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The purpose of this chapter has been not to present all of the characteristics of the law of torts of to-day as distinguished from that of two centuries ago, still less to set forth the law as it now is.

No more has been attempted than to point out some of those instances in which marked changes have taken place; and some in which a change might have been expected but has not been made. The persistency of the old has in some cases been as striking as the adoption of the new.

Emphasis also has been laid upon such tendencies as seemed to indicate new lines of growth and development, and, above all, the aim has been to show that the law of torts has kept pace not only with other departments of the law, but with the vast social and industrial changes which the past two centuries have seen.

It is the glory of our legal system that this has been and always must be true.





THE consideration, in a single chapter, of so large a portion of the field of law as Equity, from the point of view of two centuries' growth, requires both condensation and treatment on broad lines. There is hardly room even for the statement of the leading principles of the different branches of equity jurisprudence and their place in the order of its development.

The method, under the English system of law, of formulating the rule of law applicable to an actual state of facts placed before the court, and of stating the rule only so far as necessary for the proper determination of the particular case in question, makes every judicial decision an element of moment in the development of the system and body of the law. Every reported case, every text-book, and every digest is legal history, the record of the growth of law, arranged, indeed, not on historical lines, but on a system adapted to professional use and study. Such report, text-book, or digest is as actually history as the acts of the legislature, the doings of cabinets, or the conduct of military campaigns. They tell the story of a nation's life in matters of property and title, of personal and political rights, and of the unending struggle by successive change and modification to make the rules upon these subjects enforced by the State conform to the requirements of order and wellbeing in the State as understood in each stage of its history.


of history.

When, therefore, it is considered that Equity includes, perhaps, half the body of law relating to property, and that the great portion of this body of law, as it is enforced to-day, is the direct product of a period but little more than the life of our university, the necessity of the broadest kind of treatment will be conceded.

The first question that will occur to the general reader, and one which from lack of historical knowledge often perplexes even the legal student, relates to the nature Law as distinguished of Equity as a distinctive branch of English and from Equity. American law. Law and Equity, the two great divisions of what is called the Anglo-American system of jurisprudence developed through the courts, imply two systems of legal doctrines and rules and two systems of legal procedure existing side by side, as parts of a single great system. What is the distinction between the two; how came it to exist; is the distinction of a logical character or an historical accident? What was the situation of Equity at the beginning of the period under review, what has been the tendency and method of growth, during this period, and what is the present situation? The first point, then, is the origin and relative position of Equity in the general development of English law.


The three


The system of law under which we live has passed, in a still passing, through three stages of development, Common Law, Equity, Legislation. In the order stages of legal of time common law came first, then Equity, and then legislation. By this is not meant that they have been literally successive, for legislation began as early, nearly, as the common law, and Equity as a recognized branch of jurisdiction is certainly very ancient. What is meant is that through the law as administered by the King's Judges, in actions founded upon writs running in the name of the King, nearly all the earlier body of English law was developed. This, which was known as the common law, tak

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The Common

ing its origin in the Saxon period, was for hundreds of years the main body of English law, and by the middle of the seventeenth century say at the time of the Restoration had been worked out and moulded into Law. a pretty complete system, and was substantially the common law of to-day, save as the common law has been modified by the later adoption of equitable principles and analogies. There had been occasional legislation, but it seldom related to matters of private law. From that time the development of English law has been mainly through the two agencies of Equity and Legislation. The common law tribunals, as stated above, acquired jurisdiction by virtue of a writ, which was an order from the Crown contained in the particular writ on which the case was founded, and no writ could be issued for any case not provided for by the positive rules of the common law. In the time of Edward I. it came to be a settled doctrine that though the old writs might be modified in immaterial particulars, no new formula or writ could be introduced except by statute. The system of writs was the skeleton of the law. Growth could only be by interpretation, and this process was too slow to meet the course of social and economic changes. From the failure or inability of the Judges to meet new wants as they arose, originated a practice of appealing, by direct petition, to the King as the "Fountain of Justice," for relief in matters not covered by the common law, that is, not susceptible of statement through any existing form of writ, and the King as matter "of Grace" granted relief. In process of time this power was delegated to his Chancellor, and out of this practice grew The Court the Court of Chancery, or as we now more fre- of Chancery. quently say, of Equity. By a general writ Edward III. in 1348-9, delegated this power to his Chancellor or the Keeper of the Privy Seal. It was invoked by petition, instead of by writ, and was to be exercised upon the principles of Honesty, Equity, and Conscience.2

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1 F. W. Maitland, Social England, vol. ii. pp. 37, 38.

2 Pomeroy on Equity Jurisprudence, vol. i. sec. 35; 1 Spence, Equitable Jurisdiction of the Court of Chancery, 338, 339.

Jurisdiction was exercised by the Chancellor without the intervention of a jury. English legal institutions, like English political institutions, owe their origin for the most part to the actual necessities of the time and not to theory. So the judicial power of the Chancellor was called into being by the necessity of providing for legal relief which could not be secured at common law.

Professor Holland has well summarized the causes leading to the institution of this Court, as follows:

"As old rules become too narrow, or are felt to be out of harmony with advancing civilization, a machinery is needed for their gradual enlargement and adaptation to new views of society. One mode of accomplishing this object on a large scale, without appearing to disregard existing law, is the introduction, by the prerogative of some high functionary, of a more perfect body of rules, discoverable in his judicial conscience, which is to stand side by side with the law of the land, overriding it in case of conflict, as on some title of inherent superiority, but not purporting to repeal it. Such a body of rules has been called Equity.' It consists in reality of such of the principles of received morality as are applicable to legal questions, and commend themselves to the functionary in question. Of a resort to this expedient the two great historical instances are the action of the Prætor at Rome and of the Chancellor in England.”

"No great officer in England was invested with the attributes which enabled the Prætor to announce beforehand the principles upon which he intended so to administer the law as in effect to modify its operation. The Chancellor, with his clerks, could, it is true, frame new writs, but it was for the Common Law Judges to decide upon their validity. He therefore contented himself with what proved to be the very sufficient expedient of deciding each case that was brought before him, as nearly as he dared, in accordance with what seemed to him to be its merits. In his character of 'Keeper of the King's Conscience,' he was held justified in thus exerting the undefined residuary authority which in early times was attributed to an English king.'

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1 Elements of Jurisprudence (8th ed.), 62 et seq.

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