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in the judges, by extending rather than narrowing the remedial effects of the writ) might have effectually answered all the purposes of a court of equity; (0) except that of obtaining a discovery by the oath of the defend


But when, about the end of the reign of king Edward III., uses of land were introduced, (p) and, though totally discountenanced by the courts of common law, were considered as fiduciary deposits and binding in conscience by the clergy, the separate jurisdiction of the chancery as a court of equity began to be established ; (g) and John Waltham, who was bishop of Salisbury and chancellor to king Richard II., by a strained interpretation of the above-mentioned statute of Westm. 2. devised the writ of subpoena, returnable in the court of chancery only, to make the feoffee to uses accountable to his cestuy que use; which process was afterwards extended to other matters wholly determinable at the common law, upon false and fictitious suggestions; for which therefore the chancellor himself is by statute 17 Ric. II. c. 6. directed to give damages to the party unjustly aggrieved. But as the clergy, so early as the reign of king Stephen, had attempted to turn their ecclesiastical courts into courts of equity, by entertaining suits pro laesione fidei, as a spiritual offence against conscience, in case of nonpayment of debts or any breach of civil contracts : (r) till checked by the constitutions of Clarendon, (s) which declared that, "placita de debitis, "quae fide interposita debentur, vel absque interpositione fidei, sint "in justitia regis:" therefore probably the ecclesiastical chancel- [ 53 ] lors, who then held the seal, were remiss in abridging their own new acquired jurisdiction; especially as the spiritual courts continued (t) to grasp at the same authority as before in suits pro laesione fidei, so late as the fifteenth century, (u) till finally prohibited by the unanimous concurence of all the judges. However, it appears from the parliament rolls. (w) that in the reigns of Henry IV. and V. the commons were repeatedly ur. gent to have the writ of subpoena entirely suppressed, as being a novelty devised by the subtilty of chancellor Waltham, against the form of the common law; whereby no plea could be determined, unless by examination and oath of the parties according to the form of the law civil, and the law of holy church, in subversion of the common law. But though Henry IV., being then hardly warm in his throne, gave a palliating answer to their petitions, and actually passed the statute 4 Hen. IV. c. 23. whereby judg. ments at law are declared irrevocable unless by attaints or writ of error, yet his son put a negative at once upon their whole application: and in Edward IV.'s time, the process by bill and subpoena was become the daily practice of the court. (x)

But this did not extend very far: for in the ancient treatise, entitled diversité des courtes, (y) supposed to be written very early in the sixteenth

This was the opinion of Fairfax, a very learned judge in the time of Edward the Fourth. "Le subpoena (says he) ne serroit my cy souventement use come il est ore, si nous attendomus tiels actions sur les cases et mainteinomus le jurisdiction de ceo court, et d'auter courts." (Yearb, 21 Edw. IV. 23.) p See Book II. ch. 20. r Lord Lyttelt. Hen. II. b. 3. p. 361. not. s10 Hen. II. c. 15. Speed. 458.

q Spelm. Gloss. 106. 1 Lev. 242.

t In 4 Hen. III. suits in court christian pro laesione fidei upon temporal contracts were adjudged to be Contrary to law. (Fitzh. Abr. t. Prohibition. 15.) But in the statute or writ of circumspecte agatis, supposed by some to have issued 13 Edw. I., but more probably (3 Pryn. Rec. 356.) 9 Edw. II. suits pro laesione fidei were allowed to the ecclesiastical courts; according to some ancient copies, (Berthelet stat. antiq. Lond. 1531.90. b. 3 Pryn. Rec. $36.) and the common English translation of that statute; though in Lyndewode's copy, (Prov. 1. 2. t. 2.) and in the Cotton MS. (Claud. D. 2.) that clause is omitted."

u Yearb. 2 Hen. IV. 10. 11 Hen. IV. 88. 38 Hen. VI. 29. 20 Edw. IV. 10.

Rot. Parl. 4 Hen. IV. no 78 & 110. 3 Hen. V. no 46. cited in Prynne's abr. of Cotton's records, 410, 422. 424. 543. 4 Inst. 83. 1 Rol. Abr. 370, 371, S72.

x Rot. Parl. 14 Edw. IV. n° 33. (not 14 Edw. III, as cited 1 Roll. Abr. 370, &c.)

y tit. Chancery, fol. 296. Rastell's edit. 4. D. 1534.

century, we have a catalogue of the matters of conscience then cog[54] nizable by subpoena in chancery, which fall within a very narrow com pass. No regular judicial system at that time prevailed in the court; but the suitor, when he thought himself aggrieved, found a desultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman: no lawyer having sate in the court of chancery from the times of the chief justices Thorpe and Knyvet, successively chancellors to king Edward III. in 1372 and 1373, (2) to the promotion of sir Thomas More by king Henry VIII. in 1530. After which the great seal was indiscriminate. ly committed to the custody of lawyers, or courtiers, (a) or churchmen, (b) according as the convenience of the times and the disposition of the prince required, till serjeant Puckering was made lord keeper in 1592; from which time to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was intrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln; who had been chaplain to lord Ellesmere when chancellor. (c)

In the time of lord Ellesmere (A. D. 1616) arose that notable dispute between the courts of law and equity, set on foot by sir Edward Coke, then chief justice of the court of king's bench; whether a court of equity could give relief after or against a judgment at the common law. This contest was so warmly carried on, that indictments were preferred against the suitors, the solicitors, the counsel, and even a master in chan cery, for having incurred a praemunire, by questioning in a court of equity a judgment in the court of king's bench, obtained by gross fraud and im position. (d) This matter being brought before the king, was by him referred to his learned counsel for their advice and opinion; who reported so strongly in favour of the courts of equity, (e) that his majesty gave judgment in their behalf but, not contented with the irrefragable reasons and precedents produced by his counsel (for the chief jus[55] tice was clearly in the wrong), he chose rather to decide the ques.


tion by referring it to the plenitude of his royal prerogative. (f) Sir Edward Coke submitted to the decision, (g) and thereby made atone ment for his error: but this struggle, together with the business of commen dams, (in which he acted a very noble part) (h) and his controlling the commissioners of sewers, (i) were the open and avowed causes, (k) first of his suspension, and soon after of his removal, from his office.

Lord Bacon, who succeeded lord Ellesmere, reduced the practice of the court into a more regular system; but did not sit long enough to effect

z Spelm. Gloss. 111. Dugd. chron. Ser. 50.
b Goodrick, Gardiner, and Heath.

s Wriothesly, St. John, and Hatton.
c Biog. Brit. 4278.

d Bacon's Works, IV. 611, 612, 682.
e Whitelocke of parl. ii. 590. 1 Chan. Rep. Append. 11.

For that it appertaineth to our princely office only to judge over all judges, and to discern and deter mine such differences as at any time may and shall arise between our several courts, touching their juris dictions, and the same to settle and determine, as we in our princely wisdom shall find to stand most with our honour, &c." (1 Chanc. Rep. append. 26.)

g See the entry in the council book, 26 July 1616. (Biogr. Brit. 1390.)

In a cause of the bishop of Winchester, touching a commendam, king James conceiving that the matter affected his prerogative, sent letters to the judges not to proceed in it till himself had been first consulted. The twelve judges joined in a memorial to his majesty, declaring that their compliance would be contrary to their oaths and the law; but upon being brought before the king and council, they all retracted and promised obedience in every such case for the future, except sir Edward Coke, who said "that when the case happened, he would do his duty." (Biogr. Brit. 1388.)

i See that article in chap. 6.

k See lord Ellesmere's speech to sir Henry Montague, the new chief justice, 15 Nov. 1616. (Moor's reports, 828.) Though sir Edward might probably have retained his seat, if, during his suspension, he would have complimented lord Villiers (the new favourite) with the disposal of the most lucrative office in his (court. (Biogr. Brit, 1991.)

any considerable revolution in the science itself; and few of his decrees which have reached us are of any great consequence to posterity. His successors, in the reign of Charles I., did little to improve upon his plan : and even after the Restoration the seal was committed to the earl of Cla. rendon, who had withdrawn from practice as a lawyer near twenty years; and afterwards to the earl of Shaftesbury, who (though a lawyer by educa tion) had never practised at all. Sir Heneage Finch, who succeeded in 1673, and became afterwards earl of Nottingham, was a person of the greatest abilities and most uncorrupted integrity; a thorough [56] master and zealous defender of the laws and constitutions of his country; and endued with a pervading genius, that enabled him to discover and to pursue the true spirit of justice, notwithstanding the embarrassments raised by the narrow and technical notions which then prevailed in the courts of law, and the imperfect ideas of redress which had possessed the courts of equity. The reason and necessities of mankind, arising from the great change in property by the extension of trade and the aboli tion of military tenures, co-operated in establishing his plan, and enabled him in the course of nine years to build a system of jurisprudence and ju risdiction upon wide and rational foundations; which have also been extend. ed and improved by many great men, who have since presided in chancery. And from that time to this, the power and business of the court have increased to an amazing degree.


(38) Besides the chancellor, the master of the rolls has jurisdiction of judging causes on the ex traordinary side of the court of chancery. Cardinal Wolsey was, it is said, the first who introduced this power, though then much objected to; yet now it seems he is authorized by special commission under the great seal. Wyatt Prac. Reg. 278. Com. Dig. Chancery, B. 4. The time and place of his sitting are usually at six o'clock in the evening at his own court in the rolls yard. All decrees made by him must be signed by the lord chancellor before they are enrolled. 3 Geo, II. c. 30. s. 1. By statute 23 Geo. II. c. 25. s. 6. yearly sum of 1200l. was granted to him; and by the late act 6 Geo. IV. c. 84. his salary is raised to 7000l. He holds his office by patent for life, and takes the oath prescribed by 18 Edw. III. in open court. Wyatt Prac. Reg. 277. He takes precedence next after the chancellor, before all other of the judges.

Owing to the great increase of business, and which is still increasing, it was provided by 53 Geo. III. c. 24. that his majesty might appoint an additional judge assistant, called the vicechancellor, to assist the chancellor, who must be a barrister of fifteen years standing, to hold his office during good behaviour, subject to removal upon the address of both houses. By sec. 2. he shall hear such causes as the chancellor shall direct; his decrees shall be subject to reversal by the chancellor, and must be signed by the latter before they are enrolled. By sec. 3. he cannot alter or vary a decree of chancellor or master of rolls. Sec. 4. directs in what court he shall sit, and he is to rank next after the master of rolls. Sec. 5. appoints his officers. Sec. 6. how he is to be removed. Sec. 7. oath of office. Sec. 8. his salary, (5000l.) increased by 6, Geo. IV. c. 84. to 6000l. Sec. 12. that he and his officers shall receive no fees for business done. Quære, Whether the vice-chancellor has power to hear, by consent, a motion to discharge or alter an order made by the lord chancellor? See 1 J. & W. 429. If he is authorized to discharge it, he is not to alter it. Id. ib. When sitting for the lord chancellor, he has no jurisdic tion to alter or discharge orders made by the chancellor. Id. 431.


Besides the master of the rolls (the chief), there are eleven other masters in chancery. Dig. Chancery, B. 5. All answers and affidavits are sworn before one of them and signed; all matters of account, exceptions to answers, &c. irregularities, contempts, and such like, are referred to them. 13 C. II. st. 6. 12 G. I. c. 32. 5 G. III. c. 28. 32 G. III. c. 42. 9 G. III. c. 19. 46 G. III. c. 128. Besides these there are masters extraordinary, appointed in the country to take affidavits, &c. Next in precedence are the six clerks, each of whom has ten sworn clerks under him. The six clerks are principally concerned in matters in equity, and it is their business to transact and file all proceedings by bill and answer, and also to issue certain patents which pass the great seal, as pardons of men for chance medley, patents for ambassadors, sheriffs' patents, and some others; all these matters are transacted by their under clerks. 1 Har. Ch. P. 75, Though formerly otherwise, clients are now at liberty to choose their own clerks. Ord. ch. 107. They claim besides fees of six clerks' office, others as comptrollers of the banaper, and for enrolling warrants, for patents, grants, and other matters passing under the great seal, and returned into hanaper office. Six clerks, and three clerks of petty bag are by letters patent, 16 Eliz. incorporated and styled clerks of the enrolment of the high court of chancery, and have two deputies. See 14 & 15 H. VIII. c. 8.


From this court of equity in chancery, as from the other superior courts, an appeal lies to the house of peers.3 But there are these differences between appeals from a court of equity, and writs of error from a court of law: 1. That the former may be brought upon any interlocutory matter, the latter upon nothing but only a definitive judgment: 2. That on writs of error the house of lords pronounces the judgment, on appeals it gives direction to the court below to rectify its own decree.

IX. The next court that I shall mention is one that hath no original ju risdiction, but is only a court of appeal, to correct the errors of other jurisdictions. This is the court of exchequer chamber; 40 which was first erected by statute 31 Edw. III. c. 12. to determine causes by writs of error from the common law side of the court of exchequer. And to that end it consists of the lord chancellor and lord treasurer, taking unto them the justices of the king's bench and common pleas. In imitation of which a se

cond court of exchequer chamber was erected by statute 27 Eliz. c. [57] 8. consisting of the justices of the common pleas, and the barons

of the exchequer, before whom writs of error may be brought to reverse judgments in certain suits (1) originally begun in the court of king's bench. Into the court also of exchequer chamber (which then consists of all the judges of the three superior courts, and now and then the lord chancellor also), are sometimes adjourned from the other courts such causes, as the judges upon argument find to be of great weight and difficulty, before any judgment is given upon them in the court below. (m)

From all the branches of this court of exchequer chamber, a writ of error lies to

X. The house of peers," which is the supreme court of judicature in the kingdom, having at present no original jurisdiction over causes, but only upon appeals and writs of error, to rectify any injustice or mistake of the law, committed by the courts below. To this authority this august tribunal succeeded of course upon the dissolution of the aula regia. For, as the barons of parliament were constituent members of that court; and the rest of its jurisdiction was dealt out to other tribunals, over which the great officer who accompanied those barons were respectively delegated to preside; it followed, that the right of receiving appeals, and superintending all other jurisdictions, still remained in the residue of that noble assembly, from which every other great court was derived. They are therefore in all causes the last resort, from whose judgment no farther appeal is permitted; but every subordinate tribunal must conform to their determinations; the law reposing an entire confidence in the honour and conscience of the noble persons who compose this important assembly, that (if possible) they will make themselves masters of those questions which they undertake to decide, and in all dubious cases refer themselves to the opinions of the judges,

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The office of registrar of this court is of great importance. Com. Dig. Chancery, B. 6. The registrar has four deputies; two of whom always sit in court and take notes of orders and decrees, &c. and before the same are entered he signs them. 45 Geo. III. c. 75. Besides these, there are the master of the subpoena office, register of affidavits, examiners, ushers, accountant-general, 12 Geo. I. c. 32. 12 Geo. II. c. 24. 9 Geo. III. c. 19. 32 Geo. III. c. 42. 46 Geo. III. c. 129. 54 Geo. III. c. 14. cursitors, clerks of the petty bag office, serjeant at arms, warden of the fleet, clerk of the chapel of the rolls, &c. Chitty

(39) Com. Dig. Parliaments, L. 7.

(40) See in general, Com. Dig. Courts, D. 6.

(41) Bac. Ab. Court of Parliament, G. Com. Dig. Parliament, L.

who are summoned by writ to advise them; since upon their decision all property must finally depend.

Hitherto may also be referred the tribunal established by statute -14 Edw. III. c. 5. consisting (though now out of use) of one pre- [58] late, two earls, and two barons, who are to be chosen at every new parliament, to hear complaints of grievances and delays of justice in the king's courts, and (with the advice of the chancellor, treasurer, and justices of both benches) to give directions for remedying these inconveniences in the court below. This committee seems to have been established, lest there should be a defect of justice for want of a supreme court of appeal, during any long intermission or recess of parliament; for the statute farther directs, that if the difficulty be so great, that it may not well be determined without assent of parliament, it shall be brought by the said prelate, earls, and barons unto the next parliament, who shall finally determine the same.

XI. Before I conclude this chapter, I must also mention an eleventh species of courts, of general jurisdiction and use, which are derived out of, and act as collateral auxiliaries to, the foregoing; I mean the courts of assise and nisi prius.



These are composed of two or more commissioners, who are twice in every year sent by the king's special commission all round the kingdom (except London and Middlesex, where courts of nisi prius are holden in and after: every term, before the chief or other judge of the several superior courts; and except the four northern counties, where the assises are holden only once a year)," to try by a jury of the respective counties the truth of such matters of fact as are then under dispute in the courts of Westminsterhall. These judges of assise came into use in the room of the ancient justices in eyre, justiciari in itinere; who were regularly established, if not first appointed, by the parliament of Northampton, A. D. 1176, 22 Hen. II. (n) with a delegated power from the king's great court or aula regia, being looked upon as members thereof; and they afterwards made their circuit round the kingdom once in seven years for the purpose [59] of trying causes. (o) They were afterwards directed by magna carta, c. 12. to be sent into every county once a year, to take (or receive the verdict of the jurors or recognitors in certain actions, then called)

n Seld. Jan. L. 2. §5. Spelm. Cod. 399.

o Co. Litt. 293.-Anno 1261. justiciarii itinerantes venerunt apud Wigorniam in octavis S. Johannis baptistae;-et totus comitatus eos admittere recusavit, quod septem anni nondum erant elapsi, postquam justi ciarii ibidem ultimo sederunt. (Annal. Eccl. Wigorn. in Whart. Angl. sacr. I, 495.)

(42) See in general, Bac. Ab. Courts of Justices of Assize and Nisi Prius.

(43) The courts of nisi prius in London and Middlesex are called sittings; those for Middlesex were established by the legislature in the reign of queen Elizabeth. In ancient times all issues in actions brought in that county were tried at Westminster in the terms, at the bar of the court in which the action was instituted; but when the business of the courts increased, these trials were found so great an inconvenience, that it was enacted by the 18 Eliz. c. 12. that the chief justice of the king's bench should be empowered to try within the term, or within four days after the end of the term, all the issues joined in the courts of chancery and king's bench; and that the chief justice of the common pleas, and the chief baron, should try in like manner the issues joined in their respective courts. In the absence of any one of the chiefs, the same authority was given to two of the judges or barons of his court. The statute 12 Geo. I. c. 31, extended the term to eight days after term, and empowered one judge or baron to sit in the ab sence of the chief. The 24 Geo. II. c. 18. has extended the time after term still farther to fourteen days; and the time was afterwards, and still continues unlimited during the vacation next after the term, by the 1 Geo. IV. c. 55. Before the passing of the 1. Geo. IV. c. 21. the nisi prius sittings in Middlesex were confued to Westminster-hall, but by that act they may be held at any other fit place within the city of Westminster. Christian.

(44) But now the assizes here are held twice a year.

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