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et errores (s).” And it is moreover especially provided in the articuli super cartas (1), that the king's chancellor, and the justices of his bench, shall follow him, so that he may have at all times near unto him some that be learned in the laws.

"The jurisdiction of this court is very high and transcendent. It [*42] keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below. It superintends all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires, in every case where there is no other specific remedy. It protects the liberty of the subject, by speedy and summary interposition. It takes cognizance both of criminal and civil causes ; the former in what is called the crown-side or crown-office; the latter in the plea-side of the court. The jurisdiction of the crown-side it is not our present business to consider; that will be more properly discussed in the ensuing book. But on the plea-side, or civil branch, it hath an original jurisdiction and cognizance of all actions of trespass, or other injury alleged to be committed vi el armis ; of actions for forgery of deeds, maintenance, conspiracy, deceit, and actions on the case which allege any falsity or fraud: all of which saFour of a criminal nature, although the action is brought for a civil remedy; and make the defendant liable in strictness to pay a fine to the king, as well as damages to the injured party (u). The same doctrine is also now extended to all actions on the case whatsoever (w): but no action of debt or detinue, or other mere civil action, can by the common law be prosecuted by any subject in this court, by original writ out of chancery (*) (7); though an action of debt, given by statute, may be brought in the king's bench as well as in the common pleas (y). And yet this court might always have held plea of any civil action (other than actions real) provided the defendant was an officer of the court; or in the custody of the marshal, or prison-keeper, of this court ; for a breach of the peace or any other offence (2). And, in process of time, it began by a fiction to hold plea of all personal actions whatsoever, and has continued to do so for ages (a); it being surmised that the defendant is arrested for *a [*43] supposed trespass, which he never has in reality committed ; and, being thus in the custody of the marshal of the court, the plaintiff is at liberty to proceed against him for any other personal injury : which surmise, of being in the marshal's custody, the defendant is not at liberty to dispute (6). And these fictions of law, though at first they may startle the student, he will find upon further consideration to be highly beneficial and useful ; especially as this maxim is ever invariably observed, that no fiction shall extend to work an injury ; its proper operation being to prevent mischief, or remedy an inconvenience, that might result from the general rule of law (c). So true it is, that in fictione juris semper subsistit aequitas (d). In the present case, it gives the suitor his choice of more than one tribunal, before which he may institute his action ; and prevents the cir(a) I. 3, c. 10.

(6) Thus too in the civil law ; contra fictionem

non admittitur probatio : quid enim efficeret pro. () Finch. L. 198. 2 Inst. 23. Dyversité de courtes batio veritatis, ubi ficlio adversus veritatem fingit ?

Nam fictio nihil aliud est, quam legis adversus ve. (w) F. N. B. 86. 92. I Lily, Pract. Reg. 503. ritatem in re possibili er justa causa dispositio. (2) 4 Inst. 76. Trye's Jus Filizar. 101.

(Gothofred. in Ff. 1. 22, 1. 3).
(e) 3 Rep. 30. 2 Roll. Rep. 502.
(d) 11 Rep. 51. Co. Litt. 150.


(1) 28 Edw. I. c. 5.

c bank le roy.

(9) Carth. 234.
(2) 4 Inst. 71.
(a) Ind. 72.

(7) This is not the present practice, R. T. Hardw. 317. Tidd's Prac. 8 ed. 97.

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cnity and delay of justice, by allowing that suit to be originally, and in
the first instance, commenced in this court, which, after a determination in
another, might ultimately be brought before it on a writ of error.
For this court is likewise a court of appeal, into which may

be removed by a writ of error all determinations of the court of common pleas, and of all inferior courts of record in England (8); and to which a writ of error lies also from the court of king's bench in Ireland (9). Yet even this so high and honourable court is not the dernier resort of the subject; for, if he be not satisfied with any determination here, he may remove it by writ of error into the house of lords, or the court of exchequer chamber, as the case may happen, according to the nature of the suit, and the manner in which it has been prosecuted (10).

VII. The court of exchequer is inferior in rank not only to the court of king's bench, but to the common pleas also : but I have chosen to consi

der it in this order, on account of its double capacity, as a court of [*44] law and a court of equity *also. It is a very ancient court of re

cord, set up by William the Conqueror (e), as a part of the aula regia (s), though regulated and reduced to its present order by king Edward I. (g); and intended principally to order the revenues of the crown, and to recover the king's debts and duties (h). It is called the exchequer, scaccharium, from the checked cloth, resembling a chess-board, which covers the table there : and on which, when certain of the king's accounts are made up, the sums are marked and scored with counters. It consists of two divisions : the receipt of the exchequer, which manages the royal revenue, and with which these commentaries have no concern : and the court or judicial part of it, which is again subdivided into a court of equity, and a court of common law (11).

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(8) Except in London, 2 Burr. 777. and will not permit questions, in the decision of some other places; and no writ of error lies which the king's revenue or his officers are from the cinque ports, 4 Inst. 224, or from the interested, to be discussed before any other court of stannaries. 3 Buls. 183.

tribunal; and therefore, if an action of trespass (9) This was altered by the 23 Geo. III. c. against a revenue officer for his conduct in the 28; and now by the act of union, 39 & 40 execution of his office, be brought in the court Geo. III. c. 67. art. 8, writs of error and ap- of C. P. or K. B., it may be removed into the peals on judgments in Ireland, can only be io office of pleas of this court of exchequer. i ihe house of lords of the united kingdom. Anstr. 205. Hardr. 176. Parker, 143. 1 Price, Ante, 1 book, 104. n. 15.

206. 8 Price, 584. Mapning's Exchequer (10) As to the conusance of this court, and Prac. 161. 164. n. On such occasions the court when it will interfere, see post, 436. In the interposes on motion, by ordering the proceed. Exchequer there are seven courts, 1. The ing to be removed into the office of pleas, Court of Pleas. 2. The Court of Accounts. which order operates by way of injunction. 3. The Court of Receipt. 4. The Court of The usual order in cases of this nature is, that Exchequer Chamber, being the assembly of all the action be removed out of the king's bench the judges of England for matters of law. 5. or common pleas, or other court in which it is The Court of Exchequer Chamber, for errors depending, into the office of pleas, and that it in the Court of Exchequer. 6. The Court of shall be there in the same forwardness as in Exchequer Chamber for errors in the King's the court out of which the action is removed. Bench. 7. The Court of Equity in the Ex. This order, however, does not operate as a chequer Chamber. Bac. Ab. Co of Ex- certiorari to remove the proceedings, but as a chequer, A.

personal order on the pariy to stay them there (il) Though this court is inferior in rank and of course calls on the defendant in the as well to the court of common pleas as the action to appear, accept a declaration, and put king's bench, and though in general a subject the plaintiff

' in the same state of forwardness has a right to resort to either of the superior in the office of pleas as he was in the other courts for the redress of a civil injury, yet this court. Per Eyre, Ch. B. 1 Anstr. 205. in court, having an original, and in many cases notes. an exclusive, jurisdiction in fiscal matters,

The court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisne ones (12). These Mr. Se'den conjectures (i) to have been anciently made out of such as were barons of the kingdom, or parliamentary barons; and thence to have derived their name ; which conjecture receives great strength from Bracton's explanation of magna carta, c. 14. which directs that the earls and barons be amerced by their peers; that is, says he, by the barons of the exchequer (k). The primary and original business of this court is to call the king's debtors to account, by bill filed by the attorney-general; and to recover any lands, tenements, or hereditaments, any goods, chattels, or other profits or benefits, belonging to the crown. So that by their original constitution the jurisdiction of the court of common pleas, king's bench, and exchequer, was entirely separate and distinct : the common pleas being intended to decide all controversies between subject and subject; the king's bench to correct all crimes and misdemeanors that amount to a breach of the peace, the king being then plaintiff, as such offences are in open derogation of the jura regalia of his crown; and the exchequer to adjust *and recover his revenue, wherein [ *45] the king also is plaintiff, as the withholding and non-payment thereof is an injury to his jura fiscalia. But, as by a fiction almost all sorts of civil actions are now allowed to be brought in the king's bench, in like manner by another fiction all kinds of personal suits may be prosecuted in the court of exchequer. For as all the officers and ministers of this court have, like those of other superior courts, the privilege of suing and being sued only in their own court ; so also the king's debtors and farmers, and all accomptants of the exchequer, are privileged to sue and implead all manner of persons in the same court of equity that they themselves are called into (13). They have likewise privilege to sue and implead one another, or any stranger, in the same kind of common law actions (where the personalty only is concerned) as are prosecuted in the court of common pleas.

This gives original to the common law part of their jurisdiction, which was established merely for the benefit of the king's accomptants, and is exercised by the barons only of the exchequer, and not the treasurer or chancellor.' The writ upon which all proceedings here are grounded is called a quo minus (14): 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 less able to pay the king his debt or rent. And these suits are expressly directed, by what is called the statute of Rutland (?), 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 (1) Tit. hon. 2. 5. 16.

(1) 10 Edw. I. c. 11. (2) 3.3, tr. 2, c. 1, + 3.

(m) 28 Edw. I. c. 4.

(12) By the stat. 57 Geo. III. c. 18. the lord litated the dispatch of equity proceedings in chief baron is empowered to hear and deter. this court. mine alone all causes, matters, and things at (13) A clerk of exchequer has no privilege any time depending in the court of exchequer to be sued in that court only, Cary Rep. 67; as a court of equity; and if he should, from or lord treasurer's man. Id. 96. illness, &e. be prevented from sitting for (14) This is the only process; the plaintiff those purposes, the king may, from time to cannot proceed in this court by original writ, time, appoint by warrant under sign manual, and therefore the defendant cannot be outlawaay other of the barons to hear and determine ed therein. I Price, 309. the same. This enactment has greatly faciVOL. II


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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 surmise, 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 [ *46] court : for there any person may file *a bill against 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 (15).

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) (16). 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 general superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman church, ever emulous of imperial state ; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters, and such other public instruments of the

crown, as were authenticated in the most solemn manner: and [*47] therefore *when seals came in use, he had always the custody of

the king's great seal. So that the office of chancellor, or lord keeper (17), (whose authority by statute 5 Eliz. c. 18. is declared to be

(n) 4 Inst. 88.


(15)' By the 31 Edward III. c. 12. this courtly from certain bars laid one over another of appeal is to consist of the chancellor and crosswise, like a lattice, wherewith it was entreasurer, and such justices and sage persons vironed, to keep off the press of the people, and as they shall think fit. It is altered by 31 Eliz. not to hinder the view of those officers who c. 1. 16 Car. II. c. 2. 20 Car. II. c. 4, from sat therein ; such gates or cross-bars being, which it appears, that the court may consist by the Latins, called cancelli. Vid. Dugd. of both the chief justices, or one of them, or of 32. Cambden, Cowell, Cassiod. ep. 6. lib. 11. the chancellor, provided the chancellor is pre- Pet. Pythæus, lib. 2. advers. c. 12. 1 Harr. sent when the judgment is given. See the Ch. 1. Dr. Johnson seems also inclined to proceedings in the case of Johnstone v. Sut- this definition, and it indeed appears the most ton in this court. 1 T. R. 493.

reasonable, for we have also the word “ chan. (16) According to the opinion of several cel," which signifies that part of the church learned authors (as Mr. Cambden in his Bri: formerly barred off from the body of it. tannia, and Dr. Cowell in his Interpreter, have (17) King Hen. V. had two great seals, one observed), the chancery had its naine original- of gold, which he delivered to the bishop of

exactly the same), is with us at this day created by the mere delivery of the king's great seal into his custody (o): whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom; and superior in point of precedency to every temporal lord (p). He is a privy counsellor by his office (9), and, according to lord chancellor Ellesmere (r), prolocutor of the house of lords by prescription. To him belongs the appointment of all justices of the peace throughout the kingdom. Being formerly usually an ecclesiastic (for none else were then capable of an office so conversant in writings), and presiding over the royal chapel (s), he became keeper of the king's conscience; visitor in right of the king, of all hospitals and colleges of the king's foundation ; and patron of all the king's livings under the value of twenty marks (1) per annum in the king's books (18). He is the general

(0) Lamb. Archeion. 65. 1 Roll. Abr. 385.
(P) Stat. 31 Hen. VIII. c. 10.
(9) Selden, office of lord chanc. 63.
G) of the office of lord chancellor, edit. 1651.

(8) Madox. hist. of exch. 42.

(1) 38 Edw. III. 3 F. N. B. 35. though Hobart (214.) extends this value to twenty pounds.

Durhamn, and made him lord chancellor ; ano. consideration that the twenty marks in the, tber of silver, which he delivered to the bishop time of Edw. III. were equivalent to twenty of London to keep; and historians often con- pounds in the time of Henry VIII. Gibs. 764. found chancellors and keeper3, 1 Harr. Ch. i Burn. Ec. Law, 129. 68. note. 4 Inst. 88; but, at this day there So far this was the note in my first edition; being but one great seal, there cannot be both but a reverend gentleman has been so obliging a chancellor, and a lord keeper of the great as to suggest to me, that, having once had ocseal, at one time, because both are but one casion to examine the subject, he was inclined office, as is declared by the stat. Eliz. 4 to think, that the chancellor's patronage was Inst. 88. and the taking away the seal deter- confined to benefices under 201. a year, and mines the office. 1 Sid. 338. It seems that that livings exactly of that value belonged to it is not inconsistent for the lord chancellor the king, to be presented to by himself or his also to hold the office of chief justice of the minister. Having, in consequence, looked king's bench. Lord Hardwicke held both more attentively into the subject, I am still of offices from 207h February till 7th June. 1 opinion, that the authorities support what is Sid. 338. Com. Dig. tit. Chancery, (B. 1.) advanced in the preceding part of the note.

(18) In Mr. Christian's edition is the fol. It cannot be doubled that since the new valor lowing note :-With regard to the chancellor's beneficiorum, pounds were intended to be subpatronage, there seems to be some inaccuracy stituted for marks, and this is expressly stated in the learned judge's text and reserences. by bishop Gibson, p. 764. In the 4 Edw. III. humbly conceive that a truer statement is this, cited above, the chancellor's patronage is statviz. that it appears from the rolls of parlia. ed to be of all livings of 20 marks and under, ment in the time of Edw. III. that it had been del tax de vint marcs et dedeyns. In the 1 Hen. the usage before that time for the chancellors VI. no. 25. Rolls of Parliament, there is a re. to give all the king's livings, tazed (by the cord appointing the duke of Bedford protector, subsidy assessments) at twenty marks or un and the duke of Gloucester protector in his der, to the clerks who were then actually cleri absence; and amongst other privileges it or clergyinen, who had long laboured in the grants the protector for the time being, the court of chancery; but that the bishop of Lin. patronage of all the livings belonging to the coln, when he was chancellor, had given such crown, ultra taram viginti marcarum usque ad lisings to his own and other clerks contrary tacam triginta marcarum inclusive, and reserves to the pleasure of the king and the ancient the rest of the royal patronage to the king, exusage ; and therefore it is recommended to cept the benefices belonging to the chancel. the king by the council to command the chan- lor, virtute officii sui. The word inclusivè can cellor to give such livings only to the clerks only apply to the words usque ad triginta ; it of chancery, the exchequer, and the other two cannot be reconciled with ulira, which was in. benches or courts of Westminster-hall. 4 tended to leave the chancellor 20 or under. Edw. III. n. 51. But since the new valua. This is also clearly expressed in the Regis. tion of benefices, or the king's books, in the trum Brevium 307. where there is an ancient time of Henry the Eighth, and the clerks writ called de primo beneficio ecclesiastico haben. ceased to be in order, the chancellor has had do. Volumus quod idem A. ad primum benefithe atsolute disposal of all the king's livings, cium ecclesiasticum (taxationem viginti marčaEven where the presentation devolves to the rum excedens) vacaturum, quod ad præsentionem erown by lapse, of the value of ewenty pounds nostram pertinueril, fc. a year or under in the king's books. It does In the year-book 38 Edw. III. 3. it is laid not appear how this enlarged patronage has down as law, that the king shall present to been obtained by the chancellor, but it is pro- toulz esglises que passent l'ertent de 20 marcs ; bable by a private grant of the crown, from a and in the next line it is said, that the chan

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