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CONTEMPTS IN CHANCERY.
it can scarcely be supposed that those courts, however useful, could gain admittance. Nor, indeed, even in the times when they were instituted, were their proceedings free from opposition; and afterwards, so late as the reign of queen Elizabeth, it was adjudged, in the case of Colleston and Gardner, that the killing a sequestrator from the Court of Chancery, in the discharge of his business, was no murder ; which judgment could only be awarded on the ground that the sequestrator's commission, and consequently the power of his employers, were illegal.* However, the authority of the courts of equity has in process of time become settled ; one of the constituent branches of the legislature even receives at present appeals from the decrees passed in those courts; and I have no doubt that several acts of the whole legislature might be produced, in which the office of the courts of equity is openly acknowledged.
The kind of process that has in time been established in the Court of Chancery is as follows:-After a petition is received by the court, the person sued is served with a writ of subpoena, to command his appearance. If he does not appear, an attachment is issued against him ; if a non-inventus is returned, that is, if he is not to be found, a proclamation goes forth against him; then a commission of rebellion is issued for apprehending him, and bringing him to the Fleet Prison. If the person sued stands farther in contempt, a serjeant-at-arms is to be sent out to take him; and, if he cannot be taken, a sequestration of his land may be obtained till he appears. Such is the power which the Court of Chancery, as a court of equity, hath gradually acquired to compel appearance before it. In regard to the execution of the decrees it gives, it seems that court has not been quite so successful; at least, those law-writers whose works I have had an opportunity of seeing, hold it as a maxim, that the Court of Chancery cannot bind the estate, but only the person ; and as a consequence, a person who refuses
* When Sir E. Coke was Lord Chief Justice of the King's Bench, and Lord Ellesmere Lord Chancellor, during the reign of James I., a very serious quarrel also took place between the courts of law and those of equity, which is mentioned in the fourth chapter of the third book of Judge Blackstone's Commentaries : a work in which more might reasonably have been said on the subject of the courts of equity.
to submit to its decree is only to be confined in the Fleet Prison.*
On this occasion I shall observe, that the authority of the Lord Chancellor in England, in his capacity of a judge of equity, is much more narrowly limited than that which the prætors in Rome had been able to assume. The Roman prætors, we are to remark, united in themselves the double Öffice of deciding cases according to the civil law (jus civile), and to the prætorian law, or law of equity; nor did there exist any other courts besides their own, that might serve as a check upon them: hence it happens that their proceedings in the career of equity were very arbitrary. In the first place, they did not use to make it any very strict rule to adhere to the tenor of their own edicts, during the whole year which their office lasted; and they assumed a power of altering them as they thought proper. To remedy so capital a defect in the distribution of justice, a law was passed so late as the year of Rome 687 (not long before Tully's time) which was called Lex Cornelia, from the name of C. Cornelius, a tribune of the people, who propounded it under the consulship of C. Piso and Man. Glabrio. By this law it was enacted, that prætors should in future constantly decree according to their own edicts, without altering any thing in them during the whole year of their prætorship. Some modern civilians produce a certain senatus-consult to the same effect, which, they say, had been passed a hundred years before ; while others are of opinion that the same is not genuine: however, supposing it to be really so, the passing of the law we mention shows that it had not been so well attended to as it ought to have been.
* The Court of Chancery was, very likely, the first instituted of the two courts of equity: as it was the highest court in the kingdom, it was best able to begin the establishment of an office or power, which natu- . rally gave rise at first to so many objections. The Court of Exchequer, we may suppose, only followed the example of the Court of Chancery : in order the better to secure the new power it assumed, it even found it necessary to bring out the whole strength it could muster; and both the Treasurer and the Chancellor of the Exchequer sit (or are supposed to sit) in the Court of Exchequer, when it is formed as a court of equity.
+ This Equity Court of Exchequer was abolished by the 5th Victoria, c. 5.- Ed.
Though the above-mentioned arbitrary proceedings of prætors were thus repressed, they retained another privilege, equally hurtful; which was, that every new prætor, on his coming into office, had it in his power to retain only what part he pleased of the edicts of his predecessors, and to reject the remainder: from which it followed that the prætorian laws or edicts, though provided for so great a number of important cases, were really in force for only one year, the time of the duration of a prætor's office. Nor was a regulation made to remedy this capital defect in the Roman jurisprudence before the time of the emperor Hadrian; which is another remarkable proof of the very great slowness with which useful public regulations take place in any nation, Under the reign of the emperor we mention, the most useful edicts of former prætors were by his order collected, or rather compiled, into one general edict, which was thenceforward to be observed by all civil judges in their decisions, and was accordingly called the perpetual edict (perpetuum edictum). This edict, though now lost, soon grew into great repute; all the jurisconsults of those days vied with each other in writing commmentaries upon it; and the emperor himself thought it so glorious an act of his reign, to have caused the same to be framed, that he considered himself on that account as being another Numa.*
But the courts of equity in England, notwithstanding the extensive jurisdiction they have been able, in process of time, to assume, never superseded the other courts of law. These courts still continue to exist in the same manner as formerly, and have proved a lasting check on the innovations,
* Several other more extensive law compilations were framed after the perpetual edict we mention ; there having been a kind of emulation among the Roman emperors, in regard to the improvement of the law. At last, under the reign of Justinian, that celebrated compilation was published, called the code of Justinian, which, under different titles, comprises the Roman laws and the edicts of the prætors, together with the rescripts of the emperors : and an equal sanction was given to the whole. This was an event of much the same nature as that which will take place in England, whenever a coalition shall be effected between the courts of common law and those of equity, and both shall thenceforward be bound alike to frame their judgments from the whole mass of decided cases and precedents then existing,--at least, such of it as may be consistently brought together into one compilatiou.
and in general the proceedings of the courts of equity. And here we may remark the singular, and at the same time effectual, means of balancing each other's influence, reciprocally possessed by the courts of the two different species, By means of its exclusive privilege both of creating and issuing writs, the Court of Chancery has been able to hinder the courts of common law from arrogating to themselves the cognizance of those new cases which were not provided for by any law in being, and thus dangerously uniting in thenselves the power of judges of equity with that of judges of common law. On the other hand, the courts of common law are alone invested with the power of punishing (or allowing damages for) those cases of violence by which the proceedings of the courts of equity might be opposed ; and thus they have been enabled to obstruct the enterprises of the latter, and prevent their effecting in themselves the like dangerous union of the two offices of judges of common law and of equity.
From the situation of the English courts of equity with respect to the courts of common law, those courts have really been kept within limits that may be said to be exactly defined, if the nature of their functions be considered. In the first place, they can neither touch acts of parliainent, nor the established practice of the other courts, much less reverse the judgments already passed in these latter, as the Roman prætors sometimes used to do in regard to the decisions of their predecessors in office, and sometimes also in regard to their own. The courts of equity are even restrained from taking cognizance of any case for which the other courts can possibly afford remedies. Nay, so strenuously have the courts of common law defended the verge of their frontier, that they have prevented the courts of equity from using in their proceedings the mode of trial by a jury; so that, when, in a case of which the Court of Chancery has already begun to take cognizance, the parties happen to join issue on any particular fact (the truth or falsehood of which a jury is to determine the Court of Chancery is obliged to deliver up the cause to the Court of King's Bench, there to be finally decided. In fine, the example of the regularity of the proceedings, practised in the courts of common law, has been communicated to the
courts of equity; and rolls or records are carefully kept of the pleadings, determinations, and acts of these courts, to serve as rules for future decisions.*
So far, therefore, from having it in his power" to temper and moderate” (that is, to alter) the written law or statutes, a judge of equity, we find, cannot alter the unwritten lawthat is to say, the established practice of the other courts, and the judgments grounded thereupon; nor can he even meddle with those cases for which either the written or unwritten law has already made general provisions, and of which there is a possibility for the ordinary courts of law to take cognizance.
From all the above observations it follows, that, of the courts of equity, as established in England, the following definition may be given, which is, that they are a kind of inferior experimental legislature, continually employed in finding out and providing law remedies for those new species of cases for which neither the courts of common law, nor the legislature, have yet found it convenient or practicable to establish any; in doing which, they are to forbear to interfere with such cases as they find already in general provided for. A judge of equity is also to adhere, in his decisions, to the system of decrees formerly passed in his own court, regular records of which are kept for that purpose.
From this latter circumstance it again follows, that a judge of equity, by the very exercise he makes of his power, is .continually abridging the arbitrary part of it; as every new case he determines, every precedent he establishes, becomes a land-mark or boundary which both he and his successors in office are afterwards expected to regard.+
Here it may be added as a conclusion, that appeals from
* The Master of the Rolls is the keeper of these records, as the title of the office expresses. His employment in the Court of Chancery is of great importance, as he can hear and determine causes in the absence of the Lord Chancellor.
+ “Hence,” says Mr. Millar, “law is constantly gaining ground upon equity. Every new and extraordinary interposition is, by length of time, converted into an old rule. A great part of what is now strict law was formerly considered as equity; and the equitable decisions of this age will unavoidably be ranked under the strict law of the next.”