romance. We find here delineations of scenery so strikingly beautiful, and sketches of human character so novel, yet so perfectly true to nature, that we may read them more than once with increased delight. Mr. Flint's pictures have the freshness and beauty of originals, and they generally exhibit scenes which attract by their novelty, as much as by their truth. We should be glad to be able to bestow the same praise upon his general style. This, however, we cannot do. His work is full of discrepancies. From elevation and purity of diction, he osten passes, by the most abrupt transition, to a careless and loose phraseology. His definitions, which are often strong, concise, and neat, are sometimes obscure or vague. Our greatest objection, however, to the style of this writer, arises from his free use of colloquial idioms. "He sometimes uses phrases which are not grammatical, and sometimes permits himself to indulge in a barbarous slang, which is unpardonable in polite writing. We notice this the more particularly, because Mr. Flint is a man of classical education, an erudite scholar, who need only consult his own taste and judgment to correct this. fault. He is a voluminous writer, and must have his influence upon others. His example cannot fail to be contagious; and proud as we feel of the rising excellence of our national literature, we stand bound to protect it from the dangerous contact of bad models. We are not to be told, that in a work like that before us, we must not look for elegance of diction. We expect purity of language in every work which comes from the


of a scholar.

ART. V. Chancery Cases argued and determined in the Court

of Appeals of South Carolina from January 1825 to May 1826, both inclusive. By D. J. M'CORD, State Reporter. Vol. I. 8vo. Philadelphia : Carey, Lea, & Carey. pp. 614.

The first thing that strikes us on opening this book, is, that it is better printed, on better paper, that it is better bound, and has altogether, a more gentlemanly and respectable appearance than any book of reports of cases in the courts of the state of South Carolina hitherto published; nor after diligent perusal do we hesitate to say, that its internal character corresponds with its favourarable appearance. But of this, more by and by. Amongtwo hundred volumes, and upwards, of reports of cases decided in the courts of the several states, and the United States, not more than about a

dozen volumes are dedicated to the chancery decisions. Notwithstanding our predilection for British precedents, a court of chancery has not been adopted in some of our states; as in Massachusetts and Pennsylvania, where equity powers to a certain extent are exercised by the courts of common law. In the reports of most of the other states, the chancery cases and the law cases

are so intermingled in the same volume, that it deters a chancery lawyer from hunting them out, and separating them from the herd of other reported cases. The chancery jurisdiction exercised by our federal judiciary might furnish much valuable matter, but the equity cases are not yet separated from the law decisions, and both relate, for the most part, to questions not likely to be of general occurrence.

It is not to be concealed, that the court of chancery is not a favourite with the people of the United States, any more than it is in England. It must however be acknowledged, that by a series of bench legislations, and usurpations, almost unaided by statutory enactments, and submitted to rather than sanctioned, a set of prineiples has been established by the chancellors of that country and of this, more reasonable, more consonant to the principles of natural justice, more applicable to the circumstances of civilized society, than could have been hoped for, from the fettered and trammelled exertions of our common law judges, unaided by the less restrained good sense of the other court. The general jurisprudence of the country, has been greatly benefited by chancery decisions; and many defects of our very defective legal system, have been supplied by the interpositions from time to time of the chancellors. If ever the desirable

project of a code of legal ethics should be put in execution, either by individual enterprise, or under the sanction of public encouragement, the chancery decisions will form the most beautiful feature of the work.

J But these advantages have been dearly purchased. The course of litigation has been rendered by the chancery courts more difficult and complicated ; the duration of lawsuits has been extended, till in cases innumerable it has amounted to nothing less than a vexatious denial of justice; while the utter impossibility of discriminating accurately between the two jurisdictions, and the intolerable expense of this complicated system, have rendered it questionable among many well meaning persons, whether any balance of benefit has arisen to the community from the law as it stands; and whether the inartificial but speedier and cheaper system of arbitration, with all its defects, be not upon the whole preferable. It is not yet so bad in this country as it is in England : partly owing to our wise rejection of the feudal aristocracy which prevails among that people, and partly to the greater sim,


plicity of our laws as to marriage provisions and family settlements; so that the separate business of a conveyancer, rcquiring in England an intimate knowledge of the abstruse and involved questions, and the nice, not to say evanescent distinctions which occupy the pages of law writers on Uses &c. from Bacon to Fearne, and a large portion of the chancery reports from Vernon and Vesey senior through the whole series down to the continuators of Vesey junior, is hardly to be considered as an indispensable branch of the profession in the United States,

We do not yet feel the full effects of chancery, nor of the poor laws in this country; but we are in the high road of experiencing the benefits, such as they are, both of the one system and the other, and should look about us in time.

Equity was used by the ancients in two senses: 1st, that equity or justice which is presumed to be the basis of all general rules, or enacted law; and 2d, that equity which is used in mitigation of strict law, which occasionally, from the unbending nature of its provisions, is apt to work injustice.

In this latter and technical sense, it was not unknown to the Greeks-40 AKPIBOSIKAION, to EMIEIKEE. So Aristotle--" that part of unwritten law which is called equity--To EITIEIKEE, is a species of justice, distinct from what is written. And this must happen either against the design and intention of the lawgiver, or with his consent. In the former case, when several particular facts must escape his knowledge; in the other when he may be apprized of them indeed, but by reason of their variety he is not willing to recite them. For if a case admits of an infinite variety of circumstances, and a law must be made, that law must be conceived in general terms." Dr. Taylor's Civ. Law, 92. Equity thus circumstanced, Aristotle (5 Ethic. 14, Dr. Taylor's Elem. of the Civ. Law, 93) calls Eruvog owua te vouius &exalt, correctio juris legitimi.

It is probable that the Roman doctrine of equity was borrowed from Greece, as it must have been known to the Committee of Ten (Dig. 1. 2. 2. 4.) sent from Rome, to inquire into the laws of Greece. The Romans clearly distinguished between law and equity. Nulla JURIS RATIO aut EQUITATIS BENIGNITAS patitur, ut quæ salubriter pro utilitate hominum introducuntur, ea nos duriore interpretatione contra ipsorum commodum producamus ad severitatem. Dig. 1. 3. 25.

Inter EQUITATEM JUSQUE interpositam interpretationem nobis solis et oportet et licet inspicere. C. 1. 14. 1.

“In order therefore (says Dr. Taylor, C. L. 93.) to obtain this end, they in. rented a method I am about to describe.

"An action, with them is defined Jus persequendi in judicio quod sibi debetur. If this be grounded on the express words of the law, si recla ex legis verba descen

dunt, it is aclio directa ; whereas those that descend obliquely, quæ non ex verbis legis, neque ex sententia expressu proficiscuntur, sed lenitale quadam interpretandi propler similem rutionem receptæ sunt, are called Actiones utiles.

The construction given to the law, upon which the equitable action termed utilis was grounded, was committed to the Prætor. Thus Dig. 19. 5. 11. Sed et cas acciones quæ legibus proditæ sunt, si lcx justa et necessaria sit, supplet Prætor in eo quod legi deest. Quod facit in lege Aquilia, reddendo actiones in fuctum accomodatar legi Aquiliæ: idque UTILITAS ejus legis exigit: (and this, the equity of that law requires.)

So in another passage

Quanquam deficiat aquæ pluviæ arcendæ Actio, attamen opinor ÚTILEM ACTIONEM, vel interdictum mihi competere adversus vicinum, si velim uggerem restituere in agro ejus, qui factus, mihi quidem prodesse potest, ipsi verò nihil nociturus est. Hæc ÆQUITAs suggerit, et si JURE deficiamur. Dig. 39. 3. 2. 5.

This equity jurisdiction was committed to the Prætor, that is the Prætor primus, major, maximus. Jus prætorium, adjuvandi, vel supplendi, vel corrigendi juris civilis gratia, propter utilitatem publicam introductum. Dig. 1. 1. 7. 1. Hence Papinian does not consider it as part of the Jus civile scriptum. Dig. 1. 1. 7. Dr. Taylor, Civ. L. 214.

llence actiones civiles were actions at law; actiones prætoriæ were proceedings at equity. 9. 4. 6. 3. Obligationes civiles were legal duties; obligationes prætoriæ were equitable obligations. 1. 3. 14. 1. Dig. 44. 7. 25 ult.

But as with us, the Prætor as well as our Chancellor, did not possess a wild and unrestricted, but a legal, discretion. He was Custos non Corditor juris: Judicia exercere potuit, Jus facere non potuit: Dicendi, non condendi juris potestatem habuit: Juvare, supplere, interpretare, mitigare, jus civile potuit: mutare, vel tollere non potuit. Dig. 1. 1. 7. 1, 6. 2. 12. 4. I. 3. 10. 2, 2. 19. 7.

The prætorial decisions constituted the Jus prætorium, and the Edictum perpetuum; the Jus honorarium. Students at law, who used to commence with the laws of the twelve tables, began, in Cicero's time, with the perpetual edict; Cic. de Leg. I. 6.

This was not the perpetual edict, so called, composed by Salvius Julianus in the time of Hadrian. This last, was a codification of the Jus Prætorium, and was called Lex et Jus perpetuum (Dig. 39. 8. 1. 2, 19. 1. 42. C. 7. 62. 5.) Hence thc Prætor came to be called voucherrs, Nov. 24–26.

The oslice of Prætor, originally patrician, was created A. U. C. 387. It remained patrician till 416, when Publius Philo-plebeian--was chosen. S Lir. 15.

A Prætor Urbanus for city causes was appointed: afterwards a Prætor Peregrinus for causes where an alien was party. As business increased, their number was extended to sixteen. Claudius* added two Prætors to take cognizance of Trusts, fideicommissa, Prætor fidei-commissarius. Nerva added a Prætor fiscalis, a chancellor of the exchequer; and M. Antoninus a Prætor Tutelaris or Tutelarius. (Dr. Taylor, Civ. L. 212.)

Notwithstanding the general prevalence and authority of the civil law on the continent of Europe, we are unable to point out any nation on that continent, which has adopted a distinct set of courts, and a separate system of equitable jurisdiction, to supply the deficiencies of their legal code. But we do not pretend to be sufficiently conversant with the laws of the various nations of Europe to speak positively on this point.

In England, the court of chancery, although it began to be of some consequence under Edward III. was little else than a ministerial department, an officina brevium, till the Chancellor John Waltham, Bishop of Salisbury,under Richard II. invented the writ of subpoena. This writ enormously extended the chancery jurisdiction, and notwithstanding the stat. 7 R. II. ch. 6, and the petitions of the commons in 2 H. IV. 69, 4H. IV. 78, 3 H. V. 46, and the renitency of the law courts in Blagrave vs. Watts, 1 Moor. 549, Cro. El. 651, 2 Ch. Cas. 44, Danv. Ab. 306, the chancery not only maintained its ground, but proceeded to extend its jurisdiction by a series of devices imagined and conducted with infinite adroitness and perseverance.

The first assumption of jurisdiction by the court of chancery, was over uses: a method of accumulating real property by indirect contrivance, resorted to by the clergy, when the statutes of mortmain had shut the door against grants, donations, and devises to the clergy of the legal estate. As all the early chancellors were of the clerical order, any contrivance to vest property in ecclesiastical bodies was willingly countenanced. The statute 7 Ed. I. de religiosis, drove them to the device of fictitious recoveries, and when deprived of this resource by statutory regulations, they resorted to the doctrine of uses; which seems to have continued in force from the end of Edward I. to the fifteenth of Richard II. which last act went far to annihilate the benefit of uses to ecclesiastical persons and corporations.

As questions relating to uses became of less frequent occurrence the civil law doctrine of trusts wag more cherished in the

* Blackstone Comm. II. 328 citing Inst. 2 tit. 23, ascribes the first Prætor fidei Commissarius to Augustus; and rightly, for the words are express. Taylor's autliority will be found Dig. 1, 2. 2. 32. Of these two Prætors, Titus took away one, so that with the addition of Nerva’s fiscal Prætor, the number became eighteen. Dig, ub, subs.

« ElőzőTovább »