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the Court of Chancery in England, it was seldom resorted to, until the passage of two noted statutes, the statutes of wills, and uses, in the reign of Henry VIII, and after these, the statute of charitable uses, in the reign of Queen Elizabeth. These, together, says Mr. Justice Story, a "laid the foundation of that broad and comprehensive judicature, in which equity administers through its searching interrogations addressed to the consciences of men, the most beneficent and wholesome principles of justice. The whole modern structure of trusts, infinitely diversified as it is by marriage settlements, terms to raise portions to pay debts, contingent and springing appointments, resulting uses, and implied trusts, grew out of this last named statute, and the constructions put upon it."
Under the guidance of Lord Bacon, the business of chancery assumed a regular course; and at the distance of two centuries, his celebrated ordinances continue to be the pole star which directed, and still directs the course of courts of equity. At a later day, the doctrines of the courts of equity attained a still higher degree of perfection. Lord Nottingham brought to that branch of jurisprudence, a strong and cultivated mind, and pronounced his decrees after the most cautious and painstaking study. Lord Cowper, and Lord Talbot, pursued the same course with the genuine spirit of jurists. But, in England, it was reserved for Lord Hardwicke, by his deep learning and extensive researches and his powerful genius, to combine the scattered fragments into a scientific system; to define with a broader line the boundaries between the departments of the common law and chancery; and to give certainty and vigor to the principles, as well as the jurisdiction, of the latter. Henceforth, equity began to acquire the same exactness as the common law. At a still later period, we have seen in the labors of Lord Eldon through a series of more than twenty-five volumes of reports, a diligence, sagacity, caution and force of judgment, which have seldom been equalled; and which gave dignity as well as finish to that great moral machinery which administered the rules and doctrines of conscience ex aequo et bono."
But we may take pride in saying, that no higher degree of perfection in the system of equitable jurisprudence was ever attained a Story's Progress of Jurisprudence.
in England, nor its administration conducted with a higher degree of credit for learning and research, than is to be found in the reported adjudications of Kent and Walworth, whose reported opinions and decrees are found moulded into a degree of moral beauty and perfection which their English predecessors have not surpassed, or been exceeded by the learned treatises upon equitable jurisprudence of Justice Story.
"New discoveries and inventions in commerce," says Lord Hardwicke, in a letter to Lord Kames before referred to, "have given birth to new species of contracts; and these have been followed by new contrivances to break and elude them, for which the ancient simplicity of the common law had adapted no remedies; and from this cause, courts of equity, which admit of a greater latitude, have, under the head adjuvandi, vel supplendi juris civilis, been obliged to accommodate the wants of mankind."
"Another source of the increase of business in the courts of equity has been, the multiplication and extension of trusts. New methods of settling and incumbering landed property have been suggested by the necessities, extravagance, or real occasions of mankind. But what is more than this, new species of property have been introduced, particularly by the establishment of the public funds, and various transferable stocks, that required to be modified and settled to answer the exigencies of families, to which the rules and methods of conveyancing would not ply or bend. Here the liberality of courts of equity has been forced to step in
and lend her aid.'
In comparing the present state of jurisprudence in this country, with that of a former day in England, we have much reason for congratulation. In arbitrary, and despotic governments, the laws rarely undergo any considerable changes through a long series of years. In free governments, and in those where the popular interests have obtained some representation or power, however limited, the case has been far otherwise. We can here trace a regular progress in the laws from year to year, and a gradual · adaptation of them to the wants, employments, and improved condition of man under a free government, corresponding to their advancement with arts, in the sciences, in intelligence, and in the refinements and elegancies of life. As the citizen is made to feel his independence, dignity, and responsibility as a portion of the sovereign power; as civilization advances, and he becomes educated in the knowledge of his rights, and is called in to assist in the
formation of the government of his choice; we find him engaging himself in adopting a system of fundamental law, in which, the judicial powers are separated from the executive and legislative authorities; and men are selected for judicial positions, whose sole duty it is, to administer justice, and correct abuses. "The punishment of crimes, at first arbitrary, is found gradually moulded into a system, and moderated in its severity; and property, which in other countries is inherited under a law of primogeniture, with a permanancy of tenure, becomes here, transmissable in equal portions to the descendants of those whose enterprise, or good fortune, has accumulated it." a
We know from the history of the times, that before the revolution, while our system of jurisprudence was substantially that of the mother country, our progress in the law was slow, though not slower, perhaps, than in other departments of science; the resources of the country were small, the population sparce and scattered, the business of the courts limited, the compensation for professional services moderate, and the judges not always selected from those learned in the law. Our colonial condition restrained our foreign commerce; the principal trade was to, or through the mother country, and our most important contracts began or ended there. While there were learned men in the profession, their number was small; and from the nature of the business which occupied the courts, the knowledge required for common use, was neither very ample, nor very difficult.
Since the war of independence, the progress of jurisprudence in this country has been most rapid, keeping equal pace with the progress of population, and to the advance in all the arts and knowledge that now characterize its people. With a union of thirty-six independent states, now, and two or more territories, now waiting for admission as states, in nearly all of which, the same common law, substantially is the acknowledged basis of their jurisprudence, and upon which, their statutes, part of their jurisprudence, are enacted; we find, notwithstanding the differences of habits, of climate, nationalities, peculiarities, local customs and judicial determinations, a far greater degree of uniformity in the law and its administration, than could have been expected. The a Story on Jurisprudence.
task however, of administering justice for the causes above mentioned, in the state and national courts, owing to the somewhat complex system of national and state jurisdictions, is both laborious and perplexing, owing to the almost unavoidable consequence of their peculiar relations to each other, and of course, one of the most common embarrasments, arises from the conflict of rival jurisdictions.
The most delicate, and at the same time, the proudest attribute of American jurisprudence, is the right of its judicial tribunals to decide questions of constitutional law. In England, the legislative authority is practically omnipotent; the judicial power cannot reach them. Here, says Judge Story, "the privilege of bringing every law to the test of the constitution, belongs to the humblest citizen, who owes no obedience to any legislative act which transcends the constitutional limits." However much, at an earlier day, the sympathies of those learned in the English system, may have led them to question this doctrine, their views have been yielded, and at this day, the question is no longer mooted in the courts. The wise and the learned, and the virtuous, are unanimous in sustaining the doctrine which the courts of justice have uniformly asserted; that the constitution, is not only the law for the legislature, but is the law, and the supreme law, which is to direct and control all judicial proceedings.
"The discussion of constitutional questions," says judge Story, "throws a lustre round the bar, and gives dignity to its functions, which can rarely belong to the profession in any other country. Lawyers are here emphatically placed as sentinels upon the outposts of the constitution; and no nobler end can be proposed for their ambition or patriotism, than to stand as faithful guardians of the constitution, ready to defend its legitimate powers, and to stay the arm of legislative, executive or popular oppression. If their eloquence can charm, when it vindicates the innocent and the suffering under private wrongs; if their learning and genius can, with almost superhuman witchery, unfold the mazes and intricacies by which the minute links of title are chained to the adamantine pillars of the law;-how much more glory belongs to them, when this eloquence, this learning, and this genius, are employed in defence of their country; when they breathe forth the
purest spirit of morality and virtue in support of the rights of mankind; when they expound the lofty doctrines which sustain, and connect, and guide the destinies of nations; when they combat popular delusions at the expense of fame, and friendship, and political honors; when they triumph by arresting the progress of error and the march of power, and drive back the torrent that threatens destruction equally to public liberty and to private property; to all that delights us in private life, and all that gives grace and authority in public office."
"This is a subject, which cannot too deeply engage the most solemn reflections of the profession. Our danger lies in the facility, with which, under the popular cast of our institutions, honest but visionary legislators and artful leaders may approach to sap the foundations of our government. Other nations have the security against sudden changes, good or bad, in the habits of the people, or in the nature of their institutions. They have a monarchy gifted with high prerogatives; or a nobility graced with wealth and knowledge and hereditary honors; or a stubborn national spirit, proud of ancient institutions, and obstinate against all reforms. These are obstacles, which resist the progress even of salutary changes; and ages sometimes elapse before such reforms are introduced, and yet more ages before they are sanctioned by public reverence. The youthful vigor of our constitutions of government, and the strong encouragements, held out to free discussion, to new inquiries and experiments, expose us to the opposite inconvenience of too little regard for what is established, and too warm a zeal for untried theories. This is our weak point of defence; and it will always be assailed by those who pant for public favor, and hope for advancement in political struggles."
Under the pressure of temporary evils, or the misguided impulses of party, or plausible alarm for public liberty, it is not difficult to persuade ourselves, that what is established is wrong; that what bounds the popular wishes is oppressive; and that what is untried, will give permanent relief and safety. Frame constitutions of government with what wisdom and foresight we may, they must be imperfect, and leave something to discretion, and much to public virtue. It is in vain that we insert bills of rights in our constitutions, as checks upon legislative power, unless there