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trial by jury operated as a check upon any system that seemed to interfere with that palladium of liberty.
It was manifestly impossible to administer complete justice according to the English system without the assertion of equitable rights and the enforcement of equitable remedies. Anything less would have amounted to a denial of justice, and in so far as some few equitable rights were concerned, this was vaguely recognized. But a true appreciation of the necessity for the introduction of chancery procedure was obscured by a common and popular error which confused equity with so-called natural justice; an error for which chancery literature was, perhaps, itself in a measure responsible, in basing its claims to override the strict rules of the common law upon the strength of an intrinsic ethical superiority.1
Another obstacle to the introduction of equity jurisprudence was the primitive social conditions that prevailed in the Sparsely populated settlements. There was sufficient difficulty in the conduct of an ordinary lawsuit in the local courts without adding to the embarrassment of the magistracy by requiring them to solve the mysteries of the unreformed chancery pleading and practice. The colonial judge of the seventeenth and eighteenth centuries was in knowledge and training about on a par with the English justice of the peace and it would have been as preposterous to expect the former to undertake the office of chancellor as to impose similar duties on the English quarter sessions. When, in the eighteenth century, trained lawyers began to make their influence felt in the colonies, disputes and misunderstandings between the assemblies and the governors prevented the creation of or retarded the growth of courts of chancery, resulting in a conflict of principles and practice in the several provinces far
1 Maine's Ancient Law, chapter 3.
too intricate to be briefly described.' The theory upheld by the crown lawyers, and put in practice in the more tractable colonies, was that the governor, as custodian of the great seal, was the proper person to act as chancellor, assisted if necessary by the council. To this the more democratic communities were opposed, as an undue extension of the prerogative, but they had no substitute to offer except the direct exercise of equitable relief by legislative resolution or the delegation of limited equity powers to the ordinary courts, such as giving relief from the penal clauses of bonds and mortgages. It did not seem difficult to the uninitiated to inject into the law such equitable principles as would mitigate the harshness of its stricter rules. The limited scope of such an experiment and the deprivation involved, in the elimination of the powerful preventive measures afforded by chancery process, became apparent only when the commercial and industrial expansion of the American commonwealths had brought about more complicated social relations.
The reform of procedure in the more progressive jurisdictions, has buried chancery and common law practice in a common tomb and if it were safe to hazard an opinion upon the parentage of the modern complaint, or statement, the inclination would be to favor the bill in equity rather than the common law declaration. But it would seem that before these momentous changes could well be brought about, it was necessary that both systems should reach the limits of their development, that there should be a thoroughly scientific demonstra
1 Courts of Chancery in the American Colonies, S. D. Wilson, American Law Review, Vol. XVIII, 226, reprinted in Select Essays in Anglo-American Legal History, Vol. II, 779; Story's Miscellaneous Writings, 151. History of Equity in the American Colonies, E. B. Gager, in Two Centuries' Growth of American Law, chapter 6.
tion of the economic waste involved in a dual and highly artificial procedure, before one more simple and rational could be evolved. Conservative opinion hesitates to endorse these changes, and the tendency, displayed in many jurisdictions, to overload procedure with petty statutory details, that ought to be left to the rules of court, shows an immature conception of the principles of law reform. If this is true today, how poorly prepared was the eighteenth century for experiments in jurisprudence, with a bar nourished on technicalities and trained to state almost every legal right in procedural terms.
Pennsylvania was one of the most persistent of the colonies in its opposition to the introduction of a court of chancery, and its courts were the most fertile in devising expedients to decrease the inconveniences resulting from such opposition, and this, although in the immediately adjoining colonies chancery had a fairly successful development. In the early period, political conditions had much to do with the failure of the only serious attempt to establish such a court. After the Revolution, opposition to the extension of equity jurisdiction long continued as a political tradition, in spite of the changed attitude of the leaders of the bar.
While the territory on the Delaware was under the government of the Duke of York it would seem to have been the intention to administer equity, in the popular sense of that word, through the court of assizes. Among the laws of April 2, 1664, was one that provided :
"In regard it is almost impossible to provide Sufficient Lawes in all Cases, or proper Punishments for all Crimes the Court of Sessions shall not take further Cognizance of any Case or Crimes, whereof there is not provition made in some Lawes but to remit the case or Crime, with the due Examination and proof to the Next Court of Assizes where matters of Equity shall be decided,
or punishment awarded according to the discretion of the Bench and not Contrary to the known Laws of England."
This was amended at the court of assizes held in September, 1665, as follows:
"Where the Originall Point is matter of equity the proceedeings shall bee by way of Bill and delivering in Answers upon Oath and by the Examination of witnesses, in like manner as is used in the Court of Chancery in England. And due regard must be had that the Defendant have timely notice thereof, as is appointed at Common Law; which is eight dayes warning before the Court shall sitt."'2
In the following February it was ordained that "matters of Equity under five pounds may be tried in Town Courts and if under twenty at Sessions.” This investing of the lower courts with equitable powers was undoubtedly intended to lessen the hardship of seeking relief in a distant court meeting but once a year, and its practical application was probably limited to giving effect. to the more obvious equities of defendants. That such was the case, would appear from the instructions of Governor Andros to the justices of the court at New Castle dated August 14, 1677, in reply to a query on their part.
“As to penal Bonds or such like cases of Equity it is the custom & practice of Courts here, to hear & judge thereof according to Equity, wch you may also observe as Allowed by Law."'3
At the court for Deal, afterwards Sussex, County held June 13 and 14, 1682, Henry Stracher obtained a verdict against Peter Groundyk in an “action of the case,” the nature of which is not disclosed, whereupon
1 Charter and Laws of Pennsylvania, 35.
“Peter Groundyk peticon the Court that he may have That was this day Tryd betwene Henry Stracher Ant this peticoner to be Tryd in Equiety, the next Court by bill and Answer as is use in the Court of Chancrey in England which the Court would A perswaded him to A dissisted in it; and rest himselfe satisfied in what was allready done; but through his perswading the Court grant the peticoner his request; provided that the proceeding be put in in due time According to Law.”'ı
At the September court, however, nothing is recorded as to the "Tryal in Equiety" which the justices seem to have been reluctant to undertake.
There are also instances where the governor at New York assumed the equitable power of granting relief against oppressive judgments at law, of which the following order is an illustration:
By the Governor
Whereas Hendrick Jansen Van Bremen, of Swanyck or Paerden Hook, near Newcastle in Delaware River, hath preferr'd a Petition unto me setting forth, that having heretofore, in the Time of the Dutch, received great Damage in his Corne, by Mr Wm Toms Horses, by Reason of his insufficient Fence; It was Ordered, that Mr Toms Land there, should be sold in Vendue, which said Order being not effected, The Petitioner since the Restoration of the English Government, took the said Horses off his Land, and sent them to Mr Tom at New Castle, desiring they might be kept from his Corne; But the Petitioner still sustaining Damage, without Relief, he acknowledges that in Passion, he rashly and unadvisedly, shot one of the said Horses, with small shot, whereof he not long after dyed; Whereupon Mr Tom Sued the Peticons in the Court of Newcastle, from the which Appealing to the High Court, Judgment past against the Peticonr there for Six Hundred Guildrs to be paid by him to Mr Tom, for his Horse, besides One Hundred Guildrs Charges; But was neither call'd, nor heard there; Wherefore I have thought fitt, & do hereby Order, that the said Hendrick Jansen giving Security, by binding over his Person and Estate, to makegood his Complaint, That Execucon be Suspended; And that all the
Sussex County Records (Turner), 76.