Europe, in which popular assemblies were crushed by the CHAP. unresisted encroachments of the executive government. XXII. What acquaintance Fortescue had with equity we have no Equity means of knowing; but it is clear that he was not a mere lawyer. technical lawyer, and that he was familiar with the general principles of jurisprudence. " We rary merits. As a writer, his style is not inelegant, though not free from His litethe barbarisms of the schools; and he displays sentiments upon liberty and good government which are very remarkable, considering the fierce and lawless period when he flourished. His principal treatise has been celebrated not only by lawyers, but such writers as Sir Walter Raleigh, and not only by Englishmen but by foreign nations. cannot," says Chancellor Kent, in commenting upon it, "but pause and admire a system of jurisprudence which in so uncultivated a period of society contained such singular and invaluable provisions in favour of life, liberty, and property, as those to which Fortescue referred. They were unprecedented in all Greek and Roman antiquity, and being preserved in some tolerable degree of freshness and vigour amidst the profound ignorance and licentious spirit of the feudal ages, they justly entitle the common law to a share of that constant and usual eulogy which the English lawyers have always liberally bestowed upon their municipal institutions."* racter. Notwithstanding his tardy submission to the House of His chaYork, he is to be praised for his consistency as a politician. Unlike the Earl of Warwick and others, who were constantly changing sides according to interest or caprice, he steadily adhered to the House of Lancaster till it had no true representative, and the national will had been strongly expressed in favour of the legitimate heir. We must, indeed, regret the tyranny of Edward, who would not generously pardon him on account of his fidelity to his former master; but his compliance with the arbitrary condition imposed upon him should be treated with lenity by those who have never been exposed to such perils. Lord Coke rejoiced that his descendants were flourishing in His dethe reign of Queen Elizabeth; and I, rejoicing that they still scendants. *Kent's Causes. CHAP. End of the reign of Henry VI. Equitable of Chan reign of Hen. VI. flourish in the reign of Queen Victoria, may be permitted to express a confident hope that they will ever continue, as now, to support those liberal principles which, in the time of the Plantagenets, were so powerfully inculcated by their illustri ous ancestor. We must now take a short review of the law under Henry VI.; for although, after languishing ten years as a prisoner in the Tower, he was again, for a short time, placed as a puppet on the throne, we must consider that his reign really closed when, upon the military disasters of his party, his queen and son went into exile, all his supporters were either slain or submitted, and a rival sovereign was proclaimed and recognised. upon age. The Chancellors of this reign, particularly Cardinal Beaujurisdiction fort, the Earl of Salisbury, Archbishop Bourchier, and Bishop cery during Waynflete, were men of great note, and had much influence the historical events of their Under them, assisted by John Frank, Master of the Rolls, the Court of Chancery grew into new consideration. The doctrine of uses was now established, and it was determined that they might be enforced without going to parliament. So low down as the 7th of Henry VI., this kind of property was so little regarded, that we find it stated by one of the judges as "a thing not allowed by law, and entirely void, if a man make a feoffment with a proviso that he himself should take the profits*;" but in the 37th year of the same reign, in the time of Lord Chancellor Waynflete, a feoffor to such uses as he should direct, having sold the land and directed the feoffees to convey to the purchaser, it was agreed by all the judges in the Exchequer, when consulted upon the subject, that the intention of the feoffor being declared in writing, the feoffees were bound to fulfil it, and they intimated an opinion, that where a testator devised that his feoffees should make an estate for life to one, remainder to another, the remainder-man should have a remedy in Chancery, to compel a conveyance to himself, even during the continuance of the life interest.† Very soon after, the distinction between the legal and equitable estate was fully settled on the principles, and in the CHAP. language which ever since have been applied to it.* XXII. On other points, Equity remained rather in a rude plight. Rude state For example,—in a subsequent case which came before Lord of Equity. Chancellor Waynflete, where the plaintiff having given a bond in payment of certain debts which he had purchased, filed his bill to be relieved from it, on the ground that there was no consideration for the bond, as he could not maintain an action to recover the debts in his own.name. This case being adjourned into the Exchequer chamber, the judges, instead of suggesting that an action might be brought for the benefit of the purchaser, in the name of the original creditor, held, that the bond was without consideration, and advised a decree that it should be cancelled, which the Chancellor pronounced. An action was, nevertheless, brought upon the bond in the Common Pleas, which prevailed, that Court holding that the only power the Chancellor had of enforcing his decrees, was by inflicting imprisonment on the contumacious party, who might still prosecute his legal right in a court of law, notwithstanding the determination in Chancery, that the bond was unconscionable.† To remedy this defect, injunctions were speedily introduced, raising a warfare between the two sides of Westminster Hall which was not allayed till after the famous battle between Lord Coke and Lord Ellismere, in the reign of James I. Bills were now filed for perpetuation of testimony; the examination was taken by commissioners, and certified into Chancery. Possession was quieted by the authority of the Court, and its jurisdiction was greatly extended for the purpose of affording relief against fraud, deceit, and force. I † Y. B. 36 Hen. 6. 13. * See Y. B. 4 Ed. 4. 3. Although there are few notices of Equity cases in the early reports, - from the petitions and bills in Chancery extant in the Tower, we can form an adequate notion of the subjects over which the jurisdiction was exercised. The reader may be amused by a few specimens of these in the reign of Henry VI. Kymberley v. Goldsmith. Bill for refusing to deliver to plaintiff a ton of woad which defendant had sold him, and which had been paid for in wool. [I presume the plaintiff prayed a specific performance of the contract.] Midylton v. Cotyngham. Complaint, that defendant assaulted and attempted to murder the plaintiff in church, and still lies in wait for him, so that he durst not abide in the country. [Various instances occur of surety of the peace being prayed.] Hoiges v. Harry. Bill praying the Chancellor to restrain the defendant by CHAP. oath from using the arts of witchcraft, whereby he has injured the plaintiff, from the latter having been attorney in a suit against the Prior of Bodmin, in whose service the defendant is. [It would be curious to know on what affidavit the application was made, and whether it was granted, and whether there was any motion for a breach of the injunction.] Sampson & Gage v. Creeve & Brearye. Complaint, that the defendants, being officers of the sheriffs of London, forcibly took the plaintiffs out of the sanctuary of St. Katherine, and confined them in the Poultry Compter. [One would have supposed that the process of excommunication and interdict would have been more effectual.] Brown v. Widow of James Lord Say. Bill to set aside the release of lands made by duress of imprisonment to the Lord Say, who, just before he was put to death by Jack Cade, confessed the wrong he had done, and desired his confessor to urge his wife to make restitution. [If the suit succeeded on the evidence of the confessor, this would be an authority for Mr. Justice Buller having hanged a man upon a confession in extremis to his priest, whom he compelled to disclose it.] Piers Godard v. William Ridmynton. Bill addressed to the Master of the Rolls, complaining that defendant had ravished his servant maid. [There is no prayer of specific relief, nor any statement that the maid had been under the care of the defendant, to make it a case of breach of trust.] See 1 Cooper on Public Records, 362. Bridges v. Harvey. Bill praying the Chancellor to restrain the defendant by oath from using the arts of witchcraft, whereby he has injured the plaintiff, on account of his having been attorney in a suit against the Prior of Bodmin, in whose service the defendant is employed. Appleton v. Aleyn & Others. Bill complaining that defendants had forcibly taken away the daughter of the plaintiff and married her, whereby the plaintiff lost the profit of her marriage. Qwyney v. Laudasdale & Hempstile. Bill complaining that defendants, late sheriffs of Norwich, had imprisoned and greatly oppressed the plaintiff, in consequence of his making tallow candles with wicks of flax instead of cotton, by desire of the poor people. Hilton v. Pollard & Matthews. Complaint that plaintiff, at the time of Jack Cade's rebellion, delivered certain plate for safe custody to his late servant John Rich, who, on his death-bed, charged the defendants, his executors, to restore the same to the plaintiff. CHAPTER XXIII. CHANCELLORS IN THE REIGN OF EDWARD IV. CHAP. XXIII. EDWARD IV. having been proclaimed king on the 5th of March, 1461, on the 10th of the same month the Great Seal was delivered, the second time, to George Neville, Bishop of 4 March, Exeter, who took the oaths as Chancellor.* He had been an 1461. George active leader in the tumultuary proceedings which took place Neville in the metropolis during the late crisis. Without calling a again parliament, first by a great public meeting in St. John's Fields, and then by an assembly of bishops, peers, and other persons of distinction at Baynard's Castle, he had contrived to give a semblance of national consent to the change of dynasty. Chancellor. ment. lor's speech on opening session. The new King, after the decisive battle of Towton, in which 36,000 Englishmen were computed to have fallen, but which firmly established his throne, having leisure to hold a parliament, it met at Westminster in November, and was opened Nov. 1461. in a notable oration by Lord Chancellor Neville, who took A parliafor his theme "Bonas facite vias;" but we are not informed Chancelwhether he exhorted them to make provision for the repair of the highways, greatly neglected during the civil war, or to find out ways and means to restore the dilapidated finances of the country, or what other topics he dwelt upon. After a Speaker had been chosen by the Commons, who, being allowed, addressed the King, commending him for his extraordinary courage and conduct against his enemies,—the Chancellor read a long declaration of the King's title to the crown,—to which was added a recapitulation of the tyrannous reign of Henry IV., and his heinous murdering of Richard II.† The required acts of attainder and restitution being passed |