officer constituted by him since time far be yond memory, and is an element in govern ment essential in all states. Had the basic principle of the delegation to the chancellor been recognized, the too frequent expression of regret at the hardship of cases, and the inability to relieve would not exist; the rail ing of the masses at the lack of justice and at the number of cases remediless in the courts would be largely prevented; and our Presi dent would not be required to seek congress men with sufficient backbone to legislate against monopolies. There would be no danger here; men would be equally as cognizant of the law as now, for there is underlying the opinions, the views or the ideas of mankind a common conscience, common principles of right, of justice, and of equity. These are the prac tical rules of human conduct in the major portion of society's daily transactions. Why should the transgression of these principles, the violation of these rules so universally recognized, be without redress merely from •the absence of a legislative or a judicial dec laration? If this notion of stare dccisis had not been prevailed against in the fifteenth century, frauds, breaches of trust, and the violation of contracts in which the award of money damages is not relief would be as remediless in our courts as are the number less wrongs of which our courts refuse cog nizance to-day, and ubi jus ibi remedium would be as impotent in Anglo-Saxon juris prudence as the twentieth century construc tion actually makes it. As to the,chancerial authority to dispense with positive law, the favorable argument is not so strong, and to say the least such authority should be sparingly exercised. This might be considered as part of the general power to do equity and yet no violation would be done the logic of American institu tions or the notions of popular government; for even then the courts' authority would barely approach the absoluteness of the par
doning power recognized by all as resident in the executive; but it may well be laid down that when one department has spoken the other governmental offices should be silent, unless the case is one calling for the applica tion of fundamental principles. Upon this basis and under this theory of the power of courts of equity, precedents would be considered advisory to be applied judiciously under a prudent view of the rule stare dccisis, and the decisions of three cen turies past, whether suited to the present moral or intellectual stature of the race or not, would not -be applied to the mutation of this development. Then the jurisprudence of the Anglo-Saxon wrould keep pace with the development of his science with the prog ress of his institutions, the enlargement of his horizon, the extension of his education, and with the broadening of his views of mor als of right and of equity. Do these thoughts violate the settled theo ries 'by which the maxim "every right has a remedy" is construed? They can do no greater violence to the views of the American jurist or practitioner, be he ever so bound by precedent, than was done the narrow con ceptions of the rule stare decisis entertained by his English 'brethren, when the trust was first recognized or the defence of fraud was first entertained. Traced directly from these models, and with these examples before us, how can it be concluded otherwise than that jurisdiction of the chancellor is equal to righting any wrong irremediable at law, that was the pre rogative of the ancient king and the modern Cadi. Why should civilized nations suffer wrongs to go unredressed more than sav ages? Are our courts inferior to those of our ancestors, or the jurisprudence of the twenti eth century beneath that of the tenth, that we should deny redress for want of prece dent, or prostitute the purposes of govern ment at the behest of formalism? Regarding, then, the example of history,
