Page images

men,6) 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 Ellesmere 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 Sir 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, solicitors, the counsel, and even a master in chancery, for having incurred a præmunire by questioning in a court of equity a judgment in the court of king's bench obtained by gross fraud and imposition.(d) 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,(e) that his ma

[*51 jesty gave judgment in their behalf; but, not contented with the irrefragablo reasons and precedents produced by his counsel, (for the chief justice was clearly in the wrong,) he chose rather to decide the question by referring it to the plenitude of his royal prerogative. (f) Sir Edward Coke submitted to the decision,(9) and thereby made atonement for his error: but this struggle, together with the business of commendams, (in which he acted a very noble part,)(h) and his controlling the commissioners of sewers,(() were the open and avowed causes,(k) first of his suspension, and soon after of his removal, from his office.

Lord Bacon, who succeeded lord Ellesmere, reduced the practice of the court into a more regular system; but did not sit long enough to effect any considerable revolution in the science itself: and few of his decrees which havo 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 with. drawn 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

[*55 earl of Nottingham, was a person of the greatest abilities and most uncorrupted integrity; a 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 thu 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 extension of trade and the abolition of military tenures, co-operated in establishing 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. 21 Goodrick, Gardiner, and Heath.

his prerogative, gent letters to the judges

not to promul in ( Biog. Brit. 4278.

it till himself had been first consulted. The twelve judgey Ben's Works, iv. 611, 612, 682.

joined in a memorial to his majesty, declaring that their Whitelocke of Parl. ii. 390. 1 Chanc. Rep. Append. 11. compliance would be contrary to their oaths and the law;

" For that it appertaineth to our princely office only to but, upon being brought before the king and council, they judge over all judges, and to discern and determine such all retracted and proinised obedience in every such case for differences as at any time may and shall arise between our the future, except Sir Edward Coke, who said that, when Beveral courts touching their jurisdiction, and the same to the case happened, he would do his duty." Biog. Brit. 1388. kettle and determine as we in our princely wisdom shall find () See that article in ch. 6. to stand most with our honour,” &c. 1 Chane. Rep. Append. (k) Soo lord Ellesmere's speech to Sir Henry Montague,

the new chief justice, 15 Nov. 1616, Moor's Reports. $28. (8) Sep the entry in the council-book, 26 July, 1616. „Biog. Though Sir Edward might probably have retained his seat,

if, during his suspension, he would have complimented lord (*) In a carue of the bishop of Winchester, touching a com- Villiers (the new favourite) with the dispunal of the most honum, king James, conceiving that the matter affected lucrative office in his court. Biog. Brit. 1391.

a Besides the chancellor, the master of the rolls has jurisdiction of judging causes on the

Brit. 1300,

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

extraordinary side of the court of chancery. Cardinal Wolsey was, it is said, the first who introduced this power, though then much objected to; yet now it seems he is authorized by special commission under the great seal. Wyatt, Prac. Reg. 278. Com. Dig. Chancery, B. 4. The time and place of his sitting are usually at six o'clock in the evening at his own court in the rolls yard. All decrees made by him must be signed by the lord chancellor before they are enrolled. 3 Geo. II. c. 30, s. 1. By statute 23 Gev. II. c. 25, s. 6, a yearly sum of 12001. was granted to him; and by the late act 6 Geo. IV. c. 84 his salary is raised to 70001. He holds his office by patent for life, and takes the oath prescribed by 18 Edw. III. in open court. Wyatt, Prac. Reg. 277. He takes precedence next after the chancellor, before all other of the judges.

Owing to the great increase of business, and which is still increasing, it was provided, by the 53 Geo. III. c. 24, that his majesty might appoint an additional judge-assistant, called the vice-chancellor, to assist the chancellor, who must be a barrister of fifteen years' standing, to hold his office during good behaviour, subject to removal upon the address of both houses. By sect. 2, he shall hear such cases as the chancellor shall direct. His decrees shall be subject to reversal by the chancellor, and must be signed by the latter before they are enrolled. By sect. 3, he cannot alter or vary a decree of chancellor or master of rolls. Sect. 4 directs in what court he shall sit; and he is to rank next after the master of rolls. Sect. 5 appoints his officers. Sect. 6, how he is to be removed. Sect. 7, oath of office. Sect. 8, his salary, (50001., increased by 6 Geo. IV. c. 84 to 60001.). Sect. 12, that he and his officers shall receive no fees for business done. Query, Whether the vice-chancellor has power to hear, by consent, a motion to discharge or alter an order made by the lord chancellor? See 1 J. & W. 429. If he is authorized to discharge it, he is not to alter it. Id. ib. When sitting for the lord chancellor, he has no jurisdiction to alter or discharge orders made by the chancellor. Id. 431.

Besides the master of the rolls, (the chief,) there are eleven other masters in chancery: Com. Dig. Chancery, B. 5. All answers and affidavits are sworn before one of them and signed; all matters of account, exceptions to answers, &c., irregularities, contempts, and such like, are referred to them. 13 Car. II. st. 6. 12 Geo. I. c. 32. 5 Geo. III. c. 28. 32 Geo. III. c. 42. 9 Geo. III. c. 19. 46 Geo. III. c. 128. Besides these, there are masters extraordinary, appointed in the country to take affidavits, &c. Next in precedence are the six clerks, each of whom has ten sworn clerks under him. The six clerks are principally concerned in matters in equity, and it is their business to transact and file all proceedings by bill and answer, and also to issue certain patents which pass the great seal, as pardons of men for chance medley, patents for ambassadors, sheriff's patents, and some others. All these matters are transacted by their under-clerks. 1 Harr. Ch. P. 75. Though formerly otherwise, clients are now at liberty to choose their own clerks. Ord. Ch. 107. They claim, besides fees of six clerks' offices, others as comptrollers of the hanaper, and for enrolling warrants, for patents, grants, and other matters passing under the great seal and returned into hanaper otfice. Six clerks and three clerks of petty bag are by letters-patent (16 Eliz.) incorporated and styled clerks of the enrolment of the high court of chancery, and have two deputies. See 14 & 15 Hen. VIII. c. 8.

The office of registrar of this court is of great importance. Com. Dig. Chancery, B. 6. The registrar has four deputies, two of whom always sit in court and take notes of orders and decrees, &c.; and before the same are entered he signs them. 45 Geo. III. c. 75. Besides these, there are the master of the subpæna office, registrar of affidavits, examiners, ushers, accountant-general, (12 Geo. I. c. 32. 12 Geo. II. c. 24. 9 Geo. III. c. 19. 32 Geo. III. c. 42. 46 Geo. III. c. 129. 54 Geo. III. c. 14,) cursitors, clerks of the petty-bag office, serjeant-at-arms, warden of the fleet, clerk of the chapel of the rolls, &c.-Cutty.

The master of the rolls has long administered justice according to the rules of equity, in a separate court. He is appointed by letters-patent, and was formerly the chief merely of the masters in chancery, who carried out the decrees and performed the ministerial functions of the courts of equity. A recent statute (15 & 16 Vict. c. 80) has provided, however, for the gradual abolition of the masters in chancery and the transference of their functions, under an amended procedure, to the judges and their chief clerks. The jurisdiction of the master of the rolls is regulated by the statute 3 Geo. II. c. 30, by which all decrees and orders made by him, except in matters of bankruptcy and lunacy, which when this statute was passed were appropriated exclusively to the lord chancellor, are to be valid, subject, however, to their being discharged or altered on appeal to the lord chancellor. His jurisdiction is extended by the 3 & 4 W. IV. c. 94; and an appeal now lies from his judgment to the lord chancellor, or to the court of

[ocr errors]

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 its own decree.

IX. The next court that I shall mention is one that hath ni 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 by 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 them 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 of the common pleas, and the barons of the exchequer, before whom writs of error may be brought to reverse judgments *in certain suits(l) originally begun in the court of king's bench. Into the court also of exchequer chamber (which then

[*56 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 difficulty, before any judgment is given upon them in the court below.(m)

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 jurisdiction over causes, but only upon appeals and writs of error, to rectify any injustice or mistake of the law com(1) See ch. xxv. p. 411.

(W) + Inst. 119. 2 Bulst. 146. appeal in chancery. The master of the rolls is, by 1 & 2 Vict. c. 94, the custodier of the public records.

In 1813, an additional judge in chancery, or vice-chancellor, was created, with power to hear and determine all matters depending in the court of chancery, according to the direction of the lord chancellor. This additional assistance was soon found insufficient to keep under the business which flowed into this court; and in 1832 it was relieved from the jurisdiction in bankruptcy, which it had previously exercised, and which was then transferred to the courts of bankruptcy, an appeal, however, being still open to one of the vice-chancellors appointed to sit in bankruptcy. But this appeal must now be made to the court of appeal in chancery. It was still, however, generally admitted that the court of chancery was inadequate to relieve the crowd of suitors who awaited its juilgments, and an increase of judges was loudly called for. Accordingly, when the equity jurisdiction of the court of exchequer was transferred to the court of chancery in 18+1, two additional vice-chancellors were appointed, (5 Vict. c. 5;) and a third vicechancellor's court has since been created. 14 & 15 Vict. c. 4. 15 & 16 Vict. c. 80. These judges are to hear and determine all matters depending in the court of chancery,-either as a court of law or equity,—or which have been or shall be submitted to the jurisdiction of the said court or of the lord chancellor by the special authority of any act of pliament.

There is an appeal from the judgment of any of the vice-chancellors, either to the lord chancellor or to the court of appeal in chancery.

The court of appeal in chancery was created by the stat. 14 & 15 Vict. c. 83. It consists of two lords-justices, appointed by letters-patent, with whom the lord chancellor sometimes sits to form a full court, but who, with or without the lord chancellor, exercise all the jurisdiction in equity possessed by him, without prejudice to his sitting alone and exercising such jurisdiction alone as formerly. This court may consist of the lord chancellor and the two lords-justices, or of the chancellor and one of such judges, or of the two lords-justices sitting together. The appeal in bankruptcy, formerly to one of the vice-chancellors, is now to the two lords-justices, who, together and exclusive of the lord chancellor, constitute the court of appeal in bankruptcy, whose judgment in such cases is final. An appeal from any judgment or order of the master of the rolls or any of the vice-chancellors lies to this court or to the lord chancellor.

From these courts of equity in chancery, as from the other superior courts, an appeal lies to the house of peers.—STEWART.

72 By the stat. 11 Geo. IV. and 1 W. IV. c. 70, these courts have been abolished, and the court of exchequer chamber, as it now exists, constituted in their place. Error brought upon (that is to say, an appeal presented against) any judgment given by the courts of Queen's Bench, Common Pleas, or Exchequer is to be heard and determined only by the judges—or judges and barons, as the case may be—of the other two courts in the exchequer chamber, from the judgment of which court no error lies except to the house of lords.-STEWART.

mitted by the courts below To this authority this august tribunal succeeded of course upon the dissolution of the aula regia. For, as the barons of parliament were constituent members of that court; and the rest of its jurisdiction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to preside; it followed, that the right of receiving appeals, and superintending all other jurisdictions, still remained in the residue of that noble assembly, from which every other great court was derived. They are therefore in all causes the last resort, from whose judgment no further 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 assembly, that (if possible) they will make themselves masters of those questions 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; since upon their decision all property must finally depend.

Hitherto may also be referred the tribunal established by statute 14 Edw. III. c. 5, consisting (though now out of use) of one prelate, two earls, and two

23 It is to be observed that it is not now the practice of the whole body of the house of peers to attend to its judicial business. This is usually transacted entirely by the lord chancellor, or other peers who have filled judicial stations. Deputy speakers of the legal profession not members of the body have been appointed at various times to preside in the absence of the lord chancellor. The attendance of three other lay peers during these sessions of the house is a matter of form settled by rotation; but the lay peers, although thus present, properly abstain from voting on judicial matters,—the arguments on which it would be unreasonable to suppose that they can perfectly understand, and to which they have not always entirely attended. The propriety of their so abstaining has been recently recognised in a case of great importance, -O'Connell vs. The Queen, 11 C. & F. 421. The appellate jurisdiction of the house of lords must, however, be admitted to be in an unsettled and unsatisfactory state. 1 Stewart's Blackst. 9.

“There can be no doubt,” says Mr. Lewis, “that, both recently and of old, well-founded complaints have been heard of defects in the constitution of the upper house as the final court of appeal and error. The paucity of its legal members, the absence of any constitutional obligation upon their legal members (excepting the chancellor) to attend the . transaction of the judicial business, the irregularity of attendance which the engrossing avocations of those who hold judicial office elsewhere renders in their case unavoidable, the advanced years to which most have in general attained who by success in forensic life reach the peerage,—these various circumstances have led to a want of confidence in the constitution of this high court, and a feeling of uncertainty in its administration of justice, which has occasionally been justified by the spectacle of one peer sitting in error from the judgment of a court composed of a plurality of judges; or, again, the decision of judges specially versed and accomplished, it may be, in the branch of jurisprudence involved, reviewed by a peer or peers having no such experience and endowed with no such special knowledge; or, again, two peers only attending and differing,—the one agreeing in and the other dissenting from the decision under review, and thus in effect nullifying the suitor's right to a decision by leaving the case precisely where it was ; or, lastly, (and which is perhaps more to be regretted than all,) a single legal peer sitting alone in one character to adjudicate upon a complaint against the decision already pro nounced by him in another.” Papers of Juridical Society, vol. i. p. 142. With the view of strengthening the judicial staff in the house of peers, baron Parke was recently made a peer for life only, with the title of lord Wensleydale, the object being that hereafter eminent lawyers may be introduced into the highest court without involving any permanent addition to the hereditary peerage or to the aristocratic section of the legislature, and without entailing the burden of a hereditary title when there may not be adequate means of supporting it. Great dissatisfaction having been expressed at this movement, as tending to subject the house of peers to the influence and power of the crown and to injuriously affect the balance of the constitution, a patent has been since issued to lord Wensleydale in the usual form.

In New York and New Jersey, and some other States, the plan of investing the Senate or the more permanent branch of the legislature with the functions of a high court of errors and appeals has been fairly tried, and, after an experience of many years in the two States named, has been abandoned. To subject the decisions of lawyers to be reversed in the highest courts by the votes of laymen was found to be productive of confusion and uncertainty, and consequent insecurity to titles and property,—than which a greater evil cannot afflict any con lity.-SHARSWOOD.

barons, who are to be chosen at every new parliament, to hear complaints or grievances and delays of justice in the king's courts, and (with the advice 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

[*57 want of a supreme court of appeal during any long intermission or recess of parliament; for the statute further directs, that if the difficulty be so great that it may not well be determined without assent of parliament, it shall be brought by the said prelate, earls, and barons, unto the next parliament, who shall finally determine the same.

XI. Before I conclude this chapter, I must also mention an eleventh species of courts of general jurisdiction and use, which are derived out of, and act as collateral auxiliaries to, the foregoing. I mean the courts of assize and nisi prius.

These are composed of two or more commissioners, who are twice in every year sent by the king's special commission all round the kingdom, (except London and Middlesex, where courts of nisi prius are holden in and after every term, before the chief or other judge of the several superior courts;.4 and except the four northern counties, where the assizes are holden only once a year,) to try by a jury of the respective counties the truth of such matters of fact as are then under dispute in the courts of Westminster hall. These judges of assize came into use in the room of the antient justices in eyre, justiciarii in itinere, who were regularly established, if not first appointed, by the parliament of Northampton, A.D. 1176, 22 Hen. II.,(n) with a delegated power from the king's great court, or aula regia, being looked upon as members thereof; and they afterwards made their circuit round the kingdom once in seven years for the purpose of trying causes.(o) They were afterwards directed, by magna carta, c. 12, to be sent into every county once a year to take (or receive the verdict of the jurors or recognitors in certain actions, then called) recognitions or assizes; the most difficult of which they are directed to adjourn into the court of common pleas to be there determined. The itinerant justices were sometimes mere justices of assize, or of dower, or of gaol-delivery, and the like; and *they had sometimes a more general commission to determine

[*58 all manner of causes, being constituted justiciarii ad omnia placita (p) but the present justices of assize and nisi prius are more immediately derived from the statute Westm. 2, 13 Edw. I. c. 30, which directs them to be assigned out of the king's sworn justices, associating to themselves one or two discreet knights of each county. By statute 27 Edw. I. c. 4, (explained by 12 Edw. II. C. 3,) assizes and inquests were allowed to be taken before any one justice of the court in which the plea was brought, associating to him one knight or other approved man of the county. And lastly, by statute 14 Edw. III. c. 16, (5) Seld. Jan. 1. 2,2 5. Spelm. Obd. 399.

nondum erunt elapsi, postquam justiciarii ibidem ultimo (®) Co. Litt. 293.- Anno 1261, justiciarii itinerantes rene- sederunt. Annal. Eccl. Wigorn. in Whart. Angl. Sacr. i. 495. Tunt apud Wigorniam in octavis S. Johannes Baptistæ ;- (P) Bract. l. 3, tr. 1, c. 11. totus comitulus cos admittere recusarit, quod septem anni

24 The courts of Nisi Prius in London and Middlesex are called sittings. Those for Middlesex were established by the legislature in the reign of queen Elizabeth. In ancient times all issues in actions brought in that county were tried at Westminster in the terms, at the bar of the court in which the action was instituted; but when the business of the courts increased these trials were found so great an inconvenience that it was enacted, by the 18 Eliz. c. 12, that the chief-justice of the King's Bench should be empowered to try within the term, or within four days after the end of the term, all the issues joined in the court of chancery and King's Bench; and that the chief-justice of the Common Pleas and the chief-baron should try in like manner the issues joined in their respective courts. In the absence of any one of the chiefs, the same authority was given to two of the judges or barons of his court. The statute 12 Geo. I. c. 31 extended the time to eight days after term, and empowered one judge or baron to sit in the absence of the chief. The 24 Gec II. c. 18 has extended the time after term still further to fourteen days.-Christian.

And the time was afterwards, and still continues, unlimited during the vacation next after the term, by the 1 Geo. IV. c. 55. Before the passing of the 1 Geo. IV. c. 21, the nisi prius sittings in Middlesex were confined to Westminster hall; but by that act they may be held at any other fit place within the city of Westminster.-Cutty.

« EelmineJätka »