Evolution of Equity in England.—The development of the extraordinary jurisdiction of the Chancery Court of England was similar, in its causes, progress and results, to the development of the system of Equity in the Roman law, as already intimated.6 In England, the King was regarded as the ' fountain of justice;" and, when any person conceived that he had been wronged, either in court or out of court, he had the privilege of petitioning the King for redress. The King, being unable to hear and determine all of these complaints because of their number and complexity, generally referred them to his chief secretary, who was called his Chancellor. This officer was an ecclesiastic, trained in the law and theology of Rome,7 and was sometimes called the "keeper of the King's conscience."8 When thus directed to adjudicate the rights, and determine the remedies, of those petitioning the King for justice, the Chancellor naturally had recourse to the civil law of Rome, being most familiar therewith; and, also, finding therein a diviner sort of justice, and a simpler and more efficient form of procedure. Besides, these Chancellors, who were generally very able and very learned men, were no doubt, disposed to regard the English common law as a barbarous code compared with the Roman civil law.9 The Chancellor's office was one of great trust and confidence: he was the King's adviser and confidant, the chief member of his council, and the keeper of his great seal of State. He is spoken of, at a very early day, as one who "annuls unjust laws, and executes the commands of a pious prince, and puts an end to what is injurious to the people or to morals."10
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The Divine Law of Justice the Rule of Decision.—The statement, often made, that the Court of Chancery was established to mitigate the rigor of the common law, and to supply its defects, is not wholly true.48 This Court was established to do justice, regardless of any and all law. The King deemed it a duty imposed upon his conscience, both by his oath and by religion, to "decree justice," and in decreeing justice he deemed himself bound rather by the Divine Law than by human law 49 and, when the Chancellor acted in his stead,
he based his decisions, not upon the law of the land, but upon honesty, equity and conscience, for so was he commanded to do in exercising the King's prerogative of Grace.50 In short, the Chancery Court was established rather as a Court based on the precepts of Religion than as a Court based on the rules of Law. 51
It is unquestionably true that the harshness of the common law, its unfitness to cope with fraud, its incapacity to do justice in many cases, the defects in its remedies, the opportunities it gave the strong to oppress the weak, and its general inadequacy to meet the requirements of equity, greatly contributed to perpetuate the existence of the Chancery Court, and to enlarge and justify its jurisdiction. Nevertheless, the vital principle from which the Court sprung was the prerogative doctrine that the King was the "fountain of justice ;" and that, when a citizen could not get justice in the ordinary Courts, he might come to this fountain.52 The King, in administering justice in such cases, deemed himself above all the laws and customs of his realm, and bound only by his conscience and his will. As it was not a matter of right in a citizen to draw on this reserve source of justice, when remedy was given it was deemed "granted as of Grace."53
Other Causes Contributing to the Establishment of the Chancery Court. —As the Chancery was the office out of which all writs at common law issued, the Chancellor retained cases for his own disposition when the facts were such that no common law writ was adapted to the requirements of the case, or when the common law Courts were unable to furnish adequate relief ; and some contend that herein originated the extraordinary jurisdiction of the Chancellor. In this class of cases, the Chancellor determined the matters in dispute, so that the court of the King might not be deficient in doing justice.54 But it is believed that the equitable jurisdiction of the Chancellor originated mainly, if not exclusively, from the reference to him by the King of petitions for justice and redress, as already stated. It is unquestionably true, however, that, had it not been for the deficiencies of the common law, the number of these petitions to the King would have been comparatively few.
When the lay Chancellors succeeded the ecclesiastics, no material changes were made in the jurisdiction of the Court. Its system of jurisprudence was, however, enlarged and made more comprehensive, precedents were more closely followed, and the decisions of the Chancellors more carefully preserved. But the equitable principles of the civil law were as fully enforced, and the peculiar proofs and practice of the Court in all things continued, the lay Chancellors being greatly aided herein by the Masters in Equity, who were permanent officers of the Court.66
Thus was established the High Court of Chancery of England; and thus originated that grand system of jurisprudence known as Equity; both maintaining their existence by virtue, alone, of their inherent merits, and their wonderful fitness for the purposes of administrative justice.57 It may be well here to remark that, by an Act of the British Parliament, which went into operation in 1875, all the great Courts of England, including the High Court of Chancery, were consolidated, and a system of pleading and practice adopted similar to those in use in Chancery. The Act of Parliament also provides that "in all matters in which there is any conflict or variance between the rules of Equity and the rules of the common law, with reference to the same matter, the rules of Equity shall prevail.
And thus in England the triumph of the righteous principles of Equity over the rules of the common law is complete, and, no doubt, final.68
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