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pro laefione fidei, so late as the fifteenth century “, till finally prohibited by the unanimous concurrence of all the judges. However, it appears from the parliament rolls ", that in the reigns of Henry IV and V the commons were repeatedly urgent to have the writ of subpoena entirely suppressed, as being a novelty devised by the subtilty of chancellor Waltham, against the form of the common law; whereby no plea could be determined, unless by examination and oath of the parties, according to the form of the law civil, and the law of holy church, in subversion of the common law. But though Henry IV, being then hardly warm in his throne, gave a palliating answer to their petitions, and actually passed the Itatute 4 Hen. IV. c. 23. whereby judgments at law are declared irrevocable unless by attaint or writ of error, yet his son put a negative at once upon their whole application: and in Edward IV's time, the process by bill and subpoena was become the daily practice of the court *.

But this did not extend very far: for in the antient treatise, entitled diverfite des courtesy, supposed to be written very early in the fixteenth century; we have a catalogue of the matters of conscience then cognizable by subpoena in chancery, which fall within a very narrow compass. No regular [ 54 ] judicial system at that time prevailed in the court; but the suitor, when he thought himself aggrieved, found a defultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman: no lawyer having sate in the court of chancery from the times of the chief justices Thorpe and Knyvet, successively chancellors to king Edward III in 1372 and 1373?, to the promotion of fir Thomas

u Yearb. 2 Hen. IV. 10. ullen. IV. 88. 38 Hen. VI. 29. 20 Edw. IV. 10.

w Rot. Parl. 4 Hen. IV. 90 78 6 110. 3 Hen. V. n.46. cited in Prynne's abr. of Cotton's records. 410.422. 424. 548. 4. Inft. 83. 1 Roll. Abr. 370, 371, 372.

Ro. Parl. 14 Edw. IV. mO 33. (not 14 E dwu. III. as cited 1 Roll. Abr, 370, &c.)

y rir. cbarcery, fol. 296. Raitell's edit. A. D. 1534.

2 Spelm. Gj: 111. Dugd. chron. Ser. 5o.

More

More by king Henry VIII in 1530. After which the great seal was indiscriminately committed to the custody of lawyers, or courtiers, or churchmen, according as the convenience of the times and the disposition of the prince required, till serjeant Puckering was made lord keeper in 1592: from which time to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was intrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln ; who had been chaplain to lord Ellesınere, when chancellor.

. In the time of lord Ellesmere ( A. D, 1616.) arose that notable dispute between the courts of law and equity, set on foot by fir Edward Coke, then chief justice of the court of king's bench; whether a court of equity could give relief after or against a judgment at the common law. This contest was so warmly carried on, that indictments were preferred against the suitors, the solicitors, the counsel, and even a master in chancery, for having incurred a praemunire, by queftioning in a court of equity a judgment in the court of king's bench, obtained by gross fraud and impofition“, This matter being brought before the king, was by him referred to his learned counsel for their advice and opinion ; who reported so strongly in favour of the courts of equity, that his majesty gave judgment on their behalf: but, not contented with the irrefragable reasons and precedents produced by his

counsel, (for the chief justice was clearly in the wrong) he [ 55 ] chose rather to decide the question by referring it to the ple

nitude of his royal prerogative'. Sir Edward Coke submitted to the decisions, and thereby made atonement for his

a Wriotherly, St. John, and Hatton. « mine such differences, as at any time b Goodrick, Gardiner, and Heath. « may and shall arise between our seve. c Biogr. Brit. 4278.

“ ralcourts touching their jurisdi&tions, d Bacon's Works. IV.611,612.632. " and the fame to settle and determine,

e Whitelocke of parl, ji. 390. i " as we in our princely wisdom shall find Chan. Rep. append. 17.

“ so itand most with our honour, &c." I « For that it appertainech to our (1 Chane. Rep. append. 26.) << princely office only to judge over all & See the entry in the council book, “ judges, and to discern and deter. 26 July, 1616. ( Biogr. Brit. 1390.)

error

crror: but this struggle, together with the business of coma mendams (in which he acted a very noble part 5) and his controlling the commissioners of fewers, were the open and avowed causes", first of his suspension, and soon after of his removal, from his oflice.

LORD Bacon, who succeeded lord Ellesmere, reduced the practice of the court into a more regular system; but did not fit long enough to effect any considerable revolution in the science itself: and few of his decrees which have reached us are of any great consequence to posterity. His successors, in the reign of Charles I, did little to improve upon his plan: and even after the restoration the seal was committed to the earl of Clarendon, who had withdrawn from practice as a lawyer near twenty years; and afterwards to the earl of Shaftesbury, who (though a lawyer by education) had never practised at all. Sir Heneage Finch, who succeeded in 1673, and became afterwards earl of Nottingham, was a person of the greatest abilities and most uncorrupted integrity; a [56] thorough master and zealous defender of the laws and constitution of his country; and endued with a pervading genius, that enabled him to discover and to pursue the true spirit of justice, notwithstanding the embarrassments raised by the narrow and technical notions which then prevailed in the courts of law, and the imperfect ideas of redress which had possessed the courts of equity. The reason and necessities of mankind, arising from the great change in property by the

In a cause of the bishop of Winches. ter, touching a commendam, king James conceiving that the matter affected his prerogative, sent letters to the judges not to proceed in it, will himself had been first consulted. The cwelve judgesjoined in a memorial to his majesty, declaring that their compliance would be contrary to their oaths and the law : but upon being brought before the king and coun. cil, they all retracted and promised obe. dience in every such cafe for the future; asept for Eduad Coke, who said that

« when the case happened, he would do
« his duty." (Biogr. Brit. 1388.5
i See that article in chap. 6.

See lord Ellesmere's speech to fir
Henry Montague, the new chief justice,
15 Nov. 1616. (Moor's reports. 828.)
Though Gr Edward might probably have
retained his feat, if, during his fufpenfion
he would have complimented lord Villi.
ers (the new favourite) with the difpo.
fal of the most lexcrative office in his
court. (Biogr. Bris. 1391.)

extension

extension of trade and the abolition of military tenures, cooperated in establithing his plan, and enabled him in the course of nine years to build a system of jurisprudence and jurisdiction upon wide and rational foundations; which have also been extended, and improved by many great men, who have since presided in chancery. And from that time to this, the power and business of the court have increased to an amazing degree.

From this court of equity in chancery, as from the other superior courts, an appeal lies to the house of peers. But there are these differences between appeals from a court of equity, and writs of error from a court of law : 1. That the former may be brought upon any interlocutory matter, the latter upon nothing but only a definitive judgment : 2. That on writs of error the house of lords pronounces the judgment, on appeals it gives direction to the court below to rectify it's own decrec.

IX. The next court that I shall niention is one that hath no original jurisdiction, but is only a court of appeal, to correct the errors of other jurisdictions. This is the court of exchequer chamber; which was first erected by statute 31 Edw. III. c. 12. to determine causes upon writs of error from the common law side of the court of exchequer. And to that end it consists of the lord chancellor and lord treasurer, taking unto him the justices of the king's bench and common pleas. In imitation of which, a second court of exchequer chamber

was erected by statute 27 Eliz. c. 8. consisting of the justices [ 57 ] of the common pleas, and the barons of the exchequer ; be

fore whom writs of error may be brought to reverse judgments
in certain suits' originally begun in the court of king's bench.
Into the court also of exchequer chamber, (which then consists
of all the judges of the three superior courts, and now and
then the lord chancellor also) are sometimes adjourned from
the other courts such causes, as the judges upon argument
find to be of great weight and dissiculty, before any judg-
ment is given upon them in the court below .
. 1 See ch. 25. 9?5.411.

0 + Int. 19. : Bulltr. 146.

FROM

From all the branches of this court of exchequer chamber, a writ of error lies to

X. The house of peers; which is the supreme court of judicature in the kingdom, having at present no original jurisdiâion over causes, but only upon appeals and writs of error, to rectify any injustice or mistake of the law, committed by the courts below. To this authority this august tribunal fucceeded of course upon the diffolution of the aula regia. For, as the barons of parliament were constituent members of that court; and the rest of it's jurisdiction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to preside; it fol. lowed, that the right of receiving appeals, and fuperintending all other jurifdictions, still remained in the refidue of that noble affembly, from which every other great court was derived. They are therefore in all causes the last resort, from whofe judgment no farther appeal is permitted; but every subordinate tribunal must conform to their determinations : the law reposing an entire confidence in the honour and conscience of the noble persons who compose this important afsembly, that (if possible) they will make themselves masters of those questions upon which they undertake to decide, and in all dubious cases refer themselves to the opinions of the judges, who are summoned by writ to advise them; fince upon their decision all property must finally depend.

HITHERTO may also be referred the tribunal established by [ 58 ] statute 14 Edw. III. c. 5. consisting (though now out of use) of one prelate, two earls, and two barons, who are to be chosen at every new parliament, to hear complaints of grievances and delays of justice in the king's courts, and (with the ad. vice of the chancellor, treasurer, and justices of both benches) to give directions for remedying these inconveniences in the courts below. This committee seems to have been established, lest there should be a defect of justice for want of a supreme court of appeal, during any long intermission or recess of parliament; for the statute farther directs, that if the VOL. III.

difficulty

E 8

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