Part 649

"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.