No doubt precedents had to be made when cases of extremity (a), to *use the language of the times, arose, calling for the interference of the court to correct the rigor of the law or to supply its de- [*416] fects. These precedents, though not of binding authority like judgments at law, for if they had been at that time a Court of Equity must afterwards have been erected to correct the Court of Chancery; nor entered of record as judgments of law, were frequently, from Henry VI. downwards, reported in the Year Books-to be referred to, no doubt, as future guides. These, together with other cases, were collected and published in the reigns of Elizabeth, James, and Charles (b). that have been cited, may be sufficient to show what the general notions on this subject were. In Reg. Lib. B. 1575, fo. 142, is a letter from the Queen to the Lord Keeper, Sir Nicholas Bacon, requiring him with the assistance of the Lord Chief Justice of the Queen's Bench, the Master of the Rolls, and Lord Chief Justice of Common Pleas, to hear the cause and end it by mediation and treaty between the parties; and if that should not succeed, judicially according to justice, equity, and conscience. In the mean time the property was to be sequestered, which was done by a receiver being appointed. In Reg. Lib. A. 1590, is a case where the matter in controversy, which was whether a decree that had been made was binding on the parties in the suit, was referred to two Masters; they reported int. al. that these same matters had been already decreed in this court, and that in their opinions the decree was very just and grounded upon very good and sufficient causes and reasons allowed in law of nature, and in civil law, (et v. Lord Ellesmere, p. 37,) and upon good equity and conscience, and therefore ought to be put in execution till some better matter were showed. On this report the Chancellor ordered the defendants to perform the decree within a certain day or stand committed to the Fleet, Reg. Lib. A. 1590, fo. 837. A very short answer might have been given if the Chancellor's own opinion had been recognized as his sole guide. The directing a rehearing of a decree of the Lord Chancellor before the Master of the Rolls and a Judge, sup. p. 395, seems also conclusively to show that the Chancellor's decisions were to be founded on general principles. Perhaps it may be considered that too much importance had been given to the above jocular saying of the great Selden, but even so lately as 1818, Lord Eldon thought it necessary to repudiate it, 2 Swanst. 414. (a) V. int. al. Reg. L. B. 1583, fo. 489, B. 1589, fo. 870. "The office of the Chancellor is to correct men's consciences for frauds, breaches of trust, wrongs, and oppressions, of what nature soever they be, and to soften and mollify the extremity of the law, which 46 is Summum Jus," Earl of Oxford's Case, 1 Ch. Rep. p. 4, Lord Ellesmere. Fraud, Trust, Extremity or Casually, or, as we now say, Accident," are enumerated by Mr. Norbury, temp. Jas. I. as the legitimate heads of Chancery Jurisdiction, Hargr. Law. Tr. p. 431. In the year 1594, Mr. Serj. Glanville was accused of contempt in having signed a replication in an action at law, after notice of an injunction against the defendant, his counselors, attorneys, and solicitors, for staying the defendant's proceedings at law. He came before the Court and made his apology, stating that he was not aware of the injunction," protesting further that he held so reverend an opinion of this court, and knoweth that the injunctions thereof are so necessary for restraining or qualifying of the rigor or extremities of the common law which by bad consciences are daily offered, as that the subjects are daily enforced, to fly for succor and aid in equity unto this court," and thereupon he was excused, A. 1595, fo. 508. Habeant similiter Curiæ prætoriæ potestatem tam subveniendi contra rigorem legis, quam supplendi defectum legis," Lord Bacon de Augment. Scient. C. 8, Aphor. 35, vol. ix. p. 92, Mont. ed. (b) Crompton's Jurisdiction of Courts, in which most of the cases in the Year Books are collected, was first published 1594, temp. Elizabeth, Leg. Jud. 166; republished 1637. Tothill's Transactions were published, A. D. 1649, temp. Car. 1. Lord Ellesmere's Observations concerning the Office of Chancellor, in 1651. Sir George Cary's Reports were published 1650, but they were first collected 1601, temp. Eliz. by William Lambard, one of the Masters. Besides these, some reports of cases were taken by eminent lawyers, whilst Lord Keeper Coventry presided in the court, which were afterwards published in Nelson's Reports, and the first part of Reports in Chancery. In St. Germain's Doctor and Student, published 1531, 20 Hen. VIII. the principles of the equitable jurisdiction of the Court of Chancery are separately treated of. The Chancellors in many cases expressly referred to precedent as the ground of their decisions (a). We find the Chancellor, in the time of Car. I., where the case exhibited no novelty in its circumstances so as to call for a precedent to be made, refusing to interfere because there was no precedent (b); and there are instances of references to the chief justices and other judges to see whether the Lord Chancellor had jurisdiction in the cause (c). Lord Ellesmere, fully recognizing the force of precedent, endeavored to provide against the irregularities, to which he occasionally gave way, being converted into precedents (d). I may add, that the precedents recorded by Tothill and Sir George Cary, have been cited by subsequent judges, amongst others by the great Lord Hardwicke (e), so that there is an uninterrupted chain in the influence of precedent, from the earliest times (f), in the application of the *principles of equity and con[*417] science, positively, that is, where they ought to be applied, and negatively, that is, where the law ought to be left to its own operation. When, therefore, Lord Nottingham (g) declared, that with such a Conscience as is only naturalis et interna (h) this court has nothing to do, the Conscience by which he was to proceed was merely civilis and (a) 22 Edw. IV. 6 Br. Consc. 23; Ellesmere, 90: the later instances are numerous; thus Reg. Lib. 8 & 9 Eliz. fo. 73, Sir Nicholas Bacon, Lord Keeper, delayed his judgment till he had searched into precedents, and consulted the judges. Lord K. Egerton is recorded by Lord Coke to have decided a case on a precedent of the reign of Hen. VI. 4 Inst. 87. Mr. Norbury complains of some of the judges for being too eager in hunting after precedents, in order "to pleasure a friend;" "Do they think," says he," that if any other hath done the like, it is sufficient warrant for them therefore?" Hargr. Tr. p. 446. (b) Tothill, p. 161. It was on this ground probably that the Court of Chancery would not decree payment of a rent-sec, Cary, p. 7. (c) 7 & 8 Eliz. fo. 42. (d) In the case of Wynn v. Cobb, Lord Ellesmere, though he was clearly satisfied "as a private man," that a Trust was established, declined to make a decree thereon "so as it should be a precedent for other causes," and he therefore contented himself with writing a letter to the defendant to conform himself to reason. He added, how ever, that "if he should find the defendant obstinate, then he would rule this cause specially against the defendant sans la tirer consequence," Cary's Rep. pears by a report which we have of the case (g) Cook v. Fountain, 1676, 3 Swanst. 600. (h) Lex conscientiæ divina, Lord Ellesmere, 48. T Limitation to the Application of Principles of Equity. 417 politica (a), he was not making a rule but declaring what had become of the established doctrine of the Court (b). There were certain recognized limitations to the application of equity and conscience to the maxims and principles of the common law, the nature or reason of which it would be in vain to try to discover, "Non omnibus quæ a majoribus constituta sunt ratio reddi potest" (c). Many of those maxims and principles, which to our ideas were contrary to equity, conscience, reason and honesty, were left untouched by the Court of Chancery. Such was the exemption of lands from the payment of debts, though the money might have been laid out in the purchase of the identical lands descended (d). "A collateral warranty," says Lord Cowper, "was certainly one of the harshest and most cruel points of the common law, because there was no such pretended recom"pense; yet I do not find," said he, " that the court ever gave [*418] satisfaction" (e). So the Court of Chancery would not interfere against the rule of law not to give any remedy for a rent-sec (ƒ), or to compel a person to attorn where he was at liberty by law. Numerous instances of a similar kind might be produced. Whether these doctrines were considered by the founders of the equitable jurisdiction of the court to be against conscience and equity, we have no means of judging; no principles exactly parallel to warrant any interference with these rules, could be found in the Roman Code of equitable jurisprudence; but if they were so considered, the influence of the judges, who, as we have seen, were so constantly called in to assist in the decisions of the Chancellor, and who in their own courts kept such a watchful eye over the proceedings of the Chancellors, may sufficiently account for their not having been broken in upon, without its being necessary to conclude that they were left untouched from a sense of want of power in the Court of Chancery to interfere with the maxims and principles of the law. As regards those rules of the common law affecting real estate which now offend our sense of justice, it may be remarked that the Court of Chancery, by the introduction of its doctrines relating to Uses and Trusts, which will be hereafter explained, afforded (a) Lex conscientiæ politica, Lord Ellesmere, p. 48. (b) The common Law is ordained for many matters, and sure such as are not remediable by the common law are to be relieved in Chancery, but divers are remediable by neither, and such are in conscience between a man and his confessor," 4 Hen. VII. 4, Ellesmere, 48; Dr. and Stud. c. 18. The modern doctrine on this subject may be stated in the words of Lord Eldon, as follows: "The doctrines of this court ought to be as well settled, and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each particular case," Gee v. Pritchard, 2 Swanst. 414; and see 3 Bla. Comm. 434. It shall not be assets at law or in equity for (e) Earl of Bath v. Sherwin, 10 Mod. 4; and see 3 Bla. Comm. 430, where other instances are noticed. (f) Cary, p. 5, and p. 7. 418 Power of the Court to interfere with Maxims of Law. to all the means of escaping from the operation of most of them,—it was the less necessary therefore that they should be directly or specifically interfered with. Sir William Blackstone, citing some of the instances above referred to, argues against the power of the court to abate the rigor of the common law, because it has not done so in those instances (a), and he adds that no such power is contended for; but that such a power was exercised in the early history of the court we have the direct evidence of decrees, and no other assignable origin can be given to many branches of the jurisdiction; and perhaps the proposition that no such power is contended for, even if confined to the present day, is rather too broadly laid down. Sir Joseph Jekyll, whom no one can mention but with the utmost respect, endeavored (b) to reconcile the conflict between the doctrines of the Court of Chancery and those of the Common Law thus: "The discretion which is exercised here, is to be governed by [*419] the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other; this discretion, in some cases, follows the law implicitly, in others, assists it, and advances the remedy; in others again, it relieves against the abuse, or allays the rigor of it; but," added that eminent judge, "in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this court; that is a discretionary power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with." And this was the doctrine, it must be admitted, which was endeavored to be enforced throughout the reign of King James I. (c). But not to look farther than the doctrines of the Court of Chancery in respect to the Separate property of Married women, which have only been completed in our day, do they not directly contradict and overturn the principles and maxims of the common law? Fleta expressly says that a gift to a stranger for the benefit of a married woman, is void as against the policy of the law (d). Lord Hardwicke, when pressed with the maxim of Equitas sequitur legem, said, "When the court finds the rules of law right, it will follow them; but then it will likewise go beyond them" (e); it seems hardly possible to designate even this as being short of legislative. It was equally propounded as a maxim, that the Prætors had no authority to abrogate the existing law; but that they also equally violated this maxim can hardly admit of a doubt. Dion. Cassius (ƒ), in reference to this subject, expressly says, (I give the Latin translation,) "Ne quidem jura scripta servarint sed ea mutaverint sæpenumero" (g). Heinneccius instances the fictions which they resorted to, the restitutiones in integrum, and he might have added the grants of bonorum possessio, by which the Prætors did in fact abrogate the existing law. But looking to the powers which have been, so much to the advancement of justice, exercised by the judges of the Common Law Courts, some of which have been adverted to in the first part of this work, it can hardly be denied that the judges of the Common Law (a) Vol. iii. p. 430. (b) Cowper v. Cowper, 2 P. W. 752-3, cited and approved by Sir T. Clarke, M. R., Burgess v. Wheate, 1 W. Bla. R. 152. (c) See Rolle's Abr. i. 376-7. (d) Fleta, iii. c. 3; C. P. Coop. App. 530. (g) See the note of Heinneccius, Just. Inst. 1, 2, 7, p. 22 b. Maxims of the Court of Chancery-Election between two Suits. 419 Courts have also assumed, indeed that they yet to some extent exercise, legislative authority (a). GENERAL MAXIMS AND RULES WHICH PREVAILED IN THE COURT OF CHANCERY. Where the Law gave a sufficient Remedy-Election between two Suits-" Equity follows the Law"-Where the Court followed its own Rules-Legal and Equitable Assets-Rules founded on Reason and Policy-Perpetuities-" He who comes for Equity must do Equity" -Bonâ fide Purchasers to be protected. DURING the time to which the attention of the reader has been directed. in the preceding pages, some of the general rules or maxims which are now acted upon in the Court of Chancery, both as regards the entertaining jurisdiction, and the application of the principles of equity and conscience, as between the parties to the suit, are to be traced, which it may be proper here to notice. Some of these maxims and rules have been already casually adverted to. It was a principle, that if the matter were properly cognizable, and relievable in any established court of ordinary jurisdiction, and no assistance was required from the court to effectuate a fair trial, the parties should be dismissed from the Court of Chancery to a Court of Common Law, or other court of competent jurisdiction (b); more especially if there were a suit already pending in any such tribunal; and à fortiori (c), if the matter had been adjudicated upon by a competent tribunal (d.) It was also a general principle, that when a person who filed a bill in this court was also suing in another court for the same matter, he was made to elect in which court he would proceed; it having been a principle, perhaps from the earliest times, that a person should not by means of this court be subjected to double vexation on account of the same matter (e). The maxim that "Equity follows the Law" has already been adverted to, and some cases to which it was applicable have been noticed (ƒ). *This maxim was limited in its application very nearly as was the corresponding maxim in the Roman law before noticed; [*421] though no precise general rule, as to its application with all its qualifications, can be given (g). It was applied where the Court of Chancery was giving a remedy corresponding with a recognized legal remedy; just as where an utilis actio corresponding with an actio civilis or directa |