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When the federal courts are called upon to decide a case to which no written laws apply, they distinguish between matters of local law and matters of general law. If the case involves a matter of local law, they are guided by the law as it exists in the State where the cause of action arose. If it involves a matter of general law, they exercise an independent judgment, and are not bound by the decisions of the local courts.15

In the District of Columbia and the Territories.-The common law and early English statutes which were adopted by the constitution of Maryland are, by act of congress, in force in the District of Columbia, except in so far as they have been abrogated by act of congress; and as a rule, by express adoption, the common law is made the rule of decision in the courts of the territories of the United States except so far as it is inapplicable or inconsistent with acts of congress or of the territorial legislature.16

15. The thirty-fourth section of the Judiciary Act of 1789 provides that: "The laws of the several States, except where the constitution, treaties or statutes of the United States shall otherwise recognize or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." In the leading case of Swift v. Tyson, 16 Pet. 1, Story, J., settled the construction of that section in the following words: "In all the various cases which have hitherto come before us for decision, this court has uniformly supposed that the true interpretation of the thirty-fourth section limited its application to State laws strictly local; that is to say, to the positive statutes of the State, and the construction thereof by the local tribunals, and to rights and titles to things having a permanent locality, such as rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reason

ing and legal analogizing what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not apply to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence." See also Railroad v. Baugh, 149 U. S. 368, 13 S. Ct. 914; Burgess v. Seligman, 107 U. S. 20, 2 S. Ct. 10; Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357; Hough v. Railroad Co., 100 U. S. 213.

16. See 8 Cyc. 386.

The common law is adopted in Hawaii, except as otherwise expressly provided by the constitution or laws of the United States and by the laws of the Territory of Hawaii, or fixed by Hawaiian precedent, or established by Hawaiian usage. Hawaii Rev. Laws (1905) § 1.

In Porto Rico and the Philippine Islands the existing laws, which were based on the civil law in force in Spain, have been continued in force by act of Congress, except as altered, etc. 31 U. S. St. at Large, p. 79, 88; 12 Encyclopædia Americana, "Philippine Islands."



Christianity. It has been said that Christianity is a part of the common law; but this is true in the United States only in the sense that the institutions and essential truths of the Christian religion are entitled to profound respect and are protected by the common law against public reviling and blasphemy.' Christianity is a law of the State," said an Ohio judge, "like every other law, it must have a sanction. Adequate penalties must be provided to enforce obedience to all its requirements and precepts. No one seriously contends for any such doctrine in this country, or, I might almost say, in this age of the world. The only foundation—rather, the only excuse for the proposition, that Christianity is part of the law of this country, is the fact that it is a Christian country, and that its constitutions and laws are made by a Christian people."18

8 35. Equity-Courts of Equity and their General Jurisdiction. The English equity system was administered by a court known as the "High Court of Chancery." In this country, equity jurisdiction is in some States vested in a distinct court. More frequently it is exercised by the same tribunals which administer the common law, such tribunals sitting as courts of law and courts of chancery alternately. In some states, however, the distinction between actions at law and suits in equity has been abolished. Both in England and in this country it is a rule that the chancery or equity courts have jurisdiction only in cases for which the ordinary law courts furnish no adequate remedy.

In order to understand the precise nature of equity as it exists to-day, it will be necessary to refer briefly to the conditions under which the English court of chancery arose, and to trace its development until it became an established factor in the judicial system of that country. In the year 1066, William the Conqueror ascended the English throne. His rule was firm. We would regard it at the present time as despotic. One of the doctrines which he asserted and acted upon was that the king was the

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17. See 8 Cyc. 371.

18. Board of Education v. Minor, 23 Ohio St. 211, 246, 13 Am. Rep. 233. In an earlier case it was said: "We have no union of church and State, nor has our government ever been vested with authority to enforce any religious observance, simply because it is religious. Of course, it is no objection, but on the contrary, is a high recommendation, to a legislative enactment, based upon justice or public policy, that it is found to coincide with the precepts of a pure religion; but the fact is nevertheless true, that the power to make the law rests in the legislative control over

things temporal and not over things
spiritual. Thus the statute upon
which the defendant relies, prohibit-
ing common labor on the Sabbath,
could not stand for a moment as a
law of this State, if its sole founda-
tion was the Christian duty of keep-
ing that day holy, and its sole motive
to enforce the observance of that
We are to regard the
statute under consideration as a mere
municipal, or police regulation, whose
validity is neither strengthened or
weakened by the fact that the day of
rest it enjoins is the Sabbath day."
Bloom v. Richards, 2 Ohio St. 387,

fountain of all justice; that the courts of the country were limited at all times by the royal will. Under this doctrine, William and the kings who followed him often personally dealt out justice irrespective of the courts. The common-law courts were at this time limited very strictly in their jurisdiction. Certain forms of action were in use, but, unless a person's wrong was of such a nature that one of these actions applied to it, the courts were powerless to grant a remedy. These forms of action were neither comprehensive nor flexible; and many suitors, after they had been refused justice when they applied for it to the courts, would at last appeal to the king, in his character of fountain of justice, for relief. The most important of the king's great officers was the chancellor. He was an officer of the church, the king's confessor, and the keeper of the great seal of the kingdom. He was also said to be the keeper of the king's conscience, and, moreover, had certain duties in connection with the law courts. As the confidential adviser of the king, he was undoubtedly at all times consulted in regard to the petitions of subjects who wished the king to exercise his extraordinary legal powers in their behalf. And when these suitors became so numerous that the king was unable to attend to their complaints in person, the entire charge of these matters was turned over to the lord chancellor; and that personage soon became the chief officer of an important court in which these petitions were heard and determined, viz. the chancellor's court, or the court of chancery.1


In rendering his judgments the chancellor was at first bound by no rules except such as his conscience dictated, unless there were statutes applicable to the cases. But he was, as we have seen, an ecclesiastic, and as such was educated in the principles of the Roman law. Very naturally he found in that system many rules to determine him in his decisions; hence we are accustomed to regard the equity system as being more indebted to the Roman law than to any other source. Still the chancellor did not feel bound to observe its principles unless they were consonant with his own ideas of justice. From the fact of the extraordinary character of the wrongs which the court of chancery assumed to redress, there was much less chance for the application of the doctrine of stare decisis,20 or precedent, in the equity system than in the common law. The decisions of the successive chancellors were reported, however, and they appear to have felt themselves. bound by the prior decisions of the court whenever cases arose to which they applied. There thus grew up an extensive system of law supplementary in its character to the common law proper. The jurisdiction of the chancery court tended to broaden as 20. See supra, § 30.

19. See 16 Cyc. 23.

common-law rules grew more and more inflexible on account of the rigid adherence to precedent on the part of the judges who administered them. This tendency gave rise to a feeling of jealousy on the part of the common-law judiciary, who succeeded in procuring the passage of a statute extending their own jurisdiction, so that it was not limited to the precise actions to which it had previously been confined, but could be exercised in all similar cases; and as the old theory that the chancellor was the representative of the king in his capacity of fountain of justice began to lose ground, and it became less presumptuous to limit his jurisdiction, it became a recognized rule that the court of chancery could not be resorted to except in cases where the ordinary common-law courts gave no adequate remedy. This is now one of the fundamental rules of the equity system.

The system of equity was adopted in most of the States of the United States substantially as it was administered by the English court of chancery.22 Jurisdiction in equitable as well as legal causes is conferred upon the courts of the federal government by the United States constitution. But the federal judicial system did not and does not maintain a separate chancery court. It has seemed wise to allow the common-law judges to administer equitable remedies as well as to dispense strictly legal relief, not discarding the equity procedure nor equity principles, but applying them at stated times when they sit as chancery judges. Thus it will be observed that the same court will at one time be styled the "Circuit Court of the United States," and at others the "Circuit Court of the United States, in Equity." This plan is adopted by about half of the States of the Union.

The abolition of the distinction between actions at law and equitable suits has been brought about in those States which have adopted what is known as the "Code Procedure." Under that system there is allowed ordinarily only one form of action, which applies to every case, whether of a legal or equitable nature. This change usually applies, however, to the remedy merely, and it should by no means be understood that its effect is to abolish the equity system. Most equitable doctrines are applied under the codes as fully as they were in the old English chancery court.2


21. See 16 Cyc. 23, 30. The chancellor began to exercise judicial authority in the reign of Richard II, but it was not until the time of Henry VI that his decisions began to be reported. See 2 Reeves History of the English Law 466, 600.

22. See 16 Cyc. 23, 25.

23. See 16 Cyc. 24-30. Separate courts of chancery exist in the States


of Alabama, Delaware, Maryland, Mississippi, New Jersey, and Tennessee. Equity jurisdiction is exercised by the common-law courts in conformity with chancery rules in Arkansas, Florida, Georgia, Illinois, Iowa, Kentucky, Maine, Massachusetts, Michigan, New Hampshire, North Carolina, Oregon, Pennsylvania, Rhode Island, Texas, Vermont,

§ 36. Specific Character of Equity Jurisdiction. Although the rules of equity depended originally to a large extent upon the sense of justice entertained by the chancellor, at the present time the equity judges are limited in their discretion by a large body of rules and maxims. They are practically as much restricted in their powers as are the judges of the courts of law, although their remedies are of a kind more easily adjustable to the circumstances of particular cases. The larger proportion of equitable cases are those in which property rights are involved. Equity has no jurisdiction whatever in criminal matters. The jurisdiction of the equity courts is said to be, as to some matters, exclusive of common-law jurisdiction, as to others concurrent with it, and as to some merely auxiliary to it.24

This last proposition may seem inconsistent with the principle that equity powers are confined to cases to which the law courts are unable to apply an adequate remedy. But the inconsistency disappears when emphasis is laid upon the fact that the commonlaw remedy must be adequate if the equity courts are to have no jurisdiction. On many matters as those growing out of fraud -both common law and equity may be resorted to, the choice of the suitor depending upon whether he is content with a mere award of damages or feels himself entitled to relief of an equitable character. For example, the common-law courts cannot set aside. a deed because it was fraudulently procured; but equity is able to do this, and in many cases it is the only adequate remedy. This is an example of the concurrent jurisdiction of the equity courts.2


One of the most important examples of the auxiliary jurisdiction is what is called the "perpetuating of the testimony of witnesses." If a witness in an action at law is expected to die before the trial of the cause, or for some other reason will be unable to testify at that time, equity will often lend its aid by taking his testimony at once, in order that injustice may not be done by its absence at the trial. This auxiliary jurisdiction is also sometimes called "assistant jurisdiction."26

Virginia, and West Virginia. The distinction between legal and equitable remedies has been abolished in New York, Missouri, Minnesota, California, Connecticut, Indiana, Ohio, Wisconsin, South Carolina, and other western States. But although in the States last mentioned there are no separate equitable actions, the system of equity is none the less operative. Equitable remedies remain in full force, but are applied in accord

ance with the same procedure as those of common law.


24. See 16 Cyc. 33, 81, 84, 92, 94. The leading subjects which equity has jurisdiction are trusts and trustees, foreclosure of mortgages, accident, mistake, account, specific performance, partition of joint estates, interpleader, and injunctions.

25. See 16 Cyc. 81 et seq.
26. See 13 Cyc. 854, 858.

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