Another thing also retards the completion of decrees. * Frequently long accounts are to be settled, incumbrances and debts to be inquired into, and a hundred little facts to be cleared up, before a decree can do full and sufficient justice. These matters are always by the decree on the first hearing referred to a master in chancery to examine; which examinations frequently last for years and then he is to report the fact, as it appears to him, to the court. This report may be excepted to, disproved, and over-ruled; or otherwise is confirmed, and made absolute, by order of the court.*

When all issues are tried and settled, and all references to the master ended, the cause is again brought to hearing upon the matters of equity reserved; and a final decree is made: the performance of which is enforced (if necessary) by commitment of the person or sequestration of the party's estate. And if by this decree either party thinks himself aggrieved, he may petition the chancellor for a rehearing; whether it was heard before his lordship, or any of the judges, sitting for him, or before the master of the rolls. For whoever may have heard the cause, it is the chancellor's decree, and must be signed by him before it is enrolled; which is done of course unless a rehearing be desired. Every petition for a rehearing must be signed by two counsel of character, usually such as have been concerned in the cause, certifying that they apprehend the cause is proper to be reheard. And upon the [454] rehearing all the evidence taken in the cause, whether read before or not, is now admitted to be read: because it is the decree of the chancellor himself, who only now sits to hear reasons why it should not be enb Stat. 3 Geo. II. c. 30. See pag. 450.

**Quoted, 9 Fla. 46. Cited, 3 Yerg. 159.

The enforcement of decrees by commitment of the person or sequestration of the party's estate is now substantially obsolete everywhere. They are enforced by execution, general or special, according to the nature of the case in the same manner with judgments at law.

rolled and perfected; at which time all omissions of either evidence or argument may be supplied. But, after the decree is once signed and enrolled, it cannot be reheard or rectified, but by bill of review, or by appeal to the house of lords.*

A bill of review may be had upon apparent error in judgment, appearing on the face of the decree; or, by special leave of the court, upon oath made of the discovery of new matter or evidence, which could not possibly be had or used at the time when the decree passed. But no new evidence or matter then in the knowlege of the parties, and which might have been used before, shall be a sufficient ground for a bill of review.†

An appeal to parliament, that is, to the house of lords, is the dernier resort of the subject who thinks himself aggrieved by any interlocutory order or final determination in this court: and it is effected by petition to the house of peers, and not by writ of error, as upon judgments at common law. This jurisdiction is said to have begun in 18 Jac. I. and certainly the first petition, which appears in the records of parliament, was preferred in that year; and the first that was heard and determined (though the name of appeal was then a novelty) was presented in a few months after: both levelled against the lord chancellor Bacon for corruption, and other misbehaviour. It was afterwards warmly controverted by the house of commons in the reign of Charles the second. But this dispute is now at rest; it being obvious to the reason of all mankind, that, when the courts of equity became principal tribunals for deciding causes of property, a revision of their [455] decrees (by way of appeal) be

came equally necessary, as a writ of error from the judgment of a court of law. And, upon the same principle, from decrees of the chancellor relating to the commissioners for the dissolution of chauntries, etc. under the statute 37 Hen. VIII. c. 4. (as well as for charitable uses under the statute 43 Eliz, c, 4.) an appeal to the king in parliament was always unquestionably allowed. But no new evidence is admitted in the house of lords upon any account; this being a distinct jurisdiction: which differs it very considerably from those instances, wherein the same jurisdiction revises and corrects it's own acts, as in hearings and bills of review. *For it is a practice unknown to our law (though constantly followed in the spiritual courts), when a superior court is reviewing the sentence of the inferior, to examine the justice of the former decree by evidence that was never produced below. And thus much for the general method of proceeding in the courts of equity.†

NOTES OF THE AMERICAN EDITOR TO CHAPTER XXVII.

(70) Equity then in its true and genuine meaning is the soul and spirit of all law: positive law is construed, and rational law is made by it, page 429.

The conception of law as a rule of human conduct laid down in general terms, can hardly have been long formed before it was supplemented by that of equity or natural justice, "correcting those things in which it was deficient by reason of that very generality inherent in its nature," and adapting it to the circumstances of individual cases. In the infinite complexity of human affairs it is not possible to form exact rules which shall always give every action legal consequences that sat

1 Duke's charitable uses. 62.

k Gilb. Rep. 155, 156,

4 Previously, "This is."

**Quoted, 1 Gall. 14. Cited, Hopk. Ch. 412.

+ Cited, 2 Yerg. 514,

isfy contemporary notions of the proper object of all law, whether these notions be the crude ones of primitive races or the sense of justice among men of the present day. Even the liberal power of dispensing with strict law or of pardon and mercy given to the sovereign or executive of most nations, does not satisfy the need. It asks not for pardon or indulgence, but for a more exact justice as its due.

Hence the earliest and the most permanent form in which this need is provided for, is that of equitable interpretation of the strict law-not to be confounded with mere laxity of usage, or with the use of analogy in applying the terms of the law. Such interpretation makes the law not laxer but more exact: instead of being satisfied with a vague resemblance of cases, it seeks, as the commentator has well said, "the true sense and sound interpretation of the rule." (Text, p. 429.) The process by which it accomplishes this, be has expressed with great accuracy in the Introduction, part 2, page 62 of volume 1. It regards the facts of the particular case as given by the evidence, and adapts its jndgment to them by following "the soul and spirit of the law" rather than the letter. The general term in which the law has expressed the antecedent of the rule represents in equity a class of actions, each of which has its own proper result adapted to its circumstances, yet all included under the general term in which the law fixes the consequent. See the precise description of this process, as applicable alike to both courts, in the text, page #430, par. 2.

Equity in this sense is differentiated from law only as the terms of the latter become strictly defined. In English common law, therefore, it is hardly distinguished from judicial discretion, or that higher form of the same power vested in the sovereign. The first appearance of the term is in the coronation oath of Ethelred II. (A. D. 1075), and in the reference to the

same royal power in the preface to Glanvil. It was only after the introduction of written law in the shape of statutes that it was fully recognized as a mode of interpreting them, under the name of "the equity of a statute." The royal judges could interpret his laws, in a way never claimed by the popular courts, folk moots, though they no doubt did the same thing freely upon the customary rules which they applied to the cases before them. The best proof of this is the mode in which the jury has always "played the chancellor's part" in finding its verdict without strictly regarding the rules laid down to them by the court. This has always been recognized by the best of our judges and writers. It will be seen that the equity of a statute has always been common to all the royal courts, those of the common law no less than that of the chancellor.

Another fact less obvious, but of even more significance, is that the "extraordinary" or "equitable" power of the chancellor was not identified with equity in any sense, for a long while after it had first been recognized. For more than two centuries after he obtained the power to award costs for vexatious bills, the clearest acknowledgment possible of his judicial character, he was never said to hold a court of equity, but only a court of conscience. (As to the meaning of this term see note 77, page 611.) Equity as a ground of jurisdiction was unthought of until after the reformation; still less as in any sense outside of the jurisdiction of the law courts.

The first distinct identification of the term with the chancellor's extraordinary jurisdiction is certainly not older than the sixteenth century, and is not clearly expressed before the chancellorship of Lord Bacon in the seventeenth. Indeed, it seems to have been suggested by the famous controversy between the law courts led by Coke, and Lord Ch. Ellesmere, in 1616. (As to which see text, page 53.) It pleased the pedantic