1885. COURTS OF CHANCERY, Utility of.—
Even some of the States in our
Union have chosen to do without this court;
and it has been proposed to others to follow
their example in this case. One of two consequences
must follow. Either, 1—the cases
now remediable in Chancery must be left without
remedy, in which event the clamorers for
justice which originally begat this court,
would produce its re-institution; or 2—the
courts of common law must be permitted to
perform the discretionary functions of the
Chancery. This will be either by adopting at
once all the rules of the Chancery, with the
consent of the Legislature, or if that is withheld,
these courts will be led, by the desire of
doing justice, to extend the text of the law
according to its equity as was done in England
before the Chancery took a regular form.
This will be worse than running on Scylla to
avoid Charybdis, for at present nine-tenths
of our legal contestations are perfectly remedied
by the common law, and can be carried
before that judicature only. This proportion
then of our rights is placed on sure
ground. Relieve the judges from the rigor
of text law, and permit them, with prætorian
discretion, to wander into its equity, and the
whole legal system becomes uncertain. This
has been its fate in every country where the
fixed and the discretionary law have been
committed into the same hands. It is probable
that the singular certainty, with which
justice has been administered in England,
has been the consequence of their distribution
into two distinct departments.—
To Phillip Mazzei.
Ford ed., iv, 114.
(P.
1785)
