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not crime manqué, a crime imperfect only in the execution but merely an attempt to commit a crime. The guilt of the individual is therefore less than if he had effected the demolition, and so far he deserves a less punishment. On the other hand, the injury done, the only ground besides for aggravating the punishment is less, probably very much less than in the case of complete demolition; perhaps there is no injury at all. On both grounds, therefore, the punishment of death seems too severe for this offence. And it should not remain as a blot upon our now generally humane statute book, that a mob, who declaring they will pull down a house, take off one tile, and are then frightened away by a posse of constables, are all guilty of a capital felony.

A great many opinions, both critical and suggestive, have been thrown out in the course of this article, without apology or restraint. Let it not therefore be supposed, that we entertain any exalted notion of our right or capacity to dictate on a subject of such extent and difficulty. But we should not do our duty as reviewers, if we suffered our respect for the personal merits of the Commissioners, or our sense of the importance and utility of their labours, to interfere with the honest expression of doubt, where doubt is entertained, of the correctness of some of their views. Some observations have been made with a pretty confident reliance on their justice, others with no decided opinion one way or the other, some with no other view than that of drawing the attention of the reader to a topic of decided interest; but none without a full sense of the manifold qualifications required for dealing with a subject so vast and profound as the consolidation of the Criminal Law of England. We take our leave of this Report by heartily recommending it to the careful perusal of all those who take delight in such inquiries, and with the confident belief that it will be introductory to many valuable improvements in the legislation of this country.

S.

ART. II.-EQUITY JURISPRUDENCE IN ENGLAND
AND AMERICA.

Commentaries on Equity Jurisprudence, as administered in
England and America. By Joseph Story, LL.D. Dane
Professor of Law in Harvard University.

THE treatise we now propose to examine, is written by the author of the work upon pleading, which we reviewed in our last number. It will perhaps occur to our readers, that this treatise should have been offered to their notice in the first instance, and that the principles of equitable jurisprudence should have been submitted to their consideration before they inquired into the forms of pleading, in which it assumes a practical shape. We certainly should recommend a student of equity to make himself acquainted with these Commentaries, before he passes to works of detail and practice. We fear that such is not the course commonly adopted. The student generally begins with the actual work of a pleader's office. He is brought in medias res. He commences a bill or answer, and hopes that in the course of their completion he may make acquaintance with the principles upon which they are framed. The consequence is, that lawyers are more frequently found to be correct in practice, and well versed in the rules of pleading, than acquainted with principles or capable of taking general views of the rights which are enforced. One cause of this difference is, that the principal object of a young lawyer is to acquire that peculiar species of knowledge which leads to early fame, and to an immediate increase of fortune. Another reason, we believe, to be the want of a comprehensive treatise upon equitable jurisprudence. The treatise on equity, attributed to Mr. Barlow, is a very meagre work in comparison with the extent of his subject, and although the notes of Mr. Fonblanque, which have been added to it, are executed with consummate ability, still from their very nature they are wanting in the arrangement and course of reasoning, without which a student is rarely induced to follow a long train of study. Blackstone's Commentaries contain a very short explanation of some of the leading equitable doctrines. He has pursued the discussion, so far as he has carried it,

with his usual acuteness of thought and elegance of style; but he has advanced so very small a distance, that no foreign jurist, rising from the perusal of his work, would entertain the slightest notion of the extensive application of equitable doctrines to all kinds of property in England.

The work before us supplies the defect. "My main object," says the author in his preface, "has been to trace out and define the various sources and limits of equity jurisdiction, as far as they may be ascertained by a careful examination of the authorities, and a close analysis of each distinct ground of that jurisdiction, as it has been practically expounded and applied in different ages. Another object has been, to incorporate into the text some of the leading doctrines which guide and govern Courts of Equity in the exercise of their jurisdiction; and especially in those cases where the doctrines are peculiar to those Courts, or are applied in a manner unknown to the Courts of common law. In many cases I have endeavoured to show the reasons upon which their doctrines are founded, and to illustrate them by principles drawn from foreign jurisprudence, as well as from the Roman civil law." He afterwards explains in the following words the mode in which he treats his subject. "The work is divided into three great heads. First, the concurrent jurisdiction of Courts of Equity; secondly, the exclusive jurisdiction; and thirdly, the auxiliary or assistant jurisdiction. The concurrent jurisdiction is again subdivided into two branches; the one, where the subject-matter constitutes the principal (though rarely the sole) ground of the jurisdiction; the other, where the peculiar remedies administered in equity constitute the principal (though not always the sole) ground of jurisdiction."

Looking to the vast range of subjects included in this inquiry, we naturally fix our attention upon our author's preliminary investigation into "the true nature and character of equity jurisprudence." This is the title of the first chapter. There is perhaps no other subject connected with our Courts of justice, which so often comes under discussion, and yet gives rise to such frequent mistakes. The error pervades not merely laymen, but also a large number of those who practise in Courts of Common Law. It

is supposed, that any wrong for which common law provides. no remedy, may be relieved in equity. "In the most general sense," says our author, "we are accustomed to call that equity, which, in human transactions, is founded in natural justice, in honesty and right, and which properly arises ex æquo1 et bono." In the same way equity has sometimes been supposed to depend upon the boni viri arbitrium. No person at all acquainted with our Courts of Equity, we might indeed say no person who has paid attention to the administration of justice in any country, can suppose that equity, such as prevails in English Courts, can fall within such a description. It would include those claims which are called by Doctor Paley, rights of imperfect obligation. For instance, the right of the best candidate for public appointments to be preferred to his inferiors; that of unfortunate persons to be relieved by the rich; that of a benefactor to enjoy the gratitude of him who is benefited. The reason why claims of this description are not enforced by courts of justice is, not that the violation of them is less injurious to the state than breaches of statute law, but that the enforcement of them must necessarily be of an arbitrary character, and must be accompanied with inquisitorial examination. As Doctor Paley observes, "A man who by a partial, prejudiced, or corrupt vote disappoints a worthy candidate of a station in life, upon which his hopes, possibly a livelihood depended, and who thereby grievously discourages merit and emulation in others, commits, I am persuaded, a much greater crime than if he filched a book out of a library, or picked a pocket of a handkerchief, though in the one case he violates only an imperfect right, in the other a perfect one."

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Our author notices another opinion of the nature of equity, which we believe owes its origin to Aristotle. The sense here alluded to, is that in which it is used in contradistinction to strict law, or "strictum et summum jus." The principal passage of Aristotle upon this subject may be translated in the following words:" Justice then and equity are of the same character, both of them are excellent, but equity is the

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2 Paley, Moral Philosophy, 1, 91, 94.

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4 Aristot. Ethic. lib. 5.

better of the two. The difficulty is, that equity is a species of justice, not however according to law, but as a correction of that justice which is established by law. For the law is laid down generally; but there are some subjects on which general rules cannot be laid down with success." This definition of equity is less extensive than the preceding definition, confining it to those subjects to which law is applicable. The jurisdiction of the Roman Prætor seems to have worn the same character. "Jus prætorium est quod prætores introduxerunt adjuvandi, vel supplendi, vel corrigendi juris civilis gratiâ, propter utilitatem publicam, quod et honorarium dicitur ad honorem prætorem sic nominatum." We need hardly observe that the equity defined in this term, is quite distinct from the equity as administered in this country, as there are numerous rights enforced in our Courts of Equity on which the statute and common law are altogether silent. When we remember the arbitrary notions, which during the earlier periods of our history prevailed in all departments of state, we cannot be surprised that Courts of Equity should have assumed the exercise of a very wide discretion, and that in the dicta of the Chancellors of those days language should be found in favour of the largest interpretation of the province of equity. For instance, that Lord Bacon should say, "Chancery is ordained to supply the law, and not to subvert the law," or that in the treatise on equity it should be observed, " every matter therefore that happens inconsistent with the design of the legislator, or is contrary to natural justice, may find relief here. For no man can be obliged to any thing contrary to the law of nature; and, indeed, no man in his senses can be presumed willing to oblige another to it." In truth, equity was in ancient times "most gigantic in its sway." Selden's rebuke was correct in fact. "For law we have a measure, and know what we have to trust to.-Equity is according to the conscience of him that is chancellor; and as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure the chancellor's foot. What an uncertain measure would this be? One chancellor has a long foot, another a small

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