met for this purpose, and who were afterwards despatched into the different counties, to preside over the trial of the issues thus made up, came to constitute a distinct tribunal, the King's Bench. To this tribunal also, the name of curia regis has been applied. This result was probably brought about by Glanville, in the reign of Henry II.2 In this way the curia regis, as it were, drew to itself and absorbed the jurisdiction of the county courts; and the vast increase of business, consequent upon this change, although not the origin of the Court of King's Bench, was one of the reasons for its distinct and separate existence. To return to the ordinary council, or household of the king. The council accompanied the king in his movements; and writs for the redress of grievances were made returnable-i. e., the cause was to be heard-before the king wherever he should be in England. Over the ordinary council, a great officer of state, the chief justiciary of all England, presided. His position in the realm was next in rank to that of the sovereign; and in the absence. of the latter from the kingdom, the chief justiciary acted as regent. As is well known, this great office was discontinued in the reign of Henry III.1 6. The chancellor was the secretary of the king, and probably acted as the secretary of the council. From his office (the chancery) issued the writs which authorized suitors to bring their plaints before the king's courts. For, in the ordinary administration of justice, no action could be brought in the king's court except such as concerned the king-the remedy between subject and subject being in the county and hundred courts. When, however, dissatisfaction came to be felt at the decisions of the local courts, the parties began to apply to the king's court, and obtained from the chancellor's department (the officina brevium), a writ applicable to their cases, and for which a fine was originally paid. 1 See 1 Reeves's Hist. Law, Finlason's notes, 80, 89. 2 Id. 31 Foss's Judges, 171. Foss's Hist. of Judges, vol i. p. 11. This payment having be 61 Foss's Hist. Judges, 13. 6 The Norman government would be likely to encourage such applications, in order to do away with the local courts, which were of Saxon origin. come an instrument of injustice, the Great Charter provided that justice should no longer be denied or sold. As the council still retained its general supreme authority, applications for relief were frequently made to that body when redress could not be otherwise obtained. In considering such applications, the advice of the chancellor would naturally be followed, as he was the king's secretary, was the keeper of his conscience (to which the petitions were addressed), and attended his person. The chancellor, moreover, was generally an ecclesiastic; and to churchmen, in those days, the learning of the civil law, to which the common law is so much indebted,' was principally confined. Besides, as from one branch of the chancellor's department, issued the writs by which injuries were ordinarily redressed, he would naturally be the most proper person to determine whether the case presented was one which would fall within the forms already in use, or which would call for the exercise of the extraordinary jurisdiction still held in reserve. In some cases, therefore, the answer to petitioners was, that they should have a writ out of chancery-in other words, they were sent to the King's Bench, or Common Pleas; in others, the Court of Exchequer was pointed out as the tribunal in which the cause would properly be cognizable; while in still a third, the suitor would obtain relief (through the hands of the chancellor) directly from the council in the exercise of its extraordinary jurisdiction.2 7. Of course if the Courts of King's Bench, Common Pleas, and Exchequer had been able and willing to redress every imaginable wrong, the reserve jurisdiction of the council never would have been called into play, and the Court of Chancery never would have grown into being. But the jurisdiction of each of the common law courts was circumscribed. Certain precise and rigid forms of action existed, which were supposed to effectually carry out the great maxim of justice ubi jus ibi remedium; but which in point of fact were not sufficiently comprehensive to do so. No common law writ, for example, existed by which a defective instrument could be reformed, a fraudulent conveyance 1 See Bracton and his Relation to the 21 Spence Eq. 330. Roman Law, by Guterbock; Coxe's Translation. set aside, a mistake or accident effectually relieved against, or a beneficial interest in property be enforced as against the holder of a legal title. Hence many injuries must necessarily and actually did exist, for which the common law courts furnished no appropriate redress; and therefore it was that, finding no relief in the King's Bench or Common Pleas, the suitor was compelled to throw himself upon the grace and compassion of the king and council. Two or three circumstances concurred to render this extraordinary jurisdiction liable to increase: first, the tendency of the common law rules to hardness and rigidity by reason of the deference paid to precedents; secondly, the refusal of the common law to adopt that part of the Roman law which may be called equitable, as distinguished from that which is merely stricti juris; and finally, the desire to increase the dignity and importance of the office of chancellor, which grew to great proportions after the abolition of the office of Chief Justiciary, whereby an ambitious holder of the great seal would naturally be led to give redress by virtue of his extraordinary jurisdiction, rather than by directing a writ to be issued to bring the cause before the ordinary tribunals. It was, most probably, to mitigate the rigors of the common law courts, and at the same time to check the growing jurisdiction of the chancellor, that the famous statute of Westminster the First was passed, authorizing the issuing of writs in consimili The inability or the unwillingness of the chancery clerks to avail themselves of the provisions of the statute to any considerable extent, prevented the common law courts from extending their jurisdiction so as to cover the whole field of remedial justice, and still rendered it necessary for the suitor to apply elsewhere for extraordinary relief." This extraordinary relief, whereby redress was given to those who were without remedy in the ordinary courts of the realm, was at first administered by the council upon petition addressed to them. Applications of this nature were, in fact, invocations upon that reserve force of justice which still resided in the curia regis, ready, when occasion required, to be called into play. Its exercise was of favor, not of right; and 1 1 Spence Eq. 206, 346, 347. It is difficult to imagine, however, to what extent the jurisdiction of the chan cellor would have gone if actions on the hence those matters in which it was displayed were called emphatically "matters to be granted as of grace." When exactly it was that these applications came to be made to, and the redress consequent thereupon came to be afforded by, the chancellor alone, is an historical question involved in some doubt. Certain it is, that as early as the reign of Edward I. an ordinance was issued for the purpose of relieving the king from the business of attending to petitions addressed directly to him, whereby it was provided that "all petitions touching the seal do come first before the chancellor ;" and (providing, as it were, for an appeal to the king in great cases), "if the demands be so great and so much of grace that the chancellor and those others cannot do without the king, then they shall bring them before the king to know his will." A more direct recognition of the chancellor as the proper person by whom the extraordinary jurisdiction in matters of grace was to be administered, is contained in a writ of Edward III. addressed to the sheriffs of London, whereby suitors are specially enjoined to prosecute those affairs which are of grace before the chancellor, or the keeper of the privy seal. In this reign the Court of Chancery ceased to follow the king.3 The natural consequence of these efforts on the part of the king to delegate this branch of judicial authority to the chancellor, would be that petitions for relief would come in time to be addressed directly to that officer. This result, in fact, shortly followed, and in the reign of Richard II. the practice of presenting a petition to the chancellor in the first instance was firmly established." 8. The general ground for equitable relief was then, as it pro 1 Haynes's Outlines of Equity, 40. 2 Haynes's Outlines of Equity, 44; 1 Spence Eq. 337. In the same reign the Court of Chancery as a court of ordinary jurisdiction became of great importance. This jurisdiction included pleas of scire facias for repeal of letters patent; of petition of right and monstrans de droit for obtaining possession or restitution of property from the Crown; traverses of offices, and some others. 1 Spence Eq. 336. In the exercise of his ordinary or Spence Eq. 340. A small portion or fragment of equity jurisdiction had, as has been already stated, drifted into the Court of Exchequer, where it remained until Stat. 5 Vic. c. 5, 2 1. See ante, page 5, note. fesses to be now, either the failure of the common law courts to recognize a right, or their inability to enforce it. One of the most frequent cases in which this general doctrine of equitable relief was applied, was the inability of poor or lowly suitors to enforce their rights in common law actions, either as plaintiff or defendant, against the rich and powerful.1 The interference of the chancellor is invoked, in many instances, solely upon the ground of personal inability to obtain justice as against a powerful adversary. While, with the changed condition of society, the state of things which gave rise to and required this interference on the part of the chancellors has long ago passed away, and the jurisdiction itself has therefore fallen to the ground, it is still useful to recur to it, in order to show the theory upon which courts of equity have always acted from the earliest times, namely, the desire to supply deficiencies, no matter for what cause, in purely legal remedies. Another class of cases in which the extraordinary interposition. of the chancellor was called for was that of trusts, which was the term used when the legal title of property was held by one man, upon the confidence that another should have the right to its beneficial enjoyment. The origin and progress of trusts will be more particularly noticed hereafter. They were emphatically matters of conscience, and, therefore, fell strictly within the scope of the chancellor's extraordinary jurisdiction. Besides these two classes of cases, many others existed in which the chancellor interfered. The following instances, taken from the Chancery Calendar, may be cited as illustrative of the nature and extent of the extraordinary jurisdiction of the High Court of Chancery, during the period which extended from the termination of the reign of Edward III. to the reign of Henry VIII. Specific performance of a contract; specific delivery of a ship and cargo wrongfully detained; delivery for cancellation of documents obtained by 1 See Godard v. Ingepenne, 1 Chan. Cal. viii.; Thomas v. Wyse, Id. xiv.; Belle v. Savage, Id. xiv.; Royall v. Garter, Id. CXXX. Bonodyn v. Arundell, Chan. Cal. xxxviii. This appears to have been by virtue of the former jurisdiction of the Chancellor in Admiralty, long since obso 2 Kymburley v. Goldsmith, Chan. Cal. lete. See 1 Spence Eq. 703. |