VOL. IX. SHAKESPEARIANA. OCTOBER, 1892. No. 4. FALSTAFF AND EQUITY. "And the Prince and Poines bee not two arrant cowardes theres no equitie stirring, theres no more valour in that Poynes than in a wilde ducke." (1 Henry IV., Act II., Scene 2. First Quarto, 1598.) SECOND PAPER. IN the previous paper, occasional reference was made, and further reference will be made in this, to a synoptic note, for a condensed view of the historic war between the courts of law and equity, giving the dates of its successive stages and material incidents.* Omitted before for want of space, the note referred to is now brought to the front, leave being asked to repeat an explanatory sentence:-" The genesis of the controversy is traced to the great struggle between the laws of England and Rome, from the twelfth century to the fourteenth, when *THE WAR BETWEEN THE COURTS.—Temp. Henry II., 1154-1189. Violent struggle for jurisdiction between the laws of England and Rome, resulting in clipping the wings of the ecclesiastical courts by the Constitutions of Clarendon, followed by the assassination of Archbishop and ex-Chancellor Thomas à Becket. (4 Bl. Com., 422; Hallam, M. A. Ch., 7; Lord Camp., Life of Becket.)—John, 1204-1215. The barons declare for trial by jury and the law of the land. (Magna Charta.)—Henry III., 1217-1272. The barons reply to the prelates “quod nolunt leges Angliæ mutare." They are unwilling to change the common for the civil law. (Stat. of Merton.)--Edward I., 1272-1307. Stubborn opposition to continued encroachment of ecclesiastical courts. Vigorous measures taken to repress it. (4 Bl. Com., 425.)—Edw. III., 1327-1377. Struggle over jurisdiction renewed. Wyclif and the Lollards-Chaucer-Statute of Premunire 27 Ed. III. (so called from the leading word in the writ by which sheriff is charged to summon delinquents), denouncing with severe penalties those "which do sue in any other court to defeat or impeach the judgments given in the King's Court." This is the statute mainly relied on by the common-law judges in their opposition to the equity jurisdiction of restraining judgments by injunction. (3 Inst., 119, 122.) -The Roman law, heretofore in favor with the courts, now becomes an object of aversion. (1 Spence, Eq., 346.)——Rich. II., 1381-1399. Increase of Lollardry. The barons protest that they will never suffer the kingdom to be governed by the Roman law. The judges prohibit the citation of the civil law. Effect of the exclusion of the civil law from the common-law courts, to throw the exclusive administration of trusts into the Court of Chancery. Waltham supposed to devise the writ of subpana, 1386. Jealousy of Parliament toward the growing power of chancery. Repeated efforts to restrain and limit its authority. Its jurisdiction supported by the crown. Parliament will not admit of an equity of redemp it merges into the long contest with the constantly developing jurisdiction of chancery, settled finally by the intervention of King James the First on the side of chancery in 1616." tion. (2 Fon., Eq., III., 1, sec. 2, note; 1 Spence, Eq., 346; 3 Bl. Com., 52; 4 Inst., 82; 3 Reeves' Hist. C. L., 188, 274, 379; Parkes' Hist. Chan., 39-48; Gilb., For. Rom., 17; 1 Sto. Eq. Jur., sec. 46; 1 Pom., Eq., sec. 20; Ld. Camp., Lives Ch. of R., II.)——Henry IV., 1399-1413. Lollards persecuted and Sir John Oldcastle executed. Continued struggle against the growing jurisdiction of equity. The commons renew their petitions complaining of the Court of Chancery, particularly of its interference with matters remediable at law. Statute of Prohibition, 4 H. IV., declaring that judgments at law should not be annulled excepting by attaint or for error, one of the statutes afterwards relied on by the judges to support their opposition to common injunctions. (4 Inst., 83; 3 Bl. Com., 52; 1 Spence, Eq., 348; and authorities cited supra.)—Henry V., 1413-1422. The same struggle continues. The commons renew their remonstrances against the Court of Chancery, which is again supported by the crown. (Lord Camp., Life of Beaufort, and same authorities.)——Henry VI., 1422-1461. The struggle continues. In this feeble reign, the chanceliors fail of their accustomed support from the crown. The opposition to chancery scores a point in securing the passage of an act requiring that no subpœna should issue in matters determinable by the common law, and requiring a certificate by two justices, and bond to be given by all plaintiffs in equity. (15 H. VI., C. 4.) This statute appears to have been neglected by the chancellors, since it was again distinctly provided that “no matter determinable by the law of this realm" shall be "determined in other form than after the course of the same law in the King's Courts" (31 H. IV., C. 2; 4 Inst., 83, 84; 1 Spence, Eq., 370.)--Edward IV., 1461-1483. In this despotic reign the Court of Chancery is firmly in the saddle. No further opposition is made in Parliament, and the struggle is transferred to the courts of law. The right of the chancellor to restrain judgments by injunction "vehemently opposed," as appears by the Year Books. In 5 Ed. IV., 35, it was resolved that after judgment at common law the party could not be relieved in equity. In 22 Ed. IV., 37, the same was again resolved, with the declaration by the judges that they would release on habeas corpus any suitor who should be imprisoned by the chancellor for breach of such an injunction. (3 Inst., 123; Cro. Jac., 344.)—— Henry VIII., 1509-1547. Lollardry merging into Puritanism. Impeachment of Wolsey, for (amongst other articles) assuming jurisdiction as chancellor after judgment at law. Continued opposition of the judges to injunctions granted by his successor, Sir Thomas More. He proposes to the judges that if they would "mitigate and reform the rigor of the law themselves, there would be no more injunctions." They refuse, and he announces his purpose to persevere. Stat. of Uses, 27, H. 8, designed to abolish equitable jurisdiction over landed property, but such effect defeated by narrow decisions. (2 Bl. Com., 336; 4 Reeves' Hist. C. L. 520; 370–376. Parkes' Hist. Chan., 63, 65. Roper, Life of More, 42; Ld. Camp., do.; 1 Sto. Eq. Jur., sec. 51; 3 Inst., 124; 4 Inst., 91.)—Elizabeth, 1558-1603. "The warfare between the two sides of Westminster Hall" (in the language of Lord Campbell) continues throughout this reign, as shown by the following cases, cited 3 Inst., 124; Mich., 8 & 9, El. in K. B. Ralph Heydon, gent., was indicted of a premunire upon the stat. 27 E. III., for procuring of Sir Nicholas Bacon, Lord Keeper of the Great Seal, to grant an injunction in chancery after judgment given in ejectment, in subversion of the laws of the realm.—Trin. 21 El., in the common pleas. A writ of premunire The narrative will now be resumed at the point where it was adjourned by the fall of the editorial gavel, just at the interesting stage where Throckmorton filed a bill in chancery for relief against the judgment at law, rendered upon the technical forfeiture. There would of course be no difficulty in such a case at the present day. But juridical equity was at that time an undeveloped system, and its relief was sparingly granted even as against penalties and forfeitures. The plaintiff in equity was required to show special circumstances of extremity or accident to excuse the forfeiture.* Accordingly Throckmorton's bill alleged some such "apparent matter of equity" (not necessary to be here particularized), to show that the non-payment of rent was no wilful failure. On behalf of his client, Coke demurred to the bill, thus raising the simple issue that, after judgment at law, equity could not interfere. It was at this point that Queen Elizabeth interposed her authority. Ellesmere was then lord chancellor, and, in accordance with his well-known principles, had clearly manifested his inclination to overrule the demurrer, and sustain his jurisdiction.† He certainly had a right to presume that Her Majesty, being an interested party, would keep her hands off, and that, at least, consistency would re upon the said stat. of 27 E. III. by Beans against Lloyd, for suing before the President and Council in Wales (a court of equity) after judgment in the common pleas, in subversion, etc.--Pasch, 27 El. in K. B. Peter Dewse was indicted for procuring an injunction in chancery after a judgment in ejectment.--Trin. 30 El. in K. B. John Heal, of the Inner Temple, Esquire, was indicted of a premunire for procuring a suit in chancery after a judgment at law, contrary to the stat. 27 Ed. III. On exceptions taken by counsel, the court resolved that the Court of Chancery was within the statute of premunire, but quashed the indictment for a variance in the name of a party.- -Mich., 39 & 40 El. Thomas Throckmorton exhibited a bill in chancery against Sir Moyl Finch. (This case, as well as that of Heal, will be found fully stated in the text.)—James I., 1603-1616. The culminating crisis and final settlement of the controversy by the king in person in favor of the jurisdiction of equity, the issue being precipitated by the following cases: Heath vs. Ridley, Cro. Jac. 335; Courtney vs. Glanvil, Cro. Jac. 343; Goge's case, 1 Rolle, 277.——1616. A commission of crown lawyers, with Bacon at its head, is instructed to report as to the precedents of injunctions granted after judgments at law. The commission reports in favor of the jurisdiction of the Court of Chancery, that the chancery "does not assume to undo the judgment, but only to restrain the corrupt conscience of the party." Upon this report an order of the king is passed, 18th July, 1616, and enrolled in chancery, determining the question, by virtue of the royal prerogative, in favor of the chancellor. (1 Carey Rep., 163, etc.) 16th Nov. 1616. Lord Coke removed from office by royal supersedeas. Years afterwards, in his Institutes, he stubbornly repudiates the royal order as contrary to law. (3 Inst., 125.) * 1 Spence, Eq., 603, 629, notes. + When Lord Ellesmere was made Viscount Brackley, the wits of Westminster Hall, who objected to his interference with the judgments of common-law courts, converted the name into Break-Law. (Foss, Life of Bacon.) strain her from taking action in the teeth of what she had done in the case of Sergeant Heal, a few years before. But the queen appears to have taken a special interest in this case, for more than a mere business reason. She also had a woman's reason. And now comes in the romance of the case. A sister of Throckmorton had been one of her maids of honor, and by her imprudent conduct had brought scandal upon the court. No less distinguished a name than that of Sir Walter Raleigh was connected with that of Betty Throckmorton in the affair. Sir Walter was one of Queen Elizabeth's alleged "lovers." Here was a piece of audacious rivalry that could never be forgiven. The virtuous indignation of the "imperial votaress" was hardly appeased by the imprisonment of both culprits in the Tower, and her jealousy was not abated, but rather in flamed by their subsequent intermarriage.* So, when her attorney-general laid before the sovereign the state of the case, and gave her plainly to understand that Betty Throck morton's brother was on the high road to success in Her Majesty's Court of Chancery, and that unless he could be tripped in some way, the queen and her grantee, Finch, would after all lose their case, the courage of Elizabeth was equal to the occasion. Her policy, however, did not carry her beyond the actual emergency. She knew, as well as Coke knew, how the judges stood upon the question. They were the same judges who had already passed upon the title in the Court of Exchequer and in the exchequer chamber. It was their deliberate and affirmed judgment that the chancellor was inclined to disregard in favor of equity. The royal pleasure was accordingly signified to the chancellor, that the consideration of the demurrer should be referred to all the judges of England. It was certainly unbecoming in the queen to intermeddle in her own case, but the reference proposed was not unconstitutional. There was then no such thing as an appeal from the chancellor to the House of Lords. In a disputed question of jurisdiction between the chancellor on one side, and the courts of law on the other, it seemed more reasonable that the decision should be left to the twelve judges than to the one-man power of the chancellor. Ellesmere submitted with the best grace he could to the royal command, and in pursuance thereof passed an order referring the cause to all the judges of England. This order bears date May 28, 1597. For nearly six months the judges held the great question under advisement, during which time there were, as Coke says, "divers hearings and conferences." It is not to be supposed that this long delay was due to any great difficulty that the judges found in the decision. It was more likely to * Aiken, Court of Eliz., II., 314; Gosse, Life of Ral., 55; Edwards, do., I., 135; Birch, Mem. of El., I., 79. be occasioned, partly by the practical difficulty of getting them all together from the business of their several courts, and partly by the desire to enhance their own importance by holding the public mind in suspense over a cause of magnitude. As common-law judges they were naturally inclined to the common-law side. At that time judges had no fixed salaries. Their compensation depended upon fees paid by suitors, and varied with the number of cases and amount of business. They had therefore a personal interest in preventing interference with their jurisdiction.* Although Lord Campbell and Mr. Spence both impute this mercenary motive, it is none the less true that the judges really reflected the sentiments and the prejudices of the great mass of the English people at that time, and for many generations before. The history of the struggle (see synoptic note) shows very plainly that the growing power of the chancellor was from an early day viewed with suspicion and alarm. Among the English common people there was a deeply-rooted sentiment of attachment to the Saxon trial by jury, and of aversion to the one-man power of adjudication, even when confined to questions of property. The colonists who settled America largely brought this sentiment with them. They regarded the common law as their safeguard from oppression, and feared the Court of Chancery as a possible engine of arbitrary power. In colonial New England and Pennsylvania no similar court was tolerated. This fact illustrates the feeling of the people from whose midst those colonists went forth. This popular sentiment the judges of England had always represented, and still continued to represent. Nothing could be more certain than that a large majority of them would sustain Finch's demurrer. But in order to give to their decision the imposing weight of a finality it was desirable that it should be withheld until it could be made unanimous. Their decision was at last signified to the chancellor by Chief Justice Popham. The unanimous resolution of the judges was that after judgment the party could not be relieved in equity, as tending to the subversion of the common law, and thereupon they all certified that the demurrer was good, and that Finch ought not to be required to answer. On November 15, 1597, the result was announced by the chancellor in open court, and that ended the case. It did not, however, end the controversy.t 1 Spence, Eq., 674, note; Camp., Life of Ellesmere, ch. 47. + In Coke's Institutes and in Croke James will be found reports of the case of Throckmorton vs. Finch, as given upon the authority of Lord Coke himself. (2 Inst., 124; 4 Inst., 86; Cro. Jac., 344.) In a tract styled "Jurisdiction of Chancery Vindicated," appearing as an appendix to 1 Rep. Chan., also printed, and more correctly, in the "Collectanea Juridica " (p. 52) may be found quite another version of the same case, differing from Coke's in some essential particulars. In fact, a direct issue of veracity is made. This volume of reports (1 Rep. Ch.) is |