rE*W-i;. VkVi, ■y.rX'^i ms '':^&Sil. "^'li'ii^H'^, (UnrtipU Slam irlinnl Hibtaty CORNELL UNIVERSITY LIBRARY 3 1924 05 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924051675084 — CORl-IELL UNIVERSITY LAW SCHOOL — _-©__ An Historical Sketch of the Struggle for the Establishment of a CHANCERY JURISDICTION m T.T a s s a c h u s e t t s : T H E S I S by ED?/ IN HAMLIN WOODRUP]?. 18 8 8. .t^. //6(3 i/^^^'-^at-l^ ^"i. -^^ ' A- ^.-.^^^^^^^^-^^^ ^^ :^? ^^ •:£^J-^ r -^r-J-g,^CL.s^ ■^^^^^^/- ^^^"-^p^ ^ ' -^-2- et^/^y ^'Nr -it^ j£i^yv^^ CHANCERY IN MASSACHUSETTS. The Colony : 1628 - 1691 . The course of chancery never did run smooth ; and, even when it has succeeded in filtering its way into the judicial system of a state, it has had difficulty -in finding a pervious medium. In England ^it was turned to the Chancellor and through him built up a great court of its own ; in Pennsylvania, it hid itself under coimion law forms, stimulating their remedial functions ; in Massachusetts, it beat against legislative strength and won a way to unobstructed exercise of power. What lends peculiar interest to the history of chancery jurisdiction in Massachusetts is that the oppo- sition continued to so late a day, and that even after the province became a state, there was no decided effort to evade or pervert existing laws, in order to provide some substitute for the lack of equitable remedies. The common law prevailed in ;inmitigated rigor, and that too in a state which, of all states in the Union, has ever been looked to for examples of adininistrative re- form. The object of this essay is to trace the history ^..«^ A^. ^^^ ^£ .=-^- ^'^. . y- .^^j^ ?4 ^^^ ^"i-— ^ ^ J> ^ ^x --^^^ ^^-^ ,,^^^ .^-^ ?^^ -^^ / ^-'-- '■ , C^rC" .'- ^ ' ->' <^ -S-!r€^-^ ^ /Sr/J J l./Y^ C^. of the struggle for the establishment of a chancery jurisdiction in Ilassachusetts and to discover^if possible the sources of the prejudice which for nearly two hundred and fifty years prevented the full acknowledg ~ ment of the- right of equity to apply its remedies with- in the state. The charter of the Colony of Massachusetts Bay, granted in 1628, provided that the legislative and judi- cial powers of the corporation should be lodged in the General Court, an assembly consisting of the Governor, Assistants, and freemen. By charter, the legislative functions of this body v/ereto establish lav/s for settling the forms and ceremonies of government and magistracy, and to provide for the number, kind, and election of officers of administration ; its designated judicial power was to impose lav;-ful correction upon offenders, according to the course of corporations in England. The charter was not ixitended to be the frame of government for a new state, but, when granted, it was regarded as a franchise bestowed after the manner of those enjoyed by English guilds and other commercial companies of the time. It we|,s contemplated that the corporation should exist in England and that its officers 3 should reside there. For these reasons there was no provision in the charter for the establishment of judi- catories in the colony. Two years after the charter was granted the corpora- tion moved to its territory in America and from the time of the removal vintil the revocation of the charter this instrujTiont could only have been regarded, if regar^d ed at all, as one in which specific limitations and not particular grants of power were to be looked for. It has been contended that the first meeting of the coi^ ora- tion was the only one in which it acted within the lav/- ful scope of the authority delegated in its charter. Tchalmers ^Political Annals, p. lol.J From the first meeting of the General Court in the colony the government was in fact carried on alongside and not within, the charter- When deemed proper, towns and courts were erected, taxes were levied, and the principle of repres- entation vfas introduced, although none of these acts were provided for in the charter, j Hutchinson, Hist. Mass. 3d ed. vol. ii, pp. 10, 11. Washburn. Judicial Hist. Mass. p. 27, An instrument creating a business corporation would not serve for the written constitution of a body politic. Here then, in effect, was a govern- ment established independent of the colony charter, and in order to binder stand the iriLliiiuii b^irntn oit rof justice in the colony it is necessary to look to the force that formed and dominated that government and controlled its administration in all departments. The year following the establishment of the colony in Hew England it was enacted that only church members were to be admitted to the freedom of the commonwealth ; ("Records Mass. Bay, vol. i. p. 87,(1631)J and the intent of this provision, as declared later, was that no one was to be admitted unless he were a church member "in full communion". I Records Mass. Bay, vol. iv. pt. 1. p. 420 (1660). I These acts restricted all participation in the government, either as officers or electors, to those who were active church members. The clergy, zealous for the establishment of a religious eomnonwealt]^ were autocrats in their holy office,! Adams, Emancipation of Mass. pp. 26, 2771 and were all powerful in the ad- ministration of law ^ as well as in its enactment. Ac- count of the colonies, etc., in Perry's Hist. coll. vol. iii. p. 48. Washburn, Judicial Hist. Mass. pp. 21,22.1 During the earlier period of the colony \inder the charter there was no place for a chancery jurisdiction. The government was an unlimited theocracy where law was ad- ministered with all of the sanction of ecclesiastical authority,- an authority in which the conscience of e- quity must have been supposed to inhere. This system was at times more rigorous than the coinnon law and at other times more generous of remedies than the most con- scientious system of equity could have been. Few of the magistrates were lawyers, I Washburn. Judicial Hist. Mass. p. 50j and, in the words of a contemporary writer, the General and Quarter Courts had "the power of Parlia- ment, King's Bench, Comnon Pleas, Chancery , High Commis- sion and Star Chamber and all the other Courts of Eng- land. H * * ^ Matters of debt, trespass and upon the case and equity, yea, and of heresy also are tried by a jury." [Lechford.Plaine-dealing, (1641), reprinted in Mass. Hist. See. Coll. 3d ser., vol. iii, p. 83. However, as the colony grew in population and pros- perity new courts were erected^ aaaai their original and appellate jurisdiction declared, and a, body of substan- tive law grew out of the multiplied interests of the people. Decisions began to stiffen into precedents^* equitable relief was sought by petition to the General Court, and, without abatement of the ecclesiastical in- fluence, that Court came to grant relief in matters of equity, though the relief decreed was largely natural equity, and not properly the system of jurisprudence be- longing to the English High Court of Chancery. The Gen- eral Court exercised chancery jurisdiction in decreeing the cancellation and re-execution of a deed pviauri ck ' s answer . Records Mass. Bay, vol. iii. p. 345.'! and in cases of the redemption of land from mortgage, J The fol- lowing cases are examples collected by Justice Horace Gray and given in his valuable note on chancery jurisdio- - tion in the colony and prov ince of 'lass., published in Quincy's Reports, 'p. 537-559^ I Hues v. Rogers. Records Mass. Bay, vol, iv. pt 2, p 292."j charitable trust, J Gase of Roxbury Free School . lb. PP. 434, 435, 441, 455-458; ib» vol. v. pp. 5, 6, 22.J specific performance by executor of testator's contrac^t, I Shoare v. Bos- ^ worth. lb. p. 36_J sequestration of lands, j Patch v. Patch . Ib» ) P« 39. I mistake, I Mavericke y. Phillips, lb. ,vol. iv. pt. 1, p. 187 ; G rq s s y ._ _C o _l l e eg t , ib . , vol. V. pp. 150, 247, 273. and fraud, j Thatcher v . Thatcher. Ib. , vol. v. P. 245. j In some cases the want •1 of remedy at law was assigned as the ground of jurisdic- tion in equity- Dedharn v. Natick Indiajis. Ib» , vol. iv. pt. 2, p. 49 ; Sears y. , How, ib. , vol, v. p. 379, Some chancery jurisdiction was conferred upon the county courts, I statutes 1671. Records Mass. Bay- vol. iv. pt 2, p. 488 ; 1682. ib, , vol. v. p. 375, but by 1685 the applications to the General Court for relief had become so numerous that complainants suffered great expense and inconvenience by being obliged to wait for the dispatch of business of more public concern before their causes could be heard and decided. In that year it was sought to remedy these delays by a law which em- powered the magistrates of each county court to act as a court of chancery. Prom the county court, appeals might be taken to the Court of Assistants and this was final Tonless the General Court afterwards saw fit to direct a neif trial in the County Court or admit a hearing and determination in the General Court, I Records of Mass. Bay. vol. v- pp. 477, 478. It has been said that this act continued in force until the grant of the pro- vince charter in 1691, I Charles River Bridge v. V/arren Bridge , 7 Pick, 368, I yet, that it was not continuously in force until that year is suggested by a retroactive 8 provision in an act passed in 1698 (Qui. Ill, 10 )giving the Superior Court and Coinnon Please, power to chancer penalties annexed to specialties an^ forfeiture of es- tates on condition, and making the remedy applicable to all causes of that kind which load been tried since April 1686. This might imply that if the act of 1685 had con- tinued in force until 1691 the retroactive relief would not have been given for causes tried between 1685 and 1691. The significance of the date April 1686 lies in the fact that it marks the time of holding the last Court of Assistants under the colony charter. The act of 1685, reciting that "wherein there is matter of apparent equity, there hath been no way provid- ed for relief against the rigour of the coirmon law but by application to the General Court" shows that by the time of the revocation of the Golony Charter, and before the granting of the province charter there had cane to be in Massachusetts a clear recognition of the existence of, and necessity for an equity jurisdiction in its stricter sense as an essential part of the judicial system of the com- monwealth ; and from this time on it is the course of this more definable equity jurisdiction that is to be followed. 9 The Province : 1691 -1780, Tfith the revocation of the colony charter in 1684 the hold of the clergy on the state v/as relaxed and the ■theocracy fell.. The corporation of the Governor. .and ■Company of Massachusetts Bay which was created, for busi- ness purposes and then almost immediately became a reli- gious commonwealth was now rucceeded under the new char- ter, by a province exercising the proper functions of a state. The province charter was a written political con- stitution and provided for the government of a dependent rtate. We find in this constitution as would be expec- ted, express provision for a judiciary. The' Geri-eral Court was given "full power and authority to e're'ct and constitute judicatories and courts of record to be held in the name of us, our heirs and successors, for the hearing, trying and determining of all manner of crimes, offenses, pleas, processes, plaints, actions, matters, causes and things whatsoever". The province charter further gave the right of appeal to the King in Council where the matter in difference w^as over ^ 300. The new charter arrived in Hay 1692, and on the 25th of the following November, the General Court passed a law establishing permanent courts of justice. 10 1 V/ashbum Judicial Hist. Mass. p. 151. Among these was a high court of chancery, - the first separate equity- court created in Massachusetts. It was to be held by the Governor, or by a chancellor appointed by him, assis- ted by eight or more of the Council. This act, however, also gave to the judges of the other courts created thereby, power to chancer any penal bond to the just debt and damages,- a proviso that afforded great equita- ble relief after royal authority had refused to allow the General Court to create a court of c;hancery. In the following year the provision of the law of 1692jrelating to the establishinent of a court of chancery^ was repealed and another act to effect the object was passed. The reason given in the preamble for the change was that the court as constituted "was found by exper- ience not agreeable with the circumstances of this province in divers respects not then so well considered or foreseen". By the new act the court was to have ju- risdiction in matters of equity not relievable at coinmon law, *^'an_d (as the new act added) not otherwise . The con- stitution of the court was changed and now it was to be held by three coinrnissioners, being freeholders within the province whom the governor was to appoint with the advice 11 and consent of the Council. Plve masters in chancery were also to be appointed in the same manner. But the ]'-ing in Cotincil would not allow the General Court to establish a court of chancery in Massachusetts, broad as was the provision in the charter which allowed the "General Court to erect judicatories, and in spite of the fact that, before this time, one of the reasons specifically given to the agents of the colony in Eng- land for the refusal to restore the old colony charter had been that it did not allow the General Court to es- tablish a court of chancery.} Maaduit's Miscellaniest Mass. Hist. Soc. Coll. 1st ser. vol,, ix. , p. 274, I The reason for the refusal undoubtedly was the same that was declared later by Sir Edward Northey, Attorney General, in an opinion on this subject submitted to Queen Anne in April, 1704» After reciting the provision in the charter which allowed the General Court to erect judica- tories he says : "On consideration of this clause, if there be no other clauses that exclude the power of the (crown, I am of opinion Her Majesty may^ bjE her prerogative^^ erect a court of equity in the said province as by her royal authority they are erected in other Her Majesty's 12 plantations ; and it seems to me that the General Assem- bly there cannot by virtue of this clause erect a court of equity". I 1 Chalmers' Colonial opinions, pp. 182,185. [ It was afterwards tinder stood in the colonies that power to erect a court of chancery belonged to the ^rown, or followed the custodianship of the great seal. , Th: Ls right howeiger was the subject of much dispute in New York and Pennsylvania. Governor Hunter writing from New York to the Lords of Trade, May 7, : L711, says : "In both provinces (New York and Hew Ji 3rsey) I have been pelt( 3d with petitions for a court of chancery * « a » ] : had ordered the Committees of both Councils to form a scheme for such a court but to no purpose the trust of the seals they say^ constitute a chancell or and unless the governor can part with the sea] .s there can be no chancelloi • but hims( 3lf. (Docs. rel. col. his ,t. N. Y. vol. V. p. 208). In 1720, the Pennsylvania House of PLepresentatives it- self, by resolutions, addressed a request to Governor Keith asking him to open and hold a court of chancery with the assistance of such of his Council as he should think fit. (Penna. col. records vol. iii, p. 91.) The fact that in Pennsylvania this equity court held by the 13 gov ernor was undisturbed by the home government, and continued for fifteen years, while acts passed repeat- edly, from 1684 to 1720, by the General Assembly, es- tablishing a chancery jurisdiction had been negatived at home, tends to confirm the opinion that the (3!rown, when it refused to allow the General Court of Hassachu- setts to erect 1 a court of chancery, considered that the right to erect such a court was exclusively a royal pre- rogative. A i statement of the several attempts, from 1684 to 1720, : Ln Pennsylvania, is given, wi- th citation of authorities , in an article by Sydney G. Fisher, in the law 9,uarterly Review, vol. , i. pp. 455, 457, In January, 1735-6, the Governor of Pennsylvania fell into a dispute with the House of Representatives over the question as to where the power to create a court of equity in the colony was lodged. The governor's atti- tude is fully explained in a report sent by him to the House ; ( Penna. Col. Records, vol. iv. pp. 27-32.) and an elaborate denial, upon legal grounds, of the governor's power in the matter was transmitted to him in return. (Jb. , pp. 41-45). In New York, too, chiefly by reason of the decisions of the Court of Chancery favoi^ 14 able to the King in . his suit s for quit- •rents , the right of the governor to hold the coiirt of hi .s own motion was contested. (Docs. rel, , col . hist. N. Y. . , v« Ol. V. , pp. 848, 946, 947 ; and see also other references from the index vol.), With reference to the right of the governor of Massachusetts in this respect, Governor Bernard in his answer of Sept. 5, 1763 to the Queries proposed by the Lords Commissioners of Trade and Plantations says : "It might have been made a question whether the governor of this province has not the power of chancellor delivered to him with the great seal as well as other royal govern- ors ; but it is impracticable to set up such a claim now after a rton-usage of 70 years and after several govern- ors had in effect disciairaed it by consenting to bills for establishing a court of chancery which have been disallowed at home." (Quoted in Gray's note to Quincy's Reports, p. 539 ; the answer being from a MS. copy in the possession of George Bancroft.) "The governor C of British c'oloniesj has the custody of the great seal and is chancellor within his province, with the sgine powers of judicature that the Lord High Chancellor has in England." (Stokes' View of const, of Brit. .Colonies. (1783) p. 185. |;| Had the Grown consent- -] 15 ed to the Massachusetts acts of 1692 and 1693, erecting a court of chancery, it would have .arnoiunted to an aek- novrledg'lment of the right of the General Court to erect such a court ;- although by those particular acts the interests of the Crown might not h^ve suffered, inasmuch as the first of tho^fee acts directed that the court should be held by the governor, or chancellor appointed by him, assisted by eight or more of the Council; and the second also act provided that the court should be held by appointees A of the governor. It is important to observe that direct hostility to a court of chancery began to be expressed almost as soon as the first efforts were made to establish such a court in the province. At least as early as January 1703-4 Governor Dudley had been endeavoring to obtain a commis- sion from the ^rown for a court of equity; and a letter signed by several persons in the province was sent to Sir Henry Ashurst, in England, soliciting his influence against the proposed establishment of the court. I This opposition appears in a rare, aaionyraous tract entitled "The Deplorable State of New England, " published in Lon- don in 1708, and reprinted in Mass. Hist. Soc. Coll. 5th 16 ser. vol. vi. At p. 1097 in an effort to show the evil designs of Governor Dudley upon the charter and courts of the provin ce, there is given a letter, from the Gover- nor's son Paul to a friend in England, dated January 12, 1703-4, wherein the son says: "This country will never be worth living in for lawyers and gentlemen till the charter is taken away. Ivly father and I sometimes talk of the Queen's establishing a court of chancery in this country; I have writ abroad about it to Mr. Blathwayt. If the matter should succeed you might get some place worth your return." At p. 118''^ this feeling about erect- ing a court of chancery reappears incidentally when the author aims to sh ow that Governor Dudley used offices within his gift to win representatives to his interests. This particular legislator had formerly opposed Dudley, but "unto the surprise of the whole houi se tack'd about and gone over to Colonel Dual ey 's interests; though 'tis not so many months ago that we have (now in London) his hand with others unto an honest letter ■ fco that honorable person Sir Henry Ashurst to solicit his endeavors to deliver the country from a plot against the charter and all the courts of justice ! in it, , with a sham court of 17 chancery (or rather of bribery) which Governor Dudley was then pursuing". A letter dated Jan. 20, 1707-8, from Increase Mat her to Governor Dudley (Mass. Hist. Soc. Coll. 1st ser. , vol. iii, p. 126.) further exhibits this hostility : "Sir H. Ashurst writes to me that it would fill a quire of paper for him to give a full account of your contrivances to ruin your country, both this and the neighboring colony. Your son Paul's letter, dated January 12, 1703-4, to ^7. Wharton, seems to those that have read it to be nothing short of a demonstration that both of you have been contriving to destroy the charter privileges of the province; and to obtain a commission for a court of ehancery, alias, a court of bribery, A gentleman in London gave ten pounds for that letter so that his friends in New England might see what was plot- ting against them", J After the act of 1693 no further attempt was made by the General Court of the province to erect a separate court of equity ; yet from the fact that, during the en- tire period of the province charter, rules of practice were not well established in the courts, and that, with but four exceptions, none of the thirty- three judges 18 who at various times sat in the Fuperior Court of the province were lawyers, Fv/ashburn Judicial hist. Mass., p» 189, I it may be conjectured that much informal equi- ty was administered by the law courts without knowing that such relief belonged to a court of chancery. An ac* count of the method of obtaining equitable relief during this period can best be given in the words of Benjamin Pratt of Massachusetts, who was one of the great lawyers in the colonies and, in 1761, was appointed Chief- Justice of New York : "There is no court of chancery in the charter governments of New England nor any court vested with poifer to determine causes in equity, save only that the justices of the inferior court and the Justices of the Superior Court respectively have pov/er to give relief on mortgages bonds and other penalties contained in '<. deeds : I These acts were : 1693, jurisdiction to chancer penal bonds ; 1698, 1735, over the redemption of lands after the default of mortgagor ; 1713, 1719, over the B '" redemption of lands after sale under an execution al^. other..,. chancery, and equitable matters both the crown and subject are without redress. This introduced a prac- tice of petitioning the legislative courts for relief 19 and prompted those courts to interpose their authority. These petitions becoming numerous, in order to give the greater dispatch to such businecs, the legislative courts transacted such business, by orders and resolves without the scfleninity of passing acts for such purposes ; and have further extended this power by resolves and orders beyond what a court of chancery ever attempted to decree, even to the suspending of public laws, which orders and resolves are not sent home for the royal assent. The tendency of these measures is too obvious to need any observations thereon". I Pownall. Administration of the colonies. 5th ed. (1774). vol. i. p. 113, I Governor ] Hutchinson, in a speech to the two Houses in 1772, strong- ly protested against such an assumption of judicial power by the General Court, j Mass* state papers. 1765-1775. p. 314. I As a result then, it is found that although Massa- chusetts was not allowed a court of chancery under the province charter, yet equitable relief might be freely obtained upon application to the legislative courts ; that the common law courts, by their statutory powers, could administer equity in three frequent classes of 20 cases ; and that the judges of the coiranon law courts, being laymen presiding over courts having no strict rules of practice, might be expected, at times, to give the usual layman's ^elastic interpretation to the law, and even oc- casionally to supply defects in the law itself. The State . 1780- 1877. In the first constitution adopted by the State of Massachusetts the provision giving the j^eneral Court au- thority to erect judicatories is in the same words as the provision for that purpose in the province charter, save only that there is a substitution of the "commonwealth" for the "King". The sort of equity power which had been exercised by the legislature in the province was retained by the lep;isla'ture in the state and was not transferred to any of the judicatories established under the consti- tution. By the first C4eneral Coutt the jurisdiction of the new Supreme Judicial Court was declared to be the same as that which had been possessed by the Superior Court of the province. I ^Laws 1781, eh. l*^*! Massachusetts as a state began v/ith no court of chan- cery, but with a constitutional authority in the legis- 21 lature to establish a chancery jurisdiction whenever it might choose to do so. It has been said that "whenever there exists no provision in the jurisprudence of a coun- try for its full exercise Q.,e., of equityj the conse- quences must ever be that after the common law courts have engrafted into their practice as much as can be there assumed, the legislature has been compelled to exercise the rest ; or else leave a large space for the appropiate field of Judicial action unoccupied". T John- son, J. in Livingston' s Lessee v. Moore . 7 Peters, 548.1 ?/hat was the result in Massachusetts? A separate court of equity was not created, although meagre chancery powers were given to the common law courts. It is not necessary to specify here the succes«- ive -acts of the General Court by which those limited powers were slowly and grudgingly dealt out to the Su- preme Judicial Court ; nor is it necessary to follov/ case by case the judicial interpretation of those acts. In order to realize how limited the chancery jurisdiction was it is sufficient to remember that it was seventy- five years after the adoption of the constitution before that jurisdiction was extended to the three great causes for 22 equitable relief, - in 1855 to fraud and in 1856 to acci- dent and mistake. 1 Laws 1855, ch. 194. Laws 1856, ch.38. t A succinct and thorough review of the equity statutes and decisions in the State of Massachusetts is given in Pomeroy's "Equity Jurisprudence", vol. i. pp. 341-352.1'' The attempt from this point on will be to seek for express- ions of feeling collateral with statutes and judicial decisions and, by so doing, follow the contest itself rather than its formulated results. Por the first twenty-five years after Massachusetts became a state, politics and the administration of the other departments of the new government occupied public attention to the exclusion of any particular inquiry con- cerning the judiciary. 1 Essay on the establishment of a chancery jurisdiction ±h Massachusetts, p. vii. 1 By iSOSj however, the necessity for an equity jurisdiction had become insistent. The decisions of the Supreme Judicial Court were now being reported and their publication es- tablished precedents which did not allow the court to exercise the same freedom of equitable adaptation of law to particular cases as was possible before the decisions were reported for the public, j Essay on the estab. etc .p.isl 23 The court might recognize the existence of a trus* but could not compel an execution of it ; there might be an admission of the violation of a legal right, yet there was no judicial authority to grant an injunction or com- pel a discovery ; and a complainant was remediless who had a new cause of complaint which, because it could not have been foreseen, was not yet provided for by law. pEssay on the estab. etc . p. 77.\ In I808j there was JuA^mitted to the legislature a com- mittee report | Quoted by Judge Story in an article "On chancery jurisdiction" North American Review , vol. xi. (1820) p. 161. j which dwelt upon the failure of legal remedies in the state and complained that there was no adequate legal power in the law courts to compel an ac- coimting ; that one partner mjight seize the books and papers of the firm and there was no process to reach them by law ; that there was no way by which the marshall- ing of assets coiild be enforced ; and that testamentary trustees might take the devised estates and then refuse to execute their trusts,- there being no power to compel them what in equity and good conscience they ought to do. pThe reluctajace which has always been preserved in our 24 legisla ture to the establishment of chancery powers, if it shall be continued, will go a great way to discourage devises and conveyances in trust ; there can be no com- mon law powers adequate to the management of claims of this nature. In this and some other branches of our ju- risprudence every one will acknowledge there is a defect for want of a court of chancery".- Sullivan, Hist, of land titles in Mass.f p. 215. (1801), T The committee reported that they were not aware of any solid objection to the establishment of a court of equity in the commonwealth, and said, as if in view of opposition, that the right to trial by jury would be preserved inviolate and the decis- ions of that court must be guided as much by settled principles as were those of the courts of law. Soon after attention was thus directed to this sub- ject there was a bill before the House of Representatives for the establishment of a separate court of equity mod- elled after the English High Court of Chancery and having full equity powers ; PEssay on the estab. etc. p. 22,\ht<-t the bill was not passed, and an address to the legisla- ture for their instruction on the subject of equity and courts of equity was of no avail. T The address is the 25 ^ssay on th e establishment of a chancery jurisdiction in Massachusetts" cited several times in this paper. The "Essay" was published anonymously and without date in 1810, and^upon the authority of Judge Metcalf and the Monthly Anthology it is attributed to Am^uw^mw Worth- ington."] The legislature not only refused at that time to give more relief, but, as if to rebuke future attempts in this direction, waited several years before giving any additional equitable remedies of importance. 1 Laws 1817. ch. 87. 1 The objections made to the establishment of a court of equity vyere that the chancellor would possess a dan- gerous discretion, that the court was unnecessary, that generally the consequences of giving a court such powers were to be feared and, not the least effective objection was that the court would be an innovation. |_ Essay on the estab., .etc . p. Se,"! The terrors of the court were the terrors of the unknown. An idea prevailed that it would be unavailing and dangerous to attempt any legislation on the subject. Many who had contemplated some action to remedy the defects in the administration of justice shrank from the task and there were at that time not more 26 than four or five men who made ahy considerable exertion to effect the needed reform. [~Essay on the estab. , etc . p. ss fj But the evils resulting from the refusal to give a chancery jurisdiction arose continually before the common law judgeiwho, while they confined themselves strictly within the bounds of the powers granted to them and were obliged to turn away without relief suitors whose equi- table rights were admitted, nevertheless took occasion in their opinions to protest, as "Vigorously as judicial propriety would allow, against this prejudice of the leg- islature. In the very first volume of the Massachusetts Reports the Supreme Court directs the attention of the legislature to the lack of an equitable remedy in cases of trust. The court says : "If the eonveysmce vras in trust the court could not have compelled the execution of it ; and until the legislature shall give us further powers we can do nothing upon subjects of that nature". r Prescott V. Tarbell . 1 Mass. 208, (1804}._J Judge Jackson in Bridgen v . Cheever, F lO Mass. 455 (1815) J complains that "this is one of the numerous cases in which suitors are exposed to loss and inconvenience for want of a court 27 with general chancery powers. But it is not for us to remedy the inconvenience ". And the same judge in Vose v« Grant . PlS Mass. 517, 522, (1819). 1 utters a yet louder complaint : "If these suggestions should lead to any adequate remedy for the plaintiff and those who are situated like him, or on the other hand should show that our law furnishes no remedy, and thus prevent further trouble and expense to all parties concerned : the result in either case will be useful to the coinmxonity ". k « -x » "This is one of the numerous cases which are constantly occurring which show the necessity of a court of chan- cery for the complete distribution of justice among the people. It is the boast of the common law that it per- mits no v/rong vathout furnishing a remedy ; but this is true only when there are courts competent to exercise all the judicial powers which that law requires for its due administration. A court of chancery exercises a most important part of these judicial powers". It is naturally with a great degree of interest that we look for Judge Story's participation in this contest in his own state over a branch of jurisprudence with which his name is now so eminently connected. 28 Like most of the more learned lawyers in the conmonwealth he was earnestly in favor of the creation of a cotirt of chancery ; but, when he gives his opinion upon the sub- ject, his advocacy is foxind tempered with politic con- cessions to the opposition,- concessions, however, which do not substantially modify his expression of belief that the court should be established. In 1820, and in well- chosen time before the assembling of a constitution- al convention to be held in the latter part of that year, he presented anonymously his views on the question. I Story "On chancery jurisdiction". North Amer. Revi ev^, 1 , et_ seq . I :ol. xi. (1820). pp. 140, et seq. I He did not do this with a dogmatic assertion that any opposition to chancery was unwise and unreasonable, and thereby excite in the obstructionists the antagonism of pride as well as of i£>-no ranee, but extolled the existing system while he unob#trusively declared that the establishment of a proper court of equity would prove "a real blessing." This court should be modelled after the English High Court of Chancery,— but only so far as might be applicable to the conditions in Massachusetts. It vras true that many evils resvilted from a maladministration of chancery 29 powers, but those powers need not be raal administered. And yet there was much good in the very rigor of the coiimon law and absence of a ehsncery jurisdiction. The people were trained to attention and prudence in all their transactions for if they lacked these qualities_, they were not roilikely to acquire, in their dealings merely equitable rights against one another^ which a common law court would not protest. Story apparently felt that the people of JAassachusetts would not be un- susceptible to praise and he proceeds to address himself to state pride : "There is now a wholesome thrift and accuracy about our concerns that disciplines lus to close attention and gives us an almost instantaseous perception of what is proper. We have at all times and almost instinctively the air and character, and pride of real business men who look at their title deeds before they lock them up, and, what is of quite as much importance, look at them diligently afterwards. We do not slmnber over our rights but are instant in season and out of season ; we do not av/aken from our dreams of indolence for the first time after the lapse of twenty or thirty years and then consult a solicitor as to the best mode 30 of framing a bill that shall relieve us from the ill effects of delay and forgetfulness, and hardship, and folly. Our laws hitherto have secured only the vigilant and not the sound sleepers. Vigj lantibus non dormienti- b us lege s subvenient. Now it is most desirable to perpet- uate this course of things, to prevent litigation and to encourage legal eertainity- And all this a good court of equity sustained by a learned, intrepid and discrimi- nating Chancellor, such as Lord Eldon or Mr. Chancellor Kent, would accomplish ; but all this would be lost under different auspices, as may be seen in some parts of the Union. Without adverting to the learned Judges of the State bench, we could name a gentleman at the bar of Massachusetts whose cautions, well-instructed, modest, powerful mind would adorn such an equity bench and create an equity bar". P story. "On chancery jurisdiction". North Arner* Review, vol. xi» (1820). p. 157. -] When the constitutional convention met in that year. Story was made chairman of the judiciary committee which reported that a court of equity seemed indispensable to a perfect administration of public justice, and re- commended a resolution, (which was stricken out by the 31 convention), "that the legislature may, if the public good shall require it, establish a Supreme Court of Equi- ty distinct from the Supreme Court of Law". 1 Journal of the deb ates and proceedings : convention to revise the constitution of Mass., 1820-21. pp. 71, 72,1 Inasmuch as the legislature already had that power the resolution could only have been intended as a standing announcement of the fact that such a court was lacking in the common- wealth. The contest thereafter was one of unwearied per- sistency on the part of those in favor of a chancery ju- risdiction, and their success was only won inch by inch. The Supreme Judicial Court having in mind the prejudice against chancery confined itself within the narrowest possible limits in administering whatever chancery pow- ers were gained for it from the legislature, | Dwight v. P-pmeroy. 17 Mass. 327. (1821). p^arles Riyer B ridg:e y , « War r en _£r iiifiLe.. 6 Pick. 395 (1828) \ but directed the at- tention of the legislature to the frequent failure of remedial pov/^er in the law. "If the common law or trus- tee process will not reach such a case it only shov:s that there is yet a defect in the laws which can be supplied 32 only by the legislature".- '1 Parker, Ch. J. in Black v . Blacky 4 Pick. 238« (l8g6 )T) "It may be an inadequate remedy and no doubt this is a proper case for a court of equity, but without more ample jurisdiction it is impos- sible for us to grant relief in equity." Iwilde, J. in Manni ng y. 5th Parish in Gloucester. 6 Pick. 19, 20. (1827) 3 The friends of chancery gradually became more hixmer- ous and their cause strengthened; but the prejudice of the opposition became more confirmed and not always scrupulous as to the means it used in the effort to de- feat the establishinent of an equity jurisdiction. The contest in the legislatixre in 1846 shows to what extrent- ity the argument against chancery had been reduced. A bill was reported to the House of Representatives from the Committee on Probate and Chancery. The second and important section, upon v/hich the whole debate turned, read as follows : "Upon a bill of discovery in cases of fraud, accident, and mistake under the provisions of the 8th ^section of the 81st chapter of the Revised Statutes^ if the complainant have not a plain adequate and complete remedy at common law, he may insert in his bill a prayer 33 for relief and thereupon the coi3rt shall have power to hear and determine the same in equity ; provid.ed that all issues of fact arising in the case shall^when requir- ed by either party be tried by a jury". This section . was defeated. The most effective speech against it was made by Mr, Crowninshield, of Boston who expressed a wish that the equity power which had been given to the Supreme Court from time to time might be taken away and, in the course of the debate, be held up before the; House the large volume containing the bill, answer, etc., in the ease of glagg v . JEaxin. (2 Summers, 486.) and said "7/hy, JAr. Speaker, did this House ever see a bill in equity' if not, I will show you one." This theatrical climax was received with a burst of applause and a gen-*' tleman who spoke on the same side de