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337 Matters of Grace still delegated to the Council-Bill-Subpœna.

In this reign (Edward III.) the Court of Chancery appears as a distinct court for giving relief in cases which required Extraordinary remedies. The king being, as may well be conceived, looking to the history of his busy reign, unable from his other avocations to attend to the numerous petitions which were presented to him, he, in the twentysecond year of his reign, by a writ or ordinance referred all such matters as were of Grace, to be dispatched by the Chancellor or by the Keeper of the privy seal (a).

The establishment of the Court of Chancery as a regular court for *administering extraordinary relief, is generally considered to [*338] have been mainly attributable to this or some similar ordinance (b). It will be observed, that it conferred a general authority to give relief in all matters of what nature soever requiring the exercise of the Prerogative of Grace-differing from the authority on which the jurisdiction of the courts of common law was founded; for there the court held jurisdiction, in each particular case, by virtue of the delegation conferred by the particular writ, and which could only be issued in cases provided for by positive law. This is one of the great and fundamental distinctions between the jurisdiction of the courts of common law and that of the Court of Chancery.

However, as will have been observed by the references in the preceding pages, matters of Grace were not yet sent exclusively to the Chancellor or the Lord Privy Seal. The Great Council and the Privy Council still entertained questions of this nature by delegation from the sovereign. Some cases also were still specially sent to the Chancellor, or Chancellor and Treasurer, sometimes with a requisition that they should assemble the justices and serjeants and others of the council, to assist in their determination (c).

From this time suits by petition or bill, without any preliminary writ, became a common course of procedure before the Chancellor (d) as it had been in the council. On the petition or bill being presented, if the

respect of misdemeanors of officers; 36 Edw. III. c. 9, gave a similar jurisdiction to the Chancery; the 27 Edw. III. c. 1, en forced by 38 Edw. III. c. 2 and 3, gave a summary jurisdiction to the Court of Chancery, and the Council, and the King's Justices, over those who sought to impeach the judgments given in the king's courts by foreign appeals. Lord Coke considered, that in these cases the Chancellor was bound to proceed according to the course of the common law, and that he could not examine the parties; but Lord Coke gives no reason or authority, 4 Inst. 81. The Parl. Roll, 14 Edw. III., and Cal. ii. p. 10, would rather lead to the opposite conclusion. (a) Introd. to Close Rolls, p. xxviii. The Writ (22 Edw. III.) is there stated; and in Legal Judicature in Chancery, p. 30.

(b) See Legal Judicature in Chancery,

p. 31.

(c) Sir F. Palgrave, Council, p. 64, 35 Edw. III. Ibid. p. 67, 40 Edw. III. This matter commenced by a complaint made by Lady Audley, suing without her husband

against her father-in aw, to the king in parliament: the object was to obtain the specific performance of a deed of covenant for settlement of lands made on her marriage; all parties submitted themselves to the king and his council, ib. p. 69. This whole proceeding was wholly at variance with the doctrines of the common law, both as regards the institution of the suit by the wife alone, and the relief sought-specific performance of an agreement.

(d) Thus the Parliament Roll, 14 Edw. III. after taking notice of an ordinance touching the Priory of West Sherborne, &c., adds, that if anything should be done contrary to that ordinance, the Chancellor of England should have power to hear the complaint by Bill," and upon this to proceed in the same manner as is usually ac customed to be done daily on a writ of subpœna in Chancery," Discourse, &c. Præf. p. cxi. and see the petn. of the Commons, 45 Edw. III. 1 Roll Abr. 372, from which it appears that this also was the course in proceedings before the council.

Honesty, Equity and Conscience-Lay Chancellors appointed. 338

case called for extraordinary interference, a writ was issued by the command of the Chancellor, but in the name of the King (a), by which the party complained against was summoned to appear before the Court of Chancery to answer the complaint, and abide by the order of the Court (b). *One great engine for the discovery of truth, which, as before observed, was unknown to the common law, namely, the exami[*339] nation of the parties on oath, was employed by this tribunal, as it was by the council from which this court was now branching off.

The principles on which the decisions of the Chancellor in the exercise of the extraordinary jurisdiction thus committed to him, were founded, were, it would seem, those of Honesty (c), Equity, and Conscience (d). The latter, as a principle of decision, was then unknown to the common law,-it was of clerical introduction; Equity was known to the Roman law (e), and was, as we have seen, long before this acknowledged, to some extent at least, as a rule for decision in the common law courts (f); but Equity is reserved for a more full discussion in a subsequent page.

The increased importance of the ordinary and extraordinary jurisdiction of the Chancellor (g) appears to have attracted the attention of the people at large; all would naturally be anxious that the office should be filled by competent persons. It seems to have been considered by some that the extraordinary jurisdiction might, if left in the hands of persons not versed in the common law (h), be converted to the destruction of the law. Urged, probably, by some such suggestions, Edw. III. in the 15th year of his reign appointed Robert Parning, King's Serjeant, his Chancellor. "This man," says Lord Coke, "knowing that he who knew not the common law could never well judge in equity, which is a just correction of law in some cases, did usually sit in the Common Pleas, which court is the lock and key of the common law, and heard matters

(a) By an entry in the Close Rolls, 37 Edw. III.cited in the Introd. to Close Rolls, p. xxx. it appears that the mandate of the subpoena was in these terms, "Quod esset in Cancellaria Regis, ad certum diem, ubicunque foret, ad ostendendum si quid pro se haberet, vel dicere sciret, quare, &c., et ad faciendum ulterius quod curia considerarit;" and see Palgr. Coun. p. 41.

(b) Sir or Master John Waltham, whom the Commons, temp. Henry VI., accused of having first invented this writ, was not Master of the Rolls till the 5th year of Rich. II. (1381 to 1386,) Palgr. C. p. 40; he was Master of the Rolls and Keeper of the Seal, but never Chancellor, Discourse, p. 95, Hardy's Catalogue, p. 43–6.

(c) Sup. p. 385.

(d) Introduction to Close Rolls, p. xxviii. By the instructions of Edw. IV. (Rot. Claus. 7 Edw. IV.) to Rob. Kirkham, M. R., on delivering to him the Great Seal, he was ordered to determine according to equity and good conscience, and to the old course and laudable custom of the court, taking advice of the king's justices in case of difficulty, v. supra, chap. iii. et v. Introd. to Close

Rolls, p. xxxi. Legal Jud. in Ch. 37. 112; Y. B. 4 Edw. IV. 8." Mes quant al matters de conscience il (le Chancellor) eux determinera solonque conscience," Y. B. 9 Edw. IV. 14; Crompt. 46 b.; et v. ib. fo. 45.

(e) V. supra, p. 223, et. v. inf. tit. “Equity and Conscience."

(f) "It is as old as Bracton," Sir T. Clarke, M. R., Burgess v. Wheate, 1 Eden, 194; v. supra, p. 321.

(g) Lord Coke, Com. Journ. i. p. 574, A. D. 1621, asserted that there were about 400 causes in a year in the Court of Chancery at this time; if this be so, he must have had some records or materials to refer to which are now lost, or at least have not yet been brought to light.

(h) Fleta seems to have considered it as almost imperative that a dignified ecclesiastic should be appointed; his words are,

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Quod uno viro provido et discreto, ut Episcopo, vel clerico magnæ dignitatis, debet committi, simul cum curâ majoris sigilli," Lib. ii. c. 13, p. 75. This is very remarkable, for the functions of the Chancellor, as described by Fleta, were wholly connected with the common law.

339 Lay Chancellors appointed-Re-appointment of Clerical Chancellors.

in law there debated, and many times would argue himself" (a). He died two years afterwards.

In the 45th and 46th years of Edward III. (b), between which time *and the death of Serjeant Parning there had been several cleri

[*340] cal Chancellors, and the important ordinance of the 22d Ed

ward III. had been issued, Sir R. Thorpe, Chief Justice of the Common Pleas, and Sir J. Knivet, Chief Justice of the King's Bench, were respectively appointed to the office of Chancellor. This was, probably, in consequence of the petition of the Lords and the Commons, of the 45th Edward III., which prayed, that as ecclesiastics were not in all cases amenable to the laws, lay persons should for the future be selected for this high office (c). Sir J. Knivet continued Chancellor till the 50th year of the king; but from that time, and probably for the reasons amongst others, which will be presently mentioned, the office returned to its accustomed channel (d).

By the statute 37 Edward III. c. 18, it was enacted, that all those who made suggestions to the king, putting in danger the liberty or franc tenement of any person, should be sent with such suggestions before the Chancellor, the Treasurer, and the king's Great Council, and should there find surety to pursue their suggestions, and should incur the same penalties on failure as would have been inflicted had the matter been proved (e).

In this reign the Court of Chancery, as well as the Court of King's Bench, ceased to follow the king(ƒ).

(a) 4 Inst. 79; one of the instances may be seen in the Year Book, 17 Edward III. fo. 14.

(b) Hardy's Catalogue, p. 40.

(c) Rot. Parl. 45 E. III. No. 15, p. 304; 4 Inst. 79; and see Lord Campbell's Lives of

the Chancellor's.

(d) It appears from Dugdale's and Hardy's Catalogues, and from the 3 R. II. to 3 R.

III. all the Chancellors were ecclesiastics.

(e) Repeated 38 Edward III. c. 9; and as regards criminal matters, by 42 Edw. III. c. 3. There is a petition, 25 Edward III. Rot. Parl. vol. ii. p. 239; Palgrave, 35, 36, praying to a similar effect, to which the king gave his sanction.

(f) Parkes's History of the Court of Chancery, p. 34.

Criminal Jurisdiction of the Court of Chancery.

*341

*CHAPTER IV.

THE COURT OF CHANCERY FROM THE TIME OF RICHARD II, DOWN TO EDWARD IV.-THE STAR CHAMBER-THE COURT OF REQUESTSCOMMISSIONS OF OYER AND TERMINER-THE EQUITY COURT OF

THE EXCHEQUER.

Criminal Jurisdiction of the Court of Chancery-Circumstances which gave rise to it-Many concurrent reasons operated to cause a great resort to the Court of Chancery-Complaints of the Commons, temp. Rich. II.-Petitions of the Commons addressed to the due regulation of the Court of Chancery-The Roman Law excluded from the Common Law Courts -Its consequences as affecting the establishment of the Equitable Jurisdiction of the Court of Chancery-The Court of Chancery, temp. Hen. IV. V. and VI. and Edw. IV.-The Star Chamber-The Court of Requests-Special Commissions of Oyer and Terminer— The Equity Court in the Exchequer.

THE terms "Honesty," " Equity," and "Conscience" (a), which, as we have seen, were the recognized principles of the decisions of the Chancellor, under his extraordinary or prerogative jurisdiction in the reigns we have just passed over, would rather lead to the supposition that the jurisdiction as originally exercised was confined to cases of a nature purely civil. But in the reign we are now entering upon, the disorderly state of the country, and the insufficiency of the ordinary means of preserving internal peace and order, appear to have called forth the exercise of the authority of the Chancellor, as well as of the Council, in a manner partaking of a criminal character.

The ancient system of police by mutual borh, or pledge, and the other police regulations, which Bracton describes in his 3d Book (de Corona), would appear in theory to have been amply sufficient for the preservation of the peace; but it is evident that they were found to be ineffectual in practice, or incapable of being enforced.

Edward III. and his Council found it necessary, in the very first year of his reign, to adopt some more effectual measures of police than those which already existed. For this purpose Justices of the Peace *were instituted throughout the country (b). It was the duty of [342] these magistrates to repress violence and disorder of every kind,

and for that purpose they were, amongst other things, empowered to take security for the peace, to inquire into misbehavior of officers, and to inflict punishment for trespasses, extortions, and similar offences.

Early in the reign of Richard II. it was found necessary to provide some further measures for repressing forcible entries on lands. By the 5th Richard II. stat. 1, c. 8, persons so offending were subjected to imprisonment; by the 15th Richard II. c. 5, in case of forcible entry, any Justice of the Peace might take the power of the country, posse comitatus, and put the offender in jail (c).

(a) The import of these terms will be considered in a future Chapter.

(b) By stat. 1 Edw. III. stat. 2, c. 15; 2 VOL. I.-23

Edw. III. c. 6; 18 Edw. III. stat. 2, c. 3, and 31 Edw. III. c. 1.

(c) These statutes were extended by 8th

342

Complaints of the Commons in Parliament.

But the course of justice itself was interrupted, and all these provisions were rendered in a great degree ineffectual by the lawless spirit of the times. The Commons in the 5th year of Richard II. complain of "grievous oppressions in the King's Courts, the Chancery (a), King's Bench, Common Bench, and Exchequer, by the multitude of braceours of quarrels, and maintainors, who are like things in the country, so that justice can be done to none" (b).

In this state of things the middle and lower orders of society were almost out of the protection of the law.

The defence of the poor and helpless, as has already been observed, was one of the most ancient, as it was in the early period of our history one of the most essential, of the prerogatives which descended from the Anglo-Saxon to the Norman sovereigns (c). Henry III. had found it necessary to direct special commissions throughout the country, to inquire into the oppressions of the poor, with a view to their redress (d). In the reign of Richard, the unsettled state of the country tended to encourage every sort of violence; the necessity for more than the *ordinary means of protection from oppressions and spoliation [*343] was obvious; the Justices were overawed, and in some instances the very powers which were confided to them, were employed as instruments of oppression, so that in a subsequent reign it was found necessary to place the Justices themselves under the especial supervision of the Chancellor (e).

The Chancellor, therefore, at the very outset of Richard's reign, the king being himself of tender years, with the sanction no doubt of the Council, exercised an authority, especially in favor of the weak, for repressing disorderly obstructions to the course of the law, and punishing the defaults of the officers who were entrusted with its administration, and affording a civil remedy in cases of violence and outrage, which, for whatever might be the reason, could not be effectually redressed through the ordinary tribunals; this jurisdiction will be more particularly considered hereafter.

The Commons seem to have taken great umbrage at this exercise of authority on the part of the Chancellor, particularly as the Chancellor did not scruple to entertain jurisdiction in cases of violent dispossession of land, which was an interference with franc tenement, of which they were very jealous. The Commons required that all such cases should

Hen. VI. c. 9, § 2, 3 and 6, by which the Justices were empowered to give restitution, and treble damages were given. By 31 Eliz. c. 11 and 21 Jac. I. c. 15, the provi. sions of these statutes were extended. But the law (as Mr. Hallam has observed, Mid. Ages, iii. p. 246-250) permitted a person to enter upon lands of which he had been disseised. The learning as to what circumstances deprived a man or his heirs of this right, fills several pages of Lord Coke's 1st Institute, 23-76; and Littleton has a chapter on the subject, Lit. iii. c. 6, "Discents which toll entries;" but as has already been noticed, supra, p. 221, the doctrine was of Roman original.

(a) By the answer to the petition it would

rather appear that it was the Common Law Court that was referred to on this occasion.

(b) 5 Rich. II. No. 17, 4 Inst. 79, Rot. Parl. iii. p. 100; the answer is in page 102. Special Commissions of Oyer and Terminer were resorted to in some cases, as will be noticed hereafter, see Add. Note (2).

(c) The Count of the palace was specially charged by Charlemagne to take charge of the interests of the poor, Cap. Car. Mag. et Ludov. iii. § 77.

(d) M. Par. ad A. D. 1258.

(e) By the statute 4 Hen. VII. c. 12, § 2, parties aggrieved by default of Justices of the Peace were allowed to complain to the King or the Chancellor.

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