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 attor ney-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 (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

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 accomptan 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 em. perors: where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a ge neral 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 dif ferent constitutions. But in all of them he seems to have had the super. vision 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 enviroued, 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. I 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, on of gold. which he delivered to the shop o

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 (t) per annum in the king's books (18). He is the general

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 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. (z). But if any cause comes to issue in this court,

(u) 4 Rep. 54.

(v) 4 Inst 80.

(10) 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 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 chan cellor.

(19) See ante 1 book, 451. et. seq. as to what protection he may afford infants and wards of court. His jurisdiction in this re spect extends so far, that though he has no power to prevent crimes, yet he may do so when they will tend to injure an ifa. 2 Swanst. 413.

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.

e;

In this ordinary, or legal, court is also kept the officina justitiae: 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, w 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- [49] 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 (f), 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 particu lar 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 [50]

80.

(a) Cro. Jac. 12. Latch. 112.

(6) Year-book, 18 Edward III. 25. 17 Ass. 24. Ass. 47. Dyer, 315. 1 Roll. Rep. 287. 4 Inst. (c) The opinion of lord keeper North, in 1682, (1 Vern. 131. 1 Equ. Cas. abr. 129), that no such writ of error lay, and that an injunction might be issued against it, seems not to have been well considered. (d) The council of conscience, instituted by John III. king of Portugal, to review the sentence of all nferior courts, and moderate them by equity, (Mod. Un. Hist. xxii. 237). seems rather to have been a court of appeal.

(20) But on the equity side of the court questions of fact may be decided without an issue, but this jurisdiction ought to be exereised very tenderly and sparingly. 9 Vesey, 168. On the trial of an issue directed out of

(e) Thus too the parliament of Paris, the court of session in Scotland, and every other jurisdiction in Europe, of which we have any tolerable account, found all their decisions as well upon principles of equity as those of positive law. (Lord Kaims, his tor. law tracts, I. 325. 330, princ. of equity, 44.)

(f) Thus Cicero: "jam illis promissis, non esse standum, quis non videt, quæ coactus quis metu et deceptus dolo promiserit? que quidem plerumque jure praetorio liberantur, nonnulla legibus." Offic 7. i.

(g) 1. 2, c. 7, fol. 23.

chancery, if either party be desirous of having a special jury, it is said to be proper to move the court of chancery for that purpose. See Prec. Ch. 264. 2 P. Wms. 69 4 M. & 9 195, 6.