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the basis of “what seemed reasonable * under particular circumstances, regardless of the set forms of procedure followed by the Courts of Law; though doubtless he was to a considerable extent influenced by both principles and precedents borrowed from the praetorian laws of Rome. He thus exercised a very wide power of discretion. As a result of the creation of this new jurisdiction, there arose a keen jealousy between the two sets of Courts, and there existed for many years great hardship to litigants owing to this very strict division in principle between the Courts of Chancery and the Courts of Law. “The evils of this double system of judicature,” says the report of the Judicature Commission (1863-7), “and the confusion and conflict to which it has led, have been long known and acknowledged.” Yet it was not until the year 1873 that the evil was remedied by the passing of the Judicature Act,” whereunder the High Court of Chancery, together with the Courts of Common Law and the Courts of Probate, Divorce and Admiralty, were constituted one Supreme Court of Judicature in England. The statute, moreover, provided that for the future equitable relief should be recognised by all branches of the Court, both law and equity to be administered concurrently; that every Judge should have, and exercise, the jurisdiction of every other Judge; and that in the event of conflict between the rules of equity and those of law, the former should prevail. The result of these provisions is that the Supreme Court is neither a Court of law nor a Court of equity, but it is a Court of complete jurisdiction, and though it is split up for the sake of convenience into various divisions—which are too well known to require further comment here—equitable principles are now equally applicable throughout. It is perhaps unfortunate, and not a little confusing, that in England the terms “equity,” “equitable,” “Courts of Equity,” have been employed also to signify a department of law, that is to say, to distinguish Chancery from Common Law; a more appropriate name, as Austin suggested, for English equity in this restrictive sense would be “Chancery Law.” It must, however, be remembered that this is not its true signification, and especially so since the fusion of procedure in the Chancery and Common Law Courts by the Judicature Act, insomuch as equitable remedies were thereby made applicable in every branch of the Court.
*36 & 37 Vict. c. 66. VOL. XXXIII. C.L.T.-44
It is not uncommonly supposed that prior to the passing of the Judicature Act, the principles of equity were confined in their application to the jurisdiction of the Chancery Courts. This, as we have endeavoured to shew, is quite a mistaken notion; in fact, it is open to question whether the influence of equity was any less operative in the old Courts of Common Law than it is in the King's Bench Division to. day. True it is that since the Judicature Act equitable precedents and rules are to be observed in the King's Bench Division, but this is a very different thing from the applica. tion of equitable principles in the broad sense of reasonable. ness and natural justice. Indeed, as was said by Sir Edward Coke, “reason is the life of the law, may the com: mon law itself is nothing else but reason, which is to be understood of an artificial perfection of reason, gotten by long study, observation and experience, and not of every man's natural reason.” According to scientific principles and in theory it would seem that the almost universal distinction which exists between law and equity is contrary and unnecessary, and that these two should proceed unsevered in the general interests of justice. This is to a limited extent true, but the teaching of jurisprudence has established that such an ideal cannot be fully realised in practice. Law may be, and should be, guided by principles of reason and logic, but it grows under the especial influence of custom and national characteristics, and though the reins of equity may guide its growth and expansion, the remedies which equity has to offer are far too variable to be combined with legal forms. It is interesting to notice here the absorption of equity into the common law and the administration of equity through common law forms which has been practised in Pennsylvania to a much greater extent than in any other community, and has stood the test of nearly two hundred years. The wholesale application of equity which this state has established gives to it an almost unique position in legal history, though it is in fact the result not so much of any preconceived juridical system as of a series of experiments
* Co. Litt. 97 b, also “cessante ratione legis cessat insa lex" (Co. Litt. 70 b).
which were rendered necessary from time to time by the exigencies of circumstance. An attempt was surely made there to squeeze equity into the common law, and thus avoid the necessity of a separate jurisdiction; but this attempt was unsuccessful; indeed it presented but another example of the impossibility of combining equitable remedies with common law methods. Chancery Courts had existed in one form or another in every one of the American colonies, and Pennsylvania eventually discovered that they were essential. The practice adopted in Pennsylvania has its advantages, but at the same time it introduces certain difficulties, and it is not unreasonable to assume that in many instances the equity administered therein is not a technical equity, as we understand it, but is rather that form of natural justice which Austin has characterised as the “Arbitrium of the Judge,” and which not infrequently imports a dangerous discretionary element." Historically the beneficial operation of equity in the solution of difficult and unforeseen problems affords striking proof of the incompetence of the common law to do complete justice without the aid of equitable relief. Indeed, it may be said that the principles of equity have inevitably influenced the growth of the common law from the very first. And though the compilation of decisions of the Courts increases year by year, there still come up for the opinion of the Court innumerable cases for which there is no precedent to guide it in coming to a conclusion, and in such cases the Judge has to exercise his own discretion, having regard to what seems fair and reasonable under the particular circumstances, that is to say, to equitable considerations. To this extent, therefore, equity still pays its part in the expansion of the common law, as Blackstone had recognised long ago. “Whore the subject matter,” he said, “is such as requires to be determined secundum aequum et bonu m, as generally upon actions on the case, the judgments of the Courts of Law are guided by the most liberal equity.” Where there are precedents applicable to a given case, the decision of the Court must as a general rule follow them, whether or not they appear to effect justice and equity in the opinion of the Judge whose duty it may be to enforce them. Equity is assumed to have played its part in the formation of the precedent, and is not permitted to valy it when created unless the surrounding conditions are exceptional. The common law would, of its very nature, be valueless if it might be disregarded wheresoever it appeared contrary to the spirit of justice in the eyes of an individual Judge.
* See Fisher on “The administration of equity through Common Law forms ” (Select Essays in Anglo-American Legal Hist., vol. ii. p. 810.)
"3 Black, Comm. 430.
From time to time, however, circumstances present them, selves in which a modicum of equitable discretion might well be allowed to vary the letter of the law, and thus give effect to the spirit of the law, which is above all, justice, Indeed, in the commercial Court to-day there is evidence of the application of a much broader equity than is permitted to assert itself in any other Court. The difficulty is one of degree. For, as has already been noticed, equity is of neces. sity a variable quantity—an uncertainty which has been described by John Selden in these words: “Equity is a roguish thing; for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is higher or narrower, so is equity.”
This illustrates the grave difficulty in the way of grant. ing to equity an extended influence in the administration of the law. If precedents might be disregarded according as each Judge thought equity demanded it, the variable doctrine resulting therefrom would become the only guide for the Courts and, paradoxically speaking, no decision could ever be decisive. Such a state in the process of the law has been contemplated by Mr. Justice Story in his work upon Equity Jurisprudence, and is there characterised as despotic,
“If, indeed,” he says, “a Court of Equity in England did possess the unbounded jurisdiction which has been thus generally ascribed to it, of correcting, controlling, moderating, and even superseding the law, and of enforcing all the rights, as well as all the charities, arising from natural law and justice, and of freeing itself from all regard to former rules and precedents, it would be the most gigantic in its sway and the most formidable instrument of arbitrary power that could well be devised. It would literally place the whole rights and property of the community under the arbitrary will of the Judge, acting, if you please, arbitrio boni indicts, and, it may be ea. aequo et bono, according to his own notions and conscience, but still acting with a despotic and sove. reign authority.”
* Story, Equity Jurisprudence, 2nd ed., p. 13.
The 36th annual meeting of the American Bar Association will take place at Montreal on Monday, Tuesday and Wednesday, the 1st, 2nd, and 3rd of next month. The meetings of the association are always of great interest as addresses are given by the most distinguished jurists on the American continent, but the present session will be particularly so as among those to be present are Viscount Haldane, the Lord Chancellor of Great Britain; Edward Douglas White, Chief Justice of the United States; Maitre F. Labori, Batonnier de l’Ordre des Avocats a lar Cour de Paris, France, the great defender of Dreyfus; the Hon. Joseph Choate, the Hon. Elihu Root, and the Hon. Frank B. Kellogg, President of the American Bar Association, the Prime Minister, the Minister of Justice, and other gentlemen of equal distinction. The annual address is to be given by Lord Haldane on the subject of “Higher Nationality "-a Study in Law and Ethics. Ex-President Taft will deliver an address on “The Tenure of Judges,” a subject which has been so much under discussion in the United States during the past year. Many important addresses will be also delivered by distinguished members of the association on matters of paramount interest to members of the Bar, and members of the Ontario Bar in as large numbers as possible should endeavour to be present and meet their distinguished confreres from the various parts of the world who are to be present at the meeting of the association, which has honoured Canada by holding its first meeting in the Dominion at Montreal. Arrangements have been made for various entertainments, and those intending to be present should communicate with Mr. R. O. McMurtry, Dominion Express Building, Montreal, who will see that they receive proper accommodation. Among the many interesting events will be the conferring of honorary degrees by McGill University on a number of the distinguished guests of the association. It is to be hoped that Ontario will be well represented and efforts made to induce the association to hold its annual meeting at an early date in Toronto. The editor will be very pleased to forward information to any member of the Bar desiring to be present in Montreal at the meeting of the association.