Chapter 2- Law
§3. Chancery
After the Norman conquest in 1066, medieval Kings began to consolidate power and establish new institutions of royal authority and justice. New forms of legal action established by the crown functioned through a system of writs, or royal orders, each of which provided a specific remedy for a specific wrong. An example is the writ of habeas corpus, which protects the individual from unlawful detention. Originally an order from the King obtained by a prisoner or on his behalf, the writ of habeas corpus summoned the prisoner to court to determine whether he was being detained under lawful authority and within the proper jurisdiction. 119 Or, as in a writ of summons being used, under the English judicature acts, as the writ by which all actions are commenced.120
The system of writs became so highly formalized that the laws which the courts could apply based upon this system often were too rigid to adequately achieve justice, and oftentimes were not fair. Writs were used individually for specific instances and requests, and usually did not allow full justice to be administered. In these cases, a further appeal to justice would have to be made directly to the king. This difficulty gave birth to a new kind of court, the court of equity, also known as the court of Chancery because it was the court of the King’s chancellor.
“O sing unto the LORD a new song; for he hath done marvellous things: his right hand, and his holy arm, hath gotten him the victory. The LORD hath made known his salvation: his righteousness hath he openly shewed in the sight of the heathen. He hath remembered his mercy and his truth toward the house of Israel: all the ends of the earth have seen the salvation of our God. Make a joyful noise unto the LORD, all the earth: make a loud noise, and rejoice, and sing praise. Sing unto the LORD with the harp; with the harp, and the voice of a psalm. With trumpets and sound of cornet make a joyful noise before the LORD, the King. Let the sea roar, and the fulness thereof; the world, and they that dwell therein. Let the floods clap their hands: let the hills be joyful together before the LORD; for he cometh to judge the earth: with righteousness shall he judge the world, and the people with equity.” 121
Equity- In the early history of the law, the sense affixed to this word was exceedingly vague and uncertain. This was owing, in part, to the fact, that the chancellors of those days were either statesmen or ecclesiastics, perhaps not very scrupulous in the exercise of power. It was then asserted that equity was bounded by no certain limits or rules, and that it was alone controlled by conscience and natural justice.122
Equity- Justice administered according to fairness as contrasted with the strictly formulated rules of common law. It is based on a system of rules and principles, which originated in England as an alternative to the harsh rules of common law and which were based on what was fair in a particular situation. One sought relief under this system in courts of equity rather than in courts of law. The term ‘equity’ denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men. 123
A system of jurisprudence collateral to, and in some respects independent of, “law”; the object of which is to render the administration of justice more complete, by affording relief where the courts of law are incompetent to give it, or to give it with effect, or by exercising certain branches of jurisdiction independently of them.
“Equity is a body of jurisprudence, or field of jurisdiction, differing in its origin, theory, and methods from the common law; though procedurally, in the federal courts and most state courts, equitable and legal rights and remedies are administered in the same court.”124
Chancer- To adjust according to principles of equity, as would be done by a court of chancery.
Chancery- Equity; equitable jurisdiction; a court of equity; the system of jurisprudence administered in courts of equity.125
Chancellor- The name given in some states to the judge (or the presiding judge) of a court of chancery. A university president, or chief executive officer of higher education system in certain states.
Chancellor of the Exchequer- In England, an officer who formerly sat in the Court of Exchequer, but now is minister who has control over national revenues and expenditures.
Lord High Chancellor- The highest judicial functionary in England.126
Courts of chancery were authorized to apply principles of equity based on many sources (such as Roman law and natural law) rather than to apply only the common law, to achieve a just outcome. 127 The proceedings, law and jurisdiction were decided by various factors and sources, and they greatly differed from the common law courts of record.
“Proceedings in courts of chancery are said not to be, strictly speaking, records; but they are so considered.”128
This evolution of a national legal culture in England was contemporaneous with the development of national legal systems in civil law countries during the early modern period.
Civil Law- That body of law which every particular nation, commonwealth, or city has established peculiarly for itself; more properly called “municipal” law, to distinguish it from the “law of nature”, and from international law. Laws concerned with civil or private rights and remedies, as contrasted with criminal laws.
The system of jurisprudence held and administered in the Roman empire, particularly as set forth in the compilation of Justinian and his successors, - compromising the Institutes, Code, Digest, and Novels, and collectively denominated the “Corpus Juris Civilis,” – as distinguished from the common law of England and the canon law. The civil law (Civil Code) is followed in Lousisana.129
Where legal humanists and Enlightenment scholars on the continent looked to shared civil law traditions as well as national legislation and custom, English jurists of that era took great pride in the uniqueness of English legal customs and institutions. That pride, perhaps mixed with envy inspired by the contemporary European movement toward codification, resulted in the first systematic, analytic treatise on English law: William Blackstone’s (1723-1780) Commentaries on the Laws of England. Drs. Donald S. Lutz and Charles S. Hyneman analyzed the various sources read and cited by the founders of this country; Blackstone was by far the most-cited English/American scholar.130 The American Revolution was a revolt against the politics of English government, but not its legal foundations of constitutionalism; the Commentaries, in fact, were cited nearly 10,000 times in the reports of American courts between 1789 and 1915.
“The influence of Blackstone’s “Commentaries on the Laws of England... was phenomenal and as great in American as in England” 131; and “Upon Blackstone’s Commentaries, United States Supreme Court Justice John Marshall and other early American jurists built the American legal system.132” Indeed, in the most notable of Marshall’s decisions, he cited Blackstone several times to advance the concept of constitutional supremacy over the power of judges.133 This fact is especially important today since judicial supremacists still cite Marbury as the source of judicial power.
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119 The Common Legal Past of Europe 1000-1800 by Manlino Bellmo (1995) Washington, D.C.
120 Black’s Law Dictionary, 5th Edition, pg. 1445; see Writ of Summons (1979)
121 The Holy Bible, KJV, (1611) Book of Psalms, chapter 98
122 A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; With References to the Civil and Other systems of Foreign Law, to which is added Kelhams Dictionary of the Norman and Old French Language by John Bouvier (1856); pg. 472
123 Giles v. Department of Human Resources Development, 11 Cal.3d 313, 113 Cal.Rptr. 374, 380, 521 P.2d 110. (1974)
124 Giles v. Department of Human Resources Development, 11 Cal.3d 313, 113 Cal.Rptr. 374, 380, 521 P.2d 110. (1974)
125 Black’s Law Dictionary, 5th Edition, pg. 210 (1979)
126 Black’s Law Dictionary, 5th Edition, pg. 210 (1979)
127 The Common Legal Past of Europe 1000-1800 by Manlino Bellmo (1995) Washington, D.C.
128 Gresley, Ev. 101. (1825) And see 8 Mart. La. N. S. 303; 1 Rawle, Penn. 381; 8 Yorg. Tenn. 142; 1 Pet. C.
C. 352
129 Black’s Law Dictionary, 5th Edition, pg. 223 (1979)
130 Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth Century American Political Thought,” American Political Science Review, vol. 78 (1984), p. 184
131 Lee Cameron McDonald, Western Political Theory. (New York: Harcourt, Brace, Jovanovich, Inc, 1968), p. 360
132 Herbert W Titus, “Moses, Blackstone and the Law of the Land,” Christian Legal Society Quarterly, vol. 1, no.4, (Fall, 1980), p. 5
133 Marbury v Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) ]