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CIVIL JUSTICE in the WEST INDIES: (JAMAICA.) 101
General Observations and Suggestions.
in England, and as the subject of proceedings in equity has of late excited considerable
attention in this country, and numerous complaints of the ruinous effects of the
equity jurisdiction in Jamaica on estates there, when brought under its management
and control, have been made to us, we feel it our duty to endeavour to propose some
remedy for this evil, and for this purpose we shall avail ourselves, in so far as it may
with a view to local circumstances be practicable or necessary, of the labours of the
Commissioners appointed by His Majesty to enquire into the practice of the courts
of equity in this country; Mr. Commissioner Dwarris's Third Report. premising, that whatever suggestions we may feel it our
duty to make, will be founded on the supposition that it may be deemed advisable
by His Majesty, to transfer the functions of Chancellor in Jamaica, as has been
recommended by Mr. Dwarris for the other British Colonies, (in which recommendation
we perfectly concur), to a regular equity lawyer; and thus to relieve his
representatives in the Colonies from an office which subjects them to great inconvenience
and perplexity.
It may perhaps be useful, previously to our offering any proposition for reforming
the system and mode of proceeding in equity in the English Colonies, according
to the English practice, to endeavour to give by way of illustration of our general
notions on this head, a slight sketch framed by Mr. Henry, of the mode of proceeding
in cases calling for equitable relief in foreign courts, where the laws are
founded chiefly on the Roman code: for as it must be admitted, that cases of equity
must arise in every country, where law has the semblance of science, and where the
distinction exists (as it does throughout the Continent of Europe,) between contracts
bonæ fidei and stricti juris, we think that it may not be impossible with all our
veneration for our own ancient laws and institutions, to glean something from
the manner of arriving at equitable relief in foreign courts of justice, which in
common with our own courts of equity, and we might say of common law, without
much fear of contradiction from those who have read Bracton and Fleta, have
borrowed so much from the great work of Justinian.
We must observe, that in all those courts which are founded on the Roman law,
and particularly in those of the Dutch ceded colonies, with which Mr. Henry is
chiefly conversant, and which have undergone no change in this respect, relief,
as it is termed, is divided into two kinds, sovereign and judicial. The former can
only be afforded by the Sovereign, or those to whom he has delegated this power,*
which is supposed to exist essentially in him as the fons justice,+ and is sought
or applied for in those cases in which otherwise the party would be estopped by
his own act or deed from making any defence, though made under circumstances
which would render it unjust or inequitable to enforce the claim at common law.
In such cases, the court sitting as a court of common law, cannot relieve the
party, who must therefore apply to the Sovereign or his delegate, by a petition,
verifying the facts, for a writ of relief, according to the circumstances of the case,
which is termed restitutio in integrum. This writ is then issued, with committimus
to the court where the action is pending, to confirm or render it absolute or not, on
hearing of the parties; and it contains generally a clause of injunction or inhibition
of the other party from proceeding, in the mean time, at common law on the
contract, and until this question of relief be disposed of.
In this way, the court of common law, or of general jurisdiction, sitting as a court
of equity, or on the equity side of the court, if it may be so termed, is confined by
the operation of this writ, to the simple and naked question, whether the party is
entitled to the equitable relief prayed, or a restitutio in integrum and is not at
liberty to mix it up with any other question, on the general merits. Thus the vague
notion, which is too generally entertained in this country, that the Judges in the
foreign courts are at liberty to confound both law and equity in their decisions, will
be seen to be unfounded.
If the writ is confirmed by the court below, or of original jurisdiction, then there
is an end of the action or proceeding at common law, and equitable relief is given,
according
* In England, this power to afford equitable relief is delegated at once by the Sovereign
to the person to whom he entrusts the great seal, and who is thereunder emphatically termed
the keeper of the king's conscience.
+ Under the ancient government of Holland, the power of granting this writ was delegated
by the States General to the Supreme Court of Holland.
559. C c
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first report of commissioners on criminal and civil justice in the west indies (jamaica) |
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/ 100-109 |
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"extract from mr henry's report on the colony of jamaica / to jeremy bentham esq / with his best respects" |
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