only alternative, for if we were to inquire what it is that all these rules have in common and what it is that marks them off from all other rules administered by our courts, we should by way of answer find nothing but this, that these rules were until lately administered, and administered only, by our courts of equity.

Therefore for the mere purpose of understanding the present state of our law, some history becomes necessary. . . .

...

In Edward I's day, at the end of the thirteenth century, three great courts have come into existence, the King's Bench, the Common Bench or Court of Common Pleas and the Exchequer. Each of these has its own proper sphere, but as time goes on each of them attempts to extend its sphere and before the middle ages are over a plaintiff has often a choice between these three courts and each of them will deal with his case in the same way and by the same rules. The law which these courts administer is in part traditional law, in part statute law. Already in Edward I's day the phrase 'common law' is current. It is a phrase that has been borrowed from the canonists who used 'jus commune' to denote the general law of the Catholic Church; it describes that part of the law that is unenacted, non-statutory, that is common to the whole land and to all Englishmen. It is contrasted with statute, with local custom, with royal prerogative. It is not as yet contrasted with equity, for as yet there is no body of rules which bears this name.

One of the three courts, namely, the Exchequer, is more than a court of law. From our modern point of view it is not only a court of law but a 'government office,' an administrative or executive bureau; our modern Treasury is an offshoot from the old Exchequer. What we should call the 'civil service' of the country is transacted by two great offices or 'departments'; there is the Exchequer which is the fiscal department, there is the Chancery which is the secretarial department, while above these there rises the king's permanent Council. At the head of the Chancery stands the Chancellor, usually a bishop; he is we may say the king's secretary of state for all departments, he keeps the king's great seal and all the already great mass of writing that has to be done in the king's name has to be done under his supervision.

He is not as yet a judge, but already he by himself or his subordinates has a great deal of work to do which brings him into a close connexion with the administration of justice. One of the duties of that great staff of clerks over which he presides is to draw up and issue those writs whereby actions are begun in the courts of lawsuch writs are sealed with the king's seal. A man who wishes to begin an action must go to the Chancery and obtain a writ. Many writs there are which have been formulated long ago; such writs are writs of course (brevia de cursu), one obtains them by asking for them of the clerks called Cursitors and paying the proper fees. But the Chancery has a certain limited power of inventing new writs to

meet new cases as they arise. That power is consecrated by a famous clause of the Second Statute of Westminster authorising writs in consimili casu. Thus the Chancellor may often have to consider whether the case is one in which some new and some specially worded writ should be framed. This however is not judicial business. The Chancellor does not hear both sides of the story, he only hears the plaintiff's application, and if he grants a writ the courts of law may afterwards quash that writ as being contrary to the law of the land.1

2

But by another route the Chancellor is brought into still closer contact with the administration of justice. Though these great courts of law have been established there is still a reserve of justice in the king. Those who can not get relief elsewhere present their petitions to the king and his council praying for some remedy. Already by the end of the thirteenth century the number of such petitions presented in every year is very large, and the work of reading them and considering them is very laborious. In practice a great share of this labour falls on the Chancellor. He is the king's prime minister, he is a member of the council, and the specially learned member of the council. It is in dealing with these petitions that the Chancellor begins to develop his judicial powers.3

In course of time his judicial powers are classified as being of two kinds. It begins to be said that the Court of Chancery, 'Curia Cancellariae' for the phrase is used in the fourteenth century—has two sides, a common law side and an equity side, or a Latin side and an English side. Let us look for a moment at the origin of these two kinds of powers, and first at that which concerns us least.

(1) Many of these petitions of which I have spoken seek for justice not merely from the king but against the king. If anybody is to be called the wrong doer, it is the king himself. For example, he is in possession of land which has been seized by his officers as an escheat while really the late tenant has left an heir. Now the king can not be sued by action no writ will go against him; the heir if he wants justice must petition for it humbly. Such matters as these are referred to the Chancellor. Proceedings are taken before him; the heir, it may be, proves his case and gets his land. The number of such cases, cases in which the king is concerned, is very largekings are always seizing land on very slight pretexts and forcing

1 Cf. pp. 73-74, supra.

2 As to the king's residuary judicial power, see Langdell, Summary of Equity Pleading (2d ed. 1883) §§ 36-38; Adams, "The Origin of English Equity," 16 Col. L. Rev. 87, 90-92, 97 (1916). This royal prerogative of mitigating the rigors of the strict law existed in England before the Conquest. See Secular Ordinance of Edgar (958-975) § 2, translated in 1 Thorpe, Ancient Laws and Institutes of England (1840) 267: "If the law be too heavy, let him seek a mitigation of it from the king."

3 As to the Chancellor's gradual assumption of a substantial part of the king's residuary judicial power, see 1 Holdsworth, History of English Law (1938) 401-404.

other people to prove their titles. Gradually a quite regular and ordinary procedure is established for such cases a procedure very like that of the three courts of law. The proceedings are enrolled in Latin just as the proceedings of the three courts of law are enrolled in Latin (hence the name 'Latin side' of the Court of Chancery) — and if a question of fact be raised, it is tried by jury. The Chancellor himself does not summon the jury or preside at the trial, he sends the question for trial to the King's Bench. All this is by no means unimportant, but it does not concern us very much at the present time.

(2) Very often the petitioner requires some relief at the expense of some other person. He complains that for some reason or another he can not get a remedy in the ordinary course of justice and yet he is entitled to a remedy. He is poor, he is old, he is sick, his adversary is rich and powerful, will bribe or will intimidate jurors, or has by some trick or some accident acquired an advantage of which the ordinary courts with their formal procedure will not deprive him. The petition is often couched in piteous terms, the king is asked to find a remedy for the love of God and in the way of charity. Such petitions are referred by the king to the Chancellor. Gradually in the course of the fourteenth century petitioners, instead of going to the king, will go straight to the Chancellor, will address their complaints to him and adjure him to do what is right for the love of God and in the way of charity. Now one thing that the Chancellor may do in such a case is to invent a new writ and so provide the complainant with a means of bringing an action in a court of law. But in the fourteenth century the courts of law have become very conservative and are given to quashing writs which differ in material points from those already in use. But another thing that the Chancellor can do is to send for the complainant's adversary and examine him concerning the charge that has been made against him. Gradually a procedure is established. The Chancellor having considered the petition, or 'bill' as it is called, orders the adversary to come before him and answer the.complaint. The writ whereby he does this is called a subpoena - because it orders the man to appear upon pain of forfeiting a sum of money, e.g. subpoena centum librarum. It is very different from the old writs whereby actions are begun in the courts of law. They tell the defendant what is the cause of action against him he is to answer why he assaulted and beat the plaintiff, why he trespassed on the plaintiff's land, why he detains a chattel which belongs to the plaintiff. The subpoena, on the other hand, will tell him merely that he has got to come before the Chancellor and answer complaints made against him by A. B. Then when he comes before the Chancellor he will have to answer on oath, and sentence by sentence, the bill of the plaintiff. This procedure is rather like that of the ecclesiastical courts and the canon law than like that of our old English courts of law. It was in fact borrowed from the

ecclesiastical courts, not from their ordinary procedure but from the summary procedure of those courts introduced for the suppression of heresy. The defendant will be examined upon oath and the Chancellor will decide questions of fact as well as questions of law.

I do not think that in the fourteenth century the Chancellor's considered that they had to administer any body of substantive rules that differed from the ordinary law of the land. They were administering the law but they were administering it in cases which escaped the meshes of the ordinary courts. The complaints that come before them are in general complaints of indubitable legal wrongs, assaults, batteries, imprisonments, disseisins and so forth-wrongs of which the ordinary courts take cognizance, wrongs which they ought to redress. But then owing to one thing and another such wrongs are not always redressed by courts of law. In this period one of the commonest of all the reasons that complainants will give for coming to the Chancery is that they are poor while their adversaries are rich and influential too rich, too influential to be left to the clumsy processes of the old courts and the verdicts of juries. However this sort of thing can not well be permitted. The law courts will not have it and parliament will not have it. Complaints against this extraordinary justice grow loud in the fourteenth century. In history and in principle it is closely connected with another kind of extraordinary justice which is yet more objectionable, the extraordinary justice that is done in criminal cases by the king's council. Parliament at one time would gladly be rid of both - of both the Council's interference in criminal matters, and the Chancellor's interference with civil matters. And so the Chancellor is warned off the field of common law - he is not to hear cases which might go to the ordinary courts, he is not to make himself a judge of torts and contracts, of property in lands and goods.

But then just at this time it is becoming plain that the Chancellor is doing some convenient and useful works that could not be done, or could not easily be done by the courts of common law. He has taken to enforcing uses or trusts. . . . I must ask you not to believe that

1 Cf. Langdell, Summary of Equity Pleading (2d ed. 1883) § 49.

2 As to this jurisdiction of equity, see Select Cases in Chancery (ed. Baildon 1896) xxi-xxiv, and early cases reprinted in that volume-e.g., No. 6 (1388: the constables of a hundred dare not perform their office unless the defendant is bound over to keep the peace); No. 24 (1397: plaintiff is unable to find anyone who dares to act as his counsel against defendant in a suit at common law); No. 41 (1399: defendant has so many evildoers confederated with him that plaintiff cannot recover at law); No. 43 (temp. Ric. II, 1377-1399: poverty of plaintiff makes it impossible for him to sue at law); No. 44 (temp. Ric. II, 1377-1399: defendants threaten to kill plaintiff if he sues at law); No. 54 (1402 violence by powerful defendant). See also 1 Spence, Equitable Jurisdiction of the Court of Chancery (1846) 685-690; 1 Holdsworth, History of English Law (6th ed. 1938) 405-406.

either the mass of the nation or the common lawyers of the fourteenth and fifteenth centuries looked with disfavour upon uses. No doubt they were troublesome things, things that might be used for fraudulent purposes, and statutes were passed against those who employed them for the purpose of cheating their creditors or evading the law of mortmain. But I have not a doubt that they were very popular, and I think we may say that had there been no Chancery, the old courts would have discovered some method of enforcing these fiduciary obligations. That method however must have been a clumsy one. A system of law which will never compel, which will never even allow, the defendant to give evidence, a system which sends every question of fact to a jury, is not competent to deal adequately with fiduciary relationships. On the other hand the Chancellor had a procedure which was very well adapted to this end. To this we may add that very possibly the ecclesiastical courts (and the Chancellor you will remember was almost always an ecclesiastic) had for a long time past been punishing breaches of trust by spiritual censures, by penance and excommunication. And so by general consent, we may say, the Chancellor was allowed to enforce uses, trusts or confidences.

1

Thus one great field of substantive law fell into his hand a fruitful field, for in the course of the fifteenth century uses became extremely popular. Then, as we all know, Henry VIII—for it was rather the king than his subservient parliament struck a heavy blow at uses. The king was the one man in the kingdom who had everything to gain and nothing to lose by abolishing uses, and as we all know he merely succeeded in complicating the law, for under the name of 'trusts' the Chancellors still reigned over their old province. And then there were some other matters that were considered to be fairly within his jurisdiction. An old rhyme 1 allows him 'fraud, accident, and breach of confidence' - there were many frauds which the stiff old procedure of the courts of law could not adequately meet, and 'accident,' in particular the accidental loss of a document, was a proper occasion for the Chancellor's interference. No one could set any very strict limits to his power, but the best hint as to its extent that could be given in the sixteenth century was given by the words 'fraud, accident and breach of confidence.' On the other hand he was not to interfere where a court of common law offered an adequate remedy. A bill was 'demurrable for want of equity' on that ground.

In the course of the sixteenth century we begin to learn a little about the rules that the Chancellors are administering in the field. that is thus assigned to them. They are known as 'the rules of equity and good conscience.' As to what they have done in remoter times we have to draw inferences from very sparse evidence. One

1 'These three give place in court of conscience,

Fraud, accident, and breach of confidence.' - NOTE BY MAITLAND.