of activity, the enforcement of the use or trust, but without any real success. The jealousy of the common lawyers did succeed in confining the enforcement of chancery decrees to compulsion to be exercised on the person of the defendant. In a later and more vigorous clash equity was successful. The common lawyers denied the power of equity to prevent a successful plaintiff in a court of law from having his judgment enforced if in the opinion of the Court of Equity it was shown to have been wrongfully obtained. The King, James I, gave decision in favor of the contention of equity.

But the contention between the courts of common law and equity was mitigated by the practice which grew up after the Reformation of appointing laymen, and eventually lawyers, as Lord Chancellors. These men were less daring in the exercise of their unaided discretion in determining what constituted behavior conforming to good conscience than the earlier clerical chancellors, who settled cases by appeals to Scripture or the law of reason, with somewhat arbitrary disregard of the rules furnished by the judicial experience of their brethren of the common law. The lay chancellors, and especially those familiar with the common law, developed the practice embodied in the maxim, "Equity follows the law." Thus the rules governing trust estates were worked out in close analogy with those of common law estates; and in general the chancellor sought merely to extend rather than to run counter to the legal rules he found in the common law, modifying them only where justice in the circumstances of a

particular case demanded modification. Moreover, these chancellors were willing to guide themselves, at least in general, by the precedents established by earlier decisions in equity-their own and also those of their predecessors. When in time these precedents began to be collected and published, equity reports took their place with common law reports as authorities on the law administered in their respective jurisdictions. Equity had ceased to be a system of arbitrary and irregular interference with the ordinary course of administering justice according to law, and had itself become a part of that system, coördinate with the common law and supplementing, the latter at many points, though at some running counter to it. It had introduced into the conception of law a moral aspect of the legal problem which had come to be neglected in the older idea of the law as the provision of remedies-the new element of the enforcement of duties.

67. Slow growth of private law doctrine to nineteenth century.-The constructive energies of the legal profession seem to have been largely taken up with the constitutional and jurisdictional struggles of this period. The services of the law to the nation confirmed its practitioners in their belief that it was, as Coke had named it, "the perfection of reason.' Such development of legal doctrine as occurred was smuggled into the perfect system under the cover of fictions which enabled men to avail themselves of simpler and speedier forms of action than those which fitted the actual state of facts. Fictions were also employed to oust the rival Court of Admiralty

from much of its jurisdiction. Thus, admiralty having been given control of wrongs committed in foreign ports and on the high seas, it was assumed by the courts of common law, in order to obtain jurisdiction of these wrongs, that the Mediterranean island of Minorca, for example, was at London in the parish of St. Mary-le-Bone.

Form for its own sake came to assume a ritual importance, and the lawyers reveled in the technicalities of procedure as giving to the law the dignity of a fine art. An attitude of antagonism even to statutory change in the established order began to characterize the courts in the interpretation of legislation; and besides, this advance along legislative lines seemed to be cut off by the increasing inactivity of Parliament in the eighteenth century. Such statutes as were passed were verbose and unwieldy through the effort to provide for all contingencies in sufficient detail to enable the acts to pass the ordeal of the unfriendly scrutiny of the courts. For a long time equity was almost the only active source of legal doctrine, and a very important source indeed; but the doctrine of the binding force of its own precedents had made equity a rather rigid and more or less complete system. Within a few years after the end of the eighteenth century Lord Eldon laid it down that "the doctrines of the court of equity ought to be as well settled and made as uniform as those of the common law, laying down fixed principles but taking care that they are to be applied according to the circumstances of each case."27

27 Gee v. Pritchard, 2 Swanst. 402 (Eng.).

The refinements of common law pleading and practice were now matched by those of equity, and chancery became a byword not only for delay but for the cost of litigation in it.28

68. The inclusion of the law merchant within the common law. And yet the common law was not entirely incapable, at least in the hands of a strong judge, of further development. The most conspicuous instance of this capacity was the absorption of the administration of the law merchant into the general body of the common law. As we have seen, the mercantile law had originally been a body of special customs administered for a special class in local courts, but the rise of the court of admiralty divided maritime mercantile law from the law of merchants trading within the country. Admiralty administered the custom of the sea, but the internal trade of the country was in general governed by the common law, whose courts administered justice in mercantile as in other transactions, aided by some rules borrowed from the law merchant and some statutory law which made, as in the case of bankruptcy, a distinction between traders and non-traders. As to foreign trade, the separate law merchant remained in control, though the courts of common law and equity had largely supplanted the jurisdiction of admiralty to administer it.

But the courts of common law were at first inadequately equipped to deal with these cases. They recognized mercantile law as different from the common law as binding only on traders, as consisting 28 See subject, EQUITY.

of a body of customs to be proved as facts. The chancellor, indeed, in cases coming before him, we are told, referred the cause for determination to a commission of merchants. To Lord Mansfield most of all was due the reduction of this law to established principles. Widely learned in the civil law, he was also familiar not only with the commercial law of Rome but with its developments in Italy, France, and Holland. From these as well as from the custom of merchants, he formulated definite and general legal principles to decide cases involving commercial transactions and thus established precedents of general law binding on all, whether merchants or not. The law merchant, ceasing to be the law of a particular class, to be substituted in their case for the ordinary rules of the common law, became itself a part of the common law, subject to development or alteration by the means through which all common law grows and changes. The doctrines thus incorporated into the law constitute the principal parts of the subjects of Insurance and Negotiable Instruments. It may be mentioned here that Mansfield is also to be remembered for the enlargement of the common law by the doctrine of quasi-contract. 69. Legislative reform.-It was only a Mansfield, however, who could drive a way through the tangle of obsolete precedent, the confusion of multiplied courts with conflicting jurisdictions, and the selfish conservatism of the practitioners who defended the worst of the system equally with the best because it was established. The development of the law necessary to deal with the tremendous problems of the