Law Courts 219
repeat itself to the extent of Chancery's assimilating or
exterminating these courts. The common law was virile,
but needed supplementing at a time when it refused to
grow fast enough and was not being helped by statute,
It was Chancery's use of new principles1 and procedure
that was mainly responsible for its recognition as a dis-
tinct court. The procedure was partly derived from the
ecclesiastical courts and was partly a new creation to
meet existing needs.
In flagrant contrast to the common law, It forced the
defendant to answer on oath the charges that were brought
against him; it made no use of the jury; the evidence con-
sisted of written affidavits.2
The Chancellors' training in Roman and canon law
did not lead to a wholesale borrowing of that law for their
court, as has often been taken for granted. They did not
abandon the common law and adopt a new system. While
they knew of the equitable jurisdiction of the Roman
Prsetor, they did not attempt to adopt the results of that
jurisdiction. Rather, both Roman Praetor and English
Chancellor, mutatis mutandis, acted under the same funda-
mental authority, the authority of the sovereign as source
of law, to deal with the law as occasion required.3 When
1 Chancery was giving new remedies. For instance, if a man broke his
contract all that the common-law courts could do was to fine him. The
Chancellor could force him, on pain of imprisonment for contempt of
court, to keep the specific contract.
2 Maitland and Montague, Sketch of English Legal History, p. 125.
3 This principle, as far as the nations of western Europe are concerned,
originated in Rome. Of its ultimate source there and its disposition dur-
ing the Republic, Sir Henry Maine says: " At the crisis of primitive Roman
history which is marked by the expulsion of the Tarquins, a change oc-
curred which has its parallel in the early annals of many ancient states,
but which had little in common with those passages of political affairs
which we now term revolutions. It may be best described by saying
that the monarchy was put into commission. The powers heretofore ac-
cumulated in the hands of a single person were parcelled out among a num-
ber of elective functionaries, the very name of the kingly office being re-
tained and imposed upon a personage known subsequently as the^ Rex
Sacrorum or Rex Sacrificulus. As part of the change, the settled duties of
the supreme judicial office devolved on the Prastor, at the time the first
functionary in the commonwealth, and together with these duties was