PART THE SECOND. THE RISE, PROGRESS AND ESTABLISHMENT OF THE EQUITABLE JURISDICTION OF THE COURT OF CHANCERY: WITH AN ACCOUNT OF THE PRINCIPAL HEADS OF ITS JURISDICTION, PART THE SECOND. BOOK THE FIRST. THE RISE AND ESTABLISHMENT OF THE EQUITABLE JURISDICTION OF THE COURT OF CHANCERY. CHAPTER I. THE CIRCUMSTANCES WHICH CALLED FOR THE EXERCISE OF SOME EXTRAORDINARY JURISDICTION, THAT IS, A JURISDICTION DISTINCT FROM THAT OF THE ORDINARY COURTS OF JUSTICE. The Common Law becomes in effect a lex scripta-Deficiencies are found to exist-Mode by which the Romans endeavored to supply the deficiencies of their Jus civile-Jus honorarium-First attempt of the like nature in England by the Statute of Westminster the Second, 13 Edward I.-Deficiencies in the Common Law still existed. } WE have seen that the Common Law was founded on certain fixed principles, and that it was only by set forms of procedure that rights could be enforced and secured, or civil injuries redressed. It has always been held by the great oracles of the law, that the principles of the Common Law are founded on reason and equity (a); and so long as the Common Law was in the course of formation, and therefore continued to be a lex non scripta, it was capable-as indeed it has ever continued to be, to some extent of not only being extended to cases not expressly provided for but which were within the spirit of the existing law (b), but also of having the principles of equity (c) *applied to it by the judges in their decisions (d), as circumstances arose which called for the application of such principles. This (a) Int. al. Lord Coke, 10 Rep. 108 a. "The perfection of reason," ib. 3 Rep. 13 b. So Celsus, Dig. i. 1. 1, pr. says, "Jus est ars boni et æqui." (b)" Non possunt omnes articuli singillatim, aut legibus, aut senatus consultis comprehendi; sed cum in aliqua causa, sententia eorum manifesta est, is, qui jurisdictioni præest, ad similia procedere, atque ita jus dicere debet," Dig. i. 3. 12. But when new cases arose, according to the language of the Jurisconsults of later times, "De his quæ primo constituuntur, aut interpretatione aut constitutione optimi Principis, certius statuendum est," ibid. l. 1 & 11. VOL. 1.-22 [*322] (c) Bracton, who wrote whilst the Common Law was yet being formed (non scripta), adopting the maxim which he found in the Roman law, "In omnibus, maxime tamen in jure, Equitas spectanda est," Dig. L. 17. 90, lays down, that the Common Law Courts might be guided by equity, even in questions of strict law; lib. 2, c. 7, fol. 23 b; lib. 4, fol. 186; and see Co. Litt. 24 b; 6 Co. 50 b; 1 Bla. Comm. 61, 62; ibid. 3. 429; and 1 Eden, 194; Judgment of Sir T. Clarke, M. R., in Burgess v. Wheate. See the Additional Note at the end of this chapter. (d) The Year Books, or authorized re 322 Equity applied to Law-The Common Law becomes Lex scripta. was more especially open to the judges as regards defences to actions which were not founded on writs, and were therefore under their own control. But in course of time, a series of precedents was established by the decisions, or responsa, as Bracton calls them, of the judges, which were considered as of almost equally binding authority on succeeding judges as were the acts of the legislature; and it became difficult to make new precedents without interfering with those which had already been established. Hence (though new precedents have ever continued to be made), the Common Law became, to a great extent, a lex scripta, positive and inflexible; so that the rule of justice could not accommodate itself to every case according to the exigency of right and justice (a). The Romans, as has already been mentioned, had found themselves in a similar condition as regards the law which was contained in the Twelve Tables, and the subsequent additions which had been made to it. To supply this deficiency in their original system of jurisprudence, first the Consuls, then the Prætors, were permitted as occasion required to correct "the scrupulosity and mischievous subtlety of the Law" (b), and supply its defects; not, indeed, as regards the Prætors, by altering the law itself, but by means of a distinct equitable code, framed by themselves and propounded on entering on their office; and which was for the most part administered by the same tribunals which dispensed the ordinary law, and by the same mode of procedure (c). Hadrian, as we have seen, compiled from the previous Edicts a code of Equitable Jurisprudence (d), and that code was expounded by the commentaries and responsa of the Jurisconsults, so that it became, like the Common Law of England, though by a different process, a lex scripta. But even the jus honorarium, when thus reduced to system, was found to be insufficient to answer every exigency. It appears that the [*323] judges and persons intrusted with the administration of the law, assumed authority to apply principles of equity, or natural justice, to the particular cases which seemed to require such an interposition. However, probably from a fear of the uncertainty and inconvenience which might have resulted from such a course being pursued, Constantine, A. D. 316, and after him Valentinian, as has already been adverted to (e), prohibited the judges from exercising any such discretion, reserving to themselves alone, in their consistory or council, the application of principles of equity, as distinct from the received rules and maxims of the law (f). From that time cases were continually referred to the Empe ports of judicial decisions, commence in the reign of Edw. I. Bracton records the decisions of time of Hen. III. (a) See Hunt's argument for the Bishops' right, 145-8. Parkes' Hist. C. Chan. p. 236. Professor Millar, in his Historical View of English Government (Book ii. c. vii.) observes, that "Law and Equity are in continual progression, and the former is constantly gaining ground upon the latter. Every new and extraordinary interposition is by length of time converted into an old rule. A great part of what is now strict law," adds the Professor, "was formerly considered as equity; and the equitable decisions of this age will unavoidably be ranked under the strict law of the next." (c) The subject of fidei commissa, or Trusts, will be separately considered. (d) It has been matter of dispute in modern times, whether Hadrian ever issued such an Edict,-see the notes to Milman's Gibbon, viii. p. 20; but, in fact, this compi lation of Prætorian law, which was made in his time, and no other, continued to be of authority down to the time of Justinian. (e) Supra, p. 77. (f) Cod. Just. i. 14. 1; ibid. i. 14.9; supra, p. 77. Roman mode of supplying the deficiencies of their Common Law. 323 rors, either originally, or by way of appeal; and their decisions, thus pronounced, as well as their less formal rescripts, became part of the written law (a). If such a deficiency was found to exist after Hadrian's Edict, we cannot be surprised at its having been experienced in England at the time when the Court of Chancery first came into existence as a distinct Court of equity (b). A very large infusion of equitable principles had been incorporated in the Roman law by means of the Perpetual Edict. In those important branches of the law, particularly, which related to contracts, a system of equitable jurisprudence had been introduced, which left little, if anything, to be supplied. Equitable principles were applied to every contract of sale and purchase, pledge, letting, hiring, and the like (c); whether the contract were executory, or perfected. In the former case, if there were a want of complete bona fides, the jus honorarium furnished a good defence to any attempt to enforce it at law (d); in the latter, by the same law the party complaining might, by a rescissory action, avoid the transaction (e), and a purchaser, who had been in any way defrauded, *might bring an action for compensation, if that would afford a more appropriate remedy than a re- [*324] scission of the transaction (f): express stipulation on the part of a contracting party for exemption from any such liability was of no avail (g). Provision was also made for the correction of mistakes, without rescinding the transaction (h). In every case, particularly in respect of transactions which were classed as bona fidei (i), Fraud might be taken advantage of by way of defence (k); and where a person sustained an injury or loss by means of a fraud, for which he could not obtain redress by any recognized form of action, the Perpetual Edict gave him a remedy according to the circumstances of the case (). These were the remedies which might be obtained before the ordinary tribunals; but, large as they were, it was found that proceedings by action in cases of fraud and circumvention, would not afford in all cases an adequate remedy (m); (a) See Gaius, quoted Milman's Gibbon, viii. p. 23. The Emperors before this time frequently sat to hear causes referred from the inferior tribunals, (Sueton. Domit. c. viii.); particularly where the rigor of the law required to be tempered by equity, ex bono et æquo, (Sueton. Claud. c. xiv.); taking to them assessors, or sitting in consistory, Dion. Cass. Tiberius, lib. lvii. et v. supra. (b) This, as we shall presently see, was in the reign of Edw. III. (c) "Bona fides quæ in contractibus exigitur æquitatem summam desiderat," (Dig. xvi. 3. 31; xix. 2. 24; xix. 1. 50;) "Omnia quæ contra bonam fidem fiunt veniunt in empti actionem," (Dig. xix. 1. 1, 2,) "Nihil magis bonæ fidei congruit, quam id præstari quod inter contrahentes actum est; quod si nihil convenit, tunc ea præstabuntur quæ naturaliter insunt hujus judicii potestate," (xix. 1. 11, 1, et seq.) Natural reason was an acknowledged principle of decision in questions bonæ fidei (ib. v. 3. 36, 5); but it was considered, that from the very nature of a sale, the buyer and seller should be at liberty to circumvent each other as to price, "In pretio emptionis et venditionis, natu- Quum iter excipere deberem, fundum liberum per errorem tradidi, incerti condicam ut iter mihi concedatur," Dig. xii. 6. 22, § 1, &c. This remedy was not adopted by the framers of our Common Law. (i) Voet. in Pandect. i. p. 193 a. § 3. (k) Dig. xix. 1. 25; xvi. 1. 29, pr. and § 28 & 46. tit. 2. 54, 1, &c. ("Quæ dolo malo facta esse dicentur, si de his rebus alio actio non erit, et justa causa esse videbitur, judicium dabo, ait Prætor," Dig. iv. 3. 1, pr.; Cod. Just. ii. 21, 2; Dig. xix. 5. 5, 3. It was sufficient that the remedy were doubtful, Dig. iv. 3. 7, 3; et v. Heinec. in Pandect. § 459-462. This extraordinary remedy was given against the heir if the succession had derived any benefit from it, Dig. iv. 3. 26. (m) According to Labeo, if a restitutio in |