View of the State of Europe during the Middle Ages, Vol. 3Hallam, Henry
History
View of the State of Europe during the Middle Ages, Vol. 3
Hallam, Henry
Europe -- History -- 476-1492; Middle Ages
The Court of Chancery began to decide causes as a court of equity,
according to Mr. Hardy, in the reign of Edward III., probably about 22
Edw. III. (Introduction to Close Rolls, p. 28.) Lord Campbell would
carry this jurisdiction higher, and the instances already mentioned may
be sufficient just to prove that it had begun to exist. It certainly
seems no unnatural supposition that the great principle of doing
justice, by which the council and the chancellor professed to guide
their exercise of judicature, may have led them to grant relief in some
of those numerous instances where the common law was defective or its
rules too technical and unbending. But, as has been observed, the actual
entries, as far as quoted, do not afford many precedents of equity. Mr.
Hardy, indeed, suggests (p. 25) that the _Curia Regis_ in the Norman
period proceeded on equitable principles; and that this led to the
removal of plaints into it from the county-court. This is, perhaps, not
what we should naturally presume. The subtle and technical spirit of the
Norman lawyers is precisely that which leads, in legal procedure, to
definite and unbending rules; while in the lower courts, where
Anglo-Saxon thanes had ever judged by the broad rules of justice,
according to the circumstances of the case, rather than a strict line of
law which did not yet exist, we might expect to find all the uncertainty
and inconsistency which belongs to a system of equity, until, as in
England, it has acquired by length of time the uniformity of law, but
none at least of the technicality so characteristic of our Norman common
law, and by which the great object of judicial proceedings was so
continually defeated. This, therefore, does not seem to me a probable
cause of the removal of suits from the county-court or court-baron to
those of Westminster. The true reason, as I have observed in another
place, was the partiality of these local tribunals. And the expense of
trying a suit before the justices in eyre might not be very much greater
than in the county-court.
I conceive, therefore, that the three supreme courts at Westminster
proceeded upon those rules of strict law which they had chiefly
themselves established; and this from the date of their separation from
the original _Curia Regis_. But whether the king's council may have
given more extensive remedies than the common law afforded, as early at
least as the reign of Henry III., is what we are not competent,
apparently, to affirm or deny. We are at present only concerned with
the Court of Chancery. And it will be interesting to quote the
deliberate opinion of a late distinguished writer, who has taken a
different view of the subject from any of his predecessors.
Public-domain text, read in full here on John Shaqi.
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