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certainly known to the courts of the Roman emperors: where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a general superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kiny. doms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters, and such other public instruments of the crown as were authenticated in the most solemn manner: and therefore
*when seals came in use, he had always the custody of the king's great *47]
seal. So that the office of chancellor, or lord keeper,1% (whose authority, by statute 5 Eliz. c. 18, is declared to be exactly the same,) is with us at this day created by the mere delivery of the king's great seal into his custody :(0) whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom, and superior in point of precedency to every temporal lord.(p) He is a privy counsellor by his office,(9) and, according to lord chancellor Ellesmere,(r) prolocutor of the house of lords by prescription. To him belongs the appointment of all justices of the peace throughout the kingdom. Being formerly usually an ecclesiastic, (for none else were then capable of an office so conversant in writings,) and presiding over the royal chapel,(s) he became keeper of the king's conscience; visitor in right of the king, of all hospitals and colleges of the king's foundation ; and patron of all the king's livings under the value of twenty marks(t) per annum in the king's books. He is the general guardian of all infants, idiots, and lunatics; (9) Lamb. Archeion. 65. 1 Roll. Abr. 385.
(6) 38 Edw. III. 3 F. N. B. 35, though Hobart (214) es. (5) Selden, Office of Lord Chanc. 23.
tends this value to twenty pounds. (5) of the office of lord chancellor, edit. 1651.
() Madox, Hist. of Exch. 42.
(P) Stat. 31 Hen. VIII. c. 10.
officers who sat therein,-such gates or crossbars being by the Latins called cancelli. Vid. Dugd. 32. Cambden, Cowell, Cassiod. ep. 6, lib. 11. Pet. Pythæus, lib. 2, advers. c. 12. 1 Harr. Ch. 1. Dr. Johnson seems also inclined to this definition; and it indeed appears the most reasonable, for we have also the word "chancel,” which signifies that part of the church formerly barred off from the body of it.Cutty.
18 King Henry V. had two great seals, one of gold, which he delivered to the bishop of Durham and made him lord chancellor, another of silver, which he delivered to the bishop of London to keep; and historians often confound chancellors and keepers, (1 Harr. Ch. 68, note. 4 Inst. 88;) but at this day, there being but one great seal, there cannot be both a chancellor and a lord keeper of the great seal at one time, because both are but one office, as is declared by the stat. 5 Eliz. 4 Inst. 88, and the taking away the seal determines the office. 1 Sid. 338. It seems that it is not inconsistent for the lord chancellor also to hold the office of chief justice of the King's Bench. Lord Hardwicke held both offices from 20th February till 7th June. 1 Sid. 338. Com. Dig. tit. Chancery, (B. 1.)–Cutty.
'19 With regard to the chancellor's patronage there seems to be some 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 in the time of Edward III. that it had been the usage before that time for the chancellors to give all the king's livings taxed (by the subsidy assessments) 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 such livings to his own and other clerks, contrary to the pleasure of the king and the ancient usage; and therefore it is recommended to the king by the council to command the chancellor to give such livings only to the clerks of chancery, the exchequer, and the other two benches or courts of Westminster hall. 4 Edw. II. n. 51. But since the new valuation of benefices, or the king's books, in the time of Henry the Eighth, and the clerks ceased to be in order, the chancellor has had the absolute disposal of all the king's livings, even where the presentation devolves to the crown by lapse, 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 probably by a private grant of the crown, from a consideration that the twenty marks in the time of Edward III. were equivalent to twenty pounds in the time of Henry VIII. Gibs. 764. 1 Burn, Ec. Law, 129.
and has the general superintendence 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 tho 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. Its jurisdiction is to hold plea upon a scire facias to repeal and cancel the king's letters-patent, when made against law or upon untrue suggestions; and to hold plea of petitions, monstrans 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
So far this was the note in my first edition ; but a reverend gentleman has been so obliging as to suggest to me that, having once had occasion to examine the subject, he was inclined to think that the chancellor's patronage was confined to benefices under 201. a a year, and that livings exactly of that value belonged to the king, to be presented to by himself or his minister. Having, in consequence, looked more attentively into the subject, I am still of opinion that the authorities support what is advanced in the preceding part of the note. It cannot be doubted that since the new valor beneficiorum, peminds were intended to be substituted for marks, and this is expressly stated by bishop Gibson, p. 764. In the 4 Edw. III., cited above, the chancellor's patronage is stated to be of all livings of 20 marks and inder, del tax de vint marces et dedeyns. In the 1 Hen. VI. note 25, Rolls of Parliament, there is a record appointing the duke of Bedford protector, and the duke of Gloucestor protector in his absence; and amongst other privileges it grants the protector, for the time being, the patronage of all the livings belonging to the crown, ultra tazam viginti marcarum usque ad tazam triginta marcarum inclusive, and reserves the rest of the royal patronage to the king, except the benefices belonging to the chancellor, virtute officü sui. The word inclusive can only apply to the words usque ad triginta ; it cannot be reconciled with ultra, which was intended to leave the chancellor 20 or under. This is also clearly expressed in the Registrum Brevium 307, where there is an ancient writ called de primo beneficio ecclesiastico habendo. Volumus quod idem A. ad primum Leneficium ecclesiasticum (tacationem viginti marcarum excellens) vacaturum, quod ad præsentionem nostram pertinierit, &c.
In the year-book, 38 Edw. III. 3, it is laid down as law that the king shall present tu tutz esglises que passent l'ectent de 20 marcs ; and in the next line it is said that the chan cellor shall present to all not taxed at 20 marks, and having understood that the living in question was taxed at 40s. he had presented to it, but as, in fact, it was taxed at 401., the king claimed it. The words in French state the general law; the rest only apply to the particular case. Yet Watson is so careless as to state the chancellor's patronage to be under 20 marks and under 201., and refers to this authority, ch. 9. But it is correctly cited by Comyns to support the position that the chancellor has the patronage of 20 marks or 201. Dig. tit. Esgl. H. 5. In Fitz. N. B. 35 it is stated to be under 20 marks, without taking any notice of 20 exactly. And in a case in Hob. 214 the word is under. In that case the chancellor had presented to a living lapsed to the crown above 201. a year, and it was held that the king could have no remedy, because the presentation had passed the great seal, and therefore apparently made by the king himself; but if the presentation had stated that the benefice was under the value of 20l., then it would have been void, because the chancellor must have been deceived. In this case there was no occasion to state the instance of a living of the exact value of 201. This was a benefice which had devolved to the crown by lapsė; but no objection is made on that ground, and there seems to be no reason for any distinction, whether the benefice devolves to the king by lapse or by promotion of the incumbent, or it is part of his original patronage. I have stated the authorities which expressly give the chancellor the patronage of the ralue of 20 marks, or now 201., and I have referred to those which state it to be under; and, I cannot but observe, so far they are all consistent, as I find no authority in opposition to those above, declaring that livings of the value of 201. belong to the king and not to the chancellor.
The gentleman who wished me to examine the authorities upon this subject was so obliging as to inform me that the crown has the patronage of five livings of the exact value of 201. in the king's books, but that several others of that value occasionally devolve to the crown by lapse and promotion ; that he has examined the church-book in ihe secretary of state's office, and that he finds within the last century many instances of presentations to those livings by the crown; but he admits in some modern instances where the right to the presentation has been claimed both by the chancellor and the minister, that the latter has yielded to the former. From the whole, one is led to con: clude that these presentations made by the crown were owing either to the inattention er the accommodation of the chancellor.-CARISTIAN.
or goods, in prejudice of a subject's right.(u) 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 task 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.(v) It might likewise hold plea (by scire facias) of partitions of land in coparcenery,(w) and of dower,(x) where any ward of the crown was concerned in interest, so long as the military tenures subsisted: as it now may also do of the 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 Henry VIII. C. 6.(2) 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 manu into the court of king's bench, where it shall be tried by the country, and judgment shall be there given thereon.(a)* And 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 :(6) though so little is usually done on tho common-law side 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 Élizabeth, A.D. 1572.
In this ordinary or legal court is also kept the officina justitiæ: out of which all original writs that pass under the great seal, all commissions of charitable uses, sewers, bankruptcy, idiotey, 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, *19]
ex debito justitiæ, any writ that his occasions *may call for. These writs
(relating to the business of the subject) and the returns to them were, according to the simplicity 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 equity, is now become the court of the greatest judicial consequence. This distinction between law and equity, as administered in different courts, is not at present known, nor seems to have
(*) 4 Rep. 54.
() Year-book, 18 Edw. III. 25. 17 Ass. 24. 29 Ass. 47. Dyer, 315. 1 Roll. Rep. 257. 4 Inst. 80.
(9) The opinion of lord-keeper North, in 1682, (1 Vern. 131. 1 Eq. Ca. Abr. 129.) that no such writ of error lay, and that an injunction might be issued against it, seems not to have been well considered
20 But on the equity side of the court questions of fact may be decided without an issue; but this jurisdiction ought to be exercised yery tenderly and sparingly. 9 Vesey, 168. On the trial of an issue directed out of chancery, if either party be desirous of having a special jury, it is said to be proper to move the court of chancery for that purpose.
See Prec. Ch. 264. 2 P. Wms. 68. & M. & S. 195, 196.-Chitty.
It is important to confine this observation (which is not always done) to the common. law side of the court of chancery. Sitting as a judge at common law and trying causes according to the rules of the common law, the lord chancellor cannot decide by himself a disputed fact, and has no power of issuing process to the sheriff or other officer for summoning a jury. But on the equity side of the court, where the jurisdiction of the lord chancellor is placed entirely on other grounds than those of the common law, he is equally competent to decide on disputed facts as on disputed law; and it is matter of discretion only when he either orders or permits the parties to submit the trial of such fact to the cognizance of a jury. For the manner in which this is done, see post, 452. According to the later precedents, when a record comes into the King's Bench from chancery, the chancellor does not deliver it propria manu, but sends it by the clerk of the petty bag. 1 Eq. Ca. Abr. 128.-COLERIDGE.
And now, by 12 & 13 Vict. c. 109, any issue, either of fact or law, must be sent to one of the three superior courts of law, there to be determined according to the ordinary course of proceeding in those courts.--STEWART:
ever been known, in any other country at any time :(d) and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans;(e) the jus prætorium, or discretion of the prætor, being distinct from the leges, or standing laws,(f) but the power of both centred 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 Bracton(g) 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 judgment, the application for redress used to be to the king in person assisted by his privy-council, (from whence also arose the jurisdiction of the court of requests, (h) 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 circumstances of the case. This was the custom not only among our Saxon ancestors, before the institution of the aula regia,(i) but also after its dissolution, in the reign of king Edward I.;(k) and perhaps, during its continuance, in that of Henry II.(1)
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 “whensoerer from thenceforth in one case a writ shall be found in the chancery, and in a like case falling under the same right and requiring like remedy *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 parliament, where a writ shall be framed by consent of the learned in the law,(m) lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors.” And this accounts for the very great variety of writs of trespass on the case to be met with in the register; whereby the suitors had ready relief, according to the exigency of his business, and adapted to the specialty, reason, and equity of his very case.(n) 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)
("he Onmcil of Comscience, instituted by John III. king of Purtugal, to review the sentence of all inferior courts and moderate them by equity, (Mod. Un. Hist. xxii. 237,) seems rather to have been a court of appeal.
Thus too the parliament of Paris, the court of session in Scotland, and every other jurisdiction in Europe of which We have any tolerable account, found all their decisions as well upon principles of equity as those of positive law. Lord Kaimes's Histor. Law Tracts, i. 325, 330; Princ. of Equity, H.
Thus Cicero: “jam illis promissis, non esse standum, quis tum rulet, quse coactus quis meu et dereptus dolo promis rit? quae quidem plerumque jure prætorio liberantur, wonnulla legibus." Offic. 1. i. (3) L. 2, c. 7, fol, 23.
The matters cognizable in this court, immediately before its dissolution, wore “almost all suits that, by colour of equity, or supplication made to the prince, might be brought before him; but originally and properly all poor
men's suits, which were made to his majesty by supplication, and upon which they were entitled to have right, without payment of any money for the same.” Smith's Commonwealth, b. 3, c. 7.
(6) Nemo ad regem appellet pro aliqua lite, nisi jus domi consequi non possit. Si jus nimis severum sit, ulleriatio deinde quæratur apud regem. LL. Edg. c. 2.
(*) Lambard. Archeion. 59. (") Joannes Sarisburiensis, (who died A.D. 1182, 26 Hen. IL, speaking of the chancellor's office in the verses prefixed to his polycraticon, has these lines:
Hic est, qui leges regni cancellat iniquas
El mandula pii principis æqui facit. (m) A great variety of new precedents of writs, in casos before unprovided for, are given by this very statute of Westm. 2. (**) Lamb. Archeion. 61.
might have effectually answered all the purposes of a court of equity ;(0) except that of obtaining a discovery by the oath of the defendant.
But when, about the end of the reign of king Edward III., uses of land were introduced, (P) and, though totally discountenanced by the courts of common law, were considered as tiduciary deposits and binding in conscience by the clergy, the separate jurisdiction of the chancery as a court of equity began to be established;(9) and John Waltham, who was bishop of Salisbury and chancellor to king Richard II., by a strained interpretation of the above-mentioned statute of Westm. 2, devised the writ of subpæna, returnable in the court of chancery only, to make the feoffee to uses accountable to his cestuy que use: which process was afterwards extended to other matters wholly determinable at the common law, upon false and fictitious suggestions; for which therefore the chancellor himself is, by statute 17 Ric. II. c. 6, directed to give damages *52]
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 entertaining suits pro lasione 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 Clarendon,($) which declared that “placita de debitis, quæ fide interposita debentur, vel absque interpositione fidei, sint in justitia regis :" therefore probably the ecclesiastical chancellors, who then held the seal, were remiss in abridging their own new-acquired jurisdiction; especially as the spiritual courts continued(t) to grasp at the same authority as before in suits pro læsione fidei so late as the fifteenth century,(u) till finally prohibited by the unanimous concurrence of all the judges. However, it appears from the parliament rolls,(w) that in the reigns of Henry IV. and V. the commons were repeatedly urgent to have the writ of subpæna entirely suppressed, as being a novelty devised by the subtlety of chancellor Waltham against the form of the common law; whereby no plea could be determined unless by examination on 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 statute 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 subpæna, was become the dail y practice of the court.(x)
*But this did not extend very far: for in the antient treatise entitled
diversité des courtes,(y) supposed to be written very early in the sixteenth century, we have a catalogue of the matters of conscience then cognizable by subpæna in chancery, which fall within a very narrow compass. No regular judicial system at that time prevailed in the court; but the suitor, when he thought himself aggrieved, found a desultory 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 sat in the court of . chancery from the times of the chief justices Thorp and Knyvet, successively chancellors to king Edward III. in 1372 and 1373,2) to the promotion of Sir Thomas More by king Henry VIII. in 1530. After which the great seal was indiscriminately committed to the custody of lawyers, or courtiers, (a) or church
() This was the opinion of Fairfax, a very learned judge courts; according to some ancient copies, (Berthelet stat. in the time of Edward the Fourth. “ Le subpæna (says he) antiq. Lond. 1531, 90, b. 3 Pryn. Rec. 386,) and the common ne serroit my cy smentemen! use come il est ore, si nous atten- English translation of that statute; though in Lyndewode's domus tiels actions sur les cases, et maintrinomus le juris- copy (Prov. I. 2, t. 2) and in the Cotton Ms. (claud, D. 2) diction de ceo court, et d'auter courts.” Year-book, 21 Edw. that clause is omitted. IV. 23.
(*) Year-book. 2 Ien. IV. 10. 11 Hen. IV. 88. 38 Hen. (F) See book ii. ch. 20.
VI. 29, 20 Edw. IV, 10. (9) Spelm. Gloss. 106. 1 Lev. 242.
(*) Rot. Parl. 4 Hen. IV. N° 78 and 110. 3 Ilen. V. NO (*) Lord Lyttelt. llen: II. b. iii. p. 361, note.
46, cited in Prynne's Abr. of Cotton's Records, 410, 422, 424, (*10 Hen. II. c. 16. Speed. 458.
548. 4 Inst. 83. 1 Roll Abr. 370, 371, 372. () In 4 Hen. III., suits in court Christian pro læsione fidei (*) Rot. Parl. 14 Edw. IV. NO 33, (not 14 Edw. III.) as upon temporal contracts were adjudged to be contrary to cited 1 Roll Abr. 370, &c. law. Fitz. Abr. tit. Probabilion, 15. But in the statute or (v) Tit. Chancery, fol. 296. Rastell's edit. A.D. 1534. #rit of circumspecte agatis, supposed by some to have issued (Spelm. Gloss, 111. Dugd. Chron. Ser. 50. 13 Edw. I., but more probably 3 Pryn. Rec. 336)9 Edw. II., (a) Wriothesly, St. John, and Ilatton. guts pro læsique fidei were allowed to the ecclesiastical