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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 V Origin and Philosophy of 
 the Suit in Equity 
 
 Modern American Law Lecture 
 
 Blackstone Institute, Chicago
 
 THE ORIGIN AND PHILOSOPHY OF 
 THE SUIT IN EQUITY 
 
 BY 
 
 JOHN B. WXNSLOW, A.M., LL.B., LL.D. 
 
 LATE CHIEF JUSTICE, SUPREME COURT OP WISCONSIN 
 
 One of a Series of Lectures Especially Prepared 
 for the Blackstone Institute 
 
 BLACKSTONE INSTITUTE 
 
 CHICAGO 
 
 Copyright 1916, bj Blackstone Institute 
 Copyright, 1010. by Blackstone Institute
 
 T 
 
 W73Z4 e 
 
 JOHN B. W1NSLOW
 
 JOHN B. WINSLOW 
 
 Mr. Justice Winslow, late Chief Justice of the 
 Supreme Court of Wisconsin, was born Oct. 4, 1851, 
 at Nunda, Livingston County, N. Y. He graduated 
 at Racine College, Wis., in 1871, and entered upon 
 the study of law in the law office of E. 0. Hand, and 
 later in the law office of Fuller & Dyer. He finished 
 his course of reading in the law department of the 
 University of Wisconsin, from which he graduated 
 in 1875, and entered upon the practice at Racine. 
 
 Justice Winslow was for several years city attor- 
 ney of Racine. In April, 1883, he was elected cir- 
 cuit judge of the First Judicial circuit, and entered 
 upon his judicial duties in January, 1884, serving 
 in that capacity (being re-elected) until May 4, 
 1891, when he was appointed associate justice of the 
 supreme court in place of Hon. David Taylor, 
 deceased. In April, 1892, he was elected to fill the 
 residue of Judge Taylor's term; in April, 1895, he 
 was re-elected for a full term ; and again re-eleeted 
 for a full term in April, 1905. He became chief 
 justice by reason of seniority of service upon the 
 death of Chief Justice Cassoday, Dec. 30, 1907. 
 
 He was re-elected for a full term of ten years in 
 April, 1915, no candidate appearing in opposition, 
 and served until his death in 1920. 
 
 He served for one year as President of the Amer- 
 ican Society of Criminal Law and Criminology. 
 He is the author of a history of the Supreme Court 
 of Wisconsin from 1848 to 1880, entitled, "The 
 Story of a Great Court ; ' ' editor of ' ' Legal Forms ; ' ' 
 and author of "The Citizen and The Law" in 
 Modern American Law. 
 
 Justice Winslow was a legal philosopher. Care- 
 ful study and an astute mind made him the idol of 
 his state and won for him the highest respect of 
 bench and bar.
 
 THE OEIGIN AND PHILOSOPHY OF 
 THE SUIT IN EQUITY 
 
 By John B. Winslow, A.M., LL.B., LL.D. 
 
 The reason why two courts existed side by side for 
 many years in English-speaking countries, one called 
 a court of law and one a court of chancery (or a court 
 of equity) , is not always clearly understood, even by 
 experienced lawyers; and the reason why we still' 
 speak of a court of equity and an action in equity,., 
 although there is in most of our states but one court 
 using but one form of action, is also a matter on which 
 there is more or less confusion of thought. 1 
 
 Logically there seems no justification for the ex- 
 istence of two kinds of courts, each created to admin- 
 ister justice but each administering its separate brand 
 of justice in a different way. Like many another in- 
 stitution which has existed in England and the coun- 
 tries which have sprung therefrom, the reason for the 
 existence of the court of equity is not really logical, 
 although it may not be strictly illogical. The English 
 method of meeting difficulties has generally been the 
 "cut and try" method rather than the scien- 
 tific or philosophical method. The difficulty arises, 
 the need is pressing, the philosopher is not called in 
 to evolve the logical remedy, but almost any expedient 
 or makeshift at hand is grasped and put into serviee, 
 
 5
 
 6 MODERN AMERICAN LAW LECTURE 
 
 Sometimes it serves its purpose fairly well ; generally 
 it goes through a process of slow evolution and at last 
 appears as a full-fledged institution, touched and 
 glorified by the glamour which antiquity lends even 
 to the commonplace. 
 
 To understand why the court of chancery arose 
 we must understand the history of the administration 
 of justice in England, and above all we must under- 
 stand the original powers of the Lord Chancellor of 
 England and the gradual evolution of those powers 
 during the centuries immediately following the Nor- 
 man Conquest. Had there been no chancellor there 
 could hardly have arisen a court of chancery, at least 
 in anything like the form which it finally assumed. 
 It is the purpose of this lecture to rapidly sketch the 
 evolution of the chancellor's powers and thus to ascer- 
 tain the why and wherefore of the court of equity. 
 
 THE ORIGINAL FUNCTIONS OF THE NORMAN 
 CHANCELLOR 
 
 William the Conqueror's chancellor was an ecclesi- 
 astic, his chaplain, private counselor and bearer of his 
 seal, and he performed the duties of a private secre- 
 tary which, it may be presumed, were not very oner- 
 ous in those days of limited education and still more 
 limited means of communication. For many years 
 the functions of the chancellor remained much the 
 same. He was always an ecclesiastic, — indeed this 
 was a matter of necessity, for none but ecclesiastics 
 could wield a pen with any degree of facility, and he 
 became known not only as the king's chancellor and
 
 THE SUIT IN EQUITY 7 
 
 the keeper of the great seal, but also as the " keeper 
 of the king's conscience." Truly in those days of 
 fighting and plundering, when the king was but too 
 frequently the chief swashbuckler of a band of fierce 
 guerrillas, this last function must have been a weighty 
 one. I fancy the king was often greatly relieved to 
 be able to give his conscience into the keeping of an- 
 other. Certainly there seem to have been many occa- 
 sions when the king and his conscience must have been 
 widely separated. 
 
 The Lord Chancellor of England in the nineteenth 
 century, however, is purely a secular official; he is 
 the head of the judicial system, the presiding officer 
 of the House of Lords, the first lay subject in the em- 
 pire, entitled to precedence above all others except 
 those of royal blood and the primate of England. No 
 single act of Parliament has accomplished this 
 change, but it has come about slowly by evolution and 
 gradual growth ; and this process of evolution, so far 
 as it concerns his judicial power, I shall attempt to 
 trace. 
 
 The origin of the word " chancellor" as applied to 
 this official has been much disputed. By some it is said 
 to have been derived from the place in which he sat, 
 which was fenced off from the multitude by crossbars 
 or "cancelli"; by others it is said to be derived from 
 the Latin verb "cancellare," from the fact that one 
 of his duties was to cancel the king's letters patent 
 which had been granted contrary to law. Whatever 
 its derivation, the title is a very ancient one. The 
 "Caneellarius" existed as an important official under 
 the Roman emperors, and was adopted by the church
 
 8 MODERN AMERICAN LAW LECTURE 
 
 and afterwards found his way very naturally into the 
 courts of the European states. 
 
 THE ANGLO-SAXON CHANCELLORS 
 
 The Anglo-Saxon kings before the conquest are 
 said to have had their chancellors, all of whom were 
 ecclesiastics, and one at least reached the dignity of 
 canonization as a saint. There are no authentic 
 records of the functions of these far away chancel- 
 lors. They are very shadowy personages, and it is 
 difficult to distinguish between history and fable. 
 Chancellor Swithin, who afterwards reached saint- 
 hood, is the best known and will be longest remem- 
 bered, not because he was chancellor, however, but 
 because of his piety and his supposed miraculous pow- 
 ers and because he superintended the instruction of 
 Alfred, called the Great. One of his decisions has 
 come down to us, but has never been relied upon as a 
 precedent. It is said that an old woman came to 
 complain to him that the eggs which she was carry- 
 ing to market in her basket had been wantonly 
 broken, whereupon the good chancellor made the 
 sign of the cross over the fragments and immediately 
 every egg was made whole. This was indeed the ad- 
 ministration of specific relief in equity, and I fancy 
 that many a judge has wished himself able to admin- 
 ister such relief since the day of the saint. It is 
 worthy of note in passing that the good chancellor's 
 miraculous performances did not, according to the 
 popular tradition, cease with his death. The tradi- 
 tion is that upon his death his body was, by his own 
 direction, buried in the churchyard among the poor
 
 THE SUIT IN EQUITY 9 
 
 instead of in his cathedral. Years afterwards, his 
 admirers proposed to transfer the remains of the 
 saint to the cathedral and deposit them under the 
 high altar with solemn ceremonies. This was to be 
 done on the fifteenth day of July, the day set apart 
 to his honor in the calendar, but he so strongly disap- 
 proved of the proceeding that he sent a tremendous 
 rain which continued for forty days until the project 
 was abandoned, ever since which time the weather is 
 supposed to be regulated for the next forty days by 
 the weather on St. S within 's day. The Scoteh have 
 put it in the form of a proverb thus : 
 
 "St. Swithin's day if it do rain, 
 For forty days it will remain ; 
 St. Swithin's day and be it fair, 
 For forty days 'twill rain na mair." 
 
 I do not stand sponsor for St. Swithin or his mir- 
 acles, — I simply tell the tale as it was told when 
 there was greater faith upon the earth than in these 
 days of cynical skepticism. 
 
 Whatever were the duties and powers of the old 
 Saxon chancellors, our information concerning them 
 is too scanty and unreliable to build upon and it can 
 not now be affirmed with any certainty that they ex- 
 erted any lasting influence upon English government 
 or institutions. Doubtless they were learned men 
 for the times in which they lived, and many of them 
 lived and died in the odor of sanctity, but when the 
 Norman kings came in they passed away forever and 
 became but an unsubstantial memory. 
 
 Our serious investigations begin, therefore, with
 
 10 MODERN AMERICAN LAW LECTURE 
 
 the Norman chancellors, whose line can be traced 
 with considerable certainty from the time of William 
 the Conqueror. The Battle of Hastings completely 
 changed the course of English history. Lord Camp- 
 bell says : "In all history there is not a more striking 
 instance of subjugation. Not only did almost all the 
 land in the kingdom change hands, — the native Eng- 
 lish being reduced to the thralls of the invaders, — but 
 legislative measures were brought forward either in 
 the sole name of the sovereign or through the form 
 of a national council under his control seeking to 
 alter the language, the jurisprudence and the man- 
 ners of the people. . . . French was substi- 
 tuted for the English tongue in all schools and courts 
 of justice; the intricate feudal law of Normandy 
 superseded the simplicity of Saxon tenures ; trial by 
 battle was introduced in place of the joint judgment 
 of the bishop and the earl in the county court; the 
 separation was brought about between ecclesiastical 
 and civil jurisdiction, and the great survey of the 
 kingdom was planned and accomplished, of which we 
 have the result in * Domesday' book." 
 
 THE ANGLO-SAXON IDEA OF THE ADMINISTRATION 
 
 OF JUSTICE 
 
 Prior to the conquest, the English government, 
 while monarchical, was by no means so centralized as 
 it became after the Norman power was established. 
 Justice was administered in a rude form, principally 
 by local courts. Hume says, "The administration of 
 justice in particular, by the Courts of Decennary, the 
 Hundred and the County, was well calculated to de-
 
 THE SUIT IN EQUITY 11 
 
 fend general liberty and to restrain the power of the 
 nobles. In the county courts or shiremoots all the 
 freeholders were assembled twice a year and re- 
 ceived appeals from the inferior courts. They there 
 decided all causes, ecclesiastical as well as civil, and 
 the Bishop, together with the Alderman or Earl, pre- 
 sided over them ; the affair was determined in a sum- 
 mary manner without much pleading, formality or 
 delay, by a majority of voices, and the Bishop and 
 Alderman had no further authority than to keep 
 order among the freeholders and interpose with their 
 opinion. Where justice was denied during three 
 sessions by the Hundred, and then by the County 
 Court, there lay an appeal to the King's Court; but 
 this was not practiced on slight occasions." 
 
 Doubtless the justice which was administered in 
 these local courts was rude and defective, but it can 
 readily be seen that this system was democratic in its 
 nature and necessary effects and directly opposed to 
 the centralization of judicial power in the hands of 
 the King. It tended to magnify the power and im- 
 portance of local and county authorities while mini- 
 mizing the power of the King. This was perhaps the 
 genius of the Anglo-Saxon character and institu- 
 tions, but the genius of Norman rule was exactly the 
 reverse. No kings ever reigned more absolutely 
 than William and his immediate successors. Louis 
 XIV could not say, "I am the state/' as truly as 
 William the Conqueror could. He was not simply a 
 king, — he was an absolute ruler who made laws by 
 his fiat and enforced them by his sword. He brought 
 with him a band of devoted followers consisting of
 
 12 MODERN AMERICAN LAW LECTURE 
 
 Norman adventurers, who formed a ready-made 
 cabinet of counselors, and no native born English- 
 man could hope for admission to this cabinet. Among 
 this band of aliens was Maurice, a Norman ecclesias- 
 tic, who became in the year 1067 the first of the long 
 line of chancellors which reaches down to the present 
 time. The completeness of the subjugation of the 
 Anglo-Saxons has been already referred to; their 
 lands were taken away, their language proscribed 
 and their manners and customs despised and sup- 
 planted by the Norman French. Of all the changes 
 so made, the change in the administration of justice 
 (so-called) was probably as radical as any. 
 
 THE NORMAN IDEA OF THE ADMINISTRATION OF 
 
 JUSTICE 
 
 The Anglo-Saxon idea that justice was primarily 
 to be administered by a man's neighbors, with the 
 King's Court as a possible final resort in extreme 
 cases, was supplanted by the Norman idea that the 
 king was the fountain of all justice, from whom it 
 flowed in gracious streams through his judges to the 
 people. The local courts were not indeed formally 
 abolished, but they passed by natural process into 
 disuse, and the king's courts took their places. The 
 process was greatly hastened by the requirement that 
 court proceedings must be conducted in the Norman- 
 French language instead of in the language " under- 
 stated of the people." Thus Norman lawyers 
 necessarily took the place of the lawyers of the soil, 
 and they naturally resorted to the Norman courts 
 rather than to the native courts. Not only this, but
 
 THE SUIT IN EQUITY 13 
 
 the king's courts were possessed of greater dignity, 
 with greater power behind them and were the prod- 
 uct of a higher civilization. The Norman courts 
 were also more formal and dignified in their pro- 
 cedure. In the Anglo-Saxon courts there was little 
 of formality, the seeker after justice relating his 
 wrongs orally and the opposing party answering in 
 the same way ; in the Norman courts the action had 
 to be commenced by a writ issued by the chancellor 
 under the seal of the king, and directed to some in- 
 ferior court requiring it to do justice between the 
 parties. 
 
 THE PASSING OF THE ANGLO-SAXON COURTS 
 
 It is difficult at this distance of time to ascertain 
 certainly the relative positions of the new king's 
 courts and the old Saxon inferior courts under the 
 first Norman rulers. It seems to be a fact that they 
 existed for many years side by side, the king's courts 
 increasing and the old local courts as steadily de- 
 creasing in importance. 
 
 The courts of barony and the county courts re- 
 mained, but they seem to have been gradually turned 
 into Norman courts with Norman judges, and in time 
 itinerant judges were sent out through the kingdom 
 who sat in these courts and tried all cases brought 
 before them; these judges were called justices in 
 Eyre, or wandering judges, and were the first judges 
 who rode the circuit. Thus the king became in fact 
 as well as in theory the head of the whole judicial 
 system. He often sat in his own court, the Curia 
 Regis, which followed his person, and heard causes
 
 14 MODERN AMERICAN LAW LECTURE 
 
 and pronounced judgment, being assisted by his chief 
 officers, the constable, marshal, treasurer and chan- 
 cellor, and such feudal barons as thought proper to 
 attend. This was the great and powerful court of 
 the kingdom; and in the king's absence it was pre- 
 sided over by the chief justiciar, who was the first 
 magistrate in the state, and, as Hume says, "a kind 
 of viceroy, on whom depended all the civil affairs of 
 the kingdom.' ' This court had jurisdiction of all the 
 business afterwards parcelled out among the four 
 courts, the Chancery, the King's Bench, the Common 
 Pleas and the Exchequer. In Saxon times, as before 
 noted, no appeal came to the King's court except 
 upon denial or delay of justice by the inferior courts, 
 but William empowered the King's court to receive 
 appeals freely both from the courts of barony and 
 from the county courts, as well as from the courts of 
 his itinerant judges, and thus brought the adminis- 
 tration of justice ultimately into the hands of the 
 sovereign. Hume says that by these expedients "the 
 courts of barony were kept in awe and if they still 
 preserved some influence it was only from the ap- 
 prehensions which the vassals might entertain of dis- 
 obliging their superior by appealing from his juris- 
 diction. But the county courts were much discred- 
 ited and as the freeholders were found ignorant of 
 the intricate principles and forms of the new law, 
 the lawyers gradually brought all business before the 
 King's judges and abandoned the ancient, simple and 
 popular judicature." 
 
 It will be readily understood that these changes 
 were not entirely disadvantageous to the freeholder.
 
 THE SUIT IN EQUITY 15 
 
 Under the former system the power and influence of 
 the feudal lord or baron within the barony were well- 
 nigh supreme. The king's court was shadowy and 
 remote, and the king's power was little felt. The 
 baron was apt to be a tyrant on a small scale and 
 there was practically no power to keep him in check, 
 and he often abused his power most shamefully and 
 denied justice to those who were too weak to demand 
 it or too poor to purchase it. His power and impor- 
 tance were, however, radically reduced, if not taken 
 away, by the new system, and thus the king's courts 
 became to some extent the guardians of the rights of 
 the common people as against their immediate feudal 
 
 lords. 
 
 THE KING'S SEAL 
 
 This sketch of the change in the judicial system 
 brought about under the early Norman kings is neces- 
 sarily very hasty and imperfect, but I believe it to be 
 substantially correct and it seems necessary, in order 
 to understand the manner in which the Norman chan- 
 cellor grew to be the head of the English judicial sys- 
 tem. As I have said before, the chancellor was orig- 
 inally the king's chaplain, his spiritual and temporal 
 adviser, attached to his immediate person, and the 
 keeper of his seal. The king's seal was an instru- 
 ment of the greatest importance. Without it no 
 grant or patent was of any validity, and no formal 
 act of the king was complete. It was a relic of the 
 times when few could write and when the seal was 
 practically the only method of authentication and 
 took the place of a signature. The chancellor be- 
 came such by delivery to him of the great seal and
 
 16 MODERN AMERICAN LAW LECTURE 
 
 ceased to be such when the seal was taken from him 
 and bestowed upon another. Like many another cus- 
 tom, the custom of using a seal long survived the 
 necessity which called it into use, and today every 
 government and every corporation has its seal, with- 
 out which its acts are invalid. So great was the im- 
 portance attached to the great seal that when in 1688 
 James II was flying from London he threw the great 
 seal into the Thames, with the idea that the functions 
 of the government must stop in the absence of the 
 seal, and indeed the act caused much perplexity and 
 there was not a little doubt and uncertainty as to how 
 the government could go on or a parliament be sum- 
 moned without the great seal. It is easy to see that 
 the bearer of the great seal was necessarily an im- 
 portant personage and one very near to the king. 
 He was a member of the king's council, though cer- 
 tainly not so important a member as the chief jus- 
 ticiar, who at that time outshone in splendor, power 
 and dignity all others. 
 
 THE ORIGINAL WRIT AND ITS FUNCTION 
 
 As before stated, the Norman system involved the 
 king's writ, sealed with the great seal, for the com- 
 mencement of every action in the king's courts. This 
 writ had to be paid for and it was issued by the 
 chancellor by virtue of his office as keeper of the seal. 
 Thus the chancellor became a fundamental and im- 
 portant part of the legal machinery of the realm. 
 To him every suitor must go and state his case, pay 
 his fine, as it was called, and obtain his original writ 
 commanding the inferior court to administer justice
 
 THE SUIT IN EQUITY 17 
 
 in the case. Thus the chancellor first passed upon 
 the litigant's cause of action upon a prima facie 
 showing and shaped the writ necessary to meet the 
 supposed wrong. As litigation increased these 
 duties became burdensome and the chancellor called 
 to his assistance clerks learned in the law who as- 
 sisted in the preparation of writs, called "Magistri," 
 or Masters in Chancery. When a new or excep- 
 tional state of facts arose, new writs were framed 
 either by the chancellor himself or in cases of diffi- 
 culty by the King's Council, but as years rolled on 
 the writs naturally settled into set forms, which were 
 not varied and the framing of new writs ceased and 
 was expressly forbidden by statute in the year 1258. 
 This jurisdiction is called the common law jurisdic- 
 tion of the chancellor and is not to be confounded 
 with the equitable jurisdiction which grew up later 
 and became of far greater importance. This com- 
 mon law jurisdiction was clerical in its nature. The 
 decision of the chancellor as to the issuance of the 
 writ or the form of the writ was not binding upon 
 the court to which it ran, but its propriety and valid- 
 ity were determined by the court itself. It seems 
 that for many years the issuance of these original 
 writs constituted the sole judicial functions of the 
 chancellor save that he sat as a member of the coun- 
 cil, and of this body it is now necessary to speak. 
 
 THE KING'S COUNCIL 
 
 The council was composed of the chancellor, the 
 treasurer and the judges and other great officers and 
 dignitaries who were summoned to assist the king as
 
 18 MODERN AMERICAN LAW LECTURE 
 
 his permanent advisers. The king himself sat in it 
 and it doubtless existed in an irregular form from 
 the time of William the Conqueror, but it was for- 
 mally erected into a separate tribunal by Henry II 
 in the latter part of the twelfth century and was 
 made the court of last resort. It met frequently, 
 perhaps daily, and had from time to time associated 
 with it the lords and other great ecclesiastical digni- 
 taries specially summoned to attend its meetings, and 
 it then sat as the Great Council, which was distinct 
 from Parliament, and the permanent council then 
 received the title of Privy Council. "The Council,' ' 
 says Mr. Hardy, "had an absolute jurisdiction over 
 all the proceedings in the courts below; if any liti- 
 gant felt himself aggrieved, he applied for redress to 
 the council in the same manner as he would have 
 applied to the king before the latter committed his 
 prerogative of distributing justice and equity to his 
 council ; application was made to it where, from the 
 heinousness of the offence or the rank or power of 
 the party or other cause, there was likely to be an 
 impediment to a fair trial or the attainment of jus- 
 tice in the ordinary tribunals. So also when, by 
 force or violence, justice was prevented from taking 
 its ordinary course." It exercised plenary jurisdic- 
 tion and either took the case in its own hands or gave 
 specific directions to the lower court, as the case 
 seemed to require. This august tribunal completed 
 the Norman judicial system; today the House of 
 Lords is the highest appellate court in England and 
 is the direct descendant and representative of the 
 King's Council of eight hundred years ago.
 
 THE SUIT IN EQUITY 19 
 
 THE GROWTH OF THE CHANCELLOR'S POWER 
 
 Gradually as the king's business increased, as he 
 was compelled to be absent on foreign wars and other 
 enterprises, he ceased to exercise his right to sit in 
 the council, and the words " Coram rege" became a 
 mere formal expression in the council and a fiction. 
 While the king thus gradually passed out of the 
 council, it was natural that the chancellor should be- 
 come the presiding officer. No one was so close to 
 the king as he was, no one had his ear so completely 
 and the king would be very apt to delegate his pow- 
 ers to his intimate friend and counselor with the 
 feeling that his own wishes would be consulted and 
 his interests carefully guarded by his private secre- 
 tary and spiritual adviser who depended for his con- 
 tinued existence in office simply upon the king's will. 
 Being still an ecclesiastic, it is not probable that he 
 shrank at all from assuming the presiding officer's 
 position. However it came about, certain it is that 
 the chancellor became the president of the king's 
 council, or, as the quaint and ancient expression is, 
 he ascended the "Woolsack" and thus took another 
 giant stride in the steady march of power. It seems 
 that his seat was called the woolsack from the fact 
 that in very early times he actually sat upon a sack 
 of wool for no other reason probably than because it 
 was a soft and comfortable seat. 
 
 By the time of Henry II, in the latter half of the 
 twelfth century, this advance had been made and the 
 chancellor's dignity and power had outstripped thai 
 of the chief justiciar.
 
 20 MODERN AMERICAN LAW LECTURE 
 
 THE FIRST SAXON CHANCELLOR AFTER THE 
 CONQUEST 
 
 At this time flourished the great and talented 
 A'Becket, the first Saxon chancellor and the man 
 who firmly established the office in its position of 
 commanding power. Campbell says of him, " While 
 he continued chancellor the office of grand justiciar 
 does not seem to have been filled and, except the 
 king, he had no superior. Tall in stature, with a 
 handsome and commanding countenance, his figure 
 pleased the eye, while his subtle reasonings, his pol- 
 ished elocution and facetious gayety won the heart. 
 His loftiness of mind that was proud and ceremoni- 
 ous with rank and power, softened into affability, 
 gentleness and liberality towards his inferiors and 
 dependents ; popularity being his passion, he studied 
 to be attractive and he knew that the condescensions 
 of greatness have still greater influence than its 
 power. He was the first to give the office of chan- 
 cellor the pre-eminence and splendor which have 
 since belonged to it." 
 
 Being the first Saxon who was promoted to any 
 office of distinction since the Norman rule began, his 
 elevation caused great joy to the native English. 
 He was learned in the Norman language and law, 
 both civil and canon, but he was not ashamed of his 
 Saxon origin, but rather proclaimed it. He was 
 only in deacon's orders when made chancellor early 
 in the reign of Henry II, but was subsequently raised 
 to the dignity of Archbishop of Canterbury and 
 primate of England. Prior to his becoming arch- 
 bishop he lived in the greatest splendor and was in
 
 THE SUIT IN EQUITY 21 
 
 high favor with the young king, who is said to have 
 consorted with him on the most intimate terms of 
 good fellowship. He not only presided in the king's 
 council and superintended the domestic administra- 
 tion of the kingdom, but he went on foreign embas- 
 sies and even led armies into the field. With our 
 ideas as to the proper sphere of an ecclesiastic, this 
 seems strange, but there was nothing strange in it 
 then. In 1158 he was sent on an embassy to the 
 French court to negotiate a marriage between the 
 king's son, who was still a boy, and a daughter of the 
 king of France. The account given by Fitzstephen 
 of Becket's retinue upon this embassy shows the 
 height of grandeur which the Chancellor had reached. 
 He says, "He took with him about two hundred 
 mounted on horseback of his own family, knights, 
 priests, standard bearers and squires, sons of noble- 
 men forming his bodyguard, and all completely 
 armed. All these, and all their followers were fes- 
 tively arrayed in new attire, each according to his 
 degree. He carried with him all kinds of dogs, and 
 birds for field sports used by kings and rich men. 
 In his train he had eight wagons; each wagon was 
 drawn by five horses equal to war horses, well 
 matched and with uniform harness; each horse was 
 taken care of by a stout young man dressed in a new 
 tunic. Two wagons carried nothing but ale made 
 with water and malt in casks fastened with iron to 
 be given to the French. The furniture of the Chan- 
 cellor's chapel filled one wagon, his chamber another, 
 his kitchen another; others were loaded with eat- 
 ables and drink for the use of himself and his train.
 
 22 MODERN AMERICAN LAW LECTURE 
 
 He had twelve sumpter horses; eight carried the 
 Chancellor's gold and silver plate. Coffers and chests 
 contained the Chancellor's money in good store, suf- 
 ficient for his daily expenses and the presents which 
 he meditated, together with his clothes, books and 
 articles of the like nature. One horse which pre- 
 ceded all the rest carried the holy vessels of his 
 chapel, the holy books and the ornaments of the 
 altar. 
 
 "Likewise each wagon had chained to it, either 
 above or below, a large and fierce mastiff, which 
 seemed able to contend with a bear or a lion, and on 
 top of every sumpter horse there was a monkey with 
 a tail, or an ape, mimicking the human countenance. 
 On entering the French towns and villages, the pro- 
 cession was headed by about 350 young men on foot 
 in groups of six, or ten or more, singing some verses 
 in their own tongue after the manner of their coun- 
 try. Then came at a little distance, harriers and other 
 dogs coupled together with their keepers and whip- 
 pers in. Soon after the wagons, strengthened with 
 iron and covered with great skins of animals sewed 
 together, rattled over the stones of the streets; at a 
 short distance followed the sumpter horses, rode by 
 their grooms, who sat upon their haunches. The 
 Frenchmen running out from their houses at all this 
 noise, inquired, 'Whose family can this be?' Being 
 answered, 'Behold the Chancellor of the King of 
 England going on a mission to the King of France,' 
 they exclaimed, 'How wonderful must be the King 
 of England himself whose Chancellor travels in such 
 state!'
 
 THE SUIT IN EQUITY 23 
 
 " After the sumpter horses followed esquires car- 
 rying the shields of the knights and leading the sad- 
 dle horses, then came other knights, then pages, then 
 those who bore hawks, then the standard bearers 
 and the upper and lower servants of the Chancellor's 
 household, then soldiers and priests riding two and 
 two, last of all came the Chancellor surrounded by 
 some of his friends. ' ' A'Becket was successful in his 
 embassy; indeed his commanding abilities insured 
 him success in state craft, war or diplomacy, but that 
 very fact made him so formidable to the king that he 
 was foully assassinated on the very steps of the altar 
 by the king's connivance, if not by his direction. We 
 have no record of A'Becket's judicial acts and so can 
 not judge of his merits upon the bench, but he was 
 without doubt the greatest Englishman of his time. 
 
 Notwithstanding the tragic death of A'Becket, the 
 office of chancellor lost none of its power. The 
 chancellor indeed had no court of his own; but he 
 presided in the highest court of the realm; and he 
 was at this time looked up to as a high judicial author- 
 ity and he occasionally went on the circuit as a jus- 
 tice in Eyre. 
 
 THE CONSERVATISM OF THE COMMON-LAW JUDGE 
 
 The logic of events seems always to have been 
 kind to the chancellors. Whoever lost power or 
 prestige, the chancellor always gained and never lost, 
 Forces were even now at work which ultimately gave 
 the chancellor a court of his own and one which pos- 
 sessed extraordinary and overshadowing power. As
 
 24 MODERN AMERICAN LAW LECTURE 
 
 has been already said, every action at law in the 
 king's courts was required to be commenced by the 
 king's writ issued out of the chancery. The fact has 
 also been stated that these writs gradually shaped 
 themselves into definite and set forms which could 
 not be waived or added to. The conservatism of the 
 judges added to the difficulty ; they were not inclined 
 to extend the old and well seasoned writs to cover 
 any case which did not fall strictly within the remedy 
 afforded by them. Mr. Marsh says, "The natural 
 tendency of lawyers to establish and follow prece- 
 dents brought about the result that in course of time 
 special forms of the original writ were established 
 for all ordinary causes of action and the common law 
 judges refused to allow those forms to be in any way 
 altered or modified, and finally they refused to sanc- 
 tion any new or novel causes of action, and they 
 refused to entertain any causes of action which were 
 not covered by the known and approved forms of 
 writ." These original writs contemplated little or 
 nothing in the way of preventive relief; the scope 
 and purpose of the actions which they commenced 
 was to recover money damages. And so it came about 
 that as civilization developed, and human affairs be- 
 came more complicated, many cases arose which were 
 not covered by any existing writ, especially where 
 the relief demanded was of a preventive character 
 instead of money damages. The suitors in such 
 cases came to the chancellor to secure a writ and 
 were refused or perhaps, having obtained one, were 
 unceremoniously bundled out of court by the com- 
 mon law judge because the case did not come within
 
 THE SUIT IN EQUITY 25 
 
 the writ which the chancellor had improvidently 
 issued. Between the clerical chancellor, the cast iron 
 form of writ, and the narrow and technical common 
 law judge, the poor suitor who had the misfortune 
 to have an exceptional case was indeed in a sorry 
 plight and frequently found himself unable to obtain 
 any relief. One attempt at least was made to remedy 
 the difficulty by a statute in the reign of Edward I, 
 which provided for the framing of new writs by the 
 clerks of the chancery or by parliament. The reme- 
 dial effects of this statute were, however, narrowed 
 by the scrupulosity of the judges, so that it failed 
 to accomplish any substantial results. Blackstone 
 says that this provision, with a little more accuracy 
 in the clerks of the chancery and a little more liber- 
 ality in the judges by extending rather than narrow- 
 ing the remedial effects of the writ, might have 
 effectually answered all the purposes of a court of 
 equity, except that of obtaining discovery by the 
 oath of a defendant. The judges, however, adhered 
 strictly to form and precedent and refused to avail 
 themselves of the legislative enactment or to mould 
 the old doctrines of the common law so as to meet 
 the exigencies of the times. 
 
 THE RESULTING DENIAL OF JUSTICE 
 
 The laws of the period were necessarily crude and 
 unscientific. They made little or no allowance for 
 the exceptional case or for the protection of claims 
 founded on principles of essential justice alone and 
 which could not justify themselves either by appeal
 
 26 MODERN AMERICAN LAW LECTURE 
 
 to precedent or by the positive command of the 
 meagre and unyielding written law. If the case did 
 not fit the arbitrary and ill-shapen pattern which 
 precedent had already provided, so much the worse 
 for the litigant. The man with such a case was either 
 turned out of court or forced to content himself with 
 a judgment for money damages, which afforded no 
 adequate relief and in many cases could never be 
 collected. 
 
 And thus it came about that in cases involving 
 the enforcement of trusts, or where the process of 
 the common law courts was being used oppressively 
 or fraudulently by the strong against the weak, or 
 where a legal advantage had been obtained by fraud, 
 accident or mistake, or where a wrong was threat- 
 ened and preventive relief was the only adequate 
 remedy, and in many other cases arising out of such 
 principles as estoppel, subrogation and the like, the 
 common law courts either afforded no remedy at all, 
 or a remedy so faulty and meagre as to amount to 
 a practical denial of justice. 
 
 THE REMEDY BY APPEAL TO THE KING 
 
 It is very manifest that such a condition of affairs 
 could not exist in a civilized community for any great 
 length of time without a remedy. The most obvious 
 remedy was to make a direct petition to the king. 
 He was theoretically the fountain head of all justice 
 and where his courts refused to grant adequate relief 
 because, as they alleged, they had not the power to 
 do so, it was very plain that such power must still 
 reside with the king, and to him therefore the out-
 
 THE SUIT IN EQUITY 27 
 
 raged suitor went and detailed his wrongs in the 
 form of a petition and showed that he had no remedy 
 in the common law courts and prayed that the king 
 might in the plenitude of his power grant the relief 
 which was denied by his judges. Doubtless at first 
 and perhaps for many years the king heard and de- 
 cided these petitions himself upon his own ideas of 
 natural right and justice or upon consultation with 
 his privy council or immediate advisers; but as the 
 business increased, or when foreign difficulties and 
 wars pressed upon him, it became necessary for him 
 to delegate his powers to another and the chancellor 
 was the official to whom this delegation of power was 
 gradually and naturally made. He was always with 
 the king, was his most confidential adviser, was per- 
 haps the most important member of the king's coun- 
 cil, and was in addition an ecclesiastic to whom the 
 laws of God as well as man were supposed to be well 
 known. Stubbs observes that "the fact that the 
 chancellor was always in attendance on the king led 
 to the petitions for royal grace and favor being en- 
 trusted to him, first for custody and afterwards for 
 hearing. Hence arose the equitable jurisdiction by 
 which he remedied the 'summum jus' of the common 
 law or promised remedies which were not provided 
 for by the common lawyers." 
 
 THE GROWTH OF THE CHANCELLOR'S COURT 
 
 Thus the chancellor finally became the judge of 
 an independent court and one with a large and ill- 
 defined jurisdiction, which he exercised according 
 to his own notions of justice and equity without re-
 
 28 MODERN AMERICAN LAW LECTURE 
 
 gard to the technical precedents and iron bound rules 
 which had become so dear to the common law judges. 
 The growth of this court was a slow process and one 
 which cannot be definitely and accurately traced. 
 Many years passed before it was firmly established. 
 It was fiercely attacked by the common law judges 
 as an encroachment on their rights and powers, its 
 pretensions were attempted to be curbed by Parlia- 
 ment, but despite all opposition it lived and devel- 
 oped and became a fixture in English administration 
 of justice for all time. It grew and flourished be- 
 cause it was necessary, and it was necessary because 
 of the narrow-mindedness, not to say stupidity, of 
 the common law courts. The general distinction be- 
 tween the jurisdiction of the common law courts and 
 the jurisdiction of this new court of equity has been 
 noticed. The common law courts gave simply money 
 damages or specific property in cases which fell under 
 the established common law writs, while the court of 
 the chancellor administered such relief as seemed ade- 
 quate to meet the wrong, including preventive relief 
 in all cases where justice and equity called for re- 
 dress and which did not come within the remedy 
 afforded by any established writ. In practice there 
 was also a wide difference between the two systems. 
 An action at common law was commenced by the orig- 
 inal writ implying a grant of jurisdiction from the 
 king and the issues were tried by a jury, while a suit 
 in equity was commenced by petition, followed by a 
 personal summons called a subpoena, to the defend- 
 ant and a trial by means simply of examination of 
 the defendant under oath before the chancellor.
 
 THE SUIT IN EQUITY 29 
 
 THE CLERICAL CHANCELLORS 
 
 Up to the time of the fall of Cardinal Wolsey, the 
 chancellors, with a few unimportant exceptions, had 
 been ecclesiastics and they administered relief in 
 equity according to their own views of right and jus- 
 tice as applied to the particular case before them and 
 did not follow any established legal principles. There 
 could not, of course, be any certainty as to results 
 under such a system. The learned Selden in his table 
 talk jestingly refers to this as follows: " Equity in 
 law is the same that the spirit is in religion, — what 
 everyone pleases to make it. Sometimes they go ac- 
 cording to conscience, sometimes according to law 
 and sometimes according to rule of court. . . . 
 Equity is a roguish thing ; for law we have a measure 
 and know what to trust to. Equity is according to 
 the conscience of him that is chancellor ; and as that 
 is larger or narrower, so is equity. 'Tis all one as if 
 they should make the standard for the measure the 
 chancellor's foot. What an uncertain measure would 
 this be? One chancellor has a long foot, another a 
 short foot, a third an indifferent foot. It is the same 
 thing with the chancellor's conscience." 
 
 Blackstone says : ' ' The decrees of a court of equity 
 were then rather in the nature of awards formed on 
 the sudden with more probity of intention than 
 knowledge of the subject, founded on no settled prin- 
 ciples, as being never designed and therefore never 
 used for precedents." 
 
 The court was frequently called the court of con- 
 science and the name has descended to our own day. 
 That the chancellors esteemed themselves as admin-
 
 30 MODERN AMERICAN LAW LECTURE 
 
 istering the laws of God rather than of man is shown 
 in the following extract from a judgment by Arch- 
 bishop Norton, who was chancellor in the time of 
 Henry VII. He says : "I know very well that every 
 law should be consistent with the law of God and that 
 law forbids that an executor should indulge in any 
 disposition he may have to waste the goods of the 
 testator; and if he does and does not make amends 
 if he is able, he shall be damned in hell." It is to be 
 hoped that the chancellor did not enforce this judg- 
 ment with an execution against the body. 
 
 It has been well and justly said that the clerical 
 character of the early chancellors stamped itself upon 
 the jurisprudence of the court founded by them, and 
 we see its effects even in the judgments of the later 
 chancellors who were not ecclesiastics. Lord Elles- 
 mere commenced his judgment in the Earl of 
 Oxford's case thus: " (1.) The law of God speaks 
 for the plaintiff, Deut. XXVIII. (2.) And equity 
 and good conscience speak wholly for him. (3.) 
 Nor does the law of the land speak against him ; but 
 that and equity ought to join hands in moderating 
 and restraining all extremities and hardships. By 
 the law of God he that builds a house ought to dwell 
 in it and he that plants a vineyard ought to gather 
 the grapes thereof; and it was a curse upon the 
 wicked that they should build houses and not dwell 
 in them and plant vineyards and not gather the 
 grapes thereof. Deut. XXVIII, 30. 
 
 "And yet here in this case such is the conscience 
 of the doctor, the defendant, that he would have the 
 houses, gardens and orchards which he neither built
 
 THE SUIT IN EQUITY 31 
 
 nor planted; but the chancellors have always cor- 
 rected such corrupt consciences and caused them 
 to render quid pro quo, etc." 
 
 fHE INFLUENCE OF THE CLERICAL CHANCELLORS ON 
 
 THE LAW 
 
 There is not space here to inquire extensively into 
 the effect and influence which the clerical chancellors 
 exerted through the court of equity upon English law 
 and consequently upon American law. That it was 
 great cannot be doubted and that it was in the main 
 vastly beneficial can as little be doubted. The com- 
 mon law lawyers and judges with their technicalities, 
 their strict devotion to precedent, and their narrow- 
 ness of mind unwittingly paved the way for a court 
 which should be careless for a time of precedent and 
 which should disregard mere forms and rules which 
 seemed designed rather to thwart than to expedite 
 justice. Irregular and uncertain as its judgments 
 may have been, it was at least a court which aimed to 
 give relief commensurate with the wrong done or 
 threatened. Mr. Kerly says, "The w r ork of the ec- 
 clesiastical chancellors was an exceedingly beneficial 
 one, for it may well be doubted whether the judges 
 trained in the practice of the common law would ever 
 have possessed the courage to interfere with its rules 
 in the face of the professional opinion of their 
 brethren, or indeed have been sufficiently detached in 
 mind to discover that the rules stood in need of cor- 
 rection." 
 
 The idea that there are no rules of law governing
 
 32 MODERN AMERICAN LAW LECTURE 
 
 the judgments of a court of equity has indeed long 
 since passed away; its jurisdiction is as definitely 
 fixed and the rules of law governing its action as well 
 established as are the jurisdiction and rules applica- 
 ble to common law courts, but it is still the court of 
 conscience, it still interferes to relieve fraud, oppres- 
 sion or inadequacy of remedy at common law, it still 
 retains many of the characteristics given it by the 
 long line of clerical chancellors. 
 
 THE LAST OF THE CLERICAL CHANCELLORS 
 
 Cardinal Wolsey was the most ambitious and per- 
 haps altogether the greatest of the clerical chancel- 
 lors, and was practically the last of his race and the 
 typical example of his class. Campbell says of him 
 that "he enjoyed more power than any of his pre- 
 decessors or successors who have held the office.' ' 
 
 Born a butcher's son, he rose to be bishop, arch- 
 bishop, cardinal, chancellor (almost equaling the 
 king in his power), and narrowly missed the triple 
 crown. But he died in prison under the charge of 
 treason, a victim of his own overweening ambition 
 and the irrepressible and surprising tendency of 
 Henry VIII. to contract new marriages regardless of 
 all conventional rules. He was for years a great 
 favorite and almost a boon companion of "bluff King 
 Hal," and Campbell says that his manner of living 
 eclipsed the splendor of the king's court. The de- 
 scriptions of it remind us of the stories told of 
 A'Becket, his great predecessor. His household con- 
 sisted of 800 persons, including one earl, nine barons, 
 and many knights and squires. He had a high chain-
 
 THE SUIT IN EQUITY 33 
 
 berlain, a vice-chamberlain, a treasurer, a controller 
 and other officers corresponding to those of the 
 royalty, bearing white staves. He had in his hall 
 kitchen two master cooks, with many assistants, and 
 in his private kitchen a master cook, who went daily 
 in damask satin or velvet, with a gold chain about his 
 neck. Campbell says, "We have likewise very pic- 
 turesque descriptions of his march to the Court at 
 Greenwich on Sundays, riding through Thames street 
 on his mule, with his crosses, his pillars, his hat and 
 the great seal till he came to Billingsgate ; where he 
 took his barge, and of the gorgeous celebration of 
 mass in his chapel, where he was attended by Bishops 
 and Abbots. Such was his haughtiness, that he made 
 dukes and earls to serve him his wine and to hold the 
 basins and lavatories. " 
 
 His daily progress from York house to the court 
 of chancery in Westminster was a gorgeous pageant. 
 There was first borne before him the great seal, two 
 great crosses of silver, two great pillars of silver, a 
 pursuivant with a silver mace and other attendants 
 with axes, gorgeously attired, and finally came the 
 Cardinal upon his mule trapped in crimson velvet 
 and gilt stirrups. 
 
 Cavendish in a metrical autobiography which he 
 imputes to Wolsey says : 
 
 "My crosses twain of silver long and great 
 That daily before me were carried high 
 Upon great horses openly in the street 
 With massy pillars glorious to the eye 
 With poll axes gilt that no man durst come nigh, 
 My presence I was so princely to behold 
 Riding on my mule trapped in silver and gold."
 
 34 MODERN AMERICAN LAW LECTURE 
 
 This splendor called forth some criticism and it 
 was a common saying that the two crosses showed 
 that he had twice as many sins to repent of as any 
 other prelate. One Doctor Barnes, a clergyman, in- 
 veighed against the cardinal's pomp and luxury and 
 was summoned before the cardinal and rebuked in 
 these words, "What, Master Doctor, had you not a 
 sufficient scope in the scriptures to teach the people 
 but that my golden shoes, my poll axes, my pillars, 
 my golden cushions and my crosses did so offend you 
 that you must make us ridiculum caput amongst the 
 people? We were jollily that day laughed to scorn. 
 Verily it was a sermon more fitter to be preached on 
 the stage than in the pulpit." Barnes answered, 
 "that he had spoken nothing but the truth out of the 
 scriptures according to his conscience," and he was 
 for the time discharged. 
 
 None of Wolsey's decisions as lord chancellor have 
 come down to us, so that it is difficult to correctly esti- 
 mate his capacity as a judge. It is generally allowed, 
 however, that he displayed great impartiality and 
 much discrimination and shrewdness in discussing the 
 principles of law and equity, and he gained such repu- 
 tation that by some he is thought to have been the 
 chancellor who firmly established the chancery as a 
 court of equity. However this may be, it seems quite 
 certain that he chose to exercise his equitable author- 
 ity over everything which could be a matter of judi- 
 cial inquiry and thus extended the jurisdiction of the 
 court. Business multiplied greatly and there came 
 to be great arrears, so that of his own authority he 
 established four new courts of equity by commission
 
 THE SUIT IN EQUITY 35 
 
 in the king's name, but one of which, however, sur- 
 vied Wolsey 's fall, namely, the court of the master 
 of the rolls. 
 
 THE FIRST GREAT LAY CHANCELLOR 
 
 Wolsey was succeeded by an illustrious and tal- 
 ented layman, Sir Thomas More, whose virtues, abil- 
 ities and melancholy end have made him a most inter- 
 esting historical character. 
 
 He was bred to the law and had taken a high rank 
 in his profession when Wolsey fell, and it was uni- 
 versally acknowledged that he was the fittest man to 
 succeed the great cardinal. 
 
 He found it necessary to use the writ of injunction 
 to stay inequitable actions at law, but it is said that 
 he did not do it until he had invited all the common 
 law judges to dine with him, on which occasion he 
 pressed upon them that they should reform the rigor 
 of the common law tribunals, but they refused, being 
 anxious, as the chancellor thought, to cast all respon- 
 sibility upon the jury. He had the great seal but 
 two years and a half, but in that time he succeeded 
 by his assiduity, quickness and learning in completely 
 wiping out all arrears of business, so that before the 
 end of his chancellorship every cause was decided as 
 soon as it was ripe for hearing. 
 
 One morning before the end of the term there 
 was not another cause to be heard or set down for 
 hearing, whereupon he ordered the fact to be entered 
 of record. The fact is said to have been entered in 
 metrical form with a prophecy which unfortunately 
 has proven true as follows :
 
 36 MODERN AMERICAN LAW LECTURE 
 
 "When More sometime had chancellor been 
 No more suits did remain ; 
 The same shall never more be seen 
 Till More be there again. ' ' 
 
 More was a man of great culture and learning and 
 of strict integrity and the highest ideas of honor. 
 Campbell says, "His character both in public and 
 private life comes as near perfection as our nature 
 will permit.' ' He met his death at the hands of 
 Henry VIII, bravely and for conscience' sake. One 
 would like to linger over so lovable a character which 
 flourished in an era of persecution and. bloodshed, but 
 the limits of this paper will not permit it. 
 
 More was succeeded by a number of unprincipled 
 lay chancellors who flourished in the latter part of the 
 reign of Henry VIII, whose acts are of no special 
 interest in connection with the subject before us. 
 With one or two unimportant exceptions, the chan- 
 cellors succeeding Wolsey were all laymen. 
 
 THE LAST STRUGGLE BETWEEN COKE AND 
 ELLESMERE 
 
 The last serious struggle between the common law 
 courts and the chancellor's court of equity took place 
 in the reign of James I, about the year 1616, Lord 
 Ellesmere being chancellor, Francis Bacon attorney 
 general, and Lord Coke being chief justice. The 
 times were troublous. Coke was an independent and 
 spirited man full of the pride of his order, with a 
 great reputation for independence of character and 
 learning, and he deemed himself powerful enough to
 
 THE SUIT IN EQUITY 37 
 
 wage open war upon the chancellor's equitable juris- 
 diction to stay the prosecution of suits in the common 
 law courts. 
 
 It was a battle royal and to the finish. It was 
 veritably the last ditch of the law courts in their 
 struggle against the court of equity. 
 
 Mr. Marsh says of the struggle: ''The particular 
 limits of the chancellor's equitable jurisdiction were 
 as yet exceedingly indefinite. The chancellors were 
 generally prone to extend them, and being at the same 
 time ministers of state in a government of very arbi- 
 trary temper, regarded too little that course of prece- 
 dent by which the other judges held themselves too 
 strictly bound. The cases reckoned cognizable in 
 chancery grew silently more and more numerous, but 
 with little overt opposition from the court of law till 
 the time of Sir Edward Coke. That great master of 
 the common law was inspired not only with the jeal- 
 ousy of this irregular and encroaching jurisdiction 
 which most lawyers seem to have felt, but with a tena- 
 ciousness of his own dignity and a personal enmity 
 toward Ellesmere who held the great seal. It hap- 
 pened that an action had been tried before him, the 
 precise circumstances of which do not appear, 
 wherein the plaintiff lost the verdict in consequence 
 of one of his witnesses being artfully kept away. He 
 had recourse to the court of chancery, filing a bill 
 against the defendant to make him answer under 
 oath, which he refused to do, and was committed for 
 contempt. Indictments were upon this preferred, at 
 Coke's instigation, against the parties who filed the 
 bill in chancery, their counsel and solicitors, for suing
 
 38 MODERN AMERICAN LAW LECTURE 
 
 in another court after judgment obtained at law, 
 which was alleged to be contrary to the statutes of 
 praemunire. But the grand jury, though pressed, as 
 it is said by one of the judges, threw out these indict- 
 ments. The king, already incensed with Coke and 
 stimulated by Bacon, thought this too great an insult 
 upon his chancellor to be passed over. He first 
 directed Bacon and others to search for precedents 
 of cases where relief had been given in chancery after 
 judgments at law; they reported that there was a 
 series of such precedents from the time of Henry 
 VIII, and some where the chancellor had entertained 
 suits even after execution. The attorney general was 
 directed to prosecute in the Star Chamber those who 
 had preferred the indictments, and as Coke had not 
 been ostensibly implicated in the business, the king 
 contented himself with making an order in the coun- 
 cil book declaring the chancellor had not exceeded 
 his jurisdiction." This order, after reciting the in- 
 vestigation made, commanded "that the chancellor 
 do not desist from giving such relief to the king's 
 subjects as shall stand with true merits and justice 
 of their cases (notwithstanding any former proceed- 
 ings at common law against them)." 
 
 BACON AS CHANCELLOR 
 
 To this order Coke submitted as gracefully as he 
 might. After this time there were no more serious 
 assaults upon the equitable jurisdiction of the chan- 
 cellor. Lord Bacon succeeded Ellesmere and held the 
 office for four years. He was perhaps the greatest 
 man intellectually who ever held the great seal.
 
 THE SUIT IN EQUITY 39 
 
 Kerly says of him, "Of all men of his age he was 
 probably best fitted to devise new principles, and to 
 rationalize the old ones and his mighty reputation 
 and transcendent genius, if unsullied by the shame 
 of his degradation, would probably have preserved 
 for long the fabric he perfected.' ' His time was too 
 short, however, to leave any very lasting or deep im- 
 press upon the court. Pope's line describing him as 
 "The wisest, brightest, meanest of mankind" will be 
 remembered by all, and while this estimate is not 
 entirely just, considering the time in which he lived, 
 it has sufficient foundation and is so epigrammatic 
 that it will doubtless be always accepted. The troub- 
 lous times of the Long Parliament and the protec- 
 torate soon followed, the middle classes arose in their 
 might and before another century dawned the abso- 
 lute king reigning by divine right had passed away 
 forever, to be succeeded by the constitutional monarch 
 reigning by the consent of the people, but the court 
 of equity presided over by the chancellor, or by com- 
 missioners of the great seal (as the keepers were 
 called under the commonwealth) survived with little 
 change in power save in the direction of reforms in 
 procedure. Gradually, under a long line of distin- 
 guished lay chancellors, the principles of equity be- 
 came crystallized into a system of well established 
 rules, and the old theory that no fixed rule governed 
 the chancellor was abandoned. The strict and some- 
 times absurd rules of the common law have been 
 gradually moulded and modified by equity doctrines. 
 It has been truly said, "Equity and law are in con- 
 tinual progression, and the former is constantly gain-
 
 40 MODERN AMERICAN LAW LECTURE 
 
 ing ground upon the latter. Every new and extraor- 
 dinary interposition is by length of time converted 
 into an old rule. A great part of what is now strict 
 law was formerly considered as equity; and the 
 equitable decisions of this age will unavoidably be 
 ranked under the strict law of the next." 
 
 THE RESULTS FORMULATED 
 
 It would not be helpful to pursue the English his- 
 torical inquiry further, indeed it may be that too 
 much space has already been devoted to it. We are 
 ready now to formulate results and to note their bear- 
 ing upon American administration of justice. 
 
 As has been already indicated in this lecture, there 
 had grown up in England at the time of the estab- 
 lishment of the first American courts, two inde- 
 pendent courts with jurisdiction over the same 
 classes of litigants and the same general subjects of 
 litigation, the limits of the jurisdiction of each being 
 practically fixed by the nature of the relief to be ad- 
 ministered ; if the remedies given by the common law 
 courts were adquate those courts had jurisdiction; 
 if, however, the common law courts gave no remedy 
 or only an inadequate one, the litigant could bring his 
 suit in equity. 
 
 The test was simple enough in theory, but was not 
 always easy of application. It involved, of course, 
 an accurate knowledge of common law actions and 
 their scope. These actions were included in three 
 classes, viz: (1) Real actions, brought for the spe- 
 cific recovery of the title or possession of real prop-
 
 THE SUIT IN EQUITY 41 
 
 erty; (2) Personal actions, brought for the specific 
 recovery of goods or chattels, or for the recovery of 
 damages for breach of contract, or for tortious in- 
 jury, and (3) Mixed actions, brought for the recovery 
 of real property and damages for injury in respect 
 thereto. In every case the remedy was either prop- 
 erty or money and in every case the litigant was en- 
 titled to the verdict of a jury on his right. 
 
 In addition to these remedies, there existed also in 
 the great common law court of King's bench powers 
 of an appellate and superintending nature, by which 
 it was able to control the course of justice in the in- 
 ferior common law courts, as well as in administrative 
 bodies. The first of these powers was exerted by the 
 use of the writ of error and the second by the so- 
 called prerogative writs of mandamus, prohibition, 
 quo warranto, procedendo, habeas corpus and cer- 
 tiorari. These latter writs were called prerogative 
 writs because they issued not as a matter of right but 
 within the discretion of the king, sitting in his own 
 court and exercising his kingly prerogative when it 
 seemed to be necessary in the interest of justice to 
 control by direct command the action of an inferior 
 court, officer or even a private citizen. 
 
 When none of these remedies were available or 
 adequate, the court of chancery was open and not till 
 then. 
 
 TRANSFER OF THE SYSTEM TO AMERICA 
 
 The English system was naturally copied by 
 America and thus independent courts of law and 
 equity arose in the American system. Gradually,
 
 42 MODERN AMERICAN LAW LECTURE 
 
 however, the fact became realized that the same court 
 could well administer both legal and equitable relief, 
 and as a result separate courts of equity have been 
 abolished in both state and federal judicial systems, 
 with the exception of a very few jurisdictions. 
 
 Following this change came the reformed codes of 
 procedure, abolishing in terms the distinction be- 
 tween legal and equitable actions and providing for a 
 single form of action in which the pleadings were 
 required to state, without unnecessary repetition, the 
 facts on which the right of action was supposed to 
 depend. 
 
 WHY THE SUIT IN EQUITY STILL REMAINS 
 
 Superficially these provisions would seem to wipe 
 out the distinction between the two forms of action. 
 That they did not do so in fact is clear and the reason 
 why is equally clear. The reason is that the funda- 
 mental distinction has been preserved in fact, though 
 not in words, by both federal and state constitutions 
 and hence no legislative code can do away with it. 
 The constitution makers, both state and federal, 
 deemed the right of trial by jury the very cornerstone 
 of individual liberty, and hence they very carefully 
 guarded it by specific provisions to the effect that the 
 right of jury trial should remain inviolate. These 
 provisions have been universally construed as pre- 
 serving the right as it existed, or in other words, as 
 forever securing to the litigant a jury trial of those 
 issues which under the system existing at the time 
 of the adoption of the provisions were triable by jury. 
 This means, of course, such issues as arose in the old
 
 THE SUIT IN EQUITY 48 
 
 common law actions under whatever name or form 
 they may now exist. 
 
 The result is plain. The litigant who has suffered 
 an injury formerly redressed by appeal to the com- 
 mon law courts and trial by jury must still invoke the 
 same remedy, — that is, he can not appeal to the equity 
 side of the court, where the judge tries the issues of 
 fact as the chancellor did of old, but must go before a 
 jury unless his opponent consents to waive his right 
 to a jury trial. 
 
 The difference between the legal and equitable 
 action is thus preserved and fortified, notwithstand- 
 ing the most sweeping changes in nomenclature or 
 forms of procedure. 
 
 A litigant can not take his purely legal cause of 
 action away from the arbitrament of a jury without 
 his opponent's consent. Naturally, therefore, we still 
 speak of the suit in equity and the action at law, be- 
 cause these names express the distinction which has 
 been preserved in substance, though not in words, by 
 the constitutional provisions to which reference has 
 been made. While these provisions exist, the essen- 
 tial difference between the two actions will also exist 
 and cannot perhaps be better expressed than by the 
 use of terms whose meaning lias been fixed by cen- 
 turies of legal history.
 
 GAYLAMOUNT«) 
 PAM PHLET BINDER 
 
 -"^"* Syracuse, N.Y. 
 ' Stockton, Calif. 
 
 000 821 

 
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