judgment by writs in the nature of appeals, we arrive at it's final execution; which puts the party in specific possession of his right by the intervention of ministerial officers, or else gives him an ample satisfaction, either by equivalent damages, or by the confinement of his body who is guilty of the injury complained of.

This *care and circumspection in the law, -in providing that no man's right shall be affected by any legal proceeding without giving him previous notice,* and yet that the debtor shall not by receiving such notice take occasion to escape from justice; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the question either of law or of fact; in deliberately resolving the former after full argumentative discussion, and indisputably fixing the latter by a diligent and impartial trial; in correcting such errors as may have arisen in either of those modes of decision, from accident, mistake, or surprize; and in finally enforcing the judgment, when nothing can be alleged to impeach it;-this anxiety to maintain and restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other individual in the nation, this parental solicitude [423] which pervades our whole legal constitution, is the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen. At the same time it inust be owned to have given an handle, in some degree, to those complaints, of delay in the practice of the law, which are not wholly without foundation, but are greatly exaggerated beyond the truth. There may be, it is true, in this, as in all other departments of knowlege, a few unworthy professors: who study the science of chicane and sophistry rather than of truth and justice; and who, to gratify the spleen, the dishonesty, and wilfulness of their clients, may endeavour to screen **Quoted, 6 Ga. 36.

the guilty, by an unwarrantable use of those means which were intended to protect the innocent. But the frequent disappointments and the constant discountenance, that they meet with in the courts of justice, have contined these men (to the honour of this age be it spoken) both in number and reputation to indeed a very despicable compass.

Yet some delays there certainly are, and must unavoidably be, in the conduct of a suit, however desirous the parties and their agents may be to come to a speedy determination. These arise from the same original causes 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, barbarism, idleness, and a barren desart, we may then enjoy the same dispatch of causes that is so highly extolled in some foreign countries. But common sense and a little experience will convince us, that more time and circumspection are requisite in causes, where the suitors have valuable and permanent rights to lose, than where their property is trivial and precarious, and what the law gives them to-day, may be seised by their prince to-morrow. In Turkey, says Montesquieu, where little regard is shewn to the lives or fortunes of the subject, all causes are quickly decided: the basha, on a summary hearing, orders which party he pleases to be bastinadoed, and then sends them about their business. But in [424] free states the trouble, expence, and delays of judicial proceedings are the price that every subject pays for his liberty: and in all governments, he adds, the formalities of law increase, in proportion to the value which is set on the honour, the fortune, the liberty, and life of the subject.

From these principles it might reasonably follow, that the English courts should be more subject to deq See pag. 327. r Sp. L. b. 6. ch. 2.

lays than those of other nations: as they set 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 course 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 suitors of those courts in England, where the practice of the Roman law is allowed in it's full extent. And particularly in France, not only our Fortescue accuses (on his own knowlege) their courts of most unexampled delays in administering justice; but even a writer of their own has not scrupled to testify, that there were in his time more causes there depending than in all Europe besides, and some 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 disuse of real actions, by the statutes 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 prætor for deciding causes: whereas, with us, one fourth of the year is term time, in which three courts constantly sit for the dispatch of matters of law; besides the very close attendance of the court of chancery for determining [425] suits in equity, and the numerous courts of assise

8 de Laud. LL. c. 53.

t Bodin. de Republ. l. 6. c. 6.

▼ See pag. 406.

u Otherwise called dies fasti, in quibus licebat prætori fari tria verba, do. dico, addico. (Calv. Lex. 285.)

w Spelman of the terms. § 4. c. 2.

8 Previously, "hearing."

8

and nisi prius that sit in vacation for the trial of matters of fact. Indeed there is no other country in the known world, that hath an institution so commodious and so adapted to the dispatch of causes, as our trials by jury in those courts for the decision of facts: in no other nation under heaven does justice 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 themselves the disputes of the remotest provinces.

4

And here this part of our commentaries, which regularly treats only of redress at the common law, would naturally draw to a conclusion. But, as the proceedings in the courts of equity are very different from those at common law, and as those courts are of a very general and extensive jurisdiction, it is in some measure a branch of the task I have undertaken, to give the student some general idea of the forms of practice adopted by those courts. These will therefore be the subject of the ensuing chapter.

CHAPTER THE TWENTY-SEVENTH.

OF PROCEEDINGS IN THE COURTS OF EQUITY. Before we enter on the proposed subject of the ensuing chapter, viz., the nature and method of proceedings in the courts of equity, it will be proper to recollect the observations which were made in the beginning of this book on the principal tribunals of that kind, acknowleged by the constitution of England; and to premise a few remarks upon those particular causes, wherein any of them claims and exercises a sole jurisdiction, distinct from and exclusive of the other.

b

I have already attempted to trace (though very concisely) the history, rise, and progress, of the extraordinary court, or court of equity, in chancery. The same jurisdiction is exercised, and the same system of redress pursued, in the equity court of the exchequer: with a distinction however as to some few matters, peculiar to each tribunal, and in which the other cannot interfere. And, first, of those 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 [427] resulted to the king in his court of chancery, together with the general protection of all other infants in the kingdom. When therefore a fatherless child has no other guardian, the court of chancery hath a right to appoint one: and, from all proceedings a ch. 4, and 6.

b pag. 49, etc.

c F. N. B. 27.

Beside the chapters here referred to the student should also read the closing passages of section 2 and of section 3, of the commentator's introduction to the entire work, volume I, pages 62 (94), and 92 (199), together with the notes to those passages; note 25, page 163, and note 4, page 199.

3 BLACKST.-48.