humor of James I. to find the chancery (which depended on his royal prerogative, in a sense quite distinct from that of his law judges, described as of classical origin) and equity became, what it had never been before in the history of law, a separate jurisdiction. Even at Rome, which presented the only earlier recognition of it as distinct from law, it only took a form analogous to that it occupies to-day, after courts of equity have been abolished.

But it was the recognition of distinct and separate precedents in equity, and the theory that "equity follows the law" (instead of correcting and supplementing it) that completed the divorce, and made English equity something quite different from anything ever known at Rome or elsewhere. This seems to have dated from the latter half of the same (seventeenth) century. It was in 1670 that Ch. J. Vaughan of the C. P., sitting as an assistant to the chancellor," marveled to hear of precedents in equity ;" and Lord Hale and Ch. J. Bridgman were quite beside the point in their replies to him, vindicating their use. They showed with much force that any case might properly be decided on precedents: but they evidently did not perceive, as Vaughan did, that the use of such precedents was entirely changing the nature of the court's jurisdiction. (See the entire discussion in Fry v. Porter, 1 Mod. 307.) It was Lord Nottingham, who became chancellor in 1673, that gave its modern character to equity as merely a co-ordinate system. For a century past it has been clearly settled that courts of equity now adhere as closely to general rules as courts of law. "There are," said Lord Redesdale, in deciding Bond v. Hopkins, 1 Schoales & L. 428, "certain principles on which courts of equity act, which are very well settled. The cases which occur are various; but they are decided on fixed principles. Courts of equity have in this respect no more discretionary power than courts of law. They

3 BLACKST. - 51.

decide new cases as they arise by the principles on which former cases have been decided; and may thus illustrate or enlarge the operation of these principles. But the principles are as fixed and certain as the principles on which the courts of common law proceed."

As to the use and effect of precedents in equity see the text, p. 432, and also Story on Equity Jurisprudence, ?? 18-23, and citations in notes; Spence's Equitable Jurisdiction, Book 2, ch. 1, p. 407, et seq. Some weighty remarks of Lord Eldon on this subject are collected by Lord Campbell in the closing chapter of his life. (Chancellors, vol. x. pp. 242, 243.) In the preface to Maddox's Chancery, pages 7-10, will be found a collection of dicta by various chancellors on the weight of precedents.

When the authority of precedent was once established in chancery, fixed rules and the general terms in which such rules must be couched were the necessary result. These in turn were subject to the process of equitable interpretation, and this might have led to another necessity of recurring from the "ultimate facts" of chancery rules to the various cases contained under each. But there was no third tribunal to take the part of the chancellor, before the legislative power interferred and destroyed the duality, while preserving all the generalizations formed by both systems. In some states each system has preserved its name and its procedure apart, though administered by the same courts. But in those which have been more logical in the reform, as in England since the judicature acts, the system is one in which equitable rights predominate, though the procedure is modeled on that of law, and preserves the trial by jury, to which body equity in its original sense is largely committed.

(71) Here by equity we mean nothing but the sound interpretation of the law, page 431.

It is not to be inferred, however, that all interpreta

tion of the law is equitable: or that equitable interpretation is to be used in all cases. The contrary is shown by the well-settled rules that forbid such interpretation in certain cases: e. g. in criminal law against the prisoner, while it is allowed in his favor. The reason is that equitable interpretation always implies some discretion in the judge. The terms used in the written text are authoritative (note 26, page 200 of vol. 1): and to change them by substituting the peculiar facts of the case shown by the evidence would be equivalent in a criminal case to punishing a man for an act not strictly forbidden by law. It would thus be a violation of the maxim nulla pæna sine lege. (Note 22, page 153, vol. 1.) But no such principle forbids the judge to interpret equitably a statute in the prisoner's favor.

The rule that there shall be no equitable extension of such a statute enlarging it or unfavorable to the accused is recognized in all civilized nations, and is much insisted on by the civilians and canonists. Its reason is thus stated by one of the most authoritative of the casuists. After stating that some held to an analogical extension of penal laws-quia, ut dicunt, etiam lex pœnalis extendi debet de casu ad casum quando currit eadem ratio et crimen est gravioris malitia-he thus refutes them, and at the same time gives the reason of equitable extension in other cases-quia ratio primæ sententiæ currit in lege præceptiva, quæ omnino pendet a ratione legis; non vero currit in lege pænali, quæ pendet non solum a ratione legis sed etiam a voluntale legislatoris; ideoque in ea non valet argumentum a pari. (De Ligorio, Theologia Moralis, tom I. p. 451, ed. Mediolani, 1849.)

(72) But every kind of fraud is equally cognizable and equally adrerted to in a court of law, page 431.

The correctness of this statement has been frequently denied since Blackstone's time; and we have a curious

proof that Blackstone himself sometimes held a different view. By a reference to the changes of the text noted on page 199 of volume 1, it will be seen that in the descriptions of equity there given (p. *92 of the original text), as it stood prior to the fourth edition, Blackstone declared it to be one of the purposes for which courts of equity were established, "to detect and punish latent frauds which the law is not minute enough to reach."

In this, Blackstone evidently had in mind those constructive or presumptive frauds, between parties in special relations, or upon third persons, that have always been a peculiar subject of equitable jurisdiction. In the fourth and later editions he describes them as "latent frauds and concealments which the process of the courts of law is not adapted to reach," leaving out the words "to punish" altogether. The publication of the fourth edition was almost if not quite contemporaneous with the first appearance of this third book, and the purpose of the change thus made is plainly to conform to the statement in the text, that the courts of equity had no jurisdiction of fraud exclusive of law.

It is no doubt the object of the entire chapter to reduce all the differences between law and equity, so far as possible, to matters of mere procedure, and forward the blending of the two. Lord Mansfield was doing all he could in the courts of law to forward the same object by means of actions on the case; the equitable nature of which in the Roman sense of the term he was civilian enough to see and appreciate: as Cowell had seen it a century and a half earlier (Inst. juris Anglicani, lib. iv. tit. 6, 2 18), and as Blackstone has expressed it in the text, pages 432, 436, and in Book 4, page 442.

This chapter has been said to be the work of Lord Mansfield himself, and not of its ostensible author. I do not know on what authority the report rests, and

I should be slow to believe it on any but the most conclusive proof. It certainly formed a part of Blackstone's original plan, as published in the analysis, fifteen years before its first appearance in print (1753); and the style and method seem to me the same with the rest of the book. There is no hint of such an origin either in the authentic "Life" prefixed to the Reports of Sir W. Blackstone, published after his death by his own authority: nor in the anonymous "History of Blackstone," which would certainly refer to such a story if the author had ever heard of it.

Upon Lord Mansfield's decisions and their tendency, see W. D. Evans, A General View of Lord Mansfield's Decisions, volume 2, page 404, et seq.

But since Blackstone wrote, as well as before, it has frequently been said that there is a distinction between the powers of law and equity in dealing with fraud: that at law fraud must be proved, not presumed, while in equity it may be presumed from the circumstances of the case. (Lord Eldon in Butcher v. Butcher, 1 Ves. & B. 98, criticising Lord Mansfield's doctrine in Bright v. Eynor, 1 Burr. 390.)

Story says, however, that it is equally a rule in courts of equity and courts of law that fraud is not to be presumed, but must be established by proofs. Neither of these courts insist upon positive and express proofs of fraud; but each deduces them from circumstances affording strong presumptions. But courts of equity will act upon circumstances as presumptions of fraud where courts of law would not deem them satisfactory proofs.

But a late editor of Story's work adds to this the remark: "We could not subscribe fully to the opinion that courts of equity will find fraud upon any less proof, or any different proof from what a jury will require. If we admit that there exists in courts of chancery a capacity, or a right, or duty, or a disposition to