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JOHN WILLIAMS, ESQ. M.P.
IN REPLY TO HIS OBSERVATIONS ON
THE COURT OF CHANCERY.
By EDWARD B. SUGDEN, Esq.
As a practising barrister in the Court of Chancery, I may, I hope, be allowed to address a few cursory observations to you on your last statements, which I have just read, in regard to the jurisdiction of that court, and the delays and abuses of which you complain. In the outset, I heartily rejoice to find that there are no abuses in the court where you practise. To that I may resort with pleasure when the Court of Chancery is swept away from amongst the cherished institutions of the country. There I shall find perfect rules of evidence, no prolixity in pleading, no sham pleas or other dilatories, no hurried decisions at nisi prius slowly corrected in the court above, no jurisdiction assumed on fictitious grounds. Justice is there administered at little cost, no doubt; and time, that great innovator, has only ripened the rules of that court into perfection, whilst it has corroded and withered the maxims of the Court of Chancery. It is not my intention to excuse any abuses of the Court of Chancery by recriminating on the Court of King's Bench; but as you are ignorant of the rules of equity, and well informed of the rules of law, I am sure that you would first apply yourself to the correction of the abuses of the court in which you act, if there were any, before you ventured to approach the Court of Chancery. "
I know that there are many defects in the practice of the Court of Chancery, which have crept in with time, and I believe there are not less in the courts of common law. I, who desire to practise with comfort what you call the trade of the law, but which I fondly believe is a science of a high class and an honorable and a distinguished profession, wish that all abuses in all the courts should be remedied; and I think that they may be reformed without the courts being revolutionised. Reverence for the laws is the distinguishing feature of an Englishman's character, and his reverence is founded on no idle superstition, but on the wellfounded confidence that the rules of law are adapted to the general institutions of the country, and are faithfully and uprightly administered by the judges of the land. The law
rightfal institutions that the rules superstition, Baracter, and® hi whelief, that dungeon, escapes wations fromneral admin
of a court of equity has now been administered for centuries, and, notwithstanding the mirth of Selden, depends on the length of no man's foot, but is regulated by rules as binding and settled as the most fixed rule of common law. The property of thousands at this moment depends on the decision of courts of equitý, and the haste of the reformer cannot at once annihilate those courts. Reflect then calmly, I beseech you, on the incalculable mischief which must be occasioned by inspiring the people of England with a belief, that the Court of Chancery“ is a disgrace to the country;" « an odious dungeon, from which, when a man is once ini. mured in it, he seldom escapes without loss of comfort, fortune, and life.” Will not such declarations from a gentleman of your station in life disgust the people with the general administration of the law ? Can you believe, that at common law right succeeds so invariably, and at so little cost, that men will distinguish between the administration of the two jurisdictions ? One great object in administering the law is to satisfy the failing party that justice has been duly dispensed. What man, who does not succeed in equity, will believe that the scales of justice have been held evenly, if your doctrines are to gain ground? And as frauds and breaches of trust are cognisable in equity only, we may expect long and loud complaints from all persons, whose frauds are exposed and punished, of the iniquity of the court which has exhibited their fraudulent conduct, and compelled them to refund their plunder. They will be your ardent disciples, for the conimon law could not reach their offences. . Your objection at this day to the rise of the jurisdiction of the Court of Chancery is somewhat amusing. Nearly all the commercial law of the country has, to the great benefit of the people, been created by the judges in the last half century.
The jurisdiction of equity was founded on the confined views of the common law. The common law was so rigid that no such settlements could be made of property as prevail at this day. For these and they are a real benefit to the country--we are indebted to courts of equity. The common law would not look at a trust, and therefore, if by any circumstance the legal title in my property became vested in another, he was absolutely intitled to it, and I was without a remedy. This remedy equity supplied, and in that followed strictly the civil law. If one had for a trilling consideration obtained a conveyance from a son in his father's lifetime of the family estate, there was no relief at law. Equity established it, and relieved against frauds generally, which the common law could not reach. If men had mutual dealings and long accounts depending between them, a court of law attempted to settle them, and an action of account might be brought : but
Thesto law alth.
propose to property of a deaken away.
the remedy was imperfect (as it still is in Scotland), because the court had no responsible officers before whom the accounts could be taken. Equity, with the assistance of its masters, took such accounts satisfactorily, and no man now resorts to law although the right of action is not taken away. The like relief is given where the property of a deceased person is administered. You propose to abolish all this relief in courts of equity, but you cannot in this enlightened age refuse to the people of England the remedies which I have noticed. Would you deny to them the improvements of ages, and confine them to the sort of justice to which alone they would be intitled if courts of equity were abolished: If you did, they would quickly require at your hands a restoration of the wholesome jurisdiction of those courts. Sons watching for their father's property, fraudulent purchasers, trustees, executors, would, no doubt, rapturously applaud your efforts ! But as you complain of the division of the courts, you would, no doubt, transfer to the courts of common law the present jurisdiction of equity. Juries are the fit tribunal to decide questions of trust, intricate frauds depending on dark and intangled transactions, matters of account, and the administration and marshalling of assets ! But this is too ludicrous ! Courts of equity sprung from the inability of courts of law to administer equitable relief; and now, that the jurisdiction and rules of equity are perfectly established, would you throw on incompetent courts the jurisdiction in equitable cases ? Whether it was originally desirable that the jurisdictions should have been divided is not the question, but whether now, that both jurisdictions are defined and ascertained by known boundaries, they should be blended ? No man who understands the bearing of the question would venture to attempt the task. If you did blend them, or if you established a new jurisdiction, you would be compelled to have new courts and additional judges, who must first learn the present rules of equity, or now establish better than the successive experience of ages-of Bacon, Nottingham, Hardwicke, Thurlow, Eldon, assisted in all times by the judges of England -have given to us: you would supply them doubtless with masters, or clerks, or accountants, or call them what you please, to investigate the accounts and matters, which from their nature cannot be settled at a heat-like a sweepstakes—but require much time to investigate. When all this is accomplished what will the nation gain ?
Probably, after making yourself master of the present rules of equity, you would remodel the code for your new courts. I do not stop to correct your errors as to injunctions, because every one knows they cannot be obtained in the way you mention. If the remedy is at law, and the defendant has recourse to equity, the