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CHAPTER XIX.: FOURTEENTH DEVICE—ENTANGLEMENT OF JURISDICTIONS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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FOURTEENTH DEVICE—ENTANGLEMENT OF JURISDICTIONS.
Division of jurisdiction, how far subservient to the ends of justice.
Jurisdiction being considered as divisible, the possible modes of division may be comprised under two denominations; geographical division, and logical, or say metaphysical: the latter comprehending every mode not included under the former.
The extent of the state in question being to a certain degree considerable, division on the geographical principle is prescribed (as has been seen) immediately by the regard due to the collateral ends of justice, viz. saving of the delay, vexation, and expense, attendant on journeys and demurrage.
The division being already carried to as great a length as is prescribed by the mere consideration of the regard due to those ends of justice,—add the supposition of a certain degree of populousness in the districts marked out in conformity to those ends, the disposable time of the one tribunal (if there be but one) may be to such a degree drawn upon, as to be inadequate to the demands thus made upon it. Suppose this to be the case, thence arises an absolute and irrecusable demand for one or other of two operations: a further division upon the geographical principle, a division of the first instituted district into more districts than one (say into two districts:) or the institution of more courts than one (say two) in the same district.
Each of these arrangements has its peculiar advantage. Divide the district into two, each with its separate court, you reduce in proportion the quantum of delay, vexation, and expense, incident to journeys and demurrage; but then you have no emulation. Leaving the district undivided, put two courts into it, each with precisely the same jurisdiction as the other, you get the advantage of emulation. Supposing all other circumstances equal, or, in case of inequality, competent allowance made for it; the number of suits brought in the course of the year in the one court, compared with the number brought within the same space of time in the other court, will, if made public, constitute a sort of index, exhibiting the respective heights at which the reputation of the two judges, or sets of judges, for the time being, stand in the scale of public estimation.
Of these two advantages, the former is much the more certain in its nature. It depends on causes purely physical; causes much steadier in their operation than any psychological ones. It is subject to no accidents: between two places the distance is not apt to change: no expedient can lessen that distance. Of this advantage, however, no notice has been ever taken; at least by English lawyers. How should it? Recognise this circumstance in the character of an advantage, you recognise at once the worthlessness of the system which labours to such an excess under the opposite inconvenience.
The other advantage, being in its nature the more vague and unsusceptible of calculation, is on that very score the better qualified for recommending itself, under a system, with the endurance of which a general habit of thinking with precision is incompatible. To the polemic, to the rhetorician, in whose sight victory is as precious as truth is worthless, no argument is so acceptable as one which he can make as much or as little of as he pleases.
In legislation, first the advantages and disadvantages of an arrangement are sought out and weighed: then, if the advantages are deemed to preponderate, the arrangement receives the touch of the sceptre. In jurisprudence, first the arrangement is observed to be established; this observation made, then comes the problem—Required to find out the advantages of it.
Original short-sightedness had divided the business, upon the logical principle of division, among three courts: mutual rapacity had by degrees broke down here and there the fences: mutual lassitude and impotence have left things in this state. The former arrangement, though made by the legislator, was made so long ago that it could not but have been a wise one: the latter, though made in the teeth of the former, being a work of lawyers, was still wiser. Required to prove it so. No other argument being to be found, the principle of emulation offered itself, and was received with open arms.
That the influence of this principle, so far as it extends, is salutary, seems out of dispute: but as to the subjecting the amount of it to any sort of calculation, the impossibility has already been brought to view.
The effect of the emulation depends upon the notoriety of the proportions: but as to the giving to the public the possibility of being acquainted with them, no such thing was ever done. Publication of tables exhibiting the degree of success in hospitals, is in every day’s practice. Medical men, being destitute of power, have nothing to serve as a ground for business, but reputation: nor anything to serve as a ground for reputation, but desert; or at least statements which, taking them for true, afford presumptions of desert.
If, in both or in either of two courts, the interest created by the love of ease happens to be ever so little stronger than the interest created by love of reputation, the principle of emulation is without effect.
Judge Titius may conduct himself less badly than judge Sempronius, and yet conduct himself in a line of frequent repugnancy to the ends of justice. A system of registration so contrived as to show continually,—in the instance of every judge, of every suit carried on under the direction of every such judge, and of every step taken in the course of every such suit,—the degree of regard paid to the several ends of justice;—such a system would afford a still more steady and uniformly-operating security for good behaviour, than can be afforded by the mere operation of putting two courts with the same jurisdiction into one district, for the chance of the benefit to which, in their instance, it may happen to the principle of emulation to give birth. The superiority has long been constant and decided: the two judges, or one of them, if they live long enough, sink into the vale of years: what then becomes of the emulation, which, fifty or sixty years earlier, both being at Eton or Westminster, would have rendered each so eager to take the other’s place?
Be it allowed, however, that in certain situations it may be, if not upon the whole advantageous, at least not in any very high degree disadvantageous, that in one and the same judicial district (that district not being a very extensive one) there should be two courts, with power over the same sorts of causes (viz. under inconsiderable exceptions, all sorts of causes;) operating according to the same system of procedure; collecting evidence in the same mode and in the same shape; exerting in every case sufficient powers, and therefore in every case the same powers, the one as the other, for effectuating the forthcomingness as well of things as of persons, as well in the character of the matter of satisfaction, and (where necessary) of punishment, as in the character of sources of evidence. Each being possessed of the several powers adequate to those several purposes, each consequently ought to be possessed of the same powers: the powers of each being subjected to the most effectual system of checks capable of being employed consistently with the adequate execution of these several powers in subservience to the several ends of justice, the powers of each ought to be subjected to the same checks.
Such are the terms on which the existence of two courts in the same district may be, according to the extent of the district, either advantageous upon the whole, or not decidedly and in any very high degree disadvantageous: the advantages from emulation, viz. in respect of superior security against misdecision, being set against the disadvantages in respect of increase of delay, vexation, and expense, by journeys and demurrage.
Change the terms in any respect, you will find no cases in which the effects of such multiplicity can be other than disadvantageous.
Give to one court cognizance of causes of one description, to another court cognizance of causes of another description,* each to the exclusion of the other: in the first place you lose the benefit of emulation; in the next place you produce, without any use, the danger of collision. On the part of the plaintiff, uncertainty to which of the two courts he ought to apply, on the occasion of this or that individual cause: on the part of the defendant, uncertainty whether to submit, or not to submit, to the cognizance endeavoured by the plaintiff to be given to the one or the other court, on the occasion of that individual cause: on the part of each court, uncertainty whether it ought to take cognizance of this or that sort of cause.
With the purest intentions on the part of those by whom the line of demarcation is drawn, and with intentions equally pure on the part of those whose duty it is to conform to that line, the application of the metaphysical principle of division has ever been a difficult one, and one which is constantly liable to give birth to those doubts and contestations, the prevention of which is aimed at by it;—with the purest intention in both quarters—much more with sinister and corrupt intentions in either quarter, or in both—much more, again, if the two functions shall everywhere have been (as under the fee-gathering system) united in the same hand, that hand employed in carving out jurisdiction, for itself to fatten upon. It will be matter of difficulty, in the maturest and strongest state of the public mind,—much more must it have been in those ages of barbarity and ignorance in which those lines of demarcation have been scratched in so many directions, with so much emolument to the draughtsman, and so much delay, vexation, and expense, to the suitors, of succeeding times.
In regard, moreover, to modes of collecting evidence, and of securing forthcomingness,—one of the two courts being provided with a set of powers and checks, adapted, in the best manner that can be devised, to those respective purposes,—if, in the provision made in any respect in the instance of the second court, there be any variation, that variation (since by the supposition it cannot be for the better) will either in itself be upon a par with the arrangement that corresponds to it in the case of the first court, or it will be for the worse. The best that can happen to it is to be upon a par: but in this case,—though of itself, by the supposition, either would have been as good as the other,—yet, there being also, by the supposition, diversity without use, the effects of that diversity cannot but, to the extent of it, be purely disadvantageous. In its purest possible state of simplicity, the law, in every part of it, draws upon all men for a portion of labour and intelligence more than all men have to bestow upon it: here is an inevitable imperfection, with the inevitable inconveniences that are its consequences: add to this inevitable degree of complexity (that is, of non-notoriety, and thence of uncertainty) a single degree that is not inevitable, every word thus added is a nuisance.
Distinction between law and equity, how far should it be included in the list of devices?
In speaking of the entanglement of jurisdictions, and in particular of the entanglement created by the sham distinction between law and equity, I mentioned it as an article in the list of devices: it may be expected that it shall be shown by what title it occupies the place given to it in the list.
It will be found that the device is not in the creation, but in the preservation of it. Of itself, it can scarcely make out a sufficient title to the name. In its original creation, it was not mischievous, but beneficial.
Among the contrivances as yet brought to view under the name of devices, not one but what, in proportion as, in effect as well as design, it was subservient to the sinister ends of judicature, was repugnant, purely repugnant, to every end of justice. Equity judicature, though in design directed with as much fidelity as the other to the same ends, and though in effect contributory in a very high degree to some of those ends (viz. the collateral ends of delay, vexation, and expense, considered as the necessary avenues to profit,) was in effect contributory also in a very high degree to the direct ends of justice: to the prevention of misdecision, and of failure of justice.
But, though itself not in strictness entitled to be numbered among the devices purely hostile to the ends of justice, yet so intimate has been its combination with them, so close the alliance, that, in any survey taken of them, the omission of so capital a feature would have left a most material deficiency.
In England, so unexampled was the imperfection of the original scheme of judicature, so many of the exigencies of society had it left without provision altogether, that an addition, from some quarter or other, was matter of absolute necessity. These necessary additions, with an almost inconceivable stupidity, the original set of judges refused to make. By another set of judges, bred up in a different,—a foreign, and in a great degree even a hostile, school,—under the authority, or by the sufferance, of the same sovereign, these additions came by degrees to be made. But the new hands by which these indispensable additions were made, would not work but upon their own terms. The terms imposed upon suitors by the judges of the old school, profitable as they were to the imposers, grievous proportionably to the suitors (rendered such by the set of devices, as above explained,) were not yet grievous enough, were not yet profitable enough, for the judges of the new and foreign school. The home-bred judges shook off by degrees the obstacle opposed to their designs by the presence of the parties, and at last contrived to avoid seeing them till the very last instant, when it is impossible to help it, and when no good can come from it: from first to last, Rome-bred judges never would suffer the parties to come into their presence at all. Home-bred judges, when writing was scarce and dear, insisted upon its being employed, in considerable quantity, to no purpose, or to worse than none: Rome-bred judges refused to meddle with a cause, without a vast and boundless mass of writing employed in the first instance.
The evil done by the judges of the original English school, in respect of the exigencies left without provision,—the evil thus done by them, in so far as doing nothing can be called doing, was immense. The good done by the judges of the Roman school, in respect of the provision made by them for the same exigencies,—the good thus done by them, though done so badly, as well as upon such bad terms, was proportionably extensive. The good thus done, consisted in the aid thus lent to the direct ends of justice.
The evil done by the new workmen in the execution of the new work, consisted in the enhancement of the evils of delay, vexation, and expense: evil done, not for its own sake—of that gratuitous wickedness they must stand acquitted,—but, as in the case of the old workmen, for the sake of the profit extracted out of the expense.
We have seen the engines employed by the old school, in the manufacture of that mass of profit-yielding evil which it fell to their share to organize. In the fabrication of the augmented mass manufactured by the new set of hands, engines the same in the main were employed, but with here and there a variation in the proportions.
All this while, be it never for a moment out of sight, that,—how well soever, when compared with the common-law branch of the technical system, equity, with its peculiar branch of that system, may be entitled to the appellation of a remedy,—compared with the natural system, it is so much sheer abuse. Whatever imperfections equity has corrected, in so bad a way, and upon such exorbitant terms, the natural mode, if suffered to have gone on undisturbed, would have prevented from ever coming into existence: and would, whenever called in, supply the defect, in the best manner, as well as upon the best terms.
How numerous are the instances of necessary rights, for which common law gives no remedy on any terms, nor equity, without keeping the parties for months or years in hot water! but for which a justice of peace, operating in the mode in which he is in the habit of operating as far as the law will suffer him, would give a more effectual and less precarious remedy, in the course of as many hours or minutes.
Think of that remedy, by which (though still a remedy) natural and necessary inconveniences never cease to receive a twenty-fold, a hundred-fold, or a thousand-fold in crease! And this in an age priding itself on its civilization, and in a nation never tired of boasting of its laws.
So long, therefore, as—while a better, an infinitely better, remedy might be had for all the defects of common law—this entanglement of jurisdictions, a remedy so imperfect, and producing so many collateral evils, is allowed to subsist,—so long, although the purpose for which it was created was a highly beneficial one, the preservation of it has an indisputable title to a place in the list of devices.
No man regarding the subject with a view to the ends of justice and the welfare of society, can seriously believe that the existence of two repugnant masses of substantive law—that the existence of two repugnant masses of adjective law, two systems of procedure grounded on repugnant principles,—is really conducive to those ends. If this be so, then to the score of device, of artifice, of fraud, of hypocrisy, must be referred whatsoever composed complacency, much more whatsoever active and busy applause and admiration, we see bestowed upon English jurisprudence, for the felicity it enjoys in the monoply of this peculiar excellence.
Equity jurisdiction, its origin and extent.
Taken by itself, or anywhere else than in company with the word court, equity is abracadabra: a word without a meaning.
To give a meaning to it, you must connect it with the word court, and say, court of equity.*
What, then, is a court of equity? Any court in which the course of procedure is in a certain form: the characteristic of that form being the sort of instrument called a bill in equity: any court in which the instrument, the written instrument, in which the plaintiff states his demand (that is, the judicial service which he calls upon the judge to render to him) bears that name.
To bear that name, it must contain, besides occasional parts, three essential parts: the charging part, containing a statement of the alleged facts;—the interrogating part, containing questions adapted to the purpose of extracting from the defendant a sort of confessorial testimony, admitting the matter of fact alleged, or so much of it as shall be sufficient to warrant the judge in acceding to the prayer;—and the prayer itself, in which a statement is given of the service looked for at the hands of the judge.
The defendant, if he means to combat the obligation of rendering this service, is under an obligation of yielding the testimony thus demanded of him:* the instrument in which it is contained is called an answer, the defendant’s answer, to the plaintiff’s bill.
At the time this answer is delivered in at an office, the truth of it is declared, in general terms, by a vivâ voce declaration, accompanied with the ceremony of an oath.
Of this ceremony, the effect is to deprive a man, pro re natâ, of the benefit of the mendacity-licence, granted (as already explained) to all parties on the occasion of the pleadings delivered in by their respective attorneys, on the occasion of a suit in a court of common law. To the plaintiff, in respect of his bill, the licence is reserved; and he is even compelled to make use of it: to the defendant it is not reserved.
What, then, is equity? Answer: Whatever has ever been done by a court of equity.
A court of equity is a sort of court peculiar to English jurisprudence, and the institution of which took place at a period of time comparatively recent, relation being had to the other courts, called courts of common law.
The powers assumed by this sort of court have applied themselves to the substantive branch of the field of law, as well as to the adjective branch, the law of procedure.
1. To the substantive branch: accordingly you have legal estates, and you have equitable estates. The same estate which by the common-law courts, if applied to, would be given to one man, the equity courts give to another. The same estate, which, upon your applying for it to a common-law court, the court will give to you,—an equity court, upon an application made by your adversary, will give to your adversary. In case of a conflict, or seeming conflict, of this sort, the equity court is the strongest: nor is the common-law court dissatisfied; it has had its fees.
The subject which gives most occasion to this difference, is the interpretation put upon conveyances (wills as well as deeds included:) the interpretation put upon these instruments, or rather, the disposition made of men’s property, on pretence of interpretation. Common law gives the property to one man, equity to another: when a man’s intention, or pretended intention, has been ascertained, equity will sometimes give effect to it, in a case in which common law would refuse to give effect to it.
2. To the adjective branch. In this field, the principal operations of equity may be ranked under two heads:—1. Rendering, for the purpose of giving effect to acknowledged rights, a variety of services, which the common-law courts, through stupidity or inability, had omitted to do; 2. Stopping what was in a course of being done, or overthrowing what had been done, by the common-law courts, upon a variety of occasions.
Between stupidity and inability, the distinction is no other than between cause and effect. Before the equity courts grew up and trenched upon them, the common-law courts did, or might have done, whatever they pleased. There was therefore no inability, but such as was voluntary. Doing abundance of things which they omitted to do, they might not only have done (which indeed was less than nothing to them) more good, but, what was everything to them, have got more money. Therefore, so far as inability extended, it had stupidity for its cause.
From whatever cause, however,—the list of the things which they could not, that is to say, would not, do, was a pretty long one.
What they could do, and did do, amounted to this, they could punish a man—hang him—cut his hands or legs off: they could take a thing, a moveable thing, bodily, from one man, and put it into the hands of another: from a house or a field they could turn a man, head and shoulders, and put him into jail if he came in again: they could take, and at one time used to take (for example, on pretence of your having been outlawed, when it was no such thing) your estate, and divide it amongst themselves: they could take the property of a dozen men (jurymen) together, and destroy or dissipate it: it was what they did as often as a new trial was granted: till about the middle of the seventeenth century, they would not grant one upon any other terms.
What they could not do, was—everything else.
Not one thing whatsoever that a man ought to do, could they make him do. A man had agreed with you to sell you an estate, and you had paid him the money: could they make him put you in possession of the estate, or put you in possession of it themselves? Not they indeed. What they could do, was to punish him, or make a show of punishing him, for not having done it: give you, or make a show of giving you, money, instead of the estate: to raise the money, take his goods, if he had not sense to put them out of the way—take them, sell them, and give you what they fetched: take his goods, or instead of his goods, if he had lands, and had not sense to dispose of them, take half of them, and but half, when double would not suffice.
In regard to the future, and in the way of restraint, they could stop another set of judges, a subordinate court, from doing what they chose should not be done; but they knew not how to deal with individuals: they could stop encroachments upon their judicature, but they could not stop waste. When a house was pulled down, they could punish a man for having pulled it down; when a grove or an avenue was cut down, they could punish him for having cut it down: but as to the preventing or stopping him, it was out of their line. Mischief must first be done, before they would stir a finger to prevent it. When the steed was stolen, then, and not till then, were they ready and willing to shut the stable door. It required equity (when equity reared its head) to stop waste.
Thus, in the way of restraint alone, and that very imperfectly, could they operate upon the future; in the way of compulsion, they knew not how to deal with it.
There was a particular circumstance, to which they were in a considerable degree, if not altogether, indebted for their impotence: and that was, their connexion with a jury.
How a set of men in many respects so arbitrary, came to find themselves hampered with this salutary clog, is among the many historical points involved in darkness: but so it was. By King’s Bench, by Common Pleas, by Exchequer, scarce anything was to be done, but either for or with a jury,
But there are abundance of things that could not be done, and never have been done, nor ever can be done, by a jury: and amongst these are many things so necessary, so strictly necessary, that without them the existence of society, in a state of civilization ever so little above the state of barbarism, ever so little approaching to the present, is a matter physically impossible:—Every function requiring occasional and occasionally repeated superintendence—every function requiring a constant eye to the future, and a ready hand to follow it—everything that was to be done in a cause which, in any one of a multitude of respects, was to a certain degree complex.
Except the anomalous and next to unexampled case where jurymen have been treated like cardinals in a conclave,—whatever is done by a jury, well or ill, must be done in a single sitting: shut up again after they have been turned loose, they are no jury—their claim to confidence is gone. By possibility, a jury may sit together (because they have sitten together) twenty-four hours; but if they have sat together half the time, unless they take their verdict blindly from the judge, he choosing to give it to them, cross and pile would present a better chance for justice.
Habituated to act with a jury, these sages knew not how to act without one: no pipe, no dance; no jury, no justice. With a jury, or, in the meantime, for a jury, was everything to be done: what could not be done with a jury, was either not worth doing, or could not be done. Superstition bears her shackles everywhere: poetry has been cramped by unities: by unities, justice too has been cramped. At the play-house, what could not be squeezed into five hours was not to be represented: in Westminster Hall, what could not be squeezed into twenty-four hours was not to be done.
Of the three common-law courts (the common-law half of each Exchequer judge included,) there was but one, the King’s Bench, that had any notion of bidding any man (except the sheriff) do anything: and if, having received the order (in law-jargon called a mandamus,) a man chose to make a lying excuse, there ended the suit. In a fresh suit, if you could prove the lie upon him, then came work for a jury, and then he might be made to pay so much money as the jury taxed him at: but as to making him obey the order, it was not to be thought of.
From their incapacity of compelling a man to do his duty, coupled with their incapacity of doing anything that could not be done in twenty-four hours, resulted their incapacity for the discharge of a number of functions, on the discharge of which the continuance of society depends.
1. Scarce an act of power, whether over person or property, could they make a man exercise—scarce a trust, as the phrase is, could they make him execute, for the benefit of another. From this they were disqualified, not only by the two causes above brought to view, but by a third likewise.
Most trusts, and in particular all domestic trusts, require continued superintendence:—interposition, not constant indeed, but eventual and occasional, at a moment’s warning. Cruelty, negligence, dissipation, imbecility, have not their long vacation. But the custodes morum, the judges, had, and resolved to have, their long vacation; not one week of it would they part with: the wife might be plagued to death, the child corrupted, the property consumed and wasted,—it was no concern of theirs.
2. If an account of any considerable length wanted settling, they had no tolerable means of settling it. An account with a thousand items in it, five hundred on one side, as many on the other, contains the matter of a thousand suits: were there ten thousand, they would have had no objection to dispose of them, if presented one by one; but, if presented in a mass, they know not what to make of it.
3. If a thing were in dispute between two parties, the one not in possession of the thing could settle it, by bringing an action against the other: but if a third had also a claim, they knew not what to do about it.
4. Destruction of property (houses, trees, and so forth,) they had no notion so much as of stopping, much less preventing, so long as the destroyer had a right to the use of it. Damages, meaning satisfaction in money, they were ready to give, as soon as he had absconded.
5. If a complex mass of property called for distribution, they knew not how to go about it. For every death that took place (not to speak of insolvency,) if the deceased was worth anything, there was a complex mass of property vacant, and requiring to be disposed of; but death was of the number of those contingencies that had escaped their providence.
6. If an executor had promised to pay a legacy left by his testator, they could take measures, as above, for making him pay it: but if, choosing rather to keep the money, he had the wit not to make any such promise, they knew not what to do with him, he might do as he would with it, for anything they could do to get it from him.
In some of these instances, they could not act at all: in others, if they did act, it was so awkwardly and so badly, they had better not have meddled with it. In comparison of their mode, equity, with all its delays, was found a relief.
Here, then, was a gold mine—a mine rich in business: open to any hand that had strength to seize it, and the wit to work it.
The clergy, a set of adventurers who were always on the alert,—the clergy, dividing themselves into two parties, entered and took possession of so many different parts of it: one party with one pretence (that is, with one set of words) in their mouths, the other with another.
Some talked of holy mother church, and souls, and pious uses. For the good of a man’s soul, whatever he had died possessed of, be it what it would, so it were worth having, they were ready to charge themselves with it for pious uses: and of all uses, none were so pious as their own.
The bishops, having for their proper and only ostensible function, the showing men heaven, and keeping them on the right road to it, soon perceived that there was no earthly power which, in such pious hands, might not be made subservient to that pious end. At an early period (not to speak of the goods of intestates, including all the moveable property in the country,) in the line of judicature, they soon got possession of causes relative to testaments, and causes relative to marriage,* with a few et cæteras not worth mentioning here. Being however the delegates of a spiritual authority, rivalizing with the temporal authority of the king, they found their career checked, and limits tolerably precise (the time of day considered) set to it.
The good of souls was their object: the good of souls was their motto: and what is above, with the administering a little fatherly or motherly correction, by the bye, for paw-paw tricks, was all they were allowed to do for it. In testamentary and matrimonial causes, what was done by them, badly as it was done, would scarcely in those times have been done less badly by any other hands.
To another set, a single word, equity, answered every purpose. What little knowledge the times afforded, was in a manner engrossed by ecclesiastics: the king’s right-hand man, his virtual first minister, under the name of chancellor, was of that profession. Whatever in the way of judicature was ready to be done, he was ready for doing it: always understood, so long as money was to be got by doing it. This great officer chose for his motto the word equity: whatsoever a bishop did, was for the good of men’s souls: whatsoever a lord chancellor did, was for equity.
It has been among the artifices of men in power, to fasten upon some abstract term, to beget upon it some ideal shadowy being, from the influence of which on the imaginations of mankind they could derive respect, and into the darkness of which they could occasionally escape from envy and from censure. Ecclesiastics, the sons of the church, were liable like other men to be fools—like other men to be knaves—like other men to be liars: but the church, their holy mother, ever one, ever the same, ceased not for a moment to be all-wise, all trustworthy, infallible. Like other men, men of law, sometimes through imbecility, sometimes through cunning, have ever and anon (not to say most commonly) clothed their conceptions in the language of absurdity: but, that the law herself, or itself, through all vicissitudes, has never ceased to be the perfection of reason, is placed out of doubt by the concurrent testimony of Coke and Blackstone. A judge with the title of chancellor upon his head, and the word equity between his lips, will be no less exposed than a judge with the title of judge upon his head, and the words law, common law, between his lips, to be turned aside by imbecility or cunning into the paths of iniquity and injustice: but that equity is a personage still more perfect than that law which is the perfection of reason, is clear not only by the assumption of all equitymen, but by the confession, more or less explicit, of common lawyers themselves.*
The range of the judicature exercised for the good of men’s souls, found the limits that have just been mentioned: what limits, it will naturally be asked, had equity?
In principle, none at all: what are the occasions on which a judge ought to act otherwise than according to equity?
In practice,—ask for the boundary line of equity? As well might it be asked what line had Ignoramus been describing upon the floor, when he said of himself, Buzzo et torno sicut musca sine caput.
Ask any institutional writer: ask a lord chancellor himself: ask both in one:* —as readily will he undertake to trace out the line described by Ignoramus in his irregularities, as the boundary line of his own jurisdiction, with all its regularity; though not less regular than equitable. To spiritual courts, testamentary causes, matrimonial causes, sins: to admiralty courts, maritime causes. To these jurisdictions, already something of a boundary line in those few words. But to equity courts, what causes? Answer: Equity causes. “What is to accommodate? Why, to accommodate: as if I were to accommodate you, or you to accommodate me: in a word, to accommodate.”
Of your knowing (if it were to be known) what equity is, and whereabouts the line that bounds its jurisdiction runs, the practical use,—supposing you unfortunate enough to have need of something to be done for you by a court of equity,—would be that of your knowing whether it would or would not be done. In such a case, take for your direction the only answer (the only honest one at least) that can be given. Among the scanty and confused accounts that accident has brought to light of what has been done by judges in consequence of a bill in equity, rummage and see, if you can, whether anything like what you want to have done has ever been done, on grounds like those on which you would call for its being done. If yes, and the view taken of the matter by the judge happens to be the same as yours, then perhaps it may be done: if no, then probably it will not be done.
By you, gentle reader, whoever you are (if you be not a lawyer,) I mean your lawyers: for as to yourself, if it were in your power, from any data within your reach, to form any such conception about the matter as would be of any use to you, they, and those whose estate they have, would have been labouring for so many centuries with very inadequate success.
How could it be expected that there should be any line of demarcation between the cases where a court of equity does, and where it does not, interfere? since the limits of its jurisdiction, like that of all other jurisdictions under English law, was left to be settled by a scramble. The history of the scramble would require a volume; a short sketch of it however may be given here: it is highly instructive.
With the single exception of the spiritual power—a power which, disdaining all limits, was comprisable under no rules,—in the new settlement that took place after the Norman conquest, the geographical principle of division, if not exclusively established, appears to have been nearly so, in the great outlines. In each county, a sheriff’s court, competent to every sort of suit: attached to the person of the king, a supreme court, competent to every sort of suit, and moreover exercising a controul over the several local courts.
In an evil hour, this natural simplicity was violated by a wretched attempt at logical demarcation: suits in general (spiritual excepted, as before) were distributed under three unmeaning heads: pleas of the crown, common pleas, and exchequer causes. Exchequer causes meant revenue causes.† Pleas of the crown and common pleas meant nothing at all: but, in a course of ages, a meaning was to be made for them, made by a tripartite scramble: the miserable people, whose property it was tearing to pieces, remaining in hot water all the while. Pleas of the crown, judged of under the cognizance of a set of judges whose principal occupation consisted in hanging men under the name of felons, followed the person of the king in his perpetual rambles. Common pleas and exchequer causes became stationary at Westminster: exchequer causes by custom, common pleas by law.
Attached all this while to the person of the king, was a most indispensable officer, whose business it was to give form and authentication to all permanent expressions of the king’s will and pleasure—to all permanent mandates issued by him—to all contracts to which he was a party. This officer stood distinguished by the name of chancellor. Of the distinguished subjects in whose company the monarch spent his time, those who were not ecclesiastics sometimes could read, and sometimes not:—the ecclesiastics always could: the chancellor was always an ecclesiastic.
What this minister could not find time for, was the administration of justice, or whatever was administered under that name: what he could and did find time for, was to sell permissions to apply for justice elsewhere. By the opening of this shop, the people of England were divided into two classes: to those who could raise the money, justice was sold; to the remainder, it was denied. Note, that what was thus sold at the great shop was not justice itself, but leave to buy it (that is, a bad chance of it) at another shop.‡
Justice was thus regularly polluted at the very fountain head: polluted, by an arrangement, in which the mischief of extortion was the most apparent; but the mischief of complication, an invisible but endless train of mischief, not the less real because too subtle for an ordinary eye to follow, was the most felt.
The judges of the King’s Bench (such was the title given to those who had cognizance of pleas of the crown,) the judges of the King’s Bench, having no right to meddle at all, meddled in comparison but little, in causes between individual and individual: these, under the name of Common Pleas, had fallen to the share of the judges of another court. Besides the rapacity and insincerity inseparably attached under the fee-gathering system to the very station of judge, their conduct was so peculiarly marked by absurdity, and that absurdity so constantly fruitful in mischief and misery, that the complaints of injured suitors running continually to the king left him no rest. These judges were nailed by law to their bench at Westminster: the chancellor was constantly at the king’s elbow. “These people are teazing me to death: these judges seem to have lost their senses. Go out to them; do, my good lord: hear what the people have to say for themselves, and see what is to be done.”
The good lord was a spiritualist: spiritual ideas came last from Rome. What he had learnt, he had learnt at Rome: or at least from those whose learning had come from Rome. At Rome, in addition to polemical theology, in which his lordship was an adept of course, what was to be learnt over and above reading and writing, was Roman law. By Roman law, though everything had been done badly, everything had been done. Of the distresses which, by the outcries raised by them, had given so much disturbance, a great part had been produced by those vacuities, which the stupidity of the judges had rendered them unable, or their obstinancy unwilling, to fill up.
Of the English mode of administering soidisant justice, and of the sort of justice administered in that mode, his lordship knew as little as he cared. With Roman justice, and the Roman mode of administering it, he was more or less acquainted.
Roman law, the seat of monarchical despotism, and the source of the most restless usurpation, had all along been an object of just suspicion to the few great lords, who in their assembly, during its short-lived and precarious existence, shared with the king the power of sovereignty. “We understand little enough of our own laws, but we understand nothing at all of yours: our own we are used to, and we won’t suffer any change.” Such had been the answer by which a project copied from Roman law without thought, had been repelled in like manner without the trouble of thinking.
Popular expressions are a well-known mask, and sometimes an effectual one, for measures that are unpopular, or might otherwise have been so. Equity was a term that had all along been in use, for distinguishing what presented itself as most popular in law. Against whatever changes the reverend Romanist might find himself disposed to introduce in the character of relief, he found a hobgoblin ready armed,—the horror of innovation: to encounter it, he opened his rhetorical budget, and produced the soothing sound of equity. Ye are suffering under the plague of stupid and unjust judges: ye are afflicted: behold in equity, pure and holy Roman equity, behold in it a balm for all your sorrows.
To fill up, in a considerable degree, the gaps which had been left in English law by its home-bred professors, a head was found to be an instrument not altogether necessary: a hand, with a pen in it, was sufficient.
Few, except professed shoemakers, know how to make shoes; few that find any difficulty in fetching a pair from a warehouse. In the Roman law, the clergy had been used to see a sort of warehouse, in which slops of all sorts were to be had ready made, and in any quantity, and without the trouble of taking measure. Nothing could be more fortunate. To take measure of feet for new shoes, would have been found by these adepts a comparatively easy task: to take measure of exigencies for new laws, if the laws were to be good ones, was altogether out of their line; as much so, as out of that of their home-bred colleagues. To make good shoes they would have had nothing to unlearn: to make good laws, had their situation admitted of their harbouring any such wish, they would have had a great deal to unlearn: almost everything they had ever learnt, since they had been learners.
Not but that the field of law had in that school been surveyed long enough, and anxiously enough: but it was in no such point of view. It had been worked in, long enough and industriously enough: but it was to no such purpose. Prepared by jargon, it had been thick sown with iniquity, delay, and vexation: thicker than even the English field: that it might be rich in fees.
A course of procedure for continued inquiries, or for continued interposition, good: from Rome too, or anywhere, if not to be had otherwise, and no better to be had. But equity?—what had all this to do with equity? What more than with so many other fair and pleasant and popular words that might be mentioned?—justice, right reason, or conscience? But equity was the cant word that happened to present itself. One cant word, innovation, had been employed to set men against changes from that quarter;* it required some other cant word to reconcile them to it: this happened to be uppermost. Man calls himself a rational animal, and thus it is he is governed. To govern a camel, the Arabs put a hook into his nose: to govern a man, you sound a cant word in his ear,—church, liberty, equity, jury; and with this the animal with the two legs is led or drawn as you please.
As to equity, cant it was, and nothing else, as anybody may see that chooses it.
What had equity to do with the forcing a man to do what he ought to do, any more than with the punishing him for not having done what he ought to have done? with settling long accounts, any more than with settling short ones? with settling a dispute between three parties, any more than between two? with making distribution of a mass of property taken together, any more than with making a separate disposition of any or all of the articles it was composed of? with making an executor, or any other man, pay what he ought to pay without having promised it, than with making him pay it after he had promised? with making a man fulfil an agreement about a hundred pounds’ worth of land, any more than with making him fulfil an agreement about a hundred pounds’ worth of cows or horses.
One part of the beauties of equity still remains to be brought to view.
In the jurisdiction assumed by the courts of equity, may be distinguished (in so far as, in so thick an entanglement, anything can be distinguished) two branches; which, for this purpose, may be expressed by the terms, the originally operating, or necessary branch, and the controuling, or abusive branch. By the originally operating branch, let us understand that which operates in the cases where the business which is done by equity is not meddled with at all by common law. This branch is that we have been glancing over, and which was rendered necessary, we have seen how. By the controuling branch, let us understand that which operates, where what has been doing, and doing without reproach to those by whom it has been done, at common law, is, at the mere suggestion of the defendant, overturned if he prevails, stopped for an indefinite time at any rate, by a court of equity.
Among the various classes of depredators, one has been distinguished in which they hunt in couples. One of the pair runs violently against a man, and knocks him into the kennel; the other, with sympathetic eagerness, runs up to his assistance, drives off the assailant, helps up the sufferer, and picks his pockets. The ruffian thief is common law; the hypocrite thief is equity.
Of the controuling branch of equity business, the principal part will be brought to the view of the man of law by the word injunction: injunction, applied to the stopping of proceedings in a common-law court.
A view has been given of the species of sham justice called special pleading: the practice of injunctions is a sort of aggravation of that grievance. The same fraud, the same hypocrisy; but, by means of still more barbarous vexation and delay, productive of still richer pillage.
For a twelvemonth or so, your debtor has been fighting you off in a common-law court: the powers of common-law delay are exhausted: you are on the point, as you suppose, of getting your due: in comes a writ of injunction, and now you are at the commencement of a suit in equity.
The pretence may be, no matter what; since, for the purchase of the delay, there is no sort of use in its being true. The following is as natural as any; in the common-law suit, the decision in your favour was grounded on the evidence of some one else; but you, in the common-law suit the plaintiff, now by the equity suit converted into a defendant,—you, of your own knowledge, know, as you have done all along, that the fact on which the verdict was grounded was not true. The common-law judges will not allow you to be interrogated; the equity judges will; there needs therefore a suit in equity.
The pretence may be as mendacious, as in the case of the common-law pleadings: for the same providence that granted the mendacity-licence in that case, extends it on to this.
In a court of conscience, the same common sense and common honesty that reprobate special pleadings, would have reprobated the injunction along with them. Your debtor being in the presence of the judge, and you in the same presence at the same time,—whatsoever each of you knows in relation to the fact in dispute, would have come out upon the spot, extracted by your reciprocal interrogations.
You see how poor a resource special pleading is, in comparison with an injunction; that is, would be, if either were to exclude a man from the benefit of the other. A sham plea, if it comes at all, must come in the middle of the suit: and the suit, though it has ever so many of them, is still but one suit, and that but a common-law suit. But an injunction is an entire suit, a second suit, and that an equity one, piled upon the first. The common-law suit is a dwarf; the equity suit, a giant mounted upon his shoulders.
By the injunction, the common-law suit may indeed be stopped at any stage—may be stopped at the earliest. But your adversary and his solicitor know little of their business, if they bring it out a single moment before the last.
Note well here in what the abuse consists. Not in the giving powers for compelling the testimony of the party; for without such powers there is no justice.
The abuse, then, consists, not in the giving of those powers; but in the leaving to him, who wishes for them to no other purpose than that of an instrument of abuse, the faculty of delaying the use of them to so late a period; and by sending him to a fresh court, obliging him, as well as enabling him, to plunge his injured adversary, as well as himself, in the depths of a fresh suit.*
Of the morality of the priest of equity, let three short features of his divinity serve as a sample:—1. For mendacity, so long as your debtor confines himself to the character of plaintiff, care is taken never to punish him: accordingly, lest he should be punished, care must be taken that mendacity shall not be perjury. 2. For abstaining from mendacity, were he ill enough advised to do so, he would be punished: he would be punished by the loss of his cause: for, of whatever fact the plaintiff is not informed, and therefore for the requisite information applies to the defendant, he must give to understand that he (the plaintiff) is informed, saying that it is so and so. 3. If, for the proof of any fact on your part, you have need of the confession of your part, you have need of the confession of your debtor, care has been taken that you shall not have it without a third suit, a second equity suit, in which you are to be plaintiff, with the benefit of the mendacity-licence, and under the same obligation of making use of it.† All this under the notion of affording, at the end of two, three, or four, years, a chance, but that a very inferior chance, of that justice which in a court of conscience, in the self-same case, would have been administered in less than a thousandth part of the time.
By the originally operating branch of the equity business, the mischief of delay, vexation, and expense, is simply augmented: by the controuling branch it is more than doubled.
When common law has picked the bones of a cause, equity comes in and sucks the marrow.
To the evil produced by superior rapacity, as between court and court, is added the evil that results from the having two courts to be dragged through, instead of one. The device of bandying a cause from pillar to post is thus employed, and with increased effect. It is bad enough to the suitors, when the suit is to be bandied from court to court in the same system of courts: when bandied from system to system, the journey is longer, and still worse.
To the evil of more than doubled delay, vexation, and expense, is thus added the evil of complication. The evil of enhanced delay, vexation, and expense, is the more prominent and sensible; the mischief of complication is more radical and extensive. Confusion in practice is thus fixed and protected by confusion of ideas. In the language of lawyers, and thence in the conceptions of their dupes, oppression being confounded with relief, men are prepared to cling to both with equal pertinacity.
When the two sets of courts were at daggers-drawn, the suitors were crushed by their collision. For above a century and a half they have been upon the best terms; and all this time the suitor has been a sufferer by their confederacy: discordia pestis, concordia exitium.
Had either got the better, the suitor would have had but one court to be dragged through, and now he has two.
Mark well the profundity of the artifice. In virtue of the mixture of the two systems, and the confusion generated by that mixture, mischief is everywhere, blame nowhere.
Common-law procedure is imperfect: shall not the imperfection be supplied? Equity therefore is indispensable. But would equity suffice without common law? Still less; for, besides the still more excessive delay and expense, its jurisdiction is composed of nothing but a few scanty and incoherent scraps, and it trenches upon trial by jury. Viewed with reference to the ends of justice, neither is superfluous, both together are wretchedly inadequate: viewed with reference to the ends of judicature, neither is superfluous, both together constitute as perfect a system as heart could wish, or ingenuity devise.
Viewed with reference to the ends of justice, the natural system, as exemplified in the practice of courts of conscience (though wanting powers, such as might easily be given to it, to fit it for universal use,) is beyond comparison more efficient than common law and equity put together: but, in proportion as it approaches to perfection with reference to the ends of justice, in the same proportion is it inapplicable with reference to the ends of judicature.
Chaos is the grand rampart of chicane: and for the organization of chaos, the services of equity have been beyond price.
Absurdity of the distinction between courts of equity and courts of law.
Two sets of courts, professing to pursue the same ends, but by different and discordant means means so completely discordant, that, though both systems may be wrong—wrong to any degree,—yet by this discordance alone, were there no other cause, it is rendered impossible for them to be both right.
Common law with you, equity against you. And has it ever been seriously imagined that there exists in the nature of things any difference corresponding to this difference in sounds? that in the same sort of case, in the same individual case, there should be two sets of courts, one proceeding and bound to proceed by one set of rules, the other by another set of rules; the one bound to do what the other is bound to undo; one bound to govern itself by a set of rules, which, if the rules by which the other is bound to govern itself be right rules, cannot but be wrong ones? Is this duplicity a real improvement?—are the ends of justice served by it? If so, why not pursue the example of improvement as far as it will go?—why withhold from the country the benefit of more and more sets of mutually repugnant rules? If such be the advantage of placing the suitor in the service of two ever-jarring masters, law and equity, why not give him as many more such masters as in heaven there are stars? If such be the advantage of setting the work of common law to be undone by equity, why not set conscience to undo the work of both, rectitude of all three, propriety of all four, and so on without end?
Why refuse the benefit of that improvement to so many causes as are tried by courts of conscience, and by justices of the peace out of general sessions? Why not to each such magistrate two sets of ears for the oyer, and two sets of voices for the terminer of each cause?—an ordinary pair of ears for hearing according to law—a longer pair of ears, upon the pattern of Midas’s, for hearing according to equity? an ordinary voice for pronouncing according to law—a falsetto for pronouncing according to equity?
Why not, for the purpose of diminishing the mass of misdecision, vexation, expense, and delay, in the practice of courts of conscience, divide the commissioners into two sets, one sitting on the left side of the court, the other on the right side; the left side acting by rules which bind them to give the cause in favour of the plaintiff—the right side by rules which, in the same individual cause, bind them to prevent the plaintiff from getting anything by the decision; and ready at any time to put a stop to the cause, from first to last?
Or if precedent be preferred, why not bestow upon the judges of courts of conscience the duplicity of nature possessed for so many hundred years by the court of Exchequer? Why not give to every court of conscience the same ideal division into two metapysical sides—the common-law side and the equity side; by the help of which, sitting always on the same bench and on the same part of the same bench, they may have their equity days and their common-law days; as in certain shops a lady may choose whether she will buy the same muslin dear or cheap, by paying her visit on an ordinary day or a cheap day?
Can any man of common sense and common honesty lay his hand upon his heart, and say of this learning, that it is anything better than elaborated confusion, and licensed pillage?
And is this dupery to be among the glories by which British freemen are raised above continental slaves?
In England we had a court once, that sat in a chamber, with stars for ornaments on the roof of it. It had of course, like its fellows, a set of rules of its own. We had then star-chamber justice, in addition to equity justice, and common-law justice. Star-chamber justice has been convicted, and has abjured the realm.
In France there was a sort of court once that sat in a chamber with a marble table in it, court of the marble table was accordingly the appellation given to it: there we see marble-table justice.
If justice be good in proportion to the number of its varieties,—after reviving star or star-chamber justice, as we have imported equity justice from Rome, so from France let us import marble, or marble-table, justice.
The same learned persons who at present have so distinct a perception of the difference between common-law justice on the one part, and equity justice on the other part, and the absolute necessity there is for equity justice in addition to the other, will then have a perception equally distinct of the difference between common-law justice and equity justice on the one part, and marble justice on the other; and the equally urgent necessity there will then be for marble justice, in addition to both the old sorts. Always understood, that it be sold according to a different set of rules, and that there be a different set of courts or shops for the sale of it in this new shape, with a more liberal price upon it, proportioned to the superior beauty of the shape.
Trust, fraud, accident: in these three leading terms, the institutionalists used to behold the essence of all the powers exercised under the name of equity. Trust, yes: it has already been seen how, for want of knowing its value, law having, along with so many other pearls, thrown it upon the dunghill, equity picked it up. But fraud and accident, how short are their united powers of being able to typify the smallest part of the work that has already passed before us? Fraud? As to combating if, yes:—doubtless, among the frauds which law was so busy in organizing or protecting, there were some which equity scrupled not to fight with: better get money, though it were by doing good, than not get it at all.
But law too, especially in these latter times, law came gradually to discover that there are frauds and frauds: that if some are to be supported, policy requires that others should be fought with: and that, in short, whatsoever are destined to be defeated, better that law herself should have the defeating of them, than that the job should be left to equity.
Meantime, if it be proper that one judge, with equity in his mouth, should be occupied, or destined to be occupied, in defeating frauds, can it be endurable that another judge, or, at another time, the same judge, with common law in his mouth, should be occupied in the support of them?
And what was the legislator about, while two sets of judges, both being, or professing to be, under his command, were thus busying themselves in opposite ways about fraud—one employed in setting it up, the other in overthrowing, or making believe to overthrow it? Answer:—Fast asleep, as usual: foxed by essence of nonsense, poured down his throat on both sides.*
If a separate court could ever be eligible for a particular sort of causes, it would be for complex causes: for causes which, in their nature, requiring an indefinitely protracted portion of the judge’s time, necessitate delay; or, with less prejudice than the great bulk of causes, admit of it.
In the courts called equity courts, so it happens that causes of this description are found almost exclusively, in comparison with the courts of common law. Why? Because, the constitution of these latter courts confining all the real part of the business within the compass of a single sitting, and this cramp not extending to the equity courts, the latter description of courts are the only courts (the ecclesiastical courts excepted) in which, well or ill, the sort of business here in question can be so much as pretended to be done.
But, avoidable or unavoidable, what has complication to do with equity? Under Rome-bred law, all over the continent, causes of this complicated description are disposed of; and in no part of the continent is any such sponge or any such scourge known, as a distinct sort of court, under the name of an equity court.
Yes: in equity may be seen a curse peculiar to English justice. Poland has her plica; the Alps, their goitres; England has her equity. This plague (be grateful, Scotland!) has not crossed the Tweed.
In Scotland, these complex causes are disposed of as well as simple ones: and in Scotland there is no such court as an equity court; unless indeed it be said that (what comes to the same thing) for a supreme civil court (vexation, expense, and delay considered) there is no court but an equity court.
In all countries, it is true, equity is spoken of—that, or the equivalent, whatever be the language. Judgment for the plaintiff more strictly conformable to the letter of the law, where there is a law; judgment for the defendant more consonant to equity. Equity spoken of as rectitude, propriety, probity, good faith, may be spoken of: the dictates of justice, as contradistinguished from the dictates of a bad law.
In every country where there are bad laws, there will be equity in this sense: in no country except England is there any such thing as equity, in the sense of another and a distinct body of law. In no other country are there two sorts of law—a sort of law called equity, a sort of law called law, in a continual state of conflict with one another. It is not the word that is the grievance: it is the two sets of judges pulling different ways, and, between them, tearing to pieces the property of the suitors: it is the oscitancy of the legislator, sitting mute and drivelling, while under his nose two sets of servants, both saying to him,—“Lord, lord!” are ordering and disordering the concerns of his household, laying about between them and pillaging according to as many repugnant sets of rules, never pre-announced, and (as completely as they could be made and kept) to all but learned eyes inscrutable. It is the mountebank imposture of a particular set of dealers, pretending to possess a monopoly of that almost everywhere too-dear priced commodity, which, if honestly sought for, would be found everywhere or nowhere. This is your only shop for equity! None to be had anywhere else for any price!
Equity! applied to what we feel of the practice of the courts to which it has given a name, it is a term of derision, a cruel mockery.
Equity! in what class of ideal beings is it to be found? Is she like justice, a sort of goddess, and would you see her likeness? Look for it among Jefferies’s and Kirk’s lambs. Is it a remedy? It sweetens like sugar of lead: it lubricates and soothes like oil of vitriol, or butter of antimony.*
War between law and equity—Compromise between them—Its monstrous results.
For a long time (as has already been observed) law and equity were at daggers-drawn. In proportion as time had given to each a more correct view of its own interests, it came to be understood on both sides, that there existed not in fact any such opposition between those interests, as had been imagined. Ages ago, like Lockit and Peachum, they shook hands and embraced. Since then, instead of righting and scolding, their activity has employed itself in finding out ways and means for playing into each other’s hands.* Why should law quarrel with equity, for having found a use for some of her refuse? When my lord chief justice has had his pickings upon the error, how is he the poorer, if the bones of the cause go to be picked on the other side of the passage? One day out of twenty, a fit of daintiness takes my lord chancellor: he won’t try the cause, not he; not for this time without proper evidence: such cookery as his own establishment affords is not nice enough; the mess must go over the way, to be dressed in a style in which nobody but law knows how to dress it: and then it is that an issue is sent to be tried by the lord chief justice, sent with as polite a grace as if it were a slice of venison, dispatched with his lordship’s compliments, to be tossed up over the lamp on the other side of the table.
For a long time, no conception was entertained of the possibility that equity justice and common-law justice could be woven in the same loom, or measured out from the same shop. In process of time, when the two sorts of dealers had coalesced, and learnt to play into one another’s hands, a grand discovery was made. Not only might the two sorts of courts carry on trade in a connexion, and to their mutual advantage: but one and the same man (it was found) might manufacture both sorts of goods, and serve out both sorts of ware at once. To manage this, all that was necessary was, that each man should practise the art of dividing himself into two halves, neither half knowing what the other is about, until the critical moment when the time comes for the equity hand to raise itself, and in such manner as by its fall to stop or overturn the work that has been done by the common-law hand.
Hence it is that England not only has been, but still continues to be, so fruitful in a sort of monster, such as Africa, with all her monstrosities, never yet disgorged: a sort of judge, a double-faced and double-fee’d judge, with a conscience that has two sides to it; the two surfaces with no more communication between them than between the plus and the minus side of the Leyden phial, before the chain or the wire has brought about an intercourse: two half consciences, each as ignorant of what is done by the other as the right hand and the left (though to a purpose somewhat different) have been taught to be: the equity conscience bound by sympathy in the hands of sleep, while the common-law conscience is spinning out delays, and picking up fees—fees predestined to be useless to everybody but the receivers.
Here, then, and from hence, you may see sights such as Pidcock never could show:—
1. In Westminster Hall, under the name of barons, one chief and three puisne judges, each with the two half-consciences.†
2. In the city of London, a lord mayor, with a conscience for a year together, but no longer, thus split into two halves.‡
3. In Wales, duplicity doubled; six eminently learned persons, in England advocates, in Wales judges;∥ each with the two half-consciences.
4. In Ireland, where each English abuse is so sure to find a younger brother, a set of monsters of the same breed, except that Ireland has no Wales.
5. In the distant dependencies, here a lawyer, or set of lawyers, each with his two technical half-consciences; there a governor, with the technical equity half, in addition to whatsoever entire conscience he may have received from nature.
Imagine the following dialogue between a non-lawyer, an English lawyer, and a French lawyer.—
French Lawyer.—Everything as it should be? Yes, that it is of course, whatever it is; and yet I hear odd things of it. They tell me you have judges who, give them so much money, decide in favour of the plaintiff: give them so much more money, morblen, they decide in favour of the defendant. Pray is this true? How stands this matter?
English Lawyer.—What judges, what courts are you speaking of?
French Lawyer.—I understand there are a whole heap of them, more than I could remember, had they all been named to me: say, for example, the great court of Exchequer in Westminster Hall, and all the great travelling Welsh courts. In these instances, then,—for these are enough, I suppose, at least to begin with,—pray, is the report true?
French Lawyer.—Diable! And is this generally known?
French Lawyer.—But pray what says your parliament to all this corruption?
Non-Lawyer.—Corruption? Hold, sir;—there you are in a mistake. Were this done by judge A alone, or judge B alone, in a case between C and D, and not in a case between E and F, this would be corruption; for this would be irregular: but being done regularly, that is, by every such judge, in favour of every defendant who comes up to the terms, and that in every individual case whatever of this and that general description, there is no corruption in the case.
Another thing:—corruption is an offence: an offence is something contrary to law: but this is all of it according to law.
French Lawyer.—Criminal if in retail, lawful if by wholesale! an odder sort of trade still than I expected to find it. Yes; let him sit on counter, bench, or woolsack, an Englishman, wherever he is, is a shopkeeper. But, pray now, tell me a little, how is it managed? The parties being met in the presence of the judge, does the judge give notice immediately, and say—Here, Mr Plaintiff, give me so much, and I give the decision in your favour; unless you, Mr Defendant, think it worth while to give me so much more, and then I give it in yours?
English Lawyer.—Parties in the presence of the judge! The court a regular court, you a lawyer, and suppose any such thing suffered in it! The cause may have been before the court for six months, or twelve months, or ever so many more months, and, unless by accident, the judge may know no more about it than you do. At last comes the trial: and then it is that the judge, that is, either one of the four judges of that same court, or some one judge of some other court, known of it for the first time.
French Lawyer.—Well, but when at last he does hear of it,—and do, for shortness, let us suppose it to be a judge of that same court: how then at last does he manage?
Non-Lawyer.—We must put a case;—let one serve for a hundred. Bond by which Ligatus engages to Vinctor not to do so and so under a penalty of twenty pounds: action on the common-law side of the court by Vinctor, alleging a breach, and claiming the penalty. Breach proved, the judge says to the jury, if you believe the witnesses, you will find of course for the plaintiff: damages twenty pounds.
French Lawyer.—Good: but what chance has the defendant all this while?
Non-Lawyer.—Have patience. In the court of Exchequer, and all those other double courts, every judge has two consciences, with a partition between them, and an ear and a hand for each. As yet it is only the common-law conscience that knows anything about the matter,—the common-law ear being the only one that has been spoken to, the common-law hand the only one touched. What you are expecting is, that Vinctor will get his twenty pounds. Ligatus knows better things. When the judge directed the twenty pounds to be given to Vinctor, it was because his equity conscience, with its ear and hand, knew nothing about the matter. Four or five months after, just as Vinctor is going to take out execution, in steps Ligatus into the equity office, and files his bill. Equity ear is whispered into, equity hand touched, and so forth. Hand touched, up it starts, by a pre-established harmony and, without any expense of thought (for all this is done by mechanism,) lays hold of the common-law hand, and stops it: Vinctor may now bid adieu to his twenty pounds.
French Lawyer.—Good: but surely what the equity conscience will do is no secret, and the equity hand, being the strong hand, stops the other of course. A mighty pretty case this of yours: but, begging your pardon, where was the use of putting it; for where is the man that will realize it? Will any counsel be weak or dishonest enough to advise a client to be at the expense of claiming a penalty under a law that may be stopped at any time?
English Lawyer.—Dishonesty indeed!—the thing nor punishable! You a lawyer, and talk about dishonesty! As to weakness, there is none in the case.
Non-Lawyer.—It is all matter of calculation. You see there are two prices. The price of law is so much—the price of equity is so much more. The first thing for Vinctor to consider, is the state of Ligatus’s finances. What cares Vinctor for the equity hand, if Ligatus cannot pay the price for raising it? Suppose Ligatus’s finances not altogether insufficient, then, along with his temper, it will be advisable to think of the magnitude of the penalty. Due or not due in point of honesty, Ligatus—if so it happens that, being well advised, he loves himself better than he hates his adversary—Ligatus will pay the twenty pounds. Besides the chances of not obtaining the relief after all, he will find himself not a little out of pocket, when he has obtained it (if to obtain it be his fate) by addressing himself to the equity side of the learned and double conscience.
French Lawyer.—So, then, you have in England, if I understand you right, two opposite sorts of law, the one or the other of which prevails, according to the form in which the plaintiff addresses himself to the judge. We had once a double diplomacy; you, according to your Burke, a double cabinet: but now it seems you have constantly a double bench, and one should think a double parliament: and this is the equity you are so proud of!
Non-Lawyer.—True, except as to parliament. The eye of parliament is single, would it but awake. But whenever equity has been on the carpet, parliament, as if blindness were a duty, has always been fast asleep.
French Lawyer.—And so, then, the effect of this duplicity is to have one sort of justice to sell to the poor, and another to the rich: and the rich man’s justice so much the stronger of the two, as to turn the poor man’s into waste paper!
Non-Lawyer.—Not exactly so: unless a particular explanation be given to the words poor and rich, and for this particular purpose.
As for the poor,—if by the poor you mean the great majority of the people, there is no regular justice for them at all, unless it be for hanging them, or something in that style: the only classes concerned here, are two higher and much less numerous classes, the middling, and the class above the middling. It is between these two classes alone that the distinction lies; or, if you must say poor and rich, say the relatively poor and the relatively rich. It is as between them (to the extent of the debateable ground that lies between common law and equity) that the two sorts of justice are distinguished, and the two prices put upon them: to the relatively poor, a dear sort of justice, which is not the strongest—to the relatively rich, a sort of justice which is still dearer, but is the strongest.
[* ]It might appear at first sight, that, on the supposition of a quantity of business greater than can be dispatched in the disposable time of a single court, and, therefore, of an adequate demand presented for two courts, it would be desirable to make a separation of the whole mass of causes into simple and complex causes—allotting the simple causes to the one court, the complex ones to the other.
[* ]England had once its court of star-chamber: France its court of the marble table. Explain the business of a court of equity by a definition of equity? As well might you explain the business of the star-chamber by the definition of a star, or the business of the cour de la table de marbre by the definition of marble.
[* ]Except the comparatively rare cases of a plea, and a demurrer, not worth explaining for this purpose.
[* ]Reg. Brev.
[* ]Equity is, in its original signification, exactly synonymous to its conjugate equality. In a certain description of cases, though that comparatively a narrow one, the dictates of utility require that, in the allotment and distribution made by law of benefits and burthens, to or amongst individuals standing in certain relations to each other, the proportion of equality should be observed. In so far as this state of things has place, it is right and proper, because it is most for the advantage of the community upon the whole, that such an allotment and distribution of the objects in question should be made by the substantive branch of the law. In so far as the allotment so made by the substantive branch of the law has been adjusted to this principle, justice requires that such allotment and distribution should be conformed to and carried into effect by the adjective branch of the law; in other words, by the system of procedure.
[* ]Mitford on Equity.
[† ]By an exchequer, was meant a table in which squares of two different colours were ranged in alternate order: an excellent sort of table for several very amusing games—a very indifferent one for arithmetical calculations. Before the introduction of the Arabian arithmetic, it was in general use for that purpose. Having now for several ages ceased to be employed as an instrument, it is still seen serving as a sign in public houses.
[‡ ]Out of this abomination has sprung (to name one out of a thousand) the option between proceeding by original and by bill, in most sorts of causes not criminal; a demand of debt for instance. As the chancellor had found means to oppress the people, the judges found means to cheat the chancellor. Without waiting for his permit, they made a succedaneum to it in their own manufactory, and sold it for their own profit: and without any other expense than a few lies; for ink and parchment were found by the plaintiff. This spurious equivalent they called a bill: the genuine one retained or acquired the name of an original (an original writ.) Of the qualities possessed by the chancellor’s ware, there were some which somehow or other they could not contrive to give their own: accordingly they sold them at a cheaper rate. One of these properties was that of converting the defendant into an outlaw; of which above, in Chap. XIII. Chicaneries about Notice. Another advantage in dealing with the chancellor was, or at least is, that, in case of appeal called writ of error, you save one stage of jurisdiction: in time, from half a year to a whole one or more: in money, between £20 and £30.
[* ]Nolumus leges Angliæ mutari.
[* ]We have seen the purposes in respect of which admission of the parties with their testimony in the first instance, and if possible in the shape of vivâ voce testimony, is essentially conducive to the ends of justice. We have seen the fatal success with which common law had laboured to exclude all that body of light, in her workings towards the sinister ends of judicature. Equity, by partial admissions given to the excluded lights, though but too frequently broken into false and fallacious colours, has, upon her own extortionate terms, in a group of cases considerable in number and extent, rendered to justice a perhaps unintended service, while occupied in preserving to her own profit the sinister ends of judicature. Here follows a list, or at least a large sample of these cases:—
[† ]By these three observations, a short, but of itself conclusive, proof is given of the intimacy of the connexion between the exclusionary system, and the entire technical or fee-gathering system, of which it forms at once an instrument and a branch. It is to give the requisite facility to the operations of profitable injustice, that the door has been so frequently shut against the light of truth.
[* ]As to accident, the idea pointed out by the word is so vague, and requires so much explanation to fix it, that it would be impossible to pursue it without plunging into details diverging too widely from the present purpose. Death, as we have seen, being among the contingencies too strange to be provided for, it may be imagined how well qualified these sages were for coping with other accidents.
[* ]Lawyer.—Well, sir, you who are pleased to rail thus against equity, can you tell me what equity is?
[* ]Mitford, p. 128. “Indeed, in most cases it is held, that the plaintiff ought to establish his right by a determination of a court of law in his favour, before he files his bill in equity.” In this way it is that equity “prevents multiplicity of suits.” It compels one suit, under the notion of preventing others that might never have taken place.
[† ]Any one of the Barons of the Exchequer may sit in equity.—Ed.
[‡ ]The Lord Mayor, by virtue of his office, is judge of a court called the Lord Mayor’s Court, which possesses to a certain extent an equity jurisdiction. The Recorder usually presides in this court.—Ed.
[∥ ]By the 11 Geo. IV. and 1 Will. IV. c. 70, § 14, the Welsh courts are abolished, and jurisdiction over Wales given to the Westminister-Hall courts.—Ed.
[* ]It might appear at first sight, that, on the supposition of a quantity of business greater than can be dispatched in the disposable time of a single court, and, therefore, of an adequate demand presented for two courts, it would be desirable to make a separation of the whole mass of causes into simple and complex causes—allotting the simple causes to the one court, the complex ones to the other.
[a ]Ship on the point of sailing; female in the hands of a ravisher on board of it. Other cases might be instanced in abundance.