1870. COURTS OF CHANCERY, Beginning of.—
In ancient times, when contracts
and transfers of property were more rare, and
their objects more simple, the imperfections of
the administration of justice according to the
letter of the law were less felt. But when
commerce began to make progress, when the
transfer of property came into daily use, when
the modifications of these transfers were infinitely
diversified, when with the improvement
of other faculties that of the moral
sense became also improved, and learnt to re
spect justice in a variety of cases which it had
not formerly discriminated, the instances of
injustice left without remedy by courts adhering
to the letter of the law, would be
so numerous as to produce a general desire
that a power should be found somewhere
which would redress them. History renders
it probable that appeals were made to the
king himself in these cases, and that he exercised
this power sometimes in person, but
more generally by his chancellor to whom he
referred the case. This was most commonly
an Ecclesiastic, learning being rare in any
other class at that time. Roman learning,
and a prejudice in favor of Roman institutions
are known to have been a leading feature
in the ecclesiastical character. Hence it
happened that the forms of proceeding in the
Court of Chancery, and the rules of its decisions
were assimilated to those of the Roman
law. The distinction in that system
between the jus prætorium, or discretion of
the Prætor, and the general law is well known.
Among the Romans, and in most modern
nations, these were and are exercised by the
same person. But the Chancellors of England,
finding the ordinary courts in possession
of the administration of general law, and confined
to that, assumed to themselves by degrees
that of the jus prætorium, and made
theirs be considered as a court of conscience,
or of equity. The history of the struggles
between the ordinary, or common law courts,
and the Court of Equity or Chancery, would
be beyond our purpose. It is sufficient to say
that the interpositions of the Chancellor were
at first very rare, that they increased insensibly,
and were rather tolerated from their
necessity, than authorized by the laws in the
earlier periods of history. Lord Bacon first
introduced regularity into their proceedings,
and Finch, Earl of Nottingham, in the reign
of Charles II. opened to view that system
which has been improving from that time to
this.—
To Phillip Mazzei.
Ford ed., iv, 110.
(P.
1785)
