Study On Early Equity Of The Chancery In England

Many scholars have such an idea that west law and Chinese law have more difference than consistency. Sometimes such an idea will make difference exaggerated and sameness ignored. As for English law, many scholars inclined to talk about judicial tradition of common law, professional legal community and such an constitutional idea that the king is always under the law, and compared these with ancient legal tradition of China, and then drew the conclusion that Chinese ancient law differed completely from English ancient law from concrete systems to basic spirits. A few scholars realized that except common law, there were other sources in English law, such as equity. Some of them thought there was coordinate of English equity in ancient law of China. But insufficiency of the research on English equity in China led to wrong understanding, and weaken reliability of the their conclusions.In this dissertation, I try to prove in English legal tradition there are not only something which lead to nomocracy in modern state, but something which supported the authorities of feudal kingship and the medieval church. The latter is a little like Chinese ancient law which has administrative and moral characteristic. It is early equity of the chancery in England, which has administrative and religionary characteristics. Although English equity finally changed its characteristic because of political and religionary transformation in English history, we can't regard later characteristics of equity and those of common law as its earlier characteristics. On the contrary, we must clearly define early equity, correct our wrong notions about early equity in England. For this object, this dissertation set out as following seven chapters:In Chapter I, I discuss legal background which equity of the chancery arose from. Before equity of the chancery came into being, common law, roman law and canon law had run in England, and they all had notions of equity and rules of equity. I believe, although equity in these laws didn't become independent legal system because of all kinds of reasons, they were all the foundation on which equity of the chancery originated from.In Chapter II, I discuss the birth of equity of chancery. There are two kinds of theory about the establishment of equity jurisdiction of chancery. One is the theory of institute division, the other is theory of litigation increase. Although this two theories use different angle of view and research methods, but they drew the same conclusion: the equity jurisdiction of the chancery was established from the middle of 14th century to the middle of 15th century. And because the two theories use different research methods , they can make up each other's defects. Only combining these two theory, we can understand the establishment of equity jurisdiction of English chancery. I then discuss influence of common law, roman law and canon law over equity of English chancery. I think although the origin of equity can be traced back to common law, English equity commenced its new life from equity jurisdiction of chancery. Because chancellors were always occupied by the clergy before the Reformation, equity of the chancery was influenced by roman law and canon law.In Chapter III, I discuss the organization of chancery, including historical change of the chancery from a administrative department to a court of law which has common law jurisdiction and equity jurisdiction, historical development of offices of chancellors and other clerks in chancery, appointment and selection of the office of chancellor, and secularization and professionalization of chancery。I think, although common law courts and common law justices had been professionalized and secularized during the 13th century, the chancery spent much more time in realizing professionalization and secularization, which led to medieval chancery was administrative and religionary, not judicial and secular. But form 14th century, especially after the Reformation, organization of the chancery dramatically changed, became more secular and judicial:the staff was not occupied by the clergy, but by roman jurists, finally by common lawyers. This change happened because of contradiction between king's claims of strengthening kingship and the interests of the nobles and the church.In Chapter IV, I discuss the practice of chancellor's developing equity. I think, after More substituted for Wolsey as an chancellor, the main work of chancellors transfer to justice. From More to Conventry, chancellors'work about equity consisted in perfection of organization of chancery, improvement of proceedings of chancery, and defining the limits between the jurisdiction of common law and jurisdiction of chancery.In Chapter V, I discuss equity proceedings of the chancery。I think, early equity proceedings of the chancery is much different from those of common law courts. It was speedy, flexible, cheap and effective. These advantages came form the functions of the chancery as an administrative office and its administrative authority. Anyway, equity proceedings of the chancery had an administrative characteristic.In Chapter VI, I discuss equity jurisdiction of the chancery. It was divided into civil and criminal at the beginning. After the Star Chamber Court assumed the criminal equity jurisdiction, the equity jurisdiction of the chancery became purely civil jurisdiction, which includes exclusive jurisdiction, such as use and trust, charities, separate estate, infants, and concurrent jurisdiction, such as administration, contract. Again, remedies in equity generally are regarded as a part of equity jurisdiction of chancery, specific performance and injunction are the most important part of it. In middle ages, equity jurisdiction of the chancery take"conscience"as its basis. With time passing, the basic principle of equity jurisdiction of the chancery turned from"conscience"to"equity".In Chapter VII, I discuss the challenges that the chancery faced in the end of 16th century and the beginning of the 17th century. The quick development of the chancery litigation businesses made chancery's organization, proceedings and jurisdiction facing challenges. If we could owe the challenges that chancery's organization and proceedings faced to the defects of chancery, the jurisdiction conflicts between common law courts and the chancery owed to pressures from outside political surroundings. After Wolsey broke down, outcome of jurisdiction conflicts between common law courts and the chancery rested with kings. Political inclination of the kings of the Stuarts showed their choice. So although the common law justices were painstaking with intervention of common injunction of chancery, James I's decree in 1616 announced failure of common law courts. In spite of assault of the parliament, which was the confederate of common law courts, to the chancery in 1621, using the opportunity of impeaching Francis Bacon, The chancery finally won, gaining support of James I, with the help of the Bishop Williams. These all tell us, the conflicts between the chancery and common law courts were not only conflicts of rules, but also conflicts of politics.In the conclusion, I try to explain the characteristics and the historical development of early equity of the chancery in England from the point of view of political struggles. I think, for strengthening and reinforcing kingship, kings sometimes conflicted with the nobles and the church, and sometimes cooperated with them, which is basic political impetus that led to the characteristics and the historical development of early equity of the chancery in England. That is to say, for strengthening kingship, kings conflicted with the nobles, which leaded to the birth of equity of the chancery in England and make it administrative. The failure of Charle I in the Civil War made it professionalized. At the same time, for strengthening kingship, kings cooperated with the church, which made equity of the chancery religionary, and failure of the church in struggle with kings made its religionary characteristic secularization. In a word, kings'conflicts with the nobles and the church in middle ages provided the development of equity with sufficient space, and the failure of king and the church made administrative and religionary characteristic of equity of the chancery in England changed.