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the writ of subpæna-the powerful instrument of chancery jurisdiction-and made it returnable before himself in chancery, in order to oblige a feoffee to uses to account for the profits of the land. Successful in assuming the jurisdiction of one case, the chancellor afterwards extended it to others; and, in the time of Edward the fourth, the process by subpæna was become the daily practice of the court. Such was the origin of the equitable jurisdiction of chancery,

The description which we have given of courts of equity and courts of law, and of equitable and legal jurisdictions, is conformable to the practice and proceedings of the court of chancery and of the courts of common law in England, at present, and during the last hundred years, or the greatest part of them. But this description cannot, with propriety, be applied to the practice and proceedings of those courts at periods more remote: in those remote periods, a court of equity was considered and acted as possessing a power, altogether discretionary.

Equity," says Mr. Selden, "is a roguish thing. For law we have a measure: 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. It is all one as if they should make the standard of measure a 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. 'Tis the same thing in the chancellor's conscience." Similar, though not expressed, perhaps, in a similar manner, were the sentiments of the principal lawyers of that age-of Spelman, of Coke,

P Millar. 475. 3. Bl.Com. 51.

VOL. II.

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q Table talk.

of Lambard, and even of the great Bacon,' who himself held the office of chancellor, and who, of all others, appears to have been the best qualified to understand the nature of that office. This, indeed, was in the infancy, as it may be called, of the court of chancery, before its jurisdiction was settled, and when the chancellors, partly from their ignorance of law, and partly from ambition and lust of power, had arrogated to themselves such unlimited authority, as has since been totally disclaimed by their successours.

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In the remote periods, which we have mentioned, while a court of equity acted and was considered as possessing powers altogether discretionary, the courts of law, on the other hand, acted upon principles, which were both narrow and unjust. If the judges of the courts of common law had been as liberal then as they have been since, the court of chancery would never have swelled to its present enormous bulk. "I have always thought," said the very able and learned Judge, whose opinion I now quote, "that formerly there was too confined a way of thinking in the judges of the courts of common law; and that courts of equity have risen, because the judges have not properly applied the principles of the common law, but, being too narrowly governed by old cases and maxims, have too much prevented the publick from having the benefit of that law." This contracted spirit, prevailing, for a long time, in the courts of common law, necessarily drove a multitude of suitors into a court of equity for relief. The doors of this court were constantly open to receive them.

r Millar. 477. 3. Bl. Com. 433.

$ 3. Bl. Com. 433.

t Lord Chief Justice Wilmot. 2. Wils. 350.

I adduce an instance, familiar and striking. A double bond-a bond, with a penalty containing the double of the sum really due-is an instrument peculiar, I believe, to England, and those countries which have adopted the laws of England. It was originally contrived to evade those absurd constitutions, which interdicted the receipt or payment of interest for the use of money lent. Since interest could not be allowed by the law, as it then stood, the penalty was, in the courts of law, considered as the real debt, when the debtor did not perform his agreement at the time stipulated; and for the penalty, judgment was accordingly given. In proportion as business and trade became considerable and extended, the necessity and the propriety of paying and receiving interest became daily more apparent, and was allowed by the law; and, in the reign of Henry the eighth, it was declared, by an act of parliament, that the debt or loan itself was, "the just and true intent," for which the obligation was given. One would naturally suppose, that this legislative declaration would have been a sufficient authority for the courts of law to alter the principle, on which their former judgments had been given. The narrow minded judges of those times thought otherwise; and, adhering wilfully and technically to the letter of the settled precedents, refused to consider the payment of principal, interest, and costs as a full satisfaction for the bond. In the courts of equity, where a more liberal spirit prevailed, the instrument, according to "its just and true intent," was considered as merely a security for the money really due, and was discharged on its pay. ment. But so pertinaciously, in this instance, did the courts of law cling to their precedents, even so late as the present century, that the parliament was obliged, at length, to interpose, and to direct, that what had long

been the practice in the courts of equity, should, in future, be the practice in the courts of law. "

We now see the causes of the progress, which a distinct and independent equitable jurisdiction made in England.

In many instances, however, and, indeed, in the general principles of their proceedings and adjudications, the courts of law and equity have, for a century past, gradually approximated to one another. A series of eminent lawyers, who successively filled the chancellor's chair, formed the system of equity into a regular science, which, like the science of law, cannot be acquired without the aids of study and experience. In the courts of law, a series of lawyers, equally eminent, have, by degrees, embraced the enlarged and enlightened principles, by which law as well as equity should be governed and illustrated. In chancery, it is a maxim, that equity follows the law. In the courts of law, a powerful reason for adopting a principle or rule is the consideration, that the principle or rule has been adopted in chancery. Each jurisdiction, as far as possible, follows the other, in the best and most effectual measures for attaining the great ends of certainty, peace, and justice. The suggestion, indeed, of every bill in equity, in order to give jurisdiction to the court, is still, that the complainant has no remedy at the common law. But he who views the variety and extent of the causes determined in chancery, must be satisfied that this suggestion is now a mere fiction, copied, indeed, from the realities of former times.

" 3. Bl. Com. 435.

We are now prepared to give an answer to the second question, which was proposed some time ago-In what material or essential points, does the jurisdiction of chancery differ from a jurisdiction exercised according to the rules and principles of the common law?

They differ not, as we have seen, in the rules of property, of evidence, or of interpretation: they differ not in the principles of justice or of positive law. Still, however, they differ in some points very material, and which ought to be known.

They differ with regard to the mode of proof. By the rules of the common law, as a party cannot be a witness in his own favour, so he cannot be obliged to become a witness, or to furnish evidence, against himself. But the views of equity, with regard to this subject, are more extensive and refined. If the defendant knows the claim made upon him to be well founded, he ought neither to conceal it, nor refuse to satisfy it. If he has done nothing improperly, he can sustain no loss by a candid declaration of what he has done. If his conduct

has been fraudulent, the fraud should receive no protection: but it receives protection, if it is suffered to be concealed. For these reasons, when material facts rest only in the knowledge of the party, a court of equity examines him, on oath, with regard to the truth of the transaction.

In mercantile transactions, this mode of discovery is peculiarly reasonable and important. In such transactions, the parties are generally at a distance from one another their contracts, therefore, cannot be made in the presence of witnesses. Of such transactions, each

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