The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

PART IV.

EQUITY

• 41. Early English Equity.Oliver Wendell Holmes, Jr.
• 42. Common Law and Conscience in the Ancient Court of Chancery.Luke Owen Pike.
• 43. The Origin of Uses and Trusts.James Barr Ames.
• 44. The Development of Equity Pleading from Canon Law Procedure.Christopher Columbus Landgell.
• 45. Courts of Chancery in American Colonies.Solon Dyke Wilson.
• 46. The Administration of Equity through Common Law Forms in Pennsylvania.Sidney George Fisher.

[Other References on the subjects of this Part are as follows:

In Select Essays:

Roman Law Influence in Chancery, by T. E. Scrutton (No. 7, Vol. I).

A Century of English Judicature, by V. V. Veeder (No. 20, Vol. 1).

In Other Series and Journals:

Introduction to Select Cases in Chancery, by W. P. Baildon (Vol. X, Selden Society, 1896).

Introduction to Select Cases in the Court of Requests, by I. S. Leadam (vol. XII, Selden Society, 1898).

The Revival of Criminal Equity, by E. S. Mack (Harvard Law Review, XVI, 389; 1902).

Trust and Corporation, by F. W. Maitland; Grünhut’s Zeitschrift fur das Privat- und Oeffentliches Recht der Gegenwart, XXIII. 1 (Vienna, 1904; also privately printed from the English original).

Equity Defences and Specialty Contracts, by J. B. Ames (Harvard Law Review, IX, 49; 1895).

History of Equity in the American Colonies and States, by E. B. Gager; Two Centuries’ Growth of American Law, c. VI (1901; Yale University Studies).

Historical Sketch of the Equitable Jurisdiction of the Court of Chancery, by D. M. Kerby (1890; Yorke Prize Essays).

The History of Chancery in Massachusetts, by E. H. Woodruff (Law Quarterly Review, V, 370; 1889).

Changes in Equity Procedure and Principles, by A. Birrell; A Century of Law Reform, c. III (1901).

Notes on the Introduction of Equity Jurisdiction in Maryland, 1634-1720, by David M. Newbold (Balto. 1906).]

41.

EARLY ENGLISH EQUITY1

By Oliver Wendell Holmes2

I.

Uses.

AT the end of the reign of Henry V. the Court of Chancery was one of the established courts of the realm. I think we may assume that it had already borrowed the procedure of the Canon law, which had been developed into a perfected system at the beginning of the thirteenth century, at about the same time that the Chancellor became the most important member of the King’s Council. It had the ‘Examination and oath of the parties according to the form of the civil law and the law of Holy Church in subversion of the common law.’3 It had the subpoena, which also it did not invent,4 and it had a form of decree requiring personal obedience.5

Down to the end of the same reign (Henry V.) there is no evidence of the Chancery having known or enforced any substantive doctrines different from those which were recognized in the other courts except two. One of them, a peculiar view of contract, has left no traces in modern law. But the other is the greatest contribution to the substantive law which has ever been set down to the credit of the Chancery. I refer to Uses, the parent of our modern trusts. I propose to discuss these two doctrines in a summary way as the first step toward answering the question of the part which Equity has played in the development of English law.

As a preliminary, I ought to state that I assume without discussion that the references to aequitas in Glanvill, Bracton, and some of the early statutes passed before the existence of a Chancery jurisdiction, have no bearing on that question.1 I ought also to say that the matters of grace and favour which came before the Council and afterwards before the Chancellor do not appear to have been matters in which the substantive rules of the common law needed to be or were modified by new principles, but were simply cases which, being for some reason without the jurisdiction of the King’s ordinary courts, either were brought within that jurisdiction by special order, or were adjudged directly by the Council or the Chancellor according to the principles of the ordinary courts.2

3 I agree with the late Mr. Adams1 that the most important contribution of the Chancery has been its (borrowed) procedure. But I wish to controvert the error that its substantive law is merely the product of that procedure. And, on the other hand, I wish to show that the Chancery, in its first establishment at least, did not appear as embodying the superior ethical standards of a comparatively modern state of society correcting the defects of a more archaic system. With these objects in view, I proceed to consider the two peculiar doctrines which I have mentioned.

First, as to Uses. The feoffee to uses of the early English law corresponds point by point to the Salman of the early German law, as described by Beseler fifty years ago.2 The Salman, like the feoffee, was a person to whom land was transferred in order that he might make a conveyance according to his grantor’s directions. Most frequently the conveyance was to be made after the grantor’s death, the grantor reserving the use of the land to himself during his life.1 To meet the chance of the Salman’s death before the time for conveyance over, it was common to employ more than one,2 and persons of importance were selected for the office.3 The essence of the relation was the fiducia or trust reposed in the fidelis manus,4 who sometimes confirmed his obligation by an oath or covenant.5

This likeness between the Salman and the feoffee to uses would be enough, without more, to satisfy me that the latter was the former transplanted. But there is a further and peculiar mark which, I think, must convince every one, irrespective of any general views as to the origin of the common law.

Beseler has shown that the executor of the early German will was simply a Salman whose duty it was to see legacies and so forth paid if the heirs refused. The heres institutus being unknown, the foreign law which introduced wills laid hold of the native institution as a means of carrying them into effect. Under the influence of the foreign law an actual transfer of the property ceased to be required. It was enough that the testator designated the executors and that they accepted the trust; and thus it was that their appointment did not make the will irrevocable, as a gift with actual delivery for distribution after the donor’s death would have been.1

There can be no doubt of the identity of the continental executor and the officer of the same name described by Glanvill; and thus the connection between the English and the German law is made certain. The executor described by Glanvill was not a universal successor. Indeed, as I have shown in my book on the Common Law, the executor had not come to be so regarded, nor taken the place of the heir in the King’s courts even as late as Bracton. To save space I do not copy Glanvill’s words, but it will be seen on reading that the function of the executor was not to pay debts—that was the heir’s business,2 but to cause to stand the reasonable division of the testator as against the heirs.3 The meaning of this function will be further explained when I come to deal with the rights of the cestui que use.4

The executor had already got his peculiar name in Glanvill’s time, and it would rather seem that already it had ceased to be necessary for the testator to give him possession or seizin. But, however this may be, it is certain that when the testator’s tenements were devisable by custom, the executor was put in possession either by the testator in his lifetime or else immediately after the testator’s death. As late as Edward I. ‘it seemed to the court as to tenements in cities and boroughs which are left by will (que legata sunt) and concerning which there should be no proceeding in the King’s Court, because it belongs to the ecclesiastical forum,1 that first after the death of the testator the will should be proved before the ordinary, and the will having been proved, the mayor and bailiffs of the city ought to deliver seizing of the devised and devisable tenements (de tenementis legatis et que sunt legabilia) to the executors of the will saving the rights of every one.’2 A little later the executor ceased to intervene at all, and the devisees might enter directly, or, if the heir held them out, might have the writ Ex gravi querela.3

If, as I think, it is sufficiently clear that in the reign of Edward I. the distinction between an executor and feoffee to uses was still in embryo, it is unnecessary to search the English books for evidence of the first stage when the testator transferred possession in his own lifetime. A case in 55 Henry III. shows executors seized for the purpose of applying the land to pious uses under a last will, and defending their seizing in their official capacity, but does not disclose how they obtained possession.4 A little earlier still Matthew Paris speaks of one who, being too weak to make a last will, makes a friend expressorem et executorem.5 It is a little hard to distinguish between such a transaction and a feoffment to uses by a few words spoken on a death-bed, such as is recorded in the reign of Henry VI.1 But the most striking evidence of the persistence of ancient custom was furnished by King Edward III. in person, who enfeoffed his executors, manifestly for the purpose of making such distribution after his death as he should direct; but because he declared no trust at the time, and did not give his directions until afterwards, the judges in Parliament declared that the executors were not bound, or, as it was then put, that there was no condition.2

Gifts inter vivos for distribution after death remained in use till later times.3 And it may be accident, or it may be a reminiscence of ancient tradition, when, under Edward IV., the Court, in holding that executors cannot have account against one to whom the testator has given money to dispose of for the good of his soul, says that as to that money the donee is the executor.4

At all events, from an early date, if not in Glanvill’s time, the necessity of a formal delivery of devised land to the executor was got rid of in England as Beseler says that it was on the Continent. The law of England did in general follow its continental original in requiring the two elements of traditio and investitura for a perfect conveyance.5 But the Church complained of the secular courts for requiring a change of possession when there was a deed.6 And it was perhaps because wills belonged to the spiritual jurisdiction that the requirement was relaxed in the case of executors. As has been shown above, in the reign of Edward I. possession was not delivered until after the testator’s death, and in that of Edward III. it had ceased to be delivered to them at all. Possibly, however, a trace of the fact that originally they took by conveyance may be found in the notion that executors take directly from the will even before probate, still repeated as a distinction between executors and administrators.

1 It is now time to consider the position of the cestui que use. The situations of the feoffor or donor and of the ultimate beneficiaries were different, and must be treated separately. First, as to the former. In England, as on the Continent, upon the usual feoffment to convey after the feoffor’s death, the feoffor remained on the land and took the profits during his life. Feoffors to uses are commonly called pernors of profits in the earliest English statutes and are shown in possession by the earliest cases.2 As Lord Bacon says in a passage cited above, pernancy of the profits was one of the three points of a use. It was the main point on the part of the feoffor, as to make an estate, or convey as directed, was the main duty on the side of the feoffee. But all the German authorities agree that the pernancy of the profits also made the gewere, or protected possession, of early German law.3 And in this, as in other particulars, the English law gave proof of its origin. In our real actions the mode of alleging seizin was to allege a taking of the esplees or profits.4

If the remedies of the ancient popular courts had been preserved in England, it may be conjectured that a cestui que use in possession would have been protected by the common law.1 He was not, because at an early date the common law was cut down to that portion of the ancient customs which was enforced in the courts of the King. The recognitions (assizes), which were characteristic of the royal tribunals, were only granted to persons who stood in a feudal relation to the King,2 and to create such a relation by the tenure of land, something more was needed than de facto possession or pernancy of profits. In course of time the fact that the new system of remedies did not extend itself to all the rights which were known to the old law became equivalent to a denial of the existence of the rights thus disregarded. The meaning of the word ‘seizin’ was limited to possession protected by the assizes,3 and a possession which was not protected by them was not protected at all. It will be remembered, however, that a series of statutes more and more likened the pernancy of the profits to a legal estate in respect of liability and power, until at last the statute of Henry VIII. brought back uses to the courts of common law.4

It is not necessary to consider whether the denial of the assizes to a cestui que use in possession was peremptory and universal from the beginning, because the feoffor had another protection in the covenants which, in England as on the Continent, it was usual for him to take.5 For a considerable time the Anglo-Norman law adhered to the ancient Frankish tradition in not distinguishing between contract and title as a ground for specific recovery, and allowed land to be recovered in an action of covenant, so that it would seem that one way or another feoffors were tolerably safe.6

But cestuis que use in remainder were strangers both to the covenant and the possession. There was an obvious difficulty in finding a ground upon which they could compel a conveyance. The ultimate beneficiaries seem to have been as helpless against the salman in the popular courts on the Continent as they were against the feoffee in the Curia Regis. Under these circumstances the Church, which was apt to be the beneficiary in question, lent its aid. Heusler thinks that the early history of these gifts shows that they were fostered by the spiritual power in its own interest, and that they were established in the face of a popular struggle to maintain the ancient rights of heirs in the family property, which was inalienable without their consent.1 In view of the effort which the Church kept up for so long a time to assert jurisdiction in all matters of fidei laesio, it would seem that a ground for its interference might have been found in the fiducia which, as has been said, was of the essence of the relation, and which we find referred to in the earliest bills printed in the Chancery Calendars.

This is conjecture. But it seems clear that on some ground the original forum for devisees was the Ecclesiastical Court. Glanvill states that it belongs to the ecclesiastical courts to pass on the reasonableness of testamentary dispositions,2 and, while he shows that the executor had the King’s writ against the heir, gives no hint of any similar right of legatees or devisees against the executor. The Decretals of Gregory disclose that a little later the Church compelled executors to carry out their testator’s will.3 And Bracton says in terms that legatees and devisees of houses in town or of an usufruct could sue in the ecclesiastical courts.4 As we have seen, in the case of houses in town the executor ceased to intervene, the ecclesiastical remedy against him became superfluous, and devisees obtained a remedy directly against deforciants in the King’s courts. But with regard to legacies, although after a time the Chancery became a competing, and finally, by St. 20 & 21 Vict. c. 77, s. 23, the exclusive jurisdiction, as late as James I. ‘the Lord Chancellor Egerton would say, the ecclesiastical courts were more proper for Legacies and sometimes would send them thither.’1

These courts were unable to deal with uses in the fulness of their later development. But the chief instances of feoffment upon trust, other than to the uses of a last will or for distribution after death, of which there is any record until sometime after the Chancery had become a separate court under Edward III. were for the various fraudulent purposes detailed in the successive petitions and statutes which have come down to us.2 It should be mentioned too, that there are some traces of an attempt by cestuis que use who were strangers to the feoffment to enforce the trust by way of a condition in their favour, and it seems to have been put that way sometimes in the conveyances.3

For a considerable time, then, it would seem that both feoffors and other cestuis que use were well enough protected. The first complaint we hear is under Henry IV. It is of the want of a remedy when property is conveyed by way of affiance to perform the will of the grantors and feoffors and the feoffees make wrongful conveyances.4 As soon as the need was felt, the means of supplying it was at hand. Nothing was easier than for the ecclesiastics who presided in Chancery to carry out there, as secular judges, the principles which their predecessors had striven to enforce in their own tribunals under the rival authority of the Church. As Chancellors they were free from those restrictions which confined them as churchmen to suits concerning matrimony and wills. Under Henry V. we find that cestuis que use had begun to resort to equity,1 whereas under Richard II. the executors and feoffees of Edward III. had brought their bill for instructions before the Judges in Parliament.2 In the next reign (Henry VI.) bills by cestuis que use become common. The foundation of the claim is the fides, the trust reposed and the obligation of good faith, and that circumstance remains as a mark at once of the Teutonic source of the right and the ecclesiastical origin of the jurisdiction.

If the foregoing argument is sound, it will be seen that the doctrine of uses is as little the creation of the subpoena, or of decrees requiring personal obedience, as it is an improvement invented in a relatively high state of civilization which the common law was too archaic to deal with. It is true, however, that the form of the remedy reacted powerfully upon the conception of the right. When the executor ceased to intervene between testator and devisee the connection between devises and uses was lost sight of. And the common law courts having refused to protect even actual pernors of profits, as has been explained, the only place where uses were recognized by that name was the Chancery. Then, by an identification of substantive and remedial rights familiar to students, a use came to be regarded as merely a right to a subpoena. It lost all character of a jus in rem, and passed into the category of choses in action.3 I have shown elsewhere the effect of this view in hampering the transfer of either the benefit or burden of uses and trusts.4

II.

Contract

I must now say a few words of the only other substantive doctrine of which I have discovered any trace in the first period of English Equity. This is a view of Contract, singularly contradicting the popular notion that the common law borrowed Consideration from the Chancery. The requirement of consideration in all parol contracts is simply a modified generalization of the requirements of quid pro quo to raise a debt by parol. The latter, in certain cases at least, is very ancient, and seems to be continuous with the similar doctrine of the early Norman and other continental sources which have been much discussed in Germany.1

I may remark by way of parenthesis that this requirement did not extend to the case of a surety, who obviously did not receive a quid pro quo in the sense of the older books and yet could bind himself by parol from the time of the Somma to Edward III. and even later where the custom of various cities kept up the ancient law.2 Sohm has collected evidence that suretyship was a formal contract in the time of the folk laws, in aid of his theory that the early law knew only two contracts; the real, springing from sale or barter and requiring a quid pro quo; and the formal, developed from the real at an early date by a process which has been variously figured.1 I do not attempt to weigh the evidence of the continental sources, but in view of the clear descent of suretyship from the giving of hostages, and the fact that it appears as a formless contract in the early Norman and Anglo-Norman Law, I find it hard to believe that it owed its origin to form any more than to quid pro quo. Tacitus says that the Germans would gamble their personal liberty and pay with their persons if they lost.2 The analogy seems to me suggestive. I know no warrant for supposing that the festuca was necessary to a bet.

I go one step further, and venture hesitatingly to suggest that cases which would now be generalized as contract may have arisen independently of each other from different sources, and have persisted side by side for a long time before the need of generalization was felt or they were perceived to tend to establish inconsistent principles. Out of barter and sale grew the real contract, and if the principle of that transaction was to be declared universal, every contract would need a quid pro quo. Out of the giving of hostages, familiar in Cæsar’s time, grew the guaranty of another’s obligation, and if this was to furnish the governing analogy, every promise purporting to be seriously made would bind. But the two familiar contracts kept along together very peaceably until logic, that great destroyer of tradition, pushed suretyship into the domain of covenant, and the more frequent and important real contract succeeded in dividing the realm of debt with instruments under seal.3

To return to Equity. In the Diversity of Courts (Chancery) it is said that ‘a man shall have remedy in Chancery for covenants made without specialty, if the party have sufficient witness to prove the covenants, and yet he is without remedy at the common law.’ This was in 1525, under Henry VIII., and soon afterwards the contrary was decided.1 But the fact that a decision was necessary confirms the testimony of the passage quoted as to what had been the tradition of the Chancery. I do not propose to consider whether thus broadly stated it corresponded to any doctrine of early law, or whether any other cases could be found, beside that of the surety, in which a man could bind himself by simply saying that he was bound. For although the meaning of the tradition had been lost in the time of Henry VIII. when the textbook spoke of covenants generally, the promise with which Equity had dealt was a promise per fidem. Thus, under Edward IV.,2 a subpoena was sued in the Chancery alleging that the defendant had made the plaintiff the procurator of his benefice and promised him per fidem to hold him harmless for the occupation, and then showing a breach. The Chancellor (Stillington) said that ‘in that he is damaged by the non-performance of the promise he shall have his remedy here.’ And to go back to the period to which this article is devoted, we find in the reign of Richard II. a bill brought upon a promise to grant the reversion of certain lands to the plaintiff, setting forth that the plaintiff had come to London and spent money relying upon the affiance of the defendant, and that as he had no specialty, and nothing in writing of the aforesaid covenant, he had no action at the common law.3 This is all the direct evidence, but slight as it is, it is sufficient to prove an ancient genealogy, as I shall try to show.

Two centuries after the Conquest there were three well-known ways of making a binding promise: Faith, Oath, and Writing.4 The plighting of one’s faith or troth here mentioned has been shown by Sohm and others to be a descendant of the Salic Fides facta, and I do not repeat their arguments.1 It still survives in that repertory of antiquities the marriage ceremony, and is often mentioned in the old books.2

Whether this plighting of faith (fides data, fides facta) was a formal contract or not in the time of the Plantagenets, and whether or not it was ever proceeded upon in the King’s courts, it sufficiently appears from Glanvill and Bracton that the royal remedies were only conceded de gratia if ever.3 The royal remedies were afforded at first only by way of privilege and exception, and, as I have already shown, never extended to all the ancient customs which prevailed in the popular tribunals. But if the King failed the Church stood ready. For a long time, and with varying success, it claimed a general jurisdiction in case of laesio fidei.4 Whatever the limit of this vague and dangerous claim it clearly extended to breach of fides data. And even after the Church had been finally cut down to marriages and wills, as shown in the last note, it retained jurisdiction over contracts incident to such matters for breach of faith, and, it seems, might proceed by way of spiritual censure and penance even in other cases.1

Thus the old contracts lingered along into the reign of Edward III. until the common law had attained a tolerably definite theory which excluded them on substantive grounds, and the Chancery had become a separate Court. The clerical Chancellors seem for a time to have asserted successfully in a different tribunal the power of which they had been shorn as ecclesiastics, to enforce contracts for which the ordinary King’s Courts afforded no remedy. But, I think, I have now proved that in so doing they were not making reforms or introducing new doctrines, but were simply retaining some relics of ancient custom which had been dropped by the common law, but had been kept alive by the Church.

42.

COMMON LAW AND CONSCIENCE IN THE ANCIENT COURT OF CHANCERY1

By Luke Owen Pike2

IT has commonly been supposed that the equitable jurisdiction of the Court of Chancery was altogether different in origin from its ordinary or common law jurisdiction. The opinion is, perhaps, not inconsistent with the evidence upon which it was formed, but seems to deserve reconsideration in connection with three distinct but closely associated branches of enquiry. These are:—

• (1) The functions of the Chancery as the Officina Brevium or fountain-head of justice sending forth its remedies for wrongs in the form of Original Writs returnable in other Courts.
• (2) The judicial functions of the Chancery in proceedings commenced otherwise than by Bill.
• (3) The judicial functions of the Chancery in proceedings commenced by Bill.

The first of these three subjects appears to have been commonly regarded as being less closely connected with the other two than it really was; and the last two appear to have been insufficiently illustrated by early cases.

There was a doctrine, so old that it is difficult to fix its age with precision, according to which there could not be any wrong which had not its appropriate legal remedy. The remedy existed in the form of the Original Writ which issued out of the Chancery upon a proper representation there of the facts to which it was to be adapted. It was, however, very soon found that this theory, though most satisfactory as a theory, was sometimes a little at variance with the exigencies of every-day practice and the circumstances of human life. The difficulty was recognised in the Statute of Westminster the Second, c. 24. By that Act an attempt was made to provide for cases to which the writs in the Chancery Register were not strictly applicable. The conclusion is of great importance in relation to the subject now under consideration:—‘And whensoever it shall happen from henceforth in the Chancery that in one case a writ is found, and that in like case falling under the same law and needing like remedy a writ is not found, let the Clerks of the Chancery agree in making a writ, or adjourn the complainants to the next Parliament. And let the cases in which they cannot agree be set forth in writing, and let the Clerks refer the cases to the next Parliament. And let a writ be made by agreement among men learned in the law, so that it happen not from henceforth that the Court of the Lord the King do fail complainants when seeking justice.’1

The Chancery is here recognised as the place in which new remedies are to be devised when necessary, but subject, in cases of extraordinary difficulty, to a reference to Parliament and the assistance of those who are learned in the law. The reference to Parliament and the agreement of men learned in the law appear at first sight to be somewhat abruptly brought into juxtaposition. But the Judges were members of the Council; petitions were commonly presented to the King ‘in his Council in his Parliament’ in relation to suits actually pending in various Courts; and, as will presently appear, decisions were given on judicial proceedings in the Chancery ‘de avisamento peritorum de Concilio.’ The Council, in fact, or the Council in Parliament, exercised a general supervision over all legal matters, though for certain purposes the Chancery was regarded as an office of Parliament.

If, now, we consider for a moment the judicial proceedings on what is usually called the Common Law side of the Court, under what is usually called its ordinary jurisdiction, we shall find much to remind us of the Act which provided for writs in consimili casu. In cases of Scire facias to repeal Letters Patent or upon Recognisances in the Chancery, and in Traverses of Office, the nature of the jurisdiction exercised may be best understood by the aid of the form in which the judgment was given. Without always preserving exact verbal identity it preserved a general uniformity in its outline or framework. Judgments of this kind have been preserved in considerable numbers in filaciis Cancellariae among a class of documents usually assigned to the common law side of the Court and now known as ‘County Placita.’ The following instances may sufficiently illustrate the subject:—‘Habita plena deliberatione cum toto Concilio domini Regis, videtur Curiae,’ &c.; ‘De avisamento Justiciariorum et Servientium ipsius domini Regis ad Legem, ac aliorum peritorum de Concilio ejusdem domini Regis in eadem Cancellaria ad tunc existentium, consideratum fuit quod literae praedictae revocentur et adnullentur;’ ‘De avisamento domini Cancellarii Angliae, Justiciariorum, Servientium ad Legem, et Attornati ipsius domini Regis consideratum est,’ &c.

From these examples, ranging in date from the reign of Edward III. to that of Henry VI., it will be seen that judicial functions in the Chancery, even on the so-called Common Law side, were not always, if ever, exercised by the Chancellor alone. The authority of the Council or of constituent members of the Council was commonly asserted, or at any rate their advice was considered necessary. The proceedings are thus wholly distinct from those in the Courts of King’s Bench and Common Pleas, where (though points of law might be referred to the Council during the progress of an action) judgment was given on the authority of the Justices of those courts respectively.

These facts should be borne in mind in considering the case of Hals and others v. Hyncley,1 to call attention to which is one of the principal objects of this article. It is probably the earliest (being of the reign of Henry V.) in which proceedings by Bill addressed to the Chancellor can be traced from the Bill itself to the decision. It was clearly not at common law, because the want of a common law remedy was the ground of the Bill, and yet it bears in many respects the strongest resemblance to proceedings which have in later times been thought to belong to the Common Law side of the Chancery.

The general heading or description of the proceedings is in the same form as the headings or descriptions of proceedings upon Scire facias. It is, perhaps, worth quoting in its entirety:—

‘Placita coram Domino Rege in Cancellaria sua apud Westmonasterium in Octabis Sancti Michaelis anno regni Regis Henrici quinti post Conquestum septimo.’

Then follows a statement commencing, ‘Be it remembered’ (‘Memorandum’ in the original Latin) to the effect that John Hals, William Clopton, esquire, Robert Chichele, Thomas Knolles, William Cavendish, citizens of London, Robert Cavendish, John Tendryng the younger, William Bartilmewe, chaplain, James Hog, and Philip Morcell had exhibited ‘venerabili in Christo patri Thomae Episcopo Dunolmensi, Cancellario Angliae, quandam Billam, quae sequitur in haec verba.’

The Bill (which, it will be seen, itself suggests the idea of a Scire facias towards the end) is in French, and may be thus translated:—

John Hals [and the other plaintiffs, as above] very humbly pray [supplient] that (whereas one John Hyncley, of Thurlow in the County of Suffolk, esquire, has wrongfully disseised the said orators [suppliauntz], since the last passage of our Sovereign Lord the King to the parts of Normandy, of the manor of Pentlow and the advowson of the church of the vill of Pentlow with their appurtenances in the vill and lordship of Pentlow, whereof they were in peaceable possession at the time of the same passage, and it was so ordained by our same Sovereign Lord the King, upon his said passage, that no assise of Novel Disseisin should be prosecuted against any person whatsoever until our said Lord the King should return into England, wherefore they cannot have remedy by assise of Novel Disseisin to recover the said manor with the advowson and appurtenances aforesaid, to the great damage and annihilation of the poor estate of the said orators if they be not aided by your very gracious Lordship in this behalf) it may please your very gracious Lordship to consider this matter, and thereupon to command the said defendant to answer to the said orators in respect of the disseisin aforesaid, and whether he hath or knoweth anything to say for himself1 wherefore the said orators should not be restored to their former possession of the manor with the advowson of the church and appurtenances aforesaid together with the issues and profits thereof in the meantime taken, for the sake of God and as a work of charity (‘pur Dieu et en eovere de charite’).

The subpoena, to compel Hyncley’s appearance, then appears at length. Both the writ and all the subsequent proceedings are in Latin.

Hyncley appeared, prayed and had oyer of the Bill, and then answered or pleaded2 to the following effect:—

One John de Cavendish, being seised of the manor and advowson, enfeoffed thereof one Andrew Cavendish and Rose his wife to hold to them and the heirs of the body of Andrew. Andrew and Rose were seised, and had issue William, who is still living and with the King in Normandy. Andrew died seised, and Rose, who survived him, leased the manor and appurtenances to one Thomas Clerk for a term of years still unexpired and, during that term, executed a charter of feoffment of the manor and advowson to John Hals and other feoffees (being the plaintiffs named in the Bill), and a letter of attorney directing certain persons to give livery of seisin to the feoffees. The feoffees and the persons named in the letter of attorney went to the manor with the intention respectively of receiving and giving livery of seisin, but the tenant for years did not and would not attorn to the feoffees. Rose thereafter took the profits of the manor to her own use, and so died seised thereof in her demesne as of free-hold. After her death John Hyncley, the defendant, as father of Katharine, the wife of Andrew’s son William and his next friend, at the time at which the disseisin is supposed to have been made, while William was abroad with the King, entered upon the manor and took and is at present taking the profits thereof to the use of William and with his consent. And Hals and the other feoffees, by colour of the charter and letter of attorney, would have entered upon the manor upon the possession of William and expelled him therefrom, and this John Hyncley, the defendant, would not permit them to do. ‘Quæ omnia et singula idem Johannes paratus est verificare, pro-ut Curia, &c. Unde non intendit quod prædictus Johannes Hals et alii feoffati prædicti restitutionem manerii prædicti cum pertinentiis habere debeant, &c.’

The plaintiffs (saying by way of protestation that they did not admit the allegations of the defendant) replied to the effect that Rose was seised in her demesne as of fee of the manor and advowson, and enfeoffed thereof John Hals and the other feoffees, long before the King’s last passage into Normandy, and while William was in England, and that Thomas Clerk, the tenant for years, attorned to them so that they were seised of the manor and advowson in their demesne as of fee long before the last passage of the King into Normandy. And afterwards Rose by a deed (produced in Court) released to the feoffees then in possession of the manor and advowson all her right and estate therein, and bound herself and her heirs to warranty. And now her heir is William. And Rose had nothing in the manor and advowson, nor did she take any profits thereof, after the feoffment, except at the will of the feoffees; and they were seised until driven out by the defendant after the last passage of the King into Normandy ‘in forma qua ipsi per Billam suam prædictam supponunt. Et hoc parati sunt verificare, &c. Unde, ex quo prædictus Johannes Hyncley expresse cognovit expulsionem prædictam, petunt quod ipsi ad possessionem manerii prædicti una eum exitibus et proficuis inde a tempore expulsionis prædictæ in forma prædicta factæ restituantur, &c.’

The defendant (saying by way of protestation that he did not admit that Rose had ever been seised in her demesne as of fee, or had released to the feoffees, as they alleged), rejoined that Rose died seised of the manor and advowson as he had previously alleged, absque hoc that the tenant for years attorned to the feoffees, and absque hoc that the feoffees had any thing in the manor and advowson at the time at which the release was supposed to have been made. ‘Et hoc paratus est verificare pro-ut Curia, &c. Unde petit judicium, et quod prædictus Johannes Hals et alii feoffati prædicti de restitutione sua manerii prædicti in hac parte præcludantur, &c.’

The plaintiffs sur-rejoined that Rose was seised and enfeoffed them, that the tenant for years attorned, and that Rose released to them while they were in full possession of the manor, as they had previously alleged, absque hoc that Rose died seised of the manor and advowson, or took any profits thereof after the feoffment, except at the will of the feoffees. ‘Et hæc omnia petunt quod inquirantur per patriam.’

The defendant joined issue—‘et prædictus Johannes Hyncley similiter’—just as in any other Court.

The issue was tried in a manner which is very remarkable. It was not sent into any other Court, but was treated as the subject of an Inquisition to be returned into the Chancery in the same manner as an Inquisition post mortem or other Inquest of Office. The special commission to take inquisition or verdict appears among the proceedings:—

‘Henry, by the grace of God, King of England and France, and Lord of Ireland, to his beloved and faithful William Hankeford, Richard Norton, and William Cheyne, greeting. Know that we have assigned you jointly and severally to enquire by the oath of good and lawful men of the county of Essex by whom the truth of the matter may best be known whether’ &c. [Here follow at length the allegations made on both sides, which it is unnecessary to repeat.] And if the jurors found in accordance with the allegations of the plaintiffs they were further to enquire on what day the expulsion from the manor and advowson took place, and the value of the manor per annum, ‘and the truth respecting all other points and circumstances in any way concerning the premises. And therefore we command you that at certain days and places which ye shall have appointed for this purpose, ye make diligent Inquisitions on the premises and send them clearly and openly made without delay, to us in our Chancery, under your seals or the seal of one of you, and under the seals of those by whom they shall have been made.’

Hankeford alone took the Inquisition and returned it into the Chancery. The jurors found in accordance with the allegations of the plaintiffs, stating also the day of the expulsion and the value of the manor per annum. ‘In cujus rei testimonium juratores prædicti huic Inquisitioni sigilla sua apposuerunt.’

Thereupon the plaintiffs ‘venerunt coram ipso domino Rege in Cancellaria sua prædicta,’ and prayed that they might be restored to their possession of the manor and advowson, together with the mesne profits, according to the form and effect of their Bill.

Then follows the judgment in these words:—‘Super quo, habita super præmissis matura et diligenti deliberatione cum Justiciariis, et Servientibus dicti domini Regis ad Legem, ac aliis peritis de Concilio suo in Cancellaria prædicta existentibus, de eorum avisamento consideratum est quod prædicti Johannes Hals, Willelmus Clopton, Robertus, Thomas Knolles, Willelmus, Cavendisshe, Robertus, Johannes Tendryng, Willelmus Bartilmewe, Jacobus, et Philippus ad possessionem suam manerii et advocationis prædictorum cum pertinentiis, una cum exitibus de eodem manerio a prædicto die Mercurii perceptis, restituantur.’

With the exception that they were commenced by Bill, and that appearance was compelled by subpoena, the whole of the proceedings resembled those on the so-called Common Law side of the Court. The pleadings between the Bill and the joinder of issue were, except in the conclusions praying for restitution or refusal of restitution, just such as might have been used in the Court of Common Pleas; and the final conclusion to the country with the similiter was in the ordinary common law form. The mode of arriving at the truth concerning the facts upon which issue was joined was simply that with which the Chancery had long been familiar in the ordinary Inquests of Office.

A word or two, however, may be necessary in relation to the persons who were appointed Commissioners for the purpose of taking the Inquest, Inquisition, or verdict. It will be observed that they are not described as Justices, or as holding any office, but simply as ‘dilecti et fideles.’ But as they were named William Hankeford, Richard Norton, and William Cheyne, and as the Chief Justice of the King’s Bench was named William Hankeford, the Chief Justice of the Common Pleas Richard Norton, and a puisne Judge of the King’s Bench William Cheyne, the triple coincidence leaves hardly any room for doubt that the Commissioners may thus be identified. They were no doubt included among those Justices and members of the Council upon deliberation with whom the judgment was ultimately given.

The Court, therefore, which heard the cause, and which, whatever may be its proper designation, gave judgment as prayed in the Bill addressed to the Chancellor, practically never lost sight of the matter even when the parties concluded to the country. The Letters Patent nominating the Commissioners passed under the Great Seal. The warrant—whether ‘by the King himself’—‘by writ of Privy Seal’—or otherwise—does not appear. But the whole transaction was very different from that of sending an issue to be tried in another Court, and comes very near if it does not actually amount to the calling of a jury by the authority of the Chancery itself for the purpose of trying an issue joined in the Chancery. This, it has generally been said, the Chancery had not the power to do. It is however clear that a power existed, and was actually exercised, to obtain the verdict of a jury in proceedings by Bill addressed to the Chancellor without the aid of the Courts of King’s Bench or Common Pleas. The power did not, perhaps, exist in the Court of Chancery, but may have been derived from a higher source. The Petition or Bill to the Chancellor was only a substitute for a Petition to the King, or King in Council, or King in Council in Parliament, the proceedings were before the King in his Chancery, and judgment was not given without the advice of the Council. The Chancery, in fact, appears to have been regarded as an office connected with the Council and Parliament, and, being the office for the issue of original Writs, was the most natural place for the discussion of the proper remedy when, for any reason, an Original Writ was inapplicable. A Commission to enquire concerning certain matters as well as for other purposes could, of course, issue under the Great Seal by authority of the King in Council. If, then, the whole proceedings are regarded as being under the King and Council, through some general delegation of power to the Chancellor to receive and examine Petitions or Bills, there is a complete unity of jurisdiction throughout.

It will be observed that the decision is in the form of a Judgment (‘consideratum est’), and not of a Decree (‘ordinatum et decretum est’), and that judgment (‘judicium’) was prayed in the course of the pleadings. It is commonly stated that there was a decree in Chancery as early as the reign of Richard II.; and could such a decree be produced it would be of great value for comparison with the proceedings in Hals and others v. Hyncley. That decrees were made by the King with the advice of his Council in the reign of Richard II. is a fact which admits of no dispute, but that they were made in Chancery, or in consequence of a Bill presented to the Chancellor, has yet to be shown. The proceedings in Hals and others v. Hyncley render it far more probable that the first decisions upon a Bill in Chancery took the form of judgments, and that the adoption of the form of a decree resembling that in which the King and Council administered extraordinary remedies, was of later date.

Sir Edward Coke, whose authority was once regarded as almost infallible, is responsible for a statement often copied and commonly accepted that the first known Chancery Decree was in the seventeenth year of the reign of Richard II. It is strange that so painstaking an author as Spence should have accepted Coke’s assertion on this point without referring to the authority which Coke gave. Had he taken this simple precaution he would never have written the following sentence and note: ‘References to the Council were still made in extraordinary cases of a nature purely civil, but it seems to have been considered there that the Chancery was the proper Court for making decrees in such matters. See the case Rot. Parl. 17 R. II. 2 Inst. 553, 4 Inst. 83.’1 Even in the cited passages in the Institutes there is little to warrant Spence’s general proposition, for Coke merely says that the Chancellor ‘confirmed by his decree the King’s award made by the advice of his Council.’ Had the Chancellor really done this it would have been a very memorable proceeding, but, as a matter of fact, he did nothing of the kind.

Coke’s account of the case is erroneous in many particulars. He has not even correctly stated the names of the parties. What appears upon the Roll of Parliament2 is briefly this. There is a Petition of John de Wyndesore to the King and to the ‘tres sages Seignours de Parlement.’ It contains a very long recital to the effect that the Petitioner and ‘Monsire Robert de Lisle’ had put themselves upon the order, award, and judgment of the King in respect of all disputes relating to certain manors; that the King had charged and commanded his Council to hear and examine the matters in dispute; that it appeared to the Council that Wyndesore had been ousted by De Lisle from the manors; that the King by advice of his Council ordered and decreed (‘ordeigna et decrea’) that Wyndesore should be restored to his previous estate in the manors; and that while Wyndesore was suing the necessary writs to be restored in accordance with the decree, Richard le Scrope purchased the manors of De Lisle by champerty, so that no execution could be had. Wyndesore therefore prayed restitution in accordance with the Decree made, not by the Chancellor but by the King with the advice of his Council.

His petition was read in Parliament, and various documents relating to the matter were there exhibited, including some produced by the Keeper of the Privy Seal and the Keeper (custos) of the Rolls. Among these was the King’s writ of Privy Seal, reciting the decree of the King and Council, and directing the Chancellor ‘to cause to be made out writs under our Great Seal, in due form, to the said Robert that he make restitution to the same John of the manors,’ &c., ‘and also to our Sheriff of the said county of Cambridge, that he be intendent’ in carrying out the restitution. The writs drawn pursuant to these instructions and enrolled were also read. In them the King’s Decree is recited (ordinavimus et decrevimus, &c.). The operative part of the writ, or, as Coke calls it, ‘Injunction,’ addressed to De Lisle, is ‘ideo vobis mandamus quod restitui faciatis,’ and equivalent words are used in the writ addressed to the Sheriff. The Decree is throughout described as the Decree of the King, made by the advice of his Council; and the authority given to the Chancellor under the Privy Seal, is expressly limited to that of preparing and issuing writs, ‘de executione Decreti facienda.’

Upon a subsequent petition from De Lisle, the King sent another writ of Privy Seal, directing the Chancellor to prepare Letters Patent to the effect that Wyndesore was to be left to his remedy at common law, ‘aliqua ordinatione seu decreto per nos in contrarium factis non obstantibus.’ Thus, even after the supposed ‘confirmation’ in Chancery, the decree is described in the same words as before. From first to last there is no decree in Chancery mentioned, for the simple reason that no decree in Chancery was made.

Spence has cited another alleged decree in Chancery of the reign of Richard II. upon the authority of Sir Francis Moore’s Reports.1 In the place to which he refers there certainly do occur the words ‘Decree en Chancery per ladvice des Judges’ as applied to something which happened in the reign of Richard II.; but they occur in such a manner as at once to suggest a doubt and to render verification impossible. The report or note consists of a few lines only; there is nothing to show at what time it was made by Moore (who was King’s Serjeant in the 12th year of James I.), and it is referred to the forty-first year of the reign of Elizabeth. In Easter Term in that year it is stated that Egerton, then Keeper of the Great Seal, said he had seen a precedent (‘president’) of the time of Richard II., to which he applied the above words ‘decree,’ &c. But neither the year of the reign nor the names of the parties are given, and any attempt to identify the case in any contemporary documents would therefore necessarily be vain. The actual words in the report can be accepted only as subject to all the following possible causes of error:—that Egerton did not care to distinguish carefully between a decree made by the King with the advice of his Council, and a decree made by the Chancellor; that Moore did not quote the precise words of Egerton in his manuscript notes; that the notes may have been inaccurately transcribed before they were sent to the printers; and that the printers did not reproduce the transcript with exact fidelity. Any one who has compared printed reports in French with the MSS. will know how frequently mistakes creep in. If the case cited by Coke, when examined and tested by the enrolment to which he refers, is found to give no sort of warrant for the assertion that it is an example of a decree in Chancery, it would hardly be prudent to accept as an example the case cited by Moore, which comes to us at third hand, and does not afford the means of further investigation.

The case of Hals and others v. Hyncley may, therefore, perhaps fairly be regarded as the first in which we have the complete proceedings on a Bill addressed to the Chancellor; and it is remarkable that the decision did not technically take the form of a Decree, but followed the lines of a Judgment given upon Scire facias, and other proceedings on the socalled Common Law side of the Court. Even the Bill was made to savour of the latter jurisdiction by the introduction of a clause borrowed from the writ of Scire facias. There appears to be here a real instance of a connecting link in a process of development. It is to be remembered that a writ of assise of Novel Disseisin would in this case have issued out of the Chancery but for the fact of the King’s general ordinance to the contrary. It was in the Chancery that another remedy was sought and was applied. But the methods used were for the most part those already familiar to the Chancery not as a Court of Equity according to later notions, but as a Court which, according to those later notions, is clearly distinguished from a Court of Equity. On the other hand, these familiar Chancery methods were not in early times regarded as being at common law. It was a subject of complaint in a petition in Parliament that the Justices of the King’s Bench and Common Pleas were withdrawn from their own Courts to hear proceedings on Scire facias and Traverses of Office in Chancery; and the mischief which was alleged in consequence of this practice was the delay which it caused in the administration of the common laws of the realm.1

On the whole, it seems clear that, as late as the reign of Henry V. there was no broadly marked distinction, as defined at a later period, between the two classes of judicial functions exercised in the Chancery. There was naturally a distinction (though apparently not any difference of origin) between the more or less extraordinary judicial functions exercised in it and the ordinary functions exercised in it as the office for the issue of Original Writs which were returnable and triable in other Courts. But, in the regular course of human affairs, that which is at one time extraordinary comes at length, from long familiarity, to be regarded as ordinary. If, too, in earlier times the extraordinary remedies took the form of Judgments, and some of them in later times the form of Injunctions or Decrees, a new element of difference was at length introduced. The proceedings which followed the old methods were classed as ordinary, those which followed the new as extraordinary.

The division between the two kinds of judicial functions was, however, wanting in clearness even as late as the end of the sixteenth century. Staunford, whose ‘Exposition of the King’s Prerogative’ was published in 1590, was evidently in some uncertainty about the matter. In one passage2 he says, in relation to a Traverse of Office in the Chancery, ‘Note, that if the party take a Traverse which is judged insufficient in the law, this is peremptory unto him, and he shall not be received after to take a new, as appeareth in 40 Assise, 24. Howbeit T. 14 E. 41 the contrary opinion is holden, and that it is not peremptory, because it proceedeth in the Chancery which is the Court of Conscience. But, as to that, a man may answer and say that a Chancellor hath two powers, the one absolute, the other ordinary, and this Traverse is before him by an ordinary power, in which case all things touching the same must proceed as it should before any other ordinary Judge of the common law, and therefore it should appear . . . that if the party be nonsuit in his Traverse it is peremptory unto him, for so might he delay the King infinitely. Tamen quære.’ Staunford probably leaned to the opinion that Traverses of Office belonged to a jurisdiction different from that of the Court of Conscience; but the words ‘Tamen quære’ show that he did not consider the point to be settled. In another passage2 he allows the contrary opinion to pass unchallenged:—‘In 14 E. 4, fo. 73 it appeareth that one had traversed an Office which was sent into the King’s Bench to try, and had forgotten to sue his Scire facias, and yet he was suffered to go again into the Chancery to pray a Scire facias upon the first Traverse, for it was said that the Chancery is a Court of Conscience, and for that cause the thing that was there amiss may be reformed at all times.’

In the end, of course, the difference between the two branches of the judicial functions of the Chancery became very distinctly marked, and was recognised by Statute. The case of Hals and others v. Hyncley, however, seems to be a curious monument of a time when the Chancery was not very clearly distinguished from the Council, and when lawyers had not arrived at any satisfactory distinction between a Court of Conscience and a Court of Common Law in Chancery.

43.

THE ORIGIN OF USES AND TRUSTS1

By James Barr Ames2

I

USES

IN his well-known essay, “Early English Equity,”3 Mr. Holmes agrees with Mr. Adams,4 that the most important contribution of the chancery has been its procedure. But he controverts “the error that its substantive law is merely the product of that procedure,” and maintains that “the chancery, in its first establishment at least, did not appear as embodying the superior ethical standards of a comparatively modern state of society correcting the defects of a more archaic system.” In support of these views he brings forward as his chief evidence feoffments to uses. He gives a novel and interesting account of the origin of uses, which seems to him to make it plain that “the doctrine of uses is as little the creation of the subpœna, or of decrees requiring personal obedience, as it is an improvement invented in a relatively high state of civilization which the common law was too archaic to deal with.”

The acceptance of these conclusions would be difficult for any one who has studied his equity under the guidance of Professor Langdell. Moreover, time has strengthened the conviction of the present writer that the principle “Equity acts upon the person” is, and always has been, the key to the mastery of equity. The difference between the judgment at law and the decree in equity goes to the root of the matter. The law regards chiefly the right of the plaintiff, and gives judgment that he recover the land, debt, or damages because they are his.1 Equity lays the stress upon the duty of the defendant, and decrees that he do or refrain from doing a certain thing because he ought to act or forbear. It is because of this emphasis upon the defendant’s duty that equity is so much more ethical than law. The difference between the two in this respect appears even in cases of concurrent jurisdiction. The moral standard of the man who commits no breach of contract or tort, or, having committed the one or the other, does his best to restore the status quo, is obviously higher than that of the man who breaks his contract or commits a tort and then refuses to do more than make pecuniary compensation for his wrong. It is this higher standard that equity enforces, when the legal remedy of pecuniary compensation would be inadequate, by commanding the defendant to refrain from the commission of a tort or breach of contract, or by compelling him, after the commission of the one or the other, by means of a mandatory injunction, or a decree for specific performance, so called, to make specific reparation for his wrong.

The ethical character of equitable relief is, of course, most pronounced in cases in which equity gives not merely a better remedy than the law gives, but the only remedy. Instances of the exclusive jurisdiction of equity are found among the earliest bills in chancery. For example, bills for the recovery of property got from the plaintiff by the fraud of the defendant;1 bills for the return of the consideration for a promise which the defendant refuses to perform;2 bills for reimbursement for expenses incurred by the plaintiff in reliance upon the defendant’s promise, afterwards broken;3 bills by the bailor for the recovery of a chattel from a defendant in possession of it after the death of the bailee.4

In most of these cases, it will be seen, the plaintiff is seeking restitution from the defendant, who is trying to enrich himself unconscionably at the expense of the plaintiff. Certainly in these instances of early English equity, chancery was giving effect to an enlightened sense of justice, and in so doing, was supplying the defects of the more archaic system of the common law. Nor, although the decrees in these cases are not recorded, can there be any doubt that the equitable relief was given in early times, as in later times, by commanding the obedience of the defendant.5

Is it possible that what is true of the early equity cases just considered is not also true of the equitable jurisdiction of uses? Let us examine the arguments to the contrary brought forward in the essay upon Early English Equity. Those arguments may be summarized as follows. The feoffee to uses corresponds, point by point, to the Salman or Treuhand of the early German law. The natural inference that the English feoffee to uses is the German fiduciary transplanted is confirmed by the facts that the continental executor was the Salman or Treuhand modified by the influence of the Roman law, and that there is no doubt of the identity of the continental executor and the English executor of Glanville’s time. Although the cestui que use did not have the benefit of the common law possessory actions, he could, if the feoffor, take a covenant from the feoffee, and might, if not the feoffor, have the assistance of the ecclesiastical court. So that for a considerable time both feoffors and other cestuis que use were well enough protected. But the ecclesiastical court was not able to deal with uses in the fulness of their later development, and the chancellors carried out as secular judges the principles which their predecessors had striven to enforce in the spiritual courts.

It may be conceded that the feoffee to uses, down to the beginning of the fifteenth century, was the German Salman or Treuhand under another name. It is common learning, too, that bequests of personalty were enforced for centuries by suits against the executors in the ecclesiastical courts. It is possible, although no instance has been found, that devisees of land, devisable by custom in cities and boroughs, at one time proceeded against the executor in the spiritual court.1 If this practice ever obtained, it disappeared with the reign of Edward I, the devisee recovering the land devised by a real action in the common law court of the city or borough. That the ecclesiastical court ever gave relief against the feoffee to uses is to the last degree improbable. The suggestion to the contrary2 is wholly without support in the authorities.3 Nor has any case been found in which the feoffor obtained relief against the feoffee to uses on the latter’s covenant to perform the use. Such a covenant, it is true, is mentioned in one or two charters of feoffment, but such instances are so rare that the remedy by covenant may fairly be said to have counted for nothing in the development of the doctrine of uses. If, indeed, a feoffment to uses was subject to a condition that the land should revest in the feoffor if the feoffee failed to perform the trust, the feoffor or his heir, upon the breach of this condition subsequent, might enter, or bring an action at common law for the recovery of the land. Only the feoffor or his heir could take advantage of the breach of the condition,1 and the enforcement of the condition was not the enforcement of the use, but of a forfeiture for its non-performance. Moreover, such conditions seem not to have been common in feoffments to uses, the feoffors trusting rather to the fidelity of the feoffees. We find in the books many references to uses of lands, from the latter part of the twelfth to the beginning of the fifteenth century, but no intimation of any right of the intended beneficiary to proceed in court against the feoffee.2 But the evidence against such a right is not merely negative. In 1402 a petition to Parliament by the Commons prays for relief against disloyal feoffees to uses because “in such cases there is no remedy unless one be provided by Parliament.”3 The petition was referred to the King’s Council, but what further action was taken upon it we do not know. But from about this time bills in equity become frequent.4 It is a reasonable inference that equity gave relief to cestuis que use as early as the reign of Henry V (1413-1422), although there seems to be no record of any decree in favor of a cestui que use before 1446.1 The first decree for a cestui que use, whenever it was given, was the birth of the equitable use in land. Before that first decree there was and could be no doctrine of uses. One might as well talk of the doctrine of gratuitous parol promises in our law of today. The feoffee to uses, so long as his obligation was merely honorary, may properly enough be identified with the German Salman or Treuhand. But the transformation of the honorary obligation of the feoffee into a legal obligation was a purely English development.2

There is no reason to doubt that this development was brought about by the same considerations which moved the chancellor to give relief in the other instances of early equity jurisdiction. The spectacle of feoffees retaining for themselves land which they had received upon the faith of their dealing with it for the benefit of others was too repugnant to the sense of justice of the community to be endured. The common law could give no remedy, for by its principles the feoffee was the absolute owner of the land. A statute might have vested, as the Statute of Uses a century later did vest, the legal title in the cestui que use. But in the absence of a statute the only remedy for the injustice of disloyal feoffees to uses was to compel them to convey the title to the cestui que use or hold it for his benefit. Accordingly the right of the cestui que trust was worked out by enforcing the doctrine of personal obedience.1 It is significant that in the oldest and second oldest abridgments there is no title of “Uses” or “Feffements al uses.” In Statham one case of a use is under the title “Conscience” and the others under “Subpena.” In Fitzherbert all the cases are under the title “Subpena.”2

It must have been all the easier for the chancellor to allow the subpœna against the feoffee to uses because the common law gave a remedy against a fiduciary who had received chattels or money to be delivered to a third person, or, as it was often expressed, to the use3 of a third person, or to be redelivered to the person from whom he had received the chattels or the money. In the case of chattels the bailor could, of course, maintain detinue against a bailee who broke his agreement to redeliver. But the same action was allowed in favor of a third person when the bailment was for his benefit.4 So in the case of money the fiduciary was not only liable in account to him who entrusted him with the money, but also to the third person if he received it for the benefit of that person.5

As the chancellor, in giving effect to uses declared upon a feoffment, followed the analogy of the common law bailment of chattels, or the delivery of money upon the common law trust, so, in enforcing the use growing out of a bargain and sale, he followed another analogy of the common law, that of the sale of a chattel. The purchaser of a chattel, who had paid or become indebted for the purchase money, had an action of detinue against the seller. Similarly the buyer of land who had paid or become a debtor for the price of the land, was given the right of a cestui que use. But the use by bargain and sale was not enforced for about a century after the establishment of the use upon a feoffment. In 1506 Rede, J., said: “For the sake of argument I will agree that if one who is seised to his own use sells the land, he shall be said to be a feoffee to the use of the buyer.”1 But Tremaile, J., in the same case dissented vigorously, saying: “I will not agree to what has been said, that, if I sell my land, I straightway upon the bargain and money taken shall be said to be a feoffee to the use of the buyer; for I have never seen that an estate of inheritance may pass from the one seised of it except by due formality of law as by livery or fine or recovery; by a bare bargain I have never seen an inheritance pass.” Just how early in the reign of Henry VIII the opinion of Rede, J., prevailed is not clear, but certainly before the Statute of Uses.2 Equity could not continue to refuse relief to the buyer of land against a seller who, having the purchase money in his pocket, refused to convey, when under similar circumstances the buyer of a chattel was allowed to sue at law. The principle upon which equity proceeded is well expressed in “A Little Treatise concerning Writs of Subpœna,”3 written shortly after 1523: “There is a maxim in the law that a rent, a common, annuity and such other things as lie not in manual occupation, may not have commencement, nor be granted to none other without writing. And thereupon it followeth, that if a man for a certain sum of money sell another forty pounds of rent yearly, to be percepted of his lands in D, &c., and the buyer, thinking that the bargain is sufficient, asketh none other, and after he demandeth the rent, and it is denied him, in this case he hath no remedy at the common law for lack of a deed; and thereupon inasmuch as he that sold the rent hath quid pro quo, the buyer shall be helped by a subpœna. But if that grant had been made by his mere motion without any recompense, then he to whom the rent was granted should neither have had remedy by the common law nor by subpœna.”

The reader will have noted the distinction taken in this quotation between the oral grant for value and the parol gratuitous grant. In the latter case there was neither glaring injustice nor a common law analogy in the treatment of a similar grant of chattels or money to warrant the intervention of equity. Further evidence that equity never enforced gratuitous parol undertakings is to be found in this remark of counsel in 1533: “By Hales, a man cannot change [i. e. create] a use by a covenant1 which is executed before, as to Covenant to bee seised to the use of W. S. because that W. S. is his cousin; or because that W. S. before gave to him twenty pound, except the twenty pound was given to have the same land. But otherwise of a consideration present or future, for the same purpose, as for one hundred pound paid for the land tempore conventionis, or to be paid at a future day, or for to marry his daughter, or the like.”2 It is evident from these authorities that equity in refusing relief upon gratuitous parol undertakings, or upon promises given only upon a past consideration, was simply following the common law, which regarded all such undertakings or promises as of no legal significance whether relating to land, chattels, or money.

But grants of chattels and money, although gratuitous, were operative at common law, if in the form of instruments under seal. The donee in a deed of gift of chattels could maintain detinue against the donor who withheld possession of them. The grant or promise by deed of a definite amount of money created a legal debt, enforceable originally by an action of debt, and in later times by an action of covenant also.1 If, as we have seen, equity enforced the use upon a feoffment or sale of land after the analogy of the bailment of a chattel (or trust of money), and the sale of a chattel, why, it may be asked, did not the chancellor create a use in favor of the donee of land by deed of gift after the analogy of the deed of gift of chattels or money? Chancery, it is conceived, might, without any departure from principle, have taken this step and treated every donee of land by deed of grant as a cestui que use. But to one who keeps in mind the jealousy with which the common law judges regarded the growing jurisdiction of the chancellor, it is not surprising that for the most part equity declined to enforce gratuitous instruments under seal. There was, however, one class of gratuitous grants of land by deed in which equity created a use in favor of the donee; namely, grants or covenants to stand seised to the use of a blood relation, or of one connected by marriage.2 These uses are commonly said to arise in consideration of blood or marriage. But consideration in such cases is not used in its normal sense of the equivalent for a promise, but in the general sense of reason or inducement for the agreement to stand seised. The exception in favor of those related by blood or marriage had in truth nothing to do with the doctrine of consideration and was established in the interest of the great English families. The aristocratic nature of this doctrine is disclosed in the following extract from Bacon’s Reading on the Statute of Uses:3 “I would have one case showed by men learned in the law where there is a deed and yet there needs a consideration . . . and therefore in 8 Reginae [Sharrington v. Strotton, Plowd. 298] it is solemnly argued that a deed should raise an use without any other consideration . . . And yet they say that an use is a nimble and light thing; and now contrariwise, it seemeth to be weightier than anything else; for you cannot weigh it up to raise it, neither by deed nor deed enrolled, without the weight of a consideration. But you shall never find a reason of this to the world’s end in the law, but it is a reason of Chancery and it is this: that no court of conscience will enforce donum gratuitum, tho’ the interest appear never so clearly where it is not executed or sufficiently passed by law; but if money had been paid, and so a person damnified, or that it was for the establishment of his house, then it is a good matter in the Chancery.”

II

TRUSTS1

“The strange doctrine of Tyrrel’s Case.”2 “The object of the legislature appears to have been the annihilation of the common law use. The courts, by a strained construction of the statute, preserved its virtual existence.”3 “Perhaps, however, there is not another instance in the books in which the intention of an act of Parliament has been so little attended to.”4 “This doctrine must have surprised every one who was not sufficiently learned to have lost his common sense.”5 Such are a few of the many criticisms passed upon the common law judges who decided, in 1557, that a use upon a use was void, and therefore not executed by the Statute of Uses. It has, indeed, come to be common learning that this decision in Tyrrel’s Case was due to “the absurd narrowness of the courts of law”; that the liberality of the chancellor at once corrected the error of the judges by supporting the second use as a trust; and “by this means a statute made upon great consideration, introduced in a solemn and pompous manner, has had no other effect than to add at most three words to a conveyance.”1

This common opinion finds, nevertheless, no support in the old books. On the contrary, they show that the doctrine of Tyrrel’s Case was older than the Statute of Uses,—presumably, therefore, a chancery doctrine,—and that the statute so far accomplished its purpose, that for a century there was no such thing as the separate existence in any form of the equitable use in land.

The first of these propositions is proved by a case of the year 1532, four years before the Statute of Uses, in which it was agreed by the Court of Common Bench that “where a rent is reserved, there, though a use be expressed to the use of the donor or lessor, yet this is a consideration that the donee or lessee shall have it for his own use; and the same law where a man sells his land for £20 by indenture, and executes an estate to his own use; this is a void limitation of the use; for the law, by the consideration of money, makes the land to be in the vendee.”2 Neither here nor in Benloe’s report of Tyrrel’s Case3 is the reason for the invalidity of the second use fully stated. Nor does Dyer’s reason, “because an use cannot be ingendered of an use,”4 enlighten the reader. But in Anderson’s report we are told that “the bargain for money implies thereby a use, and the limitation of the other use is merely contrary.”5 And in another case in the same volume the explanation is even more explicit: “The use is utterly void because by the sale for money the use appears; and to limit another (although the second use appear by deed) is merely repugnant to the first use, and they cannot stand together.”6 The second use being then a nullity, both before and after the Statute of Uses, that statute could not execute it, and the common law judges are not justly open to criticism for so deciding.

Nor is there any evidence that the second use received any recognition in chancery before the time of Charles I. Neither Bacon nor Coke intimates in his writings that a use upon a use might be upheld as a trust. Nor is there any such suggestion in the cases which assert the doctrine of Tyrrel’s Case.1 There is, on the other hand, positive evidence to the contrary. Thus, in Crompton, Courts:2 “A man for £40 bargains land to a stranger, and the intent was that it should be to the use of the bargainor, and he in this court [chancery] exhibits his bill here, and he cannot be aided here against the feoffment [bargain and sale?] which has a consideration in itself, as Harper, Justice, vouched the case.” Harper was judge from 1567 to 1577.

As the modern passive trust, growing out of the use upon a use, is in substance the same thing as the ancient use, it would seem to be forfeitable under the Stat. 33 Henry VIII, c. 20, § 2, by which “uses” are forfeited for treason. Lord Hale was of this opinion, which is followed by Mr. Lewin and other writers. But it was agreed by the judges about the year 1595 that no use could be forfeited at that day except the use of a chattel or lease, “for all uses of freehold are, by Stat. 27 Henry VIII, executed in possession, so no use to be forfeited.”1 There is also a dictum of the Court of Exchequer of the year 1618, based upon a decision five years before, that a trust of a freehold was not forfeitable under the Stat. 33 Henry VIII. Lord Hale and Mr. Lewin find great difficulty in understanding these opinions.2 If, however, the modern passive trust was not known at the time of these opinions, the difficulty disappears; for the freehold trust referred to must then have been a special or active trust, which was always distinct from a use,3 and therefore neither executed as such by the Statute of Uses nor forfeitable by Stat. 33 Henry VIII.

In Finch’s Case,4 in chancery, it was resolved, in 1600, by the two Chief Justices, Chief Baron, and divers other justices, that “if a man make a conveyance, and expresse an use, the party himself or his heirs shall not be received to averre a secret trust, other than the expresse limitation of the use, unless such trust or confidence doe appear in writing, or otherwise declared by some apparent matter.” But the trust here referred to was probably the special or active trust, and not the passive trust. The probability becomes nearly a certainty in the light of the remark of Walter, arguendo, twenty years later, in Reynell v. Peacock.5 “A bargain and sale and demise may be upon a secret trust, but not upon a use.” And the case of Holloway v. Pollard6 is almost a demonstration that the modern passive trust was not established in 1605. This was a case in chancery before Lord Chancellor Ellesmere, and the defendant failed because his claim was nothing but a use upon a use.

Mr. Spence and Mr. Digby cite the following remark of Coke in Foorde v. Hoskins,7 as showing that chancery had taken jurisdiction of the use upon a use as early as 1615: “If cestuy que use desires the feoffees to make an estate over and they so to do refuse, for this refusal an action on the case lieth not, because for this he hath his proper remedy by a subpœna in Chancery.” “It seems,” says Mr. Digby, “that this could only apply to a use upon a use.”1 But if the cestuy que use here referred to were the second cestuy, he would not proceed against the feoffees, for the Statute of Uses would have already transferred the legal estate from them to the first cestuy. It would seem that Coke was merely referring to the old and familiar relation of cestuy que use and feoffees to use as an analogy for the case before him, which was an action on the case by a copy-holder against the lord for not admitting him.

The earliest reported instance in which a use upon a use was supported as a trust seems to have been Sambach v. Dalton, in 1634, thus briefly reported in Tothill:2 “Because one use cannot be raised out of another, yet ordered, and the defendant ordered to passe according to the intent.” The conveyance in this case was probably gratuitious. For in the “Compleat Attorney,” published in 1666, this distinction is taken: “If I, without any consideration, bargain and sell my land by indenture, to one and his heirs, to the use of another and his heirs (which is a use upon a use), it seems the court will order this. But if it was in consideration of money by him paid, here (it seems) the express use is void, both in law and equity.”3 On the next page of this same book the facts of Tyrrel’s Case are summarized with the addition: “Nor is there, as it seems, any relief for her [the second cestuy que use] in this court in a way of equity, because of the consideration paid; but if there was no consideration, on the contrary, Tothill, 188.” As late as 1668, in Ash v. Gallen,4 a chancery case, it was thought to be a debatable question whether on a bargain and sale for money to A to the use of B, a trust would arise for B. Even in the eighteenth century, nearly two hundred years, that is, after the Statute of Uses, Chief Baron Gilbert states the general rule that a bargain and sale to A to the use of B gives B a chancery trust with this qualification: “Quære tamen, if the consideration moves from A.”1

In the light of the preceding authorities, Lord Hardwicke’s oft quoted remark that the Statute of Uses had no other effect than to add three words to a conveyance must be admitted to be misleading. Lord Hardwicke himself, some thirty years afterwards, in Buckinghamshire v. Drury,2 put the matter much more justly: “As property stood at the time of the statute, personal estate was of little or trifling value; copyholds had hardly then acquired their full strength, trusts of estates in land did not arise till many years after (I wonder how they ever happened to do so).” The modern passive trust seems to have arisen for substantially the same reasons which gave rise to the ancient use. The spectacle of one retaining for himself a legal title, which he had received on the faith that he would hold it for the benefit of another, was so shocking to the sense of natural justice that the chancellor at length compelled the faithless legal owner to perform his agreement.

44.

THE DEVELOPMENT OF EQUITY PLEADING FROM CANON LAW PROCEDURE1

By Christopher Columbus Langdell2

PLEADING IN THE ECCLESIASTICAL COURTS

THE system of pleading which has prevailed in courts of equity was derived partly from the common-law system, and partly from that of the civil law, as administered in the English ecclesiastical courts; though much more from the latter than from the former.

2. It will be assumed that the reader is already acquainted with the elementary principles of common-law pleading; and therefore that system will be referred to, as occasion arises, without preliminary explanation. But one who is unacquainted with the elements of equity pleading must be supposed, a fortiori, to be ignorant of civil-law pleading. It is necessary, therefore, to begin with an exposition of the leading principles of the latter system, unless all reference to it is to be dispensed with. The latter course would undoubtedly be practicable; but it is hoped the following pages will convince the reader that it would not be desirable.

3. The procedure of the ecclesiastical courts is called the civil-law system, not because it ever prevailed among the ancient Romans, but because it has grown out of the latest Roman procedure, and because it prevails generally in those countries and jurisdictions which derive their procedure from the Romans. In what points it is like the procedure which prevailed in the time of Justinian, and in what points it differs from that procedure, cannot be stated in detail, for we have very little direct information in regard to the latter. We are still more in the dark, as to the long period between the reign of Justinian and the revival of learning in the twelfth century; but from the latter epoch we have abundant information in the writings of civilians and canonists, and in the legislation contained in the “Corpus Juris Canonici.” The earliest of these writings exhibit the system in full operation, substantially as it has remained ever since; but they seldom give any information as to its previous history. As thus exhibited, the system is characterized by two striking features, of which there is no trace in the Roman procedure, and which clearly originated after the time of Justinian. They relate to the mode of proof; and they consist, first, in requiring each party to a suit to submit to an examination under oath by his adversary, his answers being evidence against him as admissions or confessions, but not in his favor; secondly, in requiring all the witnesses in a cause to be examined before the trial, and in secret, their testimony being reduced to writing by the examiner in the form of depositions, and kept secret until all the witnesses have been examined on both sides.

4. The introduction of these changes had put a new face upon the procedure generally, and in particular upon the system of pleading. The changes in the latter, however, consisted in the addition of new requirements, all the principles of the previous system still remaining in full operation. What those principles were may be ascertained with sufficient certainty, notwithstanding the want of direct information before referred to; for we know from the “Corpus Juris Civilis,” and from the remains of ante-Justinian law, the nature of the system which existed in the times of the classical jurists, and which was in form abolished ad 294;1 and from that, and the modern system, it is easy to construct a skeleton of that which intervened. Indeed, it differed but slightly in principle from that which preceded it, known as the formulary system. Under the latter, the names of the pleadings were as follows: intentio, exceptio, replicatio, duplicatio, triplicatio, quadruplicatio, &c. After the abolition of the formulary system, the term “intentio” gave way to that of “libellus;” but the other names remained so far as any specific names were made use of.

5. The libel contained a very brief statement of the plaintiff’s case, its object being not to state the facts which the plaintiff would prove at the trial, but to identify the claim, to indicate its legal nature, and to specify the relief which the plaintiff sought; and thus to enable the defendant to decide whether he would resist the claim or submit to it, and to assist the judge in framing his sentence.1 The exception stated the legal nature of the defence in the same brief manner that the libel stated the plaintiff’s case, and it was always consistent with the libel, i. e., it was always what a common-law lawyer would call a plea in confession and avoidance. The replication bore the same relation to the exception which the exception bore to the libel, i. e., it set up matter which, if true, would destroy the exception without denying its truth. All the subsequent pleadings were of the same character, each bearing the same relation to the one immediately preceding which the latter bore to the one next preceding. When the party whose turn it was to plead could allege no matter which would destroy the last pleading without denying its truth, the pleadings terminated.

6. There was no pleading corresponding to a demurrer with us. Instead of that, every pleading had to be submitted to the judge and receive his approval before it could be pleaded. If it was not objected to by the adverse party, it would generally be admitted as of course. If it was objected to, the judge would hear an argument, and would then make an order admitting or rejecting the pleading, as the case might be; or, instead of rejecting it, he might order it to be amended. An order admitting or rejecting a pleading produced no further effect upon the action than the terms of the order imported. In no case did it terminate the action, like a judgment on a demurrer with us. If a pleading was rejected, it was simply out of the case, and there was no technical objection to the party’s pleading another plea; and, if he did not, the only consequence was that the pleadings stopped where they were, and the cause went to trial with the same effect as if no attempt had been made to plead the unsuccessful plea.

7. Nor was there any pleading corresponding to our traverse. The necessity of such a plea with us arises from the technical rule that an affirmative pleading which is not denied is admitted; but no such rule ever prevailed in the civil-law system.1 The object of the rule with us is to reduce the controversy to a single issue, to be tried by a jury; but the civil law aimed at nothing of that kind. It is true that, when a libel was admitted by the judge, the defendant was required to state orally in court whether he admitted or denied its truth (25); and, if he denied it, he was said to contest the suit. But this bore no analogy to our pleas by way of traverse, nor was it a pleading at all. The ceremony as well as the name (litis contestatio), was derived from an older and obsolete system of procedure. The defendant had an unqualified right to put the plaintiff to his proof in all cases, and a denial of the libel meant no more than that; hence the defendant always denied the truth of the libel, unless he decided to submit to the plaintiff’s demand. Indeed, he must do so; for if, when called upon in court, he admitted the truth of the libel, sentence was pronounced immediately in the plaintiff’s favor. Nor would the failure of the defendant to answer at all, when called upon, amount to an admission. Nothing but an express admission would have that effect. The only effect of the defendant’s failing or refusing to answer was to embarrass the plaintiff in the prosecution of his suit, the technical rules of procedure requiring a litis contestatio before any further step could be taken. The plaintiff’s remedy, therefore, was to call upon the court to compel the defendant to answer.1 After the defendant had contested the suit (suit in that connection meaning simply the plaintiff’s case stated in the libel), it was in order for the defendant to plead an exception, if he had one. But, as the libel stated the plaintiff’s case in very brief and general terms, most defences would amount to a denial of the libel, and so would not be pleaded. In the great majority of cases, therefore, the libel would be the only pleading in the case, and the next step after the litis contestatio would be the trial. If the defendant pleaded an exception, the plaintiff was considered as denying it as of course, there being nothing corresponding to the litis contestatio, as to any pleading after the libel.2 The exception, therefore, was immediately followed by the replication, and so on, until the pleadings were ended.

8. The next step was the trial. This took place before the judge alone, and there seems to be no doubt that the witnesses were called, and examined and cross-examined orally, as at a jury trial with us. There were or might be as many stages in the trial as there were pleadings. The first stage consisted of the trial of the plaintiff’s case as stated in the libel. For this purpose the plaintiff would first put in his evidence in support of his case, and the defendant would then put in his evidence, if he had any, in contradiction. The evidence bearing upon the libel being exhausted, the next stage was the trial of the exception; which proceeded in the same manner as the trial of the libel, except that the defendant began, he having the burden of proof as to his exception. In this manner the trial proceeded, until all the evidence bearing upon each of the pleas in succession was exhausted, each party being required in turn to prove his own pleading, if he would avail himself of it. When the evidence was all in, the advocates were heard, and the cause was submitted to the judge for his decision.

9. The judge examined the evidence in the order in which it had been put in. If he decided that the libel had not been proved, that was an end of the cause, the remainder of the pleadings and the evidence bearing upon them going for nothing. If he decided that the libel had been proved, he then proceeded to examine the evidence upon the exception. If he decided that that had not been proved, there was again an end of the cause, and sentence was pronounced in the plaintiff’s favor, just as if there had been no pleading subsequent to the libel. If the exception was found to be proved, the judge next proceeded to the replication, and so on to the end. Whenever any plea in the series was found not to be proved, that decided the cause against the party who had thus failed in his proof. But finding a plea to be proved was never decisive of the cause, unless the plea was the last of the series. Whoever succeeded on the last plea, all the previous pleas having been proved, of course won the cause.1

10. In a trial at common law, on the contrary, there is properly but one stage, the contest from beginning to end being upon the issue joined between the parties; and the pleadings in the cause are of no importance upon the trial, except as leading up to and explaining the issue.1 The verdict of the jury also simply finds the issue in favor of the plaintiff or the defendant, and this finding decides the cause, and judgment is entered accordingly. Yet the judgment may have no apparent connection with the issue, for the judgment is founded upon the declaration, and is always that the plaintiff do or do not recover the claim therein stated; while issue may be joined upon some wholly different question, e. g., whether the defendant was a married woman when she entered into the contract sued upon. While the contest, therefore, is always upon the issue joined, the object of the contest is always the case stated in the declaration; and the reason why judgment may be entered in the plaintiff’s favor upon a claim which has neither been the subject of proof nor of finding by the jury is, that the claim has been admitted by the defendant’s plea; for the defendant must either put the declaration in issue by a traverse, or he must admit it by a plea in confession and avoidance, and it is only when the defendant pleads in confession and avoidance that issue can be joined upon any matter not stated in the declaration.

11. In the civil law also the object of the contest is always the same, namely, the case stated in the libel, and the sentence is always founded upon the libel, being either that the plaintiff recover his claim, or that the libel be dismissed; and yet the decision of the cause may turn upon a wholly different question, namely, whether some subsequent pleading has been proved or not. But whatever the decision may turn upon, the plaintiff can never recover without proving his libel; and, if sentence is pronounced in the plaintiff’s favor, it is based upon the proof of the libel, and not at all upon the proof which has won the cause, if that relates to some subsequent plea. The reason why the decision may turn upon some plea subsequent to the libel, while the sentence is always based upon the libel and the proof in support of it, is, that the sole object of all the defendant’s pleas is to defeat the libel on grounds independent of its truth, while the sole object of all the plaintiff’s pleas subsequent to the libel is to prevent the defendant’s accomplishing his object. Hence, when the decision turns upon any plea subsequent to the libel, and is in favor of the plaintiff, it involves two points,—first, that the libel is true; secondly, that it is not defeated upon any ground independent of its truth. So the reason why a verdict at common law, upon an issue joined upon a plea subsequent to the declaration, decides the cause, is, that it decides in effect that the defendant has or has not defeated the declaration upon grounds consistent with its truth.

12. Finally, it will be found that all the essential differences between a trial at common law and by the civil law, arise from this; namely, that by the common law a cause goes to trial with everything alleged in the pleadings on either side admitted,1 except the single point upon which issue is joined, while by the civil law it goes to trial with nothing admitted.

13. It has been assumed hitherto that the defendant pleaded his exception, if at all, after the litis contestatio. But sometimes it was pleaded before the litis contestatio took place, and as a general rule it had to be so pleaded when it was dilatory, i. e. when it did not go to the merits.2 In that case, the exception was followed immediately by the other pleadings in their order as before stated; and, when the pleadings terminated, the cause was ready for a trial of the exception and the subsequent pleadings, but not for a trial of the libel, there having been no litis contestatio. The trial, therefore, began with the exception, and proceeded in the manner before stated. If the decision was in the defendant’s favor, the libel was dismissed, and the suit was ended; but if it was in the plaintiff’s favor, it simply rid the plaintiff of the exception, just as if the exception had been rejected by the judge as being bad upon its face. The suit then proceeded from the point where it stopped, i. e., the litis contestatio took place; and if the first exception was merely dilatory, and the defendant had another exception going to the merits, he might now plead that, and everything would then proceed as if there had been no previous exception. If the defendant had no further exception to plead, the cause would then go to trial upon the libel alone.1

14. When the important changes referred to in § 3 were introduced into the civil-law procedure, everything might still have proceeded (and it is reasonable to suppose that at first everything did proceed) as before until the pleadings terminated; but at that point there was a necessary divergence, for, instead of the cause being ready for trial as before, all the testimony must now first be taken in writing. But that was not all, for the witnesses were to be examined in secret; i. e., no one could be present but the witness under examination, the judge, and the notary, the latter reducing the answers of the witness to writing. Each of the parties was also liable to be examined at the election of his adversary; and though the principle of secrecy did not apply here, yet parties (like witnesses) could only be examined by the judge,2 and neither the adverse party nor his representatives had any right to be present.

15. How then were these examinations to be conducted? The method which would most naturally occur to us would be for the counsel for each party to prepare interrogatories in writing for each witness or party to answer. But this method was not adopted, and it is believed that, for the purposes of such an examination, it would have been inferior to the method actually adopted, which was as follows: When the pleadings were completed, each of the parties, if he wished to examine his adversary, prepared a detailed statement in writing of the facts in support of his own pleadings, so far as he supposed them to be within the knowledge of his adversary. This statement was divided into paragraphs, which were numbered, and each paragraph was called a position (positio), and hence the document as a whole was called positions. It was brought into court and submitted to the judge, and by him admitted, or rejected, or ordered to be amended, precisely as in case of a pleading; though the questions which would arise upon it would be very different, being similar to those which would arise upon questions put to a witness. The positions having been admitted by the judge, the adverse party was required to appear before him, or his assistant, and be examined. The judge used the positions as the basis of his examination, framing oral questions upon them, and requiring the examinee to answer as to every point stated in the positions, but not requiring him to go any further, or into any more detail than the positions did. The positions were answered separately, as if they had been a series of interrogatories. The answers were reduced to writing, and when completed, sworn to, and filed, a copy was furnished to the party who had exhibited the positions; and who was thus enabled to learn how much of his case he must prove by witnesses, for he had no occasion to examine witnesses as to any thing admitted by his adversary, such admissions being conclusive.

16. Accordingly, the next step was for each party to prepare a statement of the facts which he expected to prove by witnesses. This was drawn in the same manner as the positions, but it was distinguished by a different name; each paragraph being called an article, and the document as a whole being called articles. The articles were brought into court and admitted or rejected or amended in the same manner as positions.1 Having been admitted, the judge next granted to the parties a certain length of time in which to examine their witnesses, and which was called a term probatory. The witnesses were examined upon the articles in the same manner as the parties upon positions, except that it was strictly secret, as before stated; but there was this difference between parties and witnesses that, the testimony of the latter being evidence against the adverse party, he was entitled to cross-examine them; and though he was obliged to do this in ignorance of what they had testified to on their examination in chief, yet he was perfectly informed as to what each witness might have testified to, for he was furnished with a copy of the articles, and was informed upon which of them each witness was to be examined. The cross-examination was by means of written interrogatories delivered to the judge; and the adverse party was not furnished with a copy of these, as it would enable him to tamper with the witnesses, and instruct them how to answer. The document containing a witness’s answers was called a deposition; the witness being said to depose, and being called a deponent; terms which were never applied with reference to the answers of a party, he not being a witness.

17. Each party was bound at his peril to take all his testimony before the term probatory expired, unless he could get it enlarged by applying to the judge; for, at the end of the term probatory, the testimony was published, and, after that, no more testimony could be taken, the object of secrecy being to prevent the perjury and subornation of perjury, which it was thought would be committed if parties were permitted to examine witnesses at their leisure with a full knowledge of what had been already testified to.

18. It has been stated that both parties and witnesses were examined by a judge; but this ceased to be the case practically at a very early period. Instead of that, parties were permitted to prepare their own answers to the positions with the aid of their own counsel; but they were still in legal contemplation taken by the judge, and were sworn to before him when completed. If they were not satisfactory to the adverse party, he could object to them; and if he made good his objections, the judge would compel further answers. As to witnesses, their examination came to be conducted by the notary (i. e. the judge’s clerk), the judge simply swearing them to their depositions.

19. When the testimony was published, it was competent for either party to apply to the judge to have any portion of it suppressed as incompetent or illegal; but it must be for reasons which had not come to the party’s knowledge till after publication, for such objections must be raised at the earliest opportunity, in order that they might be remedied, if possible. As examples of objections which could be raised after publication, if a witness in testifying went beyond the articles, the adverse party could have so much of his testimony suppressed as being a surprise to him. Such testimony was said to be extra-articulate. So if a witness on cross-examination went beyond the interrogatories, the party cross-examining him could have the testimony suppressed, he not being bound to receive answers from a hostile witness which he had not called for. Such testimony was said to be extra-interrogate.

20. The testimony being completed and published, and all objections to it disposed of, the cause was ready for a hearing or argument, for such it was now more properly than a trial.

21. There being no difference in substance between positions and articles, it was an obvious and easy step to combine them in one document, each paragraph being made both a position and an article. This was accordingly done, at least in some jurisdictions; and the course then was first to require the adverse party to answer all the positions and articles to the extent of his knowledge, and afterwards to prove by witnesses, if possible, whatever the adverse party denied or refused to admit. In this way all distinction between positions and articles came in time to be lost sight of in great measure. Another possible step, though less obvious and easy, was to combine the positions and articles with the pleadings proper. This also was done in certain jurisdictions; and in particular such has been the practice from time immemorial in the English ecclesiastical courts.1 The system of pleading which resulted from this combination will be described presently.

22. As to when, where, and by whom the change from oral to written evidence, and the changes connected with it and consequent upon it, were introduced, there appears to be little direct information. It seems pretty clear, however, that they were of recent introduction in the twelfth century, if, indeed, they were introduced before the thirteenth century; and that they originated with the canonists, having been first introduced into the spiritual courts.1 During the twelfth and thirteenth centuries, the canonists paid great attention to the subject of procedure, in that respect taking the lead of the civilians proper. They were in a much better position also to make their influence felt, as they had in the Pope and in the councils of the church a central authority which was acknowledged throughout western Europe; a consideration of decisive importance in reference to the subject of procedure, as it is necessarily founded upon positive law, and so is in its nature local. Upon the whole, there is little doubt that, during the period in question, the civil-law procedure was moulded into the shape that it has ever since retained, and that it was mainly done by the canonists.2 No apology, therefore, is required for resorting to spiritual, rather than secular, courts for a type of this procedure.

23. As to the English ecclesiastical courts, they were established by an ordinance1 of William the Conqueror, upon the model of the spiritual courts which had long existed on the continent of Europe. The ordinance expressly directed that the new courts should not be governed by the municipal law of England, but by the canon law (canones et episcopales leges); i. e., by the same law which governed all spiritual courts which recognized the authority of the Pope. Nothing was said expressly upon the subject of procedure; but it was assumed that the adoption of the canon law included its precedure; which was accordingly introduced in all its integrity, and has continued to be the procedure of those courts from that day to this. Down to the time of the Reformation, the only appeal from the highest of those courts was to the Pope,2 and by his Decretals he regulated their procedure in common with that of all other spiritual courts which acknowledged his authority. It is stated by competent authority that, as a matter of fact, the practice of the English courts was identical with that of the Pope’s consistory court at Rome.3 After the Reformation, everything proceeded in those courts as before, there being no interference from without (until since 1830), and the courts themselves not being disposed to make changes. Moreover, the judges and practitioners of those courts being all educated in their own system, and having no connection with the secular courts, their procedure has not been influenced perceptibly by the common law.

24. In directing attention, therefore, to this procedure, one can claim for it, in addition to the fact that it is the immediate source of equity procedure, all the interest and importance that belongs to the best type of civil and canon law procedure.4 To this, however, one qualification must be made; namely, that, from the limited nature of the ecclesiastical jurisdiction, it does not call into requisition all the resources of the civil-law procedure. Thus, by that system actions are either in personam or in rem; but, as the ecclesiastical courts have no jurisdiction over property, they do not entertain actions in rem. So also they have no power to interfere with the personal liberty of the subject or citizen; and hence the subjects of arrest and bail make no figure in their procedure. It is for these reasons that the procedure in admiralty seems at first sight to differ so materially from that of the ecclesiastical courts. But this furnishes no argument against resorting to the ecclesiastical procedure for our present purposes; for it is still true that the procedure in equity has been derived wholly from that source, so far as it is of civil-law origin.

25. It remains to describe the course of pleading in the ecclesiastical courts, as it actually takes place. The libel combines in itself the libel proper, and also the positions and articles founded upon it. The effect of this is, that the libel is neither brief and general, as it originally was, nor does it state the facts of the plaintiff’s case according to their legal effect, as at common law; but it goes to the other extreme, and sets forth the plaintiff’s evidence in the same detail with which it is to be proved; so that the defendant will obtain a perfect knowledge from the libel of everything that the plaintiff will be at liberty to prove in support of his case. Nor is this confined to what is to be proved by witnesses or by the defendant’s admissions; for, if any part of the plaintiff’s evidence consists of written instruments, the plaintiff states in a distinct paragraph whatever he will have to prove to make the instrument evidence, and annexes the instrument itself to the libel.1 When completed, the libel is brought into court, and is either admitted or rejected, as before explained. If it is bad in substance as a pleading,—that is, if it does not state any case in the plaintiff’s favor, admitting it all to be true,—of course it is absolutely rejected. On the other hand, if it states evidence which is inadmissible, or states admissible evidence improperly, there being still enough remaining to make out a case, it will be reformed. Being finally settled and admitted, the litis contestatio takes place,1 it seldom happening in practice that a dilatory exception is pleaded before the litis contestatio. Assuming that the defendant contests suit negatively, the usual practice is for the plaintiff to proceed immediately to the proof of his libel, before any pleading on the part of the defendant; and accordingly, upon the conclusion of the litis contestatio, the judge orders the defendant to be cited to answer the libel in the quality of positions, and assigns a term to the plaintiff for the proof of it in the quality of articles. The plaintiff, however, does not begin to examine witnesses, nor does his term probatory begin to run, until the defendant’s answers are brought in (15). These are called personal answers, to distinguish them from pleadings, which are always in the name of the party’s proctor. The personal answers being filed, and being found satisfactory, the plaintiff proceeds to examine witnesses in the manner before stated, upon such paragraphs of the libel (in the quality of articles) as have not been sufficiently admitted by the defendant. The defendant also cross-examines the plaintiff’s witnesses, if he wishes to do so, by means of interrogatories; but he can examine no witnesses of his own as yet, for he has brought in no articles.

26. When all the plaintiff’s witnesses have been examined and cross-examined, and before their testimony has been published, the defendant must plead. All pleadings subsequent to the libel are called simply allegations. The defendant must bring in an allegation of some kind if he wishes to examine any witnesses, and it will always consist of a statement of his evidence. What evidence it must contain will depend upon the nature of the defence. If the latter is negative, i. e., consists merely in denying the plaintiff’s case, the allegation will consist of positions and articles merely, setting forth such evidence as the defendant has in contradiction of the evidence stated in the libel. If the defence is affirmative, the allegation must contain an exception, and positions and articles to support it; i. e., it must set forth sufficient evidence to establish the affirmative defence, the defendant having the burden of proof as to that. If the defendant has evidence also in contradiction of the plaintiff’s case, he should set that forth; for he may avail himself of as many defences as he has, whether affirmative or negative, the common-law rule against duplicity having no place in the system.1

27. The defendant’s allegation (commonly called a responsive allegation) being brought in and admitted, the same proceedings take place for proving it as in case of the libel, including personal answers from the plaintiff.

28. These proceedings being concluded, the plaintiff prepares and brings in his second allegation. This may consist, first, merely of evidence in rebuttal of contradictory evidence on the part of the defendant; or, secondly, of evidence contradictory of the defendant’s affirmative defence; or, thirdly, of evidence to prove an affirmative replication on the part of the plaintiff; or, fourthly, it may contain two or all three of these elements. It cannot contain, without special leave, any evidence in support of the plaintiff’s original case; for that should have been set forth in the libel. And the same rule holds in regard to all the allegations or pleadings of each party after the first; i. e., he must set forth his evidence at the proper time, or lose the opportunity of doing so.1

29. The same proceedings take place for the proof of the plaintiff’s second allegation as upon the previous pleadings; and this process of bringing in an allegation and proving it, by each party alternately, is continued until the case and defence respectively are exhausted.

30. It is said to be in the discretion of the court how long it will permit the allegations to continue;2 but this cannot mean that the court will stop them before the parties have had an opportunity to develop fully their case and defence respectively.

31. As a matter of fact also, the allegations seldom extend beyond the third, i. e., the second on the part of the plaintiff.3 But this must not be taken as indicating that the plaintiff is entitled to the last allegation upon principle; for the defendant rather has that right. At least, if the plaintiff’s second allegation contains the matter of a replication in the Roman sense, the defendant is entitled to set up a duplication if he has one, and even to set forth evidence in denial of the replication; otherwise, the plaintiff would be permitted to recover, in case the decision turned upon the replication, without giving the defendant any opportunity to be heard upon the decisive question in the case. Accordingly, it was a rule of the Roman law that the defendant was entitled to the last plea.4 At common law either party is entitled to plead as long as he has anything to allege; but, as he cannot plead affirmatively without admitting the last pleading of his adversary to be true, there is no danger of abuse in that direction; while in the civil law either party may wish to prolong the pleadings for illegitimate purposes.

32. It is observable that, as the plaintiff alone is seeking relief, and as his relief must be founded upon the libel alone, the latter differs from all the subsequent pleadings in concluding with a prayer for the relief to which the plaintiff supposes himself entitled. This is called the conclusion of the libel, and the plaintiff is held to great strictness in framing it. As his proof cannot go beyond the allegations of evidence in the libel, so his relief cannot go beyond the conclusion. Any of the plaintiff’s evidence, therefore, which does not support both the allegations and the conclusion of the libel, will go for nothing, however important it may be in itself.1

33. It has been seen that, at common law, all the facts alleged by either party, and not expressly denied by the other, are admitted on the face of the pleadings, while in the civil law every fact alleged must be proved, if any use would be made of it. Conversely, however, in the civil law each party is relieved, in a mode unknown to the common law, from either alleging or proving any facts which have already been alleged by the other side. By the common law a party is never bound by the allegations in his own pleadings, i. e., they can never be used against him as admissions either in the same suit or in another suit;2 but by the civil law a party is held to admit the truth of every fact which he alleges, the rule being qui ponit fatetur; and this admission is conclusive. In other words, all the allegations of each party are to be taken as true at the election of his adversary.3 This rule originated with the introduction of positions and articles; and, as all evidence must be set forth in the pleadings before it can be proved, it is of extensive application. It makes it necessary, before alleging a fact, to consider carefully whether the controversy may take such a turn as to make it evidence against you.1

34. This difference in the two systems well illustrates the different theories upon which they are founded. The object of pleading at common law is not, as in the civil law, to give notice to the parties respectively and to the court of the facts intended to be proved, but to separate the law from the facts, and to narrow the latter down to a single issue, with a view to a trial by jury. Hence, the pleadings are regarded, not as statements by the respective parties of what they claim to be the truth of the case in point of evidence (and to which it would be reasonable to hold them), but as statements by their counsel of what they claim to be the legal effect of the evidence to be produced. To hold a party to the correctness of such statements would be to make the opinions of his counsel upon matters of law conclusive against him. Such a rule, however, if it existed at common law, would have but little application, as it would seldom happen that the alternate pleadings by which an issue in fact is developed would furnish material evidence upon the trial of that issue.

35. The parties having brought in all their allegations respectively, and all the witnesses on both sides having been examined and cross-examined, the testimony is next published; and, if either party then thinks any further steps necessary on his part before the hearing of the cause (19), they should be taken without delay. Before the cause can be brought to a hearing, however, the following formal proceedings must take place after publication: First, a term must be assigned to propound all things, i. e., the judge must appoint a day upon which each party, if he has anything further to offer, shall bring it forward. When either party is ready for the hearing, if he desires to speed the cause, he should apply to the judge to assign such a term. On the day so appointed, if nothing further is propounded, the judge, on the application of either party, assigns a day to conclude the cause; on which day the judge declares the cause concluded, and assigns a day to hear sentence.

46. Having thus shown that equity derived its doctrines, as well as its powers, from its mode of giving relief, and that it borrowed the latter directly from the ecclesiastical courts, it remains to inquire to what extent the procedure generally of those courts was adopted in chancery. In form it cannot be said that it was adopted at all, that is, the ecclesiastical procedure was never made as such the procedure of the court of chancery. On the contrary, the procedure of the latter court was professedly built up, or rather left to grow up, as an independent system. Sometimes it followed the analogy of the ecclesiastical procedure, and sometimes that of the common-law procedure; but undoubtedly it derived most of its important characteristics from the former.

47. In particular, it followed the ecclesiastical courts almost literally in its mode of taking the testimony of witnesses, and in requiring each party to submit to an examination under oath by his adversary. It ought, therefore, to have adopted the ecclesiastical system of pleading in all its essential features. To what extent it did so we shall see hereafter.

48. In what relates, however, to the formal mode of conducting the proceedings in a suit, chancery has followed the common law; and this has caused much misapprehension as to the origin of the system in other respects.

In the ecclesiastical practice, every step in a cause regularly takes place in open court, under the direction and supervision of the judge. The proceedings in court are for the most part oral, but the clerk takes minutes of them as they occur; and these minutes, when fully written out, make a complete history of the cause.1 Each party is bound at his peril to be present in court during the progress of the cause; and hence neither is bound to give notice to the other of any step to be taken. Whenever an act is required to be done in writing, the writing has to be filed with the clerk, and, until so filed, the act is not considered as done. Hence, the clerk’s files and his minutes constitute the sole evidence of the state of the cause, and of what has been done in it. And, as the judge is supposed to know whatever it is the duty of his clerk to know, all the proceedings in an action in legal contemplation remain in the breast of the judge, i. e., he has judicial knowledge of them, and so requires no evidence from the parties on that subject.

At common law, on the other hand, the formal proceedings in an action are chiefly conducted out of court by the attorneys of the respective parties, pursuant to established rules. Each attorney is required, as a rule, to give notice in writing to the other of every step taken by him in the cause, or intended to be taken, as the case may be. When either intends to apply to the court for any purpose, he must give the other notice in writing of such intention, and of the time when the application will be made. The application is called a motion, and the decision of it is by an order formally drawn up in writing. All the acts of the court are by orders in writing, in which the court speaks directly, and not through its clerk. When papers are required to be filed with the clerk, it is generally only for permanent preservation, and after they have served their purpose. The clerk keeps no history of causes pending, and neither he nor the court is supposed to know (nor does commonly know in fact) what has been done in a particular cause, nor even that any such cause is pending, such knowledge being generally confined to the respective attorneys.1 Therefore, every motion is decided wholly upon the evidence adduced on behalf of the respective parties.

In one system, therefore, the court is active, assuming the supervision and control of the proceedings in an action from beginning to end; in the other, it is passive, leaving the respective attorneys to conduct their proceedings in their own way, and on their own responsibility, making it the duty and interest of each to see that the other proceeds correctly, and subjecting each to the risk of having his proceedings set aside for irregularity, or treated by the other as nullities and disregarded. And these differences extend to the conduct of the pleadings. In both systems, the pleadings are in writing, but in the civil law, as has been seen, no pleading can be received or filed without the sanction and direction of the court, while at common law they are filed or served, without even the knowledge of the court: and, if a pleading is supposed to be bad, the adverse party cannot bring it before the court for the purpose of having it rejected or reformed; he can only raise the objection in the first instance by demurrer, and that is followed by a final judgment for or against the party demurring. It is true that the court, instead of giving judgment, may permit the defeated party to amend his pleading, or withdraw his demurrer, as the case may be, but it still leaves him to act upon his own responsibility, and at his own risk.

In all these particulars, chancery follows chiefly the common law;1 and this fact will be found to have had an important influence upon the system of pleading in chancery.

49. In the ecclesiastical courts, causes are distinguished as plenary or summary. In what has hitherto been said of procedure in those courts, it has been assumed that the cause was plenary. The distinction was chiefly a technical one, a summary cause differing from a plenary one in little more than in having no litis contestatio, no term assigned to propound all things, no term to conclude, and no formal conclusion. This distinction never existed in chancery, for the reason that all causes there are summary. Hence, the ceremonies peculiar to plenary causes are unknown to chancery procedure.1

50. In the ecclesiastical courts, there is no distinction between matter of record and matter not of record; nor is there any use made of parchment. At common law, all the more important proceedings in an action (e. g., writs, pleadings, verdict, and judgment) are engrossed upon parchment rolls, and constitute matters of record. In this respect chancery followed the common law, and there were special reasons for its doing so. For, in the first place, all writs issuing under the great seal were required to be upon parchment, and it was by means of such writs, as we have seen, that the chancellor exercised his whole jurisdiction. Again, chancery has a common-law side as well as an equity side, and the former is much more ancient than the latter; and, as a common-law court, it had a staff of clerks, known as the Six Clerks, who occupied an office together, and had charge of all its records. Therefore, when the equity jurisdiction arose, it was natural that the proceedings should be made matter of record; it may even have been deemed necessary to their validity.

51. In the ecclesiastical courts, all clerical duties were performed by or under the direction of one officer, who was known as the registrar of the court, and in his office all books and papers relating to the business of the court were kept. This office was adopted by the Court of Chancery, and the registrar has always been properly the clerk of that court. But the office of registrar having properly nothing to do with records, and the Six Clerks being already in charge of all the records of the court, and all writs being issued by them, the result was that the clerical duties of the court were divided between the registrar and the Six Clerks; the latter having charge of everything that went upon parchment, the former of everything else. It thus happened that the pleadings were filed in the Six Clerks’ office. As to decrees, they were first drawn up and entered by the registrar in his book, but they were not complete for all purposes until they were enrolled in the Six Clerks’ office.

52. On the common-law side of the court the Six Clerks not only filled the office of clerk of the court, but they were also the attorneys in all actions and proceedings prosecuted in that court, i. e., each party to every action or proceeding was obliged to employ one of the Six Clerks as his attorney;1 and, when the equity jurisdiction arose, they claimed and established the sole right to be attorneys also in all equity suits. Each Six Clerk, however, had ten subordinate clerks under him, by whom the business of the office was chiefly transacted; and in course of time these subordinate clerks, under the name of clerks in court, became the attorneys of the court, instead of the Six Clerks.2 But as they confined themselves to their office, and only superintended the formal proceedings in suits, another class of practitioners grew up, under the name of solicitors, who came to be the persons directly employed by clients in all suits in equity, the clerks in court being employed by the solicitors. Thus, until within a recent date, there were three classes of practitioners in equity; viz., solicitors, clerks in court, and barristers or counsel. There was nothing corresponding to this in the ecclesiastical courts where the practitioners were divided into proctors (procurators) and advocates, corresponding to attorneys and barristers at common law. Proctors and advocates (who practised indiscriminately in the ecclesiastical, admiralty, and prize courts) were wholly separated (as much so professionally as if they had been in another country), from the practitioners in the common-law courts, and in the Court of Chancery. There never was any such separation between the practitioners in the Court of Chancery, and in the common-law courts. The clerks in court, of course, confined themselves wholly to the Court of Chancery; but every solicitor, as a rule, was also an attorney at common law; and, until about the beginning of the present century, there was only a partial separation between the barristers practising in chancery, and those practising in the common-law courts. For these reasons, there has been a constant tendency to assimilate the procedure of common-law and equity, as well as to separate the latter from the system from which it took its origin.

45.

COURTS OF CHANCERY IN THE AMERICAN COLONIES1

By Solon Dyke Wilson2

PRIOR to the Revolution courts of chancery had existed in some shape or other in every one of the thirteen colonies. An attempt will be made to give in the following pages a brief history of this tribunal in the days of our forefathers. In order to govern the affairs of Massachusetts colony it was necessary that a charter of incorporation should be obtained from the crown, in addition to the right of domain derived from the Plymouth Company by purchase. Charles I. finally conferred one very liberal in its terms. The freemen were to yearly choose a Governor, Deputy Governor, and eighteen Assistants; the general court was to meet quarterly, when freemen were to be admitted, officers chosen, and laws and orders not repugnant to the laws of England enacted.

The first Court of Assistants, composed of the Governor, Deputy Governor, and Assistants, was held at Charlestown August 23, 1630, rules of proceedings in all civil actions were established, and subordinate powers instituted for punishing offenders; it was agreed that the court should sit every third Thursday at the Governor’s house.

The first General Court of the company was held at Boston in October this same year.

“Until 1639 this court seems to have exercised the whole power, both legislative and judicial, of the colony, and to have held jurisdiction in civil and criminal matters.” For fifty-five years it exercised an extensive chancery jurisdiction as well.1

At the May Term, 1654, relief was prayed because of a mistake made in drawing up a bill of sale, and it was ordered that a “firme” deed be made to the rightful party.2

At the October term, 1665, an administrator petitioned to be allowed to redeem from mortgage a tract of land belonging to an estate in process of settlement. His request was granted.3

At the same session, in the matter of a charitable trust, a committee was appointed to inquire into the affairs of an educational institution and to report.4 Ten years later an executor was ordered to specifically perform his testator’s contract.5

The same term it was ordered that the lands belonging to Edmund Patch (“who did runne away with a married woman”) be sequestrated and sold for the benefit of his family.6

At the June term, 1677, Clement Goss humbly begged this court to null an instrument which he was induced to sign by his wife, friends, and by a wile. The court so ordered.7

8 Margaret Thatcher petitioned in October, 1679, for relief, setting forth that she had paid the heirs of her deceased husband a large sum for their interest in his estate, which she feared would be detained from her, etc. The case was referred to the County Court for Suffolk, with power to compel a discovery.

Want of remedy at law is assigned in several cases as the ground of jurisdiction in equity.9

In May, 1685, it was enacted that: “Whereas it is found by experience that in many cases and controversies betwixt parties wherein there is matter of apparent equity, there hath been no way provided for relief against the rigour of the common law but by application to the general court, where, by reason of the weighty affairs of the country of more publick concernment, particular persons have been detained, to their no small trouble and charge, and also great expense occasioned to the publick by the long attendance of so many persons as that court consists of, to hear and determine personal causes brought before them; for ease and redress whereof it is ordered and enacted by this court, that the magistrates of each County Court1 within this jurisdiction being annually chosen by the freemen, be, and hereby are, authorized and empowered as a court of chancery, upon bill of complaint, or information exhibited to them, containing matters of apparent equity, to grant summons or process, as in other cases is usual, briefly specifying the matter of complaint, to require the defendant’s appearance at a day and place assigned by the court to make answer thereunto; and also to grant summons for witnesses in behalf of either party, to examine parties and witnesses by interrogations, upon oath, proper to the case, if the judges see cause to require it; and if any party, being legally summoned, shall refuse or neglect to make his appearance and answer, the case shall proceed to hearing and issue, as is provided in cases at common law; and upon a full hearing and consideration of what shall be pleaded and presented as evidence in any such case, the court to make their decree and determination according to the rule in equity. Secundum equum et bonum, and to grant execution thereon; provided, always, that either party, plaintiff or defendant, who shall find himself aggrieved at the determination of the said County Court shall have liberty to make his appeal to the magistrates of the next Court of Assistants, giving in security for prosecution and the reasons of his appeal to the officer of the said County Court, as the law provides in other cases; where the judges of the former court may have liberty to allege and show the grounds and reasons of their determination, but shall not vote nor judge in the said Court of Assistants; and the judgment or decree of the said Court of Assistants, shall be a full and final issue and determination of all such cases, without any after review or appeal; unless, upon application made by either party to the General Court, the said court shall see meet to order a second hearing of the case at the County Court, with liberty of appeal as aforesaid, or, in any arduous and difficult cases, to admit a hearing and determination by the general court; and that a suitable oath be drawn up and agreed upon, to be administered to those who shall be judges; and in all cases of this nature brought to the County Court, the party complaining, before his bill be filed and process granted, shall give sufficient security, to the clerk of the court, to defray the necessary charges and attendance of the court.”1

“It was the last judicial tribunal created by the Legislature under the first charter.”2

The people of Massachusetts had long been reviewed by the home government with a jealous eye, they were accused of “extending their jurisdiction beyond the bounds of their patent, of evading the prerogative by coining money, of not allowing appeals to the King from their courts, and of obstructing the execution of the navigation and trade laws;”3 finally a “quo warranto” was issued, judgment was obtained in England and the charter abrogated.

After this the President or Governor and Council exercised chancery jurisdiction.4

December 19, 1686, Sir Edmund Andross arrived in Boston and the people were called upon to face the evils which attended with scarcely an exception, the sojourn of every royal Governor, that the history of this time refers to. He came as the Governor of the whole of New England, and at this time Plymouth colony, which continued weakly, became united to Massachusetts.5 Whatever the Governor’s faults may have been, indolence was not one of them, for he immediately set about ordering the affairs of the Province with but little regard for the rights or feelings of those he came to govern. March 30, 1687, an act was passed for the establishment of courts of judicature and public justice. A court of chancery was created, with the amplest powers, “to be holden by the Governor, or by such person as he should appoint chancellor, to be assisted by five or more of the Council, and this court was to sit from time to time as the Governor might appoint;” from this court appeals lay to the King in council, if the matter in controversy exceeded £300.1

His power was but of short duration, however, for on the accession of William and Mary, the good people of Boston arose in their might, and with “force and arms” sent their Governor a prisoner back to England.

A new charter was conferred upon the colonists in 1691; it was less liberal in its terms than the old one. The Governor, Deputy Governor, and Secretary were to be appointed by the Crown, and they in turn appointed the judiciary. The Governor could summon, dissolve, and prorogue, the Deputies when he chose. Under the new charter the General Court met for the first time, June 28, 1692. “An act was passed which provided for a High Court of Chancery” to be kept by the Governor, or such other person as he should appoint chancellor, to be assisted by eight or more of the Council. From their decisions appeals lay to the King in council, and full equity powers were delegated to the court. By the same act “chancery powers were extended to all the courts of the Province so far as to chancer the penalties of bonds when in suits before them.”2 The following year the constitution of the court was so far modified as to be held in Boston by three commissioners appointed by the Governor and Council, assisted by five masters in chancery. The court had the power of appointing its own register, and other necessary officers, and legal process was to be issued under the Province seal and to bear the teste of the three commissioners. The court held four terms in each year, but was to be always open to suitors.

The law did not, however, meet the approbation of the King, and no court appears to have been constituted under it. And in the act of 1699, re-establishing the courts of the Province, no provision is made for such a tribunal. By subsequent acts, limited chancery powers were delegated to the common law courts, such as chancering the penalties of bonds, granting conditional judgments in suits upon mortgages, and decreeing redemption of mortgaged estates upon the tender or performance of conditions within three years after entry made for the purposes of foreclosure. These were, substantially, all the provisions which related to the exercise of chancery powers by the courts under the Province charter. In 1701 Attorney-General Northey, in an opinion to Queen Anne, held that the General Court had no right to establish such a tribunal.1

The opinion of a great lawyer as to chancery jurisdiction in Massachusetts Bay, quoted by Governor Pownall whose term of office intervened between 1757-61, is as follows:—

“There is no court of chancery in the charter governments of New England, nor any court vested with power to determine cases in equity save only, that the justices of the inferior court and the justices of the superior court respectively have power to give relief, on mortgages, bonds, and other penalties contained in deeds. In all other chancery and equitable matters, both the crown and the subject are without redress. This introduced a practice of petitioning the legislative courts for relief, and prompted these courts to interpose their authority. These petitions became numerous—in order to give the greater dispatch to such business, the legislative courts transacted the same by orders or resolves, without the solemnity of passing acts for such purposes, and have further extended this power by resolves and orders beyond what a court of chancery ever attempted to decree, even to the suspending of public laws, which orders and resolves are not sent home for the royal assent.”

“The jurisdiction mentioned by Governor Pownall was conferred by provincial statute.”1

“Governor Bernard, in his answer on the 5th September, 1763, to the queries proposed by the Lords commissioners of trade and plantations said, it might have been made a question whether the Governor of this Province has not the power of chancellor delivered to him with the great seal as well as other royal Governors, but it is impracticable to set up such a claim now after a non-usage of seventy years, and after several Governors have in effect disclaimed it, by consenting to bills for establishing a court of chancery, which have been disallowed at home. A Court of Chancery is very much wanted here, many causes of consequence frequently happening in which no redress is to be had for want of a court of equity.”2 And so things continued until the breaking out of the war, when every thought save that of emancipation from the thraldom of the mother country was banished from every heart. Portsmouth and Dover, New Hampshire, were settled in 1623; and, although, it is said “that Exeter, a few years later (1638) formed a combination, chose rulers, and enacted laws in a public assembly,” and Portsmouth and Dover did something of the kind as well,3 it is certain no regular courts existed until the colony was united to Massachusetts in 1641.4

For the next thirty-eight years the laws of the latter colony prevailed largely in this. In 1679 this colony was made a royal Province with a President and Council, they constituted a court of record for administration of justice according to laws of England. So far as circumstances would permit, reserving a right of appeal to the King in council, for actions involving more than £50; they were among other things to issue writs within three months under the Province seal for calling an Assembly. “All laws were to be approved by the President and Council and then to remain in force till the King’s pleasure should be known, for which purpose they should be sent to England by the first ships.”1

“There can be no doubt that equity, as a great branch of the law of their native country, was brought over by the colonists and has always existed as a part of the common law in the broadest sense in New Hampshire.” . . . “Under the first royal Governor, Robert Mason was appointed chancellor of the Province, and among the early records are to be found bills in equity which were heard and decided before him.”2

In 1683 judgment was rendered against one Martin who had been treasurer during the previous administration, for moneys collected by him in his official capacity as treasurer; he petitioned Mason, as chancellor, setting forth that they had been disposed of according to the order of the late President and Council, and prayed that he be not obliged to bear the entire burden. A decree was issued ordering the surviving members of the Council, and the heirs of deceased members to each pay his respective proportion of the amount.3

In 1692 by “An act to provide courts of judicature,” it was decided that “there shall be a Court of Chancery within this province, which said court shall have power to hear and determine all matters of equity, and shall be esteemed and accounted the High Court of Chancery of this province,” . . . “and that the Governor and council shall constitute the said court.”4

“A new organization of the courts was made by the legislative Assembly in 1699;”5 but so far as chancery jurisdiction went, no material change was probably made, for an excellent authority has said: “It is not known that this law (referring to the enactment of 1692 in reference to a Court of Chancery) was ever repealed, and it is supposed that the Governor and Council, who composed the Court of Appeals, continued to exercise chancery powers till the Revolution.”6

Roger Williams obtained a grant of land from the Indians and founded Providence, Rhode Island, in 1636. It was immediately ordained by the inhabitants, in town meeting, that “we do promise to subject ourselves in active or passive obedience to all such orders or agreements as shall be made for public good for the body, in an orderly way, by the major assent of the present inhabitants, masters of families, incorporated together into a town fellowship, and such others as they shall admit unto them only in civil things.”1

Eight years after a charter was granted the Providence Plantation, which now consisted of four towns, Providence, Portsmouth, Newport, and Warwick, giving the people full power and authority to rule themselves, “and such others as shall hereafter inhabit within any part of the said tract of land, by such a form of civil government, as by voluntary consent of all, or the greater part of them, they shall find most suitable to their estate and condition, and for that end to make and ordain such civil laws and constitutions, and to inflict such punishment upon transgressors; and for execution thereof so to place and displace officers of justice as they or the greatest part of them shall, by free consent, agree unto. Provided, nevertheless, that the said laws, constitution, and punishments for the civil government of the said plantations be conformable to the laws of England, so far as the nature and constitution of the place will admit.”2

The first Colonial Assembly met at Portsmouth in May, 1647. A few laws, general in their terms, were passed at this session. Through misrepresentation and fraud William Coddington, in April, 1651, was appointed Governor of Connecticut and Rhode Island for life. This operated to dissolve the charter government. The island towns submitted to Coddington, while those on the main-land continued to carry things on under the old laws. Williams went to England to obtain, if possible, a new charter; permission was finally given for the colony to act under the old charter until the contentions arising out of Coddington’s appointment could be settled. In a short time, however, his commission was revoked and the fears of the people were dispelled.

The charter subsequently granted by Charles II. empowered the erection of a government to consist of Governor and Council, and House of Assembly, and the enactment of any laws not repugnant to those of England. The early years of this colony were full of faction and turbulence, and although a quo warranto was issued against this charter, no hearing ever took place, and it remained in force until the constitution. There is no doubt that equitable rights were acted upon by the General Assembly, for this tribunal took cognizance of all matters which could not be brought within the narrow jurisdiction of the inferior courts.1

The earliest allusion we find to a Court of Chancery in the history of this colony is in the records of an assembly held in October, 1705. It is as follows: “Whereas, it hath been represented to this Assembly, the great benefit that it might be, to have a Court of Chancery erected and settled in this her Majesty’s colony; but this Assembly, having considered the rules and methods for the way and proceedings in such a court, with the rules and constitutions thereof being of great weight and concernment, and requires mature consideration for orderly settling thereof, which we conceive cannot at present at this Assembly be settled. Therefore, be it enacted by the honorable, the Governor, with the House of Magistrates and Representatives convened in general assembly, and it is hereby enacted by the authority of the same, That the General Assembly at all times convened in general assembly, shall be a Court of Chancery as formerly it hath been, until such time as a more proper Court of Chancery may be conveniently erected and settled.”2 Six years afterward the Assembly made an enactment which reads as follows: “Whereupon, notwithstanding a former act of this colony which hath constituted and empowered the Assembly to be a Court of Chancery, we judge that they had no power or authority to make any such law, by reason we cannot find any precedent that the legislators or Parliament of Great Britain, after they had passed an act or law, took upon themselves the executive power or authority of constituting themselves a Court of Chancery, or any other court of judicature. Yet, notwithstanding, considering the power and authority of the General Assembly of this colony granted them, by, and in our royal charter, do we find that their power and authority is very large and copious as legislative, to make laws and constitute courts of judicature for the trial and decision of all matters and cases happening within this colony or government, as they shall judge proper, according to the constitution thereof, so as they be not repugnant, but as near as may be agreeable to the laws of England. Therefore, be it enacted by this present Assembly, and the authority thereof, and it is hereby enacted, that the act or law of this colony, which constitutes, authorizes, and empowers, the Assembly to be a Court of Chancery, shall be, and is hereby repealed, made null and void, and of none effect; and that no appeal from the Court of Tryals for the future, be granted, allowed, or brought before the Assembly of this Colony; . . . and also, that the Assembly of this Colony, according to, and by virtue of their power and authority afore recited, shall erect, set up, and establish, a regular Court of Chancery, within the government according to the methods and precedents of Great Britain, any act or acts, law or laws, in this government to the contrary hereof in anywise notwithstanding.” It was provided furthermore, however, that the Assembly would sit as a Court of Appeals, from decisions rendered in a proper court of Chancery, if appeal was made by way of petition.1 We have been unable to find any farther allusion to Courts of Chancery in this Colony for full thirty years. In 1741 a court, composed of five judges, was organized, with equity jurisdiction of matters that had previously been adjudicated by the General Assembly, and to also hear and determine appeals in personal actions from judgments of the superior court.2 Three years later it was enacted that “Whereas, it is found by experience that the trials of causes by the said Court of Equity is inconvenient and a great grievance to the inhabitants of this colony,” etc., etc., and the act of 1741 was repealed.1

Connecticut was first settled by emigrants from Massachusetts at Hartford, Weathersfield, and Windsor in 1635.

Three years later New Haven was founded by emigrants from London.

In accordance with the constitution adopted by the freemen of the three towns just referred to, in January, 1639, they again assembled at Hartford in April the same year. A Governor was appointed, and six prominent citizens chosen as magistrates; . . . representatives were elected, the first Assembly convened, and several laws passed.

For a year, New Haven had no constitution beyond a simple “covenant;” but increasing numbers made it necessary that laws should be enacted, so on the 4th of June, 1639, the freemen of the Colony convened in a large barn for that purpose. The proceedings opened with a sermon. “Upon full debate, with due and serious consideration it was agreed, concluded, and settled, as a fundamental law not to be disputed or questioned hereafter that the judicial laws of God as they were delivered by Moses and expounded in other parts of Scripture, so far as they are a fence to the moral law, and neither typical nor ceremonial, nor had reference to Canaan, shall be accounted of moral and binding equity and force, and as God shall help, shall be a constant direction for all proceedings here, and a general rule in all courts of justice how to judge betwixt party and party, and how to punish offenders, till the same may be branched out into particulars hereafter.”2

In due time laws more definite in their terms were found necessary, so early in 1642 still others were enacted.

“The texts of Scripture on which they were based were added to each law. . . . Up to this time (1643) the magistrates had possessed exclusive jurisdiction in hearing trials and in enforcing penalties, but now trials by jury were instituted.”3

A court called the Court of Magistrates composed of “all the magistrates for the whole jurisdiction” was also erected this year. It had jurisdiction of “weighty and capital cases,” and of all “appeals from subordinate plantation courts.”1 The various laws of the Colony were, by order of the General Court revised and digested, and from 1650 to 1686 remained the laws of the Province. They are known at the present day as the “Blue Laws” of Connecticut.2 In 1660 a Connecticut colony sent an agent to England to obtain, if possible, a charter. In this he was finally successful. It was very liberal, conferring upon the inhabitants the right to govern themselves as they thought fit, and to enact any laws not repugnant to the laws of England. This charter covered much territory belonging to other colonies, in this case a part of Massachusetts, Rhode Island, the New Netherlands, and the whole of New Haven which, finally against its will, but principally by reason of its weakness, was, in 1664, absorbed by Connecticut.

Although we do not find any reference to the exercise of chancery jurisdiction by the courts of these colonies till 1686, when Andross assumed the government of New England, there is no doubt that their general courts acted when occasion required as courts of equity. In March, 1686, was enacted a law erecting a Court of Chancery for this colony “to be holden by the Governor, or such person as he shall appoint to be Chancellor, assisted by five or more of the Council, who in this court have the same power and authority as masters in chancery in England have or ought to have; which court shall sit at such times and places as the Governor shall from time to time appoint, provided always that any person may appeal from any sentence or decree made or given in this court, unto his Majesty in council when the matter in difference shall exceed the real value and sum of £300, sterling, as in case of appeal from the Governor and Council is provided.”3

The General Assembly at Hartford, in May, 1724, appointed and empowered eight gentlemen “to hear and determine all matters of errour and equity that shall be brought by petition to the present General Assembly, and to cause their judgments to be executed effectually; any law, usage, or custom to the contrary notwithstanding.”1

In 1676 Sir Edmund Andross granted an injunction to stay execution on a judgment at law at the court of New Castle upon security being given, “and all proceedings, writing, and proofs to be transmitted to New York for final determination in equity.”2

The above must have been one of the few isolated cases, for we find twenty-four years later the Earl of Bellomont, the Governor, writing the Lords of Trade in these words: “There is a great want of a Court of Chancery here, but nobody here understands it rightly. I delay appointing one till the judge and attorney-general’s coming from England.”3 In 1701, he again wrote, as follows: “I am extremely importuned to erect a Court of Chancery, many people being liked to be ruined for want of one.”4 In February the same year the Lords of Trade directed him to erect such a tribunal.5 In a letter from Lieutenant-Governor Naufau (the Governor having died), dated January 9, 1701, it was said, that the Court of Chancery was to be holden the first Thursday in August thereafter, and so monthly.6 Nothing more of importance is to be found bearing upon the subject until the administration of Governor Hunter, which began in 1711. May 7th, that year, he wrote the Lords of Trade, setting forth the necessity of a Court of Chancery, and begging their directions. They replied June 9th, that under his commission he was empowered to establish such courts as he thought fit.7 January 1, 1712, Hunter wrote as follows: “The country here, in general, groaned for a Court of Chancery which had been discontinued for some time before my arrival in these parts.” . . . “I gave a public notification of that court being opened, and the House of Representatives, in their angry mood, resolved that the erecting of such a court without their consent was against law,” etc.1 The Governor claimed the sole right of acting as chancellor, by reason of having custody of the seal. The people, suspicious of the intentions of the home government, were solicitous lest their rights should not in some way be encroached upon. The fees of this court were exorbitant, causes were delayed, and great abuses arose in many directions, particularly in the manner of the collection of quitrents.2

“The administration of Governor Burnett, which began September 20, 1720, gradually became unpopular owing principally to decrees which he made in chancery contrary to law.” . . . “The Assembly became disaffected to him.” It resolved that the erecting or exercising a Court of Chancery in the Province without the consent of the Assembly was contrary to the laws of England, and subversive of the rights of the subjects.

It was also resolved that it would at its next session pass a law declaring all the decrees and proceedings of said court illegal, null, and void; and that it would take into consideration whether such a court be necessary or not, and in whom the jurisdiction ought to be vested. Mr. Burnett no sooner heard of their resolutions than he called the members before him and dissolved the Assembly.3

Governor Montgomery died July 1, 1731. The government devolved upon Rip Van Dam, the President of the Council. “He was opposed to Courts of Chancery, and refused to take the oath of chancellor notwithstanding instructions from the home government to do so, as no other court could enforce the collection of quit-rents, it will be seen that the people had good cause to side with him. Although Colonel William Cosby was immediately appointed Montgomery’s successor, he did not arrive in this country for thirteen months. Van Dam had received the salary during the time he was in the chair.” Cosby brought with him the King’s order for an equal division of the salary, emoluments, and perquisites; Van Dam was willing to divide the salary, but not the emoluments and perquisites. He knew that Cosby, while in England, had received large amounts for pretended services. This the Governor refused to divide, although Van Dam demanded it, and refused to refund any portion of his salary unless he did so.1 Cosby brought suit against Van Dam before the justices of the Supreme Court as Barons of the Exchequer; he would not proceed at the common law, for he had good reason to expect a plea in set-off, as well as a verdict of a jury; neither could he proceed in a Court of Chancery, for, according to the doctrine of the court party, he was chancellor and would thus sit in judgment on his own case. He felt very safe in bringing suit in the Exchequer, as a majority of the judges were his personal friends.

Van Dam began suit at common law against the Governor. His lawyers took exception to the jurisdiction of the Court of Exchequer, this plea was overruled, Chief Justice Morris dissenting.2 The people took up the cause of Van Dam, forming one party, while another was made up of the provincial officials and a few others. The press took up the matter, finally leading to the famous trial of Zenger, the proprietor of Zenger’s Journal, for libel, his sheet being the principal organ of the popular party. Cosby subsequently dropped his proceedings against Van Dam, he never recovered anything from him.3 In 1734 it was resolved by the House of Assembly that two well known lawyers, Messrs. Murray and Smith be heard in relation to the organization of courts of justice as numberless petitions had been presented deploring the condition of the judiciary. The former maintained in his address that no court of equity could be erected in any of the Colonies by act of the Crown. And the latter that it was of original jurisdiction, and that the Colony was entitled to the same as an essential branch of English liberty.1

Again in 1735, the Assembly resolved that the Court of Chancery, under the exercise of a Governor without consent of the General Assembly, “is contrary to law, unwarrantable, and of dangerous consequence to the liberties and properties of the people.”2 In 1756 Governor Hardy acted as chancellor.3

Although the animosity of the people with regard to this tribunal did not decrease during the remainder of New York’s provincial history, the court continued to sit in a desultory way, but transacted very little business.

Charles II. granted to his brother, the Duke of York, March 12, 1663-4, an immense territory in North America.4 The same year a portion of this domain, comprising within its bounds the whole of the present State of New Jersey, was conveyed to Lords Berkely and Cartaret.5 They became rulers as well as owners of the country.6

The first constitution of the Province was signed by the proprietors February 10, 1664, and continued in force until 1676.

The government was to consist of a Governor and Council appointed by the proprietors and an Assembly chosen by the people. They were empowered to enact such laws as they saw fit, so long as they did not conflict with those of England, or the interests of the Lords Proprietors.

At the first meeting of the legislative body (1668), all the principal towns in the Province were represented.7

At the second session dissensions arose because the Council insisted on sitting alone, rather than with the Assembly, where they could easily be out-voted. One thing led to another until finally all kindly feelings between the proprietors and people were obliterated, and after a number of years of confusion and discontent Berkely, disgusted, sold out to Fenwick and Byllenge, two Quakers. They mortgaged their interest and the mortgagees arranged with Cartaret to divide the Province into East and West New Jersey. The latter was given a very liberal form of government by its possessors. In 1682 Cartaret’s heirs sold their share (East New Jersey) to Penn and others; there were twenty-four proprietors in all. They were not allowed to govern it in peace, however, for soon they were obliged to surrender the government of the Colony to the Crown, retaining only the title to the soil. Shortly after, West New Jersey succumbed in like manner, and was obliged to accept the same terms. Fifteen years after, the colonies were reunited. In a letter from Lord Cornbury to the Lords of Trade, dated early in August, 1703, he said, after informing them of his having entered upon his duties as Governor of New Jersey: . . . “The first thing we proceeded upon, was to settle some courts, and in order to it, I asked the gentlemen of the Council what courts they had under their proprietary government; they said that their courts were never very regularly settled, but such as they were, it was under this regulation: first, they had a court for determining all causes under forty shillings, and that was by any one justice, and if either of the parties did not like the judgment of that justice he was at liberty to have a trial by jury, paying the charges of the first suit.” . . . “The next court they had was a quarterly court, where the justices of the peace determined all causes under £10, and they had a court which they called the Court of Common Right, where all causes both criminal and civil, were heard and determined, and to this court there lay an appeal from the quarterly courts.”

“This Court of Common Right consisted of the Governor and Council, and if any man thought himself aggrieved by the sentence of the Court of Common Right, then he might appeal to the Governor in Council. This was appealing from to the same persons, this being the account they gave me.”1

The Court of Common Right had, of course, jurisdiction in chancery.

In another letter by the same nobleman to the Lords Commissioners, dated May 7, 1711, he said, among other things: “In both plantations I have been pelted with petitions for a Court of Chancery; and I have been made acquainted with some cases which very much require such a court, there being no relief at common law, I had ordered the Committee of both Councils to form a scheme for such a court, but to no purpose; the trust of the seals they say constitute a chancellor, and unless the Governor can part with the seals there can be no chancellor but himself. I have already more business than I can attend to, besides I am very ignorant in law matters, having never in my life been concerned in any one suit. So, I earnestly beg your lordships’ directions as to that court.”1 In the reply to this letter he was informed that under his commission he was empowered to erect, with the advice and consent of the Council, “such and so many courts of judicature and public justice as he and they shall think fit.”2 And we find it recorded one year later that “there is no Court of Chancery in the Province.”3

In 1676 the government of New York extended over the territory subsequently granted to William Penn, and as Governor Andross issued in that year an injunction to stay an execution,4 we can well say that at that early day, chancery jurisdiction was exercised when occasion required in the Province, to which we shall now give our attention. Until 1684 the Council, when called upon, no doubt exercised equitable jurisdiction.5 A bill was passed by the Assembly at Philadelphia, January 26th that year, erecting a Provincial Court, to consist of five judges, to go two circuits yearly.6

The next month it was enacted that “every court of justice shall be a court of equity as well as of law and that there should be ‘a Provincial Court of quarter sessions’ ” . . . “to try all criminals and titles to lands, and to be a court of equity, and to decide all differences upon appeals from the County Courts.”7

Penn commissioned the judges of this court six months afterward.

In 1686 the Council appointed judges for the next Provincial Court, making them judges of equity as well as of law.1 It is evident that the people had not a very clear conception of the extent of the equitable powers of these courts, for in the following year the Assembly desired the Council to explain “how far the County Quarter Sessions may be judges of equity as well as law; and if after adjudgment at law, whether the same court hath power to resolve itself into a court of equity, and to mitigate, alter, or reverse the judgment.”2 The Council answered that the law erecting the court “doth supply and answer all occasions of appeal, and is a plain rule to proceed by,” which answer could not have shed much light on the subject inquired about. An act was passed in 1690 providing, among other things, that the “County Courts shall be Courts of Equity, for the hearing and determining all causes cognizable in said court involving less than £10 sterling.”3

In 1701 was passed an act “for establishing courts of judicature in this Province and counties annexed,” the judges of the Common Pleas were given full power “to hear and decree all such matters and causes of equity as should come before them, wherein the proceeding shall be by bill and answer, with such other pleadings as are necessary in Chancery Courts and proper in these parts, with power also to the said justices to force obedience to their decrees in equity by imprisonment or sequestration of lands as the case may require.”4

Two years after it was complained that, to the great oppression of the people, no courts of equity had been held in pursuance of this law. This same year, however, it was repealed by the Queen in council, and no other act providing for a Court of Equity was passed until 1710, when in an act for “establishing courts of judicature, it was provided that there shall be a Court of Equity held by the judges of the respective County Courts of Common Pleas, four times a year and at the respective places, and near the said times the said Courts of Common Pleas are held, in every county of this Province observing as near as may be the rules and practice of the High Court of Chancery in Breat Britain.”1 It was provided in this act that no cause should be determined in equity when there was a remedy at common law or by the laws of the Province, and that when matters of fact should arise on the hearing of any cause, the court should first bring them to issue and trial before the Common Pleas, before proceeding to decree in equity.

This statute was abolished within three years on the ground that it would tend to make proceedings in equity very dilatory, and unnecessarily increase the business of the common law courts.

In 1715 an act was passed “for erecting a supreme or provincial court of law and equity in this Province,” but this act was repealed in 1719. “The colonists had by the terms of their charter five years within which to transmit their laws for approval. And their custom was to enact laws and act under them as long as they decently could, and then send them to England well knowing that they would be repealed;” then they would make new laws as near like them as they dared which in time were sent to the old country, and annulled and so on.2 That is why so long time elapsed between the organization and abolishment of the various courts having chancery jurisdiction that we have referred to.

Governor Keith entered upon his duties in 1717. June 8th, 1720, was read before the Council a resolution of the House of Representatives which ran as follows:—

“Resolved, That considering the present circumstances of this Province, this House is of opinion, that for the present the Governor be desired to open and hold a Court of Equity for this Province, with the assistance of such of his Council as he shall think fit, except such as have heard the same cause in any inferior court.”

August 6th, 1720, it was resolved at a Council held at Philadelphia that the Governor might “safely comply with the desire of the representatives of the freemen of the Province,” . . . “and that the holding of such a Court of Chancery in the manner aforesaid, may be of great service to the inhabitants of this colony, and appears agreeable to the practice which has been approved of in the neighboring governments.”

The Governor, while regretting his want of experience in judicial affairs expressed a willingness to act in the capacity of chancellor, provided he received due assistance from his Council. “It was finally agreed that no decree should be made but by the Governor as chancellor, with the assistance of two or more of his six oldest counselors who might also be employed as masters in chancery.1 August 10, 1720, appeared the Governor’s proclamation; it recited that2 Courts of Chancery or Equity, though absolutely necessary in the administration of justice—for mitigating in many cases, the rigor of the laws whose judgments are tied down to fixed and unalterable rules, and for opening a way to the right and equity of a cause, for which the law cannot in all cases make sufficient provision, have, notwithstanding, been too seldom regularly held in this Province in such manner as the aggrieved subjects might obtain the relief which by such courts ought to be granted,” declared that the Governor with the assistance of the Council “proposed to hold a Court of Chancery or equity on the 25th of that month, from which date the said court will be and remain always open for the relief of the subject to hear and determine all such matters arising within this Province aforesaid as are cognizable before any Court of Chancery according to the laws and constitutions of that part of Great Britain called England.” The thanks of the student are due William Henry Rawle, Esq., of Philadelphia, for causing a search to be made for records shedding light upon the subject, among the archives of that State, for it resulted in the finding of the registrar’s book of Governor Keith’s Court of Chancery, and he is also under great obligations to the Law Academy, of Philadelphia, for printing the same as an appendix to the very able essay upon “Equity in Pennsylvania,” delivered by Mr. Rawle before that body February 11, 1868. One can here find a complete record of the doings of that tribunal.

Keith was superseded by Patrick Gordon in 1726. “Certain rules for the better regulation of this court and the speedier dispatch of business” were drawn up at this time.1 But for some years its business had been falling off. A spirit of discontent had begun to manifest itself, at the over-reachings of the provincial officials, for naturally enough the people were averse to being held amenable to courts of extensive jurisdiction composed entirely of persons in the proprietaries’ interest. While they did not object to the Court of Chancery as a tribunal, they did hold that the Assembly alone had the power to establish it.

The House of Representatives resolved, January 22d, 1735-6, “That whereas sundry petitions from a considerable number of the inhabitants of the respective counties of Philadelphia, Bucks, and Chester have been presented to this House and read, complaining that the holding a Court of Chancery as it is now used in this Province is contrary to our charter of privileges and may be attended with divers inconveniences; that, therefore, a message be sent to the Governor requesting him that he will be pleased to inform this house how the said Court of Chancery is constituted.” This resolution was laid before the Governor and Council the next day; the Governor ordered that transcripts of the enactments of the 8th of June and the 6th of August be sent down to the House for their information. The Council got up a vindication of the court to which the representatives replied, saying among other things, that no mere vote could erect a court of equity (referring to the resolutions of June 8th, 1720), and that it could be done only by act of Assembly.2 The Governor continued to act as chancellor for a few months, when he died. No successor has ever attempted to exercise chancery powers.

Delaware was incorporated into the domain of the Duke of York in 1663, and was governed by the laws of New York until 1682, when it passed into the hands of Penn and became subject to the laws of the Province of Pennsylvania.

The charter of this colony provided that all laws should be enacted by the proprietary “by and with the advice, consent, and approbation of the freemen of the Province, or of their delegates and deputies,” so long as they did not interfere with the fundamental rights of the people and were consistent with the common law of England. As in all the provinces the General Assembly consisted of two branches, the Upper House, composed of the Council, elected by the proprietary, and the Lower House of Delegates elected by the people. The former was a marked aristocratic body.1 “Under the proprietary government the chancellor of the Province was sometimes constituted by a formal commission from the Lord Proprietor,” but most usually, as it would seem, by a delivery of the great seals by the Lord Proprietor in person only, or in the presence of the Council. The Governor for the time being was, in several instances, by the same commission, also constituted chancellor and keeper of the great seal of the Province.2

“The first provincial Governor, by his commission bearing date on the 15th of April, 1637, was constituted Governor, Lieutenant-General, Chief Captain and Commander, as well by sea as by land, and also Chancellor, Chief Justice, and Chief Magistrate within the Province.”3

It was enacted in 1639 that all matters and causes whatsoever determinable in the High Court of Chancery in England shall, or may be finally heard and determined within the province by and before the chancellor of this province and Council of State for the time being. The Court of Chancery hereby erected, to have the same form of proceedings as the Court of Chancery in England. When acting as chancellor the Governor had authority to call in the assistance of the Council for their advice “upon all occasions as he shall see cause.”4 In Maryland, prior to the Revolution, the Governor sat alone as chancellor, from whose decision, by act of Assembly, an appeal lay to the Governor and Council sitting as a Court of Appeals. Defeated suitors could also appeal from the highest Colonial Court of Appeals to the King in council. In a case in the Maryland Court of Chancery, upon a petition by the defendant praying an appeal to the King, the prayer was, on the 1st of March, 1738, rejected. “The said prayer being” (as it was said) “contrary to his Majesty’s instructions, to grant an appeal to his Majesty from any other court, but from the Court of Appeals, which is the supreme court of this province, to which court he may appeal, and from thence to his Majesty, if he think fit.”1 “But, although for some time after the settlement of the country, the Governor could do no act as chancellor, but as a court, sitting with his assistants,” it is said in a petition in the case of Nicholas Painter and wife against Samuel Lane in chancery, addressed to the Lord Proprietor in June, 1681, “that the Court of Chancery is, and ought to be always, open as to the proceedings therein; but your lordship having not yet empowered your chancellor as chief justice of your said court to answer petitions or make orders touching the proceedings, as is used in England, without a full court of four at least, your petitioners are therefore necessitated to apply themselves to your lordship, and to humbly pray that your lordship would please to order that the defendant may put in his answer by a certain day,” etc., “which was accordingly ordered by the Lord Proprietor himself.”2

“But it appears that William Holland was, by a commission from the Lord Proprietor, under his great seal at arms, bearing date on the 27th of February, 1719, attested by his Governor, constituted chancellor of the province, with full power to do, perform, hear, and determine all such matters and things as to the office of chancellor of right belonged or appertained. After which the chancellor of Maryland always sat as sole judge, without assistants; and his court was thenceforward, in all respects, as accessible for all persons as the Chancery Court of England.”

“During the short time that the government of the Province was taken immediately into the hands of the King, it does not appear how the chancellor was appointed, although it seems to have been most usual to constitute the same person, both Governor and chancellor, as in the case of John Hart, who was both. Yet it was not always done, for it appears that different persons were sometimes appointed to fill each office; but however that might have been, it is certain that the two offices were always considered as being entirely separate and distinct in their nature.”1

“It appears that Robert Eden, the last provincial Governor of Maryland, . . . was commissioned, with the approbation of the King by the Proprietor, which commission he produced to the Provincial Council, who thereupon administered to him the oaths appointed to be taken by the Governor. Immediately after which his predecessor, Horatio Sharpe, delivered to him the great seal of the Province, whereupon the oath of chancellor was administered to him, by the members of the Council then present; all of which was entered of record in the book of the Council proceedings.”2

“Before the Revolution the Lord Proprietor was the owner, in his individual and private capacity, of all the land and territory in the province. He sold or gave it away at pleasure. Not long after the settlement of the Province was commenced, a land office was established, through which any person might obtain a title for any vacant land on complying with the established conditions and regulations. As the settlement extended and the sales of land were multiplied, numerous controversies arose as to the formality and correctness of the incipient and original titles thus obtained from the proprietary.”

“For the purpose of determining these controversies, a judge of the land office was appointed about the year 1680, and the chancellor of the Province was charged with the determination of those matters, either as judge or as assistant of the judge of the land office.”3

For years after the settlement of Virginia, all causes were adjudicated by the Governor and Council sitting as a General Court, so called because it attended to all kinds of business from all parts of the colony. This court sat originally twice a year at Jamestown, and subsequently every three months. It was never commissioned, but grew up out of the necessities of the people.1

This was the case up to the time of the sitting of the first House of Burgesses in July, 1619. Causes had grown so numerous, however, that it was now necessary to erect courts of inferior jurisdiction. So it was enacted that there should be monthly courts to have jurisdiction of all suits where the amount in controversy did not exceed the value of one hundred pounds of tobacco.2 This court consisted of eight or ten gentlemen receiving their commissions from the Governor.3

The jurisdiction of these courts was enlarged from time to time, and in March, 1642, it was enacted that they should be called county courts.4

In November, 1645, it was enacted that on account of the great distance of many settlements from Jamestown that the county courts should have jurisdiction of all causes in law and equity.5 Two years later (November, 1647,) a law was passed allowing appeals to the Assembly in all cases where the sum involved exceeded £10 or sixteen hundred pounds of tobacco, to settle new points of law, or when it appeared to the Assembly that the judgment of the inferior court was questionable.6

There was no material change in the jurisdiction of the various inferior courts of this colony as regards chancery matters for the next hundred years, so far as can be ascertained from existing records. There is no doubt, however, that the General Court exercised an extensive chancery jurisdiction, both original and appellate, especially during the last fifty years of Virginia’s colonial existence, for we find that a law was passed in March, 1745, appointing the first five days of every session, for hearing and determining suits and appeals in Chancery.7

Rules in chancery were enacted in October, 1748.8 Between 1650 and 1660 emigrants began to remove from Virginia and settle in the northeastern portion of what was then the Province of Carolina, now North Carolina.1

In 1663 Sir William Berkely, Governor of Virginia, visited the Province and appointed Wm. Drummond Governor.2 In 1665, the first Assembly sat at Albemarle. . . . There was at this time no town in the settlements, and for many years the Legislatures convened in private houses.3

In 1667 Drummond was succeeded by one Stevens who brought with him liberal instructions from the lords proprietors. He was to act by and with the advice and consent of a council of twelve, one-half his appointees, the others elected by the Lower House of Assembly. The earliest recorded legislation was effected in 1669. In 1670 the cumbrous constitution drawn up by Shaftesbury and John Locke was promulgated, and the people were expected to unanimously indorse the most impracticable scheme of government ever proposed in our entire colonial history. It is scarcely necessary to say, that although many years elapsed before it was formally set aside, its effect was directly opposite to that which had been fondly hoped. Its provisions were opposed at every turn, for they were drawn up without any regard for the actual needs of the inhabitants of this very sparsely settled Province. For sixty-one years longer the proprietary government continued, but with little satisfaction to Governors or governed. The people were poor, the revenues small and uncertain, and it was but natural that the settlers on lonely plantations should object to paying tribute to nobles wealthy and powerful in the old country. Despairing of acquiring riches, all the owners save Cartaret finally sold out to the Crown in 1731, when the Province was divided into two portions, namely North and South Carolina.

In the early days of this colony the Court of Chancery “was composed of the Governors and deputies of the lords proprietors, ex officio.”4 There still exist the records of a few cases that were “decided on principles recognized in the English Courts of Chancery,”1 thus showing that no one was denied relief even in the remotest period of the colonial history.2 It was enacted in 1715 that every member of the Council be “required to swear that as a judge in a court at chancery he will do what is just and right between those who might come before him as suitors in that court.” It was also provided that “if the Governor should be a party to any suit before that court, any four members of the court might hear and decide the cause without the presence of the Governor.”3

During the first four years (from 1670 to 1674) of the history of South Carolina the Governor and Council sat as a court weekly; cognizance was taken of complaints and petitions, and causes of almost every nature were heard and decided.4 In 1674 the first Assembly met. The Upper and Lower Houses took the name of the Parliament, as in the northern portion of the Colony the Governor and Council exercised, from the first, chancery jurisdiction.5

In the year 1719 the people remonstrated with the proprietors against retaining Nicholas Trott (their willing tool), who was not only sole judge of the Courts of Common Pleas, and King’s Bench, but also of the Court of Vice Admiralty, and at the same time, as a member of the Council, one of the judges of the Court of Chancery. He was, however, too useful a man to be displaced, and so the remonstrances of the people were disregarded.6

In 1721 was passed “an act for establishing a Court of Chancery empowering the Governor of the Province for the time being and the majority of the honorable members of his majesty’s Council from time to time subsisting, to hold a Court of Chancery, and to have, exercise, and use the same jurisdiction, power, and authority in granting and issuing forth all original and remedial writs and other process whatsoever, and in hearing, adjudicating, and determining all causes and suits in equity in as full and ample manner as any chancellor or court or courts of chancery can, may, or ought to do.”1

It does not appear from the records that there were any assistant judges prior to 1736. A single chief justice had presided over the courts in Charlestown, which were then, and for thirty-three years after, the only ones held in the Province.2

It is evident that there arose some question as to courts with equity powers in this colony, for we find that Rider and Strange, as attorney and solicitor generals, gave their opinion, in 1738, that the Colonial Assembly could establish, if they saw fit, a Court of Exchequer.3

The Governor and Council exercised chancery jurisdiction as well after the Colony became a royal Province as before and so continued to act down to the Revolution.4

The first charter of Georgia constituted twenty-one persons, a body corporate by the name and style of “The Trustees for establishing the Colony of Georgia in America.” They were empowered to make constitutions, laws, and ordinances for the government of their Province,5 and it was further provided that at the expiration of twenty-one years, that the form of government that should then be thought best should be adopted, in which all officers, civil and military, should be nominated and appointed by the King.6 Before embarking, officers for the new town were appointed, namely, three bailiffs, a recorder, two constables, two tithing men and eight conservators of the peace.7 They also organized a court of judicature, in which might be heard “all manner of crimes, offenses, pleas, processes, plaints, actions, matters, causes, and things whatever arising or happening within the Province of Georgia.” It was called the Town Court, and was opened July 7, 1733.8

“This court was supreme, blending in one tribunal the several powers usually lodged in common pleas, chancery, probate, nisi prius, sheriffs, coroners, and exchequer, and all committed to men unlearned in the principles of law and unversed in the usages of courts.” There were no lawyers in the Province for years; every suitor tried his own case. As settlements increased, new town courts were organized, but they gave but little satisfaction. Their officers seem to have been guilty of all sorts of misdeeds, “making false imprisonments, wrongfully discharging grand juries, threatening petit juries, blasphemy, irreverence, drunkenness, obstructing the course of law, and other equally grave and heinous offenses.” In 1752 the Province was surrendered to the Crown and passed under the control of the “Board of Trade and Plantations.” The royal Governor “had the same powers as the Lord High Chancellor of England.”1 The Council was appointed by the King, who also filled all vacancies. “They also had a judicial character, and in this aspect sat with the Governor in the Court of Chancery.”2

The writer has done his best with the material at his command. While he has had no difficulty in obtaining information, so far as some of the colonies were concerned, he has been able to find but little on turning his attention to others, notably the southernmost. He is aware that no adequate history of this court can be written without consulting the original archives of each colony; yet he feels that the facts contained in this paper will be of some interest to those who are at all curious as to the early judicial history of our country.

46.

THE ADMINISTRATION OF EQUITY THROUGH COMMON LAW FORMS IN PENNSYLVANIA.1

By Sidney George Fisher2

EQUITY and its administration have been favourite topics with law reformers. Whether the distinction between equity and law is a sound and essential one, whether equity can be administered by the same court that administers law, and whether equity can be absorbed into the common law and be administered by common law forms have been the great questions. In the solution of the last question the American State of Pennsylvania has had a long practical experience. Her system, which is correctly described as the administration of equity through common law forms, has now been in existence for more than one hundred and fifty years. No other commonwealth in the world has tried the experiment in so thorough a manner or on such an extensive scale. It is therefore fair to say, that the exact value of the system, what it can and what it cannot do for the conduct of litigation, ought to be found in the experience of Pennsylvania.

The subject naturally divides itself into three parts. First, the various unsuccessful attempts, from the founding of the Colony in 1681 until the year 1836, to obtain courts with the usual Chancery powers. Second, as a consequence of these failures, the growth during the same period, of the administration of equity through common law forms. Third, the period from 1836 to the present time, during which the Courts have gradually obtained from the legislature nearly all the ordinary powers of Chancery.

William Penn obtained his charter for Pennsylvania in 1681, and by its terms could have at once erected a Court of Equity.1 He did not do so. Apparently he was not an admirer of such courts; for he describes the Indians as not ‘perplexed by Chancery suits,’ and in accordance with his Quaker belief he made arrangements for having appointed by every County Court ‘three peacemakers,’ who acted as arbitrators to prevent law-suits.2

But the General Assembly, which was created by Penn as the legislative body of the Colony, was of a different mind. In 1684 it made two provisions for introducing equity. The first made the County Courts courts of equity as well as of law. The second created a Provincial Court, which was to be a court for appeals from the County Courts, and was also to try all cases, both in law and in equity, not triable in the County Courts.3 Both of these provisions were repealed by the English Government in 1793. The first was re-enacted by the General Assembly the same year that it was repealed. But it is believed that very little business was transacted under either of them. It is also probable that any equity that was administered at this time was not the technical and scientific equity of lawyers, but a sort of natural equity, consisting largely of the amendment of judgments at law which were considered too harsh. The judges had great discretionary powers, and were usually laymen. In fact there were very few trained lawyers in the Colony.4

After this there were four more futile attempts to establish equity. They are chiefly interesting as showing the relations of the Colony to the mother country in the matter of the repeal of laws.

The first of these attempts was in 1690. The General Assembly limited the jurisdiction of the County Courts by enacting that they should hear equity cases only when they were under the value of ten pounds. The English Government repealed this Act in 1693. It was re-enacted the same year and re-enacted again in 1700; but apparently it produced no results.1

In 1701 an Act remodelling the courts of the Colony, and apparently repealing all prior regulations in regard to equity, gave equity powers to the Courts of Common Pleas, and an appeal in equity cases to the Supreme Court. Nothing came of this Act and it was repealed by the home government in 1705.2

In 1710 the General Assembly made another attempt. A Court of Equity was to be held by the Common Pleas judges four times a year in every county. Appeals could be taken to the Supreme Court, and questions of fact were to be settled by a reference to Common Pleas. This was repealed in 1713.3

In 1715, a ‘Supreme or Provincial Court of Law and Equity’ was established. This was likewise repealed in 1719.4

These were all failures. But in 1720, at the suggestion of Governor Keith, a separate Court of Equity was provided. It lasted sixteen years, and was not interfered with by the home government. It is to be observed that the other attempts were all law courts with an equity side. But this court, founded in 1720, was the first and only separate Court of Equity Pennsylvania has ever had. Considerable business was transacted by it. But unfortunately for the court’s existence the Governor was its Chancellor, and the colonists were so jealous of any power exercised by the King of England, or his representative the Governor, that in 1736 they brought to an end the only real Court of Chancery they ever possessed.5

For the next hundred years—that is to say, until the final grant of equity powers in 1836,—the lovers of Chancery met with even less success. By the Constitution of 1776 they got for the law courts the powers of equity so far as related to perpetuation of testimony, obtaining evidence outside of the State, and the care of the persons and estates of the insane. The Legislature was at the same time allowed to grant such other Chancery powers as might be found necessary. But no other powers were granted, except a method of supplying lost deeds and writings, and a proceeding in the nature of a bill of discovery against garnishees in foreign attachment. The Constitution of 1790 mended matters by giving somewhat larger discretionary powers to the Legislature. But that conservative assembly exercised them only to the extent of letting the courts appoint and dismiss trustees, compel them to account, compel answers on oath in certain cases of execution, and when the vendor of lands had died, complete the contract of sale.1 The inconvenience of this meagre grant was a little alleviated by the Legislature’s appointing a ‘Committee of Grievances,’ which in cases of great hardship gave liberal relief.2

Throughout the whole early history of Pennsylvania, it appears that there was always a party which wanted Courts of Chancery, and sometimes succeeded in getting them. This party was hindered in the colonial times by the British Government continually repealing the Colony’s laws. They had an equally troublesome obstacle in the endless feuds between the colonists and their successive Governors.3 These quarrels were so bitter and hard-fought that law-making and the execution of the laws were often forgotten. ‘If we have lived free from open rapine,’ said one of the Governors, ‘ ’tis more owing to the honesty of the people than any public provision made against it!’4 Before and immediately after the Revolution the same party was thwarted by the jealousy which the people felt for any exercise of unusual power. And in later years they were opposed in the Legislature and throughout the State by another party. This new party took the ground that Chancery Courts were contrivances of the Devil to defeat justice, and that Pennsylvania had a system of equity of her own, which was complete in itself, and would in time reform the world.

So, with the exception of the sixteen years from 1620 to 1636, the Courts of Pennsylvania were, for over a hundred and fifty years, left in this predicament—that, in an enlightened community whose trade and commerce were growing every day, they were obliged to administer justice without the aid of a Court of Equity. It is not surprising that they struck out into a new path and did something unheard of in the annals of Anglo-Saxon jurisprudence. If their action was a piece of judicial audacity, it was authorized and justified by the circumstances.1

The precise time at which the courts began to administer equity through common law forms is not known. Some say it was done from the beginning.2 The first reported case3 on the subject was decided in 1768. It was an action of debt on a bond, and the defendant offered to prove failure4 of consideration. The court admitted the evidence, saying, ‘there being no Court of Chancery in this province, there is a necessity, in order to prevent a failure of justice, to let the defendants in, under the plea of payment, to prove mistake, &c.’ The Chief Justice added, that he had known this as the constant practice of the province for thirty-nine years. In 1783 the case of Kennedy v. Fury5 decided that a cestui qui trust of land could bring ejectment in his own name, the court observing that otherwise ‘he would be without remedy against an obstinate trustee.’ These decisions show very clearly how in certain plain cases, and to prevent intolerable hardship, the courts deliberately usurped the necessary powers.

The case of Wharton v. Morris (1785) displays a further development.1 After reciting the lack of Chancery and the resulting grievous inconvenience, Chief Justice McKean says, ‘This defect of jurisdiction has necessarily obliged the court, upon such occasions, to refer the question to the jury under an equitable and conscientious interpretation of the agreement of the parties.’ He then goes on to inform the jury of the equities of the case. In the colonial times the equity thus charged to the jury was not technical. It was the so-called natural justice, named by Austin the ‘arbitrium of the judge.’ It is still almost the only rule of legal decision among the Turks and Arabs. Haroun-al-Raschid excelled in it. But in an advanced stage of civilization it is impossible. Its existence in Pennsylvania is very apparent in the leading case of Pollard v. Shafer (1787).2 The Chief Justice there says, ‘A Court of Chancery judges of every case according to the peculiar circumstances attending it, and is bound not to suffer an act of injustice to prevail.’ Equity, as a system in itself, with settled and unchanging rules, was apparently neither studied nor appreciated.3

The dangers of charging equity to the jury were often felt. ‘Before the Revolution,’ said Mr. William Rawle, ‘when the bench was rarely graced by professional characters, juries were almost the same as Chancellors.’4 Chief Justice Gibson said in Lighty v. Short,5 ‘The greatest practical evil of the doctrine is, that it subjects the contract to the control of a jury, prone to forget that to cut a man loose from his contract from motives of humanity is the rankest injustice.’ In his eulogium on Chief Justice Tilghman, Binney calls it, ‘a spurious equity compounded of the temper of the judge and of the feelings of the jury, with nothing but a strong infusion of integrity to prevent it becoming as much the bane of personal security as it was the bane of science.’6 After the Revolution efforts were continually made—notably by Chief Justice Tilghman—to get rid of some of the evils of having the science of equity change with every new jury. The technical doctrines of the English Chancery were studied, and natural equity disappeared. In its reformed condition charging equity to the jury is still the law of Pennsylvania. The judge is the Chancellor, and the jury assist him by deciding on the weight of evidence and finding the facts. The judge may withdraw the case from the jury if satisfied that the testimony, even if believed, is not sufficient to establish the equity. If the jury disregard the equity laid down by the judge, the same remedy exists as when they disregard the law.1

The next characteristic to be observed in the Pennsylvania system, is the rule which allows the defendant, in an action-at-law, to plead an equitable defence. This he may do by offering it in evidence (with notice) under the pleas of payment, non-assumpsit, or performance, which have become equitable pleas in Pennsylvania. If his defence does not properly come under one of these pleas he can set it up specially.2 This method of working equity through common law forms was probably adopted at a very early date. The case of Swift v. Hawkins cited above, and decided in 1768, is an instance of an equitable defence admitted under the plea of payment. The court speaks of the custom as one of long existence. It is probable that this method and that of charging the equity to the jury, were the first contrivances for obviating the lack of Chancery powers. Allowing the defendant to set up an equitable defence was soon extended by allowing the plaintiff to rebut it.3 By such means many opportunities were given in actions-at-law for the consideration of the principles of equity.

The next advance was to allow the plaintiff to begin proceedings by setting out in his declaration a purely equitable right, making the declaration somewhat resemble a bill in equity.1 This practice was apparently not introduced until a rather late period, when the advancing civilization of the State had made the position of plaintiffs unbearable; for they could make no use of an equity except to rebut one used by the defendant. The first case was in 1791.2 The plaintiff sued in debt on a bond, but at the trial was unable to make profert because the bond had been lost. A juror was withdrawn by consent and the case went over. The plaintiff then took a rule on the defendant to show cause why the declaration should not be amended by striking out the profert and averring the loss of the instrument. The rule was made absolute, and the plaintiff allowed to amend. The court gave the old reason, that there was no Chancery, and there would be a failure of justice unless some such arrangement were made. This decision was followed by similar ones, until it became a settled rule, that when the common law forms were inadequate, a declaration might be framed setting out the equity of the plaintiff and suited to the circumstances of the case.3 It is very curious that, in 1789, only two years before this Pennsylvania case, Lord Kenyon made the same decision in England. It was the case of Read v. Brookman.4 Austin cites it as a rare instance of liberal-mindedness in a common-law judge, and also as showing the absurdity of the distinction between law and equity.5 Unlike the Pennsylvania case it remained solitary and did not become one of the starting points of a new system in England; but was cited in Commonwealth v. Coates and helped to develop the Pennsylvania system.

The equitable rights of the plaintiff received a further extension by the turning of certain well-known common law actions into equitable ones. Thus ejectment became an equitable action, and the plaintiff without a special declaration could recover on a purely equitable title. The exact date of this innovation is unknown; but in the first reported case (1811) it is spoken of as an old custom.1 The action of replevin was changed in the same way, and made to apply to every case of disputed title to goods.2 The writ of estrepment with the aid of a little tinkering supplied the place of an injunction to restrain waste on land.3 The foreclosing of mortgages was provided for by statute.4 When a judgment-at-law was obtained unfairly, instead of resorting to a bill in equity, a rule was taken to show cause why the judgment should not be opened and the party complaining let into a defence on the merits.5 The assignee of a right of action was always treated as the real plaintiff.6 To complete the system, equitable rights in land were made subject to the lien of a judgment.7 And finally, the Orphans Court, which may be described in a general way as a court having control of everything relating to decedents’ estates, has always been, so far as its jurisdiction extends, a court with full equity powers.8

Such were the methods by which the Courts of Pennsylvania tried to solve the problem that was forced upon them. They dug channels in the barriers of the common law, and through them they attempted to make the waters of equity flow. They succeeded to this extent, that in most law trials, equitable doctrines applicable to the case could be considered. But when it came to remedies, and the practical execution of the doctrines so considered, they signally failed. It is easy enough for a law court to say that it will hear equitable arguments and frame its judgments accordingly. But for carrying out those judgments, the common law method of execution offers no adequate substitute for the equitable proceedings of injunction, specific performance, quia timet, and discovery. It is in methods of administration that equity excels the common law, as much as, if not more than, in doctrine. The Pennsylvania law courts were daring enough to usurp the doctrine, but all their ingenuity could not obtain for them the practical remedies. Of course in many cases where equitable principles were applied, the common law method of damages and execution was enough; and if the defendant set up an equity which defeated the plaintiff, that ended the matter. But whenever specific performance was necessary, the only way of enforcing the equity (except in the cases of ejectment and replevin already mentioned) was by conditional damages. Thus in Clyde v. Clyde (1791), the plaintiff’s right to a watercourse was disturbed by the defendant. The judge charged the jury to award large damages, and the plaintiff’s attorney agreed to release them when the defendant should give a secure grant of the watercourse.1

The sum of the whole matter is, that the courts contrived, by special declarations, pleas, &c., to bring up for consideration in law trials, the doctrines of equity; and they succeeded in partly administering those doctrines, in some cases by the ordinary common law methods, in others by conditional damages, and in others by such actions as ejectment, replevin, estrepment, rule to open judgment, &c., which they themselves invented or the Legislature invented for them. Here they stopped. They squeezed equity part way into the common law; but it would not go all the way. The whole subject of preventive justice was left outside. They never found a common law substitute for injunctions, bills quia timet, or discovery. Without these the administration of justice would in modern times be at a standstill.

Pennsylvania was not the first place where equity was administered through common law forms. The idea is said to be as old as the Year Books; and here and there in the common law isolated instances of it can be found. The law of bailments is in great part equitable; so is the action of assumpsit for money had and received; and the doctrines of relief from the penalty of a bond, of contribution among sureties, of discharge of the surety, by giving time to the principal, are all instances of equity administered at common law. There are also certain old and almost obsolete actions, which accomplish very much the same result as a bill in equity. The writ of audita querela prevents the improper enforcement of a judgment, the writ of estrepment prevents waste, warrantia chartae prevents a suit for land by any action in which the defendant cannot call on his warrantor, curia claudenda compels the owner of land to enclose it, ne injusti vexes prevents unfair distraint.1

These and many other examples were often cited by Pennsylvania lawyers to show that the good old common law was equal to every emergency and all the principles of equity could be administered in it.2 Laussat in his famous essay developed this point ingeniously. He proposed to revive the ancient writs, and if the courts were not bold enough to strip them of their technical absurdities, to persuade the Legislature to do it. In all cases which could not be covered by these writs or by the methods already in vogue, he suggested that the writ of scire facias be used.3 He argued, that as there was no act, from the performance of which a party could not be called upon to show cause why he should not be enjoined, and as the writ allowed of the joining of all parties interested, there was no reason why writs of scire facias should not become complete substitutes for bills in equity. As a substitute for bills of account he offered to reform the old common law action of account render.

But neither the Legislature nor the courts followed these suggestions. The Pennsylvania system remained as it was, partly successful, yet unable to supply the needs of an active commercial state. Still there were those who loved it, and, when it was called a ‘bungling substitute’ or an ‘hybridous monster without the virtues of either parent,’ their wrath was kindled. Said Chief Justice Black in Finley v. Aitken,4 ‘I think it not an ignorant prejudice, but high political wisdom, which caused our ancestors to refuse a Court of Chancery any place among their judicial institutions. . . . The administration of law blended and mixed with equity principles was a happy conception. It was no “bungling substitute,” but a most admirable improvement of both legal and Chancery practice. . . . It is to be fervently hoped that we will not now extinguish the light by which the world has been walking.’

To this day there are good lawyers in the State who maintain that the Act of 1836, giving equity power to the courts, was unnecessary. It could have been dispensed with, they say, if the judges had only been a little more pliant and ingenious. Certainly it must be admitted, that, if we could have done without it, our State would stand alone in the juridical honour of having demonstrated that the distinction between law and equity is an absurdity. But the fact is otherwise. The people tried to do without equity, and after many attempts and more than a hundred years of consideration found that they could not. There is of course always the chance that the majority may be wrong. But the majority in this case agreed with all the other majorities which have had to decide the same question.

Writers on jurisprudence tell us that our distinction between law and equity is illogical and unnecessary; judged by scientific principles it should not exist; that wherever equity appears, whether in Rome or in England, it is merely an historical accident; it is unknown in France, and would be unknown to us, if it were not for certain peculiar circumstances attending the infancy of our system. But on the other hand, it must be admitted that law, though in part composed of logical reasoning, is also a thing of growth, influenced by custom and individual opinions. If it has taken for itself a certain method of formation, it is in vain that you ignore or try to eradicate that method. The experience of Pennsylvania is a proof that equity, though unscientific, is in our law necessary and vital. It may make an unreasonable distinction; but still it is a form which the law has assumed, and to try to cut it out or join it to something else, is very much like attempting similar improvements on the human body. The modern codes, which turn all forms of action into one, have not been able to abolish the distinction. No code has ever enacted an abridgment of equity’s principles; but, on the contrary, they are always adopted entire. It baffled the astuteness of the Pennsylvania judges to find a substitute for the preventive remedies of equity. The codes have met with no better success, and have taken injunctions, quia timet and the rest, with changed names perhaps, but without diminishing or adding aught in substance.1 The great Mansfield thought he could amalgamate law and equity; and men not so great as he have had the same dream. But they are all alike in failure. Pennsylvania’s attempt shows how far the distinction is meaningless and how far it is to be respected. The doctrines can be combined with legal forms, but not the remedies.

In 1830 the Legislature appointed a commission of three to revise the whole civil law of the State. These three men deserved well of the Commonwealth, and the eight reports they submitted to the Legislature remain as an everlasting monument to their skill. In no respect did they show themselves to better advantage than when they came to the vexed question of courts of equity. They were able lawyers and knew exactly what the Pennsylvania system was worth; and they had made up their minds that it was not equal to supplying the wants of the people. But being wise in their generation, they were careful to heap on it lavish praises, to call it a combination of all that was good; at the same time they thoroughly analyzed it, and quietly suggested that full Chancery powers be given the law courts in the following cases:—

(1) trustees, (2) trusts, (3) control of private corporations, unincorporated societies and partnerships, (4) discovery of facts material to any case, (5) interpleader, (6) injunction, (7) specific performance.

This included nearly the whole jurisdiction of Chancery, and was a severe commentary on the Pennsylvania system. The Legislature could swallow only part of it. In 1836 they gave to the Courts of Philadelphia alone all the equity jurisdiction suggested by the commissioners. To the rest of the State they gave jurisdiction only in the first three cases above mentioned.

But the ice was broken. In 1840 Philadelphia got Chancery power in cases of fraud, accident, mistake and account; and the rest of the State in cases of account. In 1844 Allegheny county got the same jurisdiction as Philadelphia. In 1845 Philadelphia was given equity power in dower and partition. And so it went on from one point to another until in 1857 the equity jurisdiction was made the same throughout the State. Since then and up to the present time there have been other, but less important, grants. In one or two of them Philadelphia has shown that she still possesses her ancient and superior influence with the Legislature.1

This legislative grant does not interfere with the administration of equity through common law forms.2 That system continues to exist, and is used whenever the occasion requires it. It has served and still serves a useful purpose. It was the result of hard necessity, and under the circumstances that attended the early days of the State no better arrangement could have been made. If it has failed of complete success it is a failure in attempting great things.

[1 ]This essay was first published in the Law Quarterly Review, vol. I, pp. 162-174 (1885), and has been revised by the author for this Collection.

[2 ]Associate Justice of the Supreme Court of the United States, since 1902. Harvard University, A. B. 1861, LL. B. 1866, LL. D. 1895; Yale University, LL. D. 1886. Member of the Boston Bar, 1866-1882; editor of the American Law Review, 1870-1873; professor of law in Harvard University, 1882; associate justice of the Supreme Court of Massachusetts, 1882-1899, and chief justice of the same, 1899-1902.

Other Publications: The Common Law, 1881; twelfth edition of Kent’s Commentaries, 1873; and articles in legal periodicals.

[3 ]4 Rot. Parl. 84 (3 Hen. V. pt. 2. 46, no. xxiii).

[4 ]See writ addressed to sheriff, Rot. Claus. 16 Hen. III. m. 2 dorso in 1 Royal Letters, Hen. III. (Rolls ed), 523. Proc. Privy Council (Nicholas) passim. Stat. 20 Ed. III. c. 5. The penalty was usually money, but might be life and limb; 1 Proc. Priv. Counc. (21 R. II. ad 1397). The citation of Rot. Parl. 14 Ed. III. in 1 Roll. Abr. 372, which misleads Spence (1 Eq. 338 n.) and earlier and later writers, should be 14 Ed. IV. (6 Rot. Parl. 143), as pointed out already by Blackstone, 3 Comm. 52 n. We also find the writ Quibusdam certis de causis, a writ in the form of the subpoena except that it omitted the penalty; Palgrave, King’s Council, pp. 131, 132, note X; Scaldewell v. Stormesworth, 1 Cal. Ch. 5.

[5 ]See Audeley v. Audeley, Rot. Claus. 40 Ed. III, ‘sur peine de sys mill livres au paier au roy,’ cited Palg. King’s Council, 67, 68; 2 Cal. Ch. x. See prayer in 3 Rot. Parl. 61 (2 R. II. 26). Imprisonment for contempt again is older than the Chancery, e. g. Mem. in Scacc. 27 (M. 22 Ed. I) in Maynard’s Y. B. part 1.

[1 ]Glanvill, Prologus, Bracton, fol. 23b; ib. 3 b, ‘Aequitas quasi aequalitas.’ Fleta, ii. c. 55, § 9. Petition of Barons, c. 27 (ad 1258), in Annals of Burton (Rolls ed.), 443, and Stubbs, Select Charters, for remedy ex aequitate juris by writ of entry or otherwise. Dictum de Kenilworth, pr. (ad 1266) Stat. of Realm, 51 Hen. III, and Stubbs, Select Charters; Close Rolls of Hen. III, cited in Hardy, Int. to Close Rolls, xxviii. n. 5 (8vo. ed. p. 111). So ‘right and equite,’ letter missive of Hen. V. to Chancellor, I Cal. Ch. xvi.

[2 ]Supervisory powers of Council over the Court, 1 Gesta Hen. II. (Ben Abbas, Rolls ed.), 207, 208; Assize of Northampton, § 7, ib. 110; and in Stubbs, Select Charters. Jurisdiction of Curia Regis over pleas of land, not coming there as a matter of course, acquired by special order: ‘Quod debeat vel dominus Rex velit in curia sua deduci;’ Glanv. i. c. 5. Jurisdiction of actions of contract de gratia; Bracton, fol. 100 a; Case referred by Chancellor to Curia Regis, 38 Ed. III., Hardy, Int. to Close Rolls, xxix (8vo. ed. 113 n.). Grants of jurisdiction de gratia in the form of Special Commissions of oyer and terminer complained of, Palgr. King’s Council, §§ 12, 13, pp. 27-33; Stat. Westm ii (13 Ed. I.) c. 29; 1 Rot. Parl. 290 (8 Ed. II. no. 8); Stat. Northampton (2 Ed. III.), c. 7; 2 Rot. Parl. 286, 38 Ed. III. 14, no. vi; 3 Rot. Parl. 161 (7 R. II. no. 43).

As to cases terminated before the Council, see Rot. Claus. 8 Ed. I. m. 6 dorso, in Ryley, Plac. Parl. 442, and in 2 Stubbs, Const. Hist. 263. n. 1; 2 Rot. Parl. 228 (25 Ed. III. no. 16; cf. no. 19). 3 Rot. Parl. 44 (3 R. II. no. 49) seems mistranslated by Parkes, Hist. Ct. of Ch. 39, 40. Matters at common law and of grace to be pursued before the Chancellor; Rot. Claus. 22 Ed. III. p. 2. m. 2 dorso, cited Hardy, Int. to Close Rolls, xxviii. (8vo. ed. 110), and Parkes, Hist. Court of Ch. 35, 36, n. See Stat. 27 Ed. III. st. 1. c. 1; Stat. 36 Ed. III. st. 1. c. 9. All the reported cases in Chancery through Henry V., with the exceptions which have been mentioned, are trespasses, disseisins, and the like. And the want of remedy at law is generally due to maintenance and the power of the defendant, or in one instance to the technical inability of the plaintiff to sue the defendant (2 Cal. Ch. viii.), not to the nature of the right invoked. The object of the repeated prayers of the Commons from Richard II. to Henry VI. directed against the Council and the Chancellor, was that common law cases should be tried in the regular courts, not that the ancient doctrine might prevail over a younger and rival system. See Adams, Equity, Introduction, xxxiii-xxxv.

[3 ]Beseler, i. §§ 15, 16; Heusler, Gewere, 478. Compare 2 Cal. Ch. iii.; 1 id. xlviii. and passim. ‘Pernancy of profits, execution of estates, and defence of the land, are the three points of the trust’ or use. Bacon, Reading on Stat. of Uses, Works (ed. Spedding), vii. p. 401; 1 Cruise, Dig. Title XI. ch. 2. § 6; see Tit. XII. ch. 1. § 3; ch. 4. § 1. Some of the first feoffments to the use (ad opus) of another than the feoffee which I have found mentioned by that name seem to have been a means of conveying property to the cestui que use in his absence, very like the earliest employment of the salman. But as the conveyances are supposed to be made to servants of private persons (Bract. fol. 193 b) or officers of the king, it may be doubtful whether any inference can be drawn from them; 1 Royal Letters, Henry III. pp. 122, 420; cf. 421 (ad 1220, 1223). Compare Provisions of Oxford (Oath of guardians of king’s castles) in Annals of Burton (Rolls ed.), 448, and Stubbs, Select Charters. And it seems doubtful whether the expression ad opus was used at first in a technical sense, e. g. ‘castellum Dofris . . . ad opus meum te facturum,’ Eadmer (Rolls ed.), 7. ‘Ad opus ejusdem mulieris,’ 2 Gesta Hen. II. (Ben. Abbas, Rolls ed.), 160, 161; Y. B. 3 Ed. III. 5. pl. 13; 2 Rot. Parl. 286 (38 Ed. III. 14, no. vi).

But as early as 22 Ass. pl. 72. fol. 101, in the case of a gift alleged to be fraudulent, we find the court inquiring who took the profits, and on the inquest answering that the donor did, Thorp declares that the gift only made the donee guardian of the chattels to the use of the donor. See further St. 7 R. II. c. 12.

[1 ]Adams, Equity, Introd. xxxv.

[2 ]Beseler, Erbverträgen, i. § 16. pp. 277 et seq., 283, 271.

[1 ]Beseler, i. § 16. pp. 277 et seq.; Heusler, supra. Nearly every feoffment mentioned in the Calendars of Proceedings in Chancery down to the end of Henry VI. is for the purpose of distribution after death. 1 Cal. Ch. xxi. xxxv. xliii. liv. lv. lvi; 2 id. iii. xix. xx. xxi. xxii. xxxiii. xxxvi. etc. Abbrev. Plac. 179. col. 2, Norht. rot. 15 do.; ib. 272, H. 9 Ed. I, Suff. rot. 17. Fitz. Abr. Subpena, pl. 22, 23; Littleton, § 462.

[2 ]Beseler, i. p. 283; 2 Cal. Ch. iii.

[3 ]Beseler, i. p. 271.

[4 ]Beseler, i. p. 267; ‘Fidei suae committens,’ ib. 286. Compare the references to good faith in all the bills in Cal. Ch.

[5 ]Beseler, i. pp. 265-267; 2 Cal. Ch. iii. xxviii.; 1 id. lv.

[1 ]Beseler, Erbverträgen, i. pp. 284-288; Brunner in 1 Holtzendorff, Encyclop. (3rd ed.), 216; cf. Littleton, § 168.

[2 ]Glanv. vii. c. 8; see xiii. c. 15; Dial. de Scaccario, II. 18; Regiam Majestatem, II. c. 39.

[3 ]Glanv. vii. c. 6-8.

[4 ]As to the functions of the executor in the time of Bracton, see The Common Law, 348, 349, and further, Bracton, fol. 407 b, ‘Et sicut dantur haeredibus contra debitores et non executoribus ita dantur actiones creditoribus contra haeredes et non contra executores.’ Ibid. fol. 98 a, 101 a, 113 b; Stat. 3 Ed. I. c. 19. The change of the executor to universal successor upon the obvious analogy of the haeres was inevitable, and took place shortly after Bracton wrote. It was held that debt lay against and for executors; Y. B. 20 & 21 Ed. I. 374; 30 Ed. I. 238. See further, Stat. Westm. ii. 13 Ed. I. cc. 19, 23 (ad 1285); Fleta, ii. c. 62. §§ 8-13; c. 70. § 5; and c. 57. §§ 13, 14, copying, but modifying, Bract. fol. 61 a, b, 407 b supra. As to covenant, see Y. B. 48 Ed. III. 1, 2. pl. 4. The heir ceased to be bound unless named; Fleta, ii. c. 62. § 10; The Common Law, 348; cf. Fitz. Abr. Dett. pl. 139 (P. 13 Ed. III.). Finally, Doctor and Student, i. c. 19, ad finem, speaks of ‘the heir which in the law of England is called the executor.’ In early English, as in early German law, neither heir (Y. B. 32 & 33 Ed. I. 507, 508) nor executor was liable for the parol debts of ancestor or testator (Y. B. 22 Ed. I. 456; 41 Ed. III. 13. pl. 3; 11 Hen. VII. 26; 12 Hen. VIII. 11. pl. 3; Dr. and Stud. ii. c. 24), because not knowing the facts they could not wage their law: Y. B. 22 Ed. I. 456; Laband, Vermögensrechtlichen Klagen, pp. 15, 16.

[1 ]Cf. Bract. fol. 407 b.

[2 ]Abbr. Plac. 284, 285 (H. 19 Ed. I. Devon. rot. 51). Note the likening of such tenements to chattels, Bract. 407 b; 40 Ass. pl. 41; Co. Lit. 111 a.

[3 ]39 Ass. pl. 6, fol. 232, 233, where there is no question of the executor, but special custom determines whether the devisee shall enter, be put in by the bailiff, or have the writ. In Littleton’s time the devisee’s right of entry was general; § 167; Co. Lit. 111. As to the writ, see 40 Ass. pl. 41. fol. 250; F. N. B. 198 L. et seq.; Co. Lit. 111. The only writ mentioned by Glanvill seems to be given to the executor, or if there is no executor to the propinqui; lib. vii. cc. 6, 7. Of course I am not speaking of cases where the executors were also the devisees, although even in such cases there was a tendency to deny them any estate, if there was a trust; 39 Ass. pl. 17; Litt. § 169.

[4 ]Abbrev. Plac. 179. col. 2; Norht. rot. 15 in dorso.

[5 ]4 Matt. Paris, Chron. Maj. (Rolls ed.) 605, ad 1247.

[1 ]Cal. Ch. xliii.; S. C. Digby, Hist. Law of Real Prop. (2nd ed.), 301, 302. Cf. Heusler, Gewere, 478, citing Meichelbeck (1 Hist. Fris Pars instrumentaria), no. 300; ‘Valida egritudine depressus traditionem in manus proximorum suorum posuit, eo modo, si ipse ea egritudine obisset, ut vice illius traditionem perfecissent.’

[2 ]3 Rot. Parl. 60, 61 (2 R. II. nos. 25, 26).

[3 ]Babington v. Gull, 1 Cal. Ch. lvi.; Mayhewe v. Gardener, 1 Cal. Ch. xcix, c.

[4 ]Y. B. 8 Ed. IV. 5. pl. 12. In Mayhewe v. Gardener, 1 Cal. Ch. xcix, c, the defendant, who had received all the property of a deceased person by gift in trust to pay debts, etc., was decreed to pay dilapidations for which the deceased was liable.

[5 ]Glanv. vii. c. 1. § 3; Annals of Burton (Rolls ed.), 421 (ad 1258); Bracton fols. 38 a, b, 39 b, 169 b, 194 b, 213 b, § 3, 214 b; Abbr. Plac. 272 (H. 9 Ed. I.), Suff. rot. 17; 1 Cal. Ch. liv. lv.; Beseler, Erbvertragen, i. § 15, p. 261; § 16. pp. 277 et seq.; Heusler, Gewere, pp. 1, 2; Sohm, Eheschliessung, p. 82; Schulte, Lehrb. d. Deutsch. R. u. Rechtsgesch. § 148 (5th ed.), pp. 480 et seq.

[6 ]Annals of Burton (Rolls ed.), 421 (ad 1258).

[1 ]Graysbrook v. Fox, Plowd. 275, 280, 281.

[2 ]Stat. 50 Ed. III. c. 6; 1 R. II. c. 9 ad fin.; 2 R. II. Stat. 2, c, 3; 15 R. II. c. 5; 4 Hen. IV. c. 7; 11 Hen. VI. cc. 3, 5; 1 Hen. VII. c. 1; 19 Hen. VII. c. 15; Rothenhale v. Wychingham, 2 Cal. Ch. iii. (Hen. V.); Y. B. 27 Hen. VIII. 8; Plowden, 352; Litt. §§ 462, 464; Co. Lit. 272 b. So 1 Cruise, Dig. Tit. 12. ch. 4. § 9: ‘if the trustee be in the actual possession of the estate (which scarce ever happens).’

[3 ]Heusler, Gewere, 51, 52, 59; Brunner, Schwurgerichte, 169, 170; Laband, Vermögensrechtlichen Klagen, 160; 1 Franken, Französ. Pfandrecht, 6.

[4 ]Jackson, Real Actions, 348 and passim. See Statutes last cited, and Stat. 32 Hen. VIII. c. 9. sect. 4.

[1 ]1 Franken, Französ. Pfandr. 6.

[2 ]Heusler, Gewere, 126, 423, 424.

[3 ]Heusler, Gewere, 424.

[4 ]See Statutes before cited, p. 167, n. 3, 1 L. Q. Rev. and 1 R. III. c. 1; 27 Hen. VIII. c. 10.

[5 ]E. g. Rothenhale v. Wychingham, 2 Cal. Ch. iii.

[6 ]The Common Law, 400. See further, Ll. Gul. I. c. 23; Statutum Walliae, 12 Ed. I, ‘Breve de conventione, per quod petuntur aliquando mobilia, aliquando immobilia;’ ‘Per breve de conventione aliquando petitur liberum tenementum.’ Fleta, ii. c. 65. § 12; Y. B. 22 Ed. I. 494, 496, 598, 600; 18 Ed. II. (Maynard), 602, 603; Fitz. Abr. Covenant, passim. This effect of covenant was preserved in the case of fines until a recent date; 2 Bl. Comm. 349, 350, and App. iv. § 1. As to a term of years, see Bract. fol. 220 a, § 1; Y. B. 20 Ed. I. 254; 47 Ed. III. 24; (cf. 38 Ed. III. 24); F. N. B. 145 M.; Andrews’ Case, Cro. Eliz. 214; S. C. 2 Leon. 104; and as to chattels, see Y. B. 27 Hen. VIII. 16. As to the later raising of uses by way of covenant, see Y. B. 27 Hen. VIII. 16; Bro. Abr. Feoffements al Uses, pl. 16; Dyer, 55 (3); ib. 96 (40); ib. 162 (48); Sharington v. Strotton, Plowd. 298, 309.

[1 ]Heusler, Gewere, 479 et seq. See Glanv. vii. c. 9. where the Church is shown to have the settlement of the question whether the will was reasonably made. Cf. ib. c. 1. § 3.

[2 ]Glanv. vii. c. 6 & 8.

[3 ]Decret. Greg. III. Tit. 26. cap. 19. ad 1235.

[4 ]Bract. fol. 407 b, 61 a, b.

[1 ]Nurse v. Bormes, Choyce Cases in Ch. 48. See further Glen v. Webster, 2 Lee, 31. As to common law, see Deeks v. Strutt, 5 T. R. 690; Atkins v. Hill, Cowper, 284, and cases cited.

[2 ]Petition of Barons, c. 25 (Hen. III. ad 1258), Annals of Burton (Rolls ed.), 422; id. Stubbs, Select Charters; Irish Stat. of Kilkenny, 3 Ed. II. c. 4; Stat. 50 Ed. III. c. 6; 1 R. II. c. 9; 2 R. II. Stat. 2, c. 3; 7 R. II. c. 12; 15 R. II. c. 5; 4 Hen. IV. c. 7. See also Statute of Marlebridge, 52 Hen. III. c. 6.

[3 ]2 Rot. Parl. 79 (3 R. II. nos. 24, 25); ib. 60, 61 (2 R. II. nos. 25, 26).

[4 ]3 Rot. Parl. 511 (4 Hen. IV. no. 112, ad 1402).

[1 ]Dodd v. Browning, 1 Cal. Ch. xiii; Rothenhale v. Wychingham, 2 Cal. Ch. iii.

[2 ]2 Rot. Parl. 60, 61 (2 R. II. nos. 25, 26).

[3 ]Co. Lit. 272 b; Bacon, Reading on Stat. of Uses, Works (ed. Spedding), vii. p. 398.

[4 ]The Common Law, ch. xi; see especially pp. 399, 407-409, and, in addition to the books cited on p. 408, notes 1 and 2; Fitz. Abr. Subpena, pl. 22; Dalamere v. Barnard, Plowden, 346, 352; Pawlett v. Attorney-General, Hardres, 465, 469; Co. Lit. 272 b; W. Jones, 127.

[1 ]Somma, ii. c. 26, §§ 2, 3, in 7 Ludewig, Reliq. Manuscript. pp. 313, 314; Grand Coustumier, c. 88 & 90; Statutum Walliae, 12 Ed. I: ‘Si vero Debitor venerit, necesse habet Actor exprimere petitionem, et rationem sue petitionis, videlicet, quod tenetur ei in centum marcis, quas sibi accommodavit, cujus solutionis dies preteriit, vel pro terra, vel pro equo, vel pro aliis rebus seu catallis quibuscunque sibi venditis, vel pro arreragiis redditus non provenientis de tenementis, vel de aliis contractibus,’ etc. Y. B. 39 Ed. III. 17, 18, ‘issint il est quid pro quo;’ 3 Hen. VI. 36. pl. 33; 7 Hen. VI. 1. pl. 3; 9 Hen. VI. 52 pl. 35; 11 Hen. VI. 35. pl. 30 at fol. 38; 37 Hen. VI. 8. pl. 18. See also ‘Justa debendi causa’ in Glanv. x. c. 3; Dial. de Scacc. ii. c. 1 & 9; Fitz. Abr. Dett. pl. 139; Y. B. 43 Ed. III. 11. pl. 1. Form of Count given by 1 Britton (ed. Nichols), 161, 162. pl. 12, Y. B. 20 & 21 Ed. I. App. 488, ‘Marchandise’ ground of debt. Sohm, Eheschliessung, p. 24; 1 Franken, Franzos. Pfandr. § 4. p. 43; Schulte, Reichs- u. Rechtsgesch. § 156 (4th ed.), p. 497. Consideration is first mentioned in equity in 31 Hen. VI., Fitz. Abr. Subpena, pl. 23; Y. B. 37 Hen. VI. 13. pl. 3, and by the name quid pro quo. So in substance as to assumpsit: Y. B. 3 Hen. VI. 36. pl. 33.

The interpretation of Fleta, ii. c. 60. § 25 by the present writer in The Common Law, 266, is rightly criticised in Pollock, Contr. (3rd ed.), 266, as appears by comparing the more guarded language of Bracton, 15 b.

[2 ]Somma, i. c. 62, ii. c. 24; 7 Ludewig, 264, 309; Grand Coustum, c. 89 (cf. Bract. fol. 149 b. § 6; The Common Law, 260, 264. See, beside authorities there cited, F. N. B. 122 K; ib. I in marg., 137 C; Y. B. 43 Ed. III. 11. pl. 1; 9 Hen. V. 14. pl. 23. Car. M. Cap. Langob. ad 813, c. 12, ‘Si quis pro alterius debito se pecuniam suam promiserit redditurum in ipsa promissione est retinendus,’ cited Loning, Vertragsbruch, 62, n. 1.

In 2 Gesta Hen. II. (Ben. Abbas, Rolls ed.), 136, sureties make oath to surrender themselves if the agreement is broken. Sohm, Eheschliessung, 48, goes so far as to argue that the oath was simply one substitute for the Salic formal contract. But I find no evidence that the oath was necessary in England, unless for ecclesiastical jurisdiction. 2 Gesta Hen. II. p. 137.

[1 ]See, e. g., 1 Franken, Französ. Pfandr. § 16. pp. 209-216; § 18. pp. 241 et seq.; ib. 261-266.

[2 ]Germ. 24.

[3 ]Y. B. 18 Ed. III. 13. pl. 7; 44 Ed. III. 21. pl. 23; 43 Ed. III. 11. pl. 1. So warranty, which had been merely an incident of a sale (Lex Salica, c. 47; Glanv. x. c. 15 & 17). came to be looked at as a covenant, Y. B. 44 Ed. III. 27. pl. 1; and at a later date bailment was translated into contract. By way of further illustration, I may add that in modern times Consideration has still been dealt with by way of enumeration (see e. g. 2 Bl. Comm. 444; 1 Tidd’s Practice, ch. 1, as to assumpsit), and only very recently has been resolved into a detriment to the promisee, in all cases.

[1 ]Cary, Rep. in Ch. 5; Choyce Cases in Ch. 42.

[2 ]Y. B. 8 Ed. IV. 4. pl. 11; Fitz. Abr. Subpena, pl. 7.

[3 ]Whalen v. Huchynden, 2 Cal. Ch. ii.

[4 ]Compare Letter of Gregory IX. to Henry III., Jan. 10, 1233, in 1 Royal Letters, Henry III. (Rolls ed.), p. 551, ‘Possessiones . . . fide ac juramentis a te praestitis de non revocandis eisdem, sub litterarum tuarum testimoniis concessisti,’ with Sententia Rudolfi Regis, ad 1277, Pertz, Monumenta, Leges ii. p. 412; ‘Quaesivimus . . . utrum is qui se datione fidei vel juramento corporaliter prestito, vel patentibus suis litteris, ad obstagium vel solutionem alicujus debiti ad certum terminum obligavit, nec in ipso termino adimplevit ad quod taliter se adstrinxit de jure posset . . . per iudicium occupari? Et promulgatum extitit communiter ab omnibus, quod is, qui modo predicto . . . promisso non paruit, valeat, ubicumque inveniatur, auctoritate iudiciaria conveniri.’

[1 ]Lex Salica (Merkel), c. 50; Lex Ripuaria, c. 58 (60). § 21; Sohm, Eheschliessung, 48, 49, notes; 1 Franken, Französ. Pfandr. 264 n. 2.

[2 ]Eadmer (Rolls ed.), 7, 8, 25; Dial. de Scacc. ii. c. 19; 2 Gesta Hen. II. (Ben. Abbas), 134-137; 3 Roger Hoved. (Rolls ed.), 145; Glanv. vii. c. 18; x. c. 12; 1 Royal Letters, Henry III. (Rolls ed.), 308; Bract. 179 b. Cf. id. 175 a, 406 b, &c.; Reg. Majest. ii. c. 48. § 10; c. 57. § 10; Abbrev. Plac. 31. col. 1 (2 Joh. Norf. rot. 21); 22 Ass. pl. 70. fol. 101.

[3 ]Glanv. x. c. 8; Bract. 100 a.

[4 ]The fluctuations of the struggle may be traced in the following passages: ‘Item generaliter omnes de fidei laesione vel juramenti transgressione quaestiones in foro ecclesiastico tractabantur.’ ad 1190. 2 Diceto (Rolls ed.), 87; 2 Matt. Paris, Chron. Maj. (Rolls ed.), 368. ‘Placita de debitis quae fide interposita debentur vel absque interpositione fidei sint in justitia Regis.’ Const. Clarend. c. 15; Glanv. x. c. 12; Letter of Thomas a Becket to the Pope, ad 1167, 1 Rog. Hoved. (Rolls ed.), 254. Agreement between Richard and the Norman clergy in 1190, Diceto and Matt. Par. ubi supra. As to suits for breach of faith, outside of debts, in the Courts Christian, circa 1200, Abbrev. Plac. 31. col. 1 (2 Joh.), Norf. rot. 21. ‘Prohibetur ecclesiasticus judex tractare omnes causas contra laicos, nisi sint de matrimonio vel testamento.’ ad 1247, 4 Matt. Paris (Rolls ed.), 614. Resistance to this, Annals of Burton (Rolls ed.), 417, 423; cf. ib. 256. But this prohibition fixed the boundaries of ecclesiastical jurisdiction.

[1 ]22 Lib. Ass. pl. 70. fol. 101. Cf. Glanv. vii. c. 18, ‘propter mutuam affidationem quae fieri solet.’ Bract. fol. 175 a, 406 b, 407, 412 b; Y. B. 38 Hen. VI. 29. pl. 11. But covenant was the only remedy if the contract had been put in writing; Y. B. 45 Ed. III. 24. pl. 30.

[1 ]This essay was first printed in the Law Quarterly Review, vol. I, pp. 443-454 (1885).

[2 ]A biographical notice of this author is prefixed to Essay No. 37, ante, p. 597.

[1 ]This is an independent translation, differing slightly both from that given in the ‘Statutes of the Realm’ and from that given in the ‘Statutes at Large,’ but will, it is believed, be found to agree with the original Latin as printed in 2 Inst., 405.

[1 ]This case exists among the class of documents known in the Public Record Office as ‘County Placita,’ and generally supposed to belong to the Common Law side of the Court of Chancery (County Placita, Essex, No. 75). It was found by chance, during a search made with the object of illustrating, by the corresponding record, a report in the Year Books of a Scire facias in the Chancery. It is, however, but one of innumerable instances in which the legal historian might find altogether new material among the Public Records, and in which the value of the Public Records might be brought into greater prominence by careful study from a legal point of view.

[1 ]It will be perceived that the form of a writ of Scire facias has served as a precedent for this part of the Bill.

[2 ]The distinction between a Plea and an Answer in Chancery was not recognised until a much later period.

[1 ]1 Spence, 345.

[2 ]Rot. Parl. 17 Ric. II. No. 10 (printed, vol. iii. pp. 310-313).

[1 ]1 Spence, 345; Moore, Rep. 554.

[1 ]‘A grant arerisment de lesploit de voz communes leys de vostre roialme.’ Original Parliament Roll, 2 Hen. IV., No. 95. The passage is not quite correctly printed in 3 Rot. Parl. 474 b.

[2 ]Fol. 65 b.

[1 ]The Year Book, Trinity, 14 Edward IV, No. 8.

[2 ]Fol. 77.

[3 ]Again the Year Book, Trinity, 14 Edward IV, No. 8.

[1 ]This essay was first printed in the Harvard Law Review, vol. xxi, pp. 261-274 (1908).

[2 ]Professor of law (Bussey and Dane professorships) in Harvard University, since 1877, and dean of the Faculty of law, since 1895. Harvard University, A. M. 1871, LL. B. 1872, LL. D. 1904; Universities of the City of New York, Wisconsin, Pennsylvania, Northwestern, Williams, Cincinnati, LL. D.; instructor in history, Harvard University, 1872-1873; associate professor of law in the same, 1873-1877.

Other Publications: Cases on Common Law Pleading, 1875; Cases on Partnership, 1881; Cases on Torts, 1881; Cases on Bills and Notes, 1881; Cases on Trusts, 1888; Cases on Admiralty, 1901; Cases on Equity Jurisdiction, 1901-1903; Cases on Suretyship, 1901; and numerous articles in the Harvard Law Review.

[3 ]1 L. Quar. Rev. 162.

[4 ]Adams, Equity, Introd. xxxv.

[1 ]In the action of account, although the final judgment is that the plaintiff recover the amount found due by the auditors, the interlocutory judgment, it is true, is personal, that the defendant account (quod computet). It is significant that this solitary exception in the common law is a judgment against a fiduciary, a trustee of money who by the award of the auditors is transformed into a debtor.

[1 ]Bief v. Dier, 1 Cal. Ch. XI (1377-1399); Brampton v. Seymour, 10 Seld. Soc., Sel. Cas. Ch. No. 2 (1386); Grymmesby v. Cobham, ibid., No. 61 (Henry IV?); Flete v. Lynster, ibid., No. 119 (1417-1424); Stonehouse v. Stanshawe, 1 Cal. Ch. XXIX, (1432-1443).

[2 ]Bernard v. Tamworth, 10 Seld. Soc., Sel. Cas. Ch. No. 56 (Henry IV?); Appilgarth v. Sergeantson, 1 Cal. Ch. XLI (1438); Gardyner v. Keche, 4 The Antiquary 185, s. c. 3 Green Bag 3 (1452-1454).

[3 ]Wheler v. Huchynden, 2 Cal. Ch. II (1377-1399); Wace v. Brasse, 10 Seld. Soc., Sel. Cas. Ch. No. 40 (1398); Leinster v. Narborough, 5 The Antiquary 38, s. c. 3 Green Bag 3, 4 (cited 1480); James v. Morgan, 5 The Antiquary 38, s. c. 3 Green Bag 3, 5 (1504-1515).

[4 ]Farendon v. Kelsey, 10 Seld. Soc., Sel. Cas. Ch. No. 109 (1407-1409); Harleston v. Caltoft, 10 Seld. Soc., Sel. Cas. Ch. No. 116 (1413-1417).

[5 ]In Brampton v. Seymour (1386), 10 Seld. Soc., Sel. Cas. Ch. No. 2, in the writ, Quibusdam certis de causis, the defendant is ordered “to appear and answer and further to do whatever shall be ordained by us.” In Farendon v. Kelsey (1407-1409), ibid., n. 4, the decree was that the defendant “should deliver them [title deeds] to him.” In Appilgarth v. Sergeantson (1438), ibid., n. 2, the prayer of the bill is “to make him do as good faith and conscience will in this part.” See similar prayers in Bernard v. Tamworth (1399-1413), ibid., n. 2; Stonehouse v. Stanshawe (1432-1443), ibid., n. 1.

[1 ]In 1 Nich. Britt. 70 n. (f) the annotator, a contemporary of Britton, says that the king has of necessity jurisdiction of customary devises of land as of a thing annexed to freehold. “For though the spiritual judge had cognizance of such tenements so devised, he would have no power of execution, and testament in such cases is in lieu of charter.”

[2 ]Early Eng. Eq., 1 L. Quar. Rev. 168.

[3 ]In an undated but early petition, Horsmonger v. Pympe, 10 Seld. Soc., Sel. Cas. Ch. No. 123, the cestui que use under a feoffment prays that the feoffee to uses be summoned to answer in the King’s Chancery, “which is the court of conscience,” since he “cannot have remedy by the law of the Holy Church nor by the common law.”

[1 ]Y. B., 10 Hen. IV, f. 3, pl. 3.

[2 ]In a valuable “Note on the Phrase ad opus and the Early History of the Use” in 2 Pollock and Maitland, Hist. of Eng. Law, 232 et seq., the reader will find the earliest allusions to uses of land in England. See also Bellewe, Collusion, 99 (1385); Y. B., 12 Ed. III (Rolls ed.), 172; Y. B., 44 Ed. III, 25 b. pl. 34; Y. B., 5 Hen. IV, f. 3, pl. 10; Y. B., 7 Hen. IV, f. 20, pl. 1; Y. B., 9 Hen. IV, f. 8, pl. 23; Y. B., 10 Hen. IV, f. 3, pl. 3; Y. B., 11 Hen. IV, f. 52, pl. 30. The earliest statutes relating to uses are 50 Ed. III, c. 6; 1 Rich. II, c. 9; 2 Rich. II, St. 2, c. 3; 15 Rich. II, c. 5; 21 Rich. II, c. 3.

[3 ]3 Rot. Parl. 511, No. 112.

[4 ]The earliest bills of which we have knowledge are the following, arranged in chronological order to the end of the reign of Henry VI: Godwyne v. Profyt, 10 Seld. Soc., Sel. Cas. Ch. No. 45 (after 1393); Holt v. Debenham, ibid., No. 71 (1396-1403); Chelmewyke v. Hay, ibid., No. 72 (1396-1403); Byngeley v. Grymesby, ibid., No. 99 (1399-1413); Whyte v. Whyte, ibid., No. 100 (1399-1413); Dodd v. Browing, 1 Cal. Ch. XIII (1413-1422); Rothenhale v. Wynchingham, 2 Cal. Ch. III (1422); Messynden v. Pierson, 10 Seld. Soc., Sel. Cas. Ch. No. 117 (1417-1424); Williamson v. Cook, ibid., No. 118 (1417-1424); Huberd v. Brasyer, 1 Cal. Ch. XXI (1429); Arundell v. Berkeley, 1 Cal. Ch. XXXV (1435); Rous v. FitzGeffrey, 10 Seld. Soc., Sel. Cas. Ch. No. 138 (1441); Myrfyn v. Fallan, 2 Cal. Ch. XXI (1446); Felbrigge v. Damme and Scoles v. Felbrigge, 2 Cal. Ch. XXIII and XXVI (1449); Saundre v. Gaynesford, 2 Cal. Ch. XXVIII (1451); Anon., Fitzh. Abr. Subp., pl. 19 (1453); Edlyngton v. Everard, 2 Cal. Ch. XXXI (1454); Breggeland v. Calche, 2 Cal. Ch. XXXVI (1455); Goold v. Petit, 2 Cal. Ch. XXXVIII (1457); Anon., Y. B., 37 Hen. VI, f. 35, pl. 23; Walwine v. Brown, Y. B., 39 Hen. VI, f. 26, pl. 36; Furby v. Martyn, 2 Cal. Ch. XL (1460).

[1 ]Myrfyne v. Fallan, 2 Cal. Ch. XXI.

[2 ]The beneficiary had no action to compel the performance of the duty of the continental Salman. Schulze, Die Langobardische Treuhand, 145; 1 L. Quar. Rev. 168. Caillemer, L’Exécution Testamentaire, c. IX, expresses a different opinion. But it is certain that nothing corresponding to the English use was developed on the Continent.

[1 ]The earliest decree that we have directed the defendant to make a conveyance. Myrfyn v. Fallan, 2 Cal. Ch. XXI (1446). See the prayers in the following cases: Holt v. Debenham, ibid. (1396-1403), “to do what right and good faith demand”; Byngeley v. Grymesby, ibid. (1399-1413), “answer and do what shall be awarded by the Council”; Whyte v. Whyte, ibid. (1399-1413), “to restore profits of the land”; Williamson v. Cook, ibid. (1417-1424), “to oblige and compel defendant to enfeoff plaintiff”; Arundell v. Berkeley, ibid. (1435), “to compel them to make a sufficient and sure estate of said manors to said besecher.”

[2 ]By the middle of the fifteenth century subpœna was used in the sense of a bill or suit in equity. Fitzh. Abr. Subp. 19 (1453), “I shall have a subpena against my feoffee”; Y. B., 37 Hen. VI, f. 35, pl. 23 (1459), “An action of subpena,” &c.; Y. B., 39 Hen. VI, f. 26, pl. 36 (1461), “A subpena was brought in chancery.”

[3 ]Bailment of chattels to the use of a third person. Y. B., 18 Hen. VI, f. 9, pl. 7. Delivery of money to the use of a third person. Y. B., 33 & 35 Ed. I, 239; Y. B., 36 Hen. VI. f. 9, 10, pl. 5; Clark’s Case, Godb. 210; Harris v. de Bervoir, Cro. Jac. 687. The count for money had and received by B to the use of A is a familiar illustration of this usage.

[4 ]Y. B., 34 Ed. I, 239 (semble); Y. B., 39 Ed. III, f. 17 a; Y. B., 3 Hen. VI, f. 43, pl. 20, and several other cases cited in Ames, Cas. on Trusts, 2 ed., 52, n. 1.

[5 ]Fitzh. Abr. Acct. 108 (1359); Y. B., 41 Ed. III, f. 10, pl. 5 (1367); Bellewe, Acct. 7 (1379); Y. B., 1 Hen. V, f. 11, pl. 21; Y. B., 36 Hen. VI, f. 9, 10, pl. 5; Y. B., 18 Ed. IV, f. 23, pl. 5, and several other cases cited in Ames, Cas. on Trusts, 2 ed., 4, n. 1, n. 2.

[1 ]Anon., Y. B., 21 Hen. VII, f. 18, pl. 30.

[2 ]Bro. Ab. Feff. al Uses, pl. 54 (1533); Anon., Y. B., 27 Hen. VIII, f. 5, pl. 15 (1536), per Shelley, J.; Anon., Y. B., 27 Hen. VIII, f. 8, pl. 22 (1536). See also Bro. Ab. Conscience, pl. 25 (1541); Bro. Ab. Feff. al Uses, pl. 16 (1543).

[3 ]Doct. & St., 18 ed., Appendix, 17; Harg. L. Tr. 334.

[1 ]The word covenant was used at this time not in the restricted sense of undertaking under seal, but meant agreement in the widest sense. See 2 Harv. L. Rev. 11, n. 1, and also Wheler v. Huchynden, 2 Cal. Ch. II; Wace v. Brasse, 10 Seld. Soc., Sel. Cas. Ch. No. 40; Sharrington v. Strotton, Plowd. 298, passim; s. c. Ames, Cas. on Trusts, 2 ed., 109.

[2 ]Bro. Ab. Feff. al Uses, 54, March’s translation, 95.

[1 ]2 Harv. L. Rev. 56.

[2 ]Sharrington v. Strotton, Plowd. 298 (1565), was the first case of the kind.

[3 ]Rowe’s ed., 13, 14; 7 Spedding’s Bacon, 1879 ed., 403, 404.

[1 ]By the courtesy of the publisher the second part of this article is reprinted from 4 Green Bag 81, in which it first apeared under the title: Tyrrel’s Case and Modern Trusts.

[2 ]Digby, Prop., 2 ed., 291.

[3 ]Cornish, Uses, 41, 42.

[4 ]Sugden, Gilbert, Uses, 347, n. 1.

[5 ]Williams, Real Prop., 13 ed., 162.

[1 ]Hopkins v. Hopkins, 1 Atk. 581, per Lord Hardwicke. See also Leake, Prop. 125; 1 Hayes, Convey., 5 ed., 52; 1 Sanders, Uses, 2 ed., 200; 1 Cruise, Dig., 4 ed., 381; 2 Bl. Comm. 335; 1 Spence, Eq. Jurisp., 490.

[2 ]Bro. Ab. Feff. al Uses, 40; ibid., 54; Gilb. Uses, 161 accord.

[3 ]Benl., 1669 ed., 61.

[4 ]Dyer 155, pl. 20.

[5 ]1 And. 37, pl. 96.

[6 ]1 And. 313. See also 2 And. 136, and Daw v. Newborough, Comyns, 242: “For the use is only a liberty to take the profits, but two cannot severally take the profits of the same land, therefore there cannot be an use upon an use.”

This notion of repugnancy explains also why, in the case of a conveyance to A, to the use of A, to the use of B, the statute does not operate at all. The statute applies only to the chancery use, which necessarily implies a relation between two persons. But A’s use in the case put is obviously not such a use, and therefore not executed. The words “to the use of A” mean no more than for the benefit of A. But it is none the less a contradiction in terms to say in the same breath that the conveyance is for the benefit of A and for the use of B. B’s repugnant use is therefore not executed by the statute. Anon., Moore 45, pl. 138; Whetstone v. Bury, 2 P. Wms. 146; Atty.-Gen. v. Scott, Talb. 138; Doe v. Passingham, 6 B. & C. 305. The opinion of Sugden to the contrary in his Treatise on Powers, 7 ed., 163-165, is vigorously and justly criticized by Prof. James Parsons in his “Essays on Legal Topics,” 98.

[1 ]Bro. Ab. Feff. al Uses, pl. 54: Anon., Moore 45, pl. 138; Dillon v. Freine, Poph. 81; Stoneley v. Bracebridges, 1 Leon 5; Read v. Nash, 1 Leon. 148; Girland v. Sharp, 1 Cro. Eliz. 382; Hore v. Dix, 1 Sid. 25; Tippin v. Cosin, Carth. 272.

[2 ]F. 54, a; s. c. Cary 19, where the reporter adds: “And such a consideration in an indenture of bargain and sale seemeth not to be examinable, except fraud be objected, because it is an estoppel.”

[1 ]1 And. 294.

[2 ]Lewin, Trusts, 8 ed., 819.

[3 ]Bacon, Stat. of Uses, Rowe’s ed., 8, 9, 30; 1 Sanders, Uses, 5 ed., 2, 3; 1 Coke 139 b, 140 a.

[4 ]Fourth Inst. 86.

[5 ]2 Rolle 105. See also Crompton, Courts, 58, 59.

[6 ]Moore 761, pl. 1054.

[7 ]2 Bulstr. 336, 337.

[1 ]Digby, Prop., 3 ed., 328. See 1 Spence, Eq. Jurisp., 491.

[2 ]Page 188; s. c. Shep. Touch. 507.

[3 ]Page 265. Compare also pages 507 and 510 of Shep. Touch.

[4 ]1 Ch. Cas. 114.

[1 ]Gilbert, Uses 162. But in 1700 the limitation of a use upon a use seems to have been one of the regular modes of creating a trust. Symson v. Turner, 1 Eq. Cas. Abr. 220. The novelty of the doctrine is indicated, however, by the fact that, even in 1715, in Daw v. Newborough, Comyns 242, the court, after saying that the case was one of a use upon a use, which was not allowed by the rules of law, thought it worth while to add: “But it is now allowed by way of trust in a court of equity.”

[2 ]2 Eden 60.

[1 ]This essay forms §§ 1-35, 46-52, of “A Summary of Equity Pleading,” 1877 (Cambridge: C. W. Sever).

[2 ]1826-1906. Harvard University, A. B. 1849, LL. B. 1853, LL. D. 1875; Beloit College, LL. D. 1875; member of the New York Bar. 1853-1870; Dane professor of law in Harvard University, and dean of the faculty of law in the same, 1870-1895; emeritus professor in the same, 1895-1906.

Other Publications: Cases on the Law of Contracts, 1871; Cases on Sales, 1872; Summary of the Law of Contracts, 1880; Cases in Equity Pleading, 1875; Summary of Equity Pleading, 1877; and articles in the Harvard Law Review.

[1 ]C. 3, 3, 2.

[1 ]“In libello tria debent esse scripta: res quae petitur, et causa petendi, et nomen actionis. Res autem petitur singulariter, ubi est singularis: putà, peto codicem. Item universaliter, si est universalitas: ut haereditas. Item generaliter, si generalitas petatur: ut peto rationem meorum negotiorum gestorum, quae administrasti. Causa autem est inserenda: ut dicam, quia emi: vel similem causam dicam Item actio: ut actio ex empto, vel similis actio. Forma ergo petitionem in hunc modum: Peto Codicem, quia emi: et hoc per actionem ex empto. Et omnia quae plura ponuntur superflua sunt, nisi sint ad specificationem rei.” Gloss upon the word libellum, in Novel. 53, c. 3, § 1. “Debet libellus esse ita clarus, ut reus possit ex eo deliberare an velit cedere vel contendere.” Maranta, Ordo Judiciorum, Pars VI., tit. De libelli oblatione, nu. 2. “In primis igitur, reo in assignato termino comparente, judici libellum actor offert, et illum ita clarum et planum, ut ex ejus inspectione deliberare reus valeat, utrum cedere velit, an contendere; atque ut, si contendum sit, despicere valeat judex, quemadmodum à re concipienda sit sententia. Nihil enim aliud est libellus quam brevis scriptura, claram actoris intentionem continens, et contra adversarium necessariò concludens.” Lancelotti, Inst. Jur. Can. Lib. 3, tit. 7.

[1 ]“Non utique existimatur confiteri de intentione adversarius, quo cum agitur quia exceptione utitur.” D. 44, 1, 9. And see Stephen on Pleading, Appendix, Note 54.

[1 ]Oughton, Ordo Judiciorum, tit. 61, note (c), § 2.

[2 ]“Super exceptionibus non necesse litem contestari.” 2 Brown’s Civil and Adm. Law (2d ed.), 359, note.

[1 ]“En résumé, on voit que l’intentio, l’exceptio, la réplique, la duplique, etc., forment une chaîne de propositions subordonnées les unes aux autres: si le demandeur ne prouve pas son intentio, le juge doit absoudre, sans s’inquiéter des exceptions; si l’intention est prouvée, le juge, avant de condamner, doit examiner l’exception. Si l’exception n’est pas prouvée, il doit condamner sans avoir à s’occuper de la réplique qui devient inutile; si, au contraire, l’exception est vérifiée, le juge doit absoudre à moins qu’il n’y ait une réplique, et ainsi de suite; de telle façon qu’à chaque anneau de la chaîne, se reproduit l’alternative de la condamnation ou de l’absolution.” Bonjean, Traité des Actions (2nde éd.), I., 440.

[1 ]This statement must be qualified; for, when the action sounds in damages, if the jury find in favor of the plaintiff, they must assess his damages; and they do this upon the basis of what is stated in the declaration.

[1 ]This does not include any allegations in the declaration affecting the amount which the plaintiff is entitled to recover, i. e. the amount of his damages; which the plaintiff must always prove. See § 10, n. (2).

[2 ]Maranta, Ordo Judiciorum, Pars VI., tit. De exceptione, nu. 7; Oughton, Ordo Judiciorum, tit. 60.

[1 ]Oughton, tit. 60, note (l).

[2 ]It does not follow that these examinations were conducted by the judge who heard and decided the cause; for by the civil law a judge could delegate his authority to an assistant. Of this nature are surrogates in the ecclesiastical courts, and masters in the court of chancery.

[1 ]As to positions and articles generally, see Maranta, Pars VI., tit De positione, seu articulorum productione; Gaill, Pract. Obs. 79.

[1 ]Oughton, tit. 61; Conset’s Practice, Part III. c. 2, sect. 4 (2d ed. p. 95). It appears from Gaill (Obs. 79, nu. 3) that the same practice prevailed in the imperial court of Germany.

[1 ]In the Decretals of Pope Clement V., Lib. 5, tit. 11, c. 2, it is said (circ. 1307): “Positiones ad faciliorem expeditionem litium propter partium confessiones, et articulos ob clariorem probationem, usus longaevus in causis admisit.” And the Glossator (John Andreae, the most celebrated canonist of the fourteenth century), in commenting upon this passage, says, positions and articles had been in use from the time of Pope Gregory IX. (ad 1227-1241). See 2 Brown’s Civil and Adm. Law (2d ed.), 374, note.

[2 ]About the middle of the twelfth century, Gratian completed his codification of all the canon law then existing. This is known as Decretum Gratiani, and constitutes the first part of the “Corpus Juris Canonici.” As it makes very little reference to procedure, it is evident that that subject had not yet attracted the attention of churchmen. The second part of the “Corpus Juris Canonici” consists mainly of Decretal Epistles, issued by various Popes from the middle of the twelfth to the end of the thirteenth century, though there are some of a later date. During this period the Papal power was at its height; and, as the spiritual courts were one of the chief instruments for maintaining and extending this power, the subject of procedure in these courts received great attention. Accordingly, procedure assumes a very conspicuous place in the Decretals (as they are commonly called). There are three principal collections of these (viz., those of Gregory IX., those of Boniface VIII:, and those of Clement V.), each of which is divided into five books; and the second book of each is devoted wholly to procedure. One of the earliest and most celebrated treatises upon procedure was written in the thirteenth century by a canonist (William Durand), and it followed the arrangement of the Decretals. The title of the treatise was “Speculum Juris,” and so great was its celebrity that its author was commonly known by the name of Speculator.

[1 ]This ordinance will be found at large in Ancient Laws and Institutes of England (8vo ed.), i. 495; 2 Burn, Eccl. Law (Phillimore’s ed.), 33; Stubbs, Select Charters (2d ed.), 85. And for a commentary on it. see Coote, Eccl. Pr. pp. 6-17.

[2 ]Appeals to the Pope were abolished by the statutes of 24 Henry VIII., c. 12, and 25 Henry VIII., c. 19.

[3 ]Coote, Eccl. Pr. 10.

[4 ]The best sources of information upon the procedure of the ecclesiastical courts are the following: Oughton, Ordo Judiciorum (1738); Report of Commissioners upon the Ecclesiastical Courts (1832); Burn, Ecclesiastical Law (Phillimore’s ed.), tit. Practice (1842); Coote, Ecclesiastical Practice (1847). Of the foregoing works, the first is much the most celebrated; but the second will, it is believed, be found the most instructive by those who are unacquainted with the subject; while the third and fourth are particularly valuable for the forms which they contain. Oughton is in Latin; but the first part of it has been translated by James T. Law, and published with notes, under the title of “Forms of Ecclesiastical Law.”

[1 ]For the mode of doing this, see Coote, 331, 334.

[1 ]This ceremony is thus described by Oughton, tit. 61: On the day assigned to the defendant to answer the libel, the plaintiff’s proctor shall say to the judge, in the presence of the defendant’s proctor: “I pray an answer to the libel according to the terms of your lordship’s assignation.” Defendant’s proctor: “Protesting against the said libel for its too great generality, ineptitude, obscurity, nullity, and undue specification, for answer thereto, I say, for the purpose of contesting suit negatively, that the statements contained in said libel are not true, and, therefore, that the prayer thereof ought not to be granted.” Plaintiff’s proctor: “The libel is articled, and I therefore repeat the same in the quality of positions and articles (in vim positionum et articulorum), and I pray that it may be so repeated by your lordship, and admitted.” Judge: “We repeat the libel in the quality of positions and articles, and it shall be considered as so repeated; and we admit it in the quality of positions and articles.” Plaintiff’s proctor: “The libel is articled, and repeated in the quality of positions and articles, and I therefore pray an answer to the positions of the same from the defendant or his proctor.” Defendant’s proctor: “I do not believe the positions to be true.” Plaintiff’s proctor: “I allege that I shall be more aided by the answer of the principal party than by that of his proctor appearing in the cause. May it therefore please your lordship to decree the principal party to be cited to answer personally the positions of said libel.” Judge: “We decree the principal party to be cited to answer personally the positions of the said libel [on such a day].” Defendant’s proctor: “I dissent; and I pray a term to be assigned to the plaintiff to prove the libel.” Judge: “We assign for proof three [or as the case may be] court days.” Defendant’s proctor: “I dissent, on account of the length of the term.”

[1 ]“Nemo prohibetur pluribus exceptionibus uti, quamvis diversae sint.” D. 44, 1, 8. “Is, qui dicit se jurasse, potest et aliis exceptionibus uti cum exceptione jurisjurandi, vel aliis solis; pluribus enim defensionibus uti permittitur.” D. 44, 1, 5.

[1 ]3 Burn, Eccl. Law, 190, 191.

[2 ]Ibid.

[3 ]Ibid.

[4 ]Kaufmann’s Mackeldey, 211.

[1 ]“In libello non attenditur quid, quale, et quantum narretur, sed quantum ex narratis concludatur, quia conclusio libelli restringit narrata ad ea, quae expressè in conclusione dicuntur.” Gaill, Pract. Obs., Lib. 1, Obs. 61, nu. 15.

[2 ]Boileau v. Rutlin, 2 Exch. 665.

[3 ]Maranta, Pars VI., tit. De Positione, etc., nu. 6; Gaill, Lib. 1, Obs. 79, nu. 6; 3 Burn, Eccl. Law, 264; Greville v. Tylee, 7 Moo. P. C., 320, 330.

[1 ]Oughton, tit. 54, note (c), § 4.

[1 ]Specimens of minutes will be found in 3 Burn, 209, 221, in Coote, 845-855, 921-924, and in Floyer’s Proctor’s Practice, 143-172. Any order or direction of the court, made or given orally, is technically termed an assignment, e. g., the court assigns the plaintiff’s proctor to bring in a libel the next court day. Hence, the clerk’s minutes are frequently called assignations, and the book in which they are entered the assignation book. The minutes, being memorials of the acts of the court, they are also frequently themselves called acts and the book in which they are entered the book of acts. When an act of court, or an act of a party, is done orally in open court, and entered in the minutes, it is said to be done apud acta, i. e., in the acts or minutes.

[1 ]There is a seeming exception to this when the court sits for the trial or argument of causes; for there is then a list made of all causes ready for trial or argument, and they are taken up in the order in which they stand in the list; and, while causes remain in this list, they are under the active supervision and control of the court for the purpose for which the list was made, namely, that of regulating the order in which, and the time when, the causes shall be respectively tried or argued.

It should be observed, also, that in New England (and perhaps in some other of our States), the common-law system, as regards the particulars now under consideration, has never been adopted, but there is instead a practice in substance like that of the civil law, though without any of its nomenclature. The clerk of the court keeps a docket in which every cause is entered when it is begun, and in which it remains until it is ended. This docket is very analogous to the assignation book of a civil-law court, as it contains a minute by the clerk of every step in the cause; but the minutes consist merely of short contemporaneous memoranda, which are never extended or written out, so as to present an intelligible and connected history of the cause.

[1 ]It seems, however, that this was not so in early times; for in a collection of orders, of the time of Henry V. (Sander’s Orders in Chancery, 7 c.), it is made the duty of the registrars to write all the acts of the court, placing the names of the parties and of their attorneys at the head of all acts, as is done in the ecclesiastical courts. (Compare Floyer, 143-172). They are directed also to enter the dates when all pleadings are exhibited and placed on file. They are styled “notarii sive tabelliones.” and all the terms which are applied to them accord entirely with the ecclesiastical practice. It seems that the registrar’s book, in which all orders and decrees in chancery are entered, was originally the assignation book of the ecclesiastical courts; and this may explain the fact that all orders and decrees (i. e., all acts of court) are drawn up by the registrar and entered in his book. In the ecclesiastical courts, when an act of court is in writing (e. g., a definitive sentence), it is drawn up by the proctor of the prevailing party, and presented to the judge for his approval and signature, and, having been signed, it is filed, not entered in a book.

In the same collection of orders, it is directed that, in the absence of the chancellor, one of the masters may (inter alia), assign terms for answering, replying, rejoining, producing witnesses, &c.

[1 ]This is obvious upon inspection; but there is also authority to show that all suits in chancery were regarded as summary from the earliest times. In summary causes the judge was said by the canonists to proceed “simpliciter et de plano, ac sine strepitu et figura judicii.” (Constitutions of Clement V., B. 5, tit. 11, c. 2.) And in a report made to the chancellor in the time of Elizabeth, by two masters in chancery, who were also doctors of civil law, it is said: “The judge [in chancery], may and ought to proceed summarily, ‘de plano sine figura judicii.’ ” Acta Cancellariae, 613.

[1 ]A similar state of things formerly existed in all the common-law courts.

[2 ]See Ex parte The Six Clerks, 3 Ves. 589.

[1 ]This essay was first printed in the American Law Review, vol. XVIII, pp. 226-255 (1884).

[2 ]Legal adviser to the land department of the Chicago and Northwestern R. Co. Admitted to the New Hampshire (Exeter) Bar, 1877, to the Illinois (Chicago) Bar, 1881.

Other Publications: Sundry articles in legal periodicals.

[1 ]Washburne’s Jud. His. of Mass. 26.

[2 ]Maverick v. Phillips, 4 Mass. Col. Records, pt. 1, p. 187.

[3 ]Hues v. Rogers, 4 ibid., pt. 11, p. 292.

[4 ]Case of Roxbury Free School, 4 Ibid., pt. 11, p. 434.

[5 ]Sloan v. Bosworth, 5 Ibid. 36.

[6 ]Patch v. Patch, 5 Ibid. 39.

[7 ]Goss v. Callecot, 5 Ibid. 150, 247, 273.

[8 ]Thatcher v. Thatcher, 5 Ibid. 245.

[9 ]Sears v. How., 5 Ibid. 379; Dedham v. Natick Indians, 4 Ibid. 49.

[1 ]Each County Court consisted of one assistant, or magistrate, residing in the county, or of one specially appointed by the General Court, aided by commissioners, nominated by the freemen, and appointed by the General Court.

[1 ]Charters and General Laws of Colony and Province of Mass. Bay, 93-94.

[2 ]Washburn, 35.

[3 ]Belknap’s History of New Hampshire, 185.

[4 ]Quincy’s Mass. Rep. 1761-1772, p. 538.

[5 ]It was early enacted in Plymouth, “that the Bench shall have power to determine such matters of equity as cannot be relieved at common law; as the forfeiture of an obligation, breach of covenants without great damage, or the like matters of apparent equity.” The General Laws and Liberties of New Plymouth Colony, 260.

[1 ]Washburn, 98.

[2 ]Washburn, 166-7.

[1 ]2 Chalmer’s Opinions, 182-3.

[1 ]Quincy, 538-9.

[2 ]Quincy, 539.

[3 ]New Hampshire Law, its Source, etc., by Farmer, 202.

[4 ]Sanborn’s History of New Hampshire, 81.

[1 ]Belknap, 140.

[2 ]Wells v. Pierce, 27 N. H. 512.

[3 ]1 Belknap, 162-3.

[4 ]Wells v. Pierce, 27 N. H. 512.

[5 ]Sanborn, 81.

[6 ]Judge Bell in Wells v. Pierce, 27 N. H. 512.

[1 ]1 R. I. Col. Records, 14.

[2 ]Charter.

[1 ]III. Col. Rec., 550-551.

[2 ]III. Ibid. 550-551.

[1 ]IV. Ibid. 136-137.

[2 ]V. Ibid. 23.

[1 ]V. Ibid. 76.

[2 ]New Haven Colonial Records, vol. 1, p. 191.

[3 ]Blue Laws of Conn. (Smucker) 22.

[1 ]New Haven Colonial Records, 113-114.

[2 ]Smucker, 33.

[3 ]Colonial Records of Conn. 3-413.

[1 ]Connecticut Colonial Records, 6 vol., pp. 444-5.

[2 ]Chancery in Pennsylvania (Rawle), 4.

[3 ]Docs. Relating to the Colonial History of New York, 721.

[4 ]Ibid. 834.

[5 ]Ibid. 844.

[6 ]V. Ibid. 882.

[7 ]Ibid. 252.

[1 ]Ibid. 298.

[2 ]Mag. Am. His’y, March, 1879.

[3 ]Macauley, 446.

[1 ]Lamb’s History of New York City, 536-7-8.

[2 ]II. Smith’s History of New York, 5.

[3 ]II. Lamb, 54.

[1 ]II. Smith, 13.

[2 ]Ibid. 24.

[3 ]Ibid. 227.

[4 ]New Jersey Archives, 3.

[5 ]Ibid. 8-9-10.

[6 ]Mulford’s History, 131.

[7 ]Ibid. 147.

[1 ]III. New Jersey Archives, 4.

[1 ]IV. Ibid. 70.

[2 ]Ibid. 114.

[3 ]Ibid. 168.

[4 ]Rawle’s Equity in Pa. 4.

[5 ]Ibid. 8.

[6 ]1 Col. Record, 98.

[7 ]Ibid. 102.

[1 ]Ibid. 142.

[2 ]Ibid. 159.

[3 ]Laws of 1690, ch. 7, sect. 197.

[4 ]II. Col. Rec. 23, etc.; Brightly, 29-30.

[1 ]Bradford’s Laws, 120.

[2 ]Rawle, 18.

[1 ]III. Col. Rec. 100.

[2 ]Ibid. 106.

[1 ]Ibid. 281.

[2 ]Ibid. 687.

[1 ]15 American Jurist, 253.

[2 ]1 Bland, 624.

[3 ]1 Bozman, 291.

[4 ]II. Bozman, 132.

[1 ]1 Bland, 609.

[2 ]1 Bland, 624-625.

[1 ]1 Bland, 625.

[2 ]1 Bland, 625.

[3 ]Ibid. 648-649.

[1 ]Campbell’s History of Virginia, 353.

[2 ]Henning, 125.

[3 ]Campbell, 352.

[4 ]Henning, 273.

[5 ]Henning, 303.

[6 ]Henning, 59.

[7 ]Henning, 320.

[8 ]Henning, 501.

[1 ]Lodge, 133.

[2 ]Wheeler’s History of North Carolina, 30.

[3 ]Moore’s History of North Carolina, 1-16.

[4 ]II. Hawk’s History of North Carolina, 203.

[1 ]Ibid. 203.

[2 ]Durant v. Hawkins, Ibid. 133.

[3 ]Ibid. 204.

[4 ]Rivers’ Hist. of South Carolina, 959.

[5 ]Ramsay Hist. of South Carolina, 128; Il. Bozman’s Maryland, 132.

[6 ]Ibid. 156.

[1 ]Brevard’s Digest, preface.

[2 ]II. Ramsay, 154.

[3 ]Chalmer’s Opinions, 70.

[4 ]II. Ramsay, 156.

[5 ]Stevens’ Hist. of Georgia, 63-64.

[6 ]Ibid. 65.

[7 ]Ibid. 217.

[8 ]Ibid. 218.

[1 ]Ibid. 387.

[2 ]Ibid. 388.

[1 ]This essay was first published in the Law Quarterly Review, vol. I, pp. 455-465 (1895).

[2 ]Member of the Philadelphia Bar since 1883. University of Western Pennsylvania, L. H. D. 1897; Trinity College (Hartford), LL. D. 1903; trustee of Trinity College.

Other Publications: The Evolution of the Constitution of the United States, 1897; Pennsylvania, Colony and Commonwealth, 1897; Men, Women, and Manners in Colonial Times, 1897; The True Benjamin Franklin, 1898; The True William Penn, 1899; The True History of the American Revolution, 1902; and various articles in legal periodicals.

[1 ]1 Proud’s Hist. Pa. 175.

[2 ]Ibid. 255, 262.

[3 ]Duke of Yorke’s Laws, &c. 167, 168; Rawle, Essay Eq. in Penna. 9.

[4 ]McCall, Judicial Hist. of Pa. 21, 27; Lewis, Courts of Pa. in Seventeenth Cent. 6; Brightly, Eq. in Pa. 29.

[1 ]Duke of Yorke’s Laws, &c. 184, 225.

[2 ]Rawle, Essay Eq. in Pa. 11, 12; 1 Carey and Bioren, Laws of Pa. 33.

[3 ]1 Carey and Bioren, Laws of Pa. 79.

[4 ]1 Carey and Bioren, Laws of Pa. 110.

[5 ]Rawle, Essay Eq. in Pa. 19-53.

[1 ]Rawle, Essay Eq. in Pa. 59-61.

[2 ]McCall, Judic. Hist. Pa. 25.

[3 ]There was also from the very first a small party which disapproved on principle of Chancery powers. Lewis, Courts of Pa. in Seventeenth Cent. 7.

[4 ]2 Col. Rec. 312.

[1 ]Chief Justice Gibson, in Torr’s Estate (2 Rawle, 253), said, ‘As we cannot hope to see a separate administration of equity, we are bound to introduce it into our system as copiously as our limited powers will admit.’

[2 ]Brightly, Eq. in Pa. 5.

[3 ]Swift v. Hawkins, 1 Dallas, 17.

[4 ]In the report of this case it is stated that the defendant offered to prove want of consideration, but it has always been considered as a misprint for ‘failure.’ Rawle, Essay Eq. in Pa. 57.

[5 ]1 Dallas, 72.

[1 ]Ibid. 125.

[2 ]1 Dallas, 212.

[3 ]Laussat, Essay Eq. in Pa. 89.

[4 ]Address to the Philadelphia Bar.

[5 ]3 Pa. 451.

[6 ]16 Serg. and R. 448.

[1 ]Wharton’s note to 1 Dallas, 126; Peebles v. Reading, 8 S. & R. 484; Kuhn v. Nixon, 15 S. & R. 118; Hawthorn v. Bronson, 16 S. & R. 269; De France v. De France, 34 Pa. 385; Church v. Ruland, 64 Pa. 432; Robinson v. Buck, 71 Pa. 386; McGinity v. McGinity, 63 Pa. 38; Todd v. Campbell, 8 Casey, 252; Faust v. Haas, 73 Pa. 295; Ballentine v. White, 77 Pa. 20.

[2 ]Laussat, Essay Eq. in Pa. 66. Allowing the defendant at law to set up an equitable defence was adopted in England by the Common Law Procedure Act long after it had become the custom in Pennsylvania. 17 & 18 Vic. sec. 125; Royal Society v. Magnay, 10 Exch. 489.

[3 ]McCutchen v. Nigh, 10 S. & R. 344.

[1 ]Laussat, Essay Eq. in Pa. 43.

[2 ]Commonwealth v. Coates, 1 Yeates, 2.

[3 ]Lang v. Keppelé, 1 Binney, 125; Jordan v. Cooper, 3 S. & R. 564.

[4 ]3 Term Rep. 151.

[5 ]Austin, Jurisprudence, 636.

[1 ]Hawn v. Norris, 4 Binney, 78; Peebles v. Reading, 8 S. & R. 484.

[2 ]Weaver v. Lawrence, 1 Dallas, 157; Mead v. Kilday, 2 Watts, 110.

[3 ]Purdon’s Digest. 1465; Byrne v. Boyle, 37 Pa. 260.

[4 ]Purdon’s Digest, 482.

[5 ]Mitchell, Motions and Rules, 76.

[6 ]Steele v. Phoenix Ins. Co., 3 Binney, 312.

[7 ]Anwerter v. Mathiot, 9 S. & R. 402.

[8 ]Laussat, Essay Eq. in Pa. 105; Purdon’s Digest, 1103.

[1 ]1 Yeates, 92; Anon., 4 Dallas, 147; Walker v. Butz, 1 Yeates, 575; Moody v. Vandyke, 4 Binney, 43; Kauffelt v. Bower, 7 S. & R. 81.

[1 ]Co. Litt. 100, a.

[2 ]An Assize of Nuisance as a substitute for an injunction was brought in Pennsylvania in 1809. Livezey v. Gorgas, 2 Binney, 194.

[3 ]Laussat, Essay Eq. in Pa. 126, 139.

[4 ]3 Pittsburgh Leg. Journal, 2.

[1 ]Bispham, Equity, sec. 14.

[1 ]Rawle, Essay Eq. in Pa. 70; Purdon’s Digest, 589; Sixth Rep. of Com. to Rev. Civil Code.

[2 ]Aycinena v. Peries, 6 W. & S. 243; Biddle v. Moore, 3 Pa. 161; Church v. Ruland, 64 Pa. 432; Corson v. Mulvany, 49 Pa. 88.