The Equitable Jurisdiction of the Court of Chancery ; comprising Its Rise, Progress, and final Establishment. To which is prefixed, with a view to the elucidation of the main subject, a concise Account of the leading Doctrines of the Common Law and of the course of Procedure in the Courts of Common Law in regard to Civil Bights; with an attempt to trace them to their Sources; and in which the various alterations made by the Legislature down to the present day are noticed. By George Spence, Esq., one of her Majesty's C0111150. In two volumes. Volume I.
DIDACTIC Ficilow, Stevens and Norton. Ravensnest ; or the Redskins. By the Author of The Pilot," "The Pathfinder," &c. &c. In three volumes Bentley. TRAVELS,
Personal Recollections of a Ten-Months Residence in Berlin ; also, Extracts from a Journal kept in Paris during the Crisis of 1839. By Major Whittingham, C.B.,
Twenty-sixth Cameronians Oh pier.
Life at the Water Cure ; or a Month at Malvern. A Diary, by Richard J. Lane,
Lithographer to her Majesty and H.B.a. the Prince Albert, A.R.A. With nume-
rous Illustrations Longman and di,.
MB. SPENCE'S EQUITABLE JURISDICTION OF THE COURT OF CHANCERY.
" THE Equitable Jurisdiction of the Court of Chancery," or even Mr. Spence's voluminous titlepage, conveys but an insufficient idea of the nature and extent of this elaborate survey of history and law. We hardly know how to describe the variety of topics that are and are to be handled in the work. As Chancery is connected with Common Law, and both are interwoven with English history, and, in their origin, with Roman jurisprudence, ancient Northern or Germanic institutions, and the general practice of Europe during the early part of the middle ages, Mr. Spence surveys all these subjects, and maps them out for his reader. It is as it a person undertaking to describe an embouchure or lake should not merely follow out the main feeder, but trace all the subordinates and tributaries upwards to their springs, or rather commence with the sources and travel downwards to the sea ; when he would be in ample condition to tell the story of "the meeting of the waters." There is vastness and variety in this treatment; but there is no con- fusion, nor any complexity, beyond the necessary complexity of the sub- ject matter. For part of this merit Mr. Spence is doubtless indebted "to that directing power
Who forms the genius in the natal hour":
but we are inclined to ascribe a very great share of his success to the matter-of-fact origin of a Chancery barrister's training and practice. Accustomed to deal with all the various persons and complicated interesta which the rules of the Court and possibly of Equity combine in a snit, and compelled to make the whole "story good" and clear, Mr. Spence was neither overwhelmed nor daunted by the extent and ramifications of his subject. He begins with the beginning, as he would in deducing a title or a pedigree • and, touching upon Cxsar's account of his defeat of Cassibelan, proceeds gradually down the stream of time, partly guided by subject, and partly by epochs; though perhaps duration lurks at the bottom of his arrangement. The Roman tera, for example, is summarily dismissed ; all that relates to the Saxon institutions and society, so far as they influence or can be influenced by law, is carried down to the Conquest, but exhibited under various dis- tinct chapters; the mere length of the divisional parts being disregarded ' in comparison with clearness and completeness. In the following stages, when a subject is determined either wholly or in part, the writer stops at the natural end or at a convenient pausing-place ; but in the case of existing branches of the law, he travels down to the present day, no matter at how early a period the law originated. The literary character of the book is analogous to its plan and treat- ment. The solid predominates. The careless graces and philosophy of Hume, the finished composition of Robertson, the pithy and drily sar- castic criticism of Mill, or the lawyer elegance of Blackstone, must net be looked for in The Equitable Jurisdiction of the Court of Chancery; but the composition is close and clear, and not devoid of critical reflec- tion. The most extraordinary point of the book, however, is the fulness of its matter. Every period has not only its meaning, but its full allowance of meaning. Whole sections might be dispensed with if only the Court of Chancery were regarded ; but., so far as we have read, it would be difficult to apply the pruning-knife to the diction. Two main objects appear to have been present to the mind of Mr. - Spence. 1. To give a succinct history of English law, and an exposition of its existing principles and practice especially in Chancery. 2. To dissipate a national prejudice, which Ls ascribed everything excellent in our constitution and laws to the Anglo-Saxon or Germanic character, by showing that many if not most of our laws and institutions are de- rived from the Romans. At first sight the author's views appear ex- treme; for, not content with ascribing boroughs, common law, and the regal style of our Kings, to the influence of old Rome and the Romish clergy, he even traces the germs of our county courts, parliaments, the feudal system, and trial by jury, to the operation of the Roman spirit. As, however, he. proceeds to adduce his arguments or inferences from a searching examination of the ancient remains, only made accessible of late years to research, and commented upon by modern editors, the reader feels disposed to agree with him to this extent, that pre- judice rather than facts or reason induced our ancestors to ascribe nearly everything to a Germanic origin ; whereas, partly from the supe- riority of the Roman institutions and the necessity of the case, many of the English forms were merely modifications of the Roman. We think, however, they were animated by a free Anglo-Saxon spirit, which threw off what was Imperial in their nature ; whereas that which was in- troduced with less social necessity by the clergy, and probably created "prerogative," was despotic both in form and spirit. Yet the critic will feel that Mr. Spence sometimes pushes his conclusions too far, and ascribes that to imitation which arose from circumstances or necessity. It may be that the military colonies, whose duty was to defend the fron- tiers, had a strong essential resemblance to the feudal system : but they
might both originate in the same causes ; a stationary military force claiming the dominion of the country, yet not belonging to it or amalga- mating with the population.
In those parts which relate directly to special branches of the law' the character of the work is of coarse professional. In the more general dis- quisitions, the interest is historical, and of a kind both suggestive and instructive. The state of manners and society are inferred from the laws, as well in their introduction as in their changes to meet a more advan- cing condition of the people. Even their practical working, broadly and skilfully developed as it is by Mr. Spence, often throws light upon the state of the society, and brings before the mind in a more lively manner the facts of history. In the following passage we see the power of the clergy as founded upon their use, and (if we also take medicine into account) monopolizing all the influence which is now scattered among so many special professions, or to some extent possessed by the state.
"From the circumstance of their being the sole depositaries of learning the secular clergy and the monks, during the whole of the Anglo-Saxon and Danish and Nornaan period of our history, became necessary to the people, high and low, in most of the ordinary transactions of life. If a will or an matrument of sale, gift, or exchange, or indeed any instrument, ('boo,' gewrite,' 'carta,') were re- quired to be drawn up, a priest or a monk was necessarily resorted to. The monasteries, as we know from what remains of their chartularies had, in the grants to themselves, precedents for almost every species of transaction relating to property; and the copies of the Gospels preserved in the different churches and monasteries were very commonly resorted to as affording the safest depository for private charters and the judgments of the ordinary tribunals. Those relating to the King were preserved in his own chapel.
" The priests had also important duties assig' ned to them by the law: to them it was especially committed,. diligently as far as they could, to support every just right, and never to permit, if they could ameliorate it,' that any Christian man too greatly injure another, nor the powerful the weak, nor the higher the lower, nor the shire-man those under him, nor the hlaford,' or lord, his men or vas- sals, not even his thralls' or cultivators; and every tribunal had a clerical president.
"The priests and monks alone were competent to undertake as advocates a legal discussion. After the Norman Conquest, when litigation was principally conducted before judges appointed by the King, at least down to the reign of Henry IL, judicial offices in the King's court, as will be particularly noticed has- after, were conferred almost exclusively on ecclesiastics; and members of this body till a later time, following the example of their predecessors, sought and obtained considerable emoluments by embracing the profession of advocates before the legal tribunals."
The fashion is pretty well exploded of referring to Anglo-Saxon times as a sort of golden age in English freedom, which was turned into one of iron by the coming of the Conqueror : in fact, William rather ame-
liorated the laws than otherwise ; and SB soon as the transition stage had passed over, the condition of the country improved. The servility, tyranny, and confusion of the Anglo-Saxon times, is shown by many indications in this volume but one law is curious for its intimation of the universal robbery that was going on.
"The provisions in regard to sales and transfers of goods cell for some notice. It was declared that no sale, transfer, or exchange, should be valid unless it took place before witnesses, a gerefa, a magistrate, the priest of the place, or the lord of the land. By the laws of Edgar, there was to be a certain number of persons selected in each burgh or town before whom all such transactions were to take place. The great aim of these provisions was. to prevent a traffic in stolen cattle and other property: the provisions as to warranty of all articles sold, which are numerous and precise, appear to have been intended for the same purpose. There was a special provision that purchases in London should be made before witnesses or the portreve: the doctrine of the common law, which secures to the purchaser goods purchased in market overt, is based upon these early laws."
It seems clear that the satirist of modem London was mistaken when he sung, "A single jail in Alfred's golden reign • Could 'half a nation's criminals contain"; unless imprisonment for "crimes against property" was abandoned for want of room. Nor will many be tempted to echo his exclamation, "Blest age ! " however they may agree with the sequence, "but ah ! how different from our own !" Here is a picture of the bold peasantry and agriculturists of those times.
"Down to the time of the Norman Conquest, the land throughout the kingdom generally was cultivated by persons attached to the soiL Of these some were in absolute slavery; others, under the name of ceorls, were treated as free men. The ceorls are mentioned in the earliest of the codes' they had their cottages and slaves or labourers. The ceorls were attached to the soil in which they had a recognized interest. Generally speaking, so long as the ceorl paid his accustomed rent and performed the accustomed services, whether general or defined, neither he nor his children could be removed from the land; nor by law could a higher rent or a greater proportion of labour be exacted from him than custom warranted. If the ceorl contumaciously neglected to render his services or rent, it would seem that he could expect no mercy."
It was possible, though in practice no doubt very difficult, for the grandson of a churl to become a gentleman ; or even the churl himself— if he could.
"If a ceorl acquired five hides of land, his were, or the price of his life, was equal to that of a thane; if his son and his son's son should so thrive as to have as much land after him, the offspring were of sithaund race and valued as thanes. A sfthcand man might leave his farm and take away his 1114 gerefa, his smith, and his child's nurse; but he must leaves certain portion of his farm in a proper state of cultivation. If a ceorl could acquire the requisite qualifications, his birth presented no obstacle to his being advanced to the rank of a thane, or even to the 'dignity of eorl. When Domesday was compiled, the ceorls had acquired the general name of villani, cotarii, and other designations; the lands they held were called villein lands?'
The following passage is curious as indicating the possible germ of the House of Commons. It also furnishes a specimen of the more extreme
-arguments of Mr. Spence in favour of the Roman origin of our institu- tions.
" There is a remarkable document of the time of Athelstane which possibly may-he considered as the first authentic indication of the interference of the Coinnwne in matters of legislation as a body distinct from the proceres who com- posed the council or curia of the King. It seems that Athelstane sent commis- sioners or royal missi, as such functionaries were then denominated among the Francs, requiring or authorizing the inhabitants of the county of Kent, and of other counties, to meet and resolve upon such amendments in the laws as they deemed expedient to be adopted. All the inhabitants, bishops, eons, thanes, and ceoris or villassi of Kent, accordingly met; and they resolved upon & petition or address to the King, in which they stated that they had agreed upon eight several capitols, which they presented, and prayed that the King in his mercy would pouat out whether they had exceeded or fallen short of what he desired; adding, that they would implicitly conform to his wishes. The Decretum Sapientium Anglia, agreed to, first at Exeter, then at Faversham, then at Thundersfield in Surrey, and the Judicia Civitatis Londonite, agreed upon by the cods and mods (sonnies et nillani) of London, are of a similar character. "It will be seen in a subsequent chapter, in which the rise of the English House of Commons to its present state is shortly traced, that it was always by way of petition that the Commons interfered, even when they became by their. representatives a distinct and recognized branch of the Legislature; sometimes the Lords joining them in the petition, at other times the petition being addressed by them alone to the King, or to the King and the Lords, or sometimes to the Lords alone. It is from this circumstance, and from the totally different character of the Commons' branch of the Legislature to that of the Lords, that I have been in- duced to think that the House of Commons must have originated as a distinct institution, not as a constituent part of the Great Council. The documents above referred to appear to me to point out the germs from which it sprung. The very learned and intelligent compilers of the Ancient Laws of the Anglo-Saxons have not offered any explanation of these documents; indeed, before I ventured to put the above interpretation upon them, I looked in vain for any explanation as to their character in the works of our most celebrated antiquaries and historians. In former times, it would have been too bold a flight even to hint that the legis- lative authority of the House of Commons might in any the slightest degree be traced to an institution which had prevailed in the ROM= provinces; yet, con- sidering the weight that Imperial sanction must have had in recommending any institution to the Anglo-Saxon sovereigns, whose prerogatives, as we have seen, were chiefly founded on Imperial doctrines, it seems to me not unworthy of atten- tion, that the Theodosian Code would have informed the King and the legislators of the time, that under the authority of the Imperial constitutions, regular as- semblies of the provincials were held throughout the empire, at whieh petitions were agreed upon for the reform of abases, and the adoption of such measures as were considered necessary for the public benefit, and for the amendment of the law."
The length to which our notice of the historical disquisition has extended, prevents our entering at all upon the strictly legal portions of the book ; but we shall possibly touch upon it on the appearance of the second volume. In the interim, we may say to the lawyer, that while so much care and labour have been bestowed upon the more intellectual part, that which is merely technical and common to all law- books has not been neglected. The references, the tables of contents, the index, are voluminous, and, we doubt not, accurate : things seem- ingly small, but of no small consequence in so extensive a work as this will be when completed.