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The chancery is the grand Officina Justitiæ, out of which all original writs issue under the great seal, returnable into the courts of common law, to found proceedings in actions competent to the common law jurisdiction. The chancellor, therefore (according to Lord Hardwicke,) was the most proper judge, whether, upon any petition so referred, such a writ could not be framed and issued by him as might furnish an adequate relief to the party; and, if he found the common law remedies deficient, he might proceed according to the extraordinary power committed to him by the reference; Ne curia regis deficeret in justitiâ exercenda. Thus, the exercise of the equitable jurisdiction took its rise from his being the proper officer, to whom all applications were made for writs, to ground actions at the common law; and from many cases being brought before him in which that law would not afford a remedy, and thereby being induced, through necessity or compassion, to extend a discretionary remedy. If (Lord Hardwicke added) this account of the origin of the jurisdiction in equity in England be historically true, it will at least hint one answer to the question, how the forum of common law and the forum of equity came to be separated
It was stopped at its source, and in the first instance; for if the case appeared to the chancellor to be merely of equity, he issued no original writ, without which the court of common law could not proceed in the cause, but he retained the cognisance to himself. The jurisdiction, then, may be deemed, in some sort, a resulting jurisdiction, in cases not submitted to the decision of other courts by the crown or parliament, as the great fountain of justice.
The period in English history when the extraordinary jurisdiction of the court of Chancery took its rise is not precisely known. It would appear from the discoveries made by the Commissioners on the Public Records, that so far back as the reign of Richard II. there were petitions of the Chancery; and probably, if longer and deeper research were pursued among the records at the Tower, bills or petitions of still earlier date, and addressed to the Chancellor, might be met with.
According to Mr. Justice Story's view, the equitable jurisdiction of the Chancellor in England acquired its form and power much in the same way, and in consequence of similar conditions, to those which distinguished the origin and growth of the equitable jurisdiction of the Prætor in Rome. “Each of them,” he remarks, arose from the necessity of the thing in the actual administration of justice, and from the deficiencies of the positive law (the lex scripta), or from the inadequacy of the remedies in the prescribed forms, to meet the full exigency of the particular case. It was not an usurpation, for the purpose of acquiring and exercising power; but a beneficial interposition to correct gross injustice, and redress aggravated and intolerable grievances."
In the earlier times of the chancellorship, and when favourites of the sovereign were promoted to the office, the powers of this servant were far from being clearly defined ; so that men of inordinate am
bition and pride may be said to have arrogated all the authority of the state, and to have been the servile instruments of tyranny; or to have exerted all the influence not only of the highest functionary in the legal institutions of the country, but of prime minister. In short, the chancellor came to be held as keeper of the sovereign's conscience, and to be the person that ranked nearest the royal person of all the civil great officers of state. Jealousies, however, were wont to be entertained of the chancellor, sometimes on the part of the judges in the courts of common law; and sometimes by the public at large. Nor was it unreasonable in the case of such unscrupulous ministers as Cardinal Wolsey, that those persons who had been trained regularly to the law should complain of his violent and constant interference with their functions.
But it was fortunate that a man of Sir Thomas More's parts, learning, professional accomplishments, and unspotted purity succeeded the encroaching cardinal. This great and good man brought the equitable jurisdiction back within its due limits, although not without experiencing some degree of that legal jealousy which his predecessor, the haughty ecclesiastic, so thoroughly earned. Even down to the reign of James the First, when Sir Edward Coke was chief justice of the King's Bench, and Lord Ellesmere Chancellor, the controversy between the courts of law and of equity was maintained on the subject of jurisdiction ; so that the question came to be submitted to the Sovereign, who calling into his aid the advice of Bacon and some other lawyers, the decision was given in favour of that which was equitable, even to the length of pronouncing that jurisdiction competent to afford relief against a judgment at common law.
From the period just mentioned, the history of equity takes a more regular course. It is rapidly sketched in the following passage by Mr. Justice Story, till he reaches the close of the celebrated Lord Hardwicke's judicial career.
Lord Bacon succeeded Lord Ellesmere ; but few of his decrees, which have reached us, are of any importance to posterity. But his celebrated Ordinances, for the regulation of Chancery, gave a systematical character to the business of the Court; and some of the most important of them (especially as to Bills of Review) still constitute the fundamental principles of its present practice.
From this period, down to the time when Sir Heneage Finch (afterwards earl of Nottingham) was elevated to the Bench (in 1673,) litttle improvement was made, either in the principles or in the practice of Chancery; and none of the persons who held the seal were distinguished for uncommon attainments or learning in their profession. With Lord Nottingham a new era commenced. He was a person of eminent abilities, and the most incorruptible integrity. He possessed a fine genius and great liberality of views, and a thorough comprehension of the true principles of
equity; so that he was enabled to disentangle the doctrines from any narrow and technical notions, and to expand the remedial justice of the Court far beyond the aims of his predecessors. In the course of nive years, during which he presided in the Court, be built up a system of jurisprudence and jurisdiction upon wide and rational foundations, which served as a model for succeeding judges, and gave a new character to the Court; and hence he has been emphatically called, “ The Father of Equity." His immediate successors availed themselves very greatly of his profound learning and judgment. But a successor was still wanted, who, with equal genius, abilities, and liberality, should hold the seals for a period long enough to enable him to widen the foundation and complete the structure, begun and planned by that illustrious man. Such a successor at length appeared in the person of Lord Hardwicke. This great judge presided in the Court of Chancery during the period of twenty years; and his numerous decisions evince the most thorough learning, the most exquisite skill, and the most eminent juridical analysis. There reigns throughout all of them a spirit of conscientious and discriminating equity, a sound and enlightened judgment, as rare as it is persuasive, and a power of illustration from analogous topics of the law, as copious as it is exact and edifying. Few judges have left behind them a reputation more bright and enduring; few have had so favourable an opportunity of conferring lasting benefits upon the jurisprudence of their country; and still fewer have improved it by so large, so various, and so important contributions. Lord Hardwicke, like Lord Mansfield, combined with his judicial character the still more embarrassing character of a statesman, and, in some sort, of a minister of state. Both of them, of course, encountered great political opposition (whether rightly or wrongly it is beside the purpose of this work to inquire,) and it is fortunate for them that their judicial labours are embodied in solid volumes, so that when the prejudices and the passions of the times are past away, they may remain open to the severest scrutiny, and claim from posterity a just and unimpeachable award.
Mr. Justice Story, as others have done, considers equitable jurisdiction according to a threefold division: viz., the concurrent, the exclusive, and the supplemental. The concurrent is viewed under two heads ; first, that in which the subject-matter constitutes the principal ground for the jurisdiction ; and secondly, that in which the peculiar remedies afforded by courts of equity constitute the principal ground of the jurisdiction. A large list of cases arising from fraud, either positive or constructive, belong to this division, from misrepresentation, and so on, where courts of strict and inflexible rules of drawing conclusions could not make any progress.
Exclusive jurisdiction is also divided into two branches; the one dependent upon the subject-matter, and the other upon the remedy to be administered. The former includes trusts, whether positive and expressed or constructive; the latter, all those remedies and modes of procedure peculiar in courts of equity. Exclusive jurisdiction has public charities for a very important class of its subjects.
Supplemental or assistant jurisdiction is where a court of equity lends its aid to other courts, in order to remove legal impediments to a fair decision of a question. This branch of equitable function is still more particularly serviceable by means of the remedial process of bills of discovery, bills to perpetuate testimony, and the like, for securing substantial justice. Bills of discovery, as for bringing to light deeds or other writings, are intended not as relief, but for the discovery of facts in the knowledge or in the possession of the defendant, and in order to maintain the right or title of the party using it, in some proceeding in some other court. Equity, however, will not compel a discovery in every case, as where the thing would criminate oneself in a penal action, and several similar conditions. Consequently, great benefit and pure justice may be realized through the exercise of this branch of jurisdiction, without wanton injury to any man.
On the other hand, unless watchfully kept within due bounds, a court of equity by putting forth this supplemental and auxiliary power may become the instrument of oppression, and without serving any good or honourable purpose. An extract will explain the sort of danger and evil that is here to be avoided.
"There is no branch of equitable jurisdiction," observes Mr. Fonblanque in one of his valuable notes to his edition of the Treatise of Equity, "of more extensive application than that which enforces discovery; and when kept within its due limits, there is none more conducive to the claims of justice. To compel- a defendant to discover that which may enable the plaintiff to substantiate a just or to repel an unjust demand, is merely assisting a right or preventing a wrong. But as the most valuable institutions are not exempt from abuse, this power, which ought to be the instrument of justice, may be rendered the instrument of oppression. A plaintiff, by his bill, may, without the least foundation, impute to the defendant the foulest frauds, or seek a discovery of transactions in which he has no real concern ; and when the defendant has put in his answer, denying the frauds, or disclosing transactions (the disclosure of which may materially prejudice his interest,) the plaintiff dismisses his bill with costs, satisfied with the mischief he may have occasioned by the publicity of his charge, or with the advantage which he may have obtained by an extorted disclosure. The rule which requires the signature of counsel to every bill, affords every security against such an abuse which forensic experience and integrity can supply, but it cannot wholly prevent it. The court alone can counteract it; and in vindication of its process must feel the strongest inclination to interpose its authority.”
So much in explanation and in the way of description of the equitable jurisdiction that has grown up in this country, and that has been transplanted to America. To the general reader the theory of the institution—the system of law in which equity courts exert the high powers spoken of, may seem excellent, and so simple as to be directly practical and salutary; especially when it is borne in mind that men of the highest character and greatest attainments are gene
rally appointed to administer justice and to temper the law. In reality, however, our equitable jurisdiction has got so burdened with rules, and so complicated in respect of machinery, that it is workable only in the slowest, most vexatious, and expensive way imaginable ; so that a chancery suit has become a byeword of derision and not unfrequently of disgust and bitter suffering.
Art. VII.—The Attaché ; or, Sam Slick in England. By the Author
of the “ Clockmaker.” 2 vols. Bentley. WELCOME Yankee wooden-clock maker to our shores, whether as pedlar or diplomatist; for there are lots of things and manners here to exercise the sharpest and most humorous of thy " Sayings and Doings," and good service thou mayest perform for the subjects of Queen Victoria,—and, for that matter too, in behalf of thine own almighty nation, were it but in setting up the follies and vanities of the Britishers as a warning beacon to the great republic. Thy nonsense as well as thy serious talk has a purpose in it; and though thou art not free from prejudice and not particularly distinguished for penetration, yet there is health in thy nature, with pungency in thy strictures which must render these volumes extremely popular, both on account of the laughter which they provoke, and the pointed instruction which they convey!
Sam comes amongst us in the character of an attaché to the American legation at the court of St. James; in the volumes before us proposing to record whatever he has witnessed and heard, having a piquant nature. We may observe, however, that unless he means to extend his observations and sayings he will have left unnoticed very many things amongst us that ought to be exposed and made the object of criticism, and not seldom of laughter or contempt. Slick's satire has healing in it, for it is honestly bestowed, at the same time that it is heartily felt. Let him therefore proceed boldly with what he has begun; although it would be better were he to be less lavish of phraseology, and more abundantly racy in regard to matter and occasion.
Sam's promotion has been rapid, although probably a still higher realization awaits him. We despair not of yet hearing of his appointment to the ambassadorship ; nay, the presidency of the Union may be awaiting him, although made out of nothin' but a clockmaker. Indeed this rapid sort of risings do not appear to be so rare in Yankee-land as people may imagine. At any rate, we learn that the present American Minister at the Court of St. James, Abednego Layman by name, has had a growth that would be reckoned wonderful in old England. The particular information to which we refer transpires in the account given of the attaché's visit to the ambassador immediately on arriving.