the Revolution, which severed the ties which bound us to the parent country, it has been of slow growth and cultivation; and there are still some States in whose municipal jurisprudence it has no place at all, or no place as a separate and distinct science. Even in those States in which it has been cultivated with the most success and for the greatest length of time, it can scarcely be said to have been generally studied or administered as a system of enlightened and exact principles until about the close of the eighteenth century. Indeed until a much later period, when Reports were regularly published, it scarcely obtained the general regard of the profession beyond the purlieus of its immediate officers and ministers. Even in the State of New York, whose rank in jurisprudence has never been second to that of any State in the Union (if it has not been the first among its peers) equity was scarcely felt in the general administration of justice until about the period of the Reports of Caines and of Johnson. And perhaps it is not too much to say that it did not attain its full maturity and masculine vigor until Mr. Chancellor Kent brought to it the fulness of his own extraordinary learning, unconquerable diligence, and brilliant talents. If this tardy progress has somewhat checked the study of the beautiful and varied principles of equity in America, it has on the other hand enabled us to escape from the embarrassing effects of decisions

lution, and in the latter a short time before the Revolution. 2 Swift, Dig. p. 15, edit. 1823. In Virginia there does not seem to have been any court having chancery powers earlier than the Act of 1700, ch. 4. 3 Tucker's Black. App. 7. In New York the first Court of Chancery was established in 1701; but it was so unpopular, from its powers being vested in the Governor and Council, that it had very little business until it was reorganized in 1778. (1 John. Ch. Rep. Preface; Campb. and Camb. American Chancery Digest, Preface, 6; Blake's Chan. Introduct. viii.) In New Jersey it was established in 1705. (1 Fonbl. Eq. by Laussat, edit. 1831, p. 14, note.) Mr. Laussat, in his Essay on Equity in Pennsylvania (1826), has given an account of its origin and progress and present state in that Commonwealth (pp. 16 to 31). From this account we learn that the permanent establishment of a Court of Equity was successfully resisted by the people during the whole of its colonial existence; and that the year 1790 is the true point at which we must fix the establishment of Equity in the Jurisprudence of Pennsylvania. It has since been greatly expanded by some legislative enactments. See also 7 Dane, Abridg. ch 225, art. 1, 2. (a)

1 1 Dane, Abridg. ch. 1, art. 7, § 51; 7 Dane, Abridg. ch. 225, art. 1, 2.

(a) See 1 Quarterly Law Rev. 455. A Court of Chancery existed in Penn

sylvania between the years 1720 and 1736. Ib. 456.

which might have been made at an earlier period, when the studies of the profession were far more limited and the benches of America were occasionally, like that of the English Chancery in former ages, occupied by men who, whatever might have been their general judgment or integrity, were inadequate to the duties of their stations, from their want of learning or from their general pursuits. (a) Indeed there were often other circumstances which greatly restricted or impeded a proper choice; such as the want of the due enjoyment of executive or popular favor by men of the highest talents, or the discouragement of a narrow and incompetent salary.

57. The Equity Jurisprudence at present exercised in America is founded upon, co-extensive with, and in most respects conformable to, that of England. It approaches even nearer to the latter than the jurisdiction exercised by the Courts of Common Law in America approaches to the common law as administered in England. The common law was not, in many particulars, applicable to the situation of our country when it was first introduced. Whereas Equity Jurisprudence in its main streams flows from the same sources here that it does in England, and admits of an almost universal application in its principles. The Constitution of the United States has in one clause conferred on the National Judiciary cognizance of cases in equity as well as in law; and the uniform interpretation of that clause has been that by cases in equity are meant cases which, in the jurisprudence of England (the parent country), are so called as contradistinguished from cases at the common law. So that in the Courts

1 Robinson v. Campbell, 3 Wheaton, R. 212, 221, 223; Parsons v. Bradford, 3 Peters, Sup. Ct. R. 433, 447; 3 Story, Comm. on Const. 506, 507; Id. 644, 645; U. S. v. Howland, 4 Wheaton, R. 115; 7 Dane, Abridg. ch. 225, art. 1.

(a) 'It must not be forgotten that the rules of Courts of Equity are not, like the rules of the common law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time, altered, improved, and refined from time to time. In many cases we know the names of the chancellors who invented them. No doubt they were invented

for the purpose of securing the better administration of justice, but still they were invented. Take such things as these: the separate use of a married woman, the restraint on alienation, the modern rule against perpetuities, and the rules of equitable waste. We can name the chancellors who first invented them, and state the date when they were first introduced into Equity Jurisprudence; and therefore in cases

of the United States Equity Jurisprudence generally embraces the same matters of jurisdiction and modes of remedy as exist in England. (a)

58. In nearly all the States in which Equity Jurisprudence is recognized it is now administered in the modes and according to the forms which appertain to it in England; that is, as a branch of jurisprudence separate and distinct from the remedial justice of Courts of Common Law.1 In Pennsylvania it was formerly administered through the forms, remedies, and proceedings of the common law; and was thus mixed up with legal rights and titles in a manner not easily comprehensible elsewhere. This anomaly has been in a considerable degree removed by some recent legislative enactments. In some of the States in the Union distinct Courts of Equity are established; in others the powers are exercised concurrently with the Common Law Jurisdiction by the same tribunal, being at once a Court of Law and a Court of Equity, somewhat analogous to the case of the Court of Exchequer in England. In others again no general equity powers exist; but a few specified heads of Equity Jurisprudence are confided to the ordinary Courts of Law, and constitute a limited statutable jurisdiction.3 (b)

1 Fonblanq. on Eq. by Laussat (edit. 1831), pp. 13 to 20; 7 Dane's Abridg. ch. 225, art. 1, 2.

2 Id. 18 to 20.

* Mr. Chancellor Kent, in a note to his Commentaries, has given a brief statement of the actual organization of Equity Jurisdiction in all the States; to which I gladly refer the learned reader. 4 Kent, Comm. Lect. 58, p. 163, note (d). A fuller account may be found in the Preface to Campbell and Cambreleng's American Chancery Digest (edit. 1828), in Mr. Laussat's edi

of this kind the older precedents in equity are of very little value. The doctrines are progressive, refined, and improved; and if we want to know what the rules of equity are, we must look of course rather to the more modern than the more ancient cases.' Jessel, M. R. in Knatchbull v. Hallett, 13 Ch. D. 696, 710.

(a) By act of Parliament, Aug. 5, 1873, 36 and 37 Vict. ch. 66, the Courts of Chancery, Queen's Bench, Common Pleas, Exchequer, Admiralty, Probate, Divorce and Matrimonial Causes, and the London Court

of Bankruptcy were consolidated into one court of two chief divisions, called Her Majesty's High Court of Justice and Her Majesty's High Court of Appeal. The act provides that if a plaintiff or a defendant claims any equitable estate or relief or defence, in any case before any judge, he shall have the same relief as ought to have been given in the Court of Chancery before the act.

(b) As to the legislation of the States on the subject, see Bispham, Equity, pp. 16–23.

tion of Fonblanque on Equity, vol. 1, pp. 11 to 20 (edit. 1831); and in Mr. Laussat's Essay on Equity in Pennsylvania. App. (1826). As the systems of the different States are in many cases subject to legislative authority, which is frequently engaged in introducing modifications, a more minute detail would scarcely be of any permanent importance to the profession. The article on Chancery Jurisdiction, in the first volume of the American Jurist, p. 314, contains many very valuable suggestions on this subject; and exhibits in a striking manner the importance of Equity Jurisprudence. See also 7 Dane's Abridg. ch. 225, art. 1, 2.

CHAPTER III.

GENERAL VIEW OF EQUITY JURISDICTION.

59. HAVING traced out the nature and history of Equity Jurisprudence, we are naturally led to the consideration of the various subjects which it embraces and the measure and extent of its jurisdiction. Courts of Equity in the exercise of their jurisdiction may in a general sense be said to differ from Courts of Common Law in the modes of trial, in the modes of proof, and in the modes of relief. One or more of these elements will be found essentially to enter as an ingredient into every subject over which they exert their authority. Lord Coke has in his summary manner stated that three things are to be judged of in the Court of Conscience or Equity, covin, accident, and breach of confidence;1 or, as we should now say, matters of fraud, accident, and trust. Mr. Justice Blackstone has also said that Courts of Equity are established to detect latent frauds and concealments which the process of the Courts of Law is not adapted to reach; to enforce the execution of such matters of trust and confidence as are binding in conscience, though not cognizable in a Court of Law, to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case than can always be obtained by the generality of the rules of the positive or common law.' 2

60. These, as general descriptions, are well enough; but they are far too loose and inexact to subserve the purposes of those

1 4 Inst. 84; Com. Dig. Chancery, Z.; 3 Black. Comm. 431; 1 Eq. Abr. Courts, B. § 4, p. 130; 1 Dane's Abridg. ch. 9, art. 1, § 3; Earl of Bath v. Sherwin, Prec. Ch. 261; s. c. 1 Bro. Parl. Cas. 266; Rex v. Hare & Mann, 1 Str. 149, 150, Yorke, arguendo; 1 Wooddes. Lect. vii. pp. 208, 209; Bac. Abridg. Court of Chancery, C.

2 1 Black. Comm. 92; and see 3 Black. Comm. 429 to 432.