rights and remedies, that it may be an important ingredient, as will be found illustrated at length in various occasions hereafter to be mentioned.

Distinction of law and equity.-Some notice is also due in this place to a notable distinction, which had long prevailed in English law between courts of equity and courts of common law. Though it is usually of small consequence to suitors by what name a court is called, provided the thing it dispenses is justice, or near it, yet the distinction referred to had gradually risen from a mere technicality of procedure to such prominence as not only to derange the general machinery, but to warp and distort the public mind. The public were sensible only of the mischief, and unwilling to discern any benefit from seeing the law administered by two broadly-marked divisions of courts, always having imperfect sympathies, and sometimes in open conflict with each other-one court following rules which the other ignored, and which it was impotent to comprehend, to accept, or to act upon-one court giving a judgment, and the other court next day pulling it to pieces -one court putting a man into possession, and the other court turning him out of possession-one court dismissing a suitor as blameless, and the other court seizing him and thrusting him into prison as a punishment for his contempt.

The mental confusion created among bystanders by such proceedings was inevitable. First it taught the public to believe, that law was not equity, and equity was not lawthat what was just in one court was unjust in the other— that what was told them by one court was only half the truth-that they must invoke the powers of a second court, before they could hope to know the whole of their rights and wrongs-not to speak of the evil effect produced on the suitors by the reticence and taciturnity of each court as to the remedies open to them in the other. Secondly, the expense and delay to the public were thereby doubled, because the details of both procedures were too voluminous to be mastered by one set of practitioners, and as they could not undertake to manage both, they confined themselves to one only. Double costs and indefinite delay thus resulted to litigants. So many were the evils and so few the advantages, that the current of public opinion sapped and mined this wall of separation till it fell. For centuries

the profession failed to see itself as others saw it. Yet the dominion of this leading subdivision was so durable and so extensive, as to leave permanently stamped on the profes sional mind distinctions, contrasts, and phrases which it must prove tedious to unlearn. It was pernicious to create and perpetuate the belief, that law did not include equity, and that equity was something outside and superior to law. If both had limits, and both had to be administered by courts having, if not concurrent, at least coequal authority and power, the best policy was not to keep them so wide apart.

But though the administration of the law by two separate courts which meted out justice with an air of rivalry rather than of co-operation was attended with mischiefs, there was to be set off against this an incidental advantage on the other side. In the great majority of cases the result was nothing else than a subdivision of labour, though operating in the most vexatious way, and hence the tendency was to make the judges and practitioners more skilful in the particular work with which they were familiar.

Most of the evils arising from this subdivision of courts into courts of equity and common law were put an end to in 1875, and the history of the origin of the Court of Chancery as a court of equity is now a matter rather for antiquarians than for lawyers. England was said to be the only civilised country where the separation of equity from law was kept up, for the Court of Session in Scotland, and the courts of other European countries allowed of no such distinction. But Bacon and a long line of illustrious chancellors thought the distinction a blessing rather than an evil. The history of the Court of Chancery goes back for many centuries. Whenever courts of law, as courts in all countries are apt to do, adhered too closely to the letter of their rules, and a violation of the sense of justice resulted, the dissatisfied party, so far back as the time of King Edgar, appealed to the king. The king referred the matter to his chief officer, and the Lord Chancellor coming to hold that position, was able to supply defects from time to time, until his course of action gradually settled into a system, and became known and resorted to as peculiarly applicable to certain classes of rights. The select council in the time of Henry I. took cognisance of hardships which the ordinary 1 Leg. Edg. ch ii.

judges could not relieve.1 And Edward I. remitted petitions which prayed extraordinary redress to the Lord Chancellor and Master of the Rolls, directing them to give such remedy as appeared consonant to honesty.2 The Court of Chancery was in working order in the reign of Edward II.3 In the time of Edward III. it was a court of ordinary jurisdiction, directed by his writ to administer matters in the grace of the crown.* And in that reign the Court of Chancery, like the Court of King's Bench, ceased to follow the king, and thus acquired stability and strength.5

The introduction of the practice of creating uses of land or trusts in the time of Edward III. gave an additional impulse to the business of this court, and notwithstanding the opposition of Lord Coke to the practice of courts of equity nullifying judgments of courts of law (and which was one of the articles of impeachment against Wolsey), the jurisdiction of the Court of Equity was, after due examination, confirmed and consolidated under Lords Ellesmere and Bacon. The future history of the jurisdiction was nothing but a natural development, the courts of law falling back by degrees on the old lines, and the courts of equity feeling their way, whenever there was an opening to administer relief as soon as the original courts under their construction of accepted rules failed to provide any. It was found that the ecclesiastical courts could not deal effectually with all the suits and actions arising against the executors and administrators of a deceased person, and that there was need of a machinery for consolidating all the litigation arising out of the contracts and undertakings which a dead man left imperfect, and so a court of equity allowed an administration suit by which the extrication of all liabilities between the dead and the living could be undertaken under its own immediate superintendence. From this class of circumstances alone a fruitful business sprang up. The ecclesiastical courts, moreover, not content with jurisdiction over wills and testaments, and marriage, for which they had, according to mediaval views, a colourable ground of interference, once entertained suits for debts and breaches 2 Disc. on M. R., p. 86.

1 Hardy's Close Rolls, p. xxv.

31 Camp. L. Ch. 206. 4 Hardy's Close Rolls, xxviii.; Writ, 22

Ed. III.

5 Parkes' C. of Ch. 34.

of contract, claiming to administer relief pro læsione fidei. Blackstone says these courts so acted from the time of Stephen till late in the fifteenth century.1

Equitable jurisdiction as to trusts.-The case of trusts, however, is the most conspicuous instance of the manner in which courts of equity came to supply the deficiencies and correct the pedantries of courts of law. A trust, as will be seen hereafter, is only a device for separating the ownership of lands or goods into two parts, whereby the substance or benefit of the property is given to one called the cestui que trust or beneficiary, and the right of management or custody to another, called the trustee. Good reasons must exist for this subdivision of ownership in the circumstances of every civilised community, more especially in connection with the gift and bequest of property after the death of the testator. Such a practice arose in the Roman law out of a natural desire of testators to evade the Voconian law, by which a qualified citizen only could be made heir, and thus an only female child might have been left destitute, unless the father could give the property to some one in trust for the benefit of that child. And Augustus recognised the justice and compelled the performance of such a trust. In England also, before the time of Edward I., an owner from similar motives gave even during his lifetime estates to feoffees for uses with a trust or confidence to reconvey them after death to himself cr his heirs, though the courts of law could not give a remedy if the feoffee omitted to execute his trust.2 The clergy had the merit of putting the subject on its right footing, for they required a friendly hand to hold property for their benefit, in order to evade the provision of Magna Charta and later statutes prohibiting gifts to religious houses. The laity had equally urgent motives, such as the object of defeating creditors or attainder, or providing for younger children. Any such arrangement as a trust, however, courts of law, with a narrow-mindedness approaching to pedantry, professed not to comprehend. They refused to deal with any one but the feoffee, and treated all representations of these ulterior interests in the back1 3 Bl. Com. 52.

2 2 Bl. Com. 271. 3 Mag. Charta; 9 Hen. III. c. 36; Stat. de Relig. 7 Ed. I.

ground as a fraud. They selected the manager or trustee as for all purposes their owner in fee, leaving him to do as he liked with his so-called confederates in the collusion. By this course a trustee was deemed absolute owner, and was entitled to appear as such in all the phases of litigiousness before courts of common law, and he was not deemed bound to account before them to the other party in the trust, or acknowledge in any way his existence; the consequence of which was that trustees went entirely without check or control till the time of Henry V. The courts of equity saw their opportunity, and, the chancellor being usually himself an ecclesiastic, borrowed the practice of the ecclesiastical courts which never hesitated a scruple as to the powers they would exercise over the living or the dead, invented the writ of subpoena, by which they summoned the trustee before them, and made him convey the estate or execute the trusts, or take proceedings at common law, according to the situation of affairs.1 This subpoena, though at first deemed a dangerous novelty (said to be the invention of Sir John Waltham, M. R., in the time of Richard II.), after some fluctuations of treatment, became a settled practice in the time of Edward IV. It was a searching process, requiring the defendant's personal attendance under a penalty of commitment for contempt-thereby in itself forming a marked contrast to the mode of commencing and carrying on actions at common law, where the appearance of parties was not necessary, and indeed they could not be heard.

Not only was the case of trusts the most conspicuous occasion for the firm ground taken up by courts of equity, but other miscellaneous matters were also appropriated, such as the relief allowed in cases of fraud and accident. Coke quotes a couplet of Sir Thomas More, that "three things are helped in conscience-fraud, accident, and things of confidence."1 And when the conscience is once resorted to, no one can fail to see that there must be many hardships occurring under the most admired rules of law, which are hateful to the sense of justice, and which any one skilful in applying conscientious thought, and with suitable opportunities, can intervene to meet with great 1 1 Spence, Eq. Jur. 443. 2 1 Roll, Abr. 374; 2 Swanst, 160, n.

VOL. I.

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