connected with coinage; Mr. Attorney-general Denman exempted
forgery from the same penalty in all but two cases, to which
the Lords would not assent; and Mr. Ewart obtained the like
remission for sheep-stealing, and other similar offences. In
1833, the Criminal Law Commission was appointed, to revise the
entire code. … The commissioners recommended numerous other
remissions, which were promptly carried into effect by Lord
John Russell in 1837. Even these remissions, however, fell
short of public opinion, which found expression in an
amendment of Mr. Ewart, for limiting the punishment of death
to the single crime of murder. This proposal was then lost by
a majority of one; but has since, by successive measures, been
accepted by the legislature;—murder alone, and the
exceptional crime of treason, having been reserved for the
last penalty of the law. Great indeed, and rapid, was this
reformation of the criminal code. It was computed that, from
1810 to 1845, upwards of 1,400 persons had suffered death for
crimes, which had since ceased to be capital."
T. E. May,
Constitutional History of England
(Widdleton's edition),
volume 2, pages 557-558.
CRIMINAL LAW: A. D. 1843.
Lord Campbell's Libel Act, and Publisher's Liability.
"In the 'Morning Advertiser' of the 19th of December, 1769,
appeared Junius's celebrated letter to the king. Inflammatory
and seditious, it could not be overlooked; and as the author
was unknown, informations were immediately filed against the
printers and publishers of the letter. But before they were
brought to trial, Almon, the bookseller, was tried for selling
the 'London Museum,' in which the libel was reprinted. His
connection with the publication proved to be so slight that he
escaped with a nominal punishment. Two doctrines, however,
were maintained in this case, which excepted libels from the
general principles of the criminal law. By the first, a
publisher was held criminally answerable for the acts of his
servants, unless proved to be neither privy nor assenting to
the publication of a libel. So long as exculpatory evidence
was admitted, this doctrine was defensible; but judges
afterwards refused to admit such evidence, holding that the
publication of a libel by a publisher's servant was proof of
his criminality. And this monstrous rule of law prevailed
until 1843, when it was condemned by Lord Campbell's Libel
Act."
T. E. May,
Constitutional History of England
(Widdleton's edition),
volume 2, pages 113-114.
"And be it enacted, that whensoever, upon the trial of any
indictment or information for the publication of a libel,
under the plea of not guilty, evidence shall have been given
which shall establish a presumptive case of publication
against the defendant by the act of any other person by his
authority, it shall be competent to such defendant to prove
that such publication was made without his authority, consent,
or knowledge, and that the said publication did not arise from
want of due care or caution on his part."
Statute 6 & 7 Vic., c. 96, s. 7.
CRIMINAL LAW: A. D. 1848.
The English Court of Criminal Appeal.
"England has not yet got her court of Criminal Appeal,
although the Council of Judges, in their belated scheme of
legal reform, recommend the legislature to create one.
Questions whether an action should be dismissed as 'frivolous
or vexatious,' disputes about' security for costs,' and the
'sufficiency of interrogatories' or 'particulars,' and all
manner of trivial causes affecting property or status, are
deemed by the law of England sufficiently important to entitle
the parties to them, if dissatisfied with the finding of a
court of first instance, to submit it to the touchstone of an
appeal. But the lives and liberties of British subjects
charged with the commission of criminal offences are in
general disposed of irrevocably by the verdict of a jury,
guided by the directions of a trial judge. To this rule,
however, there are two leading exceptions. In the first place,
any convicted prisoner may petition the sovereign for a
pardon, or for the commutation of his sentence; and the royal
prerogative of mercy is exercised through, and on the advice
of the Secretary of State for the Home Department. In the
second place, the English machine juridical notwithstanding
its lack of a properly constituted Court of Criminal Appeal,
is furnished with a kind of 'mechanical equivalent' therefor,
in the 'Court for Crown Cases Reserved,' which was established
by act of Parliament in 1848 (11 & 12 Vict. c. 78)."
The English Court of Criminal Appeal
(The Green Bag, volume 5, page 345).
CRIMINAL LAW: A. D. 1854.
Conflict between United States Constitution and a Treaty.
"About 1854, M. Dillon, French consul at San Francisco,
refused to appear and testify in a criminal case. The
Constitution of the United States (Amendment VI.), in criminal
cases grants accused persons compulsory process for obtaining
witnesses, while our treaties of 1853, with France (Art. II.)
says that consuls 'shall never be compelled to appear as
witnesses before the courts.' Thus there was a conflict
between the Constitution and the treaty, and it was held that
the treaty was void. After a long correspondence the French
Consuls were directed to obey a subpoena in future."
Theodore D. Woolsey,
Introduction to the Study of International Law
[6th edition],
page 157, note.
CRIMINAL LAW: A. D. 1877.
"Indeterminate Sentences."
"This practice, so far as the committee can ascertain, has
been adopted in the states of New York and Ohio only. … The
Ohio statute has been taken mainly from that which was adopted
in New York, April 12, 1877."
Report of Committee on Judicial Administrations, and
Remedial Procedure
(9 American Bar Association Report, page 313).
CRIMINAL LAW: A. D. 1893.
Criminal Jurisdiction of Federal Courts.
"The Supreme Court of the United States, in United States v.
Rodgers, … 150 U. S., … in declaring that the term 'high
seas' in the criminal law of the United States is applicable
as well to the open waters of the great lakes as to the open
waters of the ocean, may be said, in a just sense, not to have
changed the law, but to have asserted the law to be in force
upon a vast domain over which its jurisdiction was heretofore
in doubt. The opinion of Justice Field will take its place in
our jurisprudence in company with the great cases of the
Genesee Chief, 12 How. (U. S.), 443, and its successors, and
with them marks the self adapting capacity of the judicial
power to meet the great exigencies of justice and good
government."
University Law Review,
volume 1, page 2.
----------CRIMINAL LAW: End----------
----------ECCLESIASTICAL LAW: Start--------
{1987}
ECCLESIASTICAL LAW: A. D. 449-1066.
No distinction between Lay and Ecclesiastical Jurisdiction.
"In the time of our Saxon ancestors, there was no sort of
distinction between the lay and the ecclesiastical
jurisdiction: the county court was as much a spiritual as a
temporal tribunal; the rights of the church were ascertained
and asserted at the same time, and by the same judges, as the
rights of the laity. For this purpose the bishop of the
diocese, and the alderman, or, in his absence, the sheriff of
the county, used to sit together in the county court, and had
there the cognizance of all causes, as well ecclesiastical as
civil: a superior deference being paid to the bishop's opinion
in spiritual matters, and to that of the lay judges in temporal.
W. Blackstone,
Commentaries,
book 3, page 61.
ECCLESIASTICAL LAW: A. D. 1066-1087.
Separation of Ecclesiastical from Civil Courts.
"William I. (whose title was warmly espoused by the
monasteries, which he liberally endowed, and by the foreign
clergy whom he brought over in shoals from France and Italy,
and planted in the best preferments of the English church),
was at length prevailed upon to … separate the
ecclesiastical court from the civil: whether actuated by
principles of bigotry, or by those of a more refined policy,
in order to discountenance the laws of King Edward, abounding
with the spirit of Saxon liberty, is not altogether certain.
But the latter, if not the cause, was undoubtedly the
consequence, of this separation: for the Saxon laws were soon
overborne by the Norman justiciaries, when the county court
fell into disregard by the bishop's withdrawing his presence,
in obedience to the charter of the conqueror; which prohibited
any spiritual cause from being tried in the secular courts,
and commanded the suitors to appear before the bishop only,
whose decisions were directed to conform to the canon law."
W. Blackstone,
Commentaries,
book 3, pages 62-63.
"The most important ecclesiastical measure of the reign, the
separation of the church jurisdiction from the secular
business of the courts of law, is unfortunately, like all
other charters of the time, undated. Its contents however show
the influence of the ideas which under the genius of
Hildebrand were forming the character of the continental
churches. From henceforth the bishops and archdeacons are no
longer to hold ecclesiastical pleas in the hundred-court, but
to have courts of their own; to try causes by canonical, not
by customary law, and allow no spiritual questions to come
before laymen as judges. In case of contumacy the offender may
be excommunicated and the king and sheriff will enforce the
punishment. In the same way laymen are forbidden to interfere
in spiritual causes. The reform is one which might very
naturally recommend itself to a man like Lanfranc."
W. Stubbs,
Constitutional History of England,
volume 1, section 101.
ECCLESIASTICAL LAW: A. D. 1100.
Reunion of Civil and Ecclesiastical Courts.
"King Henry the First, at his accession, among other
restorations of the laws of King Edward the Confessor, revived
this of the union of the civil and ecclesiastical courts. …
This, however, was ill-relished by the popish clergy,… and,
therefore, in their synod at Westminster, 3 Hen. I., they
ordained that no bishop should attend the discussion of
temporal causes; which soon dissolved this newly effected
union."
W. Blackstone,
Commentaries, book 3, page 63.
ECCLESIASTICAL LAW: A. D. 1135.
Final Separation of Civil and Ecclesiastical Courts.
"And when, upon the death of King Henry the First, the usurper
Stephen was brought in and supported by the clergy, we find
one article of the oath which they imposed upon him was, that
ecclesiastical persons and ecclesiastical causes should be
subject only to the bishop's jurisdiction. And as it was about
that time that the contest and emulation began between the
laws of England and those of Rome, the temporal courts
adhering to the former, and the spiritual adopting the latter
as their rule of proceeding, this widened the breach between
them, and made a coalition afterwards impracticable; which
probably would else have been effected at the general
reformation of the church."
W. Blackstone,
Commentaries,
book 3, page 64.
ECCLESIASTICAL LAW: A. D. 1285.
Temporal Courts assume Jurisdiction of Defamation.
"To the Spiritual Court appears also to have belonged the
punishment of defamation until the rise of actions on the
case, when the temporal courts assumed jurisdiction, though
not, it seems, to the exclusion of punishment by the church.
The punishment of usurers, cleric and lay, also belonged to
the ecclesiastical judges, though their movables were
confiscated to the king, unless the usurer 'vita comite digne
poenituerit, et testamento condito quae legare decreverit a se
prorsus alienaverit.' That is, it seems, the personal
punishment was inflicted by the Ecclesiastical Court, but the
confiscation of goods (when proper) was decreed by the King's
Court."
Melville M. Bigelow,
History of Procedure,
page 51.
ECCLESIASTICAL LAW: A. D. 1857-1859.
Ecclesiastical Courts deprived of Matrimonial and Testamentary
Causes.
"Matrimonial causes, or injuries respecting the rights of
marriage, are another … branch of the ecclesiastical
jurisdiction. Though, if we consider marriages in the light of
mere civil contracts, they do not seem to be properly of
spiritual cognizance. But the Romanists having very early
converted this contract into a holy sacramental ordinance, the
church of course took it under her protection,' upon the
division of the two jurisdictions. … One might … wonder,
that the same authority, which enjoined the strictest celibacy
to the priesthood, should think them the proper judges in
causes between man and wife. These causes, indeed, partly from
the nature of the injuries complained of, and partly from the
clerical method of treating them, soon became too gross for
the modesty of a lay tribunal. … Spiritual jurisdiction of
testamentary causes is a peculiar constitution of this island;
for in almost all other (even in popish) countries all matters
testamentary are under the jurisdiction of the civil
magistrate. And that this privilege is enjoyed by the clergy
in England, not as a matter of ecclesiastical right, but by
the special favor and indulgence of the municipal law, and as
it should seem by some public act of the great council, is
freely acknowledged by Lindewode, the ablest canonist of the
fifteenth century. Testamentary causes, he observes, belong to
the ecclesiastical courts 'de consuetudine Angliae, et super
consensu regio et suorum procerum in talibus ab antiquo
concesso.'"
W. Blackstone,
Commentaries,
book 3, pages 91-95.
{1988}
Jurisdiction in testamentary causes was taken away from the
ecclesiastical courts by Statutes 20 and 21 Vic., c. 77 and 21
and 22 Vic., chapters 56 and 95, and was transferred to the
court of Probate. Jurisdiction in matrimonial causes was
transferred to the Divorce Court by Statute 20 and 21 Vic., 85.
----------ECCLESIASTICAL LAW: End--------
----------EQUITY: Start--------
Equity.
EQUITY: A. D. 449-1066.
Early Masters in Chancery.
"As we approach the era of the Conquest, we find distinct
traces of the Masters in Chancery, who, though in sacred
orders, were well trained in jurisprudence, and assisted the
chancellor in preparing writs and grants, as well as in the
service of the royal chapel. They formed a sort of college of
justice, of which he was the head. They all sate in the
Wittenagemote, and, as 'Law Lords', are supposed to have had
great weight in the deliberations of that assembly."
Lord Campbell,
Lives of the Chancellors,
volume 1, page 53.
EQUITY: A. D. 596.
Chancellor, Keeper of the Great Seal.
"From the conversion of the Anglo-Saxons to Christianity by
the preaching of St. Augustine, the King always had near his
person a priest, to whom was entrusted the care of his chapel,
and who was his confessor. This person, selected from the most
learned and able of his order, and greatly superior in
accomplishments to the unlettered laymen attending the Court,
soon acted as private secretary to the King, and gained his
confidence in affairs of state. The present demarcation
between civil and ecclesiastical employments was then little
regarded, and to this same person was assigned the business of
superintending writs and grants, with the custody of the great
seal."
Lord Campbell,
Lives of the Chancellors,
volume 1, page 27.
EQUITY: A. D. 1066.
Master of the Rolls.
"The office of master, formerly called the Clerk or Keeper of
the Rolls, is recognized at this early period, though at this
time he appears to have been the Chancellor's deputy, not an
independent officer."
Geo. Spence,
Equity Jurisdiction of the Court of Chancery,
volume 1, page 100.
EQUITY: A. D. 1066-1154.
Chancellor as Secretary of State.
Under the Norman Kings, the Chancellor was a kind of secretary
of state. His functions were political rather than judicial.
He attended to the royal correspondence, kept the royal
accounts, and drew up writs for the administration of justice.
He was also the keeper of the seal.
Montague's Elements of Constitutional History of England,
page 27.
See, also, CHANCELLOR.
A. D. 1067.
First Lord Chancellor.
"The first keeper of the seals who was endowed with the title
of Lord Chancellor was Maurice, who received the great seal in
1067. The incumbents of the office were for a long period
ecclesiastics; and they usually enjoyed episcopal or
archiepiscopal rank, and lived in the London palaces attached
to their sees or provinces. The first Keeper of the seals of
England was Fitzgilbert, appointed by Queen Matilda soon after
her coronation, and there was no other layman appointed until
the reign of Edward III."
L. J. Bigelow,
Bench and Bar,
page 23.
EQUITY: A. D. 1169.
Uses and Trusts.
"According to the law of England, trusts may be created 'inter
vivos' as well as by testament, and their history is a curious
one, beginning, like that of the Roman 'fidei commissa,' with
an attempt to evade the law. The Statutes of Mortmain, passed
to prevent the alienation of lands to religious houses, led to
the introduction of 'uses,' by which the grantor alienated his
land to a friend to hold 'to the use' of a monastery, the
clerical chancellors giving legal validity to the wish thus
expressed. Although this particular device was put a stop to
by 15 Ric. II. c. 5, 'uses' continued to be employed for other
purposes, having been found more malleable than what was
called, by way of contrast, 'the legal estate.' They offered
indeed so many modes of escaping the rigour of the law, that,
after several other statutes had been passed with a view of
curtailing their advantages, the 27 Hen. VIII. c. 10 enacted
that, where anyone was seised to a use, the legal estate
should be deemed to be in him to whose use he was seised. The
statute did not apply to trusts of personal property, nor to
trusts of land where any active duty was cast upon the
trustee, nor where a use was limited 'upon a use,' i. e. where
the person in whose favour a use was created was himself to
hold the estate to the use of some one else. There continued
therefore to be a number of cases in which, in spite of the
'Statute of Uses,' the Court of Chancery was able to carry out
its policy of enforcing what had otherwise been merely moral
duties. The system thus arising has grown to enormous
dimensions, and trusts, which, according to the definition of
Lord Hardwicke, are 'such a confidence between parties that no
action at law will lie, but there is merely a case for the
consideration of courts of equity,' are inserted not only in
wills, but also in marriage settlements, arrangements with
creditors, and numberless other instruments necessary for the
comfort of families and the development of commerce."
T. E. Holland,
Elements of Jurisprudence, 5th edition,
page 217.
EQUITY: A. D. 1253.
A Lady Keeper of the Seals.
"Having occasion to cross the sea and visit Gascony, A. D.
1253, Henry III. made her [Queen Eleanor] keeper of the seal
during his absence, and in that character she in her own
person presided in the 'Aula Regia,' hearing causes, and, it
is to be feared, forming her decisions less in accordance with
justice than her own private interests. Never did judge set
law and equity more fearfully at naught."
L. J. Bigelow,
Bench and Bar,
page 28.
EQUITY: A. D. 1258.
No Writs except De Cursu.
"In the year 1258 the Provisions of Oxford were promulgated;
two separate clauses of which bound the chancellor to issue no
more writs except writs 'of course' without command of the
King and his Council present with him. This, with the growing
independence of the judiciary on the one hand, and the
settlement of legal process on the other, terminated the right
to issue special writs, and at last fixed the common writs in
unchangeable form; most of which had by this time become
developed into the final form in which for six centuries they
were treated as precedents of declaration."
M. M. Bigelow,
History of Procedure,
page 197.
EQUITY: A. D. 1272-1307.
The Chancellor's functions.
"In the reign of Edward I. the Chancellor begins to appear in
the three characters in which we now know him; as a great
political officer, as the head of a department for the issue
of writs and the custody of documents in which the King's
interest is concerned, as the administrator of the King's
grace."
Sir William H. Anson,
Law and Custom of the Constitution,
part 2, page 146.
{1989}
EQUITY: A. D. 1330.
Chancery stationary at Westminster.
"There was likewise introduced about this time a great
improvement in the administration of justice, by rendering the
Court of Chancery stationary at Westminster. The ancient kings
of England were constantly migrating,—one principal reason
for which was, that the same part of the country, even with
the aid of purveyance and pre-emption, could not long support
the court and all the royal retainers, and render in kind due
to the King could be best consumed on the spot. Therefore, if
he kept Christmas at Westminster, he would keep Easter at
Winchester, and Pentecost at Gloucester, visiting his many
palaces and manors in rotation. The Aula Regis, and afterwards
the courts into which it was partitioned, were ambulatory
along with him—to the great vexation of the suitors. This
grievance was partly corrected by Magna Charta, which enacted
that the Court of Common Pleas should be held 'in a certain
place,'—a corner of Westminster Hall being fixed upon for
that purpose. In point of law, the Court of King's Bench and
the Court of Chancery may still be held in any county of
England,—'wheresoever in England the King or the Chancellor
may be.' Down to the commencement of the reign of Edward III.,
the King's Bench and the Chancery actually had continued to
follow the King's person, the Chancellor and his officers
being entitled to part of the purveyance made for the royal
household. By 28 Edw. 1., c. 5, the Lord Chancellor and the
Justices of the King's Bench were ordered to follow the King,
so that he might have at all times near him sages of the law
able to order all matters which should come to the Court. But
the two Courts were now by the King's command fixed in the
places where, unless on a few extraordinary occasions, they
continued to be held down to our own times, at the upper end
of Westminster Hall, the King's Bench on the left hand, and
the Chancery on the right, both remaining open to the Hall,
and a bar erected to keep off the multitude from pressing on
the judges."
Lord Campbell,
Lives of the Chancellors,
volume 1, page 181.
EQUITY: A. D. 1348.
"Matters of Grace" committed to the Chancellor.
"In the 22nd year of Edward III, matters which were of grace
were definitely committed to the Chancellor for decision, and
from this point there begins to develop that body of
rules—supplementing the deficiencies or correcting the
harshness of the Common Law—which we call Equity."
Sir W. R. Anson,
Law and Custom of the Constitution,
part 2, page 147.
ALSO IN:
Kerly's History of the Court of Chancery,
page 31.
EQUITY: A. D. 1383.
Early Instance of Subpoena.
"It is said that John Waltham, Bishop of Salisbury, who was
Keeper of the Rolls about the 5th of Richard II., considerably
enlarged this new jurisdiction; that, to give efficacy to it,
he invented, or more properly, was the first who adopted in
that court, the writ of subpoena, a process which had before
been used by the council, and is very plainly alluded to in
the statutes of the last reign, though not under that name.
This writ summoned the party to appear under a penalty, and
answer such things as should be objected against him; upon
this a petition was lodged, containing the articles of
complaint to which he was then compelled to answer. These
articles used to contain suggestions of injuries suffered, for
which no remedy was to be had in the courts of common law, and
therefore the complainant prayed advice and relief of the
chancellor."
J. Reeves,
History English Law (Finlason's edition),
volume 3, page 384.
EQUITY: A. D. 1394.
Chancery with its own Mode of Procedure.
"From the time of passing the stat. 17 Richard II. we may
consider that the Court of Chancery was established as a
distinct and permanent court, having separate jurisdiction,
with its own peculiar mode of procedure similar to that which
had prevailed in the Council, though perhaps it was not wholly
yet separated from the Council."
George Spence,
Equity Jurisdiction of the Court of Chancery,
volume 1, page 345.
EQUITY: A. D. 1422.
Chancery Cases appear in Year Books.
"It is beyond a doubt that this [chancery] court had begun to
exercise its judicial authority in the reigns of Richard II.,
Henry IV. and V. … But we do not find in our books any
report of cases there determined till 37 Henry VI., except
only on the subject of uses; which, as has been before
remarked, might give rise to the opinion, that the first
equitable judicature was concerned in the support of uses."
J. Reeves,
History English Law (Finlason's edition),
volume 3, page 553.
EQUITY: A. D. 1443.
No distinction between Examination and Answer.
The earliest record of written answers is in 21 Henry VI.
Before that time little, if any, distinction was made
between the examination and the answer.
Kerly,
History of Courts of Chancery,
page 51.
EQUITY: A. D. 1461-1483.
Distinction between Proceeding by Bill and by Petition.
"A written statement of the grievance being required to be
filed before the issuing of the subpoena, with security to pay
damages and costs,—bills now acquired form, and the
distinction arose between the proceeding by bill and by
petition. The same regularity was observed in the subsequent
stages of the suit. Whereas formerly the defendant was
generally examined viva voce when he appeared in obedience to
the subpoena, the practice now was to put in a written answer,
commencing with a protestation against the truth or
sufficiency of the matters contained in the bill, stating the
facts relied upon by the defendant, and concluding with a
prayer that he may be dismissed, with his costs. There were
likewise, for the purpose of introducing new facts, special
replications and rejoinders, which continued till the reign of
Elizabeth, but which have been rendered unnecessary by the
modern practice of amending the bill and answer. Pleas and
demurrers now appear. Although the pleadings were in English,
the decrees on the bill continued to be in Latin down to the
reign of Henry VIII. Bills to perpetuate testimony, to set out
metes and bounds, and for injunctions against proceedings at
law, and to stay waste, became frequent."
Lord Campbell,
Lives of the Chancellors,
volume 1, page 309.
{1990}
EQUITY: A. D. 1461-1483.
Jurisdiction of Chancery over Trusts.
"The equitable jurisdiction of the Court of Chancery may be
considered as making its greatest advances in this reign
[Edw. IV.]. The point was now settled, that there being a
feoffment to uses, the 'cestui que' use, or person
beneficially entitled, could maintain no action at law, the
Judges saying that he had neither 'jus in re' nor 'jus ad
rem,' and that their forms could not be moulded so as to
afford him any effectual relief, either as to the land or the
profits. The Chancellors, therefore, with general applause,
declared that they would proceed by subpoena against the
feoffee to compel him to perform a duty which in conscience
was binding upon him, and gradually extended the remedy
against his heir and against his alienee with notice of the
trust, although they held, as their successors have done, that
the purchaser of the legal estate for valuable consideration
without notice might retain the land for his own benefit. They
therefore now freely made decrees requiring the trustee to
convey according to the directions of the 'cestui que trust,'
or person beneficially interested; and the most important
branch of the equitable jurisdiction of the Court over trusts
was firmly and irrevocably established."
Lord Campbell,
Lives of the Chancellors,
volume 1, page 309.
EQUITY: A. D. 1538.
Lord Keeper of the Great Seal.
"Between the death, resignation, or removal of one chancellor,
and the appointment of another, the Great Seal, instead of
remaining in the personal custody of the Sovereign, was
sometimes entrusted to a temporal keeper, either with limited
authority (as only to seal writs), or with all the powers,
though not with the rank of Chancellor. At last the practice
grew up of occasionally appointing a person to hold the Great
Seal with the title of 'Keeper,' where it was meant that he
should permanently hold it in his own right and discharge all
the duties belonging to it. Queen Elizabeth, ever sparing in
the conferring of dignities, having given the Great Seal with
the title of 'Keeper' to Sir Nicholas Bacon, objections were
made to the legality of some of his acts,—and to obviate
these, a statute was passed declaring that 'the Lord Keeper of
the Great Seal for the time being shall have the same place,
pre-eminence, and jurisdiction as the Lord Chancellor of
England.' Since then there never have been a Chancellor and
Keeper of the Great Seal concurrently, and the only difference
between the two titles is, that the one is more sounding than
the other, and is regarded as a higher mark of royal favor."
Lord Campbell,
Lives of the Chancellors,
volume 1, page 40.
ALSO IN:
Sir W. R. Anson,
Law and Custom of the Constitution,
volume 2, page 150.
EQUITY: A. D. 1558.
Increase of Business in the Court of Chancery.
"The business of the Court of Chancery had now so much
increased that to dispose of it satisfactorily required a
Judge regularly trained to the profession of the law, and
willing to devote to it all his energy and industry. The
Statute of Wills, the Statute of Uses, the new modes of
conveyancing introduced for avoiding transmutation of
possession, the questions which arose respecting the property
of the dissolved monasteries, and the great increase of
commerce and wealth in the nation, brought such a number of
important suits into the Court of Chancery, that the holder of
the Great Seal could no longer satisfy the public by
occasionally stealing a few hours from his political
occupations, to dispose of bills and petitions, and not only
was his daily attendance demanded in Westminster Hall during
term time, but it was necessary that he should sit, for a
portion of each vacation, either at his own house, or in some
convenient place appointed by him for clearing off his
arrears."
Lord Campbell,
Lives of the Chancellors,
volume 2, page 95.
EQUITY: A. D. 1567-1632.
Actions of Assumpsit in Equity.
"The late development of the implied contract to pay 'quantum
meruit,' and to indemnify a surety, would be the more
surprising, but for the fact that Equity gave relief to
tailors and the like, and to sureties long before the common
law held them. Spence, although at a loss to account for the
jurisdiction, mentions a suit brought in Chancery, in 1567, by
a tailor, to recover the amount due for clothes furnished. The
suit was referred to the Queen's tailor, to ascertain the
amount due, and upon his report a decree was made. The learned
writer adds that 'there were suits for wages and many others
of like nature.' A surety who had no counter-bond filed a bill
against his principal in 1632, in a case which would seem to
have been one of the earliest of the kind, for the reporter,
after stating that there was a decree for the plaintiff, adds
'quod nota.'"
J. B. Ames,
History of Assumpsit
(Harvard Law Review,
volume 2, pages 59-60).
EQUITY: A. D. 1592.
All Chancellors, save one, Lawyers.
"No regular judicial system at that time prevailed in the
court; but the suitor when he thought himself aggrieved, found
a desultory and uncertain remedy, according to the private
opinion of the chancellor, who was generally an ecclesiastic,
or sometimes (though rarely) a statesman: no lawyer having sat
in the court of chancery from the times of the chief justices
Thorpe and Knyvet, successively chancellors to King Edward
III. in 1372 and 1373, to the promotion of Sir Thomas More by
King Henry VIII., in 1530. After which the great seal was
indiscriminately committed to the custody of lawyers or
courtiers, or churchmen, according as the convenience of the
times and the disposition of the prince required, till
Sargeant Puckering was made lord keeper in 1592; from which
time to the present the court of chancery has always been
filled by a lawyer, excepting the interval from 1621 to 1625,
when the seal was entrusted to Dr. Williams, then dean of
Westminster, but afterwards bishop of Lincoln; who had been
chaplain to Lord Ellesmere when chancellor."
W. Blackstone,
Commentaries,
book 3, chapter 4.
EQUITY: A. D. 1595.
Injunctions against Suits at Law.
Opposition of common law courts.
"The strongest inclination was shown to maintain this
opposition to the court of equity, not only by the courts, but
by the legislature. The stat. 27 Elizabeth, c, l., which, in
very general words, restrains all application to other
jurisdictions to impeach or impede the execution of judgments
given in the king's courts, under penalty of a praemunire, has
been interpreted, as well as stat. Richard II., c. 5, not only
as imposing a restraint upon popish claims of judicature, but
also of the equitable jurisdiction in Chancery; and in the
thirty-first and thirty-second years of this reign, a
counsellor-at-law was indicted in the King's Bench on the
statute of praemunire, for exhibiting a bill in Chancery after
judgment had gone against his client in the King's Bench.
Under this and the like control, the Court of Chancery still
continued to extend its authority, supported, in some degree,
by the momentum it acquired in the time of Cardinal Wolsey."
J. Reeves,
History English Law (Finlason's edition.),
volume 5, pages 386-387.
{1991}
EQUITY: A. D. 1596.
Lord Ellesmere and his Decisions.
Kerly says the earliest chancellors' decisions that have come
down to us are those of Lord Ellesmere. He was the first
chancellor to establish equity upon the basis of precedents.
But compare Reeves (Finlason's), History English Law, volume
3, page 553, who mentions decisions in the Year Books.
Kerly,
History of the Court of Chancery,
page 98.
EQUITY: A. D. 1601.
Cy Pres Doctrine.
"There is no trace of the doctrine being put into practice in
England before the Reformation, although in the earliest
reported cases where it has been applied it is treated as a
well recognized rule, and as one owing its origin to the
traditional favour with which charities had always been
regarded. Much of the obscurity which covers the introduction
of the doctrine into our Law may perhaps be explained by the
fact that, in the earliest times, purely charitable gifts, as
they would now be understood, were almost unknown. The piety
of donors was most generally displayed in gifts to religious
houses, and the application of the subject matter of such
gifts was exclusively in the Superiors of the different
Orders, and entirely exempt from secular control. From the
religious houses the administration of charitable gifts passed
to the Chancellor, as keeper of the King's conscience, the
latter having as 'parens patriae' the general superintendence
of all infants, idiots, lunatics and charities. And it was not
until some time later that this jurisdiction became gradually
merged, and then only in cases where trusts were interposed,
in the general jurisdiction of the Chancery Courts. It is not
necessary to go into the long vexed question as to when that
actually took place. It is enough to say that it is now pretty
conclusively established that the jurisdiction of the Chancery
Courts over charitable trusts existed anterior to, and
independently of, the Statute of Charitable Uses, 43 Eliz., c.
4. As charitable gifts generally involved the existence of a
trust reposed in some one, it was natural that the Chancery
Court, which assumed jurisdiction over trusts, should have
gradually extended that jurisdiction over charities generally;
but the origin of the power, that it was one delegated by the
Crown to the Chancellor, must not be lost sight of, as in this
way, probably, can be best explained the curious distinct
jurisdictions vested in the Crown and the Chancery Courts
respectively to apply gifts Cy pres, the limits of which,
though long uncertain, were finally determined by Lord Eldon
in the celebrated case of Moggridge v. Thackwell, 7 ves. 69.
If we remember that the original jurisdiction in all
charitable matters was in the Crown, and that even after the
Chancery Courts acquired a jurisdiction over trusts, there was
still a class of cases untouched by such jurisdiction, we
shall better understand how the prerogative of the Crown still
remained in a certain class of cases, as we shall see
hereafter. However this may be, there is no doubt that when
the Chancery Courts obtained the jurisdiction over the
charities, which they have never lost, the liberal principles
of the Civil or Canon Law as to the carrying out of such gifts
were the sources and inspirations of their decisions. And
hence the Cy pres doctrine became gradually well recognised,
though the mode of its application has varied from time to
time. Perhaps the most striking instances of this liberal
construction are to be found in the series of cases which, by
a very strained interpretation of the Statute of Elizabeth
with regard to charitable uses, decided that gifts to such
uses in favour of corporations, which could not take by devise
under the old Wills Act, 32 Hen. VIII., c. 1, were good as
operating in the nature of an appointment of the trust in
equity, and that the intendment of the statute being in favour
of charitable gifts, all deficiencies of assurance were to be
supplied by the Courts. Although, historically, there may be
no connection between the power of the King over the
administration of charities, and the dispensing power reserved
to him by the earlier Mortmain Acts, the one being, as we have
seen, a right of Prerogative, the other a Feudal right in his
capacity as ultimate Lord of the fee, it is perhaps not wholly
out of place to allude shortly to the latter, particularly as
the two appear not to have been kept distinct in later times.
By the earlier Mortmain Acts, the dispensing power of the
King, as Lord Paramount, to waive forfeitures under these Acts
was recognised, and gifts of land to religious or charitable
corporations were made not 'ipso facto' void, but only
voidable at the instance of the immediate Lord, or, on his
default, of the King and after the statute 'quia emptores,'
which practically abolished mesne seignories, the Royal
license became in most cases sufficient to secure the validity
of the gift. The power of suspending statutes being declared
illegal at the Revolution, it was deemed prudent, seeing that
the grant of licenses in Mortmain imported an exercise of such
suspending power, to give these licenses a Parliamentary
sanction; and accordingly, by 7 and 8 William III., c. 37, it
was declared that the King might grant licenses to aliens in
Mortmain, and also to purchase, acquire, and hold lands in
Mortmain in perpetuity without pain of forfeiture. The right
of the mesne lord was thus passed over, and the dispensing
power of the Crown, from being originally a Feudal right,
became converted practically into one of Prerogative. The
celebrated Statute of 1 Edward VI., c. 14, against
superstitious uses, which is perhaps the earliest statutory
recognition of the Cy pres doctrine, points also strongly to
the original jurisdiction in these matters being in the King."
The author proceeds to trace at some length the subsequent
developments of the doctrine both judicial and statutory. The
doctrine is not generally recognised in the United States.
H. L. Manby
in Law Magazine & Review, 4th ser.,
volume 15 (London, 1889-90), page 203.
EQUITY: A. D. 1603-1625.
Equity and the Construction of Wills.
"After a violent struggle between Lord Coke and Lord
Ellesmere, the jurisdiction of the Court of Chancery to stay
by injunction execution on judgments at law was finally
established. In this reign [James I.] the Court made another
attempt,—which was speedily abandoned,—to determine upon the
validity of wills,—and it has been long settled that the
validity of wills of real property shall be referred to courts
of law, and the validity of wills of personal property to the
Ecclesiastical Courts,—equity only putting a construction
upon them when their validity has been established."
Lord Campbell,
Lives of the Chancellors,
volume 2, page 386.
EQUITY: A. D. 1612.
Right of Redemption.
The right to redeem after the day dates from the reign of
James I. From the time of Edward IV. (1461-83) a mortgagor
could redeem after the day if accident, or a collateral
agreement, or fraud by mortgagee, prevented payment.
Kerly,
History of the Court of Chancery,
page 143.
{1992}
EQUITY: A. D. 1616.
Contest between Equity and Common-Law Courts.
"In the time of Lord Ellesmere (A. D. 1616) arose that notable
dispute between the courts of law and equity, set on foot by
Sir Edward Coke, then chief justice of the court of king's
bench; whether a court of equity could give relief after or
against a judgment at the common law? This contest was so
warmly carried on, that indictments were preferred against the
suitors, the solicitors, the counsel, and even a master in
chancery, for having incurred a 'praemunire,' by questioning
in a court of equity a judgment in the court of king's bench,
obtained by a gross fraud and imposition. This matter being
brought before the king, was by him referred to his learned
counsel for their advice and opinion; who reported so strongly
in favor of the courts of equity, that his majesty gave
judgment in their behalf."
W. Blackstone,
Commentaries,
book 3, page 54.
EQUITY: A. D. 1616.
Relief against judgments at law.
"This was in 1616, the year of the memorable contest between
Lord Coke and Lord Ellesmere as to the power of equity to
restrain the execution of common-law judgment obtained by
fraud. … The right of equity to enforce specific
performance, where damages at law would be an inadequate
remedy, has never since been questioned."
J. B. Ames,
Specific Performance of Contracts
(The Green Bag, volume 1, page 27).
EQUITY: A. D. 1671.
The Doctrine of Tacking established.
"It is the established doctrine in the English law, that if
there be three mortgages in succession, and all duly
registered, or a mortgage, and then a judgment, and then a
second mortgage upon the estate, the junior mortgagee may
purchase in the first mortgage, and tack it to his mortgage,
and by that contrivance 'squeeze out' the middle mortgage, and
gain preference over it. The same rule would apply if the
first, as well as the second incumbrance, was a judgment; but
the incumbrancer who tacks must always be a mortgagee, for he
stands in the light of a bona fide purchaser, parting with his
money upon the security of the mortgage. … In the English
law, the rule is under some reasonable qualification. The last
mortgagee cannot tack, if, when he took his mortgage, he had
notice in fact … of the intervening incumbrance. … The
English doctrine of tacking was first solemnly established in
Marsh v. Lee [2 Vent. 337], under the assistance of Sir
Matthew Hale, who compared the operation to a plank in
shipwreck gained by the last mortgagee; and the subject was
afterwards very fully and accurately expounded by the Master
of the Rolls, in Brace v. Duchess of Marlborough [2 P. Wms.
491]."
J. Kent,
Commentaries,
part 6, lecture 58.
EQUITY: A. D. 1702-1714.
Equitable conversion.
"He [Lord Harcourt] first established the important doctrine,
that if money is directed either by deed or will to be laid
out in land, the money shall be taken to be land, even as to
collateral heirs."
Lord Campbell,
Lives of the Chancellors,
volume 4, page 374.
EQUITY: A. D. 1736-1756.
Lord Hardwicke developed System of Precedents.
It was under Lord Hardwicke that the jurisdiction of Equity
was fully developed. During the twenty years of his
chancellorship the great branches of equitable jurisdiction
were laid out, and his decisions were regularly cited as
authority until after Lord Eldon's time.
Kerly,
History of the Court of Chancery,
pages 175-177.
EQUITY: A. D. 1742.
Control of Corporations.
"That the directors of a corporation shall manage its affairs
honestly and carefully is primarily a right of the corporation
itself rather than of the individual stockholders. … The
only authority before the present century is the case of the
Charitable Corporation v. Sutton, decided by Lord Hardwicke [2
Atk. 400]. But this case is the basis … of all subsequent
decisions on the point, and it is still quoted as containing
an accurate exposition of the law. The corporation was
charitable only in name, being a joint-stock corporation for
lending money on pledges. By the fraud of some of the
directors … , and by the negligence of the rest, loans were
made without proper security. The bill was against the
directors and other officers, 'to have a satisfaction for a
breach of trust, fraud, and mismanagement.' Lord Hardwicke
granted the relief prayed, and a part of his decision is well
worth quoting. He says: 'Committee-men are most properly
agents to those who employ them in this trust, and who empower
them to direct and superintend the affairs of the corporation.
In this respect they may be guilty of acts of commission or
omission, of malfeasance or nonfeasance. … Nor will I ever
determine that a court of equity cannot lay hold of every
breach of trust, let the person be guilty of it either in a
private or public capacity.'"
S. Williston,
History of the Law of Business
(Harvard Law Review,
volume 2, page 158-159).
EQUITY: A. D. 1782.
Demurrer to Bill of Discovery.
"Originally, it appears not to have been contemplated that a
demurrer or plea would lie to a bill for discovery, unless it
were a demurrer or plea to the nature of the discovery sought
or to the jurisdiction of the court, e. g., a plea of purchase
for value; and, though it was a result of this doctrine that
plaintiffs might compel discovery to which they were not
entitled, it seems to have been supposed that they were not
likely to do so to any injurious effect, since they must do it
at their own expense. But this view was afterwards abandoned,
and in 1782 it was decided that, if a bill of discovery in aid
of an action at law stated no good cause of action against the
defendant, it might be demurred to on that ground, i. e., that
it showed on its face no right to relief at law, and,
therefore, no right to discovery in equity. Three years later
in Hindman v. Taylor, the question was raised whether a
defendant could protect himself for answering a bill for
discovery by setting up an affirmative defence by plea; and,
though Lord Thurlow decided the question in the negative, his
decision has since been overruled; and it is now fully settled
that any defence may be set up to a bill for discovery by
demurrer or plea, the same as to a bill for relief; and, if
successful, it will protect the defendant from answering."
C. C. Langdell,
Summary of Equity Pleading,
pages 204-205.
{1993}
EQUITY: A. D. 1786.
Injunction after Decree to pay Proceeds of Estate into Court.
"As soon as a decree is made … , under which the executor
will be required to pay the proceeds of the whole estate into
court, an injunction ought to be granted against the
enforcement of any claim against the estate by an action at
law; and accordingly such has been the established rule for
more than a hundred years. … The first injunction that was
granted expressly upon the ground above explained was that
granted by Lord Thurlow, in 1782, in the case of Brooks v.
Reynolds. … In the subsequent case of Kenyon v. Worthington,
… an application to Lord Thurlow for an injunction was
resisted by counsel of the greatest eminence. The resistance,
however, was unsuccessful, and the injunction was granted.
This was in 1786; and from that time the question was regarded
as settled."
C. C. Langdell,
Equity Jurisdiction
(Harvard Law Review,
volume 5, pages 122-123).
EQUITY: A. D. 1792.
Negative Pleas.
"In Gun v. Prior, Forrest, 88, note, 1 Cox, 197, 2 Dickens,
657, Cas. in Eq. Pl. 47, a negative plea was overruled by Lord
Thurlow after a full argument. This was in 1785. Two years
later, the question came before the same judge again, and,
after another full argument, was decided the same way. Newman
v. Wallis, 2 Bro. C. C. 143, Cas. in Eq. Pl. 52. But in 1792,
in the case of Hall v. Noyes, 3 Bro. C. C. 483, 489, Cas. in
Eq. Pl. 223, 227, Lord Thurlow took occasion to say that he
had changed his opinion upon the subject of negative pleas,
and that his former decisions were wrong; and since then the
right to plead a negative plea has not been questioned."
C. C. Langdell,
Summary of Equity Pleading,
p. 114, note.
EQUITY: A. D. 1801-1827.
Lord Eldon settled Rules of Equity.
"'The doctrine of this Court,' he [Lord Eldon] said himself,
'ought to be as well settled and as uniform, almost, 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. I cannot agree that the doctrines
of this Court are to be changed by every succeeding judge.
Nothing would inflict on me greater pain than the recollection
that I had done any thing to justify the reproach that the
Equity of this Court varies like the Chancellor's foot.'
Certainly the reproach he dreaded cannot justly be inflicted
upon his memory. … From his time onward the development of
equity was effected ostensibly, and, in the great majority of
cases, actually, by strict deduction from the principles to be
discovered in decided cases, and the work of subsequent
Chancery judges has been, for the most part, confined, as Lord
Eldon's was, to tracing out these principles into detail, and
to rationalising them by repeated review and definition."
D. M. Kerly,
History Court Chancery,
page 182.
EQUITY: A. D. 1812.
Judge Story.
"We are next to regard Story during his thirty-five years of
judicial service. He performed an amount of judicial labor
almost without parallel, either in quality or quantity, in the
history of jurisprudence. His judgments in the Circuit Court
comprehended thirteen volumes. His opinions in the Supreme
Court are found in thirty-five volumes. Most of these
decisions are on matters of grave difficulty, and many of them
of first impression. Story absolutely created a vast amount of