YET fome delays there certainly are, and muft unavoidably be, in the conduct of a fuit, however defirous the parties and their agents may be to come to a speedy determination. [424] These arife from the fame original caufes as were mentioned in examining a former complaint; from liberty, property, civility, commerce, and an extent of populous territory: which whenever we are willing to exchange for tyranny, poverty, barbarifm, idlenefs, and a barren defart, we may then enjoy the fame dispatch of caufes that is fo highly extolled in fome foreign countries. But common fenfe and a little experience will convince us, that more time and circumfpection are requifite in caufes, where the fuitors have valuable and permanent rights to lofe, than where their property is trivial and precarious, and what the law gives them to-day, may be feifed by their prince to-morrow. In Turkey, fays Montefquieu', where little regard is fhewn to the lives or fortunes of the fubject, all caufes are quickly decided: the basha, on a fummary hearing, orders which party he pleases to be baftinadoed, and then fends them about their bufinefs. But in free states the trouble, expenfe, and delays of judicial proceedings are the price that every fubject pays for his liberty: and in all governments, he adds, the formalities of law increase, in proportion to the value which is fet on the honour, the fortune, the liberty, and life of the subject.

FROM these principles it might reasonably follow, that the English courts fhould be more fubject to delays than thofe of other nations; as they fet a greater value on life, on liberty, and on property. But it is our peculiar felicity to enjoy the advantage, and yet to be exempted from a proportionable share of the burthen. For the courfe of the civil law, to which most other nations conform their practice, is much more tedious than ours; for proof of which I need only appeal to the fuitors of thofe courts in England, where the practice of the Roman law is allowed in it's full extent. And particularly in France, not only our Fortefque accufes (on his own knowlege) their courts of moft unexampled delays in admis de Laud. LL. c. 53.

4 See pag. 327.

" Sp. L. b. 6. ch. 2.

Hh 2

niftering

niftering justice; but even a writer of their own' has not fcrupled to testify, that there were in his time more caufes there [425] depending than in all Europe befides, and fome of them an

hundred years old. But (not to enlarge upon the prodigious improvements which have been made in the celerity of justice by the difufe of real actions, by the ftatutes of amendment and jeofails, and by other more modern regulations, which it now might be indelicate to remember, but which posterity will never forget) the time and attendance afforded by the judges in our English courts are also greater than those of many other countries. In the Roman calendar there were in the whole year but twenty-eight judicial or triverbial days allowed to the praetor for deciding caufes w: whereas, with us, one fourth of the year is term time, in which three courts conftantly fit for the difpatch of matters of law; befides the very close attendance of the court of chancery for determining fuits in equity, and the numerous courts of aflife and nifi prius that fit in vacation for the trial of matters of fact. Indeed there is no other country in the known world, that hath an institution fo commodious and fo adapted to the dispatch of caufes, as our trials by jury in thofe courts for the decifion of facts: in no other nation under heaven does juftice make her progress twice in each year into almost every part of the kingdom, to decide upon the spot by the voice of the people themfelves the difputes of the remoteít provinces.

AND here this part of our commentaries, which regularly treats only of redrefs at the common law, would naturally draw to a conclufion. But, as the proceedings in the courts of equity are very different from thofe at common law, and as thofe courts are of a very general and extensive jurisdiction, it is in fome measure a branch of the task I have undertaken, to give the student fome general idea of the forms of practice adopted by thofe courts. These will therefore be the fubject of the enfuing chapter.

Bodin. de Republ. 1. 6. c. 6.

v See pag. 407.

u Otherwife called dies fafti in quibus

licebat praetori fari tria verba, de, dico, addico. (Calv. Lex. 285.)

w Spelman of the terms, § 4. c. 2.

PHILIP EARL of HARDWICKE.

NEC

ETUAS

CUPIAS NE

Engraved by J.Collyer from the Original, in the poßession of the Earl of Hardwicke .

London Published Jan. 30.1795, by A.Strahan &T.Cadell.

CHAPTER THE TWENTY-SEVENTH.

OF PROCEEDINGS

COURTS

IN THE

OF EQUITY.

EFORE we enter on the propofed fubject of the en

BEFORE

fuing chapter, viz. the nature and method of proceedings in the courts of equity, it will be proper to recollect the obfervations which were made in the beginning of this book on the principal tribunals of that kind, acknowleged by the conftitution of England; and to premise a few temarks upon thofe particular caufes, wherein any of them claims and exercises a fole jurisdiction, distinct from and exclusive of the other.

I HAVE already attempted to trace (though very concifely) the history, rife, and progrefs, of the extraordinary court, or court of equity, in chancery, The fame jurifdiction is exercised, and the fame fyftem of redrefs purfued, in the equity court of the exchequer; with a diftinction however as to fome few matters, peculiar to each tribunal, and in which the other cannot interfere. And, firft, of thofe peculiar to the chancery.

1. UPON the abolition of the court of wards, the care, which the crown was bound to take as guardian of it's infant tenants, was totally extinguished in every feodal view; but

* pag. 45. 55. 78.

b pag. 50, &c.

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refulted