"What … is the history of this rule? … Briefly, these

things appear: 1st. That it is not a common law rule at all,

but is wholly statutory in its authority. 2d. That the object

of the rule, until a comparatively late period of its

existence, was not to protect from answers in the king's court

of justice, but to prevent a usurpation of jurisdiction on

the part of the Court Christian (or ecclesiastical tribunals).

3d. That even as thus enforced the rule was but partial and

limited in its application. 4th. That by gradual perversion of

function the rule assumed its present form, but not earlier

than the latter half of the seventeenth century. … But

nothing can be clearer than that it was a statutory rule. …

{1984}

The first of these were 16 Car. I., c. 2 (1641) and provided

that no one should impose any penalty in ecclesiastical

matters, nor should 'tender … to any … person whatsoever

any corporal oath whereby he shall be obliged to confess or

accuse himself of any crime or any … thing whereby he shall

be exposed to any censure or penalty whatever.' This probably

applied to ecclesiastical courts alone. The second (13 Car.

II., c. 12, 1662) is more general, providing that 'no one

shall administer to any person whatsoever the oath usually

called ex officio, or any other oath, whereby such persons may

be charged or compelled to confess any criminal matter.' …

The Statute of 13 Car. II. is cited in Scurr's Case, but

otherwise neither of them seems to have been mentioned; nor do

the text-books, as a rule, take any notice of them.

Henceforward, however, no question arises in the courts as to

the validity of the privilege against self-crimination, and

the statutory exemption is recognized as applying in

common-law courts us well as in others. … This maxim, or

rather the abuse of it in the ecclesiastical courts, helps in

part to explain the shape which the general privilege now has

taken. … We notice that most of the church's religious

investigations, … were conducted by means of commissions or

inquisitions, not by ordinary trials upon proper presentment;

and thus the very rule of the canon law itself was continually

broken, and persons unsuspected and unbetrayed 'per famam'

were compelled, 'seipsum prodere,' to become their own

accusers. This, for a time, was the burden of the complaint.

… Furthermore, in rebelling against this abuse of the

canon-law rule, men were obliged to formulate their reasons

for objecting to answer the articles of inquisitions. … They

professed to be willing to answer ordinary questions, but not

to betray themselves to disgrace and ruin, especially as where

the crimes charged were, as a rule, religious offences and not

those which men generally regard as offences against social

order. In this way the rule began to be formulated and

limited, as applying to the disclosure of forfeitures and

penal offences. In the course of the struggle the aid of the

civil courts was invoked, … and towards the end of the

seventeenth century, … it found a lodgement in the practice

of the Exchequer, of Chancery, and of the other courts. There

had never been in the civil courts any complaint based on the

same lines, or any demand for such a privilege. … But the

momentum of this right, wrested from the ecclesiastical courts

after a century of continual struggle, fairly carried it over

and fixed it firmly in the common-law practice also."

_John H. Wigmore,

Nemo Tenetur seipsum Prodere

(Harvard Law Review,

volume 5, pages 71-88)._

CRIMINAL LAW: A. D. 1660-1820.

187 Capital Offenses added to Criminal Code in England.

"From the Restoration to the death of George III.,—a period

of 160 years,—no less than 187 capital offenses were added to

the criminal code. The legislature was able, every year, to

discover more than one heinous crime deserving of death. In

the reign of George II. thirty-three Acts were passed creating

capital offenses; in the first fifty years of George III., no

less than sixty-three. In such a multiplication of offenses

all principle was ignored; offenses wholly different in

character and degree were confounded in the indiscriminating

penalty of death. Whenever an offense was found to be

increasing, some busy senator called for new rigor, until

murder became in the eye of the law no greater crime than

picking a pocket, purloining a ribbon from a shop, or

pilfering a pewter-pot. Such law-makers were as ignorant as

they were cruel. … Dr. Johnson,—no squeamish

moralist,—exposed them; Sir W. Blackstone, in whom admiration

of our jurisprudence was almost a foible, denounced them.

Beccaria, Montesquieu, and Bentham demonstrated that certainty

of punishment was more effectual in the repression of crime,

than severity; but law-givers were still inexorable."

_T. E. May,

Constitutional History of England

(Widdleton's edition),

volume 2, pages 553-554._

CRIMINAL LAW: A. D. 1695.

Counsel allowed to Persons indicted for High Treason.

"Holland, following the early example of Spain, always

permitted a prisoner the services of a counsel; and if he was

too poor to defray the cost, one was furnished at the public

charge. In England, until after the fall of the Stuarts, this

right, except for the purposes of arguing mere questions of

law, was denied to every one placed on trial for his life. In

1695, it was finally accorded to persons indicted for high

treason. Even then it is doubtful, says Lord Campbell, whether

a bill for this purpose would have passed if Lord Ashley,

afterwards Earl of Shaftesbury and author of the

'Characteristics,' had not broken down while delivering in the

House of Commons a set speech upon it, and, being called upon

to go on, had not electrified the House by observing: 'If I,

sir, who rise only to give my opinion upon a bill now pending,

in the fate of which I have no personal interest, am so

confounded that I am unable to express the least of what I

propose to say, what must the condition of that man be, who,

without any assistance, is called to plead for his life, his

honor, and for his posterity?'"

_D. Campbell,

The Puritan in Holland, England and America,

volume 2, page 446._

CRIMINAL LAW: A. D. 1708.

Torture.

The fact that judicial torture, though not a common law power

of the courts, was used in England by command of Mary,

Elizabeth, James I and Charles I, is familiar to all. It was

sanctioned by Lord Coke and Lord Bacon, and Coke himself

conducted examinations by it. It was first made illegal in

Scotland in 1708; in Bavaria and Wurtemburg in 1806; in Baden

in 1831.

_Austin Abbott,

Address before New York Society of Medicine Journal,

(The Advocate, Minn., 1889, volume 1, page 71)._

CRIMINAL LAW: A. D. 1725.

Knowledge of Right and Wrong the test of Responsibility.

The case of Edward Arnold, in 1725, who was indicted for

shooting at Lord Onslow, seems to be the earliest case in

which the knowledge of right and wrong becomes the test of

responsibility.

_American Law Review,

volume 15, pages 720-722._

CRIMINAL LAW: A. D. 1770.

Criminal Law of Libel.

"In this case [Case of the North Briton Junius' Letter to the

King, tried before Lord Mansfield and a special jury on the

2nd June 1770] two doctrines were maintained which excepted

libels from the general principles of the Criminal

Law—firstly, that a publisher was criminally responsible for

the acts of his servants, unless he was proved to be neither

privy nor to have assented to the publication of a libel;

secondly, that it was the province of the Court alone to judge

of the criminality of the publication complained of. The first

rule was rigidly observed in the Courts until the passing of

Lord Campbell's Libel Act in 1843 (6 and 7 Vict., c. 96). The

second prevailed only until 1792, when Fox's Libel Act (32

Geo. III, c. 60) declared it to be contrary to the Law of

England. …

{1985}

A century's experience has proved that the law, as declared by

the Legislature in 1792, has worked well, falsifying the

forebodings of the Judges of the period, who predicted 'the

confusion and destruction of the Law of England' as the result

of a change which they regarded as the subversion of a

fundamental and important principle of English Jurisprudence.

Fox's Libel Act did not complete the emancipation of the

Press. Liberty of discussion continued to be restrained by

merciless persecution. The case of Sir Francis Burdett, in

1820, deserves notice. Sir Francis had written, on the subject

of the 'Peterloo Massacre' in Manchester, a letter which was

published in a London newspaper. He was fined £2,000 and

sentenced to imprisonment for three months. The proceedings on

a motion for a new trial are of importance because of the

Judicial interpretation of the Libel Act of 1792. The view was

then stated by Best, J. (afterwards Lord Wynford), and was

adopted unanimously by the Court, that the statute of George

III. had not made the question of libel one of fact. If it

had, instead of removing an anomaly, it would have created

one. Libel, said Best, J., is a question of law, and the judge

is the judge of the law in libel as in all other cases, the

jury having the power of acting agreeably to his statement of

the law or not. All that the statute does is to prevent the

question from being left to the jury in the narrow way in

which it was left before that time. The jury were then only to

find the fact of the publication and the truth of the

innuendoes, for the judges used to tell them that the intent

was an inference of law to be drawn from the paper, with which

the jury had nothing to do. The legislature have said that

this is not so, but that the whole case is for the jury (4 B.

and A. 95). The law relating to Political Libel has not been

developed or altered in any way since the case of R. v.

Burdett. If it should ever be revived, which does not at

present appear probable, it will be found, says Sir James

Stephen, to have been insensibly modified by the law as to

defamatory libels on private persons, which has been the

subject of a great number of highly important judicial

decisions. The effect of these is, amongst other things, to

give a right to everyone to criticise fairly—that is,

honestly, even if mistakenly—the public conduct of public

men, and to comment honestly, even if mistakenly, upon the

proceedings of Parliament and the Courts of Justice. (History

of the Criminal Law, II., 376.) The unsuccessful prosecution

of Cobbett for an article in the 'Political Register,' in

1831, nearly brought to a close the long series of contests

between the Executive and the Press. From the period of the

Reform Act of 1832, the utmost latitude has been permitted to

public writings, and Press prosecutions for political libels,

like the Censorship, have lapsed."

_J. W. Ross Brown,

Law Magazine & Review,

4th ser., volume 17, page 197._

CRIMINAL LAW: A. D. 1791.

Criminals allowed Counsel.

"When the American States adopted their first constitutions,

five of them contained a provision that every person accused

of crime was to be allowed counsel for his defence. The same

right was, in 1791, granted for all America in the first

amendments to the Constitution of the United States. This

would seem to be an elementary principle of justice, but it

was not adopted in England until nearly half a century later,

and then only after a bitter struggle."

_D. Campbell,

The Puritan in Holland, England and America,

volume 1, page 70_.

CRIMINAL LAW: A. D. 1818.

Last Trial by Battle.

"The last appeal of murder brought in England was the case of

Ashford v. Thornton in 1818. In that case, after Thornton had

been tried and acquitted of the murder of Mary Ashford at the

Warwick Assizes her brother charged him in the court of king's

bench with her murder, according to the forms of the ancient

procedure. The court admitted the legality of the proceedings,

and recognized the appellee's right to wage his body; but as

the appellant was not prepared to fight, the case ended upon a

plea of autrefois acquit interposed by Thornton when arraigned

on the appeal. This proceeding led to the statute of 59 Geo.

III., c. 46, by which all appeals in criminal cases were

finally abolished."

_Hannis Taylor,

Origin and Growth of the English Constitution,

part 1, page 311._

See, also, WAGER OF BATTLE.

CRIMINAL LAW: A. D: 1819.

Severity of the former Criminal Law of England.

"Sir James Mackintosh in 1819, in moving in Parliament for a

committee to inquire into the conditions of the criminal law,

stated that there were then 'two hundred capital felonies on

the statute book.' Undoubtedly this apparent severity, for the

reasons stated by Sir James Stephen, is greater than the real

severity, since many of the offenses made capital were of

infrequent occurrence; and juries, moreover, often refused to

convict, and persons capitally convicted for offenses of minor

degrees of guilt were usually pardoned on condition of

transportation to the American and afterwards to the

Australian colonies. But this learned author admits that,

'after making all deductions on these grounds there can be no

doubt that the legislation of the eighteenth century in

criminal matters was severe to the highest degree, and

destitute of any sort of principle or system.'"

_J. F. Dillon,

Laws and Jurisprudence of England and America,

page 366._

CRIMINAL LAW: A. D. 1825.

"Ticket-of-leave" system established.

"The 'ticket-of-leave' system [was] established under the

English laws of penal servitude. It originated under the

authority of the governors of the penal colonies, and was the

first sanctioned by Parliament, so far as the committee are

aware, by an Act 5 Geo. IV., chapter 34. Subsequently, when

transportation for crime was abolished by the Acts 16, 17

Vict., chapter 99 (A. D. 1853) and 20, 21 Vict., chapter 3,

and system of home prisons established, the 'license' or

ticket-of-leave system was adopted by Parliament, in those

acts, as a method of rewarding convicts for good conduct

during imprisonment. By further acts passed in 1864, 1871 and

1879, the system has been brought gradually into its present

efficacy."

_Report of Committee on Judicial Administration,

and Remedial Procedure

(9 American Bar Association Report, 317)._

{1986}

CRIMINAL LAW: A. D. 1832-1860.

Revision of Criminal Code in England.

"With the reform period commenced a new era in criminal

legislation. Ministers and law officers now vied with

philanthropists, in undoing the unhallowed work of many

generations. In 1832, Lord Auckland, Master of the Mint,

secured the abolition of capital punishment for offences

connected with coinage; Mr. Attorney-general Denman exempted

forgery from the same penalty in all but two cases, to which

the Lords would not assent; and Mr. Ewart obtained the like

remission for sheep-stealing, and other similar offences. In

1833, the Criminal Law Commission was appointed, to revise the

entire code. … The commissioners recommended numerous other

remissions, which were promptly carried into effect by Lord

John Russell in 1837. Even these remissions, however, fell

short of public opinion, which found expression in an

amendment of Mr. Ewart, for limiting the punishment of death

to the single crime of murder. This proposal was then lost by

a majority of one; but has since, by successive measures, been

accepted by the legislature;—murder alone, and the

exceptional crime of treason, having been reserved for the

last penalty of the law. Great indeed, and rapid, was this

reformation of the criminal code. It was computed that, from

1810 to 1845, upwards of 1,400 persons had suffered death for

crimes, which had since ceased to be capital."

_T. E. May,

Constitutional History of England

(Widdleton's edition),

volume 2, pages 557-558._

CRIMINAL LAW: A. D. 1843.

Lord Campbell's Libel Act, and Publisher's Liability.

"In the 'Morning Advertiser' of the 19th of December, 1769,

appeared Junius's celebrated letter to the king. Inflammatory

and seditious, it could not be overlooked; and as the author

was unknown, informations were immediately filed against the

printers and publishers of the letter. But before they were

brought to trial, Almon, the bookseller, was tried for selling

the 'London Museum,' in which the libel was reprinted. His

connection with the publication proved to be so slight that he

escaped with a nominal punishment. Two doctrines, however,

were maintained in this case, which excepted libels from the

general principles of the criminal law. By the first, a

publisher was held criminally answerable for the acts of his

servants, unless proved to be neither privy nor assenting to

the publication of a libel. So long as exculpatory evidence

was admitted, this doctrine was defensible; but judges

afterwards refused to admit such evidence, holding that the

publication of a libel by a publisher's servant was proof of

his criminality. And this monstrous rule of law prevailed

until 1843, when it was condemned by Lord Campbell's Libel

Act."

_T. E. May,

Constitutional History of England

(Widdleton's edition),

volume 2, pages 113-114._

"And be it enacted, that whensoever, upon the trial of any

indictment or information for the publication of a libel,

under the plea of not guilty, evidence shall have been given

which shall establish a presumptive case of publication

against the defendant by the act of any other person by his

authority, it shall be competent to such defendant to prove

that such publication was made without his authority, consent,

or knowledge, and that the said publication did not arise from

want of due care or caution on his part."

_Statute 6 & 7 Vic., c. 96, s. 7._

CRIMINAL LAW: A. D. 1848.

The English Court of Criminal Appeal.

"England has not yet got her court of Criminal Appeal,

although the Council of Judges, in their belated scheme of

legal reform, recommend the legislature to create one.

Questions whether an action should be dismissed as 'frivolous

or vexatious,' disputes about' security for costs,' and the

'sufficiency of interrogatories' or 'particulars,' and all

manner of trivial causes affecting property or status, are

deemed by the law of England sufficiently important to entitle

the parties to them, if dissatisfied with the finding of a

court of first instance, to submit it to the touchstone of an

appeal. But the lives and liberties of British subjects

charged with the commission of criminal offences are in

general disposed of irrevocably by the verdict of a jury,

guided by the directions of a trial judge. To this rule,

however, there are two leading exceptions. In the first place,

any convicted prisoner may petition the sovereign for a

pardon, or for the commutation of his sentence; and the royal

prerogative of mercy is exercised through, and on the advice

of the Secretary of State for the Home Department. In the

second place, the English machine juridical notwithstanding

its lack of a properly constituted Court of Criminal Appeal,

is furnished with a kind of 'mechanical equivalent' therefor,

in the 'Court for Crown Cases Reserved,' which was established

by act of Parliament in 1848 (11 & 12 Vict. c. 78)."

_The English Court of Criminal Appeal

(The Green Bag, volume 5, page 345)._

CRIMINAL LAW: A. D. 1854.

Conflict between United States Constitution and a Treaty.

"About 1854, M. Dillon, French consul at San Francisco,

refused to appear and testify in a criminal case. The

Constitution of the United States (Amendment VI.), in criminal

cases grants accused persons compulsory process for obtaining

witnesses, while our treaties of 1853, with France (Art. II.)

says that consuls 'shall never be compelled to appear as

witnesses before the courts.' Thus there was a conflict

between the Constitution and the treaty, and it was held that

the treaty was void. After a long correspondence the French

Consuls were directed to obey a subpoena in future."

_Theodore D. Woolsey,

Introduction to the Study of International Law

[6th edition],

page 157, note._

CRIMINAL LAW: A. D. 1877.

"Indeterminate Sentences."

"This practice, so far as the committee can ascertain, has

been adopted in the states of New York and Ohio only. … The

Ohio statute has been taken mainly from that which was adopted

in New York, April 12, 1877."

_Report of Committee on Judicial Administrations, and

Remedial Procedure

(9 American Bar Association Report, page 313)._

CRIMINAL LAW: A. D. 1893.

Criminal Jurisdiction of Federal Courts.

"The Supreme Court of the United States, in United States v.

Rodgers, … 150 U. S., … in declaring that the term 'high

seas' in the criminal law of the United States is applicable

as well to the open waters of the great lakes as to the open

waters of the ocean, may be said, in a just sense, not to have

changed the law, but to have asserted the law to be in force

upon a vast domain over which its jurisdiction was heretofore

in doubt. The opinion of Justice Field will take its place in

our jurisprudence in company with the great cases of the

Genesee Chief, 12 How. (U. S.), 443, and its successors, and

with them marks the self adapting capacity of the judicial

power to meet the great exigencies of justice and good

government."

_University Law Review,

volume 1, page 2._

----------CRIMINAL LAW: End----------

----------ECCLESIASTICAL LAW: Start--------

{1987}

ECCLESIASTICAL LAW: A. D. 449-1066.

No distinction between Lay and Ecclesiastical Jurisdiction.

"In the time of our Saxon ancestors, there was no sort of

distinction between the lay and the ecclesiastical

jurisdiction: the county court was as much a spiritual as a

temporal tribunal; the rights of the church were ascertained

and asserted at the same time, and by the same judges, as the

rights of the laity. For this purpose the bishop of the

diocese, and the alderman, or, in his absence, the sheriff of

the county, used to sit together in the county court, and had

there the cognizance of all causes, as well ecclesiastical as

civil: a superior deference being paid to the bishop's opinion

in spiritual matters, and to that of the lay judges in temporal.

_W. Blackstone,

Commentaries,

book 3, page 61._

ECCLESIASTICAL LAW: A. D. 1066-1087.

Separation of Ecclesiastical from Civil Courts.

"William I. (whose title was warmly espoused by the

monasteries, which he liberally endowed, and by the foreign

clergy whom he brought over in shoals from France and Italy,

and planted in the best preferments of the English church),

was at length prevailed upon to … separate the

ecclesiastical court from the civil: whether actuated by

principles of bigotry, or by those of a more refined policy,

in order to discountenance the laws of King Edward, abounding

with the spirit of Saxon liberty, is not altogether certain.

But the latter, if not the cause, was undoubtedly the

consequence, of this separation: for the Saxon laws were soon

overborne by the Norman justiciaries, when the county court

fell into disregard by the bishop's withdrawing his presence,

in obedience to the charter of the conqueror; which prohibited

any spiritual cause from being tried in the secular courts,

and commanded the suitors to appear before the bishop only,

whose decisions were directed to conform to the canon law."

_W. Blackstone,

Commentaries,

book 3, pages 62-63._

"The most important ecclesiastical measure of the reign, the

separation of the church jurisdiction from the secular

business of the courts of law, is unfortunately, like all

other charters of the time, undated. Its contents however show

the influence of the ideas which under the genius of

Hildebrand were forming the character of the continental

churches. From henceforth the bishops and archdeacons are no

longer to hold ecclesiastical pleas in the hundred-court, but

to have courts of their own; to try causes by canonical, not

by customary law, and allow no spiritual questions to come

before laymen as judges. In case of contumacy the offender may

be excommunicated and the king and sheriff will enforce the

punishment. In the same way laymen are forbidden to interfere

in spiritual causes. The reform is one which might very

naturally recommend itself to a man like Lanfranc."

_W. Stubbs,

Constitutional History of England,

volume 1, section 101._

ECCLESIASTICAL LAW: A. D. 1100.

Reunion of Civil and Ecclesiastical Courts.

"King Henry the First, at his accession, among other

restorations of the laws of King Edward the Confessor, revived

this of the union of the civil and ecclesiastical courts. …

This, however, was ill-relished by the popish clergy,… and,

therefore, in their synod at Westminster, 3 Hen. I., they

ordained that no bishop should attend the discussion of

temporal causes; which soon dissolved this newly effected

union."

_W. Blackstone,

Commentaries, book 3, page 63._

ECCLESIASTICAL LAW: A. D. 1135.

Final Separation of Civil and Ecclesiastical Courts.

"And when, upon the death of King Henry the First, the usurper

Stephen was brought in and supported by the clergy, we find

one article of the oath which they imposed upon him was, that

ecclesiastical persons and ecclesiastical causes should be

subject only to the bishop's jurisdiction. And as it was about

that time that the contest and emulation began between the

laws of England and those of Rome, the temporal courts

adhering to the former, and the spiritual adopting the latter

as their rule of proceeding, this widened the breach between

them, and made a coalition afterwards impracticable; which

probably would else have been effected at the general

reformation of the church."

_W. Blackstone,

Commentaries,

book 3, page 64._

ECCLESIASTICAL LAW: A. D. 1285.

Temporal Courts assume Jurisdiction of Defamation.

"To the Spiritual Court appears also to have belonged the

punishment of defamation until the rise of actions on the

case, when the temporal courts assumed jurisdiction, though

not, it seems, to the exclusion of punishment by the church.

The punishment of usurers, cleric and lay, also belonged to

the ecclesiastical judges, though their movables were

confiscated to the king, unless the usurer 'vita comite digne

poenituerit, et testamento condito quae legare decreverit a se

prorsus alienaverit.' That is, it seems, the personal

punishment was inflicted by the Ecclesiastical Court, but the

confiscation of goods (when proper) was decreed by the King's

Court."

_Melville M. Bigelow,

History of Procedure,

page 51._

ECCLESIASTICAL LAW: A. D. 1857-1859.

Ecclesiastical Courts deprived of Matrimonial and Testamentary

Causes.

"Matrimonial causes, or injuries respecting the rights of

marriage, are another … branch of the ecclesiastical

jurisdiction. Though, if we consider marriages in the light of

mere civil contracts, they do not seem to be properly of

spiritual cognizance. But the Romanists having very early

converted this contract into a holy sacramental ordinance, the

church of course took it under her protection,' upon the

division of the two jurisdictions. … One might … wonder,

that the same authority, which enjoined the strictest celibacy

to the priesthood, should think them the proper judges in

causes between man and wife. These causes, indeed, partly from

the nature of the injuries complained of, and partly from the

clerical method of treating them, soon became too gross for

the modesty of a lay tribunal. … Spiritual jurisdiction of

testamentary causes is a peculiar constitution of this island;

for in almost all other (even in popish) countries all matters

testamentary are under the jurisdiction of the civil

magistrate. And that this privilege is enjoyed by the clergy

in England, not as a matter of ecclesiastical right, but by

the special favor and indulgence of the municipal law, and as

it should seem by some public act of the great council, is

freely acknowledged by Lindewode, the ablest canonist of the

fifteenth century. Testamentary causes, he observes, belong to

the ecclesiastical courts 'de consuetudine Angliae, et super

consensu regio et suorum procerum in talibus ab antiquo

concesso.'"

_W. Blackstone,

Commentaries,

book 3, pages 91-95._

{1988}

Jurisdiction in testamentary causes was taken away from the

ecclesiastical courts by Statutes 20 and 21 Vic., c. 77 and 21

and 22 Vic., chapters 56 and 95, and was transferred to the

court of Probate. Jurisdiction in matrimonial causes was

transferred to the Divorce Court by Statute 20 and 21 Vic., 85.

----------ECCLESIASTICAL LAW: End--------

----------EQUITY: Start--------

Equity.

EQUITY: A. D. 449-1066.

Early Masters in Chancery.

"As we approach the era of the Conquest, we find distinct

traces of the Masters in Chancery, who, though in sacred

orders, were well trained in jurisprudence, and assisted the

chancellor in preparing writs and grants, as well as in the

service of the royal chapel. They formed a sort of college of

justice, of which he was the head. They all sate in the

Wittenagemote, and, as 'Law Lords', are supposed to have had

great weight in the deliberations of that assembly."

_Lord Campbell,

Lives of the Chancellors,

volume 1, page 53._

EQUITY: A. D. 596.

Chancellor, Keeper of the Great Seal.

"From the conversion of the Anglo-Saxons to Christianity by

the preaching of St. Augustine, the King always had near his

person a priest, to whom was entrusted the care of his chapel,

and who was his confessor. This person, selected from the most

learned and able of his order, and greatly superior in

accomplishments to the unlettered laymen attending the Court,

soon acted as private secretary to the King, and gained his

confidence in affairs of state. The present demarcation

between civil and ecclesiastical employments was then little

regarded, and to this same person was assigned the business of

superintending writs and grants, with the custody of the great

seal."

_Lord Campbell,

Lives of the Chancellors,

volume 1, page 27._

EQUITY: A. D. 1066.

Master of the Rolls.

"The office of master, formerly called the Clerk or Keeper of

the Rolls, is recognized at this early period, though at this

time he appears to have been the Chancellor's deputy, not an

independent officer."

_Geo. Spence,

Equity Jurisdiction of the Court of Chancery,

volume 1, page 100._

EQUITY: A. D. 1066-1154.

Chancellor as Secretary of State.

Under the Norman Kings, the Chancellor was a kind of secretary

of state. His functions were political rather than judicial.

He attended to the royal correspondence, kept the royal

accounts, and drew up writs for the administration of justice.

He was also the keeper of the seal.

_Montague's Elements of Constitutional History of England,

page 27._

See, also, CHANCELLOR.

A. D. 1067.

First Lord Chancellor.

"The first keeper of the seals who was endowed with the title

of Lord Chancellor was Maurice, who received the great seal in

1067. The incumbents of the office were for a long period

ecclesiastics; and they usually enjoyed episcopal or

archiepiscopal rank, and lived in the London palaces attached

to their sees or provinces. The first Keeper of the seals of

England was Fitzgilbert, appointed by Queen Matilda soon after

her coronation, and there was no other layman appointed until

the reign of Edward III."

_L. J. Bigelow,

Bench and Bar,

page 23._

EQUITY: A. D. 1169.

Uses and Trusts.

"According to the law of England, trusts may be created 'inter

vivos' as well as by testament, and their history is a curious

one, beginning, like that of the Roman 'fidei commissa,' with

an attempt to evade the law. The Statutes of Mortmain, passed

to prevent the alienation of lands to religious houses, led to

the introduction of 'uses,' by which the grantor alienated his

land to a friend to hold 'to the use' of a monastery, the

clerical chancellors giving legal validity to the wish thus

expressed. Although this particular device was put a stop to

by 15 Ric. II. c. 5, 'uses' continued to be employed for other

purposes, having been found more malleable than what was

called, by way of contrast, 'the legal estate.' They offered

indeed so many modes of escaping the rigour of the law, that,

after several other statutes had been passed with a view of

curtailing their advantages, the 27 Hen. VIII. c. 10 enacted

that, where anyone was seised to a use, the legal estate

should be deemed to be in him to whose use he was seised. The

statute did not apply to trusts of personal property, nor to

trusts of land where any active duty was cast upon the

trustee, nor where a use was limited 'upon a use,' i. e. where

the person in whose favour a use was created was himself to

hold the estate to the use of some one else. There continued

therefore to be a number of cases in which, in spite of the

'Statute of Uses,' the Court of Chancery was able to carry out

its policy of enforcing what had otherwise been merely moral

duties. The system thus arising has grown to enormous

dimensions, and trusts, which, according to the definition of

Lord Hardwicke, are 'such a confidence between parties that no

action at law will lie, but there is merely a case for the

consideration of courts of equity,' are inserted not only in

wills, but also in marriage settlements, arrangements with

creditors, and numberless other instruments necessary for the

comfort of families and the development of commerce."

_T. E. Holland,

Elements of Jurisprudence, 5th edition,

page 217._

EQUITY: A. D. 1253.

A Lady Keeper of the Seals.

"Having occasion to cross the sea and visit Gascony, A. D.

1253, Henry III. made her [Queen Eleanor] keeper of the seal

during his absence, and in that character she in her own

person presided in the 'Aula Regia,' hearing causes, and, it

is to be feared, forming her decisions less in accordance with

justice than her own private interests. Never did judge set

law and equity more fearfully at naught."

_L. J. Bigelow,

Bench and Bar,

page 28._

EQUITY: A. D. 1258.

No Writs except De Cursu.

"In the year 1258 the Provisions of Oxford were promulgated;

two separate clauses of which bound the chancellor to issue no

more writs except writs 'of course' without command of the

King and his Council present with him. This, with the growing

independence of the judiciary on the one hand, and the

settlement of legal process on the other, terminated the right

to issue special writs, and at last fixed the common writs in

unchangeable form; most of which had by this time become

developed into the final form in which for six centuries they

were treated as precedents of declaration."

_M. M. Bigelow,

History of Procedure,

page 197._

EQUITY: A. D. 1272-1307.

The Chancellor's functions.

"In the reign of Edward I. the Chancellor begins to appear in

the three characters in which we now know him; as a great

political officer, as the head of a department for the issue

of writs and the custody of documents in which the King's

interest is concerned, as the administrator of the King's

grace."

_Sir William H. Anson,

Law and Custom of the Constitution,

part 2, page 146._

{1989}

EQUITY: A. D. 1330.

Chancery stationary at Westminster.

"There was likewise introduced about this time a great

improvement in the administration of justice, by rendering the

Court of Chancery stationary at Westminster. The ancient kings

of England were constantly migrating,—one principal reason

for which was, that the same part of the country, even with

the aid of purveyance and pre-emption, could not long support

the court and all the royal retainers, and render in kind due

to the King could be best consumed on the spot. Therefore, if

he kept Christmas at Westminster, he would keep Easter at

Winchester, and Pentecost at Gloucester, visiting his many

palaces and manors in rotation. The Aula Regis, and afterwards

the courts into which it was partitioned, were ambulatory

along with him—to the great vexation of the suitors. This

grievance was partly corrected by Magna Charta, which enacted

that the Court of Common Pleas should be held 'in a certain

place,'—a corner of Westminster Hall being fixed upon for

that purpose. In point of law, the Court of King's Bench and

the Court of Chancery may still be held in any county of

England,—'wheresoever in England the King or the Chancellor

may be.' Down to the commencement of the reign of Edward III.,

the King's Bench and the Chancery actually had continued to

follow the King's person, the Chancellor and his officers

being entitled to part of the purveyance made for the royal

household. By 28 Edw. 1., c. 5, the Lord Chancellor and the

Justices of the King's Bench were ordered to follow the King,

so that he might have at all times near him sages of the law

able to order all matters which should come to the Court. But

the two Courts were now by the King's command fixed in the

places where, unless on a few extraordinary occasions, they

continued to be held down to our own times, at the upper end

of Westminster Hall, the King's Bench on the left hand, and

the Chancery on the right, both remaining open to the Hall,

and a bar erected to keep off the multitude from pressing on

the judges."

_Lord Campbell,

Lives of the Chancellors,

volume 1, page 181._

EQUITY: A. D. 1348.

"Matters of Grace" committed to the Chancellor.

"In the 22nd year of Edward III, matters which were of grace

were definitely committed to the Chancellor for decision, and

from this point there begins to develop that body of

rules—supplementing the deficiencies or correcting the

harshness of the Common Law—which we call Equity."

_Sir W. R. Anson,

Law and Custom of the Constitution,

part 2, page 147._

ALSO IN:

_Kerly's History of the Court of Chancery,

page 31._

EQUITY: A. D. 1383.

Early Instance of Subpoena.

"It is said that John Waltham, Bishop of Salisbury, who was

Keeper of the Rolls about the 5th of Richard II., considerably

enlarged this new jurisdiction; that, to give efficacy to it,

he invented, or more properly, was the first who adopted in

that court, the writ of subpoena, a process which had before

been used by the council, and is very plainly alluded to in

the statutes of the last reign, though not under that name.

This writ summoned the party to appear under a penalty, and

answer such things as should be objected against him; upon

this a petition was lodged, containing the articles of

complaint to which he was then compelled to answer. These

articles used to contain suggestions of injuries suffered, for

which no remedy was to be had in the courts of common law, and

therefore the complainant prayed advice and relief of the

chancellor."

_J. Reeves,

History English Law (Finlason's edition),

volume 3, page 384._

EQUITY: A. D. 1394.

Chancery with its own Mode of Procedure.

"From the time of passing the stat. 17 Richard II. we may

consider that the Court of Chancery was established as a

distinct and permanent court, having separate jurisdiction,

with its own peculiar mode of procedure similar to that which

had prevailed in the Council, though perhaps it was not wholly

yet separated from the Council."

_George Spence,

Equity Jurisdiction of the Court of Chancery,

volume 1, page 345._

EQUITY: A. D. 1422.

Chancery Cases appear in Year Books.

"It is beyond a doubt that this [chancery] court had begun to

exercise its judicial authority in the reigns of Richard II.,

Henry IV. and V. … But we do not find in our books any

report of cases there determined till 37 Henry VI., except

only on the subject of uses; which, as has been before

remarked, might give rise to the opinion, that the first

equitable judicature was concerned in the support of uses."

_J. Reeves,

History English Law (Finlason's edition),

volume 3, page 553._

EQUITY: A. D. 1443.

No distinction between Examination and Answer.

The earliest record of written answers is in 21 Henry VI.

Before that time little, if any, distinction was made

between the examination and the answer.

_Kerly,

History of Courts of Chancery,

page 51._

EQUITY: A. D. 1461-1483.

Distinction between Proceeding by Bill and by Petition.

"A written statement of the grievance being required to be

filed before the issuing of the subpoena, with security to pay

damages and costs,—bills now acquired form, and the

distinction arose between the proceeding by bill and by

petition. The same regularity was observed in the subsequent

stages of the suit. Whereas formerly the defendant was

generally examined viva voce when he appeared in obedience to

the subpoena, the practice now was to put in a written answer,

commencing with a protestation against the truth or

sufficiency of the matters contained in the bill, stating the

facts relied upon by the defendant, and concluding with a

prayer that he may be dismissed, with his costs. There were

likewise, for the purpose of introducing new facts, special

replications and rejoinders, which continued till the reign of

Elizabeth, but which have been rendered unnecessary by the

modern practice of amending the bill and answer. Pleas and

demurrers now appear. Although the pleadings were in English,

the decrees on the bill continued to be in Latin down to the

reign of Henry VIII. Bills to perpetuate testimony, to set out

metes and bounds, and for injunctions against proceedings at

law, and to stay waste, became frequent."

_Lord Campbell,

Lives of the Chancellors,

volume 1, page 309._

{1990}

EQUITY: A. D. 1461-1483.

Jurisdiction of Chancery over Trusts.

"The equitable jurisdiction of the Court of Chancery may be

considered as making its greatest advances in this reign

[Edw. IV.]. The point was now settled, that there being a

feoffment to uses, the 'cestui que' use, or person

beneficially entitled, could maintain no action at law, the

Judges saying that he had neither 'jus in re' nor 'jus ad

rem,' and that their forms could not be moulded so as to

afford him any effectual relief, either as to the land or the

profits. The Chancellors, therefore, with general applause,

declared that they would proceed by subpoena against the

feoffee to compel him to perform a duty which in conscience

was binding upon him, and gradually extended the remedy

against his heir and against his alienee with notice of the

trust, although they held, as their successors have done, that

the purchaser of the legal estate for valuable consideration

without notice might retain the land for his own benefit. They

therefore now freely made decrees requiring the trustee to

convey according to the directions of the 'cestui que trust,'

or person beneficially interested; and the most important

branch of the equitable jurisdiction of the Court over trusts

was firmly and irrevocably established."

_Lord Campbell,

Lives of the Chancellors,

volume 1, page 309._

EQUITY: A. D. 1538.

Lord Keeper of the Great Seal.

"Between the death, resignation, or removal of one chancellor,

and the appointment of another, the Great Seal, instead of

remaining in the personal custody of the Sovereign, was

sometimes entrusted to a temporal keeper, either with limited

authority (as only to seal writs), or with all the powers,

though not with the rank of Chancellor. At last the practice

grew up of occasionally appointing a person to hold the Great

Seal with the title of 'Keeper,' where it was meant that he

should permanently hold it in his own right and discharge all

the duties belonging to it. Queen Elizabeth, ever sparing in

the conferring of dignities, having given the Great Seal with

the title of 'Keeper' to Sir Nicholas Bacon, objections were

made to the legality of some of his acts,—and to obviate

these, a statute was passed declaring that 'the Lord Keeper of

the Great Seal for the time being shall have the same place,

pre-eminence, and jurisdiction as the Lord Chancellor of

England.' Since then there never have been a Chancellor and

Keeper of the Great Seal concurrently, and the only difference

between the two titles is, that the one is more sounding than

the other, and is regarded as a higher mark of royal favor."

_Lord Campbell,

Lives of the Chancellors,

volume 1, page 40._

ALSO IN:

_Sir W. R. Anson,

Law and Custom of the Constitution,

volume 2, page 150._

EQUITY: A. D. 1558.

Increase of Business in the Court of Chancery.

"The business of the Court of Chancery had now so much

increased that to dispose of it satisfactorily required a

Judge regularly trained to the profession of the law, and

willing to devote to it all his energy and industry. The

Statute of Wills, the Statute of Uses, the new modes of

conveyancing introduced for avoiding transmutation of

possession, the questions which arose respecting the property

of the dissolved monasteries, and the great increase of

commerce and wealth in the nation, brought such a number of

important suits into the Court of Chancery, that the holder of

the Great Seal could no longer satisfy the public by

occasionally stealing a few hours from his political

occupations, to dispose of bills and petitions, and not only

was his daily attendance demanded in Westminster Hall during

term time, but it was necessary that he should sit, for a

portion of each vacation, either at his own house, or in some

convenient place appointed by him for clearing off his

arrears."

_Lord Campbell,

Lives of the Chancellors,

volume 2, page 95._

EQUITY: A. D. 1567-1632.

Actions of Assumpsit in Equity.

"The late development of the implied contract to pay 'quantum

meruit,' and to indemnify a surety, would be the more

surprising, but for the fact that Equity gave relief to

tailors and the like, and to sureties long before the common

law held them. Spence, although at a loss to account for the

jurisdiction, mentions a suit brought in Chancery, in 1567, by

a tailor, to recover the amount due for clothes furnished. The

suit was referred to the Queen's tailor, to ascertain the

amount due, and upon his report a decree was made. The learned

writer adds that 'there were suits for wages and many others

of like nature.' A surety who had no counter-bond filed a bill

against his principal in 1632, in a case which would seem to

have been one of the earliest of the kind, for the reporter,

after stating that there was a decree for the plaintiff, adds

'quod nota.'"

_J. B. Ames,

History of Assumpsit

(Harvard Law Review,

volume 2, pages 59-60)._

EQUITY: A. D. 1592.

All Chancellors, save one, Lawyers.

"No regular judicial system at that time prevailed in the

court; but the suitor when he thought himself aggrieved, found

a desultory and uncertain remedy, according to the private

opinion of the chancellor, who was generally an ecclesiastic,

or sometimes (though rarely) a statesman: no lawyer having sat

in the court of chancery from the times of the chief justices

Thorpe and Knyvet, successively chancellors to King Edward

III. in 1372 and 1373, to the promotion of Sir Thomas More by

King Henry VIII., in 1530. After which the great seal was

indiscriminately committed to the custody of lawyers or

courtiers, or churchmen, according as the convenience of the

times and the disposition of the prince required, till

Sargeant Puckering was made lord keeper in 1592; from which

time to the present the court of chancery has always been

filled by a lawyer, excepting the interval from 1621 to 1625,

when the seal was entrusted to Dr. Williams, then dean of

Westminster, but afterwards bishop of Lincoln; who had been

chaplain to Lord Ellesmere when chancellor."

_W. Blackstone,

Commentaries,

book 3, chapter 4._

EQUITY: A. D. 1595.

Injunctions against Suits at Law.

Opposition of common law courts.

"The strongest inclination was shown to maintain this

opposition to the court of equity, not only by the courts, but

by the legislature. The stat. 27 Elizabeth, c, l., which, in

very general words, restrains all application to other

jurisdictions to impeach or impede the execution of judgments

given in the king's courts, under penalty of a praemunire, has

been interpreted, as well as stat. Richard II., c. 5, not only

as imposing a restraint upon popish claims of judicature, but

also of the equitable jurisdiction in Chancery; and in the

thirty-first and thirty-second years of this reign, a

counsellor-at-law was indicted in the King's Bench on the

statute of praemunire, for exhibiting a bill in Chancery after

judgment had gone against his client in the King's Bench.

Under this and the like control, the Court of Chancery still

continued to extend its authority, supported, in some degree,

by the momentum it acquired in the time of Cardinal Wolsey."

_J. Reeves,

History English Law (Finlason's edition.),

volume 5, pages 386-387._

{1991}

EQUITY: A. D. 1596.

Lord Ellesmere and his Decisions.

Kerly says the earliest chancellors' decisions that have come

down to us are those of Lord Ellesmere. He was the first

chancellor to establish equity upon the basis of precedents.

But compare Reeves (Finlason's), History English Law, volume

3, page 553, who mentions decisions in the Year Books.

_Kerly,

History of the Court of Chancery,

page 98._

EQUITY: A. D. 1601.

Cy Pres Doctrine.

"There is no trace of the doctrine being put into practice in

England before the Reformation, although in the earliest

reported cases where it has been applied it is treated as a

well recognized rule, and as one owing its origin to the

traditional favour with which charities had always been

regarded. Much of the obscurity which covers the introduction

of the doctrine into our Law may perhaps be explained by the

fact that, in the earliest times, purely charitable gifts, as

they would now be understood, were almost unknown. The piety

of donors was most generally displayed in gifts to religious

houses, and the application of the subject matter of such

gifts was exclusively in the Superiors of the different

Orders, and entirely exempt from secular control. From the

religious houses the administration of charitable gifts passed

to the Chancellor, as keeper of the King's conscience, the

latter having as 'parens patriae' the general superintendence

of all infants, idiots, lunatics and charities. And it was not

until some time later that this jurisdiction became gradually

merged, and then only in cases where trusts were interposed,

in the general jurisdiction of the Chancery Courts. It is not

necessary to go into the long vexed question as to when that

actually took place. It is enough to say that it is now pretty

conclusively established that the jurisdiction of the Chancery

Courts over charitable trusts existed anterior to, and

independently of, the Statute of Charitable Uses, 43 Eliz., c.

4. As charitable gifts generally involved the existence of a

trust reposed in some one, it was natural that the Chancery

Court, which assumed jurisdiction over trusts, should have

gradually extended that jurisdiction over charities generally;

but the origin of the power, that it was one delegated by the

Crown to the Chancellor, must not be lost sight of, as in this

way, probably, can be best explained the curious distinct

jurisdictions vested in the Crown and the Chancery Courts

respectively to apply gifts Cy pres, the limits of which,

though long uncertain, were finally determined by Lord Eldon

in the celebrated case of Moggridge v. Thackwell, 7 ves. 69.

If we remember that the original jurisdiction in all

charitable matters was in the Crown, and that even after the

Chancery Courts acquired a jurisdiction over trusts, there was

still a class of cases untouched by such jurisdiction, we

shall better understand how the prerogative of the Crown still

remained in a certain class of cases, as we shall see

hereafter. However this may be, there is no doubt that when

the Chancery Courts obtained the jurisdiction over the

charities, which they have never lost, the liberal principles

of the Civil or Canon Law as to the carrying out of such gifts

were the sources and inspirations of their decisions. And

hence the Cy pres doctrine became gradually well recognised,

though the mode of its application has varied from time to

time. Perhaps the most striking instances of this liberal

construction are to be found in the series of cases which, by

a very strained interpretation of the Statute of Elizabeth

with regard to charitable uses, decided that gifts to such

uses in favour of corporations, which could not take by devise

under the old Wills Act, 32 Hen. VIII., c. 1, were good as

operating in the nature of an appointment of the trust in

equity, and that the intendment of the statute being in favour

of charitable gifts, all deficiencies of assurance were to be

supplied by the Courts. Although, historically, there may be

no connection between the power of the King over the

administration of charities, and the dispensing power reserved

to him by the earlier Mortmain Acts, the one being, as we have

seen, a right of Prerogative, the other a Feudal right in his

capacity as ultimate Lord of the fee, it is perhaps not wholly

out of place to allude shortly to the latter, particularly as

the two appear not to have been kept distinct in later times.

By the earlier Mortmain Acts, the dispensing power of the

King, as Lord Paramount, to waive forfeitures under these Acts

was recognised, and gifts of land to religious or charitable

corporations were made not 'ipso facto' void, but only

voidable at the instance of the immediate Lord, or, on his

default, of the King and after the statute 'quia emptores,'

which practically abolished mesne seignories, the Royal

license became in most cases sufficient to secure the validity

of the gift. The power of suspending statutes being declared

illegal at the Revolution, it was deemed prudent, seeing that

the grant of licenses in Mortmain imported an exercise of such

suspending power, to give these licenses a Parliamentary

sanction; and accordingly, by 7 and 8 William III., c. 37, it

was declared that the King might grant licenses to aliens in

Mortmain, and also to purchase, acquire, and hold lands in

Mortmain in perpetuity without pain of forfeiture. The right

of the mesne lord was thus passed over, and the dispensing

power of the Crown, from being originally a Feudal right,

became converted practically into one of Prerogative. The

celebrated Statute of 1 Edward VI., c. 14, against

superstitious uses, which is perhaps the earliest statutory

recognition of the Cy pres doctrine, points also strongly to

the original jurisdiction in these matters being in the King."

The author proceeds to trace at some length the subsequent

developments of the doctrine both judicial and statutory. The

doctrine is not generally recognised in the United States.

_H. L. Manby

in Law Magazine & Review, 4th ser.,

volume 15 (London, 1889-90), page 203._

EQUITY: A. D. 1603-1625.

Equity and the Construction of Wills.

"After a violent struggle between Lord Coke and Lord

Ellesmere, the jurisdiction of the Court of Chancery to stay

by injunction execution on judgments at law was finally

established. In this reign [James I.] the Court made another

attempt,—which was speedily abandoned,—to determine upon the

validity of wills,—and it has been long settled that the

validity of wills of real property shall be referred to courts

of law, and the validity of wills of personal property to the

Ecclesiastical Courts,—equity only putting a construction

upon them when their validity has been established."

_Lord Campbell,

Lives of the Chancellors,

volume 2, page 386._

EQUITY: A. D. 1612.

Right of Redemption.

The right to redeem after the day dates from the reign of

James I. From the time of Edward IV. (1461-83) a mortgagor

could redeem after the day if accident, or a collateral

agreement, or fraud by mortgagee, prevented payment.

_Kerly,

History of the Court of Chancery,

page 143._

{1992}

EQUITY: A. D. 1616.

Contest between Equity and Common-Law Courts.

"In the time of Lord Ellesmere (A. D. 1616) arose that notable

dispute between the courts of law and equity, set on foot by

Sir Edward Coke, then chief justice of the court of king's

bench; whether a court of equity could give relief after or

against a judgment at the common law? This contest was so

warmly carried on, that indictments were preferred against the

suitors, the solicitors, the counsel, and even a master in

chancery, for having incurred a 'praemunire,' by questioning

in a court of equity a judgment in the court of king's bench,

obtained by a gross fraud and imposition. This matter being

brought before the king, was by him referred to his learned

counsel for their advice and opinion; who reported so strongly

in favor of the courts of equity, that his majesty gave

judgment in their behalf."

_W. Blackstone,

Commentaries,

book 3, page 54._

EQUITY: A. D. 1616.

Relief against judgments at law.

"This was in 1616, the year of the memorable contest between

Lord Coke and Lord Ellesmere as to the power of equity to

restrain the execution of common-law judgment obtained by

fraud. … The right of equity to enforce specific

performance, where damages at law would be an inadequate

remedy, has never since been questioned."

_J. B. Ames,

Specific Performance of Contracts

(The Green Bag, volume 1, page 27)._

EQUITY: A. D. 1671.

The Doctrine of Tacking established.

"It is the established doctrine in the English law, that if

there be three mortgages in succession, and all duly

registered, or a mortgage, and then a judgment, and then a

second mortgage upon the estate, the junior mortgagee may

purchase in the first mortgage, and tack it to his mortgage,

and by that contrivance 'squeeze out' the middle mortgage, and

gain preference over it. The same rule would apply if the

first, as well as the second incumbrance, was a judgment; but

the incumbrancer who tacks must always be a mortgagee, for he

stands in the light of a bona fide purchaser, parting with his

money upon the security of the mortgage. … In the English

law, the rule is under some reasonable qualification. The last

mortgagee cannot tack, if, when he took his mortgage, he had

notice in fact … of the intervening incumbrance. … The

English doctrine of tacking was first solemnly established in

Marsh v. Lee [2 Vent. 337], under the assistance of Sir

Matthew Hale, who compared the operation to a plank in

shipwreck gained by the last mortgagee; and the subject was

afterwards very fully and accurately expounded by the Master

of the Rolls, in Brace v. Duchess of Marlborough [2 P. Wms.

491]."

_J. Kent,

Commentaries,

part 6, lecture 58._

EQUITY: A. D. 1702-1714.

Equitable conversion.

"He [Lord Harcourt] first established the important doctrine,

that if money is directed either by deed or will to be laid

out in land, the money shall be taken to be land, even as to

collateral heirs."

_Lord Campbell,

Lives of the Chancellors,

volume 4, page 374._

EQUITY: A. D. 1736-1756.

Lord Hardwicke developed System of Precedents.

It was under Lord Hardwicke that the jurisdiction of Equity

was fully developed. During the twenty years of his

chancellorship the great branches of equitable jurisdiction

were laid out, and his decisions were regularly cited as

authority until after Lord Eldon's time.

_Kerly,

History of the Court of Chancery,

pages 175-177._

EQUITY: A. D. 1742.

Control of Corporations.

"That the directors of a corporation shall manage its affairs

honestly and carefully is primarily a right of the corporation

itself rather than of the individual stockholders. … The

only authority before the present century is the case of the

Charitable Corporation v. Sutton, decided by Lord Hardwicke [2

Atk. 400]. But this case is the basis … of all subsequent

decisions on the point, and it is still quoted as containing

an accurate exposition of the law. The corporation was

charitable only in name, being a joint-stock corporation for

lending money on pledges. By the fraud of some of the

directors … , and by the negligence of the rest, loans were

made without proper security. The bill was against the

directors and other officers, 'to have a satisfaction for a

breach of trust, fraud, and mismanagement.' Lord Hardwicke

granted the relief prayed, and a part of his decision is well

worth quoting. He says: 'Committee-men are most properly

agents to those who employ them in this trust, and who empower

them to direct and superintend the affairs of the corporation.

In this respect they may be guilty of acts of commission or

omission, of malfeasance or nonfeasance. … Nor will I ever

determine that a court of equity cannot lay hold of every

breach of trust, let the person be guilty of it either in a

private or public capacity.'"

_S. Williston,

History of the Law of Business

(Harvard Law Review,

volume 2, page 158-159)._

EQUITY: A. D. 1782.

Demurrer to Bill of Discovery.

"Originally, it appears not to have been contemplated that a

demurrer or plea would lie to a bill for discovery, unless it

were a demurrer or plea to the nature of the discovery sought

or to the jurisdiction of the court, e. g., a plea of purchase

for value; and, though it was a result of this doctrine that

plaintiffs might compel discovery to which they were not

entitled, it seems to have been supposed that they were not

likely to do so to any injurious effect, since they must do it

at their own expense. But this view was afterwards abandoned,

and in 1782 it was decided that, if a bill of discovery in aid

of an action at law stated no good cause of action against the

defendant, it might be demurred to on that ground, i. e., that

it showed on its face no right to relief at law, and,

therefore, no right to discovery in equity. Three years later

in Hindman v. Taylor, the question was raised whether a

defendant could protect himself for answering a bill for

discovery by setting up an affirmative defence by plea; and,

though Lord Thurlow decided the question in the negative, his

decision has since been overruled; and it is now fully settled

that any defence may be set up to a bill for discovery by

demurrer or plea, the same as to a bill for relief; and, if

successful, it will protect the defendant from answering."

_C. C. Langdell,

Summary of Equity Pleading,

pages 204-205._

{1993}

EQUITY: A. D. 1786.

Injunction after Decree to pay Proceeds of Estate into Court.

"As soon as a decree is made … , under which the executor

will be required to pay the proceeds of the whole estate into

court, an injunction ought to be granted against the

enforcement of any claim against the estate by an action at

law; and accordingly such has been the established rule for

more than a hundred years. … The first injunction that was

granted expressly upon the ground above explained was that

granted by Lord Thurlow, in 1782, in the case of Brooks v.

Reynolds. … In the subsequent case of Kenyon v. Worthington,

… an application to Lord Thurlow for an injunction was

resisted by counsel of the greatest eminence. The resistance,

however, was unsuccessful, and the injunction was granted.

This was in 1786; and from that time the question was regarded

as settled."

_C. C. Langdell,

Equity Jurisdiction

(Harvard Law Review,

volume 5, pages 122-123)._

EQUITY: A. D. 1792.

Negative Pleas.

"In Gun v. Prior, Forrest, 88, note, 1 Cox, 197, 2 Dickens,

657, Cas. in Eq. Pl. 47, a negative plea was overruled by Lord

Thurlow after a full argument. This was in 1785. Two years

later, the question came before the same judge again, and,

after another full argument, was decided the same way. Newman

v. Wallis, 2 Bro. C. C. 143, Cas. in Eq. Pl. 52. But in 1792,

in the case of Hall v. Noyes, 3 Bro. C. C. 483, 489, Cas. in

Eq. Pl. 223, 227, Lord Thurlow took occasion to say that he

had changed his opinion upon the subject of negative pleas,

and that his former decisions were wrong; and since then the

right to plead a negative plea has not been questioned."

_C. C. Langdell,

Summary of Equity Pleading,

p. 114, note._

EQUITY: A. D. 1801-1827.

Lord Eldon settled Rules of Equity.

"'The doctrine of this Court,' he [Lord Eldon] said himself,

'ought to be as well settled and as uniform, almost, as those

of the common law, laying down fixed principles, but taking

care that they are to be applied according to the

circumstances of each case. I cannot agree that the doctrines

of this Court are to be changed by every succeeding judge.

Nothing would inflict on me greater pain than the recollection

that I had done any thing to justify the reproach that the

Equity of this Court varies like the Chancellor's foot.'

Certainly the reproach he dreaded cannot justly be inflicted

upon his memory. … From his time onward the development of

equity was effected ostensibly, and, in the great majority of

cases, actually, by strict deduction from the principles to be

discovered in decided cases, and the work of subsequent

Chancery judges has been, for the most part, confined, as Lord

Eldon's was, to tracing out these principles into detail, and

to rationalising them by repeated review and definition."

_D. M. Kerly,

History Court Chancery,

page 182._

EQUITY: A. D. 1812.

Judge Story.

"We are next to regard Story during his thirty-five years of

judicial service. He performed an amount of judicial labor

almost without parallel, either in quality or quantity, in the

history of jurisprudence. His judgments in the Circuit Court

comprehended thirteen volumes. His opinions in the Supreme

Court are found in thirty-five volumes. Most of these

decisions are on matters of grave difficulty, and many of them

of first impression. Story absolutely created a vast amount of

law for our country. Indeed, he was essentially a builder.

When he came to the bench, the law of admiralty was quite

vague and unformed; his genius formed it as exclusively as

Stowell's did in England. He also did much toward building up

the equity system which has become part of our jurisprudence.

In questions of international and constitutional law, the

breadth and variety of his legal learning enabled him to shine

with peculiar brilliancy. It is sufficient to say that there

is scarcely any branch of the law which he has not greatly

illustrated and enlarged,—prize, constitutional, admiralty,

patent, copyright, insurance, real estate, commercial law so

called, and equity,—all were gracefully familiar to him. The

most celebrated of his judgments are De Lovio v. Boit, in

which be investigates the jurisdiction of the Admiralty;

Martin v. Hunter's Lessee, which examines the appellate

jurisdiction of the United States Supreme Court; Dartmouth

College v. Woodward, in which the question was, whether the

charter of a college was a contract within the meaning of the

constitutional provision prohibiting the enactment, by any

State, of laws impairing the obligations of contracts; his

dissenting opinion in Charles River Bridge Company v. The

Warren Bridge; involving substantially the same question as

the last case; and the opinion in the Girard will case. These

are the most celebrated, but are scarcely superior to scores

of his opinions in cases never heard of beyond the legal

profession. His biographer is perhaps warranted in saying of

his father's judicial opinions: 'For closeness of texture and

compact logic, they are equal to the best judgments of

Marshall; for luminousness and method, they stand beside those

of Mansfield; in elegance of style, they yield the palm only

to the prize cases of Lord Stowell, but in fullness of

illustration and wealth and variety of learning, they stand

alone."

_Irving Browne,

Short Studies of Great Lawyers,

pages 293-295._

EQUITY: A. D. 1814-1823.

Chancellor Kent.

"In February, 1814, he was appointed chancellor. The powers

and jurisdiction of the court of chancery were not clearly

defined. There were scarcely any precedents of its decisions,

to which reference could be made in case of doubt. Without any

other guide, he felt at liberty to exercise such powers of the

English chancery as he deemed applicable under the

Constitution and laws of the State, subject to the correction

of the Court of Errors, on appeal. … On the 31st of July,

1823, having attained the age of sixty years, the period

limited by the Constitution for the tenure of his office, he

retired from the court, after hearing and deciding every case

that had been brought before him. On this occasion the members

of the bar residing in the City of New York, presented him an

address. After speaking of the inestimable benefits conferred

on the community by his judicial labors for five and twenty

years they say: 'During this long course of services, so

useful and honorable, and which will form the most brilliant

period in our judicial history, you have, by a series of

decisions in law and equity, distinguished alike for practical

wisdom, profound learning, deep research and accurate

discrimination, contributed to establish the fabric of our

jurisprudence on those sound principles that have been

sanctioned by the experience of mankind, and expounded by the

enlightened and venerable sages of the law. Though others may

hereafter enlarge and adorn the edifice whose deep and solid

foundations were laid by the wise and patriotic framers of our

government, in that common law which they claimed for the people

as their noblest inheritance, your labors on this magnificent

structure will forever remain eminently conspicuous, command

the applause of the present generation, and exciting the

admiration and gratitude of future ages.'"

_Charles B. Waite,

James Kent

(Chicago Law Times,

volume 3, pages 339-341)._

{1994}

EQUITY: A. D. 1821.

Negative Pleas to be supported by an Answer.

"The principle of negative pleas was first established by the

introduction of anomalous pleas; but it was not perceived at

first that anomalous pleas involved the admission of pure

negative pleas. It would often happen, however, that a

defendant would have no affirmative defence to a bill, and yet

the bill could not be supported because of the falsity of some

material allegation contained in it; and, if the defendant

could deny this false allegation by a negative plea, he would

thereby avoid giving discovery as to all other parts of the

bill. At length, therefore, the experiment of setting up such

a plea was tried; and, though unsuccessful at first, it

prevailed in the end, and negative pleas became fully

established. If they had been well understood, they might have

proved a moderate success, although they were wholly foreign

to the system into which they were incorporated; but, as it

was, their introduction was attended with infinite mischief

and trouble, and they did much to bring the system into

disrepute. For example, it was not clearly understood for a

long time that a pure negative plea required the support of an

answer; and there was no direct decision to that effect until

the case of Sanders v. King, 6 Madd. 61, Cas. in Eq. Pl. 74,

decided in 1821."

_C. C. Langdell,

Summary of Equity Pleading,

pages 113-114._

EQUITY: A. D. 1834.

First Statute of Limitations in Equity.

"None of the English statutes of limitation, prior to 3 & 4

Wm. IV., c. 27, had any application to suits in equity.

Indeed, they contained no general terms embracing all actions

at law, but named specifically all actions to which they

applied; and they made no mention whatever of suits in equity.

If a plaintiff sued in equity, when he might have brought an

action at law, and the time for bringing the action was

limited by statute, the statute might in a certain sense be

pleaded to the suit in equity; for the defendant might say

that, if the plaintiff had sued at law, his action would have

been barred; that the declared policy of the law therefore,

was against the plaintiff's recovering; and hence the cause

was not one of which a court of equity ought to take

cognizance. In strictness, however, the plea in such a case

would be to the jurisdiction of the court."

_C. C. Langdell,

Summary of Equity Pleading,

pages 149-150._

EQUITY: A. D. 1836.

Personal Character of Shares of Stock first established in

England.

"The most accurate definition of the nature of the property

acquired by the purchase of a share of stock in a corporation

is that it is a fraction of all the rights and duties of the

stockholders composing the corporation. Such does not seem to

have been the clearly recognized view till after the beginning

of the present century. The old idea was rather that the

corporation held all its property strictly as a trustee, and

that the shareholders were, strictly speaking, 'cestuis que

trust,' being in equity co-owners of the corporate property.

… It was not until the decision of Bligh v. Brent [Y. & C.

268], in 1836, that the modern view was established in

England."

_S. Williston,

History of the Law of Business Corporations before 1800

(Harvard Law Review,

volume 2, pages 149-151)._

EQUITY: A. D. 1875.

Patents, Copyrights and Trade-Marks.

"In modern times the inventor of a new process obtains from

the State, by way of recompense for the benefit he has

conferred upon society, and in order to encourage others to

follow his example, not only an exclusive privilege of using

the new process for a fixed term of years, but also the right

of letting or selling his privilege to another. Such an

indulgence is called a patent-right, and a very similar

favour, known as copy-right, is granted to the authors of

books, and to painters, engravers, and sculptors, in the

productions of their genius. It has been a somewhat vexed

question whether a 'trade-mark' is to be added to the list of

intangible objects of ownership. It was at any rate so treated

in a series of judgments by Lord Westbury, which, it seems,

are still good law. He says, for instance, 'Imposition on the

public is indeed necessary for the plaintiff's title, but in

this way only, that it is the test of the invasion by the

defendant of the plaintiff's right of property.' [Citing 33 L.

J. Ch. 204; cf. 35 Ch. D. Oakley v. Dalton.] It was also so

described in the 'Trade Marks Registration Act,' 1875

[sections 3, 4, 5], as it was in the French law of 1857

relating to 'Marques de fabrique et de commerce.' The

extension of the idea of ownership to these three rights is of

comparatively recent date. Patent-right in England is older

than the Statute of Monopolies, 21 Jac. I. C. 3, and

copy-right is obscurely traceable previously to the Act of 8

Anne, C. 19, but trade-marks were first protected in the

present century."

_T. E. Holland,

Elements of Jurisprudence, 5th edition,

page 183._

ALSO IN:

_E. S. Drone,

Treatise on the Law of Property in Intellectual Productions._

----------EQUITY: End--------

Topics of law treated under other heads are indicated by the

following references:

Agrarian Laws.

See AGRARIAN.

Assize of Jerusalem.

See ASSIZE.

Brehon Laws.

See BREHON.

Canuleian Laws.

See ROME: B. C. 445.

Code Napoleon.

See FRANCE: A. D. 1801-1804.

Common Law.

See COMMON LAW.

Constitutional Laws.

See CONSTITUTION.

Debt and Debtors.

See DEBT.

Dioklesian Laws.

See DIOKLES.

Dooms of Ihne.

See DOOMS.

Draconian Laws.

See ATHENS: B. C. 624.

Factory Laws.

See FACTORY.

Hortensian Laws.

See ROME: B. C. 286.

Institutes and Pandects of Justinian.

See CORPUS JURIS CIVILIS.

Licinian Laws.

See ROME: B. C. 376.

Lycurgan Laws.

See SPARTA.

Laws of Manu.

See MANU.

Navigation Laws.

See NAVIGATION LAWS.

Ogulnian Law.

See ROME: B. C. 300.

Laws of Oleron.

See OLERON.

Poor Laws.

See POOR LAWS.

Publilian Laws.

See ROME: B. C. 472-471, and 340.

Salic Laws.

See SALIC.

Slave Codes.

See SLAVERY.

Solonian Laws.

See ATHENS: B. C. 594.

Tariff Legislation.

See TARIFF.

Terentilian Law.

See ROME: B. C. 451-449.

The Twelve Tables.

See ROME: B. C. 451-449.

Valerian Law.

See ROME: B. C. 509.

Valero-Horatian Law.

See ROME: B. C. 449.

{1995}

LAWFELD, Battle of (1747).

See NETHERLANDS: A. D. 1746-1747.

LAWRENCE, Captain James:

In the War of 1812.

See UNITED STATES OF AMERICA: A. D. 1812-1813.

LAWRENCE, Lord, the Indian Administration of.

See INDIA: A. D. 1845-1849; 1857 (JUNE-SEPTEMBER);

and 1862-1876.

LAWRENCE, Kansas: A. D. 1863.

Sacking of the town by Quantrell's guerrillas.

See UNITED STATES OF AMERICA:

A. D. 1863 (AUGUST: MISSOURI-KANSAS).

LAYBACH, Congress of.

See VERONA, CONGRESS OF.

LAZARISTS, The.

"The Priests of the Missions, or the Lazarists ['sometimes

called the Vincentian Congregation'], … have not

unfrequently done very essential service to Christianity."

Their Society was founded in 1624 by St. Vincent de Paul, "at

the so-called Priory of St. Lazarus in Paris, whence the name

Lazarists. … Besides their mission-labours, they took

complete charge, in many instances, of ecclesiastical

seminaries, which, in obedience to the instruction of the

Council of Trent, had been established in the various

dioceses, and even at this day many of these institutions are

under their direction. In the year 1642 these devoted priests

were to be seen in Italy, and not long after were sent to

Algiers, to Tunis, to Madagascar, and to Poland."

_J. Alzog

Manual of Universal Church History,

volume 3, pages 463-465._

ALSO IN:

_H. L. S. Lear,

Priestly Life in France,

chapter 5._

LAZICA.

LAZIC WAR.

"Lazica, the ancient Colchis and the modern Mingrelia and

Imeritia, bordered upon the Black Sea." From A. D. 522 to 541

the little kingdom was a dependency of Rome, its king, having

accepted Christianity, acknowledging himself a vassal of the

Roman or Byzantine emperor. But the Romans provoked a revolt

by their encroachments. "They seized and fortified a strong

post, called Petra, upon the coast, appointed a commandant who

claimed an authority as great as that of the Lazic king, and

established a commercial monopoly which pressed with great

severity upon the poorer classes of the Lazi." The Persians

were accordingly invited in to drive the Romans out, and did

so, reducing Lazica, for the time being, to the state of a

Persian province. But, in their turn, the Persians became

obnoxious, and the Lazi, making their peace with Rome, were

taken by the Emperor Justinian under his protection. "The

Lazic war, which commenced in consequence of this act of

Justinian's, continued almost without intermission for nine

years—from A. D. 549 to 557. Its details are related at great

length by Procopius and Agathias, who view the struggle as one

which vitally concerned the interests of their country.

According to them, Chosroës [the Persian king] was bent upon

holding Lazica in order to construct at the mouth of the

Phasis a great naval station and arsenal, from which his

fleets might issue to command the commerce or ravage the

shores of the Black Sea." The Persians in the end withdrew

from Lazica, but the Romans, by treaty, paid them an annual

tribute for their possession of the country.

_G. Rawlinson,

Seventh Great Monarchy,

chapter 20._

ALSO IN:

_J. Bury,

Later Roman Empire,

book 4, chapter 9 (volume 1)._

See, also, PERSIA: A. D. 226-627.

LAZZI, The.

See LÆTI.

LEAGUE, The Achaian.

See GREECE: B.C. 280-146.

LEAGUE, The Anti-Corn-Law.

See TARIFF LEGISLATION (ENGLAND):

A. D. 1836-1839; and 1845-1846.

LEAGUE, The Borromean or Golden.

See SWITZERLAND: A. D. 1579-1630.

LEAGUE, The Catholic, in France.

See FRANCE: A. D. 1576-1585, and after.

LEAGUE, The first Catholic, in Germany.

See PAPACY: A. D. 1530-1531.

LEAGUE, The second Catholic, in Germany.

See GERMANY: A. D. 1608-1618.

LEAGUE, The Cobblers'.

See GERMANY: A. D. 1524-1525.

LEAGUE, The Delian.

See GREECE: B. C. 478-477.

LEAGUE, The Hanseatic.

See HANSA TOWNS.

LEAGUE, The Holy,

of the Catholic party in the Religious Wars of France.

See FRANCE: A. D. 1576-1585, to 1593-1598.

LEAGUE, The Holy, of German Catholic princes.

See GERMANY: A. D. 1533-1546.

LEAGUE, The Holy, of Pope Clement VII. against Charles V.

See ITALY: A. D. 1523-1527.

LEAGUE, The Holy, of Pope Innocent XI.,

the Emperor, Venice, Poland and Russia against the Turks.

See TURKS: A. D. 1684-1696.

LEAGUE, The Holy, of Pope Julius II.

against Louis XII. of France.

See ITALY: A. D. 1510-1513.

LEAGUE, The Holy, of Spain, Venice and the Pope against the Turks.

See TURKS: A. D. 1566-1571.

LEAGUE, The Irish Land.

See IRELAND: A. D. 1873-1879; and 1881-1882.

LEAGUE, The Swabian.

See LANDFRIEDE, &c.

LEAGUE, The Union.

See UNION LEAGUE.

LEAGUE AND COVENANT, The solemn.

See ENGLAND: A. D. 1643 (JULY-SEPTEMBER).