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idiots, and lunatics; and has the general fuperintendance 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 antient than the court of equity. It's jurisdiction is to hold plea upon a feire facias to repeal and cancel the king's letters patent, when made against law, or upon untrue suggestions; and to hold plea of petitions, monsirans de droit, traverses of offices, and the like ; when the king hath been advised to do any act, or is put in possession of any lands or goods, in prejudice of a fubject's rights. On proof of which, as the king can never be supposed intentionally to do any wrong, the law questions not but he will immediately redress the injury; and refers that conscientious talk 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". 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 interest, so long as
the military tenures fubfifted : as it now may also do of the [ 49 ] 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. 62. But if any cause comes to issue in this court, that is, if any fact be disputed between the parties, the chancellor cannot try it, having no power to summon a jury; but must deliver the record propria mamu into the court of king's bench, where it thall be tried by the country, and judgment shall be there given thereona. And t 4 Rep. 54.
y Bro. Abr. t. disres. 10. 24 Inft. 80.
2 2 Roll. Abr. 469. w Co. Litt. 171. F. N. B. 62. a Cro. Jac. 12. Latch. 112. * Bro. Abre tito d'ower.66. Moor.565.
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 b: though so little is usually done on the common law fide 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 juftitiae ; 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 juflitine, any writ that his occafions may call for. These writs (relating to the business of the subject) and the returns to them were, according to the fimplicity of antient 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 cquity, is now [ 501 become the court of the greateit judicial consequence. This diftinction 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 timed: and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans; the jus
b Yearbook, 18 Edw.111.25. 17 Ap. The comncil of conscience, inftituted 24. 29 As: 47. Dyer. 315. ; Roll. by John III, king of Portugal, to revien Rep. 287. 4 loft. 80.
the sentences of all inferior courts, and • The opinion of lord keeper North moderate them by equity, (Mod. Un. in 1682 (, Vern. 131. 1 Equ. Caf. Hift. xxii. 237.) Seems rather to have abr. 129.) that no such writ of error lay, been a court of appeal. and that an injunction might be issued Thus too the parliament of Paris, against it, seems not to have been well the court of fefion in Scotland, and every confidered.
other jurifdiction in Europe of which
praetorium, or discretion of the praetor, being distinct from the leges or standing laws': but the power of both centered in one and the same magistrate, who was equally intrusted 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 Bracțon 5, 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 jurisdictions) is there a syllable to be found relating to the equitable jurisdiction of the court of chancery. It seems therefore probable, 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 judg
ment, the application for redress used to be to the king in [ 51 ] person assisted by his privy council; (from whence also arose
the jurisdiction 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 supplied the defects of the judgments pronounced in the courts of law, upon weighing the circum
we have any tolerable account, found all
i Thus Cicero; “jam illis promiffis
I.2. 6 7. fol. 23.
h The matters cognizable in this court, immediately before it's diffolu. tion, were “ almost all suits, 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 majetty by fupplication; " and upon which they were entitled to “ have right, without payment of any “ money for the same." (Smith's commonwealth. b. 3. C.,7.) :
stances ftances of the case. This was the custom not only among our Saxon ancestors, before the institution of the aula regia', but also after it's diffolution, in the reign of king Edward Ik; 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 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 antient precedents, it is provided by statute Westm. 2. 13 Edw. I. c. 24. that " whensoeyer from thenceforth in “ one case a writ shall be found in the chancery, and in a " like cafe falling under the same 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 shall be framed by consent of the « learned in the lawm, left it happen for the future, that the “ court of our lord the king be deficient in doing justice to " the sựitors.” 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 suitor had ready relief, according to the exigency of his business, and adapted to the specialty, reason, 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.
i Nemo ad regem appellet pro aliqua Hic eft, qui leges regni cancellat iniquas, lite, nisi jus domi confiqui non poflit. Si El mandata pii principis aequa facit. jus nimis severum fit, alleviatio deinde m A great variety of new precedents of quserotur apud regem. LL. Edg.c. 2. writs, in cases before unprovided for, are * Lambard. Arcbeion. 59.
given by this very statute of Westm. 2. Johannes Sarisburienfis (who died Lamb. Arcbeion. 61. A. D. 1132, 26 Hen. II.) speaking of This was the opinion of Fairfax, the chancellor's office in the verses pre- a very learned judge in the time of Ed. fixed to his folycraticon, has these lines; ward the fourth. “ Le subpoena (says
But when, about the end of the reign of king Edward III, uses of land were introduced ?, and, though totally discoun. tenanced by the courts of common law, were considered as fiduciary deposits and binding in conscience by the clergy, the separate jurisdiction of the chancery as a court of equity began to be established ?; and John Waltham, who was bishop of Salisbury and chancellor to king Richard II, by a strained interpretation of the above-mentioned statute of Weltm. 2. devised the writ of fubpoena, returnable in the court of chancery only, to make the feoffee to uses account able to his ciftry que rife ; which process was afterwards ex. tended to other matters wholly determinable at the common law, upon false and fictitious fuggeftions; 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 of king Stephen, had attempted to turn their ecclesiastical courts into courts of equity, by en. tertaining suits pro laefione 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 Clareudon', which declared that, "placita de debitis, que fide in
« terpofita debentur, vel abfque interpositione fidei, fint in justicia [ 53 ] “ regis ;" therefore probably the ecclesiastical chancellors,
who then held the feal, were remiss in abridging their own new-acquired jurisdiction ; especially as the spiritual courts continued to grasp at the same authority as before, in fuits
6 he) ne ferroit my cy fovenement use cone
p See book II. ch. 20.
Lord Lyttelt. Hen. II.6. 3. p. 361.
s 10 Hen. II. c. 15. Spec). 458.
e In 4 Hen. III. fuits in court chriftian prala fonc, idei upon temporal contracts were adjudged to be contrary to
law. (Fitzh. Abr. 1. Probibition 150). But in the statute or writ of circunfede agatis, supposed by some to have issued 13 Edw. J. but more probably (3 Pryn. Rec. 336.) 9 Edw. Il, suits fro la fine
dei were allowed to the ecclesiastical courts; ace. rding to come antient copies, (Berthelet flat.antiqu. Lond. 1531.90.b. 3 Pryn. Res. 336.) and the common Englif transition, of that statute; though in Lyndewode's copy, ( Prov.in 2.6. 2.) and in the Cotton MS. (Clexd. D. 2.) that clause is omitted.