The place of the praetor was occupied in English jurisprudence by the
lord high chancellor. The real beginning of English equity is to be
found in the custom of handing over to that officer, for adjudication,
the complaints which were addressed to the king, praying for remedies
beyond the reach of the common law. Over and above the authority
delegated to the ordinary councils or courts, a reserve of judicial
power was believed to reside in the king, which was invoked as of grace
by the suitors who could not obtain relief from any inferior tribunal.
To the chancellor, as already the head of the judicial system, these
petitions were referred, although he was not at first the only officer
through whom the prerogative of grace was administered. In the reign of
Edward III. the equitable jurisdiction of the court appears to have been
established. Its constitutional origin was analogous to that of the star
chamber and the court of requests. The latter, in fact, was a minor
court of equity attached to the lord privy seal as the court of chancery
was to the chancellor. The successful assumption of extraordinary or
equitable jurisdiction by the chancellor caused similar pretensions to
be made by other officers and courts. "Not only the court of exchequer,
whose functions were in a peculiar manner connected with royal
authority, but the counties palatine of Chester, Lancaster and Durham,
the court of great session in Wales, the universities, the city of
London, the Cinque Ports and other places silently assumed extraordinary
jurisdiction similar to that exercised in the court of chancery." Even
private persons, lords and ladies, affected to establish in their
honours courts of equity.
English equity has one marked historical peculiarity, viz. that it
established itself in a set of independent tribunals which remained in
standing contrast to the ordinary courts for many hundred years. In
Roman law the judge gave the preference to the equitable rule; in
English law the equitable rule was enforced by a distinct set of judges.
One cause of this separation was the rigid adherence to precedent on the
part of the common law courts. Another was the jealousy prevailing in
England against the principles of the Roman law on which English equity
to a large extent was founded.
Public-domain text, read in full here on John Shaqi.
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