DISTINCTIVE PRINCIBLES. It iS quite ap parent that some principles other than those of the common law must regulate the exer cise of such a jurisdiction. That law could not mitigate its rigor upon its own principles. And as, down to the time of Edward III., and, with few exceptions, to the 21st of Hen ry VIII., the chancellors were ecclesiastics, much more familiar with the principles of the Roman law than with those of the com mon law, it was but a matter of course that there should be a larger adoption of the principles of that law ; and the study of it is of some importance in this connection. Still, that law cannot be said to be of authority even in equity proceedings. The commons were jealous of its introduction. "In the reign of Richard II. the barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common-law tribunals." This opposition of the barons and of the common-law judges furnished very sufficient reasons why the chancellors should not pro fess to adopt that law as the rule of decision. In addition to this, it was not fitted, in many respects, to the state of things existing in England ; and so the chancellors were of ne cessity compelled to act upon equitable prin ciples as expounded by themselves. In later times the common-law judges in that country have resorted to the Roman law for princi ples of decision to a much greater extent than they have given credit to it.
Since the time of Henry VIII. the chancery bench has been occupied by some of the ablest lawyers which England has produced, and they have given to the proceedings and practice in equity definite rules and forms, which leave little to the personal discretion of the chancellor in determining what equity and good conscience require. The discretion of the chancellor is a judicial discretion, to be exercised according to the principles and practice of the court. See DISCRETION.
The avowed principle upon which the ju risdiction was at first exercised was the ad ministration of justice according to honesty, equity, and conscience,—which last, it is said, was unknown to the common law as a prin ciple of decision.
In the 15th of Richard II. two petitions, addressed to the king and the lords of par liament, were sent to the chancery to be heard, with the direction, "Let there be done, by the authority of parliament, that which right and reason and good faith and good conscience demand in the case."
These may be said to be the general prin ciples upon which equity is administered at the present day.
Although in its origin the result of efforts to avoid hardships sometimes resulting from the rigorous application of legal rules and processes, it has in modern times developed into a settled system ; McElroy v. Master son, 156 Fed. 36, 84 C. C. A. 202; and as was said in [1903] 2 Ch. 174, 195, it is not a court of conscience, in the sense that there being no question of legal liability, ripe for dis cussion, there was no occasion for judicial action.
The distinctive principles of the courts of equity are shown, also, by the classes of cas es in which they exercise jurisdiction and give relief,—allowing it to be sought and ad ministered through process and proceedings of less formality and technicality than are required in proceedings at law. This, how ever, has its limitations, some of its rules of pleading in defence being quite technical. And it is another peculiar feature that the relief is administered by a decree or process adapted to the exigencies of the particular case.
It was said by Jessel, M. R., in L. R. 13 Ch. D. 696, 710: "It must not be forgotten that the rules of the court of equity are not, like the rules of the common law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to -time—altered, improved, and refined from time to time. In many cases we know the names of the chan cellors who invented them. No doubt they were invented for the purpose of securing the better administration of justice, but they were invented. Take such things as these: The separate use of a married woman, the restraint on alienation, the modern rule against perpetuities, and the rules of equi table waste. We can name the chancellors who first invented them, and state the date when they were first introduced into equity jurisprudence ; and, therefore, in cases of this kind, the older precedents in equity are of very little value. The doctrines are pro gressive, refined and improved ; and if we want to know what the rules of equity are, we must look, of course, rather to the more modern than the more ancient cases."