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jurisdictions), is there a syllable to be found relating to the equitable jurisdiction of the court of chancery. It seems therefore prot able, that when the courts of law, proceeding merely upon the ground of the king's original writs, and confining themselves strictly to that bottom, gave a harsh or imperfect judgment, the application for redress 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. 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 [51] 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 parlia ment, where a writ shall be framed by consent of the learned in the law (m), lest it happen for the future, 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 regis ter; whereby the suitors 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 in the judges, by extending rather thar narrowing the remedial effects of the writ) might have effectually answered all the purposes of a court of equity (o); except that of obtaining a discovery by the oath of the defendant.

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 cour of equity began to be established (q); and John Waltham, who was bishor

(λ, 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. 3, c. 7).

(i, Nemo ad regem appellet pro aliqua lite, nisi jus domi consequi non possit. Si jus nimis severum , alleviatio deinde quaeratur apud regem. LL. Edg. c. 2.

(k) Lambard Archeion. 59.

(1) Joannes Sarisburiensis, (who died A. D. 182, 26 Hen II. speaking of the chancellor's office

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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 [52] 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 non-payment 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 chancellors, 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 concurrence 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 urgent to have the writ of subpoena entirely suppressed, as being a novelty devised by the subtlety 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 judgments at law are declared irrevocable unless by attaint 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, [*53] entitled diversité des courtes (y), supposed to be written very early in the sixteenth century, we have a catalogue of the matters of conscience then cognizable by subpoena in chancery, which fall within a very narrow compass. 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 sat 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 (z), to the promotion of sir Thomas More by king Henry VIII. in 1530. After which the great seal was indiscrimi

(r) Lord Lyttelt Hen. II. b. 3, p. 361. note. (s) 10 Hen. II. c. 15. Speed. 458.

(t) In 4 Hen. III. suits in court christian pro laeerone fidei upon temporal contracts were adjudged to be contrary to law. (Fitzh. Abr. t. Prohibition, 15). But in the statute or writ of circumspecte agats, supposed by some to have issued 13 Edw. I., but more probably (3 Pryn. Rec. 336). 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. 336). and the common English translation, of that statute, though in Lynde wode's copy, (Pro)

1. 2, t. 2). and in the Cotton MS. (Claud. D. 2) tha: clause is omitted.

(u) Yearb. 2 Hen. IV. 10. 11 Hen. IV. 88. 36 Hen. VI. 29. 20 Edw. IV. 10.

(w) Rot. Parl. 4 Hen. IV. n° 78 & 110. 3 Hen V. n° 46. cited in Prynne's abr. of Cotton's records 410. 422. 424. 548. 4 Inst. 83. 1 Roll. Abr. 370, 371, 372.

(z) Rot. Parl. 14 Edw. IV. n° 33. (not 14 Edu III. as cited 1 Roll. Abr. 370, &c). (y) tit. Chancery, fol. 296. 1534.

(z) Spelm. Gloss. 111

Rastell's edit. A. D

Dugd. chion. Ser 50

nately committed to the custody of lawyers, or courtiers (a), or church men (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, hen 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 he suitors, the solicitors, the counsel, and even a master in chancery, for having incurred a praemunire, by questioning in a court of equity a judg ment in the court of king's bench, obtained by gross fraud and imposi

tion (d). This matter being brought before the king, was by him [*54] 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, rot contented with the irrefragable reasons and precedents produced by his counsel (for the chief justice was clearly in the wrong), he chose rather to decide the question by referring it to the plenitude of his royal prerogative (f). Sir Edvard Coke submitted to the decision (g), and thereby made atonement for his error: but this struggle, together with the business of commendams (iù 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 y 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 Clarendon, who had withdrawn from practice as a lawyer near twenty years; and afterwards to the earl of Shaftesbury, who (though a lawyer by education )

had never practised at all. Sir Heneage Finch, who succeeded [*551 in 1673, *and became afterwards earl of Nottingham, was a person of the greatest abilities and most uncorrupted integrity; a thorough master and zealous defender of the laws and constitution of his

(a) Wriothesly, St. John, and Hatton. (b) Goodrick, Gardiner, and Heath.

(c) Biog. Brit. 4278.

(d) Bacon's Works, IV. 611, 612. 682.

(e) Whitelocke of par!. ii. 390. 1 Chan. Rep. Append. 11.

(f)"For that it appertaineth to our princely office only to judge over all judges, and to discern ard determine such differences as at any time may and shall arise between our several courts, touching their jurisdictions, 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).

(h) 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 memo rial 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." (Bingr. Brit. 1388).

(1) 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 sus pension, he would have complimented lord Villier (the new favourite) with the disposal of the most lucrative office in his court. (Biogr. Brit. 13911.

country, and endued with a pervading genius, that enabled him to dis cover 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 abolition 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 jurisdiction upon wide and rational foundations; which have also been extended 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 (21).

From this court of equity in chancery, as from the other superior courts, an appeal lies to the house of peers. But there are these differences be!ween 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,

(21) Besides the chancellor, the master of the rolls has jurisdiction of judging causes on the extraordinary side of the court of chance

ry. 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. a vearly sum of 12001. 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 vice-chancellor, 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 nouses. By sec. 2. he shall hear such cases 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, (50001.) 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 : 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 jurisdiction to alter or discharge orders made by VOL. II.


the chancellor. Id. 431.

Besides the master of the rolls (the chief), there are eleven other masters in chancery. Com. Dig. Chancery, B. 5. All answers and affidavits are sworn before one of them and signed; all matters of account, exceptions t 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. Be. sides these there are masters extraordinary, ap. pated in the country to take affidavits, &c Ne 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, sheriff's 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 hanaper, and for enrolling warrants, for pa. tents, 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. incorporat ed and styled clerks of the enrolment of the high court of chancery, and have two deputies. See 14 & 15 H. VIII. c. 8.

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, examin ers, ushers, accountant-general, 12 Geo. 1. o 32. 12 Geo. II. c. 24. 9 Geo. III. c. 19. 3? Geo. III. c. 42. 46 Geo. III. c. 129. 54 Geo. III. c. 14. cursitors, clerks of the petty bas office, serjeant at arms, warden of the Beat clerk of the chapel of the rolls, &c

the latter upon nothing but only a definitive judgment: 2. Tha. 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 jurisdiction, but is only a court of appeal, to correct the errors of other jurisdictions. This is the court of exchequer chamber; 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 second court of exchequer chamber was erected by statute 27 Eliz. c. 8. consisting of the justices of the common pleas, and the barons of the ex

chequer, before whom writs of error may be brought to reverse [*56] judgments *in certain suits (7) 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, com nitted 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 officers 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, 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 prelate, 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 [57] both benches) to give directions for remedying these inconveniences in the courts 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 nɔ

(See chap. 25, page 411

(m) 4 Inst. 119. 2 Bulst 144

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