APPENDIX G.

THE ANCILLARY JURISDICTION OF FEDERAL COURTS OF EQUITY.

PAPER BY W. A. WIMBISH, OF COLUMBUS.

Mr. President and Gentlemen of the Georgia Bar Association: There is no more sublime conception within the range of thought than that of abstract justice; certainly there can be no higher human endeavor than to promote its equal dispensation. In the execution of this purpose judicial tribunals have been created and the science of jurisprudence has been devised. The perfect administration of perfect justice, softened by the touch of mercy, is unattained and inattainable; but the striving after it distinguishes every wholesome civilization and measures social progress.

Far back in the history of the race we find evidences of the existence of this idea, which afterwards ripened into the benign principles which lie at the foundation of equity jurisprudence.

In its practical application, equity has its share of the imperfections inherent in even the best efforts of mankind; nevertheless, while the ways may frequently be dusty and the paths be devious, the end in view is as clear and as steady as the light which flushes the northern sky on a winter's night. I regret that I cannot invite you to pause with me in contemplation of the lustrous beauty of justice. If you will follow I must lead you along humbler courses, with no opportunity to turn aside in search of flowers.

In discussing the ancillary jurisdiction of courts of equity, I have chosen the courts of the United States, both because they are now the only existing courts which regard the pure equity

practice, and because of the fact that their peculiar constitution has given rise to a novel and interesting jurisdiction which they have been forced to assume and exercise.

In some few of the States courts of equity have been preserved as separate tribunals; but in all the jurisdiction and practice of the court have been so changed by statute as to depart in many respects very far from the original type.

Even in England, where equity jurisprudence accomplished its development, the ancient practice has decayed and given way to what are called reform methods. The presiding judge of the Chancery Division of the High Court of Judicature is hardly to be recognized as the successor of those princes of the law who reigned in the old days as Lord High Chancellors of England. Only in the courts of the United States can now be found a jurisdiction and practice in chancery as it existed in its purest and highest development. In these courts the ancient practice is preserved, excepting as it may have been modified by rules issued from time to time by the Supreme Court; and Congress has been wisely conservative in either limiting or extending the jurisdiction of these courts. It so happens, then, that he who would discuss the jurisdiction of courts of equity apart from statutory modification, must resort to the Federal tribunals as the single modern illustration of his subject.

That a difference should exist between law and equity is somewhat confusing to the lay mind, which does not readily perceive why the administration of justice should admit of such distinctions. It is commonly supposed that equity and justice are convertible terms, and that to this end all laws should be framed and their administration proceed. We who have been admitted to the mysteries of the inner temple understand that the word Equity is used in its technical sense as denoting a system of juris prudence in contrast with that of the common law of England; and that the distinction bears no relation to abstract justice or to law as a science, but is wholly predicated upon different methods of enforcing rights and applying remedies.

The injustice of the law has been a favorite theme from time

immemorial. We have the warrant of Inspired Writing that the letter of the law killeth. The Jew of Venice appealed to that law which did not admit of the unstrained quality of mercy. The conception of equity was designed to relieve against the injustice of the law, which, being general in its nature, permitted of no exceptions in particular cases.

Aristotle defines equity as a better sort of justice which corrects legal justice when the law errs through being expressed in universal form. Accordingly the equitable man is he who does not push law to an extreme, but having legal justice on his side is disposed to make allowances.1 The idea underlying the Roman system was that positive law was deficient not only by reason of the general form of its expression, but also in that it reflected the sense of right and wrong entertained by its creators, who themselves might not always be actuated by the purest motives or have the most intelligent conception of private justice. Resort was had to that natural law which reason appoints for all mankind, which was thought to be so flexible, yet so sure, that justice in all cases would be attained. These principles of natural law became formulated as rules in equity. Each prætor upon assuming office would adopt the edicts of his predecessors and promulgate the rules which should govern in his administration.. Whenever the positive law conflicted with natural justice as thus expressed, preference was given to the equitable rule.

Equity thus came to represent any body of rules existing by the side of the established law, founded on distinct principles, and claiming incidentally to supersede that law in virtue of a superior sanctity inherent in those principles.2

At the time of the Norman conquest, and for many years thereafter, the common law of England consisted of a mass of customs, rules and precedents. It was not a scientific system elaborated by learned doctors, as the civil law of continental Europe claimed to be; it was the outgrowth of practical conditions among a rude but virile people, possessing to a remark1 Ethics, bk. V, ch. 10.

2 Maine's "Ancient Law."

able degree the instinct of law and order. Precedent rather than principle was its foundation, and a rigid conservatism marked its administration.

The irresistible tendency was toward a technical construction which failed to consider the broad principles upon which all laws should rest; and in consequence the lines of law and justice, which should run parallel, were steadily growing more divergent.

In the beginning appeals for relief were made directly to the King in the exercise of his prerogative. These became so frequent that they were referred as of course to the ecclesiastic who represented the King as the keeper of his conscience and the custodian of his seal. In this way there were created in the Hall of the King the semblance of a court which professed to exercise a jurisdiction ancillary or subordinate in its nature. The Chancellor in those early days was always a churchman who had been educated in the Roman law, and it was inevitable that the principles of that law should constitute the foundation of the new system. There thus grew up by the side of the common law a more refined system of jurisprudence which, while claiming to be ancillary, was really in a large degree antagonistic.

It was said that equity was the handmaiden of the law and would in no case assume jurisdiction if an adequate legal remedy existed; but the courts of equity reserved to themselves the right to determine the adequacy of the legal remedy, and unhesitatingly assumed that the common law by reason of its universality was deficient in recognizing peculiar rights and in applying appropriate remedies. The handmaiden persistently usurped the authority of the mistress. All of the pretensions of the Roman system were revived. Thus equity succeeded in seating itself in separate tribunals and in establishing an independent, though professedly limited, jurisdiction.

It is certain that its jurisdiction is no longer ancillary, if indeed it ever truly was. Law and equity are coordinate divisions of the great science of jurisprudence, both designed to accomplish the same end by different methods, just as in our sister science medicine and surgery go hand-in-hand in contributing

to physical well-being. An equitable cause of action is as inherently different from one that is legal as is a broken limb from a diseased lung. The one case demands the surgeon's skill; while the other may yield to gentler remedies. Some cases are so desperate that concurrent remedies may be necessary, and though each may minister to the other, it cannot be said in any true sense that either is dependent.

The original independent jurisdiction having become firmly established, it is not surprising that courts of equity should have manifested a persistent tendency toward an expansion of the limitations that hedged them in. The enjoyment of power, whether judicial or otherwise, inevitably results in the reaching out after greater power. The opportunity came to courts of equity. It was found that certain causes of action presented both legal and equitable features, so that parts of the controversy might come within the cognizance of either court. To thus divide a cause between separate tribunals, each independent within its own sphere, would complicate the administration of justice, harass the parties litigant, and possibly cause unseemly conflict. The evil was apparent; no remedy had been devised. No court of law had ever claimed the right to grant equitable relief, and so it was powerless to enforce the equitable rights of the parties.

Equity, with its more elastic methods, came to the rescue. It declared that equity loved to do complete justice, and not by halves; and that when it had once properly assumed jurisdiction of a cause for any purpose it would retain it for all purposes, even to the extent of administering purely legal remedies, to the end that the whole controversy might be fully and finally determined in one cause and in one court. This jurisdiction over legal subjects was claimed to be exercised in aid of that originally acquired over the equitable cause of action, and as ancillary thereto.

The courts of the United States, as to their jurisdiction and practice, were created upon the model of the English High Court of Chancery as it existed in 1789. They thus became vested