409

Corrective Jurisdiction-Protests of Common Law Courts.

jus civile subsequitur; its application to the doctrines of the Court of Chancery will be noticed hereafter.

We find that it was held in the Court of Chancery, in violation of the law established by legal decisions, that one executor and one joint-tenant might in Chancery sue his companion (a ;-that, although from loss or other accident an obligee could not produce his bond, without which by a positive rule of law he could have no remedy (b), yet he might enforce the obligation in Chancery (c);-that where the lessor entered on his tenant, and thus, by the rule of law, suspended the rent, he should have relief in equity (d). So the Court of Chancery in certain cases gave relief against forfeitures, which had been clearly incurred according to the rules of law (e); the court carrying its jurisdiction to the extent of ordering restitution after judgment at law, and execution (ƒ): the court, in these cases, avoiding to transgress the provisions of the statutes before adverted to, by not examining into the judgment itself, but prohibiting the party from putting it in force; just as the Prætor would have done under his extraordinary jurisdiction (g). So, notwithstanding [*410] the maxim before alluded to (h), where a remedy was provided by the law, which was held by the common law judges to be sufficient, yet the Court of Chancery in some cases gave a more effectual remedy of its own instead (i). Other instances of direct interference with positive rules of the common law, and with its rules of procedure, might be cited out of our scanty early records (k); some of them will be mentioned in the following pages.

The Courts of Common Law protested against the exercise of the jurisdiction of the Court of Chancery in the cases above enumerated, as contrary to law; and so late as the reign of James I. the Court of King's Bench marked its sense of this interference, where a judgment had been obtained in that court, by issuing a prohibition (); and the Common Law Courts used all the means in their power to counteract the authority so exercised by the Chancellor (m); all of which tends to show that the

(a) See I Roll. Abr. 375, 376.

(b) Co. Litt. 35 b; Vin. Abr. iv. 390. (c) 1 Roll. Abr. 375. Some of the Chancellors appear to have followed the rule of law, Vin. Abr. iv. 390.

(d) V. Lat. 149; Vin. Abr. iv. 389.

(e) See Crompt. 42 b; 9 Edw. IV., 22 Edw. IV.; even though there was no fraud in the transaction, 1 Roll. Abr. 374, temp. Jas. I.

(f) V. int. al. 1 Roll. Abr. 381; and 1 Eq. Abr. 130, note b; Tothill, p. 271; 30 Eliz. This was in fact a Restitutio in integrum, v. sup. p. 324.

(g) Crompton, 41 b, 58 b; Cary, p. 4; so in the exercise of another branch of its jurisdiction, namely, as to trusts, which will be particularly noticed hereafter, the legal effect of a feoffment in trust was never disputed; indeed, as we shall see, it was turned to account as part of the machinery for effectuating the trust.

(h) Sup. p. 408.

(i) As in the case of a contract to grant a lease, on which an action on the case

might be maintained, 1 Roll. Abr. 374; at least if money had passed, Fineux, C. J., 21 Hen. VII. fol. 41.

(k) Many of the older cases are collected in Viner's Abr. ubi sup. The instances tend to show, as is hereafter more particularly adverted to, that what we find in the Year Books, as to equitable jurisprudence, is not always to be taken as the doctrine of the Court of Chancery.

(1) See Roll. Abr. p. 374. 376.

(m) They held out that the writ of injunction issued in such cases was a nullity, and they would give relief by Habeas Corpus, if the writ were enforced, Crompt. 42 b, et v. infra, title Injunction. They successfully prevented the recovery of the penalty in the subpœna in any case, Lord Ellesmere, p. 31. The court having, as before observed, a process of its own to compel obedience much more effectual than enforcing the penalty, this was not worth a struggle-though this right also was disputed, v. infra, title Injunction.

Principles on which the Court interfered with the Law. 410

Court of Chancery not only did, but was considered to act in many cases in direct contravention of the law. The pertinacious resistance of the judges of the Courts of Common Law to the exercise of the equitable jurisdiction in these cases, and in other cases now clearly established to be remediable in equity, may cause serious doubt to be entertained as to the accuracy of the assumption that "Lord Chancellor Parnynge must have laid the foundation stone of that Temple of Justice, afterwards reared in such fair proportions by an Ellesmere, a Nottingham, and a Hardwicke" (a); indeed, if we are to take the Treatise of the Serjeant in the time of James, published by Mr. Hargrave, and before referred to, as representing the sentiments of the professors of the law, every interference of the Court of *Chancery was a violation of a maxim of law, as it is there held that Implere legem est perfectè virtu[*411] osum (b).

But in all the cases above referred to, and others which will be noticed in the course of this work, the perseverance of the Clerical Chancellors prevailed; and at length the opposition of the Courts of Law, in the cases above alluded to, was silenced or withdrawn.

Thus it appears that a jurisdiction to interfere, in some cases at least, with the rules and maxims of the law on the grounds of equity and conscience, as well as to supply its defects, was clearly exercised. We have next to endeavor to find out what were the specific principles by which this interference with the law was regulated; in other words, what meaning was attached to the terms Equity and Conscience, which were the guides by which the Chancellors were to be directed.

The term Conscience, as denoting a principle of judicial decision, appears to have been of clerical invention; it seems to have embraced the obligations which resulted from a person being placed in any situation as regards another, that gave to the one a right to expect, on the part of the other, the exercise of good faith towards him; and nearly resemble the bona fides (c) of the Prætorian Code, as illustrated by its various

commentators.

The Ecclesiastical Courts, as we have seen (d), originally assumed jurisdiction in all cases of breach of faith, operating no doubt by means of their spiritual authority upon the conscience of the party complained of. When those courts were prohibited from taking cognizance of breach of faith affecting contracts between laymen (e), cases of conscience could only be the subject of cognizance in the Council or the Court of Chancery (f); ultimately under Conscience a wide field of

(d) V. sup. p. 118.

(e) V. sup. p. 118. So late as 8 Edw. IV. (Y. B. fol. 4) Bishop Stillington, Chancellor, held, that for breach of faith (pro fidei læsione), a man was at liberty to sue either in the Spiritual Court (Canonicâ injuriâ), or in the Court of Chancery, for the damage occasioned by the breach.

(ƒ) Keble, Serj., Y. B. 7 Hen. VII. fol. 11 b, expressly referred the doctrines as to Uses to the obligations of conscience; so, after uses were recognized by the Courts of Law, it was in this manner-"Uses are created by the common law, and are relieved by

411 Guide afforded by the Roman Law in matter of Equity.

jurisdiction was introduced, embracing all departures from fair dealing *and honesty, and it included some cases which might perhaps be [*412] more appropriately ranged under the head of Public Policy. The Roman Law furnished a guide as to the Equity (a) which was to be administered by the Court of Chancery, which we shall see was largely taken advantage of. I may here notice one instance, which Cicero supplies, of the correction by general principles of equity, of a rule of law itself founded on equity. The law on principles of equity had established as a maxim that the seller of an estate should make compensation for all the incumbrances that he knew of, and which he might omit to communicate at the time of the contract. One Gratidianus had sold a house to C. Sergius Orata, which the latter had shortly before purchased of the same Gratidianus. Sergius Orata was entitled to a right of way or some other servitus, or as we may say easement, over this property which Gratidianus naturally did not mention at the time of sale. Orata taking advantage of this omission, insisted that he was entitled, according to the settled rule of law, to compensation for the easement, and he commenced an action to recover it. This being an actio bonæ fidei, an equitable defence was, as we have seen, admissible. Crassus was, the advocate of Orata, Anthony of Gratidianus; the remainder is best told in Cicero's own words (b): "Jus Crassus urgebat -quod vitii venditor non dixisset sciens id oportere præstari"-(c). "Equitatem Antonius, quoniam id vitium ignotum Sergio non fuisset, qui illas ædes vendidisset, nihil fuisse necesse dici; nec eum esse deceptum, qui id quod emerat quo jure esset teneret" (d). "Quorsum hæc,"

adds Cicero," ut illud intelligas non placuisse majoribus nostris astutos." So "Si verbis et literis, et ut dici solet summo jure contenditur, solent ejusmodi iniquitati, Boni et Æqui nomen dignitatem que opponere" (e).

Looking to the cases to which this principle was applied, which will presently be noticed in detail, the delegated authority to decide according to equity, may have been considered to have embraced all those cases in which a party, without having committed any act which would be considered as contrary to good faith or conscience, might yet by the rigor (f) of the positive provisions of the law,-though founded as

conscience," 14 Hen. VIII. 8, Brooke, J. In the 4 & 5 Eliz. Reg. Lib. fol. 144, the following version of conscience occurs :-"The Jord of the manor having granted the custody of another man's wife, and of her copy. hold lands, to the defendant; the Lord Keeper, Sir N. Bacon, considered this to be against right and conscience; and at the instance of the husband granted an injunction against the defendant till the custom had been tried and proved; he would then decide upon the question."

(a) Equity, according to the definition which was common to the Courts of Law and the Court of Chancery, has been already noticed, sup. p. 321.

(b) De Officiis, lib. iii. c. 16, tom. iii. 394; this was rather a favorite illustration, it occurs again in the Treatise, De Oratore, i. § 39.

(c) V. Dig. xix. 1, 11.

(d) This afterwards became the Law, Dig. xix. 1. 1, 1.

(e) Cic. pro Cæcin. § 23; and see Dr. Taylor's Elements, p. 91.

(f) "It hath jurisdiction to correct the rigor of the law by the judgment and dis cretion of equity and grace," Lord Ellesmere, p. 21. "Law makers take heed to such things as may often come, and not to every particular case, for they could not though they would; therefore in some cases it is necessary to leave the words of the law, and to follow that reason and justice requireth, and to that intent equity is ordained, that is to say, to temper and mitigate the rigor of the law," Dr. and Stud. p. 1 c. 16, 45.

Original Meaning of Equity and of Conscience.

#413

*regards their general application on natural justice, or by the silence of the law, the particular case not having been provided for at all—(a), have an advantage which it was contrary to the principles of equity that he should be permitted to enforce or to retain (b). In such cases the general principles of equity in the sense of natural justice, which are antecedent to all positive law (c), were resorted to. Where the rigor of the law favored the position of the party who had committed any unconscientious act, that would be relieved against, also, under the head of conscience.

However, if any distinction was originally recognized as to the respective import of the terms Equity and Conscience, they soon became confounded, and a very considerable latitude was admitted in the application of the terms Equity and Conscience. A new head of equity under the name of Cases of Extremity, which comprehended the modern jurisdiction under the title of Accident, was afterwards introduced (d). Some extravagances which originated perhaps in too high an estimate on the part of the Chancellors of Henry VIII. and Elizabeth, of their individual endowments, and erroneous views as to the nature of their office, occasioned in part by the language of flattery (e), gave occasion to the great Selden to remark, more perhaps in jest than in earnest, that equity was a roguish thing; it was according to the *conscience of him that was Chancellor, and as that was larger or narrower, [*414] so was equity (ƒ). This might indeed have been a true picture of the court on its original foundation, had not the equitable doctrines and provisions of the Roman Law been taken as the principles on which its decisions were to be founded; but it is plain that the jurisdiction never

stances." Lord Ellesmere, C. 1, Rep. Ch. 4. This is in fact a version of Aristotle's definition of equity, before adverted to.

(a) Where the rule of law is deficient, for law cannot provide for all cases, but is suited only to those which are most familiar, time daily producing and inventing new ones, Lord Bacon, de Argument. Scient. Aphor. xxxii.

(b) An illustration is afforded by an early case in the reign of Elizabeth. The judges, in a case stated to them by the Chancellor, A. D. 1575, had certified that a widow who was suing for her dower was entitled to it, as well as to an annuity given to her in sa tisfaction of it. The Chancellor said, that though by the rigor of the Common Law she might claim both, yet, as the annuity was given in lieu of her dower, it should cease in case the widow should proceed at law for her dower. The modern doctrine of Election, which is said to be founded on principles of universal equity, see Forrester v. Cotton, 1 Eden, 525, and which is ably treated together with the important subject of Satisfaction in a distinct treatise by Mr. Stalman, will be here recognized. Further illustrations of the text will appear in the following pages.

(c) "Il faut donc avouer," says Montesquieu," des rapports d'équité anterieurs à

la loi positive qui les etablit," Esprit des Lois, Liv. i. c. 1.

(d) Thus in Sir Thomas More's Couplet, cited by Lord Coke, 1 Roll. Abr. 374:

Three things are helped in conscience, Fraud, Accident, and things of Confidence, and see 1 Bro. 124; 2 Swanst. 160, note.

(e) Whyte v. Whyte, Reg. Lib. A. fo. 104. The plaintiff was to procure the Lord Chancellor (Hatton) to hear the cause, and to order the same according to his Lordship's conscience. "Where he," (the Chancellor,) says Sir John Davis, in his dedicatory preface to Lord Ellesmere, "hath potestatem absolutam as well as regulatam in binding and loosing the proceedings of the law, and in deciding of causes by the rules of his own conscience."

(f) His words are "Equity in law is the same that the spirit is in religion, what every one pleases to make it. Sometimes they go according to conscience, sometimes according to law, sometimes according to the rule of court." "Equity is a roguish thing. 'Tis all one as if they should make the standard for the measure of a Chancellor's foot," Selden, Table Talk, title Equity, Oper. tom. iv. p. 2028. Selden better than any man living perhaps knew what equity really

was.

414

Equity governed by Principles.

could have been established, if the conscience of the judge had been his only guide. It may be remarked, however, that too much consideration was sometimes given to the Conscience of the Queen. It is "the holy conscience of the Queen, for matter of equity," said Sir C. Hatton, "that is in some sort committed to the Chancellor" (a); and though the Queen may not have directly interfered in regard to the decision of any particular case, she not unfrequently commanded that cases should be heard in the Court of Chancery which did not come within any branch of its jurisdiction as a Court of Equity and Conscience (b).

*But generally during this reign, as well as before equity and [*415] conscience, as rules of decision, were referred to principles de

duced from the Roman jurisprudence, the sanction of which was occasionally directly adverted to, independently of the private conscience of the judge. Nothing is recorded as having been delivered judicially from the bench which can warrant the supposition that the private opinion or conscience of the judge, or what is perhaps equivalent, his whim or caprice (c), independent of principle and precedent, was a legitimate ground of decision (d).

(a) See the Address of Sir C. Hatton, Reg. Lib. B. 1516, fo. 661; v. supra, p. 406.

(b) Reg. Lib. A. 1573, B. 1575, fo. 145. 19 June, 1568; Robert Gardiner, plaintiff, Thomas Lovell, defendant. "The Lord Keeper of the Great Seal of England hath this day received commandment from the Queen's Majesty by George Carye, Esquire, who brought unto his Lordship from her Highness a ring for that purpose. That the matter in variance between the said parties should not be dismissed from hence, but that the same should be heard and determined here in the court, according to justice and equity;" and it was retained according ly. In Lib. A. 1591, fo. 646, we find another message of her Majesty on some private application, commanding a matter to be reheard by the then Lord Chancellor, after he had made a decree. But the Chancellor was not the only Judge who was subjected to these irregularities, as will appear by the following letter of protection, entered in the Registrar's Book, which is too remarkable and illustrative of some of her Majesty's notions of prerogative not to be set out at some length. Elizabeth, by the Grace of God, &c. To our trusty and right well-beloved Sir Nicholas Bacon, Knight, Lord Keeper, &c. To our Chancellor of England, and to all our Justices whatsoever of all our

Courts, and to all Mayors, Sheriffs, &c. Greeting: Know ye, that we of our prerogative which we will not have argued, nor brought into question, and for divers good causes, &c., have taken into our royal protection and defence our well-beloved subject, Robert Christmas, Esquire, and all his sureties, which stand with or for the same Christmas for his debt or cause, and all his and their lands, goods, &c., and therefore we will, &c., grant and command that the said Robert Christmas, and all his sureties,

and their lands, &c., ye do protect and defend, not suffering him or them to be injured, molested, &c., for any debt, duty, or cause, of the said Robert Christmas ;" and then the letters patent go on to exonerate him and them from all pleas, &c., and power is given to stay all process for any debt, &c., of the said Robert Christmas for three years, Reg. Lib. A. 1575, fo. 206, entitled Litera Protectionis pro Christmas, signed, per ipsam Reginam. Some other similar protections are to be found in Rymer's Fœdera, tom. xv. p. 652, 778, ed. 1713. It will be remembered, that Diva Elizabetha, as she was designated by Camden in her lifetime, was constantly reminded by her ministers and judges that all law proceeded from the royal authority. Lord Burleigh, as Mr. Hume has mentioned (Strype, i. 27, Hume, v. 462), proposed to the Queen that she should erect a court for the correction of all abuses; and that it should proceed “as well by the direction and ordinary course of the laws as by virtue of her Majesty's supreme regiment and absolute power, from whence all law proceedeth." Lord Keeper Puckering upheld the same doctrine, Strype, Ann. iv. 177, Hume, v. 468. These dogmas, which descended from St. Augustine and his fellow-missionaries down to the times we are speaking of, I need hardly say were equally inculcated as constitutional princi ples by the advisers of James I. and of Charles I. (see Lord Campbell's Lives, ii. 453). They tended perhaps in a great degree to bring about those unhappy convulsions by which they were ultimately exter minated.

(c) The practice of examining witnesses ad informand. conscient. judicis, sup. p. 380, does, however, to some extent afford ground for the supposition.

(d) The following authorities, with those