by every nation has been mainly influenced by the peculiarities of its own institutions, habits, and circumstances; and especially by the nature of its own jurisprudence and the forms of its own remedial justice. The union of equity and law in the same court, which might be well adapted to one country, or even to one age, might be wholly unfit for another country, or for another age. The question in all such cases must be a mixed question of public policy and private convenience, and never can be susceptible of any universal solution applicable to all times and all nations and all changes in jurisprudence.

37. Accordingly we find that in the nations of antiquity different systems existed. And in Rome, with whose juridical institutions we are best acquainted, not only were different jurisdictions entrusted to different magistrates, but the very distinction between law and equity was clearly recognized.1 Thus civil jurisdiction and criminal jurisdiction were confided to different magistrates.2 The Roman prætors generally exercised the former only. In the exercise of this authority a broad distinction was taken between Actions at Law and Actions in Equity, the former having the name of Actiones Civiles, and the latter of Actiones Prætoriæ. And in the same way a like distinction was taken between Obligationes Civiles and Obligationes Prætoriæ, between Actiones Directæ and Actiones Utiles.3 And in modern nations it is not uncommon for different portions of judicial jurisdiction to be vested in different magistrates or tribunals. Thus questions of state or public law, such as prize causes and causes touching sovereignty, are generally confided to special tribunals; and maritime and commercial questions often belong to Courts of Admiralty, or other courts constituted for commercial purposes. There is then nothing incongruous, much less absurd, in separating different portions

1 3 Black. Comm. 50; Parkes, Hist. Chan. 28; Butler's Horæ Subsecivæ [43], p. 66; 1 Collect. Jurid. 25; Pothier, Pand. Lib. 1, tit. 2, §§ 2 to 24; Id. tit. 10, §§ 1, 2, 3; Id. tit. 11, §§ 1 to 9; Id. tit. 14, §§ 1, 2; Id. tit. 20.

2 Taylor's Elem. Civil Law, 211, 213, 215, 216; Pothier, Pand. Lib. 2, tit. 1, art. 2, §§ 5 to 8; Id. § 10.

Taylor's Elem. Civil Law, 213, 214; Id. 93, 94, 95; Pothier, Pand. Lib. 50, tit. 16; De Verb. Signif. Actio; Inst. Lib. 4, tit. 6, §§ 3, 8; Inst. Lib. 3, tit. 14, § 1; Heinecc. De Edict. Prætor. Lib. 1, cap. 6; 3 Black. Comm. 50; Parkes, Hist. Ch. 28. See 1 Collect. Jurid. 33; De Lolme on Eng. Const. B. 1, ch. 11.

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of municipal jurisprudence from each other in the administration of justice; or in denying to one court the power to dispose of all the merits of a cause, when its forms of proceeding are ill adapted to afford complete relief, and giving jurisdiction of the same cause to another court better adapted to do entire justice by its larger and more expansive authority.

CHAPTER II.

THE ORIGIN AND HISTORY OF EQUITY JURISPRUDENCE.

38. HAVING thus ascertained what is the true nature and character of Equity Jurisprudence as it is administered in countries governed by the common law, it seems proper, before proceeding to the consideration of the particulars of that jurisdiction, to take a brief review of its origin and progress in England, from which country America has derived its own principles and practice on the same subject. It is not intended here to speak of the Common Law Jurisdiction of the Court of Chancery, or of any of its specially delegated jurisdiction in exercising the prerogatives of the Crown, as in cases of infancy and lunacy; or of its statutable jurisdiction in cases of bankruptcy.1 The inquiry will mainly relate to its equitable, or, as it is sometimes called, its extraordinary jurisdiction.2

The

39. The origin of the Court of Chancery is involved in the same obscurity which attends the investigation of many other questions of high antiquity relative to the common law. administration of justice in England was originally confided to the Aula Regis, or great Court or Council of the King, as the Supreme Court of Judicature, which in those early times undoubtedly administered equal justice according to the rules of both law and equity, or of either, as the case might chance to require. When that court was broken into pieces, and its principal jurisdiction distributed among various courts, the Common Pleas, the King's Bench, and the Exchequer, each received a

1 See Com. Dig. Chancery, C. 1; 1 Madd. Ch. Pr. 262; 2 Madd. Ch. Pr. 447; Id. 565; 3 Black. Comm. 426, 427, 428.

2 3 Black. Comm. 50; Com. Dig. Chancery, C. 2; 4 Inst. 79; 2 Inst. 552. Mitford, Pl. Equity, 1; Com. Dig. Chancery, A. 1; 4 Inst. 79; 1 Wooddes. Lect. vi.

4 3 Black. Comm. 50; 1 Reeves, Hist. 62, 63.

certain portion, and the Court of Chancery also obtained a portion. But at that period the idea of a Court of Equity as contradistinguished from a Court of Law does not seem to have subsisted in the original plan of partition, or to have been in the contemplation of the sages of the day.2 Certain it is that among the earliest writers of the common law, such as Bracton, Glanvill, Britton, and Fleta, there is not a syllable to be found relating to the equitable jurisdiction of the Court of Chancery.3 Fleta indeed mentions the existence of a certain office called the Chancery, and that to the office 'it belongs to hear and examine the petitions and complaints of plaintiffs, and to give them, according to the nature of the injuries shown by them, due remedy by the writs of the King.'4

40. That the Court of Chancery, in the exercise of its ordinary jurisdiction, is a court of very high antiquity, cannot be doubted. It was said by Lord Hobart that it is an original and fundamental court, as ancient as the kingdom itself.5 The name of the court, Chancery (Cancellaria), is derived from that of the presiding officer, Chancellor (Cancellarius), an officer of great distinction, whose office may be clearly traced back before the Conquest, to the times of the Saxon kings, many of whom had their chancellors. Lord Coke supposes that the title Cancellarius' arose from his cancelling (a cancellando) the king's letters patent when granted contrary to law, which is the highest point of jurisdiction. But the office and name of Chancellor (Mr. Justice Blackstone has observed) was certainly known to the courts of the Roman emperors, where it originally seems to have signified a chief scribe, or secretary, who was afterwards invested

1 3 Black. Comm. 50; Com. Dig. Chancery, A. 1, 2, 3; 1 Collect. Jurid. 27 to 30; Parkes, Hist. Chan. 16, 17, 28, 56; 1 Eq. Abridg. 129; Courts, B. note (a); 1 Wooddes. Lect. vi. pp. 174, 175; Gilb. For. Roman. 14; 1 Reeves, Hist. 59, 60, 63; Bac. Abridg. Court of Chancery, C.

2 3 Black. Comm. 50. The Legal Judic. in Chanc. stated (1727), ch. 2, p. 24.

8 Id. 50; Parkes, Hist. Chan. 25; 4 Inst. 82; 1 Reeves, Hist. 61; 2 Reeves, Hist. 250, 251.

4 Parkes, Hist. Chan. 25; Fleta, Lib. 2, cap. 13; 4 Inst. 78.

5 Hobart, R. 63; Com. Dig. Chancery, A. 1, 2; 2 Inst. 551, 552; 4 Inst. 78, 79.

• Com. Dig. Chancery, A. 1; 4 Inst. 78; 1 Wooddes. Lect. vi. pp. 161 to 165; Prynne's Animadv. 48; 1 Coll. Jurid. 26; 1 Rep. in Chan. App. 5, 7. 7 4 Inst. 88; Eunomus, Dial. 3, § 60.

with several judicial powers, and a general superintendency over the rest of the officers of the prince. From the Roman emperors it passed to the Roman Church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters, and such other public instruments of the Crown as were authenticated in the most solemn manner; and therefore when seals came in use he always had the custody of the king's great seal.2

41. It is not so easy to ascertain the origin of the equitable or extraordinary jurisdiction of the Court of Chancery. By some

1 See Parkes, Hist. Chan. 14; 1 Wooddes. Lect. vi. p. 160; Hist. of Chancery (1726), 3, 4.

But

23 Black. Comm. 46, 47; 1 Wooddes. Lect. vi. pp. 159, 160; 1 Collect. Jurid. 25; Parkes, Hist. Chan. 14; 1 Reeves, Hist. 61; 2 Reeves, Hist. 250, 251. Camden, in his Britannia, p. 180, states the matter in this manner: The Chancery drew that name from a chancellor, which name, under the ancient Roman emperors, was not of so great esteem and dignity, as we learn out of Vopiscus. But now-a-days a name it is of the highest honor, and chancellors are advanced to the highest pitch of civil dignity; whose name Cassiodorus fetcheth from cross-grates, or lattices, because they examined matters within places (secretum) severed apart, enclosed with partitions of such cross-bars, which the Latins called Cancelli. Regard (saith he to a chancellor) what name you bear. It cannot be hidden, which you do within lattices. For you keep your grates lightsome, your bars open, and your doors transparent as windows. Whereby it is very evident that he sat within grates, where he was to be seen on every side; and thereof it may be thought he took his name. minding it was his part, being, as it were, the prince's mouth, eye, and ear, to strike and slash out with cross lines, lattice like, those letters, commissions, warrants, and decrees, passed against law and right, or prejudicial to the Commonwealth, which, not improperly, they called "to cancel," some think the name of chancellor came from this cancelling. And in a glossary of a later time this we read: A chancellor is he whose office it is to look into and peruse the writings of the emperor; to cancel what is written amiss, and to sign that which is well.' However antiquaries differ much upon the origin of the word 'chancellor.' Some derive ita cancellis,' or latticed doors, and hold that it was a denomination of those ushers who had the care of the cancelli,' or latticed doors, leading to the presence-chamber of the emperors and other great men. See 1 Wooddes. Lect. vi. pp. 159, 160; Bythewood's Eunomus, Dial. 3, § 60, note (a), p. 564; Brissonius, Voce, Cancellarius. Vicat, Vocab. Voce, Cancellarius; 1 Savigny's Hist. of Roman Law, translated by Cathcart, pp. 51 to 83.