Chapter LV: Part 55

"Sir James Fitz James Stephen, in his _History of Criminal
Law_, estimates that at the end of the sixteenth century
there were about 800 executions per year in England (volume 1,
468). Another sentence in vogue in England before that time
was to be hanged, to have the bowels burned, and to be
quartered. Beccaria describes the scene where 'amid clouds of
writhing smoke the groans of human victims, the crackling of
their bones, and the flying of their still panting bowels were
a pleasing spectacle and agreeable harmony to the frantic
multitude.' (chapter 39.) As late as the reign of Elizabeth,
… the sentence of death in England was to be hung, drawn and
quartered. Campian, the Jesuit, was tortured before trial
until his limbs were dislocated on the rack, and was carried
helpless into Westminster Hall for trial before the Chief
Justice of England, unable to raise an arm in order to plead
not guilty. He was sentenced to be hung, drawn and quartered,
which meant legally, that upon being hung he was to be cut
down while yet living, and dragged at the tail of a horse, and
then before death should release him, to be hewn in pieces,
which were to be sent dispersed to the places where the
offense was committed or known, to be exhibited in attestation
of the punishment, the head being displayed in the most
important place, as the chief object of interest. In the
process of hanging, drawing and quartering, Froude says that
due precautions were taken to prolong the agony. Campian's
case is specially interesting, as showing the intervention of
a more humane spirit to mitigate the barbarity of the law. As
they were about to cut him down alive from the gibbet, the
voice of some one in authority cried out: Hold, till the man
is dead.' This innovation was the precursor of the change in
the law so as to require the sentence to be that he be hanged
by the neck until he is dead. It is not generally known that
the words 'until he is dead' are words of mercy inserted to
protect the victim from the torture and mutilation which the
public had gathered to enjoy."

_Austin Abbott,
Address before New York Society of Medicine Journal
(The Advocate, Minn., 1889, volume 1, page 71)._

CRIMINAL LAW: A. D. 1641-1662.
No Man shall be compelled to Criminate himself.

"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.