of Law determines in the spirit of the rule, and not according to the strictness of the letter. When the very foundations of the distinctions_ between the two courts are thus matters of controversy, it is not at all astonishing that the result of the _practice, down to the present time, has been uncertainty, useless litigation, and—costs. So great an authority as Mr. Justice Buller once said—" For the plaintiff several cases were quoted from the Court of Chancery, to which my answer is that none of them is of the least avail in a Court of Law because the two courts act on diferent principles, and that which is the groundwork and foundation of the decisions of Courts of Equity is directly repug- nant to every rule and. determination of Courts of Law." Can anything be more absurd than the continuance of two jurisdictions upon the same subject sines Buller's time ? Granting that Law is right and Equity wrong; that men should be governed by an universal rule of action; how much of injustice has been committed by Equity, upon pretence of exercising jurisdiction over the litigants, apart from the universal rule. Selden, in his "Table Talk," says, and he appears to be justified by our subsequent ex- perience, "Equity is a roguish thing. For Law we have a mea- sure. Equity is according to the conscience of him who is Chancellor,—and as that is larger or narrower, so is equity. It is all one as if they should make the standard /or the measure we call a foot a Chancellor's foot.' What an uncertain measure this would be. One Chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same thing with the Chancellor's conscience." Since Selden's time, we admit, the con- sciences of Chancellors have widened in their operation ; but even Mr. Justice Story, one of the greatest of writers on jurisprudence, tells us "that an imperfect notion of what, in England, consti- tutes equity jurisprudence, is not only common among those who are bred to the profession, but has often led to mistakes and con- fusion in professional treatises."
• Willingly allowing the exclusive jurisdiction of Equity in
• matters of quest account, settlements, dowers, specific perform- ance of agreements and covenants, and many other subjects in which the Courts of Law have never interfered, we yet think we have arrived at that point in civilization when it is necessary to amalgamate the powers of the two jurisdictions on subjects com- mon to them both. It is impossible to have recourse to two courts to obtain justice ; as for instance, to have to go to Com- mon Law for damages sustained by a wrong, and to Equity to restrain the wrongdoer from future violence. Surely, without any great violation of the constitution, we may ask that if a jury give us damages for a wrong done, the judge may grant an in- junction against our wrongdoer. In matters of law, the courts, by the Common Law Procedure Act 1854, have obtained power of discovery and injunction, which have been most usefully exer- cised in the promotion of right ; and the success of that experi- ment ought to embolden us to go as far as common powers to each court upon matters with which both deal. Not the least part of the evil of this confusion of jurisdiction is
the uncertainty which it produces. Let a man have never so clear a case in Law, he is liable to be checkmated by Equity. Hence a person who has contracted to do an act in the ordinary way of commerce, and in view of the common sense prevalent as the law which governs such transactions, is encouraged to search in the armoury of Equity for a weapon to overthrow his creditor. The case of Mr. Thiedamann, who sought to escape the payment of his own acceptances by recourse to an injunction to restrain the holder proceeding to recover at law, is in point. On the other hand, a vendor dealing ith a firm of two or more persons, gives credit upon the appearances, means, and connexions of each and all of the partners, and he is justified in so doing, for the Law upon which he makes his contract of sale, tells him he is entitled to seize the property and persons of all his debtors, and so pay himself in full. But if the debtors appeal to Equity, they can pro- tect their separate estates, and so pay their friendly creditors, and turn the creditor out of possession, leaving him to take a dividend out of the "joint estate." There is "a case on the books" where the joint assets divisible amongst creditors, to whom thousands were owing, amounted to la, whilst the assets be- longing to the "separate estates" of the partners promised pay- ment in full.
Nor is this all. Two Schools of Thought in Jurisprudence are maintained, not free from the blemishes of jealousy and innova- tion. Lincoln's Inn and the Temple naturally feel a certain amount of contempt for each other. The narrow-minded, but acute, special pleader, rejoices in the certainty with which he can construct a dinner, which shall be an answer in Law, whilst the Equity draftsman is equally jubilant when the opportunity serves to "file a bill" and get an injunction to restrain a plaintiff seek- ing the operation of law to remedy injustice. Lawyers by pro- fession are ceasing to be lawyers in fact. Each school produces subdivisions of labour, by which great acuteness and correspond- ing narrowness is produced. In fact the lower rank of the pro- fession, and particularly the attornies in the provinces, are be- coming the best lawyers we have, because they are continually called upon to exercise their power upon all subjects, and have not the time allowed them, to run into the differential mazes of Law and Equity.
The present is a precious opportunity of restoring the law to its ancient supremacy as a well understood, or at least easily acces- sible, rule of action. If we cannot have codification, at least we may have simplification. Our expanding commerce and cease- less industry requires the abolition of all refined distinctions be- tween jurisdictions. The more commonly rights are understood, the more willingly will obligations be fulfilled. But contradic- tion, obscurity, and uncertainty in jurisprudence are likely to produce their complements of cunning, falsity, and deceit, whilst if the remedies are certain, the consequence will be candour, straightforwardness, and honesty. No people ever required a knowledge of their laws so much as we do, and none ever pos- sessed less. Even the Chinese, who have only sixteen discourses of law, are enjoined by the eighth to a general acquaintance with the penal laws, which are printed in a cheap form for their use. And the Norwegian peasant can carry about with him a portable volume which gives him a general acquaintance with the laws he is bound to obey. We hope for no such cheap luxury in Eng- land, but we prefer the humbler request that if we may not have a code, we may at least be saved from the increasing evil of un- certainty of jurisdiction. If it is not possible for Victoria to be immortalized like Caesar, Justinian, Charlemagne, or Napoleon, who bequeathed codes to posterity, at least she may have the glory that in her time the conflicts of jurisdiction disappeared, and speedy and certain remedies in law gave an impetus to civi- lization.
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