A SYSTEM of the LAWS OF THE STATE of CONNECTICUT. BOOK SIXTH. Of the Principles of Equity. CHAPTER FIRST. HISTORY OF THE ORIGIN AND PROGRESS OF COURTS OF EQUITY. WE have now fully handled the various fubjects that are gov erned by the precife principles of law. It remains to close our enquiries by unfolding and explaining the principles of equity, which have been adopted to fupply the imperfections, and remedy the inconveniencies of general laws. We are to enter upon a field of difquifition, which has never been fully explored, and we are to fimplify and fyftematize a fubject, about the first principles of which the most eminent writers difagree, and which has hitherto been treated in a defultory manner, without any proper method, or arrangement. In tracing the origin of our proceedings in equity, as well as law, we must recur to the country from whence our ancestors emigrated. In contemplating the juridical hiftory of that country, we cannot but obferve the gradual progreffive improvement of their government, of their code of laws, and of their mode of adminiftering juftice. When our ancestors left England, the general principles of the common law were pretty well fettled and illustrated. The feveral kinds of actions were thoroughly understood, and the rules of pleading were accurately known. They had therefore an opportunity opportunity of commencing their judicial fystem, under circumstances of peculiar advantage. They had no occafion to wait for the lapfe of centuries, that experience and accident might furnish them with the beft adapted modes of relief. They imported from their parent country the most excellent parts of their jurifprudence, and fupplied the deficiency by regulations of their own, equally ex cellent.. As our common law is chiefly derived from the common law of England, I have confidered it as fufficient to refer to the English authorities, without attempting a juridical hiftory of its feveral branches. An enquiry of this kind, would be ufelefs as it refpects practitioners, and readers in general; and thofe who have a tafte for fuch researches, may find fufficient means to indulge their curiofity, in the writings of the English jurifts. But the system of equity is fo fingular in its nature, and the hiftory of it is fo neceffàry to develope, and comprehend its first principles, that I have thought proper to deviate from my general plan, and trace its origin in the concifeft manner. A court of equity, dibinct from a court of law, is peculiar to the English jurisprudence. In the Roman government, the pretor who was the judge, not only proceeded according to established, and known rules, but he exercifed a difcretionary power, in determining according to the principles of right: but thefe powers were blended in the fame tribunal, without admitting the idea of a diftinct court of equity, whofe decifions were to be governed by a syftem of rules, peculiar to itfelf. In England, the introduction of a court of equity in chancery, was not owing to any deliberate plan of the king, or the legislature, upon the calculation of its probable utility but is merely the offspring of a fortuitous concurrence of circumftances. William the conqueror eftablished a fupreme court, which was held in his prefence in his palace, and called the court of the king. In this court was vested all judicial power, and they granted relief, not only in thofe cafes, for which provifion was made by express law; but upon all applications that were grounded upon the principles of juftice. So that in the earliest period of the English government, there exifted a tribunal which ■ I Reeve, Hist. Eng. Law. 48. claimed laimed an equitable jurifdiction. This court was compofed of barons, and the great officers of the realm. In the abfence of the king, an officer, called the chief jufticiary, prefided, who had great and extenfive authority. Of this court the chancellor was a member, an office derived from the ecclefiaftical tribunals, and which they had borrowed from the Imperial law. Originally this officer was the chief notary or fcribe to the Roman Emperors, but was afterwards vested with judicial authority of confiderable extent. On the establishment of the christian hierarchy, the bifnops forgetting the lowlinefs of the founder of their religion, and aping imperial grandeur, appointed chancellors, who were the principal judges in their confiftories. When the Roman empire was fubverted, and the modern kingdoms of Europe were established on its ruins, almost every state retained the office of chancellor, with different power and dignity, according to their different conftitutions. In England the chancellor was a confidential fervant of the crown; he was chaplain and secretary to the king; the keeper of his feal; and it was his duty to fupervife and feal the king's charters, and public inftruments. In the court of the king, it was his duty to make out the writs, by which the parties were called before the court. At the fame time, there was another court called the exchequer, in which the fame perfons were the judges, as in the court of the king. But the multiplicity of business which came before the court of the king, rendered an alteration of the inftitution neceffary, and for the accommodation of the people, and to extend the influence of the crown, we find in the reigns immediately fubfequent to the conqueft, an important change took place: the court of the king feems gradually to have difappeared, and out of it to have arifen the courts of king's bench, common pleas, exchequer, and chancery. The extenfive power of the grand jufticiary becoming dangerous to the crown, the office was abolished foon after the conqueft, But as I am tracing only the hiftory of equity, I fhall confine my remarks to the court of chancery, which was the court which affùmed an equitable jurifdiction. On the divifion of the jurifdiction of the court of the king, into Encyclopedia, Art. Chancellor. the 1 Reeve, Hift. Eng, Law. 58, 59, the different tribunals, which I have mentioned, the chancery re tained the power of making writs: and was confidered to be the officina jufticiæ, the manufactory of juftice, where original writs were framed, and sealed, and where fuitors were obliged to refort to purchase them, in order to commence actions, and obtain legal redrefs: for which purpose the chancery was open all the year, and writs issued at all times. The chancellor had the power to frame writs, applicable to the cafe of every complainant, and fo conceived as to furnish the specific redrefs he wanted. When this had been long practifed, fuch a variety of forms were introduced, that cafes could rarely arife, which had not fome form applicable to it, and of course there was but little judgment to be exercifed: the old forms were therefore adhered to, and became precedents of established authority in the chancellor's office. The making of writs becoming a matter of courfe, and the bufinefs of the chancery increafing, it was at length confided to the chancellor's clerks, who ftrictly obferving the old forms, they became in process of time, fo facred, that an alteration of them was deemed an alteration of the law fo that when a new cafe arofe, the fuitor was obliged to apply to the parliament for a writ, to obtain redrefs; for the chanellor having difcontinued the practice of framing new writs, the power was fuppofed not to exist. In confequence of the fre quency of the petitions to parliament, it became neceffary to enlarge the power of the clerks, or as they were called, the masters in éhancery. The ftatute of Westminster the fecond, enabled them to frame writs in fimilar cafes, fo that there fhould be no defect of juftice which it is faid, gave the handle to the court, to allume, and establish their jurifdiction in matters of equity. For the purpose of fully explaining this fubject, it is neceffay to confider the judicature of the parliament, and the king's council. The parliament in its earlieft period, acted not merely as a legif lative body but affumed extenfive jurifdiction, as a judiciary tribunal. It was confidered as poffeffing an abfolute fupreme power in all respects, and it was therefore natural to fuppofe that it had a right to redress every poffible injury that a man could fufThe fupremacy of the legislature, was confidered as elReeve's, Hift. Eng. Law. 406 tain. evating |