The Court of Equity. The purpose, then, of the conference of the prerogative of grace upon the chancellor was to preserve the usefulness of English institutions and English law. By the appli cation of the same principles ала notions that formed the common law, the dictates of equity and conscience, he sought to keep Anglo-Saxon jurisprudence abreast of the growth of the Anglo-Saxon conscience, morals, notions of right and justice and in stitutions. Where, then, is the line of demarcation between the chancery as a court of equity, and the parliament as a legislative body, if the chancellor may meet new situations with new forms of relief? Where does the judicial function end? Where does the legislative power ibegin? That this question presents grave difficulty is true, but there is one way to simplify it. That method concedes what is the fact, although practically ignored by our courts in very many cases at the present time, namely: that there are rules which ac tually govern society to-day, the principles of common lionesty, equity and good con science, without the exact lines of legislative or judicial declaration. The object in view, when the equitable jurisdiction of the chan cellor was established was to provide a tribu nal where the hardship of particular cases might be relieved: the purpose was not to provide general rules of law. This, then, is the province of the court of equity, to relieve in special cases not covered by the general rules of law, but which the principles of equity, honesty and good conscience demand should have a remedy. That is, to recognize and enforce principles which actually govern society in general, whether embodied in the so-called rules of law or not. On the other hand, the task of the legisla ture is to frame general rules of police, of administration and of government; dealing with such common cases as are conveniently dealt with by broad rules. Not attempting
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specialization 'but contenting itself with the enunciation of principles. The argument for this equitable jurisdiction is first historical. The facts upon which it is based have been dwelt upon. The ex istence of judicial power in the king, the exercise of a portion of it as the prerogative of grace relieving in particular cases, and the delegation of this prerogative to the chancel lor, have all been narrated. The logic of the situation demands a step more. By the American statutes, equity or chancery powers are conferred on certain courts. These provisions must have intended the powers of the English chancellor in equity; no other construction is admissible; however, it may be contended that the power of the English chancellor was narrowed by later chancellors, but I ask by what right was this done? By what authority did Eldon, or Nottingham, or Hardwicke limit the power conferred by the royal grant? And if their jurisdiction was equal to limiting the class of cases of which equity may take cognizance, what prevents the extension of these limits by subsequent chancellors? The second argument I base upon the necessities of government, and of this the first part is historical, for in all states some governmental power has existed to take cognizance of exactly such cases as were originally taken cognizance of in the equity court. It may be taken as axiomatic that no set of prohibitive or declarator}' words which the ingenuity of legislatures or courts can devise will do justice in all cases or will provide for all situations. Hence, both the statutes and the opinions must some time fall short in future cases of that which the pecu liar demand of the occasion requires. When this shall happen some power in government must stand in the breach and supply that which prevents the general rules meeting the immediate necessity, or the State falls short of the purpose of its creation. This power has been resident either in the king or some
