INDIAN STATUTORY PRESUMPTIONS AND HISTORY | Essays (university) Law

Excerpts from K. Zweigert & H. Kotz (Ed.), An Introduction to Comparative Law,

Clarendon Press, Oxford ( 3

end., 1998 ), p. 187.

Towards the end of the fourteenth century the legal creativity of the royal courts

gradually began to wane. It became clear that the procedure of these courts was in many

respects too crude and formalistic and that the applicable law was too rigid and

incomplete; suits were being lost because of technical errors, because of the opponent’s

political influence. Thus as early as the fourteenth century parties who had lost a lawsuit

in the king’s courts on one of these grounds or who could not obtain an appropriate writ

petitioned the king for an order compelling his adversary to do as morality and good

conscience, if not the strict rules of the Common Law, required. The King used to

transmit such petitions to his highest administrative official, the Chancellor. The

Chancellor had an intimate knowledge of the Common Law and its remedies since it was

he who issued the writs, and as the ‘keeper of the king’s conscience‘ and a prominent

churchman he was best fitted to judge whether in the particular case the petitioner ought

to receive the favour he sought ‘ for the love of God and in the way of charity’. In time

these petitions were addressed directly to the Chancellor and the decisions he made

developed into a complex set of special rules of law which are still referred to in England

, as they have been ever since the fifteenth century, as ‘equity ’.

The Chancellor’s special procedure for dealing with these petitions was

fundamentally different from that of the royal courts. Unless the substance of the

petitioner’s claim was obviously hopeless, the Chancellor called the person named in the

petition to a hearing which took place before himself rather than before a royal court. The

defendant was called by a special writ carrying the threat of a steep penalty – subpoena

centum librarum – and therefore called a ‘ writ of subpoena’. Since the purpose of the

hearing before the Chancellor was to discover whether, as the petitioner complained, the

defendant had behaved in a way which was contrary to morals and good conscience, the

formal rules of proof used in the royal courts did not apply: the petitioner’s opponent had

to make a sworn statement to the Chancellor about the whole affair and give answers

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Excerpts from K. Zweigert & H. Kotz (Ed.), An Introduction to Comparative Law , Clarendon Press, Oxford ( 3rd^ end., 1998 ), p. 187.

Towards the end of the fourteenth century the legal creativity of the royal courts gradually began to wane. It became clear that the procedure of these courts was in many respects too crude and formalistic and that the applicable law was too rigid and incomplete; suits were being lost because of technical errors, because of the opponent’s political influence. Thus as early as the fourteenth century parties who had lost a lawsuit in the king’s courts on one of these grounds or who could not obtain an appropriate writ petitioned the king for an order compelling his adversary to do as morality and good conscience, if not the strict rules of the Common Law, required. The King used to transmit such petitions to his highest administrative official, the Chancellor. The Chancellor had an intimate knowledge of the Common Law and its remedies since it was he who issued the writs, and as the ‘keeper of the king’s conscience‘ and a prominent churchman he was best fitted to judge whether in the particular case the petitioner ought to receive the favour he sought ‘ for the love of God and in the way of charity’. In time these petitions were addressed directly to the Chancellor and the decisions he made developed into a complex set of special rules of law which are still referred to in England , as they have been ever since the fifteenth century, as ‘ equity ’.

The Chancellor’s special procedure for dealing with these petitions was fundamentally different from that of the royal courts. Unless the substance of the petitioner’s claim was obviously hopeless, the Chancellor called the person named in the petition to a hearing which took place before himself rather than before a royal court. The defendant was called by a special writ carrying the threat of a steep penalty – subpoena centum librarum – and therefore called a ‘ writ of subpoena’. Since the purpose of the hearing before the Chancellor was to discover whether, as the petitioner complained, the defendant had behaved in a way which was contrary to morals and good conscience, the formal rules of proof used in the royal courts did not apply: the petitioner’s opponent had to make a sworn statement to the Chancellor about the whole affair and give answers

under oath to his questions. The Chancellor decided all matters of fact and law by himself without a jury, and the decision he eventually reached was executed by a process involving heavy penalties.

Throughout the fifteenth century the Chancellor decided more or less as he thought fit; decisions were consequently much coloured by the individual preferences of the churchman then in office. But after 1529 when the first secular Lord Chancellor, Thomas Moore, was appointed, equity jurisdiction began to follow the model of the Common Law and developed rules and doctrines, originally in a very fluid and uncertain form, to which the Chancellor had recourse when similar fact situations arose. Regular publication of the Chancellor’s decisions began towards the end of the sixteenth century and before long he felt almost as bound by precedent as the judges of the Common Law courts. His activity came to be seen as being more and more judicial and his office became separate Court of Chancery; at the outset the Chancellor was the sole judge, but from 1730 onwards he was helped by his immediate subordinate, the Master of the Rolls. In the eighteenth century it was beyond doubt that ‘equity’, the rules of law applied by the Court of Chancery, was as much fixed by decisions and as much formed into technical legal rules as the rules of the Common Law.

In practice the most important group of rules developed by equity are the rules of ‘trusts’ (earlier called ‘uses’ ). As early as the twelfth and thirteenth centuries it had become normal for a vassal who wanted to avoid the feudal burdens attaching to land to tranfer to a ‘trustee’ the land he held of his superior, to the outside world the ‘ trustee’ would appear to own the land. But he was bound to let the setttlor have possession and profits during his lifetime and then, either on his death or when his heirs reached manhood, to deal with the property in a prescribed way in favour of another ( ‘ cestui que trust ’ or ‘ beneficiary’ ). If a trustee refused to deal with the property in the way he had undertaken, performance of the trust could not be enforced by complaining to the royal courts, because there was no writ to vindicate such claims and the procedure of the Common Law courts was then too rigid and formalistic to permit the trust agreement to be fully established. Here the Chancellor came to the assistance of the settlor and the

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