idiots, and lunatics; and has the general fuperintendance of all charitable uses in the kingdom. And all this, over and above the vast and extenfive jurifdiction which he exercises in his judicial capacity in the court of chancery; wherein, as in the exchequer, there are two diftinct 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 antient than the court of equity. It's jurifdiction is to hold plea upon a feire facias to repeal and cancel the king's letters patent, when made against law, or upon untrue fuggeftions; and to hold plea of petitions, monftrans de droit, traverses of offices, and the like; when the king hath been advised to do any act, or is put in poffeffion of any lands or goods, in prejudice of a fubject's right. On proof of which, as the king can never be supposed intentionally to do any wrong, the law questions not but he will immediately redrefs the injury; and refers that confcientious task to the chancellor, the keeper of his confcience. It also appertains to this court to hold plea of all perfonal actions, where any officer or minifter of the court is a party". It might likewise hold plea (by feire facias) of partitions of lands in coparcenary w, and of dower *, where any ward of the crown was concerned in intereft, fo long as the military tenures fubfifted: as it now may also do of the [ 49 ] tithes of foreft land, where granted by the king and claimed by a stranger against the grantee of the crown '; and of executions on statutes, or recognizances in nature thereof by the statute 23 Hen. VIII. c. 62. But if any cause comes to iffue in this court, that is, if any fact be difputed between. the parties, the chancellor cannot try it, having no power to fummon a jury; but muft deliver the record propria manu into the court of king's bench, where it fhall be tried by the country, and judgment shall be there given thereon. And 49 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: though fo little is usually done on the common law fide of the court, that I have met with no traces of any writ of error being actually brought, fince the fourteenth year of queen Eliza beth, A. D. 1572. In this ordinary, or legal, court is alfo kept the officina juftitiae: out of which all original writs that pafs under the great feal, all commiffions of charitable ufes, fewers, bankruptcy, idiotcy, lunacy, and the like, do iffue; and for which it is always open to the subject, who may there at any time demand and have, ex debito juftitiae, any writ that his occafions may call for. Thefe writs (relating to the business of the fubject) and the returns to them were, according to the fimplicity of antient times, originally kept in a hamper, in kanaperio; and the others (relating to fuch matters wherein the crown is immediately or mediately concerned) were preferved in a little fack or bag, in parva baga; and thence hath arifen 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 [ 50 ] become the court of the greatest judicial confequence. This diftinction between law and equity, as adminiftered in different courts, is not at prefent known, nor feems to have ever been known, in any other country at any time: and yet the difference of one from the other, when administered by the fame tribunal, was perfectly familiar to the Romans; the jus b Yearbook, 18 Edw.III.25. 17 As. 24. 29 A. 47. Dyer. 315. 1 Roll. Rep. 287. 4 Inft. 80. The opinion of lord keeper North in 1682 (1 Vern. 131. 1 Equ. Caf. abr. 129.) that no fuch writ of error lay, and that an injunction might be iffued against it, feems not to have been well confidered, d The council of conscience, instituted by John III, king of Portugal, to review the fentences of all inferior courts, and moderate them by equity, (Mod. Un. Hift. xxii. 237.) feems rather to have been a court of appeal. e Thus too the parliament of Paris, the court of feffion in Scotland, and every other jurisdiction in Europe of which £ 4 we BOOK III. praetorium, or discretion of the praetor, being diftinct from the leges or standing laws but the power of both centered in one and the fame magiftrate, who was equally intrusted to pronounce the rule of law, and to apply it to particular cafes by the principles of equity. With us too, the aula regia, which was the fupreme court of judicature, undoubtedly administered equal juftice according to the rules of both or either, as the cafe 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 fubfift in the original plan of partition. For though equity is mentioned by Bracton, as a thing contrafted to ftrict law, yet neither in that writer, nor in Glanvil or Fleta, nor yet in Britton, (composed under the aufpices and in the name of Edward I, and treating particularly of courts and their several jurisdictions} is there a fyllable to be found relating to the equitable jurifdiction of the court of chancery. It feems therefore probable, that when the courts of law, proceeding merely upon the ground of the king's original writs and confining themfelves strictly to that bottom, gave a harsh or imperfect judgment, the application for redrefs ufed to be to the king in [51] perfon affifted by his privy council; (from whence alfo arose the jurifdiction of the court of requests", which was virtually abolished by the statute 16 Car. I. c. 10.) and they were wont to refer the matter either to the chancellor and a select committee, or by degrees to the chancellor only, who mitigated the severity or fupplied the defects of the judgments pronounced in the courts of law, upon weighing the circum we have any tolerable account, found all f Thus Cicero; "jam illis promiffis 81. 2. c. 7. fol. 23. h The matters cognizable in this court, immediately before it's diffolution, were almost all fuits, that by colour of equity, or fupplication made "to the prince, might be brought be"fore him: but originally and proper ly all poor men's fuits, which were "made to his majefty by fupplication; "and upon which they were entitled to have right, without payment of any "money for the fame." (Smith's commonwealth. b. 3. C.,7.) ftances ftances of the cafe. This was the cuftom not only among our Saxon ancestors, before the inftitution of the aula regia', 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 devifing 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 "whenfoeyer from thenceforth in "one cafe a writ fhall 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 fhall be framed by consent 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 trespass on the case, to be met with in the register; whereby the fuitor had ready relief, according to the exigency of his bufinefs, and adapted to the fpecialty, reafon, and equity of his very cafe". Which provision (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. Nemo ad regem appellet pro aliqua lite, nifi jus domi confequi non poffit. St jus nimis feverum fit, alleviatio deinde quaeratur apud regem. LL. Edg. c. 2. k Lambard. Archeion. 59. Johannes Sarifburienfis (who died A. D. 1182, 26 Hẹn. II.) speaking of the chancellor's office in the verses prefixed to his polycraticon, has thefe lines; Hic eft, qui leges regni cancellat iniquas, Et mandata pii principis aequa facit. m A great variety of new precedents of writs, 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 Ed ward the fourth. "Le fubpoena (lays "he) BUT when, about the end of the reign of king Edward III,' ufes of land were introduced P, and, though totally difcountenanced by the courts of common law, were confidered as fiduciary depofits and binding in confcience by the clergy, the feparate jurifdiction of the chancery as a court of equity began to be eftablished ; and John Waltham, who was bishop of Salisbury and chancellor to king Richard II, by a ftrained interpretation of the above-mentioned statute 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 ftatute 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 fpiritual offence against confcience, in cafe of non-payment of debts or any breach of civil contracts; till checked by the conftitutions of Clareudon, 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 jurifdiction; especially as the fpiritual courts continued to grafp at the fame authority as before, in fuits law. (Fitzh. Abr. t. Probibition. 15.) But in the ftatute or writ of circumfpe&e agatis, fuppofed by fome to have iffued 13 Edw. I. but more probably (3 Pryn. Rec. 336.) 9 Edw. II, fuits pro laefione fidei were allowed to the ecclefiaftical courts; according to fome antient copies, (Berthelet fat.antiqu. Lond. 1531.90.b. 3 Pryn. Rec. 336.) and the commen English tranAstion, of that ftatute; though in Lyndewode's copy, (Prov. i. 2.1.2.) and in the Cotton MS. (Claud. D. 2.) that claufe is omitted. |