ed is called a quo minus:" in which the plaintiff suggests that he is the king's farmer or debtor, and that the defendant hath done him the injury or damage complained of; quo minus sufficiens existit, by which he is the less able to pay the king his debt or rent. And these suits are expressly directed, by what is called the statute of Rutland, (1) to be confined to such matters only, as specially concern the king or his ministers of the exchequer. And by the articuli super cartas, (m) it is enacted, that no common pleas be thenceforth holden in the exchequer contrary to the form of the great charter. But now, by the suggestion of privilege, any person may be admitted to sue in the exchequer as well as the king's accomptant. The sur mise, of being debtor to the king, is therefore become matter of form and mere words of course, and the court is open to all the nation equally. The same holds with regard to the equity side of the court: for there any person may file a bill aginst another upon a bare suggestion that he is the king's accomptant; but whether he is so, or not, is never controverted. In this court on the equity side, the clergy have long used to exhibit their bills for the non-payment of tithes ; in which case the surmise of being the king's debtor is no fiction, they being bound to pay him their first fruits and annual tenths. But the chancery has of late years obtained a large share in this business. An appeal from the equity side of this court lies immediately to the house of peers; but from the common law side, in pursuance of the statute 31 Edw. III. c. 12., a writ of error must be first brought into the court of exchequer chamber. And from the determination there had, there lies in the dernier resort, a writ of error to the house of lords." [ 47 ] VIII. The high court of chancery" is the only remaining, and in matters of civil property by much the most important of any of the king's superior and original courts of justice. It has its name of chancery, cancellaria, from the judge who presides here, the lord chancellor or cancellarius; who, sir Edward Coke tells us, is so termed a cancellando, from cancelling the king's letters patent when granted contrary to law, which is the highest point of his jurisdiction. (n) 30 But the office and name of chancellor (however derived) was certainly known to the courts of the Roman emperors; where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a ge. neral superintendency over the rest of the officers of the prince." From 110 Edw. I. c. 11. m 28 Edw. I. c. 4. n 4 Inst. 88. (27) This is the only process; the plaintiff cannot proceed in this court by original writ, and therefore the defendant cannot be outlawed therein. 1 Price, 309. (28) By the 31 Edward III. c. 12. this court of appeal is to consist of the chancellor and treasurer, and such justices and sage person as they shall think fit. It is altered by 31 Eliz. c.1. 16 Car. II. c. 2. 20 Car. II. c. 4, from which it appears, that the court may consist of both the chief justices, or one of them, or of the chancellor, provided the chancellor is present when the judgment is given. See the proceedings in the case of Johnstone v. Sutton in this court. 1 T. R. 493. Chitty. (29) See in general, post 426 to 455.; Com. Dig. Chancery; Bac. Ab. tit. Court of Chancery. (30) According to the opinion of several learned authors (as Mr. Cambden in his Britannia, and Dr. Cowell in his Interpreter have observed), the chancery had its name originally from certain bars laid one over another crosswise, like a lattice wherewith it was environed, to keep off the press of the people, and not to hinder the view of those officers who sat therein; such grates or cross-bars being, by the Latins, called cancelli. Vid. Dugd. 32. Cambden, Cowell, Cassiod. ep. 6. lib. 11. Pet. Pythæus, lib. 2. advers. c. 12. 1 Harr. Ch. 1. Dr. Johnson seems also inclined to this definition, and it indeed appears the most reasonable, for we have also the word "chancel," which signifies that part of the church formerly barred off from the body of it. Chitty. (81) The Romans called him that had such an office under their emperors, by the name of Quaestor Sacri Palatii, and he was to be profoundly skilled in the divine and human laws, that so he might be able to explain them for the people. 1 Harr. Ch. 67. 33 the Roman empire it passed to the Roman church, ever emulous of impe o Lamb. Archeion, 65. 1 Roll. Abr. 385. (32) King Hen. V. had two great seals, one of gold, which he delivered to the bishop of Darham, and made him lord chancellor; another of silver, which he delivered to the bishop of Lon don to keep; and historians often confound chancellors and keepers, 1 Harr, Ch. 68. note 4. Inst. 88. ; but, at this day there being but one great seal, there cannot be both a chancellor and a lord keeper of the great seal at one time, because both are but one office, as is declared by the stat. 5 Eliz. 4 Inst. 88. and the taking away the seal determines the office. 1 Sid. 338. It seems that it is not inconsistent for the lord chancellor also to hold the office of chief justice of the king's bench. Lord Hardwicke held both offices from 20th February till 7th June. 1 Sid. 338. Com. Dig. tit. Chancery, (B. 1.) Chitty. (33) In Mr. Christian's edition is the following note:-With regard to the chancellor's pa tronage, there seems to be some inaccuracy in the learned judge's text and references. I humbly conceive that a truer statement is this, viz. that it appears from the rolls of parliament in the time of Edw. III. that it had been the usage before that time for the chancellors to give all the king's livings, taxed (by the subsidy assessments) at twenty marks or under, to the clerks who were then actually cleri or clergymen, who had long laboured in the court of chancery; but that the bishop of Lincoln, when he was chancellor, had given such livings to his own and other clerks contrary to the pleasure of the king and the ancient usage and therefore it is recommended to the king by the council to command the chancellor to give such livings only to the clerks of chancery, the exchequer, and the other two benches or courts of Westminster-hall. 4 Edw. III, n. 51. But since the new valuation of benefices, or the king's books in the time of Henry the Eighth, and the clerks ceased to be in order, the chancellor has had the absolute disposal of all the king's livings, even where the presentation devolves to the crown by lapse, of the value of twenty pounds a year or under in the king's books. It does not appear how this enlarged patronage has been obtained by the chancellor, but it is probable by a private grant of the crown, from a con. sideration that the twenty marks in the time of Edw. III. were equivalent to twenty pounds in the time of Henry VIII. Gibs. 764. 1 Burn Ec. Law, 129. So far this was the note in my first edition; but a reverend gentleman has been so obliging as to suggest to me, that, having once had occasion to examine this subject, he was inclined to think, (34) See ante, 1 Book, 451, et seq. as to what protection he may afford infants and wards of court. His jurisdiction in this respect extends so far, that though he has no power to prevent crimes, yet he may do so when they will tend to injure an infant. 2 Swanst. 413. 36 natics; and has the general superintendence of all charitable uses in the kingdom. And all this, over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the court of chancery; wherein, as in the exchequer, there are two distinct tribunals: the one ordinary, being a court of common law; the other extraordinary, being a court of equity. The ordinary legal court is much more ancient than the court of equity. Its jurisdiction is to hold plea upon a scire facias to repeal and cancel the king's letters patent, when made against law, or upon untrue suggestions; and to hold plea of petitions, monstrans de droit, traverses of offices, and the like; when the king hath been advised to do any act, or is put in possession of any lands or goods, in prejudice of a subject's right. (t) On proof of which, as the king can never be supposed intentionally to do any wrong, t 4 Rep. 54. that the chancellor's patronage was continued to benefices under 20l. a year, and that livings exactly of that value belonged to the king, to be presented to by himself or his minister. Having, in consequence, looked more attentively into the subject, I am still of opinion, that the authorities support what is advanced in the preceding part of the note. It cannot be doubted that since the new valor beneficiorum, pounds were intended to be substituted for marks, and this is expressly stated by bishop Gibson, p. 764. In the 4 Edw. III. cited above, the chancellor's patronage is stated to be of all livings of 20 marks and under, del tax de vint mares et dedeyns. In the 1 Hen. VI. no. 25. Rolls of Parliament, there is a record appointing the duke of Bedford protector, and the duke of Gloucester protector in his absence; and amongst other privileges it grants the protector for the time being, the patronage of all the livings belonging to the crown, ultra taxam viginti marcarum usque ad taxam triginta marcarum inclusivè, and reserves the rest of the royal patronage to the king, except the benefices belonging to the chancellor, virtute officii sui. The word inclusive can only apply to the words usque ad triginta; it cannot be reconciled with ultra, which was intended to leave the chancellor 20 or under. This is also clearly expressed in the Registrum Brevium 307, where there is an ancient writ called de primo beneficio ecclesiastico habendo. Volumus quod idem A. ad primum beneficium ecclesiasticum (taxationem viginti marcarum excedens) vacaturum, quod ad præsentionem nostram pertinuerit, &c. In the year-book 38 Edw. III. 3. it is laid down as law, that the king shall present to toutz esglises que passent l'extent de 20 marcs; and in the next line it is said, that the chancellor shall present to all not taxed at 20 marks, and having understood that the living in question was taxed at 40s. he had presented to it, but as in fact it was taxed at 401, the king claimed it. The words in French state the general law, the rest only apply to the particular case. Yet Watson is so careless as to state the chancellor's patronage to be under 20 marks and under 201. and refers to this authority, ch. 9. But it is correctly cited by Comyns, to support the position, that the chancellor has the patronage of 20 marks, or 204 Dig. Tit. Esgl. H. 5. In Fitz. N. B. 35. it is stated to be under 20 marks, without taking any notice of 20 exactly. And in a case in Hob. 214. the word is under. In that case the chancellor had presented to a living lapsed to the crown above 201. a year, and it was held that the king could have no remedy, because the presentation had passed the great seal, and therefore apparently made by the king himself; but if the presentation had stated, that the benefice was under the value of 201. then it would have been void, because the chancellor must have been deceived. In this case there was no occasion to state the instance of a living of the exact value of 201. This was a benefice which had devolved to the crown by lapse, but no objection is made on that ground, and there seems to be no reason for any distinction, whether the benefice devolves to the king by lapse or by promotion of the incumbent, or it is part of his original patronage. I have stated the authorities which expressly give the chancellor the patronage of the value of 20 marks, or now 201. and I have referred to those which state it to be under; and I cannot but observe so far they are all consistent, as I find no authority in opposition to those above, declaring that livings of the value of 201. belong to the king and not to the chancellor. The gentleman who wished me to examine the authorities upon this subject, was so obliging as to inform me that the crown has the patronage of five livings of the exact value of 204. in the king's books, but that several others of that value occasionally devolve to the crown by lapse and promotion; that he has examined the church book in the secretary of state's office, and that he finds within the last century many instances of presentations to those livings by the crown; but he admits, in some modern instances where the right to the presentation has been claimed by both the chancellor and the minister, that the latter has yielded to the former. From the whole, one is led to conclude that these presentations made by the crown, were owing either to the inatten. tion or the accommodation of the chancellor. (35) See post 426. (36) See post 427. the law questions not, but he will immediately redress the injury; and re. fers that conscientious task to the chancellor, the keeper of his conscience. It also appertains to this court to hold plea of all personal actions, where any officer or minister of the court is a party. (u) It might likewise hold plea (by scire facias) of partitions of land in coparcenary, (w) and of dower, (x) where any ward of the crown was concerned in interest, so long as the military tenures subsisted: as it now may also do of the tithes of forest land, where granted by the king and claimed by a stranger [49] against the grantee of the crown; (y) and of executions on statutes, or recognizances in nature thereof by the statute 23 Hen. VIII, c. 6. (z) But if any cause comes to issue in this court, that is, if any fact be disputed between the parties, the chancellor cannot try it, having no power to summon a jury: but must deliver the record propria manu into the court of king's bench, where it shall be tried by the country, and judgment shall be there given thereon. (a) And when judgment is given in chancery upon demurrer or the like, a writ of error in nature of an appeal lies out of this ordinary court into the court of king's bench: (b) though so little is usually done on the common law side of the court, that I have met with no traces of any writ of error (c) being actually brought, since the fourteenth year of queen Elizabeth, A. D. 1572. 37 In this ordinary, or legal, court is also kept the officina justitiae: out of which all original writs that pass under the great seal, all commissions of charitable uses, sewers, bankruptcy, idiotcy, lunacy, and the like, do issue; and for which it is always open to the subject, who may there at any time demand and have, ex debito justitiae, any writ that his occasions may call for. These writs (relating to the business of the subject) and the returns to them were, according to the simplicity of ancient times, originally kept in a hamper, hanaperio; and the others (relating to such matters wherein the crown is immediately or mediately concerned) were preserved in a little sack or bag, in parva baga; and thence hath arisen the distinction of the hanaper office, and petty bag office, which both belong to the common law court in chancery. But the extraordinary court, or court of equity, is now become the court of the greatest judicial consequence. This distinction [50] between law and equity, as administered in different courts, is not at present known, nor seems to have ever been known, in any other country at any time: (d) and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans; (e) the jus praetorium, or discretion of the prætor, being distinct from the leges u 4 Inst. 80. x Bro. Abr. tit. dower. 66. Moor. 565. w Co. Litt. 171. F. N. B. 62. y Bro. Abr. tit. dismes, 10. 4 Inst. 80. b Year-book, 18 Edward III. 25. 17 Ass. 24. 29 Ass. 47. c The opinion of lord keeper North, in 1682. (1 Vern. 181. 1 Equ. Cas, abr. 129.) that no such writ of error lay, and that an injunction might be issued against it, seems not to have been well considered. d The council of conscience, instituted by John III. king of Portugal, to review the sentence of all inferior courts, and moderate them by equity, (Mod. Un. Hist. xxii. 237.) seems rather to have been a court of appeal. e Thus too the parliament of Paris, the court of session in Scotland, and every other jurisdiction in Europe, of which we have any tolerable account, found all their decisions as well upon principles of equity as those of positive law. (Lord Kaims, histor. law tracts, I. 325. 330., princ. of equity. 44.) (37) But on the equity side of the court questions of fact may be decided without an issue, but this jurisdiction ought to be exercised very tenderly and sparingly. 9 Vesey, 168. On the trial of an issue directed out of chancery, if either party be desirous of having a special jury, it is said to be proper to move the court of chancery for that purpose. See Prec. Ch. 264. 2 P. Wms. 68. 4 M. & S. 195, 6. VOL. II. 6 or standing laws; (f) but the power of both centered in one and the same magistrate, who was equally entrusted to pronounce the rule of law, and to apply it to particular cases, by the principles of equity. With us too, the aula regia, which was the supreme court of judicature, undoubtedly ad ministered equal justice according to the rules of both or either, as the case might chance to require; and, when that was broken to pieces, the idea of a court of equity, as distinguished from a court of law, did not subsist in the original plan of partition. For though equity is mentioned by Bracton (g) as a thing contrasted to strict law, yet neither in that wri. ter, nor in Glanvil or Fleta, nor yet in Britton (composed under the auspices and in the name of Edward I., and treating particularly of courts and their several jurisdictions,) is there a syllable to be found relating to the equitable jurisdiction of the court of chancery. It seems therefore probable, that when the courts of law, proceeding merely upon the ground of the king's original writs, and confining themselves strictly to that bot tom, gave a harsh or imperfect judgment, the application for re[51] dress used to be to the king in person assisted by his privy council; (from whence also arose the jurisdiction of the court of requests, (h) which was virtually abolished by the statute 16 Car. I. c. 10.) and they were wont to refer the matter either to the chancellor and a select committee, or by degrees to the chancellor only, who mitigated the severity or supplied the defects of the judgments pronounced in the courts of law, upon weighing the circumstances of the case. This was the custom not only among our Saxon ancestors, before the institution of the aula regia, (i) but also after its dissolution, in the reign of king Edward I. ; (k) and perhaps during its continuance, in that of Henry II. (2) In these early times the chief judicial employment of the chancellor must have been in devising new writs, directed to the courts of common law, to give remedy in cases where none was before administered. And to quicken the diligence of the clerks in the chancery, who were too much attached to ancient precedents, it is provided by statute Westm. 2. 13 Edw. I. c. 24. that "whensoever from thenceforth in one case a writ shall be "found in the chancery, and in a like case falling under the same right and requiring like remedy no precedent of a writ can be produced, the clerks in "chancery shall agree in forming a new one; and, if they cannot agree, it "shall be adjourned to the next parliament, where a writ shall be framed by "consent of the learned in the law, (m) lest it happen for the future, [ 52 ] "that the court of our lord the king be deficient in doing justice to "the suitors." And this accounts for the very great variety of writs of trespass on the case, to be met with in the register; whereby the suitor had ready relief, according to the exigency of his business, and adapted to the specialty, reason, and equity of his very case. (n) Which provision (with a little accuracy in the clerks of the chancery, and a little liberality f Thus Cicero: "jam illis promissis, non esse standum, quis non videt, quæ coactus quis metu et deceptus dole promiserit? quæ quidem plerumque jure praetorio liberantur, nonnulla legibus." "Offic. l. i. gl. 2. c. 7. fol. 23. h The matters cognizable in this court, immediately before its dissolution, were almost all suits, that by colour of equity, or supplication made to the prince, might be brought before him; but originally and properly all poor men's suits, which were made to his majesty by supplication; and upon which they were entitled to have right, without payment of any money for the same." (Smith's commonwealth, b. Ž c. 7.) i Nemo ad regem appellet pro aliqua lite, nisi jus domi consequi non possit. Sijus nimis severum sit, alleviatio deinde quaeratur apud regem. LL Edg. c. 2. k Lambard. Årcheion. 59. 1 Joannes Sarisburiensis, (who died A. D. 1182, 26 Hen, II.) speaking of the chancellor's office in the yerses prefixed to his polycraticon, has these lines: Hic est, qui leges regni cancellat iniquas A great variety of new precedents of writs, in cases before unprovided for, are given by this very statute of Westm, 2. n Lamb. Archeion. 61. |