Sivut kuvina

cuity 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 (f), 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).

(e) Lamb. Archeion. 24.
(f) Madox hist. exch. 109.

(g) Spelm. Guil. I. in cod. leg. vet. apud Wil

(8) Except in London, 2 Burr. 777. and some other places; and no writ of error lies from the cinque ports, 4 Inst. 224, or from the court of stannaries. 3 Buls. 183.

(9) This was altered by the 23 Geo. III. c. 28; and now by the act of union, 39 & 40 Geo. III. c. 67. art. 8, writs of error and appeals on judgments in Ireland, can only be to the house of lords of the united kingdom. Ante, 1 book, 104. n. 15.

(10) As to the conusance of this court, and when it will interfere, see post, 436. In the Exchequer there are seven courts, 1. The Court of Pleas. 2. The Court of Accounts. 3. The Court of Receipt. 4. The Court of Exchequer Chamber, being the assembly of all the judges of England for matters of law. 5. The Court of Exchequer Chamber, for errors in the Court of Exchequer. 6. The Court of Exchequer Chamber for errors in the King's Bench. 7. The Court of Equity in the Exchequer Chamber. Bac. Ab. Court of Exchequer, A.

(11) Though this court is inferior in rank as well to the court of common pleas as the king's bench, and though in general a subject has a right to resort to either of the superior courts for the redress of a civil injury, yet this court, having an original, and in many cases an exclusive, jurisdiction in fiscal matters,


(h) 4 Inst. 103-116.

will not permit questions, in the decision of which the king's revenue or his officers are interested, to be discussed before any other tribunal; and therefore, if an action of trespass against a revenue officer for his conduct in the execution of his office, be brought in the court of C. P. or K. B., it may be removed into the office of pleas of this court of exchequer. 1 Anstr. 205. Hardr. 176. Parker, 143. 1 Price, 206. 8 Price, 584. Manning's Exchequer Prac. 161. 164. n. On such occasions the court interposes on motion, by ordering the proceeding to be removed into the office of pleas, which order operates by way of injunction. The usual order in cases of this nature is, that the action be removed out of the king's bench or common pleas, or other court in which it is depending, into the office of pleas, and that it shall be there in the same forwardness as in the court out of which the action is removed. This order, however, does not operate as a certiorari to remove the proceedings, but as a personal order on the party to stay them there and of course calls on the defendant in the action to appear, accept a declaration, and put the plaintiff in the same state of forwardness in the office of pleas as he was in the other court. Per Eyre, Ch. B. 1 Anstr. 205. in



The court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisnè ones (12). These Mr. Selden 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. 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 (7), 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

(i) Tit. hon. 2. 5. 16.

(k) 1. 3, tr. 2, c. 1, § 3.

(12) By the stat. 57 Geo. III. c. 18. the lord chief baron is empowered to hear and determine alone all causes, matters, and things at any time depending in the court of exchequer as a court of equity; and if he should, from illness, &c. be prevented from sitting for those purposes, the king may, from time to time, appoint by warrant under sign manual, any other of the barons to hear and determine the same. This enactment has greatly faci


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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 sta tute 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 court of appeal is to consist of the chancellor and treasurer, and such justices and sage persons 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. Sut ton in this court. 1 T. R. 493.

(16) 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 naine original

ly 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 gates 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.

(17) King Hen. V. had two great seals, one 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 (q), 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 (t) per annum in the king's books (18). He is the general

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Durham, and made him lord chancellor; another of silver, which he delivered to the bishop of London 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.)

(18) In Mr. Christian's edition is the following note:-With regard to the chancellor's patronage, 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 clergyinen, 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. 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


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

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

consideration 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 the subject, he was inclined to think, that the chancellor's patronage was confined to benefices under 201. a year, and that livings exactly of at 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 marcs 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 inclusivè 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 benefi cium 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 chan

guardian of all infants (19), idiots, and lunatics; 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 (u). [*48] On proof of which, as the king can never be supposed intention

ally to do any wrong, the law questions not, but he will immediately redress the injury; and refers 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 (v). It might likewise hold plea (by scire facias) of partitions of land in coparcenery (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 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. (2). But if any cause comes to issue in this court,

(u) 4 Rep. 54.

(v) 4 Inst. 80.

(w) Co. Litt. 171. F. N. B. 62.

cellor 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 201. 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 chancel lor 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 ex

(z) Bro. Abr. tit. dower, 66. Moor. 565.
(y) Bro. Abr. tit. dismes. 10.
(z) 2 Roll. Abr. 469.

pressly 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 201. 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 both by 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 inattention or the accommodation of the chancellor.

(19) 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.

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