diction was settled, and when the chancellors themselves, partly from their ig norance of law (being frequently bishops or statesmen), partly from ambition or lust of power (encouraged by the arbitrary principles of the age they lived in), but principally from the narrow and unjust decisions of the courts of law, had arrogated to themselves such unlimited authority, as hath totally been disclaimed by their successors for now about a century past. The decrees of a court of equity were then rather in the nature of awards, formed on the sudden pro ne nata, with more probity of intention than knowledge of the subject; *founded on no settled principles, as being never designed, and therefore never [ *434 ] used for precedents. But the systems of jurisprudence, in our courts both of law and equity, are now equally artificial systems, founded on the same principles of justice and positive law; but varied by different usages in the forms and mode of their proceedings: the one being originally derived (though much reformed and improved) from the feudal customs, as they prevailed in different ages in the Saxon and Norman judicatures; the other (but with equal improvements) from the imperial and pontifical formularies, introduced by their clerical chancellors. The suggestion indeed of every bill, to give jurisdiction to the courts of equity (copied from those early times), is that the complainant hath no remedy at the common law. But he who should from thence conclude, that no case is judged of in equity where there might have been relief at law, and at the same time casts his eye on the extent and variety of the cases in our equity reports, must think the law a dead letter indeed. The rules of property, rules of evidence, and rules of interpretation in both courts are, or should be, exactly the same: both ought to adopt the best, or must cease to be courts of justice. Formerly some causes, which now no longer exist, might occasion a different rule to be followed in one court, from what was afterwards adopted in the other, as founded in the nature and reason of the thing: but, the instant those causes ceased, the measure of substantial justice ought to have been the same in both. Thus the penalty of a bond, originally contrived to evade the absurdity of those monkish constitutions which prohibited taking interest for money, was therefore very pardonably considered as the real debt in the courts of law, when the debtor neglected to perform his agreement for the return of the loan with interest: for the judges could not, as the law then stood, give judgment that the interest should be specifically paid. But when afterwards the taking of interest became legal, as the necessary companion of commerce, (i) nay after the statute of 37 Hen. VIII, c. 9, had declared the *debt or loan itself to be "the just and true intent" for which [*435] the obligation was given, their narrow-minded successors still adhered wilfully and technically to the letter of the ancient precedents, and refused to consider the payment of principal, interest, and costs, as a full satisfaction of the bond. At the same time more liberal men, who sate in the courts of equity, construed the instrument according to its "just and true intent," as merely a security for the loan: in which light it was certainly understood by the parties, at least after these determinations; and therefore this construction should have been universally received. So in mortgages, being only a landed as the other is a personal security for the money lent, the payment of principal, interest, and costs, ought at any time, before judgment executed, to have saved the forfeiture in a court of law, as well as in a court of equity. And the inconvenience, as well as injustice, of putting different constructions in different courts upon one and the same transaction, obliged the parliament at length to interfere, and to direct, by the statutes 4 and 5 Ann. c. 16, and 7 Geo. II, c. 20, that, in the cases of bonds and mortgages, what had long been the practice of the courts of equity should also for the future be universally followed in the courts of law; wherein it had before these statutes in some degree obtained a footing. (j) Again; neither a court of equity nor of law can vary men's wills or agreements, or (in other words) make wills or agreements for them. Both are to understand them truly, and therefore uniformly. One court ought not to extend, nor the other abridge, a lawful provision deliberately settled by the parties, contrary (i) Sce book II, p. 456. (j) 2 Keb. 553, 555. Salk. 597. 6 Mod. 11, 60, 101. to its just intent. A court of equity, no more than a court of law, can relieve against a penalty in the nature of stated damages; as a rent of 51. an acre for ploughing up ancient meadow: (k) nor against a lapse of time, where the time is material to the contract; as in covenants for the renewal of leases. Both courts will equitably construe, but neither pretends to control or change, a lawful stipulation or engagement. *The rules of decision are in both courts equally apposite to the sub [*436 ] jects of which they take cognizance. Where the subject-matter is such as requires to be determined secundum æquum et bonum, as generally upon actions on the case, the judgments of the courts of law are guided by the most liberal equity. In matters of positive right, both courts must submit to and follow those ancient and invariable maxims "quæ relicta sunt et tradita.” (1) Both follow the law of nations, and collect it from history and the most approved authors of all countries, where the question is the object of that law as in the case of the privileges of ambassadors, (m) hostages, or ransom-bills.(n) In mercantile transactions they follow the marine law,(0) and argue from the usages and authorities received in all maritime countries. Where they exercise a concurrent jurisdiction, they both follow the law of the proper forum: (p) in matters originally of ecclesiastical cognizance, they both equally adopt the canon or imperial law, according to the nature of the subject; (g) and if a question came before either, which was properly the object of a foreign municipal law, they would both receive information what is the rule of the country, (r) and would both decide accordingly. Such then being the parity of law and reason which governs both species of courts, wherein (it may be asked) does their essential difference consist? It principally consists in the different modes of administering justice in each; in the mode of proof, the mode of trial, and the mode of relief. Upon these, and upon two other accidental grounds of jurisdiction, which were formerly driven into those courts by narrow decisions of the courts of law, viz.: the true construction of securities for money lent, and the form and effect *of a trust [ *437 ] or second use; upon these main pillars hath been gradually erected that structure of jurisprudence, which prevails in our courts of equity, and is inwardly bottomed upon the same substantial foundations as the legal system which hath hitherto been delineated in these Commentaries; however different they may appear in their outward form, from the different taste of their architects. 1. And first, as to the mode of proof. When facts, or their leading circumstances, rest only in the knowledge of the party, a court of equity applies itself to his conscience, and purges him upon oath with regard to the truth of the transaction; and, that being once discovered, the judgment is the same in equity as it would have been at law. But for want of this discovery at law, the courts of equity have acquired a concurrent jurisdiction with every other court in all matters of account.(s) As incident to accounts, they take a concurrent cognizance of the administration of personal assets, (f) consequently of debts, legacies, the distribution of the residue, and the conduct of executors and administrators. (u) As incident to accounts, they also take the concurrent jurisdiction of tithes, and all questions relating thereto; (w) of all dealings in partnership, (x) and many other mercantile transactions; and so of bailiffs, receivers, factors, and agents. (y) It would be endless to point out all the several avenues in human affairs, and in this commercial age, which lead to or end in accounts. From the same fruitful source, the compulsive discovery upon oath, the courts of equity have acquired a jurisdiction over almost all matters of fraud; (2) all matters in the private knowledge of the party, which, though concealed, are binding in conscience; and all judgments at law, obtained through such fraud or (k) 2 Atk. 239. (m) See book I, p. 253, (1) De jure naturæ cogitare per nos atque dicere debemus ; de jure populi Romani. quæ relicti sunt et tradita Cic. de Leg. l. 3, ad calc. (n) Ricord v Bettenham, Tr. 5 Geo. III, B. R. (0) See book I, p. 75. Book II, pp. 459, 461, 467. (p) See book II, p. 513. (9) Ibid. 504. (r) Ibid. 463. (s) 1 Cha. Ca. 57. (t) 2 P. Wis. 145. (u)2 Cha. Ca. 152. (w) 1 Eq. Ca. Abr. 367. (y) Ibid. 638. (z)2 Cha. Ca. 46, (x)2 Vern. 277. concealment. And this, not by *impeaching or reversing the judgment itself, but by prohibiting the plaintiff from taking any advantage of a [*438] judgment, obtained by suppressing the truth; (a) and which, had the same facts appeared on the trial as now are discovered, he would never have attained at all. 2. As to the mode of trial. This is by interrogatories administered to the witnesses, upon which their depositions are taken in writing, wherever they happen to reside. If therefore the cause arises in a foreign country, and the witnesses reside upon the spot; if, in causes arising in England, the witnesses are abroad, or shortly to leave the kingdom; or if witnesses residing at home are aged or infirm; any of these cases lays a ground for a court of equity to grant a commission to examine them, and (in consequence) (9) to exercise the same jurisdiction, which might have been exercised at law, if the witnesses could probably attend. 3. With respect to the mode of relief. The want of a more specific remedy than can be obtained in the courts of law gives a concurrent jurisdiction to a court of equity in a great variety of cases. To instance in executory agreements. A court of equity will compel them to be carried into strict execution, (b) unless where it is improper or impossible: instead of giving damages for their nonperformance. (10) And hence a fiction is established, that what ought to be done shall be considered as being actually done, (c) and shall relate back to the time when it ought to have been done originally: and this fiction is so closely pursued through all its consequences, that it necessarily branches out into many rules of jurisprudence, which form a certain regular system. So of waste, and other similar injuries, a court of equity takes a concurrent cognizance, in order to prevent them by injunction. (d) Over questions that may be tried at law, in a great multiplicity of actions, a court of equity assumes a jurisdiction, to prevent the expense and vexation of endless litigations and suits.(e) [*439] In various kinds of frauds it assumes a concurrent (f) jurisdiction, not only for the sake of a discovery, but of a more extensive and specific relief: as by setting aside fraudulent deeds, (g) decreeing re-conveyances, () or directing an absolute conveyance merely to stand as a security. (i) And thus, lastly, for the sake of a more beneficial and complete relief by decreeing a sale of lands, (j) a court of equity holds plea of all debts, incumbrances, and charges, that may affect it or issue thereout. 4. The true construction of securities for money lent is another fountain of jurisdiction in courts of equity. When they held the penalty of a bond to be the form, and that in substance it was only as a pledge to secure the repayment of the sum bona fide advanced, with a proper compensation for the use, they laid the foundation of a regular series of determinations, which have settled the doctrine of personal pledges or securities, and are equally applicable to mortgages of real property. The mortgagor continues owner of the land, the mortgagee of the money lent upon it; but this ownership is mutually transferred, and the mortgagor is barred from redemption, if, when called upon by the mortgagee, he does not redeem within a time limited by the court; or he may when out of possession be barred by length of time, by analogy to the statute of limitations. (11) 5. The form of a trust, or second use, gives the courts of equity an exclusive jurisdiction as to the subject-matter of all settlements and devises in that form, and of all the long terms created in the present complicated mode of conveyancing. This is a very ample source of jurisdiction: but the trust is governed by (a) 3 P. Wms. 148. Year-book, 22 Edw. IV, 37, pl. 21. (b) 1 Eq. Ca. Abr. 16. (f) 2 P. Wms. 156. (i) 2 Vern. 84. (j) 1 Eq. Ca. Abr. 337. (9) The courts of law now have this jurisdiction, under statutes heretofore referred to. (10) Specific performance, however, is not a matter of right, but always rests in the discretion of the court. and will not be decreed unless the contract was reasonable and fair: Seymour v. Delaney, 6 Johns. Ch. 225, and 3 Cow. 555; Auter v. Miller. 18 Iowa, 405; Chambers v. Livermore, 15 Mich. 381; Hawralty v. Warren, 3 Green (N. J.) Eq. 124; McCarty e. Kyle, 4 Cold. 348; Pendleton v. Dalton, Phill. (N. C.) Eq. 119. A contract which is illegal, immoral, or against public policy, will not be enforced. Dumont v. Dufore, 27 Ind. 263; Platt v. Maples, 19 La An. 459. (11) Now the bar is by express statute. 3 and 4 Wm. IV, c. 27, § 28. Vol. II. --35 273 very nearly the same rules, as would govern the estate in a court of law, (k) if no trustee was interposed: and *by a regular positive system established [*440] in the courts of equity, the doctrine of trusts is now reduced to as great a certainty as that of legal estates in the courts of the common law. These are the principal (for I omit the minuter) grounds of the jurisdiction at present exercised in our courts of equity: which differ, we see, very considerably from the notions entertained by strangers, and even by those courts themselves before they arrived to maturity; as appears from the principles laid down, and the jealousies entertained of their abuse, by our early juridical writers cited in a former page; (7) and which have been implicitly received and handed down by subsequent compilers, without attending to those gradual accessions and derelictions, by which in the course of a century this mighty river hath imperceptibly shifted its channel. Lambard, in particular, in the reign of Queen Elizabeth, lays it down, (m) that "equity should not be appealed unto, but only in rare and extraordinary matters: and that a good chancellor will not arrogate authority in every complaint that shall be brought before him upon whatsoever suggestion and thereby both overthrow the authority of the courts of common law, and also bring upon men such a confusion and uncertainty, as hardly, any man should know how or how long to hold his own assured to him." And certainly, if a court of equity were still at sea, and floated upon the occasional opinion which the judge who happened to preside might entertain of conscience in every particular case, the inconvenience that would arise from this uncertainty would be a worse evil than any hardship that could follow from rules too strict and inflexible. Its powers would have become too arbitrary to have been endured in a country like this, (n) which boasts of being governed in all respects by law and not by will. But since the time when Lambard wrote, a set of great and eminent lawyers, (o) who have successively held the great seal, have by degrees erected the system of relief administered by a court of equity into a regular *science, which cannot be attained without study and experience, any [*441] more than the science of law: but from which, when understood, it may be known what remedy a suitor is entitled to expect, and by what mode of suit, as readily and with as much precision in a court of equity as in a court of law. It were much to be wished, for the sake of certainty, peace, and justice, that each court would as far as possible follow the other, in the best and most effect'ual rules for attaining those desirable ends. It is a maxim that equity follows the law; and in former days the law has not scrupled to follow even that equity which was laid down by the clercical chancellors. Every one who is conversant in our ancient books, knows that many valuable improvements in the state of our tenures (especially in leaseholds (2) and copyholds) (q) and the forms of administering justice, (r) have arisen from this single reason, that the same thing was constantly effected by means of a subpana in the chancery. And sure there cannot be a greater solecism, than that in two sovereign independent courts established in the same country, exercising concurrent jurisdiction, and over the same subject-matter, there should exist in a single instance two different rules of property, clashing with or contradicting each other. It would carry me beyond the bounds of my present purpose to go further into this matter. I have been tempted to go so far, because strangers are apt to be confounded by nominal distinctions, and the loose, unguarded expressions to be met with in the best of our writers; and thence to form erroneous ideas of the separate jurisdictions now existing in England, but which never were separated in any other country in the universe. It hath also afforded me an oppor tunity to vindicate, on the one hand, the justice of our *courts of law [*442] from being that harsh and illiberal rule, which many are too ready to suppose it; and on the other, the justice of our courts of equity from being the result of mere arbitrary opinion, or an exercise of dictatorial power, which rides over the law of the land, and corrects amends and controls it by the loose and (k) 2 P. Wms. 645, 668, 669. (1) See page 433. (0) See page 54. 55, 56. Abr. tit. tenant per copie, pl. 10. Litt. § 77. (m) Archeion, 71, 78. (p) Gilb. of Ejectment, 2. 2 Bac. Abr. 160. (r) See page 200. fluctuating dictates of the conscience of a single judge. It is now high time to proceed to the practice of our courts of equity, thus explained, and thus understood. (12) The first commencement of a suit in chancery is by preferring a bill to the lord chancellor, in the style of a petition; "humbly complaining, sheweth to your lordship your orator A B that," &c. This is in the nature of a declaration at common law, or a libel and allegation in the spiritual courts: setting forth the circumstances of the case at length, as, some fraud, trust or hardship; "in tender consideration whereof" (which is the usual language of the bill), "and for that your orator is wholly without remedy at the common law," relief is therefore prayed at the chancellor's hands, and also process of subpoena against the defendant, to compel him to answer upon oath to all the matter charged in the bill. And, if it be to quiet the possession of lands, to stay waste, or to stop procecedings at law. an injunction is also prayed, in the nature of an interdictum by the civil law, commanding the defendant to cease. This bill must call all necessary parties, however remotely concerned in interest, before the court, otherwise no decree can be made to bind them; and must be signed by counsel, as a certificate of its decency and propriety. For it must not contain natter either scandalous or impertinent: if it does, the defendant may refuse to answer it, till such scandal or impertinence is expunged, which is done upon an order to refer it to one of the officers of the court, called a master in chancery; or whom there are in number twelve, including the master of the rolls, all of whom, so late as the reign of Queen Elizabeth, were commonly doctors of the civil law. (s) The master is to examine the propriety of the bill: and if he reports it scandalous or impertinent, such [*443] matter must be struck out, and the defendant shall have his costs; which ought of right to be paid by the counsel who signed the bill. When the bill is filed in the office of the six clerks (who originally were all in orders; and therefore, when the constitution of the court began to alter, a law () was made to permit them to marry), when, I say, the bill is thus filed, if an injunction be prayed therein, it may be had at various stages of the cause, according to the circumstances of the case. If the bill be to stay execution upon an oppressive judgment, and the defendant does not put in his answer within the stated time allowed by the rules of the court, an injunction will issue of course: and, when the answer comes in, the injunction can only be continued upon a sufficient ground appearing from the answer itself. But if an injunction be wanted to stay waste, or other injuries of an equally urgent nature, then upon the filing of the bill, and a proper case supported by affidavits, the court will grant an injunction immediately, to continue till the defendant has put in his answer, and till the court shall make some farther order concerning it: and when the answer comes in, whether it shall then be dissolved or continued till the hearing of the cause, is determined by the court upon argument, drawn from considering the answer and affidavit together. But, upon common bills, as soon as they are filed, process of subpœna is taken out: which is a writ commanding the defendant to appear and answer to the bill, on pain of 1007. But this is not all; for if the defendant, on service of the subpana, does not appear within the time limited by the rules of the court, and plead, demur or answer to the bill, he is then said to be in contempt; and the (8) Smith's Commonw. b. ii, c. 12. (t) Stat. 14 and 15 Hen. VIII, c. 8. (12) In some particulars great changes were made in proceedings in chancery by the statute 15 and 16 Vic. c. 86, and the general orders of court since adopted. These changes will appear by the recent editions of Daniell's Chancery Practice. Among the most important are the right of the court, on the application of either party, to order the evidence as to any facts or issues to be taken viva voce at the hearing, and the abolition of the office of master, and the putting of the business of that office under the immediate direction and control of the judges. The court may now, in its discretion, summon a jury to try before itself any disputed question of fact. See Fernie v. Young, L. R. 1 H. L. 63. |