Chancery. 13y this term is designated the English system of equity, which in a modified form has been introduced into the United States. The name, according to Coke, was derived a cancellando, because it was the office of the chancellor to cancel letters patent of the king which had been improvidently issued. Others, as Spelman and Cowell, suppose that it originated a cancellis, that is, lattice work, by which the crowd was shut off, an etymology which is supported by the analogous case of the title of the legal profession in England and this country, which is taken from the bar or railing by which practising lawyers were enclosed and separated from other attendants in court. The system which the name designates is as peculiar as its title. There are several theories as to the mode in which this branch of jurisprudence has been developed. One is that it was a usurpation by the chancellors, who were at an early period ecclesiastics, and hostile to the spirit of the common law. This was maintained by Sir Edward Coke, who while chief justice of the king's bench vigorously resisted the attempt of the lord chancellor Ellesinere to give relief against a judgment in the king's bench, which had been notoriously obtained by fraud.
The parties and their solicitors and counsel were indicted for questioning the judgment; but the matter having been brought before the king, he decided in favor of the courts of equity, but putting his decision merely upon an arbitary discretion, which he claimed as his prerogative. The jurisdiction of actions by the court of chancery took its rise from a device of ecclesiastical chancellors to evade the statutes of mortmain, that is to say, statutes prohibiting the grant of lands to religious houses. Instead of a grant of the lands directly to the parties thus disabled to take, the practice was introduced of making a grant to a person who was under no disability, but for the use of religious corporations or persons; and in chancery it was held that the use was binding in conscience, and could be enforced. It was for the purpose of getting jurisdiction of this class of cases that John Wal-tham, chancellor of Richard II., adopted the subpoena, which has ever since been the process for commencing a suit in equity.
To understand the nature of this innovation, it is necessary to bear in mind that all writs for the commencement of suits in the different courts, though issued from the office of the chancellor, which was called officina justitice, were re-turnable not to the office from which issued, but to the courts where such suits were to be prosecuted. But the chancellor claimed to have authority from something contained in one of the statutes to compel parties to appear in chancery and answer in respect to a use. So far there is some color for the charge of usurpation of authority for ecclesiastical advantage; but when by act of parliament, passed shortly afterward, uses were made subject to the statutes of mortmain the same as the lands themselves, the doctrine of the court was found to be beneficial otherwise as a relief from restraints upon the alienation of property which had long existed. In the reigns of Henry IV. and V. the commons attempted unsuccessfully to suppress the writ of subpoena, the object of which was to take away the jurisdiction of the court of chancery; and in the reign of Edward IV. it had become the regular practice of the court to entertain actions commenced by that process.
The statute of uses, 27 Henry VIII., by which uses were executed, that is to say, transferred into possession, seemed likely to oust the chancellor of his new jurisdiction, as the courts of common law thereupon took cognizance of a use as being the real ownership of land; but by a narrow construction of the law, by which only one use was recognized, the court of chancery was enabled to regain its power. Thus a conveyance to A, for the use of B, in trust for C, was held to be a use executed in B, and the trust for C remained and might be enforced in equity. Gradually the jurisdiction of the court was extended to a great variety of other cases, some of which were cognizable by common law courts. For the most part, however, its province was to give relief when the forms or rules of the common law could give none. Common instances of this were afforded in the case of penalties and forfeitures. At common law, the penalty of a bond was deemed the debt upon non-performance of the condition, and judgment was recovered accordingly; but in chancery the amount really due was considered to be the debt, and on tender thereof with costs of suit at any time before judgment a stay of proceedings was granted.
So as to mortgage: at common law the land was forfeited upon non-payment of the debt when due; but in chancery relief was given upon subsequent payment or tender of the real debt. The same doctrine was extended to pledges, and to other personal contracts subject to a penalty or involving a forfeiture. In many of these cases the rules of law gradually conformed to equitable principles; as for instance, a judgment upon a bond, although nominally for the penalty, could be enforced only for the amount really due; and so mortgaged lands could not be retained after tender of the real debt, and this led to the process of filing a bill in chancery by the mortgagee in order to acquire the absolute title. In general, however, all courts, chancery included, must give the same effect to positive laws, and must be subject to the same rules of interpretation, and there might be cases of extreme hardship in which equity could afford no relief whatever. In the exercise of its original jurisdiction chancery gave relief against fraud, accident, or mistake in contracts, and for this purpose might set aside written instruments, or reform them to make them conform to the real agreement of the parties; might take accounts in partnership or other mutual dealings which were too complex to be properly tried by jury; might compel the specific performance of contracts for the conveyance of lands, and in a very few other cases where the recovery of damages would be an inadequate remedy; might compel the execution of trusts, either express or implied, and exercise a general supervision over charities.
The chancellor had also committed to him the general custody of infants, idiots, and lunatics, and appointed guardians of their persons and estates, to act under the direction of the court. One of the most important branches of its jurisdiction was the issuing of injunctions to stay proceedings in other courts where they were being taken against equity, to stay waste, to restrain infringements of patents or copyrights, to prevent nuisances, to enjoin the negotiation of bills, etc., where the party would be deprived of a remedy thereby, and generally to prevent irremediable injury. In many cases it aided the courts of law, by compelling parties to suits in them to make discovery of facts, by perpetuating testimony otherwise in danger of being lost, and sometimes by enjoining the setting up of an inequitable defence. Proceedings in equity have differed from those at law principally in three particulars: 1, in the proofs, the complainant being at liberty to compel the defendant to give evidence by his answer; 2, in the mode of trial, which formerly was by taking the written depositions of witnesses, upon which the judge passed without the aid of a jury; and 3, in the mode of relief, which at law was usually the award of damages, while in equity a specific execution of contracts might, as we have seen, in some cases be compelled, and in others damages might be anticipated and enjoined. - Equitable remedies have until recently been administered in England by the lord high chancellor, assisted by three vice chancellors and the master of the rolls, and also by two lords justices sitting with the chancellor as a court of appeal.
Formerly the court of exchequer also had equitable jurisdiction. The court of chancery was formerly the subject of very serious complaints because of its delays and expenses, but these were obviated to a considerable extent by the abolition of the office of master in chancery, and by giving the court authority to order the testimony to be taken in open court, and in its discretion to summon a jury for the trial of disputed questions of fact. Even these, however, have not satisfied the demands of reform. For more than a quarter of a century a sentiment has been growing and strengthening in England that the distinctions between law and equity, in their principles as well as in their administration, were unnecessary, illogical, expensive, and vexatious; and this has culminated at last in the act of Aug. 5, 1873, matured and supported by the lord chancellor himself, which consolidates all the superior courts of England, including the court of chancery, into one superior court of England, which is to be presided over by the lord chancellor, and, without distinguishing between law and equity, to administer justice on equitable principles.
The old forms of pleading are abolished; the summons by which the suit is commenced is indorsed with a statement of the nature of the claim made or the relief or remedy sought, the defendant files a statement of his defence, and the plaintiff replies if a reply is needful. Causes will be tried before one or more of the judges, sitting with or without assessors or a jury, or may be sent to a referee for hearing. (See Court.) - In the jurisprudence of nearly all the United States equity law is administered by the same judges who sit in law cases, but under the forms prevailing in England before the recent changes. Some of the individual states have never had any distinct equity system, but in these equitable remedies have to some extent been administered under legal forms. In others there has been a separate court of equity; in others still equity law has been administered by the law judges as under the federal system. New York led off in 1848 with a code which abolished all the forms of action, and substituted a simple statement of the party's case in a complaint for the former declaration at law and bill in equity; thereby seeking to abolish the distinction between law and equity.
Several other states have followed this example.