Page:The Green Bag (1889–1914), Volume 20.pdf/592

 A BILL IN EQUITY which we, the complainants, would reply by stating that as a matter of fact we are forced to refuse at every term of court to attempt to defend the indefensible, sustain the in valid, and prove the unprovable, and that it is not an uncommon experience for a lawyer to be asked by these same complaining clients that documents should be drawn in fitting language so that should their inter ests change in the course of succeeding years these documents could be interpreted in whatever light might be deemed advisable. In the interrogating part of the bill inquiry would be made of clients in general as to whether they have not furnished a plaintiff for every bad case and a defendant for every unjust defense; whether they do not frequently furnish a great many witnesses to prove a fact which is, to speak euphoniously, speculative; whether they . do not frequently tell one story in a lawyer's office and another on the witness stand and then allege that the attorney lost the case; whether they have not, in the entire history of the law, individually furnished the motive, encouragement, and reward for every action of a lawyer of which collect ively they have subsequently complained. The bill would conclude with a prayer for temporary injunction restraining clients from casting any more of their sins upon the lawyer whom they employ, until the further hearing of the cause, to be held on the day after the Day of Judgment. Viewed seriously, of course such an expansion of chancery would appeal to all as absurd, but would it not more nearly serve the ends of justice than such restric tions of equity powers as are being urged by many tongues today, particularly as to the process of injunction? Is this not a proper time for members of the bar to re-examine the history of equity juris diction and in its light see whether the present protest is intelligent or whether it springs from ignorance and shortsighted self-interest? In the first place we know well that the

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spread of chancery authority was caused by the need, arising largely from the oppressions of wealth and power, for a judicial tribunal whose jurisdiction could not be marked by metes and bounds. Yet today the bitterest cry against the free-handed power of the chancellor is raised by those for whom his jurisdiction was created, by those for whose greatest benefit it should always operate — by those broadly described as commoners. It is a reiteration of that mistake as old as govern ment itself — revolt against the institution, regardless of its vice or virtue, bred from antagonism to the actions of individuals. Do those who would chain the arm of the chancellor recognize that, in civil actions, he is the modern wielder of the pardoning power of the executive? In a brief historical survey it will be recalled that the Chancellor was originally the King's Secretary, an office antedating the Conquest. Litigants, helpless against the rigor of the common law, naturally addressed petitions to the King, Council and Parliament, which were referred to the Chancellor with such regularity that in time the custom arose of addressing them to him directly. During the reign of Edward II the Chancellor's Court gradually became a separate institution, and on precedents growing out of this establishment is based modern equity juris prudence. Therefore, while the executive today personally retains the pardoning power as to life and liberty, equity; unhampered by statute, represents execu tive clemency applied to rights of property. Whom shall this power natually operate most to relieve —• the wealthy and powerful or the oppressed, the unfortunate, and the downtrodden? Is it not altogether fitting that members of the bar, remembering that one step backward presages many more, should with one accord warn those who seek to confine equity that they are merely attempting to restrict the freedom of appeal to executive discretion for relief