A A <- ' ^ o <=, o 8 1 , IE i S ON/ \LLIBF 6 : ** I --- g? I 9 ^^^^^ 2 I 5 .nio 4 ^= I 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 - • . .. V . I