effect. He may thereby appease the smart of many an unredressed wrong. .3 Some vague notions of distinction of law and equity.— Some writers in accounting for the distinction between law and equity, confounded equity with that rule of construction which in all courts must prevail, of supplying some meaning, which the letter of the law in strictness either omits or indistinctly recognises, and in this sense, as Lord Bacon once argued, there is no law under heaven which is not supplied with equity.1 Plowden so used the word. And it is this sense which equity commonly bears among Greek and Roman lawyers and public jurists ;3 for they speak of equity as the informing soul of law, and moderating and correcting its rigour. The Roman prætor seems to have acted in this spirit. And some English authors treat this as at least the characteristic feature of equity.5 There is much looseness indeed in this view, yet all seem to admit that there is a limit even to moderating the written law, whenever that law is precise and definite enough to be understood, for then no court, even of equity, can interfere further; and courts of equity as well as courts of law refuse to create a rule which cannot by fair construction be derived out of the general and accepted language of some other admitted rule or statute. And Blackstone corrected, as Lord Eldon also repudiated, the popular notion, that courts of equity were not bound by precedent like courts of law, but may vary like the chancellor's foot, or according to his discretion; in that respect both courts, as he showed, acted alike.6 Origin of court of equity in usurpation of legislative power.-In all courts and in all ages judges show different 1 Bac. Works, Arg. Marches. 2 Plowd. 465. 3 Arist. Eth. Nic. Prel. 1, 1, 23; Cic. 5 1 Bl. Com. 61; b. v. c. 14; Puffend. b. v. c. 12, § 21; 1 Domat, 6 3 Bl. Com. It was under this common delusion, that JUNIUS denounced Lord Mansfield for trying to turn a court of common law into a court of equity, in order, as was insinuated, that his discretion might be without limit.-Junius, Lett. 63. BURKE, on the other hand, extolled Lord Mansfield for his liberality. -Rep. H. C., R. v Hastings, vol. xiv. p. 385. dispositions as to the extent of accommodating the letter of the law to the varying subject-matter of the particular case; for this is part of human nature, and of individual temperament, rather than an incident of any one species of jurisdiction. The rival schools of lawyers in the Augustan age of Rome, the Sabinians and the Proculians, divided the profession from Augustus to Hadrian, one adhering to the letter of the law, and the other to the spirit, till the perpetual edict closed the controversy. It is true that in England, instead of this qualifying and liberal element remaining in each court, and accompanying the exercise of each jurisdiction, it came to be separated to some extent, and vested in a distinct court, giving rise at last to a marked line of demarcation, separating co-ordinate and rival courts dealing with the same subject-matter. This has been accounted for by Blackstone with much truth as arising from the accidental circumstance of the chancellors, the great officers of state, and nearest the king's person, being for many ages either ecclesiastics or statesmen, neither of which classes has ever been very scrupulous in the exercise of power; and they stepped in to fill up obvious defects in the ordinary courts by exercising what would now be deemed and justly stigmatised as legislative power, though in early times this kind of judge-made law was often not only expedient and useful, but in most senses necessary. The proper course was not followed, if indeed it was in earlier times capable of being appreciated, namely, that of leaving the legislature to supply all defects which the courts of law did not, or which the judges thought they could not fairly remedy under their existing powers. The statute of Westminster Second in the time of Edward I., enabled the clerks of chancery to issue writs adapted to the case if such case did not exactly suit the established form; but the judges professed themselves to decide all questions about writs, and did not take pains to improve their opportunity.2 Moreover, when the defects were discovered, these ought to have been admitted and confessed on all sides. Instead of this, the distinction and anomaly went on widening and deepening. The encroaching power of chancellors grew with what it fed upon, knowing that 1 Gibbon, Rom. Emp. ch. xliv. 2 13 Ed. I. c. 24; 1 Spence, Eq. Jur. 240. the popular conscience was on its side and the anomaly has been an unreasonably long time in dying out. Both the common law judges and the equity judges for ages refused to see and confess that what they disputed about was caused by one of them arrogating legislative functions. It was not indeed till comparatively modern times that the proper boundary between the judicial and the legislative powers was clearly seen, acknowledged, and firmly acted upon. The prejudice of ages had led all courts of justice to believe that each particular legislature at some remote and distant antiquity had foreseen and provided for every conceivable species of wrong and injustice, and hence it never occurred to any of them that any fresh intervention of the legislature was necessary: yet they were ready to tell a discontented party that he must go without a remedy. The usurpations therefore of the Court of Chancery were only an illustration of the confusion of ideas pervading the times as to the origin and function of courts of law, and as to the province of the legislature. The usurpations were salutary, though they should have stopped sooner. The legislature should have been invoked at an earlier period. The result is, that in modern times what seems so incomprehensible to bystanders would have been more intelligible, if the distinction between law and equity had been represented as nothing more than this, that the jurisdiction of the courts had become subdivided, each set taking charge of a separate branch of business. How or why the separation arose could never be of much consequence except to lawyers, for there is nothing in which the public take less interest than the divisions and apportionment of jurisdictions. And while in reviewing the rise and continuance of the anomaly we are warranted in saying that the courts of law acted more regularly according to modern notions, and the Court of Chancery with more spirit and propriety according to ancient notions-the one in declining and the other in usurping a function which could now only be conferred by the legislature-the long separation of jurisdiction was attended with the solitary advantage that it gave that precision of thought on certain subjects which a subdivision of labour usually brings about. Codification of laws, how far necessary.-The details of the law having grown unwieldy and incongruous, a natural desire has grown up for many generations to have some codification or well-arranged summary of the whole, such as may be known and read of all men. The public being presumed to be bound to obey these laws in their minutest details, and incurring pains and penalties often proportioned to their ignorance-that ignorance being costly, and yet inexcusable and the very end and object of all law being that it should be intelligible and accessible to inquirers, the question has been asked, and has never yet been answered, How it comes that English subjects have never been provided with reasonable means of satisfying the most moderate of moderate desires after this branch of useful knowledge? 1 While the statute law is bulky and incoherent, the same is equally true of the common law, or unwritten law, which exists in no definite written form, but is collected by induction and reflection, as occasion calls, out of the still more bulky decisions or precedents, as well as treatises and digests accumulated during centuries. The common law is now the essence of hundreds of volumes of legal decisions, and in its concentrated form floats like a tradition in the minds of generations of lawyers, rather than is embodied in any one book or set of books. The digests made from time to time are merely collections of the points supposed to be decided by the courts, and expressed in a more or less abstract form for convenience of reference or as aids to the memory. As the municipal law consists partly of statutory law and partly of non-statutory law, if a code means a complete collection of general rules of law, so far as these can 1 MONTAIGNE said, "What can be more strange than to see a people obliged to obey and pay a reverence to laws they never heard of, and to be bound in all their affairs, both private and public, as marriages, donations, wills, sales, and purchases, to rules they cannot possibly know, being neither writ nor published in their own language, and of which they have of necessity to purchase both the interpretation and the use."-Montaigne, b. i. ch. 22. MONTAIGNE also said that in his time they had in France more laws than in all the world besides, and more than would be needed to govern all the worlds of Epicurus. And he thought it would be better to have no laws at all, and to imitate those nations that chose any stranger passing by to sit and decide their disputes.-Montaigne, b. iii. ch. 13. And that lawyers' books upon books, interpreting interpretations, were endless and sickening.-Ib. be expressed in writing, then, in order to construct a code, it will be necessary to methodise the materials of both descriptions, each being complementary to the other, and neither being complete in itself. To say that such a work could not be accomplished is to say, that judges and courts decide cases on some secret and inscrutable grounds which are not capable of being expressed in articulate language, and not fit to be heard and read of men. But the increasing amplitude of discussion and elaboration of reasons contained in all modern judgments of our courts, altogether negative such a conclusion.1 What is a reasonable form of codification.-If it be no excuse for any citizen that he is ignorant of the law, if ignorance is costly to the national exchequer, it seems to follow, that the government of a country ought to take some trouble to facilitate the knowledge of that law and bring it within the reach of all, and in such a shape as to be accessible to any one who devotes moderate industry and intelligence to its study. No citizen can in the course of his avocations, whatever these may be, wholly fail to gather some sound views of the great outlines of the law, for the business of life cannot proceed a step without regard to those leading principles, and many have some additional glimpses from their services as jurors and witnesses. But over and above what each citizen cannot help knowing, there may reasonably be provided also some facilities for securing greater precision and detail to such knowledge. It cannot indeed be expected, as Montaigne seems to have thought, nor is it desirable, nor, if desirable, is it practicable, to make every man his own lawyer, for the 1 LORD HARDWICKE, in 1761, said that "in the best policied countries abroad judges did not give reasons of their judgments in public and openly; but he always looked on this as one great security. Some persons prefer the reputation of their understanding to that of their conscience, and would be ashamed to talk nonsense to the world in support of a judgment that they would suffer themselves to give silently."-15 Parl. Hist. 1011. When a statute of Edward III. ordered pleadings to be in the English tongue, the reason given was that litigants might know what was said for and against them, and that every man of the realm may the better govern himself without offending against the law, and the better save and defend his heritage and possessions.36 Ed. III. St. 1, c. 15. |