for although he could not enforce them by the ordinary process of the law, yet his power to imprison for contempt, etc., made a very effective sanction. Nor was it limited to certain narrow fields of exercise, like the jurisdiction of the court Christian, for the line was drawn by exclusion of particular subjects from time to time, not by a definition of the subjects included, as in that instance. The rights with which the chancellor interfered were really more various at this early time than they were afterward.

It was not in the rights themselves, but in his manner of dealing with them, that we find the distinctive mark of his jurisdiction. Legal rights he could neither give nor take away: but he could direct the holder of such rights as to the proper use to be made of them. He could instruct his conscience as to the moral or immoral aspects of these rights, and enjoin him to pursue the former and to refrain from the latter, with an effect that the mere spiritual adviser could not exert, and yet without canceling the legal right itself, or making the law inconsistent. His authority over the individual was much like that of a parent over the child: it was avowedly that of the king over the subject, while the law was over both. It was not until the reign of the pedantic James, that this simple and original view was obscured by the importation of Roman notions of the jus honorarium, and Byzantine notions of the "plenitude of the royal prerogative."

It was to this, I think, more than to anything beside, that English law owes its escape from those doctrines of natural law, divine law (as part of the human), higher law, etc., which so deeply affected the systems of the continent, and made them the instruments of tyranny. Whenever law and ethics are so identified that the bad man has no legal rights, freedom must disappear, and with it moral responsibility. The court of conscience preserved the distinction between them, while at the

same time it supplied a connection that made the improvement of the law by means of ethics easier than it would otherwise have been. It thus performed already the office of equity as Sir Henry Maine has described it in chapter 2 of his Ancient Law, page 27 of American edition.

The bill in equity was originally a mere statement of the plaintiff's case, in English (while all common-law pleadings were in Latin), or a petition to the chancellor, in no fixed form. Upon this defendant was brought in personally by a writ of subpoena (notice the analogy to process for witnesses generally) and required to answer the bill in presence of the chancellor or a commissioner appointed by him. This examination might be as searching as the chancellor chose: and when finished it was signed by the defendant and filed as his answer. The interrogatories were subsequently added to the bill itself, and finally the charging part, which never became absolutely necessary. (See Wooddessen, Lect. 55, iii. 368, n.)

Until the changes made by the present generation, every bill in equity was a bill of discovery, it might be a bill of relief also, or not: but such a thing as a bill of relief alone was unknown. And this seems to have been the case from the first. The uniform prayer of the early bills in chancery, as of the later, is that the defendant may be cited to appear before the chancellor, and examined as to the truth of the matter. There must have been many suits in which the plaintiff had no need of defendant's testimony to make out his case; and the reason why discovery was invariably sought must be looked for in the need of hearing him before passing on the state of his conscience. But soon it became the regular course for the answer to be put in in writing, under oath: a method which had been allowed from the first for those who were detained at home by sicknes, or otherwise. Thus it became evidence in the

case, as well for the defendant as against him: and very frequently suits were determined on bill and answer alone, the plaintiff being satisfied to go to hearing on the account of the matter revealed by defendant, or having no means of overcoming his statements by the amount of testimony required.

None of the modern treatises upon pleading in equity cases under the new procedure has taken any notice of the essential change made by the codes, etc., in this respect. The uniform abolishment of bills of discovery, and the reduction of pleadings at law and in equity to a single form, has completed the work begun with the changes here referred to in the text. The defendant's answer has now the same office in equity as at law (even where a distinction is still recognized between the two systems) and much of the older equitable doctrine has disappeared with the necessity of an answer to the bill of discovery.

The clearest examples of this power of the chancellor in conscience, i. e., to direct the conduct of men in the use made of their legal rights, is found in those parts of the jurisdiction which have the least resemblance to the æquitas of Roman law: in "the form and effect of a trust or second use" (p. 436, text) in "all matters in the private knowledge of the party, which though concealed are binding in conscience, and all judgments at law through such fraud or concealment." (Text, p. 437.) Unlike as these cases are in other respects, they agree in this; that the chancellor does not profess to assume jurisdiction of the same points with the courts of common law, but directs the party holding a clear legal right what use he may or may not make of it: enjoining the judgment plaintiff from enforcing his judgment where he cannot equitably do so, the trustee from asserting his legal title against the cestui que trust.

It is true that in the case of trusts equity takes an "exclusive" jurisdiction, as the books say, and creates

3 BLACKST.-52.

a whole system of equitable estates in land, different from those known to the law. But this is not done by creating new rights which the law does not acknowledge. It merely changes the form of rights created by contracts and conveyances to uses, and converts them from rights in personam against the legal owner, to rights in rem against the thing owned, as Lord Ch. B. Gilbert has clearly shown on page 237 of his Forum Romanum, or History of Chancery. The equitable rights are of a kind known to all systems of law alike; but it is the accident of a divided jurisdiction that has enabled the English courts to build them up into a complete system parallel to those of the law, and still preserve the independent character of each.

(77) The courts of equity have acquired a concurrent jurisdiction . . . . in all matters of account, page 437.

An equitable suit for an account is not to be confounded with an action, upon an account. The latter is simply an ordinary case at law, differing from any other action of debt or assumpsit only in the fact that the cause of action consists of a number of items. The issue in such case is directly on the items of the account - whether each or any of them is due. But a suit for an account, though generally leading up to and ending in a controversy of the same kind, begins with a different question, viz., whether plaintiff is or is not entitled to an account, whether he can compel the defendant to render a sworn statement of the accounts between them, to serve as the basis for an examination and adjustment of items, and final statement of a balance under the direction of a court. Under the older equity forins this difference was always an important one, because the defendant had to show (by plea or answer) some good excuse for not accounting, or else to render the account demanded, without waiting until plaintifi had set forth his statement of the mutual accounts. It

was thus an important application of the chancellor's power to compel a discovery.

The true nature of a suit for an account is very clearly stated by the supreme court of the United States, through Bradley, J., in Dunphy v. Kleinsmith, 11 Wall. 615. This was an action in the nature of a creditor's bill, brought in Montana, where the formal division of law and equity had been done away with by a code. It was held nevertheless that it was error to render a judgment for damages against the defendant to whom the fraudulent debtor had conveyed his property. "The decree against him must be a decree for an account. He must be called to account for just what property has come into his hands, and no more; and he will be entitled under ordinary circumstances to a rebate for the amount that was justly and honestly his due. The mode of taking such an account is well known in equity proceedings. The defendant is to exhibit an account, either in his answer, or in the master's office, and if it is not satisfactory to the complainant, it may be surcharged or falsified: and as the account is finally found to stand, so will the responsibility of the defendant be."

(78) The plaintiff's bill is to be taken pro confesso and a decree to be made accordingly, page 444.

Judgment by default was inconsistent with the nature of the chancellor's jurisdiction, which operated only on the conscience of the defendant, and therefore required that he should be heard before a decree made against him. (Note 77, page 611.) The sequestration and taking of the bill as confessed, here described by Blackstone, formed an important part of the changes introduced at this time with the conception of jurisdiction in equity as separate from law. But even here the fiction, that the defendant had answered and confessed the case made by the bill, preserved the original notion.