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or betwixt party and party concerning his inheritance, chattels or goods, &c., but this ought to be determined and adjudged in some court of justice, according to the law and custom of England, and always judgements are given, ideo consideratum est per curiam so that the court gives the judgment; and the King hath his court viz: in the upper house of Parliament, in which he with his lords is the supreme Judge over all other judges; for if error be in the Common Pleas, that may be reversed in the King's Bench; and if the court of King's Bench err, that may be reversed in the upper house of Parliament, by the King with the assent of the Lords spiritual and temporal, without the Commons, in this respect the King is called Chief Justice, and it appears in our books that the King may sit in the Star Chamber, but this was to consult with the Justices upon certain questions proposed to them, and not in judicio; so in the King's Bench he may sit, but the court gives the judgement and it is commonly said in our books that the king is always present in the court in judgement of law, but upon this he cannot be nonsuit; but the judgements are always given per curiam; and the Judges are sworn to execute justice according to law and the custom of England. And it appears by the Act of Parliament of 2 Ed. 3 cap. 9, 2 Ed. 3. cap. 1, that neither by the great seal nor by the little seal justice shall be delayed; ergo, the king cannot take any cause out of any of his Courts, and give judgement upon it himself, but in his own cause he may stay it, it as it doth appear. II H. 4. 8. And the judges informed the King that no King after the Conquest assumed to himself to give any judgement in any cause whatever, which concerned the administration of justice within this realm, but these were solely determined by the courts of justice: and the king cannot arrest any man, as the book is in 1 H. 7. 4. for the party cannot have remedy against the King: so if the King give any judgement what remedy can the party have? Vide 39 Ed. 3 one who had a judgement reversed before the council of state; it was held utterly void, for that it was not a place where judgement may be reversed. Vide 1 H. 7. 4. Hussey, Chief Justice who was Attorney to Ed. 4. reports that Sir John Markham, Chief Justice, said to King Edw. 4 that the King cannot arrest a man for suspicion of treason or felony, as others of his lieges may; for that if it be wrong to the party grieved, he can have no remedy; and it was greatly. marvelled that the Archibishop durst inform the King that such absolute power and authority as is aforesaid belonged to the King
by Word of God. Vide 4 H. 4 Cap. 22, which being translated into Latin, the effect is, judicia in curia Regs reddita non annihiletur, sed stet judicium in suo robore quosque per judicium curiae Regis tanquam erroneum, &c. Vide West 2 cap. 5. Vide le stat. de Marlbridge, Cap. 1. Provisum est concordatum, et concessum, quod tam majores quam minores iustitiam habeant et recipiant in curia domini Regis, et vide le stat. de Magna Carta, cap. 29. 25 Ed. 3. cap. 5. None may be taken by petition or suggestion made to our lord 'he King or his council, unless by judgement: and 43 Ed. 3. cap. 3. no man shall be put to answer without presentment before the Justices, matter of record, or by due proofs, or by writ original according to the ancient law of the land: and if anything be done against it, it shall be void in law and held for error. 28 Ed. 3. c. 3. 37 Ed. 3. cap. 18. Vide 17 R. 2. ex rotulis Parliamenti in Turri, art. 10. A controversy of land between parties was heard by the king, and sentence given, which was repealed, for this, that it did belong to the common law. Then the King said that he thought the law was founded upon reason, and that he and others had reason as well as the judges: to which it was answered by me that true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgement of law which law is an art which requires long study and experience before that a man can attain to the cognizance of it; and that the law was the golden met wand and measure to try the causes of the subjects and which protected his Majesty in safety. and peace with which the King was greatly offended and said that then he should be under the law, which was treason to affirm, as he said: to which I said that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege. [Coke who was Chief Justice and spokesman of the judges is reporting this.]
THE DEVELOPMENT OF EQUITY.
MAINE, ANCIENT LAW, 23, 27.
A general proposition of some value may be advanced with respect to the agencies by which Law is brought into harmony with society. These instrumentalities seem to me to be three in number, Legal Fictions, Equity, and Legislation. Their historical order is that in which I have placed them. Sometimes two of them will be seen operating together, and there are legal systems which have escaped the influence of one or other of them. But I know of no instance in which the order of their appearance has been changed or inverted. The next instrumentality by which the adaptation of law to social wants is carried on I call Equity, meaning by that word any body of rules existing by the side of the original civil law, founded on distinct principles, and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles. The Equity, whether of the Roman Praetors or of the English Chancellors, differs from the Fictions which in each case preceded it, in that the interference with law is open and avowed. On the other hand, it differs from Legislation, the agent of legal improvement which comes after it, in that its claim to authority is grounded, not on the prerogative of any external person or body, not even on that of the magistrate who enunciates it, but on the special nature of its principles, to which it is alleged that all law ought to conform. The very conception of a set of principles, invested with a higher sacredness than those of the original law, and demanding application independently of the consent of any external body, belongs to a much more advanced stage of thought than that to which legal fictions originally suggested themselves.
Extracts from COKE'S FOURTH INSTITUTE (written in the reign of James I.).
In chancery are two courts, one ordinary, coram domino rege in cancellaria, wherein the lord Chancellor or lord keeper of the great seale proceeds according to the right line of the laws and statutes of the realm, secundum legem et consuetudinem Angliae. Another extraordinary, according to the rule of equity, secundum aequum et bonum. And first of the former court. He hath power to hold plea of scire fac" for repeal of the King's letters patents, of peti1Scire facias, order to show cause.
tions, of monstrans de droits,1 traverse of offices, partitions in chancery, of scire fac'. upon recognizances in this court, writs of audita querela and scire fac' in the nature of an audita querela3 to avoid executions in this court, . . . and all personal actions by or against any officer or minister of that court in respect of their service or attendance therein.
This court is officina justitiae, out of which all originall writs and all commissions which pass under the great seale go forth, which great seal is clavis regni, and for those ends this court is ever open.
Having spoken of the court of ordinary jurisdiction, it followeth according to our former division, that we speak of the extraordinary proceeding, according to the rule of equity, secundum aequum et bonum.
Albeit our ancient authors, the Mirrour, Glanvill, Britton and Fleta doe treat of the former Court in Chancery, and of originall writs and commissions issuing out of the same, yet none of them do once mention this court of equity. We have also considered what cases in this court of equity have been reported in our books, and we find none before the reign of H. 6, and in that king's time and afterward plentifully.
GOODWIN, THE EQUITY OF THE KING'S COURT BEFORE THE REIGN OF EDWARD I., 12.
If it would seem to be true that Glanvill and Bracton borrow their conception of equity from the acquitas of the Roman law, they are, nevertheless, but applying new terms to an institution as essentially Teutonic as Roman. In the early Germanic State, the king exercised a jurisdiction based on broader principles of right and justice than that of the ordinary tribunals; he was not in a like degree bound down to the formality of the law and could decide the case before his court according to principles of equity. The Frankish king of the Merovingian period granted to those whom he had taken into his special protection a writ containing the privilege of withdrawing their suits from the local courts in favor of the king's court, there to be decided secundum acquitatem. In the Carolingian period, the man who had suffered from the strictness and formality of the ordinary court, might seek alleviation (moderatio) from the king. Although the Roman law, which
1 Showing of right. A proceeding to obtain relief against the crown. Proceedings to recover property of which the crown has taken possession on escheat or forfeiture.
Proceedings for relief against a judgment by reason of subsequent events operating as a discharge.
reserved the exercise of equity for the consistorium principis, may well have had its influence on the court of the Frankish kings, nevertheless, as Professor Brunner clearly points out, the fact that the same equitable jurisdiction existed in Anglo-Saxon England, in Iceland, and in Sweden, proves its origin as a Germanic as well as a Roman institution.
From the SECULAR ORDINANCE OF EDGAR (959-975).
Cap. 2. And let no one apply to the king in any suit, unless he at home may not be worthy of law or cannot obtain law. If the law be too heavy, let him seek a mitigation of it from the king; and for any bot-worthy crime, let no man forfeit more than his wer.
MITFORD, PLEADINGS IN CHANCERY (2 ed. 1787), 6.
A suit to the extraordinary jurisdiction of the court of chancery, on behalf of a subject merely, is commenced by preferring a bill, in the nature of a petition, to the lord chancellor, lord keeper, or lords commissioners for the custody of the great seal; or to the king himself in his court of chancery, in case the person holding the seal is a party, or the seal is in the king's hands. But if the suit is instituted on behalf of the crown, or of those who partake of its prerogative, or whose rights are under its particular protection as the objects of a public charity, the matter of complaint is offered to the court by way of information, given by the proper officer, and not by petition. Except in some few instances, bills and informations have always been in the English language; and a suit preferred in this manner in the court of chancery has been therefore commonly termed a suit by English bill, by way of distinction from the proceedings in suits within the ordinary jurisdiction of the court, which, till the statute of 4 Geo. II, c. 26 (1730), were entered and enrolled, more anciently in the French or Norman tongue, and afterwards in the Latin, in the same manner as the pleadings in the other courts of common law.
WILLIAM DODD V. JOHN BROWNING ET AL. Calendars of Proceedings in Chancery, I, xiii. tiff's bill.)
Temp. Henry V. (This is the plain
To my worthy and gracious Lord Bishope of Wynchester, Chancellor of Yngelonde:
Beseching mekely youre povre bedeman William Dodde, charyotr, whech passed overe the see in service wt our liege lorde and was oon of his charioterys in his viages; & of his treste ffefed in my land Johan Brownyng and Johan . . . hull of Chekewell wt my