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
"After much deliberation," says Lord Campbell, "I must express my clear
conviction that the chancellor's equitable jurisdiction is as
indubitable and as ancient as his common-law jurisdiction, and that it
may be traced in a manner equally satisfactory. The silence of Bracton,
Glanvil, Fleta, and other early juridical writers, has been strongly
relied upon to disprove the equitable jurisdiction of the chancellor;
but they as little notice his common-law jurisdiction, most of them
writing during the subsistence of the _Aula Regia_; and they all speak
of the Chancery, not as a court, but merely as an office for the making
and sealing of writs. There are no very early decisions of the
chancellors on points of law any more than of equity, to be found in the
Year-books or old abridgments.... By 'equitable jurisdiction' must be
understood the extraordinary interference of the chancellor, without
common-law process or regard to the common-law rules of proceeding, upon
the petition of a party grieved who was without adequate remedy in a
court of common law; whereupon the opposite party was compelled to
appear and to be examined, either personally or upon written
interrogatories: and evidence being heard on both sides, without the
interposition of a jury, an order was made _secundum æquum et bonum_,
which was enforced by imprisonment. Such a jurisdiction had belonged to
the Aula Regia, and was long exercised by parliament; and, when
parliament was not sitting, by the king's ordinary council. Upon the
dissolution of the _Aula Regia_ many petitions, which parliament or the
council could not conveniently dispose of, were referred to the
chancellor, sometimes with and sometimes without assessors. To avoid the
circuity of applying to parliament or the council, the petition was very
soon, in many instances, addressed originally to the chancellor
himself." (Lives of Chancellors, i. 7.)
In the latter part of Edward III.'s long reign this equitable
jurisdiction had become, it is likely, of such frequent exercise, that
we may consider the following brief summary by Lord Campbell as probable
by analogy and substantially true, if not sustained in all respects by
the evidence that has yet been brought to light:--"The jurisdiction of
the Court of Chancery was now established in all matters where its own
officers were concerned, in petitions of right where an injury was
alleged to be done to a subject by the king or his officers in relieving
against judgments in courts of law (lord C. gives two instances), and
generally in cases of fraud, accident, and trust." (p. 291.)
Public-domain text, read in full here on John Shaqi.
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