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COLLECTED LEGAL PAPERS

EARLY ENGLISH EQUITY:

I. USES

At the end of the reign of Henry V. the Court of Chancery was one of the established courts of the realm. I think we may assume that it had already borrowed the procedure of the Canon law, which had been developed into a perfected system at the beginning of the thirteenth century, at about the same time that the Chancellor became the most important member of the King's Council. It had the "Examination and oath of the parties according to the form of the civil law and the law of Holy Church in subversion of the common law." It had the subpoena, which also it did not invent, and it had a form of decree requiring personal obedience."

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* Law Quarterly Review, Vol. 1, p. 162. (1885.) 1 Rot. Parl. 84 (3 Hen. V. pt. 2. 46, No. 23).

3 See writ addressed to sheriff, Rot. Claus. 16 Hen. III. m. 2 dorso in i Royal Letters, Hen. III (Rolls ed.), 523. Proc. Privy Council (Nicholas) passim. Stat. 20 Ed. III, c. 5. The penalty was usually money, but might be life and limb; 1 Proc. Priv. Counc. (21 R. II. A.D. 1397). The citation of Rot. Parl. 14 Ed. III, in 1 Roll. Abr. 372, which misleads Spence (1 Eq. 338n.) and earlier and later writers, should be 14 Ed. IV. (6 Rot. Parl. 143), as pointed out already by Blackstone, 3 Comm. 52 n. We also find the writ Quibusdam certis de causis, a writ in the form of the subpoena except that it omitted the penalty; Palgrave, King's Council, pp. 131, 132, note X; Scaldewell v. Stormesworth, 1 Cal. Ch. 5.

3 See Audeley v. Audeley, Rot. Claus. 40 Ed. III, sur peine de sys mill livres au paier au roy," cited Palg. King's Council, 67, 68; 2 Cal. Ch. x. See prayer in 3 Rot. Parl. 61 (2 R. II. 26). Imprisonment for contempt again is older than the Chancery, e.g. Mem. in Scacc. 27 (M. 22 Ed. I) in Maynard's Y. B., part 1.

Down to the end of the same reign (Henry V.) there is no evidence of the Chancery having known or enforced any substantive doctrines different from those which were recognized in the other courts exçept two: “One of them, a peculiar view of contract, , has left no traces in modern law. But the other is the greatest contribution to the substantive law which has ever been set down to the credit of the Chancery. I refer to Uses, the parent of our modern trusts. I propose to discuss these two doctrines in

I a summary way as the first step toward answering the question of the part which Equity has played in the development of English law.

As a preliminary, I ought to state that I assume without discussion that the references to aequitas in Glanvill, Bracton, and some of the early statutes passed before the existence of a Chancery, have no bearing on that question. I ought also to say that the matters of grace and favour which came before the Council and afterwards before the Chancellor do not appear to have been matters in which the substantive rules of the common law needed to be or

4 Glanvill, Prologus, Bracton, fol. 23b; ib. 36, “Aequitas quasi aequalitas.” Fleta, II. C. 55, $ 9. Petition of Barons, C. 27 (A.D. 1258), in Annals of Burton (Rolls ed.), 443, and Stubbs, Select Charters, for remedy ex aequitate juris by writ of entry or otherwise. Dictum de Kenilworth, pr. (A.D. 1266) Stat. of Realm, 51 Hen. III, and Stubbs, Select Charters; Close Rolls of Hen. III, cited in Hardy, 'Int. to Close Rolls, xxviii. n. 5 (8vo. ed. p. III). So "right and equite,” letter missive of Hen. V. to Chancellor, I Cal. Ch. xvi.

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