But when questions of equity became numerous, they too were often found to refemble one another; and requiring a fimilar decifion, were by degrees arranged and claffed according to their principles. After a contract, for example, had been enforced by a general rule, it might happen, on different occafions, that an individual had given a promise, from the undue influence of threats and violence, from his being cheated by the other party, or from advantage being taken of his ignorance and incapacity. On every occafion of this nature, an equitable decifion was given; and, by an exception to the common rule of law, the promiser was relieved from performance. But, the remedy given in fuch cafes being reduced into a regular fyitem, could no longer be viewed in the light of a fingular interpofition; and, by the ordinary operation of law, every contract extorted by force, elicited by fraud, or procured in confequence of error and incapacity, was rendered ineffectual. Every primitive rule of justice was productive of numerous exceptions; and each of thefe was afterwards reduced under general principles; to which, in a fubfequent period, new exceptions became neceffary.

Law and equity are thus in continual progreffion; and the former is constantly gaining ground upon the latter. Every new and extraordinary interpofition is, by length of time, converted into an old rule. A great part of what is now ftrict law was formerly confidered as equity; and the equitable decifions of this age will unavoidably be ranked under the ftrict law of

the next.

Although the chancellor, therefore, was originally intrufted with the mere province of equity, the revolutions of time have unavoidably changed the nature of his jurifdiction. He conti nues to exert an authority in all fuch claims as were anciently taken under his protection; but his interpofitions concerning them are now directed by general principles, to which various exceptions, according to equity, have fince been introduced. He continues, likewife, thofe modes of procedure which were fuitable to his primitive fituation, and adapted to fuch investigations as the purpose of his establishment required.

The ordinary courts of Westminster-hall have, on the other hand, extended their jurifdiction beyond its ancient limits. Though they originally did not venture to deviate from the rules of ftrict law, the improvements of a later age have inspired them with a more liberal fpirit; and have rendered their decifions more agrecable to the natural dictates of justice.

Thus the court of chancery has been gradually divesting itfelf of its original character, and affuming that of the courts

of

of common law; while thofe tribunals have been, in the fame proportion, enlarging their powers, and advancing within the precincts of equity.

According to Blackftone, the effential difference at prefent, between the chancery and the courts of common law, confifts in the modes of administering justice peculiar to each. It may deferve to be remarked, that thefe differences are fuch as would naturally arife between courts originally diftinguished by having the feparate departments of ftrict law and equity.

1. From the mode of proof adopted by chancery, all questions which require a reference to the oath of a party are appropriated to that court. This peculiarity arofe from an opinion, entertained by early judges, that it was a hardfhip to compel any perfon to furnish evidence against himself. But the view fuggefted by equity was more liberal and refined. It appeared unjust that a defendant fhould refufe to fatisfy a claim, which he knew to be well founded; and, unless he was confcious of having fraudulently withheld performance, he could suffer no damage by his judicial declaration.

2. The chancery alone is competent for taking proofs by commiflion, when witneffes are abroad, or fhortly to leave the kingdom, or hindered by age or infirmity from attending. In the courts of common law, the method of trial by a jury was univerfally established; and as this form required that the witneffes fhould be examined in court, the interpofition of equity was indifpenfable to authorize their examination in abfence.

3. Inftead of awarding damages for neglecting to fulfil a contract, the court of chancery has power to order specific performance. From the narrow principles embraced, in early times, by the courts of ftrict law, no complaint was regarded, unless the plaintiff had fuffered in his pecuniary intereft; and confequently, upon the breach of contract, nothing further could be claimed than reparation of the damage incurred. In a more equitable view, it appeared that every innocent and reafonable purpose of the contractors ought to be enforced; although, perhaps, the lofs arising from the failure of performance could not be estimated in money. A court of equity, therefore, was accustomed to enjoin, that a contract fhould be exprefsly fulfilled.

4. Two other branches of power are mentioned as peculiar to the court of chancery: the one to interpret fecurities for money lent. This arofe from the prohibition, introduced by the canon law, of taking intereft for the loan of money; which occasioned an evasion, by means of what is called a double bond. The true conftruction of this deed, according to the intention of the parties, and in oppofition to the words, was beyond the jurifdiction

jurifdiction of the ordinary courts. The other branch of power alluded to, was that of enforcing a trust. This, as formerly obferved, was intended to evade the ftatute of mortmain; and afforded the chancellor the firft ground for affuming his extraordinary authority in original actions.

Confidering the origin of the court of chancery, there was no reason to expect that its jurisdiction would be feparated from that of the ordinary courts by any scientific mode of arrangement. It was the offspring of accidental emergency; being merely a temporary expedient for granting an immediate relief to those who had fuffered from legal injuftice. Suppofing that, after it became a permanent and regular tribunal, it had remained upon its original footing, the advantages likely to have refulted from it may reasonably be called in question. That one court should have a jurisdiction according to ftrict law, and another according to equity; that the former should be obliged, with eyes open, to pronounce an unjuft fentence, in conformity to an old rule, leaving parties to procure relief by applicacation to the latter; that, in a word, the common law tribunal should be empowered to view the law-fuit only upon one fide, and the court of equity upon a different one; fuch a regulation appears in itself no lefs abfurd and ridiculous, than its confequences would be hurtful, by producing a waste of time, and an accumulation of expences; not to mention the uncertainty and fluctuation of conduct arifing from the inaccurate and variable boundaries, by which equity and ftrict law must ever be diftinguifhed. Even according to the later form which the chancery has affumed, and by which it has appropriated caufes of a very peculiar defcription, or fuch as require a fingular mode of procedure, its line of partition from the ordinary civil courts may be thought rather arbitrary and whimsical. But, however the prefent diftribution of the judicial powers may be deficient in fpeculative propriety, it seems in practice to be attended with no inconvenience. The province belonging to each of the courts of Westminster-hall appears now to be fettled with an exactnefs which prevents all interference or embarrassment; and there is, perhaps, no country in the world where equity and ftrict law are more properly tempered with each other, or where the administration of justice, both in civil and criminal matters, has a freer and more uniform course.

From this court of equity in chancery, as from the other fuperior courts, an appeal lies to the house of peers. But there are these differences between appeals from a court of equity, and writs of error from a court of law: 1. That the former may be brought upon any interlocutory matter; the latter upon

nothing,

nothing, but only a definitive judgment. 2. That on writs of error, the house of lords pronounces the judgment; on appeals it gives direction to the court below to rectify its own decrees.

The court of chancery fits in term in Westminster-hall; in vacation, in the hall of Lincoln's Inn.

OFFICERS. The principal officers belonging to the court of chancery are the following:

MASTER OF THE ROLLS. The mafter of the rolls, anciently called Guardein des Rolles, Clericus Rotulorum, or clerk of the rolls, and now ftiled in his patent, Clericus parva Baga et cuftos rotulorum, &c. is chief of the twelve mafters in chancery, chief clerk of the petty bag office, and a very ancient judicial officer. His appointment is grantable by letters patent, formerly at the king's pleasure, but now always for life: it has been filled by fpiritual perfons. By a patent of Edward III. the mafter, when a clergyman, was appointed and inftalled in the house of the rolls in Chancery-lane, by the lord chancellor. In his judicial capacity, befides what he does as afliftant to, or affociate with, the lord chancellor when prefent, or as deputy to him when abfent, many caufes are fet down before him to hear and decree, which he ufually does on certain days appointed, commonly in the prefence of one or more mafters in chancery, and fometimes in their abfence, and either in court, at his own houfe, or the chapel of the rolls; and all such orders and decrees as are made by him, are drawn up and entered as made by the court, but they cannot be enrolled, till figned by the lord chancellor, who has alfo the power to discharge or alter them. He is alfo the keeper of all records, judgments, fentences, and decrees given in chancery. It appears by the ftatute 14 Hen. VIII. c. 8. that the mafter of the rolls has the giving of the offices of the fix clerks in chancery; he has alfo the appointment of the clerks of the petty bag office, the two chief examiners, the ufher of the court of chancery, and fome others. And he has divers prerogatives by ftatute, commiffion, and prescription. The emoluments of the office confift in 1200l. a year annexed to it by ftatute 23 Geo. II. c. 25. in the occupation of the houfe belonging to his office in Roll's yard, Chancery-lane; and in the rents of a circumjacent eftate, amounting together, it is fuppofed, to fomewhat lefs than 4000/. per annum. The officers under the master of the rolls are, a chief and under fecretary, a train-bearer, ufher of the court, deputy ufher, tipftaff, and porter.

MASTERS IN CHANCERY. Thefe officers are twelve in number, including the mafter of the rolls, who is their chief, and the accountant general. They are affiftants or affociates to the

chancellor and mafter of the rolls, fit with them in court by turns, ufually two at a time; and references touching accounts, matters of practice, &c. are directed to them, upon which they make their reports; they alfo adminifter paths to those who swear to answer, take affidavits, and acknowledgments of deeds, recognizances, &c. They were formerly stiled clerici de prima forma, and were to be grave and ancient clerks, skilful and of long experience in the practice of the court; for they had equal authority with the chancellor in forming the brevia magiftralia, in which, unless they all agreed, they were to go to parliament. They were anciently members of the king's court, allowed robes out of the royal wardrobe, and dieted as part of the household, for whom fpecial purveyance was made; and in this quality, they attend the house of lords, and have a right to affist at coronations. By ftatute 13 Chas. II. a public office is to be kept near the rolls, for the masters in chancery, in which they, or fome or one of them, fhall conftantly attend for the difpatch of all matters incident to their office, (references upon accounts, and infufficient anfwers only excepted,) from feven o'clock in the morning, till twelve at noon, and from two in the afternoon till fix at night; by this act there are fees appointed; and tables of the fees are to be put up in their office, which is now held at an elegant building erected for that and other purposes in Southampton-buildings, Chancery-lane. Each matter has a clerk; a falary of 200l. per annum issues from the bank for each master; but their further emoluments depend on the portion of bufinefs referred to them.

MASTERS EXTRAORDINARY. These are merely persons empowered by the court to take affidavits in the country, and they are appointed by commiffions, which are obtained without difficulty, and at a small expence.

ACCOUNTANT GENERAL. In former times each mafter in chancery was accustomed to keep in his hands the monies paid into court in the caufes which were referred to him; but fome loffes and many inconveniences having arifen to the fuitors, the accountant general was appointed in pursuance of an act of parliament. He does all fuch matters and things, relating to the delivery of the fuitor's money and effects, into the bank, and taking them out, and keeping accounts with the bank, as by the orders of the court were to be done by the mafters and ufher; who, on the affing of the act, were to make up their accounts with the accountant general, and pay into the bank all monies remaining in their hands, to be placed to his account; and to transfer and affign to him all the fecurities for money which they held in truft for the fuitors of the court. The accountant general cannot, however, meddle with the actual

4

receipt