صور الصفحة
PDF
النشر الإلكتروني

It is beyond all doubt, that Simon was in the class of those philofophers, who not only maintained the eternity of matter, but also the existence of an evil being, who prefided and thus fhared the empire of the univerfe with the fupreme and benefi cent mind. And as there was a good deal of variety in the fentiments of the different members of this fect, it is more than probable that Simon embraced the opinion of thofe who held that matter, moyed, from eternity, by an intrinfic and neceflary activity, had by its innate force produced, at a certain period of time, from its own fubftance, the evil principle which now exercises dominion over it, with all his numerous train of attendants. From this pernicious doctrine, the other errors attributed to him concerning fate, the indifference of human actions, the impurity of the human body, the power of magic, and fuch like extravagancies, flow naturally as from their true and genuine fource [y]. But this odious magician ftill proceeded to more fhocking degrees of enormity in his monstrous fictions; for he pretended, that in his perfon refided the greatest and moft powerful of the divine cons; that another aon of the female fex, the mother of all human fouls, dwelt in the perfon of his mistress Helena [z], and that he came, by the command of God, upon earth to abolish the empire of thofe that had formed this material world, and to deliver Helena from their power and dominion.'

Our Author concludes his hiftory of the firft century with a fhort account of the Nicolaitans and of Cerinthus.-As to the Nazarenes and Ebionites, though they are generally placed among the fects of the apoftolic age, yet they really belong, he fays, to the fecond century, which was the earliest period of heir existence as a fect.

many occafions, prefer the marvellous to the truth, as favourable to a fyftem of religion, or rather fuperftition, which truth and reafon loudly difown.]

[] The differtation of Horbius, concerning Simon the magician. which was published not long ago, in the Biblioth. Hærefiologica of Voigtius, tom. i. par. III. p. 511. feems preferable to any thing else upon that fubje&t, though it, be a juvenile performance, and not fuffi ciently finished. He follows the fteps of his mafter Thomafius, who, with admirable penetration, discovered the true fource of that multitude of errors, with which the Gnoftics, and particularly Simon, were fo difmally polluted. Voigtius, in the place above cited, p. 567. gives a lift of the other authors, who have made any mention of this impoftor.

[] Some very learned men have given an allegorical explication of what the ancient writers fay concerning Helena the miftrefs of this magician, and imagine that by the name Helena is fignified either matter, or fpirit. But nothing is more eafy than to fhew upon what flight foundations this opinion is built."

Before

Before we conclude this first part of the article, it will be proper to acquaint our Readers, that the references to the original notes of the Author are included in crotchets only, and those to the additional ones of the Tranflator in parentheses, with a crotchet at the beginning and end of each refpective note.

[blocks in formation]

Reports of Cafes argued and determined in the High Court of Chancery, in the Time of Lord Chancellor Hardwicke. Collected and methodized by John Tracy Atkyns, of Lincoln's Inn, Efq; Curfitor Baron of the Exchequer. With Notes and References, and three Tables; one of the feveral Titles with their Divifions, another of the Names of the Cafes, and a third of the principal Matters. Vol. I. Folio. 11. 11s. 6d. Worall, &c.

IN

'N former times, when the adjudications of the feveral courts of juftice were confidered as the dicta fapientum, and were defervedly held in efteem and reverence, certain perfons of approved knowlege, experience, and accuracy, were authorized to collect the reports of the feveral cafes argued and determined in the courts of law. To the labours of these able and diligent reporters we are indebted for thofe awful volumes called the Year Books, which contain a fund of knowlege that few modern lawyers have the courage, or ability to explore, and which they therefore affect to flight. But however they may be contemned by the ignorant and the indolent, they will never lose their value with those who know how to prefer the folid and weighty decifions of men thoroughly skilled in their profeffion, to the flimfy and Auctuating adjudications of more modern and fuperficial lawyers.

In the language of former times, judges were often complimented with the appellation of grave and fad men. Our ancestors were not so refined as to deem a gravity and decorum of character, a mark of a narrow and contracted mind. It was not become the fashion to prefer men to the feat of judgment on the fcore of their genius and vivacity, but on account of their knowlege and experience. Judges were felected out of those who were diftinguished by long practice for their abilitics at the bar, before they rofe to the bench. It was not enough that they had figured in the national council, and that they could boaft a fippancy of tongue to fupport or perplex an adminiftration. As they were not promoted to the feat of judgment by any kind of parliamentary influence, neither, when feated there,

I 2

were

were they biaffed by any party principles. In the early days of which we are fpeaking, they did not, on one hand, ftrain the law by rigid conftructions, to favour minifterial oppreffion; nor on the other did they loofen the ties of government by partial interpretations, in order to forward the defigns of factious oppofition: neither yet did they affect a brutal independance, and growl and fnarl, fometimes on one fide, fometimes on another, as caprice or ill-humour directed them.

The judges of thofe times were not induftrious to contravert in one court, the principles laid down in another; they were rather ftudious to preferve an uniformity of decifion, than which nothing is more conducive to the fecurity and welfare of the fubject for it is fometimes, perhaps, of little confequence what the law is, provided that, fuch as it is, it be well known and invariably pursued and we may justly say, that misera eft fervitus ubi jus eft vagum aut incognitum.

Nothing therefore can be more inconfiderate than the affectation of totally difregarding precedents as fo many fervile fhackles. The greatest lawyers have ever held them in moft efteem: and there are many inftances where fuch have declared that they thought themselves bound by former adjudications, though if the cafe before them had been of a new impreffion, they would have inclined to a contrary opinion.

In this view, our report-books, if well digefted, may be confidered as fo many monuments of the wisdom of former times. But it must be confeffed that many of later date, are rather repofitories of error. Indeed fome of them are more properly common-place books than reports: as they contain little more than the bare judgment of the court; or, if they hazard a state of the cafe, it is too often imperfectly or erroneously reported.

With regard, however, to the volume now before us, it is but juftice to acknowlege, that the cafes are very fully and accurately flated. The reader here may enter into the true grounds on which the several determinations are founded, as the able Reporter has not only in general preferved the arguments of the council on both fides, but likewise the reasoning of the chancellor and it is no fmall recommendation of these decrees, when we confider that they are the decifions of a judge, who, whatever the world may conclude, as to his political character, will, as a lawyer, ever be ranked among the ornaments of the profeffion.

The cafes in this volume are ranged in an alphabetical feries, which, as the Reporter observes in his preface, by including the whole that relates to each feparate branch, prevents the Reader from being confounded by stepping abruptly from one head of equity to another.

Of

Of a work of this kind, a general account is all that can be expected. Particular extracts and obfervations, on fuch dry fubjects, would be very uninteresting to moft of our Readers. But as a fpecimen of our Reporter's performance, we will give an abstract of Lord Hardwicke's decree in the famous cafe of Mr. Spencer, in which he was affifted by feveral of the judges. The report of this cafe alone takes up 55 pages of this volume, and is, in fubftance, thus:

In 1738 Mr. Spencer applied to Sir Abraham Janffen, and borrowed of him 5000l. on bond, conditioned for the payment of 10,000l. foon after the death of the Dutchefs of Marlborough, in cafe he should furvive her, not otherwife. The dutchefs

died in 1744; and on Sir Abraham's delivering up the above bond to be cancelled, Mr, Spencer executed a new bond, in the penalty of 20,000l. conditioned for payment of 10,000l. with intereft; and at the fame time executed a warrant of Attorney, impowering the defender to enter up a judgment against him for the penalty, which was done accordingly.

Some time after Mr. Spencer died, leaving the residue of his eftate, after payment of his debts and legacies, to his fon; and his executors brought a bill to be relieved against the defendant's demand, as an unconscionable demand, and an ufurious contract. After many learned arguments of fome of the most eminent council at the bar, and hearing the opinions of the chief juftices, the mafter of the rolls, &c. the lord chancellor pronounced the decree, of which the following is an abstract :

Lord Chancellor: "Before I proceed, it is proper to mention, that Lord Chief-Juftice Willes, being ill, has furnished me with his reafons by letter, and authorized me to fay, he concurs in opinion with me in the three points that are made in the cause.

In the next place, the able affiftance I have had in this caufe, makes my task much eafier, and unless the novelty of the cafe called upon me to give my reafons, I might very well be excufed from faying any thing on a fubject, which has been fo fully and learnedly difcuffed already; and if I could have forefeen on what points this matter would have turned, fhould have fpared the learned judges their trouble.

The first point, Whether the firft bond is void in law, by virtue of the statutes of ufury?

The fecond point, If it is valid in law, whether it is contrary to confcience, and relievable upon any head or principle of equity.

The third point is, Whether the new fecurity given by Mr. Spencer after the death of the Dutchefs of Marlborough, amounts to a confirmation, and is fufficient to bar the plaintiffs of relief?

[blocks in formation]

The first is a mere queftion of law, on the construction of the ftatutes, and therefore to be confidered exactly in the fame light, as in a court of common law, and as if an action had been brought on the bond.

My lords the judges are very clear in their opinion, the bond was not ufurious; and if I had been doubtful myfelf in this point, I fhould have thought notwithstanding, I was as much bound by their judgment now, as if I fent it to be tried at

law.

But I have no doubt at all of this contract's being out of the ftatutes of ufury, and do not intend to go through the authorities on this head, as they have been fully obferved upon already it is a plain wager, and not within the ftatutes, because no loan.

The counfel for the plaintiffs, by way of objection, laid great ftrefs on dictums of judges, that particular care must be taken there is no communication for the loan of money; therefore fay they, this being originally an agreement for borrowing on one part, and lending on the other, is ufurious.

A very good anfwer has been already given to this, that the real and fubftantial foundation of the agreement must be confidered, and not mere expreffions only; but I will add to it, that loans upon a real and fair contingency cannot be faid to be ufurious, any more than in the cafe of bottomree-bonds,

And the very ftating of the fact, on the purchafing of an annuity, or on the fale of goods, will prove the observation.

A man may purchase an annuity, on as low terms as he can ; but if he fets out at first with borrowing a fum of money, and then turns it into the fhape of an annuity afterwards, this is a shift, and an evasion to avoid the ftatutes.

It is lawful likewife for a man to fell his goods as dear as he can, in a fair way of fale; but if A. applies to B. to lend mohey, and offers to allow more than the legal intereft, and B, fays, No! I will not agree to your propofal on these terms, but I will give you fuch a quantity of goods, and you shall pay me fo much at a future time for them, beyond the price I now fix, and then charges an extravagant profit; this is a fhift to get more than the legal intereft, and is ufurious.

On the fecond head, I fhall follow the prudent example of Mr. Juftice Burnet, by not giving any direct opinion, but at the fame time, the arguments in this caufe have made it neceffary to fav fomething.

No wife and good man will affert fuch bargains deferve encou ragement, for as they are productive of prodigality on the one hand, fo do they beget extortion on the other; want and ava. rice always generating one another, and these contracts may be truly faid to be vitia temporis.

« السابقةمتابعة »