Hesperian student / (Lincoln [Neb.]) 1872-1885, December 01, 1875, Image 1

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    Hesperian Student.
VOL. -I,
University of JVcbraska.
NO 10.
CJul noil Pvoilolt, loJlolt.
tingliHli Judicature
Tin- past two yours will be memorable,
among iy otlior.things, lor the changes
they have wrought in tho English judici
ary system. For live centuries in Eng
land tlu- Court of Chancery has existed
with a special equity jurisdiction and
special forms of procedure, separate and
distinct from tho Common Law courts of
the realm.
On the 5th day of August, 1873, an act
was passed abolishing the venerable Court
of Chancery, a a distinct factor in tho
heretofore dual system, and which consol
idatcs all the superior courts of England,
including the Court of Chancery, into one
Suniome Court of England, which is to
be presided over by the Lord Chancellor
and without distinguishing, so far as form
is concerned, betweun law and equity, to
luhninixtor justice on equitable principles.
The old forms of pleading are abolished ;
the summons by which the suit is com
menced is indorsed with a -statement of
the nature of the claim made or the relief
or remedy sought, the defendant files a
statement of his defense and the plaintiff
replies if necessary. Causes will bo tried
before one or more of the Judges sitting
with or without neeossors or a jury or
may be sent to a referee for hearing.
The system thus briclly sketched went
inti oll'cct, I believe, on the second day of
November, IH7."J, and in its main features
is substantially the same as that adopted
in this country a number of years since.
In many particulars this is doubtless a
progressive movement, while it is equally
true that in the main It :s but restorative
of the ancient Enulish judicature. The
of the great charter and it lias been said
to be as ancient as the Kingdom itself.
The simple question of oiigin, when and
from whence it came, I leave to antiqua
rians. I care to speak only of its
later history, how it came to have
an original jurisdiction in cases of
an equitable character, independent of tho
courts of the Common Law. Leaving
this point out of view, the abolishment
of the English Court of Chancery would
have but little meaning and would be com
paralively an insignilicnnt event.
At the time of the partitioning of the
jurisdiction of the Auli Regis, the idea of
a special equity jurisdiction in Chancery,
such as appears later in its history, does
not seem to have existed or at least was
not considered by the learned writers
upon early English law. There exists
no record of that time which shows that
suits were brought immediately in the
Court of Chancery because of the inherent
equitable character of the case, but it is
clearly shown that Chancery jurisdiction
in the first instance was chielly confined
to particular cases wherein there was a
defect of legal administration, as:
1. The want of a proper or perfect
writ. Questions touching the validity of
tho writ upon which the action at law was
founded were properly raised and disposed
of in the Court of Chancery the source
from whence all the writs came.
2. Petitioning for the writ of habeas
mrpiiK to release the complainant from
illegal imprisonment.
!J. Some special ground of equitable
Interference on the pari of the Court of
Clianceiy as representing the king, not de
pending upon the peculiar equitable na
ture of the ease, but because of some ob-
general reader is aware that in early times
the .supremo Court of the realm va Hie itruulion to tho ordinary administration
of justice.' For example, "by reason of
the wealth or power of the wrongdoer,"
"that I lie def'iidant is surrounded by
many men of his own maintenance," or
the extreme poverty and inability iA' the
complaining party to prosecute Ills suit
according to the forms of lnw.-
Able writers and investigators have con
eluded that the original equitable jurisdic
lion in Chancery as contradistinguished
from tho above and from that of the
courts of the Common Law began in the
reign of Edward III, when by proclama
tion matters of grace were referred to the
Chancellor.) Though tho exact time is a
point of some dispute it is certain that
this special equity jurisdiction became
well established and acted upon by the
time of Kiohard II 1 Thus from the of
lice of the Chancellor, as keeper o tho
seal and the King's conscience, from whom
issued all tho writs of the King, gradually
grew the modern Court of Chancery with
its extended equity jurisdiction lllling no
small spaco in the history of English jurisprudence.
Several theories have been advanced
Au'n Hefi'x or grea'. council of the King,
wherein the Kin,: sal personally and
which followed his person and adminis
tered equal justice according to the rules
linili of law and equity or of either as
might be necessary from the nature of
tin- case. Hut while those facts may be
well known to many, comparatively low,
I'wn students of tho law, fairly compre
hend the origin, nature and influence- of
tile Kngllsh Court of Chancery and there
liition it sustained in its special equity
jurisdiction to HnglUh judicature as a
whole. Since tho fall of this oijlcino jux-
UU.i must be recorded, a topical review of
its history may not prove uninteresting.
When the primitive Court of t io Hoalm,
the Anhi llritx, became burdensome and
nieillciiMit from its migratory character
uiul was finally broken up, its jurisdiction
was consequently divided among various
joints, as tlie Common Pleas, the King's
iJleiich and tho Court of Chancery which
with others wore subsequently and perma
nently located at Westminster. The
clause of Magna Oh'ivtu guaranteeing the
new order of things ran thus: communia
phwitu non curium nostrum wjucntur, sed
in aliquo loco tetumntur.
The history of that time, however, shows
that the Court of Chancery exercising its
ordinary jurisdiction, existed at tho time
had long existed. Some of these arc in
genious and interesting. It is sulllcient
to give the one commonly accepted by
learned English writers.
Originally appeals for relief of a purely
equitable character were made directly to
the King or by petitions to Parliament, the
king being bound by his coronation oath
to deliver his subjects aquam el rectum
juxtitiaiii. These petitions becoming bur-'
densome to Parliament it readily found a
substitute which had more time to deter
mine such matters and began to refer them
to the Legale Concilium Regis and finally
they were by the King referred to his
Chancellor. This came ultimately to be
the settled practice from which it is but a
single step forward to the later one of ap
pealing directly to the Chancellor and
his associates as a Court of Equity insim
ilar cases. Adding the fact that the chan
cellor was usually an ecclesiastic and fa
miliar wilh the forms and fictions of tho
civil law, we have tho nucleus of that
court of equity which grew to such gi
gantic proportions under Woolsey and
was adorned by such consummate genius
and learning as belonged to Finch and
Ilardwick. The stalulesof mortmain and
other acts of legislation had much to do
in augmenting its jurisdiction and power.
'I he fundamental principles of the new
English system are the fusion of law and
equity and the abolition of the old forms
and distinctions in pleadings in legal and
equitable cases. This, however, is not-a
fusion of rights but of judicatures. The
distinction in fact between law and equity
is admitted by legal writers, though Mr.
Austin maintains that it is unnecessary and
while this distinction is well rooted in
England she lus coiicludodthuttonc set. of
Courts and Judges is suflioieht to determine
the whole of a con trovorsyiand tile rights
of the parties whether legal -or equitable
and thai too under a uniform course of
pleading. Indeed no satisfactory reason
why this should not be so has yet been
:iven and in this matter the Mother Conn
try is but following the plan adopted in
this count v in 1818. Henceforth "West
English judicature a similarity to that of
his own country, begetting interest and
when contrasted with the old system,
much easier of comprehension for the or-
dlnary intellect. The Court of Chancery
is a tiling of tho past, of which I think
the most subtle mind learned in tho law
can scarcely say olim meminisse jucabit.
J. Stuaut Dales.
Jiullc. ill
:) Black. Conim., 50. Tho
Chancery Stated j-luip. ', jingo
tint Chun. C'nl. 8, 14, 130.
iParke Hint. Chun. 35, let Equity A br. Courts
13. note ii.
U'L'nl .Iiiillc. in Chun., Stated 811, :W. 33. PurkcB
Hint. Chun. 31) to II, 51. Hex v t tundlxh 1 Mod. It.
1'nrkes Hint. Chun. A)ip. ."-(. Legal Jtnlic. in
Chun Slated 'J7, -M, '".). 3 lilnck Comin. 007, Bi,
Pinko Hint. C'lmn. 50.
In the establishment of the Universe,
according to the eternal principle of por
fect lltness, every sphere was made to re
volve with its own velocity in its own par
ticular orbit; every element attracts or re
pulses according to its own peculiar prop
erties, yet all serve in their turn to aid in
carrying out tho mysterious plan of the
Supreme Intelligence. So in the organi
zation of human society, according to the
same mysterious plan, every Individual is
driven .n by ills own peculiar motors in
his particular sphere of action. Here each
has a place to lill.each a function to perform
assigned to him by the eternal law of in
tellectual precedence. And yet all in their
I way contribute to the one great end of
i their being, the mutual amelioration of all.
The sage and the wiseacre, the philoso
pher and the dolt, tho priest and thecrim- ,
inal are as truly complements of each
other, as the mountain and Its correspond
ing valley or the land and the sea. Eacli
would be incomplete without the other.
Neither the purpose nor the desire of
man is satisfied with a passive neutrality;
well directed activity alone can accom
plish the mnnmitiji bonmit of life. Jiut
what direction shall that activity take?
" Heason is here uoguide, butstill a guard.
'Tis here to rectify, not overthrow." If
Providence has marked out our course and
minslei- will he a common hull of itistice
- ...-."-- .( , ... . . i I
instead of six juridical staircases steep jg'veu mo .no ors io aci.on, is uoi inai an
impious ilium viiil;.. icasuit wouiu iiusi;
to .stop us? If, perchance, a divine hand
to explain the origin of this extended cq
nity jurisdiction in Chancery witli its pe
culiar forms and methods, other than tho
proclamation of Edward III, which was
simply confirmatory of a practice which
and dangerous.
To an American this radical change in
EngHsJi Jurisprudence, bubbling quietly
to the surface after a quarter century of
fermentation, is wonderful and instructive.
The old system fortified bv it centuries
of custom and the wisdom of the sages,
seemed well-nigh impregnable, lint tho
modern idea overcame it as the modern
idea bids fair to overcome other venerable
English institutions. The fact that the
English liar so wonderfully centralized
and so powerful should submit to tho in
traduction of the now judicature is no
slight indication of the burdensome intri
cacies and defects of the old.
To tho law students of coming years
this is a matter of special interest. For
them, tho English Court of Chancery as
an institution separate and complete in it-
soli, lias passed into history and the
has kindled the sacred fire of genius is it
not unwise to attempt to quench it?
It has been said that in every life there
is a pivot upon which the decisive turn
is made. With many, O how many!
this was the time when in tho fever of
youth, excited by hope and frenzied by
ambition, they chose their course of life.
Can thoie be a more sublime picture, a
more solemn scene than that of a young
man electing the theme of his future?
Ho is standing on tho great divide. Ono
step to east is the mountain spring which,
after a thousand silent meanderings, enters
the stormy waters of tho Atlantic, and but
a pace to the west is the source of that
brooklet which, buffeted by a thousand
cataracts, finally reaches the peaceful Pa
cific. A little to the right is a patli lead-
American student will find in the now ing up the barren, rough and rugged hill
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