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But a court of law has no jurisdiction to issue a commission for the examination of those witnesses, unless the parties to the suit will consent to it. Such consent is seldom given. The party therefore who wants such a commission, files a bill in a court of equity for that purpose, and a commission is afterwards obtained by motion; and the witnesses are examined under it.
Having thus endeavored briefly to explain the general jurisdiction of the Court of Chancery, making it, I hope, perfectly intelligible to persons, although not in the profession, I would ask them, whether, if the Court of Chancery were to be abolished, and the courts of common law remained just as they are, and it is not perfectly evident that enormous mischief would be done to the public, whether there is a single class of persons in the country who would not have great reason to lament so fatal a step? Is it proposed to re-model the courts of common law, and make them courts of law and equity, or to establish a new court on the ruins of the Court of Chancery? The establishment of the first plan is liable to almost insuperable objections. I will say nothing on the difficulty of foreseeing all those evils, which may arise from the introduction of a new system: of the evils of an existing establishment we know the extent, and we may guard against them; but the mischief which reformation may produce, is very frequently not known until it is felt. But we may anticipate one evil, which will arise from the mixing together the two jurisdictions of law and equity in the same court; viz. that the judges in that court will neither understand law, so well as they would do, if they were confined to a court of law, or equity so well as they would, if equity were their only jurisdiction. If it is proposed to establish a new court upon wholly different principles from those on which the present is formed, the mischief would be inconceivable, because it is manifest that, constituted as the courts of law are at present, the country absolutely requires such a court as the present Court of Chancery.
AT APPLEBY, ON FRIDAY, AUGUST 12, 1825,
SIR JOHN BAILEY, AND SIR JOHN HULLOCK,
HIS MAJESTY'S JUDGES OF ASSIZE,
ON THE NORTHERN CIRCUIT.
BY THE REV. C. BIRD, A. M.
RECTOR OF HIGH HOYLAND, IN THE COUNTY OF YORK.
Matt. x. 34.
Think not that I am come to send peace on earth; I came not to send peace, but a sword.
STRANGE consequence this to pronounce of the mission of the Prince of Peace, that he came to send a sword upon earth. Strange declaration, too, for a founder to give of his own institution! Men do not usually disparage their own projects by a prospectus of their evil consequences. If they offer you bread they do not call it a stone, nor if they hold out to you a fish do they term it a serpent. No; this is no human proceeding. Worldly wisdom is quite of another caste. Whatever be the essential properties and intrinsic value of their proposals, they set them off, at least, with all the superficial attractions and exterior embellishments of panegyric.
But the ways of God are not our ways. His are the ways of truth, candor, and simplicity; ours too frequently tortuous, artificial, and disingenuous. The Divine Author of our faith foresaw, and did not dissemble, that his gospel, conceived as it was in the bosom of mercy, and breathing as it did nothing but a spirit of peace, would nevertheless, when dispensed by human hands and interpreted by human passions, become an instrument of numberless cruelties and calamities. Had these distressing consequences overtaken his followers unprepared, they would, it is probable, have awakened their fears, and shaken their constancy; but when following upon the prophetical warning of their Lord, did but confirm their faith, when they saw the violence of their enemies, and the per
verse zeal of their friends, bearing concurrent testimony to his truth; and even the wind and the storm fulfilling his word.
That the warning was not visionary and superfluous, the fate of the early Church of Christ but too clearly proved; when brother delivered up the brother to death, and the father the child, and the children rose up against their parents, and caused them to be put to death. Nor were the miseries of religious feuds limited to the primitive ages, and first centuries of the church, when the first converts suffered chiefly from the pride and policy of their pagan adversaries. But, through many succeeding ages of intellectual and spiritual darkness, down to the very verge of the last century, did bigotry triumph, and persecution rage. The history of Christianity, some few halcyon days excepted, is little else than the history of the dissensions and combats of its opposing sects and parties, inflicting and enduring, as they alternately rose and fell, sufferings, and tortures, for which Christianity blushes to have furnished even a pretext.
The progress of knowledge, and the more general diffusion of the genuine principles of the gospel, have, thank God! exploded in our times the sword and the rack as instruments of conversion, and persuasives to sanctity. There are no religious fraternities, either in Protestant or Catholic Europe, of sufficient influence, even if they should conceive the idea, to instigate Christian princes to avail themselves of the bigotry of their subjects, to carry war and desolation into the territories of an unoffending neighbour, on the impious plea of extirpating heresy, and fighting the battles of the God of Hosts.
Would to God that with the avowed purpose, the secret spirit also of persecution were extinct in every Christian heart! That men, who name the sacred name of Christ, were so intimately conversant, so thoroughly impressed, not with the unfathomable mysteries and insoluble controversies, but with the gentle, charitable, peace-inspiring graces of Christianity, as to have exterminated those passions, from which persecution derives its nutriment, and secretes its venom. Would to God, that, now men are too refined to catechise on the rack, and proselytise by the faggot, they had also learned of Him who is meek and lowly in heart, to subdue that impatience of contradiction, that dogmatism of opinion, that insolence of office, that appetite for domineering over the very thoughts of their fellows, which have prompted tyrants and slaves, hypocrites and their dupes, in all past times, to destroy the peace of so many families, and to deluge so many kingdoms with blood.
But that this evil spirit is not exorcised from Christendom, or finally laid in the oblivious deep, even among ourselves, is but too clearly to be inferred from the manner in which we have recently