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'■yi'.v Gentlemen, — I beg leave to address you, as Chief Law Officers of the Crown for Upper Canada, and as old profes- sional friends, upon a subject interesting alike to the profession and to the country, — the due administra- tion of justice ; a subject which should always engage the attention of those who make, and of those who are concerned in administering the law. At this time, when changes appear to be contem- plated in some of our courts of justice, the subject is peculiarly interesting ; certainly none of more real importance can engage the attention of members of the Legislature ; and it is to be hoped that they will bear in mind that good laws, well administered, have an immediate and important bearing upon the welfare of the people. The construction and working of all our superior courts of justice have been brought prominently before the public eye, and more particularly of the Court of Chancery and the Court of Appeal. I purpose addressing myself first to the consideration of that 61319 which is admitted hy all to require, and by all think- ing men to deserve, early and serious attention — the Court of Chancery; and in Tiew of the sweeping changes in our law advocated by some, involving no less than the abolition not of the Court of Chancery only, but of equitable jurisdiction itself, I will quote from a work of high f athority, *' Story's Equity Jurisprudence," a maxim which should be engraven on the minds of those whose duty it is to amend the law : " Changes, in law, to be safe must be slowly and cautiously introduced and thoroughly examined. He who is ill-read in the history of any law, must be ill prepared to know its reasons, as well as its effects.** The advocates for the abolition of equity jurisdiction are not few within the walls of Parliament, I fear, as well as without, and therefore I make no apology for entering upon the enquiry of what a Court of Equity is, its nature and its functions, and showing how miserable a mutilation of English law would be the (jonsequence of its abolition. Lord Bacon says : " All nations have equity ; but some have law and equity mixed in the same court, which is worse ; and some have it distinguished in several courts, which is better.' n Upon the same point, I will quote the opinion of Lord Eldon : — Lord Mansfield had said, in the Court of King's Bench, that " he never liked law so well as when it was like equity ;*' and Lord Chief Justice DeGi^y, in consequence, took occasion to declare fi'om the Bench shortly afterwards, that '* he never liked equity so well as when it was like law;*' and Lord Eldon, in allusion to these remarks has this entry in his anecdote book: ** With all deference to these great men, law and equity ought to be considered as distinct systems ; and that they are so considered and kept apwt in England is, perhaps, one of the best provis- ions of our constitution/';. In another place, in allusion to a phrase of Lord Chief Justice Kenyon, ahi in malam rem, when he found that a party to a suit at law had justice in his case, but no relief at law, and therefore referred him to Chancery, Lord Eldon remarks : " I have heard dozbus of common lawyers flippantly abusing Courts of Equity upon the authority of this piece of Latin of Lord Kenyon, and it is much to be lamented, per- haps, that the authority of so great a la.wyer (who so thoroughly well knew how defective and insufficient the common law would be to answer the exigencies of complete justice, and how absolutely necessary the jurisdiction exercised in the Court of Chancery is,) can be resorted to in support of that abuse of such a court by those who may know the practice of courts of law, but who are certainly most astonishingly ignorant of the nature and principles of the jiu-ispru- dence of this country taken altogether, and of the necessity of that separation of courts of law and fiquity, which so mainly contributes to the complete and eflectual administration of justice in this country. and secures to the people an administration of justice to an extent and in d degree such as are unknown, and must be ever unknown, where that separation is not effectually made and observed." In pursuing this point, I shall give the language (or the substance of it,) of others also, whose opinion is entitled to weight — Blackstone, Lord Redesdale, Story and others, whose works are emphatically authority : — " Equity jurisdiction was originally established upon the same ground which now constitutes the principal reason for its interference, viz., that a wrong is done for which there is no plain, adequate and complete remedy in the Courts of Common Law. Equity jurisdiction arose from the necessity of the thing in tlie actual administration of justice, and jfrpm the deficiencies of the positive ^a-w (the leao ScriptaJ, or from the inadequacy of the remedies in the prescribed forms to meet the full exigency of the particular case. It was not an assumption for the purpose of acquiring and exercising power ; but a beneficial interposition to correct gross injustice, and redress aggravated and intolerable grievances. The remedies for the redress of wrongs, and for the enforcement of rights, are distinguished into two classes : first, those which are administered in Courts of Common Law, and secondly, those which are administered in Courts of Equity; rights which are for two >urts are are recognised and protected, and wrongs which are redressed by the former courts are called legal rights and legal injuries ; rights which are recognised and protected, and wrongs which are redressed by the latter courts only, are called equitable rights and equitable injuries. Equity jurisprudence may there- fore properly be said to be that portion of remedial justice which is exclusively administered by a Court of Equity, as contradistinguished from that portion of remedial justice which is exclusively administered by a Court of Common Law. Hemedies at law are confined to particular forms of action, and if there be no prescribed form to reach a case, the party is at law remediless. j There are many cases in which a simple judgment for either party, without qualifications, or conditions, or peculiar arrangements, will not do entire justice ex aequo et bono to either party ;. some modification of rights ; some restraints on one side or the other, or on both ; some adjustments involving reciprocal obli- gations or duties ; some compensatory, or preliminary, or concurrent proceedings to fix, control, or equalise rights ; some qualifications or conditions, present or future, temporary or permanent, to be annexed to the exercise of rights or the redress of injuries. In all these cases. Courts of Common Law cannot give the desired relief. They have no forms of remedy adapted to the objects. They can entertain suits, and can give judgments only in a prescribed form. From their very character and organization, they are I 8 incapable of the renietly which the mutual rights aad relative situations of the parties, under the circum- stances, positively require. But Courts of Equity are not so restrained ; they may mould their decrees so as to meet these exigen- cies ; they may vary, qualify, restrain, and model the remedy so as to suit it to mutual and adverse claims, controlling equities, and the real and substaotial rights of all the parties interested, and adjust the rights of all, however numerous, while Courts of Common Law are compelled to limit their inquiry to the very parties in the litigation before them, although other persons may have the deepest interest in the event of the suit. i' ; .' 'J Further, there are rights of parties which Courts of Common Law do not recognise at all : trusts and confidences are among these, and the abuses of them are beyond the reach of any legal process ; but in equity an ample remedy is given in such eases, whether the wrong arise from negligence or miscon- duet. There are also many cases of losses and Henries by mistake, accident and fraud ; many eases d penalties and forfeitures ; many eases of impend- ing irreparable injuries or meditated mischiefs ; and many cases of oppressive proceedings, undue advan- tages and impositions, betrayals of confidence and nnconscionable bargains j in all of which. Courts of Equity will interfere and grant redress ; htt which the Cornnum Law takes na mtice of, or sUentty iS> 9 i Extracts like the above might be multiplied : thosd I have given will, I trust, be sufficient to show how very important a branch is equity in the system of English jurisprudence. Let any one who doubts it run his eye over the " Table of Contents" of any work on equity jurisdiction, Fonblanque or Story for instance, and ask himself if the doing away of all this would be a benefit, or a vast and incalculable injury; if " that portion of remedial justice which is exclusively administered by Courts of Equity" can wisely be blotted out, leaving parties remediless in the many cases in which there is no remedy at law. The laws of Upper Canada, in such a case, would be infinitely inferior to the jurisprudence of those coun- tries where the civil law obtains, or whose laws are founded upon the civil law, beoause theirs is a system complete in itself, administered by one court, whereas the system of English jurisprudence is built upon the principle that there are two classes of civil rights and civil wrongs, the one class administered in Courts of Common Law, the other administered in Courts of Equity. What a spectacle would be presented of rights without means to enforce them, and of wrongs without redress, of innumerable instances of parties remediless in courts of justice, if one of the courts where one whole class is administered were swept away ! " • ' - ■■' -r- Nor (and I crave attention to the consideration,) would that be all. The laws of a country exercise an important, a positive, and immediate influence B I w , , ^ . , opon the mcrab of the people ; men are apt to square their conduct, not so much by what is right and wrong, as by what the law of the land holds and reoognise^ as right or wrong ; and in the relations of life, and the transactions of men one with another, they often do right or abstain from wrong when there is a law to enforce the one and redress the other, when, but for mch a law, the right would be withheld and the wrong commitieds In time, the law beoomet) a pajrt n their 1 is ppo- the law >speQted \ of the et thes^ a," and he pub^ olesomo ig-doer, law» he iart«nd for hi» 3 neigh" 1 would •tion of ijustice import- 3i8ent a high standard in its own recognition of right and wrong; and it is this standard that is peculiarly presented in a Court of Equity^ ut ^be usefulness of a Court of Equity should not be estimated by the number of cases brought before it for adjudication. For one case adjudicated upon, there are probably fifty where the wrong is not committed, or where reparation is made, because such a tribunal exists. The mere circumstance of its existence exercises a restraining influence upon the incipient injury, or forces a perhaps reluctant reparation for die injury done. -,HiU.-X': n :^«K-.V'**-V'l.'. A Court of Equity 4 to do all this, to fulfil its high duties and accomplish all the good of which it is capable, should be so constituted as to possess the confidence and respect of the country. Its decrees should be the result of patient investigation > learning, research and love of justice ; and great, indeed, is the responsibility of those who, from apathy, lack of industry, " fear, favour, prejudice or partiality," are unfaithful to the high trust confided to them. A Court of Equity, if justice be well administered therein, cannot be otherwise than a blessing to a country : if ill administered, it may become almost a curse. p. ■'.?■<. ,« It need scare oly be added that, to make a court is useful as it ouglit to be, it should be accessible. Its organization should be such that men of moderate »1 •■'- * ,-«*«• 12 means may be suitors in it without the danger of ruin. It should not be a court where the poor man dare not come, thus enabling the man of wealth to do wrong, and leaving to his poorer neighbour the theory only of equity. I am far from saying that such is the case with the Court of Chancery here ; that a good deal has been done to simplify the practice and diminish expense, any one can convince himself who will read the general orders of the court; but I am also satisfied that a great deal may yet be done to improve the organization and practice of the court ; and I sincerely hope that it will he accomplished. There are those who say we may safely abolish equity jurisdiction, for we did very well without it before the Court of Chancery was established. I take leave to deny both the conclusion and the prem- ises. The want of equity jurisdiction was much felt, and considering the many cases in which remedial justice is administered in equity, it is impossible that it could be otherwise. No stronger evidence is need- ful of the want of such a jurisdiction having been felt than the circumstance of an act being passed to introduce it, as a part of thjp law which without it was imperfect, and in many instances worked injustice. It was from no love of a Court of Chancery that it was introduced, but in spite of many and strong prejudices. . ' * V. ■' Its introduction was necessary for another reason, yiz,, to preserve the common law. The common law t 13 was n«ver meant, nor is it calculated, by itself to foiin the jurisprudence of a country. Without being tempered by equity law, it would often work injustice, and in its actual operation in this country the appli- cation of its rules did work injustice, until a language began to be used in our Court of King's Bench which would have sounded strangely in the ear of a common lawyer in England. What was called the equitable jurisdiction of the court was not unfreqnently appealed to as absolutely necessary, in the absence of a Court of Equity, to correct the rigour of the common law : a more dangerous doctrine could scarcely be broached^ or one more calculated to subvert the common law itself. There are judges whose hent of mind would incline them to strain the common law rather than that a flagrant injustice should be committed, by applying its rules in their integrity to the case before them — '* to do a great good, do a little wrong." The temp- tation to do so flowing from a love of justice and a hatred of wrong, would not always be resisted. Thus, by degrees the common law would cease to be what it is and ought to be — ^a system of law built up upon precedent and authority — -so that a man may, with reasonable certainiy, kno\^ what the law is, and govern himself accordingly ^ but it would degenerate into an uncertain hybrid system, neither common law nor equity, but an incorignious compound of both, 80 that no man could tell what his rights were, inas- much as they would, in so great a measure, depend upon the half-legal half-equitable view which the judge or judges might take of them. m i^' The law would soon deserve a reproach such ai Selden applied to the Court of Chancery in his tim«: " In law we have a measure, and know what to trust to. Equity is according to the conscience of him that is Chancellor ; and as that is larger or narrower so is equity. 'Tis all one, as if they should make the standard for the measure, the Chancellor's foot. What an uncertain measure would this be ! One Chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same thing with the Chancellor's conscience." For the word equity^ ffabstitute law, and for the word Chancellor, substitute judges, and you have a quaint but forcible and true description of what our law would become. ,i^ Would any man in his senses desira such a lament- able state of things ? Yet, such a state of things would, it appears to me, be inevitable in the continued absence of a Court of Equity. The whole matter, as it presents itself to my mind, stands thus : — We eajinot have a half-system of jurisprudence ; we must, then, have English law, a combined system of law and equity, or we must abrogate English law ; throw our whole system of law to the winds, and adopt the civil law. But, were so mad a scheme proposed, metbinks Upper Canada would answer as with one voi^e, " nolumus leff€i AngUos mutari," Thus far I have addressed myself to the advocacy of a Court of Equity, as a necessary and beneficial part of the system of English jurisprudence. Of the past history of the Court of Chancery of Upper Canada I have said but little. That it has been unsatisfactory is admitted on all hands, and I will merely remark that it is bad logic to argue against the use of a thing, from its abuse. ' I hope I have demonstrated that, to abolish it, or at all events, to abolish equity jurisprudence, the remedy would be worse than the disease. I assume now that equity must be preserved, and the next question is, how it can be best administered, whether in a court, properly a Court of Equity, or in a court combining legal and equitable jurisdiction. It is quite certain that it cannot be administered through the forms, remedies and proceedings of a Court of Common Law; this was at one time attempted in Pennsylvania ; an anomaly/, as Story calls it, remedied by subsequent enactments. Any one at all acquainted with the subject will have no doubt upon the point. If, then, equity be adminis- tered in a court combining legal and equitable powers,^ the court must have separate machinery for each,— a common law side of the court, and an equity side* of the court, ask was formerly the case in the Court of Exchequer in England. ^ " ' '. 'j« , » * » f» \xj^*' (■■Z3 ! •.I.'-. 1 J " V;': •;.->' l;i,,V. .. ' jt-' . ■^ ~ ' ' >*^ '' >i.V , Upon this point, what says experience ? In Eng- land, the equity side of the Exchequer has been abolished, and new judges in equity have been pro-- vided, to meet the increased business thereby throwic \\ into Chancery. This arose from the general feeling that the two systems of law and equity are not con- veniently administered in the same court ; and ihe change has been found to be an improvement ; the Court of Exchequer did not attain to the high reputar- tion either in common law, or equity law, which was enjoyed by those courts respectively who had exclusive jurisdiction in each ; and for this plain reason, among others, that the JudgeSr of the Exchequer, having constantly to decide questions both at law and in equity, were less perfect in their knowledge of either tl^an those whose learning was devoted almost exclu- sively to one only. The principle of division of labour was found as applicable in law as in any other branch of human knowledge or skill. iW/xQi4^'^.'i^i I would not be understood to mean that a judge in either court can properly be ignorant of the law administered in the other ; and judges in equity especially should have a good knowledge of common law ; Lord Eldon, in pointing out a course of study for the Chancery Bar, says, — -" I know, from long personal observation and experience, that the great defect of the Chancery Bar is its ignorance of common law and common law practice ; and strange as it should seem, yet, almost without exception, it is that gentlemen go to a Bar T^ere they are to modify, qualify and soften the rigour of the common law, with very little notion of its, doctrines or practice." The quotations I have* before made from Lor^l Eldon are not without their force upon the question •■'-.' 17 of the administration of law and equity in separate courts. One of the various projects started in relation to^ this question has been to abolish the Court of Chan-« eery, and transfer its jurisdiction to the Court of Queen's Bench. I am not aware whether the pro- jectors of this scheme propose that the Court of Queen's Bench should administer equity through the forms and proceedings of that Court; if so^ it would be found as in Pennsylvania, utterly impracticable. . If, on the other hand, they propose, with the jurisdic- ' tion to transfer the mackineiy of a Court of Equity^ what would be gained by it ? It would only be com-^ mitting the two systems of Uw and equity, stiU tepoT" ' ate, to the administration of one judicature. f>* ^.f-/ , 't-. ';"^tlJ, I have never heard one sound reason given in favour of this scheme, or indeed in favour of any scheme of administering law and equity in one court } , while reason and experience are both against it. ,r If equity jurisdiction were transferred to the Court of Queen's Bench, it would be imposing great addi- tional duties upon judges whose duties are already . sufficiently onerous. It would be difficult to show ^ how or when they could sit as Equity Judges, what with Term, Circuit, Chamber and other business. ^ They were on the Common Law Bench before a Court of Equity was established here, and how they could be expected satisfactorily to dispose of all the . I 'I IS common law and equity bnsiness of the countiy, I am at a loss to conjecture ; and besides there are other reasons connected with that great desideratum, the formation of a good Court of Appeal, in Upper Canada, which should weigh strongly against such a proposition. -■ 'rr ■^'"'1 "%■ ."r I have endeavoured to prove, I hope successfully, that equity jurisdiction, as a necessary part of our system of jurisprudence, must be preserved, and fur- ther that it is best administered in a separate court. I purpose now to offer a few observations upon a point which has excited some attention in Upper Canada, viz., that equity law, like common law, should be administered by nijor&than one judge. This point, indeed, was one of the prominent subjects brought to the attention of the Legislature by a petition numer- ously signed by the profession two years ago, and was om of the leading points to which the inquiriei^ of the Committee of the Assembly, to whom that petition was referred, were directed.. , . The question is a very interesting one. On the one hand, it is argued that the matters submitted for the adjudication of Courts^ of Equity are best decided by one mind ; that the questions in issue being often complicated, involving vaifious and frequently numer- ous and distinct interestSjj ,all of which are to be dealt with in one suit, and adjudicated upon in one decree ; such questions, it is urged, are better disposed of by one clear, laborious and vjlgorous mind, adjusting ihs IL 10^ various interoBts of the parties, than by Hereral, between whom it might perhaps be rather a mutual compro- mise of opinions in order to agree upon a decree^ than a coDfiprehensive and well-principled decision upon the equitable rights of all the parties. On the other band, it is said, and I think with great truth and reason, that each interest being represented by its own advocate or counsel, and the equitable rights of ^ach not resting for decision upon the individual opinion of the judge or judges, but upon precedent and authority to be found in adjudged cases, the decision upon those rights may be as safely and as well entrusted to several judges as to one; that the reasons which make it desirable that questions of common law should be adjudged upon by several judges, apply with equal force to questions of equity law, and that the decisions of a Court of Equitj presided over by three would carry with them mora weight, and would be more satisfactoiy to suitors, and to the profession and the country, than the decisions of an individual judge.^1,,^.^ j^..^ t^wtii^mii'rmufm There are some who imagine that Courts of Equity are not, and ought not to b'e bound by precedent, but that every case is decided lipon circumstances accord- ing to the discretion of the judge, acting in each case ajccording to his own notions of what is just, equitable and right. It is manifest that such a rule of decision 4ar rather want of rule,) ^ould place equity judges siboye all law ; that there would be no uniformity of d^sioOy and that equity w\)uld vary with the varying 20 consciences of different equity judges. I need hardly say that such an idea is erroneous. Sir William Blackstone says, — '* The system of our Courts of Equity is a laboured connected system, governed by established rules, and bound down by precedents from which they do not depart, although the reason of some of them may perhaps be liable to objection." Again, ho says, — " The system of jurisprudence in our Courts of Law and Equity are now equally arti- ficial systems, founded oni the same principles of jus^ tice and positive law, but varied by different usages in the forms and mode of. their proceedings." So, Lord Bedesdale : ** There are," he says, " certain principles on which Courts of Equity act, which are very well settled. The cases which occur are various, but they are decided on fixed principles. Courts of Equity have, in this respect, no more dis^ cretionary power than Courts of Law. They decide new cases as they arise by the principles on which former cases have been decided ; and may thus illus- trate or enlarge the opei^ation of those principles; but the principles are as fixed and certain as the principles on which the 'Courts of Common Law iwroceed. ^ >i^', , .. • .*, •vv^,f ■>*- a-^^h at i:ri: ,^^*f: tXS IWl ■ L-Jtii^ X ' I have selected the above from among many simi^ lar authorities, to show th^t Courts of Equity decide upon fixed principles gathered from precedent and authority, to be found in adjudged cases, just as is the case in Courts of Common Law ; and I infer tihat m isaamimtmt'um-mnmm 21 there would be no anomaly in equity law being expounded by more than one judge, any more than in common law being so expounded. »jW ni viiU'i* , utiiJi't-":* *Jtfti» tions of the law. I say generally, but certainly not universally. Cases arise, and not unfrequently, where parties are advised by counsel of ability and learning that decisions of the court adverse to them are at least doubtful, and in their opinion erroneous, and then it is that our system of jurisprudence is felt to be defective, in the want of a good Court of Appeal in Upper Canada. Suitors in the Court of Queen's Bench are in effect without appeal. The Court of Appeal, as at present constituted, is, to the Court of Queen's Bench, rather a Court of Re-hearing, than of Appeal, while it forms, m effect, the Court of Appeal from the Court of Chan- cery, so that it 73, what it certainly ought not to be, a court of last resort both at law and in equity. I believe no one feels more than the judges of the court them- selves the anomaly of their position. It is every way a falie position, and a defect in our system which H would be uttstatesmanlike to overlook, while revising the judicature of the country. ' '*( I do not lose sight of the right of appeal, in cei*taiii eases, to the Queen in Council, but it is expensive and unsatisfactory. It is ^arcely looked upon an an appeal to a legal tribunal, (few knowing how the court is composed.) The case appealed is committed to the hands of counsel of whom the suitors know nothing, and i» heard before a court of which they have a efm" - -u"" ^ ••• ■ -■- i'i-^ .-" if !'^ > i i • t i '! :- I :! \ " I 5 24 fused and probably a false idea ; they, consequently^ have no confidence that their interests are well looked after, or their rights solemnly and judicially investi- gated, and they look upon the result as a piece of good or ill fortune, according as they lose or gain^i rather than as a solemn jiidgment of a superior court where their rights have been thoroughly investigated, and deliberately and solemnly decided upon. Few can appeal . t all, and those few have but little eon&' dence in the court appealed to, ;V ' B4>1 A M^ ^ '^1 J'i^ It is right, that we should have here, in Upper Canada, a good Court oi Appeal from the Courts both of Law and Equity'; not an appeal in name only, but in reality ; a court in which the profession and the people would have confidence, and composed of the best materials whicjEi the country will afford. , '. ,'. ■ ^■- A good Court of Appeal for Upper Canada may, I think, be composed of the judges of the two supe- rior Courts of Law and Equity, with the addition of one or more to be appointed by the Crown, who would probably be retired judges^ or the appointment might be limited to retired judges ; the whole together io form a Court of Appeal fv,om both courts. I would so constitute the court, whether the Court of Queen's Bench be composed of four judges (as was sugge!?ted by myself to the Judicature Committee of the Assem- bly,) or retain its present ^.number. I think that no sound objection can exist to the judges of a court appealed from, sitting and |ylving judgment along with sequentlji ell looked ly investi- b piece of e or gain^i rior court astigated, m. Few ktle confi- in Upper le Courts in name profession da maj, wo supe- dition of ho would nt might ether io I would Queen's [igge.«ted Assem- : that no a court >ng with 26 other judges upon the case appealed; they are, of course, wholly disinterested ; and the matter appealed being a matter of legal learning and judgment, upon which they, equally with the other members of the Court of Appeal, are competent to form a sound legal opinion, there is no good reason why they should be excluded. m '■''■M In a court constituted as I propose the practical working in Appeals from the Court of Queen's Bench would be, that the cause appealed would be heard for the first time by the three Jjquity Judges, the addi- tional members of the court, and by the Judge of the Court of Queen's Bench, who, during the argu- ment of the cause in banc,^ presided in the practice court. Thus, out of a cwrt composed probably of eight or nine judges, it would be new to the majority of them. In Appeals from Chancery there would be a like result, and the three . Equity Judges sitting in the Court of Appeal with tie other members of that court would divest such Court of Appeal of the char- acter of an Appeal from a Court of Equity to a Court of Common La\v. i^/ The plan I have suggested would, I verily believe, if carried out^ give to Upper Canada a good Court of Appeal, which the present one is not ; and an acces- sible one, which the Appeal to the Queen in Council (with rare exceptions) is not. I am not, however, bigott^d in my opinion. I shall rejoice "^o see any measure adopted which may attain ihe same end. ifWK I I'- 1, 26 To those wlio may object that the changes pro- posed will involve considet'able expense to the country^ I would s:iy, that it is the duty of the State to make proper and sufficient provision for the due administra- tion of justice ; and that it is the worst economy to grudge what is necessary for such a purpose. They who take the cost of the administration of justice to be the salaries paid to judges and other disbursements for the purpose, out of the public purse, take a narrow, and, as I conceive, an erro- neous view of the matter ] because they leave out of view the costs paid by suitors, the time lost to p. '•ties, witnesses, jurors, and others, (to say nothing of the ill- feeling engendered by litigation). The amount paid out of the public purse be^rs but a small proportion to all this ; yet all is equally the cost of the adminis- tration of justice. The better our laws are adminis- tered, the less will litigation prevail ; because their uncertainty^ a fruitful source of litigation, will be diminished. Where the'^law is badly administered, and consequently unoertdlii and unsettled, men can* not ascertain their rights^thout suit ; counsel cannot advise suitors with safety^J^ and some men, with more means than honesty, are'^pt to speculate upon the chance of a decision in thitr favour, against law. 4 ■ 1 ♦. ■ '"^ These, of course, are only some of the evils incident to a bad administration dt the law. I have adduced these to shew that litigition is thereby increased, and, consequently, that^ any measure which may i|| nges pro- e country, e to make Iministra- jonomy to e. stration of and other he public an erro- ive out of to p. ^ties, of the iU- ount paid )roportion adminis- adminis- mse their I, will be inistered^ men can* iel cannot dth more upon the law. i incident adduced acreased, lich may 27 diminish litigation, althoiigh it may entail some additional expense upon the country, will, upon the whole, diminish the amount expended in the admin- istration of justice. ) TO . But even were it not so ; is an improved adminis' tration of the law a matter of small importance, that what is necessary for such a purpose should be doled out with a niggardly hand ?;. .. .... The highest interests of the country, and the moral condition of the people are bound up with it. Let any one picture to himself Qourts of Justice where the law is baily administered, and which enjoy not the respect or confidence of thOj profession or the country, with all the evils Resulting from such a state of things, — a train of evils, ^ the bare enumeration of which would occupy no^i^nall space« Then let him reverse the picture ;^ let him mark the con- tra8t> and say whether^, the blessings attendant upon a pure and sound ndministration of justice are not cheaply bought at ^.^y expense that may be requisite to place the jurisprudence of the ^..^Utry upon a good and satisfactory footing. Lower Canada acted wisely in the provision she made for the like purpose. She did not gjpdge the expense of nine judges of superior courts ; because she rightly esti- mated the advantages of % good administration of her laws at a high rate, thoug|[( not above their true value. Let us hope that a miseraj^le parsimonious spirit will not stand in the way of the accomplishment of so • . • » . • • • . . • • • . . 28 great an object as the improvement of our laws, and their administration. The objects which I proposed to myself in penning this letter, (which has grown to a greater length than I anticipated), were to preserve from mutilation our system of English jurisprudence, and to place it upon a sound and more satisfactory basis. If what I have written shall have any effect in accomplishing so great a good, I shall feel happy in having been instrumental in effecting it. Would that Legislators, when they come to the discussion of matters of this nature, would discard prejudice and party, and meet upon common ground, " the peace, welfare, and good government of the country" closely interwoven, with all of which is the pure administration of justice. f;.,iti: I have the honour to be, ^ ; y u^ -^i; j4ry •■iffi -.;;',•,:!? A fi. Gentlemen, . udv'^,-':-,:-^,..: .1^4, Your most obed*t humble Serv't, ; J. G. SPRAGGE. -i'i 5";?<:-^.- •-m Toronto, 2nd Jime, 1847. ■<■ •.'^^ii , . . .',. . : 1 .•. . r • i m • «• ••• :"' •• :V ..:: .::: -'. -" - * . • • • ;.; (* laws, and 1 penning ngth than ation our je it upon at I have g so great trumental rhen they s nature, leet upon md good ►ven, with itice. Serv't, RAGGE. , . nt ^-i t. V. ', ' * .^^ :»• 1 )d ' ♦.,?.'" ;U '•■ . -.- io ■ .^ -'ft .^. ' .,,1 jf/OItf ;^F ■ :, «* L-K^T^q