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Editors: Donald Fleming and Bernard Bailyn
Volume V 1971
Law in American History
The court of chancery was never quite so “equitable” as theory claimed, and under the Tudors it had already acquired a fairly well-defined area of jurisdiction. The difficulty of defining the scope of its power is best illustrated by Maitland’s formulation:
For suppose that we ask the question - What is Equity? We can only answer it by giving some short account of certain courts of justice which were abolished over thirty years ago. In the year 1875 we might have said “Equity is that body of rules which is administered only by those Courts which are known as Courts of Equity.”4
4 Fredric W. Maitland, Equity: A Course of Lectures ([1909], rev. Ed., Cambridge, 1969). p. I.
Nevertheless several descriptive categories can be listed.
(1) Equity remedies defects in the common law. It takes notice of fraud, accident, mistake, and forgery. It administers relief according to the true intentions of the parties. It gives specific relief in actions for contract and tort, and it gives relief against the penalties assessed by other courts. It has unique powers of examining witnesses, and joining parties to a suit.
(2) Equity supplies omissions in the jurisdiction of the common law. It deals with uses and trusts, and especially, with mortgages and equities of redemption. It disposes of the guardianship of minors and lunatics. It has competence in mercantile law, family settlement, female property, and divorce.
(3) Courts of equity afford procedures not available at law: the writ of subpoena, interrogatory process, discovery of evidence, written pleadings, judgment without jury trial, leeway for errors in pleading, specific performance, injunction, imprisonment for contempt, ability to act in personam rather than ad rem, powers of account, and administration of estates.
Note: Important information here concerning the move from Voluntary Mutual Defense (common law) to Slavery Under the Color of Law. Injunction, for example, appears to be a top down exclusive warrant taken by agents of the state to order people to perform or else, and there is no trial by the country to prevent such abuse by agents of the government, according to agents of the government: arbitrary power in the hand of the few over everyone.
Was "discovery" not used by Grand Jurors according to common law? Is "discovery" one of those counterfeit words used to bring into power an exclusive monopoly commanded by a few over everyone else: only those with the license can "discover," and thereby set in motion due process of law?
How about subpoena?
Why would people suddenly stop actions in defense of threats (probable cause) made by malicious aggressors upon innocent victims because they had no piece of paper giving them authority to question reluctant witnesses?
Again (from Englishman’s Right):
“Your tenderness not to be accessary to any man's being wronged or ruined, is (as I said) much to be commended. But may you not incur it unawares, by seeking this to avoid it? Pilate was not innocent because he washed his hands, and said, He would have nothing to do with the blood of that just one. There are faults of omission as well as commission. When you are legally called to try such a cause, if you shall shuffle out yourself, and thereby persons perhaps less conscientious happen to be made use of, and so a villain escapes justice, or an innocent man is ruined, by a prepossessed or negligent verdict; can you think yourself in such a case wholly blameless? Qui non prohibet cum potest, jubet: That man abets an evil, who prevents it not, when it is in his power. Nec caret scrupulo sosietatis occultae qui evidenter facinori definit obviare: nor can he escape the suspicion of being a secret accomplice, who evidently declines the prevention of an atrocious crime.”
Also, the Divine Right of Kings Fallacy (Confidence Scheme) was exposed (held to an accurate accounting of the facts that matter in those cases) as a fraud in - at least - the efforts to document the revolution in America (free people in liberty against fake government) as explained here:
The Statute of Quo Warranto,
made Anno 18 Edw. I Stat. 2 and Anno Dom. 1290.
"These statutes are codifications of existing common law practices, albeit practices that had been used little if at all for a long time."
"This was essentially a move to put all feudal lords on the defense, so that the King could remove any that opposed him or his policies, and confirm the obeisance of the rest."
"Once established as a tool that could be used by a monarch, it also establishes it as a tool for use by the people when they become the sovereign, as happened upon adoption of the U.S. Declaration of Independence."
http://www.constitution.org/eng/stat_quo_warranto_1290.html
A treatise on extraordinary legal remedies, embracing mandamus, quo warranto and prohibition
by High, James L. (James Lambert), 1844-1898
"Originally the writ of mandamus was purely a prerogative remedy, and to this day it preserves in England some of its prerogative features. It was called a prerogative writ from the fact that it proceeded from the king himself, in his court of king's bench, superintending the police and preserving the peace of the realm, and it was granted where one was entitled to an office or function, and there was no other remedy. Blackstone terms it a "high prerogative writ, of a most extensively remedial nature," and it is uniformly referred to in the earlier cases as a prerogative remedy, and is spoken of as one of the flowers of the king's bench. In this country, however, a mandamus can not in any strict sense be termed a prerogative writ, and much confusion of ideas has resulted from the efforts of many of the courts to attach prerogative features to the remedy, as used in the United States. This confusion has resulted chiefly from a failure to properly discriminate between the English and American systems. Under the English constitution, the king is the fountain and source of justice, and when the law did not afford a remedy by the regular forms of proceedings, the prerogative powers of the sovereign were invoked in aid of the ordinary judicial powers of the courts, and the mandamus was issued in the king's name, and by the court of king's bench only, as having a general supervisory power over all inferior jurisdictions and officers. Originally, too, the king sat in his own court in person and aided in the administration of justice; and although he has long since ceased to sit there in person, yet by a fiction of law he is still so far presumed to be present as to enable the court to exercise its prerogative powers in the name and by the authority of the sovereign. And the fact that a mandamus was formerly allowed only in cases affecting the sovereign, or the interests of the public at large, lent additional weight to the prerogative theory of the writ. These suggestions are believed to sufficiently explain the statements so frequently met in the reports, that the writ of mandamus is a prerogative writ, issuing not of strict right, but at the will of the sovereign and as an attribute of sovereignty.
"As confined to the English system, and to the jurisdiction of the court of king's bench, these statements may be accepted as correct. But even in that country there seems to be a growing tendency to divest the writ of its prerogative features, and to treat it in the nature of a writ of right.
"In the United States, from the nature of our system of government, the writ has necessarily been stripped of its prerogative features. Indeed, it is difficult to perceive how a mandamus can in any sense be deemed a prerogative writ in this country, unless the power of granting it were confined to one particular court in each state, or to a particular federal court, whose general functions should correspond to those of the court of king's bench, and which should represent the sovereignty of the country in the same sense in which it was represented in England by the king's bench. And the better considered doctrine now is, that the writ has, in the United States, lost its prerogative aspect, and that it is to be regarded much in the nature of an ordinary action between parties, and as a writ of right to the extent to which the party aggrieved shows himself entitled to this particular species of relief. In other words, it is regarded as in the nature of an action by the person in whose favor the writ is granted, for the enforcement of a right in cases where the law affords him no other adequate means of redress. And a judgment in a mandamus proceeding, as in case of an ordinary action at law, is subject to review by writ of error or appeal upon like conditions as in other cases.
"Under the American system the writ having, as we have thus seen, been stripped of its prerogative features, it has necessarily lost some of the characteristics which formerly distinguished it as an extraordinary writ, and has been assimilated to the nature of an ordinary remedy. It is still, however, regarded as an extraordinary remedy in the sense that it is used only in extraordinary cases, and where the usual and ordinary modes of proceeding and forms of remedy are powerless to afford redress to the party aggrieved, and where without its aid there would be a failure of justice. In this sense, its character as an extraordinary writ bears a striking resemblance to that of injunction, which is the principal extraordinary remedy of courts of equity, and which is granted only when the usual and accustomed modes of redress are unavailing. And it is to be constantly borne in mind in investigating the law of mandamus as it now prevails both in England and in the United States, that by treating the remedy as an extraordinary one, it is not to be understood that the writ is left to the arbitrary caprice of every court vested with the jurisdiction, or that its use is not governed by rules as fixed and principles as clearly defined as those which regulate any branch of our jurisprudence. On the contrary, it is believed that few branches of the law have been shaped into more symmetrical development, and few legal remedies are administered upon more clearly defined principles, that those which govern the courts in administering relief by the extraordinary aid of mandamus."
https://archive.org/details/treatiseonextrao00highuoft