ftances of the cafe. This was the cuftom not only among our Saxon ancestors, before the inftitution of the aula regia1, but also after it's diffolution, in the reign of king Edward I*; and perhaps during it's continuance, in that of Henry II'. 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 cafes where none was before adminiftered. And to quicken the diligence of the clerks in the chancery, who were too much attached to antient precedents, it is provided by ftatute Westm. 2. 13 Edw. I. c. 24. that "whenfoever from thenceforth in one cafe a writ shall be found in the chancery, and in a "like cafe falling under the fame right and requiring like re"medy 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 par"liament, where a writ shall be framed by confent of the "learned in the law, left it happen for the future, that the "court of our lord the king be deficient in doing justice to "the fuitors." And this accounts for the very great variety [ 52.] of writs of trefpafs on the cafe, to be met with in the register; whereby the fuitor had ready relief, according to the exigency of his business, and adapted to the specialty, reafon, and equity of his very cafe". Which provifion (with a little accuracy in the clerks of the chancery, and a little liberality in the judges, by extending rather than narrowing the remedial effects of the writ) might have effectually anfwered all the purposes of a court of equity; except that of obtaining a discovery by the oath of the defendant. i Nemo ad regem appellet pro aliqua lite, nifi jus demi confequi non poffit. Si jus nimis feverum fit, alleviatio deinde quaeratur apud regem. LL. Edg. c. 2. k Lambard. Archeion. 59. 1 Johannes Sarifburienfis (who died A. D. 1182, 26 Hen. II.) fpeaking of the chancellor's office in the verfes prefixed to his polycraticon, has thefe lines; Hic eft, qui leges regni cancellat iniquas, Et mandata pii principis acqua facit. m A great variety of new precedents of wiits, in cafes before unprovided for, are given by this very statute of Westm. 2. n Lamb. Archeion. 61. o This was the opinion of Fairfax, a very learned judge in the time of Edward the fourth. "Le fubpoena (fays " he} But when, about the end of the reign of king Edward III, ufes of land were introduced P, and, though totally discountenanced by the courts of common law, were considered as fiduciary depofits and binding in confcience by the clergy, the feparate jurisdiction of the chancery as a court of equity began to be established ; and John Waltham, who was bishop of Salisbury and chancellor to king Richard II, by a ftrained interpretation of the above-mentioned ftatute of Weftm. 2. devifed the writ of fubpoena, returnable in the court of chancery only, to make the feoffee to uses accountable to his ceftuy que ufe: which procefs was afterwards extended to other matters wholly determinable at the common law, upon falfe and fictitious fuggeftions; 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, fo early as the reign of king Stephen, had attempted to turn their ecclefiaftical courts into courts of equity, by entertaining suits pro laefione fidei, as a spiritual offence against confcience, in cafe of non-payment of debts or any breach of civil contracts; till checked by the conftitutions of Clarendon, which declared that, "placita de debitis, que fide in"terpofita debentur, vel abfque interpofitione fidei, fint in jufticia [53]" regis:" therefore probably the ecclefiaftical chancellors, who then held the feal, were remifs in abridging their own new-acquired jurisdiction; especially as the spiritual courts continued to grasp at the same authority as before, in suits law. (Fitzh. Abr. t. Probibition, 15.) But in the statute or writ of circumfpecte agatis, fuppofed by fome to have iffued 13 Edw. I. but more probably (3 Pryn. Rec. 336.) 9 Edw. II, fuits pro laefi.ne fidei were allowed to the ecclefiaftical courts; according to fome antient copies, (Berthelet ftat.antiqu. Lond. 1531.90.b. 3 Pryn. Rec. 336.) and the common English translation, of that ftatute; though in Lyndewode's copy, (Prov. 1. 2. t. 2.) and in the Cotton MS. (Claud. D. 2.) that claufe is omitted. pro pro laefione fidei, fo late as the fifteenth century", till finally prohibited by the unanimous concurrence of all the judges. However, it appears from the parliament rolls, that in the reigns of Henry IV and V the commons were repeatedly urgent to have the writ of fubpoena entirely fuppreffed, as being a novelty devised by the subtilty of chancellor Waltham, against the form of the common law; whereby no plea could be determined, unlefs by examination and oath of the parties, according to the form of the law civil, and the law of holy church, in fubverfion of the common law. But though Henry IV, being then hardly warm in his throne, gave a palliating answer to their petitions, and actually paffed the ftatute 4 Hen. IV. c. 23. whereby judgments at law are declared irrevocable unless by attaint or writ of error, yet his fon put a negative at once upon their whole application: and in Edward IV's time, the process by bill and fubpoena was become the daily practice of the court *. But this did not extend very far: for in the antient treatife, entitled diverfite des courtesy, fuppofed to be written very early in the fixteenth century, we have a catalogue of the matters of conscience then cognizable by fubpoena in chancery, which fall within a very narrow compafs. No regular [54] judicial system at that time prevailed in the court; but the fuitor, when he thought himself aggrieved, found a defultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclefiaftic, or sometimes (though rarely) a statesman: no lawyer having fate in the court of chancery from the times of the chief justices Thorpe and Knyvet, fucceffively chancellors to king Edward III in 1372 and 1373, to the promotion of fir Thomas u Yearb. 2 Hen. IV. 10. 11 Hen. IV. 88. 38 Hen. VI. 29. 20 Edw. IV. 10. w Rot. Parl. 4 Hen. IV. n° 78 & 110. 3 Hen. V. no 46. cited in Prynne's abr. of Cotton's records. 410.422. 424. 548. 4 Inft. 83. 1 Roll. Abr. 370, 371, 372. x Rot. Parl. 14 Edw. IV. n° 33. (not 14 Edw. III. as cited 1 Roll, Abr. 370, &c.) y tit. chancery. fol. 296. Rattell's edit. A. D. 1534. z Spelm. Gloff. 111. Dugd. chron. Ser. 50. More BOOK HI. More by king Henry VIII in 1530. After which the great feal was indifcriminately committed to the cuftody of lawyers, or courtiers 2, or churchmen, according as the convenience of the times and the difpofition of the prince required, till ferjeant 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 feal was intrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln; who had been chaplain to lord Ellesmere, when chancellor . 1 In the time of lord Ellesmere (A. D. 1616.) arose that notable difpute between the courts of law and equity, fet on foot by fir 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 conteft was fo warmly carried on, that indictments were preferred against the fuitors, the folicitors, the counsel, and even a master in chancery, for having incurred a praemunire, by questioning in a court of equity a judgment in the court of king's bench, obtained by grofs fraud and impofition". This matter being brought before the king, was by him referred to his learned counsel for their advice and opinion; who reported fo ftrongly in favour of the courts of equity, that his majesty gave judgment on their behalf: but, not contented with the irrefragable reasons and precedents produced by his counfel, (for the chief justice was clearly in the wrong) he [55] chofe rather to decide the queftion by referring it to the plenitude of his royal prerogative. Sir Edward Coke fubmitted to the decifion, and thereby made atonement for his a Wriothefly, St. John, and Hatton. d Bacon's Works. IV. 611,612.632. For that it appertaineth to our "princely office only to judge over all judges, and to difcern and deter "mine fuch differences, as at any time 66 may and shall arife between our feve"ral courts touching their jurisdictions, "and the fame to fettle and determine, << I as we in our princely wifdom fhall find "to stand moft with our honour, &c." (1 Chanc. Rep. append. 26.) 8 See the entry in the council book, 26 July, 1616. (Biogr, Brit. 1390.) error: error but this ftruggle, together with the business of commendams (in which he acted a very noble part ") and his controlling the commiffioners of fewers', were the open and avowed causes, firft of his fufpenfion, and foon after of his removal, from his office. LORD Bacon, who fucceeded lord Ellefmere, reduced the practice of the court into a more regular system; but did not fit long enough to effect any confiderable revolution in the science itself and few of his decrees which have reached us are of any great confequence to pofterity. His fucceffors, in the reign of Charles I, did little to improve upon his plan: and even after the restoration the feal 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 practifed at all. Sir Heneage Finch, who fucceeded in 1673, and became afterwards earl of Nottingham, was a person of the greatest abilities and moft uncorrupted integrity; a [ 56 ] thorough master and zealous defender of the laws and conftitution of his country; and endued with a pervading genius, that enabled him to discover and to purfue the true fpirit of justice, notwithstanding the embarraffments raised by the narrow and technical notions which then prevailed in the courts of law, and the imperfect ideas of redress which had poffeffed the courts of equity. The reafon and neceffities of mankind, arifing from the great change in property by the In a cause of the bishop of Winchefter, touching a commendam, king James conceiving that the matter affected his prerogative, fent letters to the judges not to proceed in it, till himself had been first confulted. 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 promifed obedience in every fuch cafe for the future; except fir Edward Coke, who faid that 5 "when the cafe happened, he would do k See lord Ellefmere's fpeech to fir extenfion |