like all falling bodies, its descent will become more and more rapid until it shall cease to have existence."

We have now only to add to these extracts from a work of firstrate merit, remarkable for the fulness of its facts, the aptitude of its illustrations, the direct force of its argument, and the encouraging doctrines of its philosophy,—that a completely digested and ample Analytical Index is appended, and for the whole of the three volumes in the series; and this besides the table of contents for the subjects of each section and chapter, prefixed to each volume.

ART. VI.-Commentaries on Equity Jurisprudence, as administered in England and America. By JOSEPH STORY, LL.D., Dane Professor of Law in Harvard University. 2 vols.

We believe very few persons, even in England, where an Equity court has been so long in existence, and where the jurisdiction of that court is so potent and extended, have anything like a correct or adequate knowledge of its peculiarities, its functions, and spheres of authority; or how it stands distinguished from the courts of strict law. It may therefore be not mispent labour if we in the course of a few of our pages present some plain definitions and illustrations of the term immediately under consideration, as guided by Mr. Justice Story, a man of deep learning and acknowledged eminence as a lawyer; describing also the provinces in which the court indicated by that term operates and has exclusive rule.

Mr. Justice Blackstone has said that "Equity in its true and genuine meaning, is the soul and spirit of all law; positive law is construed, and rational law is made by it. In this, equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule." And yet this is not the sense in which the term is applied, when used relative to what are called Courts of Equity, whether in England or America. Much less are we to suppose that equity dispenseth with the common law itself, or may run counter to it. Blackstone has distinctly shown that both courts of equity and law are equally bound and uniformly profess to interpret statutes, for example, according to the true intent of the legislature, and that the same rules of interpretation are recognised by the practitioners and judges in both classes of courts. This at least holds true with regard to modern times and the present state of equity jurisprudence. "No such power is contended for," says the high authority already quoted, as that it is the business of a court of equity in England, to abate the rigour of the common law." And he instances cases, circumstances, and conditions, where no relief can be given to mitigate the hardship and severity of the common law by any arguments and resources of an equitable nature known in this country. Then, with reference to America, Mr. Justice Story observes:

Illustrations of the same character may be found in every state of the Union. In some states, bond debts have a privilege of priority of payment over simple contract debts, in cases of insolvent intestate estates. In others, judgments are a privileged lien on land. In many, if not in all, a debtor may prefer one creditor to another, in discharging his debts, when his assets are wholly insufficient to pay all the debts. And (not to multiply instances, what can be more harsh or indefensible than the rule of the common law, by which a husband may receive an ample fortune in personal estate through his wife, and by his own act or will strip her of every farthing and leave her a beggar?

The time was, however, that the Chancellors who presided over the Court of Equity in this country, stretched their power with a clerical licence, according to the conscience and caprice of each. ""Tis all one," says Selden, "as if they should make the standard for the measure, the Chancellor's foot." "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." Where would such a man as Wolsey stop when armed with equitable jurisdiction, and amenable to no higher authority? And yet, according to Mr. Justice Story's view, the case would have been much worse under these early clerical Chancellors had they not acquired and fortified many of their notions of general justice by the study of the civil law. "From the moment," he says, "when principles of decision came to be acted upon and established in Chancery, the Roman law furnished abundant materials to erect a superstructure, at once solid, convenient, and lofty, adapted to human wants, and enriched by all the aids of human wisdom, experience, and learning."

But what is equity, as administered in England and America at the present time? Our author's preliminary answer to the question is this, that equity may be better explained by "observations than direct definition," for that the latter are, as is often said in the law, perilous and unsatisfactory."

A court of equity, as established in England and America, may be comprehensively explained and described, by saying that it has jurisdiction in cases where an adequate remedy cannot be had in a court of law; or not so easily and expeditiously. Again, in the former courts, there are strict and prescribed forms of action, out of which you cannot travel, while an unqualified judgment must be given either for the plaintiff or the defendant; and hence complete justice may not be done to either party. But courts of equity are elastic in their forms, and find adjustments for almost every possible contingency and peculiarity; having at the same time the power of bringing before them, without difficulty or delay, all the parties interested in the matter, and of disposing with facility of all the complications that may occur in respect of rights and conditions.

Lord Redesdale in his "Treatise of Pleadings in Equity" has enumerated the peculiar province, powers, and duties of a court of

equity, ranging these under ten distinct heads; and since his account is considered to be one of the fullest and most precise that can anywhere be met with relative to equity jurisdiction, we shall copy it out, and give it in our larger type. He says: "The jurisdiction of a court of equity, when it assumes a power of decision, is to be excercised, 1, where the principles of law, by which the ordinary courts are guided, give a right, but the powers of those courts are not sufficient to afford a complete remedy, or their modes of proceeding are inadequate to the purpose; 2, where the courts of ordinary jurisdiction are made instruments of (in) justice; 3, where the principles of law, by which the ordinary courts are guided, give no right, but, upon the principles of universal justice, the interference of the judicial power is necessary to prevent a wrong, and the positive law is silent; and it may also be collected, that courts of equity, without deciding upon the rights of the parties, administer to the ends of justice, by assuming a jurisdiction; 4, to remove impediments to the fair decision of a question in other courts; 5, to provide for the safety of property in dispute pending a litigation, and to preserve property in danger of being dissipated or destroyed by those to whose care it is by law intrusted, or by parties having immediate but partial interests; 6, to restrain the assertion of doubtful rights in a manner productive of irreparable damage; 7, to prevent injury to a third person by the doubtful title of others; and 8, to put a bound to vexatious and oppressive litigation, and to prevent multiplicity of suits. And further, that courts of equity, without pronouncing any judgment which may affect the rights of parties, extend their jurisdiction, 9, to compel a discovery, or obtain evidence which may assist the decision of other courts; and 10, to preserve testimony, when in danger of being lost, before the matter, to which it relates, can be made the subject of judicial investigation."

Different opinions have been held with regard to the propriety of separating law and equity. There are countries where both are administered in one class of courts and by one order of judges. Especially is this the case where the principles of the Roman law prevail. Instances may be cited where the severance operates beneficially, and others again where the reverse is experienced. However, we must take the institutions as they actually exist. We therefore proceed to quote what Mr. Justice Story has to say respecting the origin and growth of equity courts and jurisdiction in his country. The passage also throws some light upon the subject of separating the courts of law and equity.

In America, equity jurisprudence had its origin at a far later period than the jurisdiction properly appertaining to the courts of common law. In many of the colonies, during the connexion with Great Britain, it had either no existence at all, or a very imperfect and irregular administration. Even since the Revolution, which severed the ties which bound us to the

parent country, it has been of slow growth and cultivation; and there are still some states, in whose municipal jurisprudence it has no place at all, or no place as a separate and distinct science. Even in those states in which it has been cultivated with the most success, and for the greatest length of time, it can scarcely be said to have been generally studied, or administered, as a system of enlightened and exact principles, until about the close of the eighteenth century. Indeed, until a much later period, when reports were regularly published, it scarcely obtained the general regard of the profession, beyond the purlieus of its immediate officers and ministers. Even in the state of New York, whose rate in jurisprudence has never been second to that of any other state in the Union (if it has not been the first among its peers), equity was scarcely felt in the general administration of justice until about the period of the reports of Caines and of Johnson. And, perhaps, it is not too much to say, that it did not attain its full maturity and masculine vigour until Mr. Chancellor Kent brought to it the fulness of his own extraordinary learning, unconquerable diligence, and brilliant talents. If this tardy progress has somewhat checked the study of the beautiful and varied principles of equity in America, it has, on the other hand, enabled us to escape from the embarrassing effects of decisions which might have been made at an earlier period, when the studies of the profession were far more limited, and the benches of America were occasionally like that of the English Chancery in former ages, occupied by men, who, whatever might have been their general judgment or integrity, were inadequate to the duties of their stations, from their want of learning, or from their general pursuits. Indeed, there were often other circumstances which greatly restricted or impeded a proper choice; such as the want of the due enjoyment of executive or popular favour by men of the highest talents, or the discouragement of a narrow and incompetent salary.

The equity jurisprudence at present exercised in America, is founded upon, co-extensive with, and, in most respects, conformable to, that of England. It approaches even nearer to the latter, than the jurisdiction exercised by the courts of common law in America approaches to the common law as administered in England. The common law was not, in many particulars, applicable to the situation of our country, when it was first introduced; whereas equity jurisprudence, in its main themes, flows from the same sources here that it does in England, and admits of an an almost universal application in its principles. The constitution of the United States has, in one clause, conferred on the national judiciary cognisance of cases in equity as well as in law; and the uniform interpretation of that clause has been, that, by cases in equity, are meant cases which, in the jurisprudence of England (the parent country), are so called, as contradistinguished from cases at the common law. So that, in the courts of the United States, equity jurisprudence generally embraces the same matters of jursidiction and modes of remedy, as exist in England.

In nearly all the states in which equity jurisprudence is recognised, it is now administered in the modes, and according to the forms, which appertain to it in England; that is, as a branch of jurisprudence, separate and distinct from the remedial justice of courts of common law. In Pennsylvania it was formerly administered through the forms, remedies, and proceedings of the

common law, and was thus mixed up with legal rights and titles in a manner not easily comprehensible elsewhere. This anomaly has been in a considerable degree removed by some recent legislative enactments. In some of the states in the Union, distinct courts of equity are established; in others the powers are exercised concurrently with the common law jurisdiction by the same tribunal, being at once a court of law and a court of equity, somewhat analogous to the case of the court of Exchequer in England. In others, again, no general equity powers exist, but a few specified heads of equity jurisprudence are confided to the ordinary court of law, and constitute a limited statutable jurisdiction.

Our author does not overlook the history of the origin and growth of equity jurisprudence in England, which from a small beginning, became in process of time an office of great dignity and pre-eminence. He is of opinion that "when the Aula Regis, or great court or council of the king was broken in pieces, and its jurisdiction distributed among various courts, the King's Bench, the Common Pleas, and the Exchequer, the court of Chancery also received a portion."

Different accounts and theories have been adopted by antiquaries respecting the origin of the word chancellor. At any rate the name and the office were known to the Romans in the time of the emperors. The following is Camden's statement on the subject.

The chancery drew that name from a chancellor, which name, under the ancient Roman emperors, was not of so great esteem and dignity, as we learn out of Vopiscus. But now-a-days a name it is of the highest honour, and chancellors are advanced to the highest pitch of civil dignity; whose name Cassiodorus fetcheth from cross-grates or lattices, because they examined matters within places (secretum) severed apart, enclosed with partitions of such cross-bars, which the Latins called cancelli. Regard [saith he to a chancellor] what name you bear. It cannot be hidden, which you do within lattices. For you keep your grates lightsome, your bars open, and your doors transparent as windows. Whereby it is very evident that he sat within grates, where he was to be seen on every side; and thereof it may be thought he took his name. But minding it was his part, being, as it were, the prince's mouth, eye, and ear, to strike and slash out with cross lines, latticelike, those letters, commissions, warrants, and decrees, passed against law and right, or prejudicial to the Commonwealth, which, not improperly, they called to cancel; some think the name of Chancellor came from this cancelling. And in a glossary of a later time this we read:-"A chancellor is he whose office it is to look into and peruse the writings of the emperor, to cancel what is written amiss, and to sign that which is well."

Antiquaries and lawyers have also held different opinions relative to the origin, and the manner of growth of the equitable jurisdiction possessed and exercised by the court of Chancery. This is Mr. Justice Story's representation of Lord Hardwicke's view of the

matter: