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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 posses

sion 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 or land in coparcenery (w), and of dower (w), 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.
(10) Co. Litt. 171. F. X. B. 62.

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

cellor shall present to all not taxed at 20 pressly give the chancellor the patronage of
marks, and having understood that the living ihe value of 20 marks, or now 201. and I have
in question was taxed at 40s. he had presented referred to those which stale it to be under ;
to it, but as in fact it was taxed at 401., the and I cannot but observe so far they are all
king claimed it. The wonis in French state consistent, as I find no authority in opposition
the general law, the rest only apply to the par. to those above, declaring that livings of the
ticular case. Yet Watson is so careless as to value of 201. belong to the king and not to the
state the chancellor's patronage to be under chancellor.
20 marks and under 201., and refers to this au- The gentleman who wished me lo examine
thority, ch. 9. But it is correctly cited by the authorities upon this subject, was so
Comyns, to support the position, that the obliging as to inform me that the crown has
chancellor has the patronage of 20 marks, or the patronage of five livings of the exact va.
201. Dig. 7'it. Esgl. H. 5. In Fitz. N. B. 35. lue of 201. in the king's books, but that several
it is stated to be under 20 marks, without tak- others of that value occasionally devolve to
ing any notice of 20 exactly. And in a case the crown by lapse and promotion ; that he has
in Hob. 214. the word is under. In that case examined the church took in the secretary of
the chancellor had presented to a living lapsed state's office, and that he finds within the last
to the crown above 201. a year, and it was held century many instances of presentations to
that the king could have no rernedy, because those livings by the crown : but he admits, in
the presentation had passed the great seal, and some modern instances where the right to the
therefore apparently made by the king him- presentation has been claimed both by the
self; but if the presentation had stated, that, chancellor and the minister, that the latter has
the benefice was under the value of 201. then yielded to the former. From the whole, one
it would have been void, because the chancel. is led to conclude that these presentations
jor must have been deceived.-In this case made by the crown, were owing either to the
there was no occasion to slate the instance of inattention or the accommodation of the chan
a living of the exact value of 201. This was cellor.
a benefice which had devolved to the crown (19) See ante I book, 451. et. seq. as to
by lapse, but no objection is made on that what protection he may afford infants and
ground, and there seems to be no reason for wards of court. His jurisdiction in this re
any distinction whether the benefice devolves spect extends so far, that though he has no
to the king by lapse or by promotion of the power to prevent crimes, yet he may do son
incumbeni, oi it is part of his original patron when they will tend to injure an isfurt. 3
ye. I have stated the authorities which ex Swanst. 413.

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that is, if any fact be disputed between the parties, the chancellor cannot · ry it, having no power to summon a jury: but must deliver the record

propria manu into the court of king's bench, where it shall be tried by the country, and judgment shall be there given thereon (a) (20). And when judgment is given in chancery upon demurrer or the like, a writ of error in nature of an appeal lies out of this ordinary court into the court of king's bench (6): though so little is usually done on the common law side of the court, that I have met with no traces of any writ of error (c) being actually brought, since the fourteenth year of queen Elizabeth, A. D. 1572.

. In this ordinary, or legal, court is also kept the officina justitige : out of which all original writs that pass under the great seal, all commissions of charitable uses, sewers, bankruptcy, idiotcy, lunacy, and the like, do issue ; and for which it is always open to the subject, who may there at any time demand and have, ex debito justitiae, any writ that his occasions *may call for. These writs (relating to the business of the sub- [649] ject) and the returns to them were, according to the simplicity of ancient times, originally kept in a hamper, in hanaperio; and the others (relating to such matters wherein the crown is immediately or mediately concerned) were preserved in a little sack or bag, in parva baga : and thence hath arisen the distinction of the hanaper office, and petty bag office, which both belong to the common law court in chancery:

But the extraordinary court, or court of equity, is now become the court of the greatest judicial consequence. This distinction between law and equity, as administered in different courts, is not at present known, nor seems to have ever been known, in any other country at any time (d): and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans (e); the jus praetorium, or discretion of the prætor, being distinct from the leges or standing laws (), but the power of both centred in one and the same magistrate, who was equally entrusted to pronounce the rule of law, and to apply it to particular cases, by the principles of equity. With us too, the aula regia, which was the supreme court of judicature, undoubtedly administered equal justice according to the rules of both or either, as the case might chance to require : and, when that was broken to pieces, the idea of a court of equity, as distinguished from a court of law, did not subsist in the original plan of partition. For though equity is mentioned by Bracton (g) as a thing contrasted to strict law, yet neither in that writer, nor in Glanvil or Fleta, nor yet in Britton, (composed under the auspices and in the name of Edward I., and treating particularly of courts and their several [*501 () Cro. Jac. 12. Latch. 112.

(e) Thus too the parliament of Paris, the court of (b) Year-bouk, 19 Edward III. 25. 17 Ass. 24. session in Scotland, and every other jurisdiction in 19 Ass. 47. Dyer, 315. 1 Roll. Rep. 287. 4 Inst. Europe, of which we have any tolerable account, 80.

found all their decisions as well upon principles of (c) The opinion of lord keeper North, in 1682, (1 equity as those of positive law. (Lord Kainis, his Vern. 131. 1 Equ. Cas. abr. 129), that no such writ tor. law tracts, I. 325. 330, princ. of equity, 44.) of error lay, and that an injunction might be issued ( Thus Cicero: "jam illis promssis, non esse against it seems not to have been well considered. Standum, quis non videt, quæ coactus quis metu et (d) The council of conscience, instituted by John deceptus dolo promiserit i que quulem plerumque III. king of Portugal, to review the sentence of all jure praetorio liberantur, nonnulla legibus." Offic nferior courts, and moderate them by equity. (Mod. 1. i. Un. Hist. xxii. 237). seems rather to have been a g) 3. 2, c. 7,fol. 23. court of appeal.

(20) But on the equity side of the court chancery, if either party be desirous of haring questions of fact may be decided without an a special jury, it is said to be proper to move issue, but this jurisdiction ought to be exer- the court of chancery for that purpose. Se. eised very tenderly and sparingly. 9 Vesey, Prec. Ch. 264. 2 P. Wos. 68 4 M. & 9 168. On the trial of an issue directed out of 195, 6.


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juris?ictions), 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 ihe 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. ().

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. And 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 parliament, 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 register; 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 clorgy, the separate jurisdiction of the chancery as a court of equity began to be established (9) ; and John Waltham, who was bishop

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(, The matters cognizable in this court, imme- in the verses prefixed to his polyeraticon, has these diately before its dissolution, were “almost all lines : suits, that by colour of equity, or supplication made Hic est, qui leges regni cancellat iniquas to the prince, might be brought before him; but Et mondata pii principis aequa facil. originally and properly all poor men's suits, which (m) A great variety of new precedents of writs, were made to his majesty hy supplication ; and in cases before unprovided for, are given by this upon wluch they were entitled to have right, with- very statute of Westm. 2 out payment of any money for the same.' (Smith's (n) Lamb. Archeion. 61. Connonwealth, 6. 3, c ).

(0) This was the opinion of Fairfax, a very learn(i, Vemo ad regem appellet pro aliqua lite, nisi ed judge in the time of Edward the Fourth. gus domi consequi non possit. Si jus nimis severum subpoena (says he) ne serroit my cy soventenient use ot, alleviatto deinde quaeratur apud regem. LL. come il est ore, si nous attendomus tiels actions sms kdg. c. 2.

les cases, et mainteinomus le jurisdiction de ceo cow (k) Lambard. Archeion. 59.

et d'auter courts." (Yearb. 21 Edu. IV. 23 (1) Joannes Sar:sburiensis, (who died A. D. (p) See book II. ch. 20. ,182, 26 Hen. II). speaking of the chancellor's office (9) Spalm. Giloss. 106. 1 Lev. 242.


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of Salisbury and chancellor to king Richard II., by a strained interpreta. cion of the above-mentioned statute of Westm. 2. devised the writ of subpoena, returnable in the court of chancery only, to make the feofree 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 ahridging 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 unaniinons 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 ().

*But this did not extend very far : for in the ancient treatise, [*531 entitled diversité des courtes (y), supposed to be written very early in the sixteenth century, we have a catalogue of the matters of conscienco 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 (2), 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. 1.2, t. 2). and in the Cotton MS. (Claud. D. 2) thai (1) 10 Hen. II. c. 15. Speed. 458.

clause is omitted. (1) In 4 Hen. III. suits in court christian pro lae (u) Yearb. 2 Hen. IV. 10. 11 Hen. IV. 88. 2 rione fidei upon temporal contracts were adjudged Hen. VI. 29. 20 Edw. IV. 10. to be contr. to law. (Fitzh. Abr. t. Prohibition, (v) Rot. Parl. 4 Hen. IV. n° 78 & 110. 3 Hes 15). But in the statute or writ of circumspecte aga- V. n° 46. cited in Prynne's abr. of Cotton's records tis, supposed by some to have issued 13 Edw. I., 410.422. 424. 548. 4 Inst. 83. 1 Roll. Abr. 370, 371, but more probably (3 Pryn. Rec. 336). 9 Edw. II, 372. tuits pro laesione fidei were allowed to the ecclesi. (7) Rot. Parl. 14 Edw. IV. n° 33. (not 14 Edw. asticai courts ; according to some ancient copies, III. as cited 1 Roll. Abr. 370, (c). (Berthelet stat. antiq. Lond. 1531. 90. b. 3 Pryn. (y) til. Chancery, fol. 296.' Rastell's edit. A. D. Rec. 3361. and the common English translation, of 1534. thuat statute, though in Lyndewodo's copy, (Prov (z) Spelm. Gloss. 121 Dugd choon. Ser 50

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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 lo 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 aster 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, not 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 Edward Coke submitted to the decision (g), and thereby made atonement for his error: but this struggle, together with the business of commendams (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 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 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 [55] in 1673, *and became afterwards earl of Nottingham, was a per

son of the greatest abilities and most uncorrupted integrity ; a thorough master and zealous desender of the laws and constitution of his

(a) Wriothesly, St. John, and Hatton.

matter affected his prerogative, sent letters to the () Goodrick, Gardiner, and Heath.

judges not to proceed in it till himself had been first (c) Biog. Brit. 4278.

consulted. The twelve judges joined in a memo. (d, Bacon's Works, IV. 611, 612. 682.

rial to his majesty, declaring that their compliance (e) Whitelocke of parl. ii. 390. 1 Chan. Rep. Ap would be contrary to their oaths and the law; but pend. 11.

upon being brought before the king and council, () "For that it appertaineth to our princely they all retracted and promised obedience in every office only to judge over all judges, and to discern such case for the future, except sir Edward Coke, urd determine such differences as at any time may who said "that when the case happened, he would and shall arise between our several courts, touch- do his duty.” (Biogr. Brit. 1388). ing their jurisdictions, and the same to settle and (i) See that article in chap. 6. determine, as we in our princely wisdom shall find (k) See lord Ellesmere's speech to sir Ilenry lo stand most with our honour, &c." (1 Chanc. Montague, the new chief justice, 15 Nov. 1616. Rep. append. 26).

(Moor's reports, 828). Though sir Edward might (8) See the entry in the council book, 26 July, probably have retained his seat, if, during his sus2016. (Biogr. Brit. 1390).

pension, he would have complimented lord Villiers (h; In a cause of the

bishop of Winchester, touch the new favourite) with the disposal of the most ing a commendam, king James conceiving that the lucrative office in his court. (Biogr. Brit. 1391).

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