28 Chancery. [Jan. 



secure possession of them : the legal father claims possession as matter 

 of right. With the motives of either party we have nothing to do ; 

 the single question for the court was, who was to have possession? 

 and the exclusive question for the public is, was this a case for the 

 Chancery Court? Could it not have been legally brought before 

 the common courts? Is it not a maxim of the common law, that 

 children born in wedlock are the children of the husband, except under 

 certain circumstances, which in this case were not pleaded ? If the 

 case was not excluded from the common courts, why was it carried to 

 the chancery, or entertained by a court so notoriously overwhelmed 

 with business ? Are not equity courts, by their very nature, intended 

 to supply the deficiencies of the common courts ? But what is the cus- 

 tomary course of the chancery ? — sweeping every thing within its own 

 net. The first inquiry for the court should surely be, is this a chancery 

 case ? If not, turn it at once out of court, and make counsel respon- 

 sible for the waste of time. But what was the conduct of the judge in 

 this particular case ? After a hearing for three days, of we know not 

 how many counsel, the court, with abundance of nice and elaborate 

 distinctions, declares possession is of right the legal parent's. In the 

 breast of no man breathing was the question susceptible of a doubt ; 

 not a lawyer, in or out of court, had any difference ^f opinion about the 

 matter. Well, but, at all events, the unlearned reader will say some 

 good is produced by this judgment of the court: — what good? Does 

 the judgment become a law ? Not a bit of it. But a precedent ? For 

 whom ? — for the present chancellor ? It may be so ; but no binding 

 precedent, even for him. If a similar case occurred, and the parties 

 were so ill-advised as to bring it before the same tribunal, what would 

 be the proceeding of the court, think we? Of course, the judge would 

 abide by the former decision, and forthwith dismiss the case. No ; let 

 not the experience of five-and-twenty years be lost upon us ; the argu- 

 ments would be again gone through — another three days be consumed 

 — another clear and subtle, but long-winded, exposition of reasons and 

 motives be given, and finally, perhaps, a similar decree be pronounced. 

 But even the present chancellor will not reign for ever ; and will his 

 judgment, his repeated judgment, stand a precedent for his successor ? 

 No such thing : no chancellor holds himself bound by his predecessor's 

 decisions. And this is the substantial iniquity of English equity. 



Well ; but it may be said, would you constitute the decision of one 

 frail and fallible being a precedent for ever ? No : but we would have 

 that decision, if it be deemed a sound one, converted by the Legislature 

 into a law, and thenceforth administered as other laws are, in a law- 

 court, and before a jury. If equity be good for anything, it is good 

 to be transmuted into law. Legislative enactment should tread close 

 upon the heels of equity ; if should be constantly in pursuit, and ever 

 on the point of overtaking it. A process of exhaustion should be in 

 perpetual operation ; and thus, what is matter of equity this year, 

 might be good, honest, intelligible law the next. What is the use of 

 a judicial decision, unless it serve as a guide to the public, and be re- 

 garded by them as applicable to all similar cases ? 



Of this case, we then affirm, it was one determinable by the common 

 courts, and, of course, to them it should have been referred — three days 

 would thus have been applicable to the harassed and legitimate suitors of 

 the court. If we are wrong — if the case was really new, and recognized 



