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way of debt to the defendant forty pound: whereunto is answered the king will be advised.1
It is enacted to endure untill the next parliament, that the exception (how that the party hath sufficient remedy at the common law) shall discharge any matter in chancery. At the next parliament you shall find a petition in these words: No man to be called by privy seal or subpoena to answer any matters but such as have no remedy by the common law, and that to appear so by the testimony of two justices of either bench, and by indenture between them and the plaintiff.
In anno 31 H. 6, cap. 2 (1453) there is a proviso in these words: Provided that no matter determinable by the law of this realm shall be by the said act determined in other form than after the course of the same law in the king's courts having jurisdiction of the
LORD CAMPBELL, LIVES OF THE CHIEF JUSTICES (3 ed.), I, 332. Lord Chancellor Ellesmere having very properly granted an injunction against suing out execution on a judgment obtained in the King's Bench by a gross fraud, Lord Chief Justice Coke, asserting that this was a subversion of the common law of England, and contrary to an act of parliament, induced the party against whom the injunction was granted to prepare an indictment against the opposite party, his counsel, his solicitor, and the Master in Chancery who had assisted the Chancellor when the injunction was granted. He then took infinite pains in seeking out and marshalling the evidence by which the prosecution was to be supported. The grand jury, however, threw out the indictment; and the matter being brought before the King (James I), he decided with a high hand in favour of the Court of Chancery (1616).
HAYNES, OUTLINES OF EQUITY, 14.
The history of the growth and development of equity jurisdiction is, indeed, by no means, as not unfrequently supposed, that of a gradual, slow encroachment. On the contrary, turning to the earliest records, we see at first the chancellors trying apparently to redress every grievance of whatever nature, which would otherwise be remediless; while the labours of the more recent judges consisted, not merely in developing heads of equity already founded, but in pruning the luxuriance of the earlier jurisdiction.
1 The formula when the king vetoes a bill.
In illustration of this position, let me turn to the book which I now take up, and which contains the most authentic information we possess respecting the early proceedings in chancery. It is the first volume, "Calendars in Chancery of Queen Elizabeth," printed by order of the record commissioners. Prefixed to the calendars is contained a selection of bills and petitions of dates anterior to Queen Elizabeth's reign, accompanied, in the later instances, by the answers, replications, and depositions of the witnesses. The general character of these early proceedings is in the preface to the publication thus described: "Most of the ancient petitions appearto have been presented in consequence of assaults and trespasses and a variety of outrages which were cognizable at common law, but for which the party complaining was unable to obtain redress, in consequence of the maintenance and protection afforded to his adversary by some powerful baron, or by the sheriff, or by some cfficer of the county in which they occurred." I need hardly observe to the youngest beginner amongst you, that any such cause for coming into equity has long since ceased to exist; and even if any such in fact existed, it would clearly at the present day constitute no ground for equitable interposition.
But in truth, we find considerable inaccuracy of opinion respecting the true function of equity prevailing at a much later date than that of these precedents. Thus, the celebrated confidential adviser of Henry the Seventh, Archbishop Morton, appears, according to a report in the Year Books, to have denied even the distinction between "technical equity" and "equity in the sense of natural justice." The report of the case which is noticed by both Mr. Spence and Lord Campbell is rather curious.
It appears that one of two executors, colluding with a debtor to the testator's estate, had released the debtor. The coexecutor filed a bill against the executor and the debtor. The chancellor was disposed to grant relief. Fineux, counsel for the defendant, observes "that there is the law of the land for many things, and that many things are tried in Chancery which are not remediable at common law; and some are merely matter of conscience, between a man and his confessor," thus pointing out accurately the distinctions between law, equity, and religion. But the chancellor retorts: "Sir, I know that every law is, or ought to be, according to the law of God" (ignoring thus altogether any distinction between law and religion); and then, merging completely the chancellor in the archbishop, he
continues: "and the law of God is, that an executor, who is evilly disposed, shall not waste all the goods, etc. And I know well that if he do so, and do not make amends, if he have the power, il sera damné in hell." And then the chancellor proceeds to lay down some rather unsound law.
EARL OF OXFORD'S CASE, I Chancery (1616). (2 White & Tudor, Lead. Cas. 642.)
Lord Chancellor Ellesmere: 1. The law of God speaks for the plaintiff. Deut. xxviii.
2. And equity and good conscience speak wholly for him.
3. Nor does the law of the land speak against him. But that and equity ought to join hand in hand in moderating and restraining all extremities and hardships.
By the law of God, he that builds a house ought to dwell in it; and he that plants a vineyard ought to gather the grapes thereof. Deut. xxviii. 30.
And yet here in this case, such is the conscience of the doctor, the defendant, that he would have the houses, gardens, and orchards, which he neither built nor planted; but the chancellors have always corrected such corrupt consciences, and caused them to render quid pro quo; for the common law itself will admit no contract to be good without quid pro quo, or land to pass without a valuable consideration; and therefore equity must see that a proportionable satisfaction be made in this case.
[The Chancellor then cites and discusses a precedent, and proceeds :]
And his Lordship, the plaintiff in this case, only desires to be satisfied of the true value of the new building and planting since the conveyance, and convenient allowance for the purchase.
And equity speaks as the law of God speaks, but you would silence equity.
First. Because you have a judgment at law.
Secondly. Because that judgment is upon a statute law.
To which I answer,
First. As a right of law can not die, no more can equity in chancery die; and, therefore, nullus recedat a Cancellaria sine remedio, 4 E. 4, II, a. Therefore the Chancery is always open; and although the term be adjourned, the Chancery is not; for conscience and equity are always ready to render to everyone their due, 9 E.
4, II a. The Chancery is only removable at the will of the king and Chancellor; and by 27 E. 3, 15, the Chancellor must give account to none, but only to the King and Parliament.
The cause why there is a Chancery is, for that men's actions are so divers and infinite, that it is impossible to make any general law which may aptly meet with every particular act, and not fail in some circumstances.
The office of the Chancellor is to correct men's consciences for frauds, breaches of trusts, wrongs, and oppressions, of what nature soever they be, and to soften and mollify the extremity of the law, which is called summum jus.
But, secondly, it is objected that this is a judgment upon a statute law.
To which I answer, it hath ever been the endeavor of all parliaments to meet with the corrupt consciences of men as much as might be, and to supply the defects of the law therein; and if this cause were exhibited to the Parliament, it would soon be ordered and determined by equity; and the Lord Chancellor is, by his place, under his majesty, to supply that power until it may be had, in all matters of meum and tuum, between party and party; and the Lord Chancellor doth not except to the statute or the law (judgment) upon the statute, but taketh himself bound to obey that statute, according to 8 Ed. 4; and the judgment thereupon may be just; and the college, in this case, may have a good title in law, and the judgment yet standeth in force.
SELDEN, TABLE TALK, tit. Equity
(Selden died 1654. His Ta
ble Talk was published by his amanuensis after his death.)
Equity in law is the same that the spirit is in religion, what everyone pleases to make it. Sometimes they go according to conscience, sometimes according to law, sometimes according to the will of the court. Equity is a roguish thing; for the law we have a measure, know what to trust to; equity is according to the conscience of him that is chancellor, and as that is larger or narrower, so is equity. 'Tis all one as if they should make his foot the standard. For if the measure we call a chancellor's foot, what an uncertain measure this would be. One chancellor has a long foot, another a short foot, another an indifferent foot; 'tis the same thing in the chancellor's conscience.
SPENCE, EQUITABLE JURISDICTION OF THE COURT OF CHANCERY, I, 413.
Some extravagances which originated perhaps in too high an estimate on the part of the Chancellors of Henry VIII and Elizabeth, of their individual endowments, and erroneous views as to the nature of their office, occasioned in part by the language of flattery, gave occasion to the great Selden to remark, more perhaps in jest than in earnest, that equity was a roguish thing; it was according to the conscience of him that was Chancellor, and as that was larger or narrower, so was equity. This might indeed have been a true picture of the court on its original foundation, had not the equitable doctrines and provisions of the Roman Law been taken as the principles on which its decisions were to be founded; but it is plain that the jurisdiction never could have been established if the conscience of the judge had been his only guide. It may be remarked, however, that too much consideration was sometimes given to the Conscience of the Queen. It is "the holy conscience of the Queen, for matter of equity," said Sir C. Hatton [temp. Elizabeth], "that is in some sort committed to the Chancellor."
But generally during this reign, as well as before, equity and conscience as rules of decision, were deferred to principles deduced from the Roman jurisprudence, the sanction of which was occasionally directly adverted to, independently of the private conscience of the judge. Nothing is recorded as having been delivered judicially from the bench which can warrant the supposition that the private opinion or conscience of the judge, or what is perhaps equivalent, his whim or caprice, independent of principle and precedent, was a legitimate ground of decision.
No doubt precedents had to be made when cases of extremity, to use the language of the times, arose, calling for the interference of the court to correct the rigor of the law or to supply its defects. These precedents, though not of binding authority like judgments at law, for if they had been at that time a Court of Equity must afterwards have been erected to correct the Court of Chancery; nor entered of record as judgments at law, were frequently, from Henry VI downwards, reported in the Year Books,-to be referred to, no doubt, as future guides. These, together with other cases, were collected and published in the reigns of Elizabeth, James, and Charles.