ing that fuit 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 writ of error all determinations of the court of common pleas, and of all inferior courts of record in England; and to which a writ of error lies alfo from the court of king's bench in Ireland (5). Yet even this fo high and honourable court is not the dernier refort of the fubject: for, if he be not fatisfied with any determination here, he may remove it by writ of error into the houfe of lords, or the court of exchequer chamber, as the cafe may happen, according to the nature of the fuit, and the manner in which it has been profecuted. 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 chofen to confider it in this order, on account of it's double capacity, as a court of law and a court of equity alfo. It is a very antient court of record, fet up by William the conqueror, as a part of the aula regia, though regulated and reduced to it's present order by king Edward 18; and intended principally to order the revenues of the crown, and to recover the king's debts and duties". It is called the exchequer, feaccharium, from the chequed cloth, resembling a chefs-board, which covers the table there; and on which, when certain of the king's accounts are made up, the fums are marked and scored with counters. It consists of two divifions: the receipt of the exchequer, which manages the royal revenue, and with which thefe commentaries have no con è Lamb. Archeion. 24. f Madox. hift. exch. 109. g Spelm. Guil. I. in cog. leg. vet. apud Wilkins. h 4 Inft. 103.-116. (s) This altered by the 23 Geo. III. c. 28, which fee in the 1 vol. 104. n. 14. VOL. III. cern a [ 45 ] cern; and the court or judicial part of it, which is again subdivided into a court of equity, and a court of common law. TIE court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puifnè ones. Thefe Mr. Selden conjectures to have been antiently made out of fuch as were barons of the kingdom, or parliamentary barons; and thence to have derived their name; which conjecture receives great ftrength from Bracton's explanation of magna carta, c. 14. which directs that the earls and barons be amerced by their peers; that is, fays he, by the barons of the exchequer *. The primary and original bafinefs 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. So that by their original conftitution the jurisdiction of the courts of common pleas, king's bench, and exchequer, was entirely feparate and diftinét: the common. pleas being intended to decide all controverfies between fubject and fubject; the king's bench to correct all crimes and mifdemefnors that amount to a breach of the peace, the king being then plaintiff, as fuch offences are in open derogation of the jura regalia of his crown: and the exchequer to adjuft and recover his revenue, wherein the king alfo is plaintiff, as the withholding and non-payment thereof is an injury to his jura fifcalia. But, as by a fiction almost all forts of civil actions are now allowed to be brought in the king's. bench, in like manner by another fiction all kinds of perfonal fuits may be profecuted in the court of exchequer. For as all the officers and minifters of this court have, like thofe of other fuperior courts, the privilege of fuing and being fued only in their own court; fo alfo the king's debtors and farmers, and all accomptants of the exchequer, are privileged to fue and implead all manner of perfons in the fame court of equity, that they themselves are called into. They have likekl. g. tr. 2. c. 1. § 3. i Tit. hon. 2. 5. 16. ر wife privilege to fue and implead one another, or any ftranger, in the fame kind of common law actions (where the perfonalty only is concerned) as are profecuted in the court of common pleas. THIS gives original to the common law part of their jurif- [ 46 ] diction, which was established merely for the benefit of the king's accomptants, and is exercifed 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: in which the plaintiff fuggefts that he is the king's farmer or debtor, and that the defendant hath done him the injury or damage complained of; quo minus fufficiens exiftit, by which he is the lefs able, to pay the king his debt or rent. And these suits are exprefsly directed, by what is called the statute of Rutland', to be confined to fuch matters only, as specially concern the king or his minifters of the exchequer. And by the articuli fuper cartas 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 perfon may be admitted to fue in the exchequer as well as the king's accomptant. The furmife, 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 fame holds with regard to the equity fide of the court: for there any perfon may file a bill against another upon a bare fuggeftion that he is the king's accomptant; but whether he is fo, or not, is never controverted. In this court, on the equity fide, the clergy have long ufed to exhibit their bills for the non-payment of tithes; in which cafe the furmife 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 fhare in this bufinefs. AN appeal from the equity fide of this court lies immediately to the house of peers; but from the common law fide, [ 47 ] in pursuance of the statute 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 refort, a writ of error to the house of lords. 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 fuperior and original courts of justice. It has it's name of chancery, cancellaria, from the judge who prefides here, the lord chancellor or cancellarius; who, fir Edward Coke tells us, is fo termed a cancellando, from cancelling the king's letters patent when granted contrary to law, which is the highest point of his jurifdiction". But the office and name of chancellor (however derived) was certainly known to the courts of the Roman emperors: where it originally feems to have fignified a chief fcribe or secretary, who was afterwards invested with feveral judicial powers, and a general fuperintendency over the reft of the officers of the prince. From the Roman empire it paffed to the Roman church, ever emulous of imperial ftate; and hence every bishop has to this day his chancellor, the principal judge of his confiftory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every ftate preserved it's chancellor, with different jurifdictions and dignities, according to their different conftitutions. But in all of them he seems to have had the supervision of all charters, letters, and fuch other public inftruments of the crown, as were authenticated in the most folemn manner: and therefere when feals came in ufe, he had always the cuftody of the king's great feal. So that the office of chancellor, or lord keeper, (whofe authority by ftatute 5 Eliz. c. 18. is declared to be exactly the fame) is with us at this day created by the mere delivery of the king's great feal into his custody°: whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom; and fuperior in point of precedency to every tem• Lamb. Archeion. 65. 1 Roll. Abr. 385. poral 4 Inft. 88. poral lord P. He is a privy counsellor by his office, and, according to lord chancellor Ellefmere', prolocutor of the houfe of lords by prefcription. To him belongs the appointment of all justices of the peace throughout the kingdom. [ 48 ] Being formerly ufually an ecclefiaftic, (for none else were then capable of an office fo converfant in writings) and prefiding over the royal chapel, he became keeper of the king's confcience; visitor, in right of the king, of all hofpitals and colleges of the king's foundation; and patron of all the king's livings under the value of twenty marks per annum in the king's books (6). He is the general guardian of all infants, f Madox. hift. of exch. 42. P Stat. 31 Hen. VIII. c. 10. 4 Selden. office of lord chanc. § 3. 1651. $38 Edw. III. 3. F.N.B.35. though Hobart (214.) extends this value to twenty pounds. (6) With regard to the chancellor's patronage, there seems to be fome 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 that it had been the ufage before that time for the chancellors to give all the king's livings, taxed (by the fubfidy affeffments) at twenty marks or under, to the clerks, who were then actually cleri or clergymen, who had long laboured in the court of chancery; but that the bishop of Lincoln, when he was chancellor, had given fuch livings to his own and other clerks, contrary to the pleasure of the king and the antient ufage; and therefore it is recommended to the king by the council to command the chancellor to give fuch livings only to the clerks of chancery, the exchequer, and the other two benches or courts of Weftminster-hall. 4 Ed. III. no. 51. But fince the new valuation of benefices, or the king's books in the time of Henry the eighth, and the clerks ceased to be in orders, the chancellor has had the abfolute difpofal of all the king's livings, even where the prefentation devolves to the crown by lapfe, 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 confideration that the twenty marks in the time of Ed. III. were equivalent to twenty pounds in the time of Henry VIII. Gibf. 764. 1 Burn. Ec. Law, 129. E 3 idiots, |