The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

28.

THE HISTORY OF THE COURT OF CHANCERY1

By George Spence2

IT has always been held by the great oracles of the law, that the principles of the Common Law are founded on reason and equity;3 and so long as the Common Law was in the course of formation, and therefore continued to be a lex non scripta, it was capable—as indeed it has ever continued to be, to some extent—of not only being extended to cases not expressly provided for but which were within the spirit of the existing law,4 but also of having the principles of equity5 applied to it by the judges in their decisions,1 as circumstances arose which called for the application of such principles. This was more especially open to the judges as regards defences to actions which were not founded on writs, and were therefore under their own control. But in course of time, a series of precedents was established by the decisions, or responsa, as Bracton calls them, of the judges, which were considered as of almost equally binding authority on succeeding judges as were the acts of the legislature; and it became difficult to make new precedents without interfering with those which had already been established. Hence (though new precedents have ever continued to be made), the Common Law became, to a great extent, a lex scripta, positive and inflexible; so that the rule of justice could not accommodate itself to every case according to the exigency of right and justice.2

The Romans, as has already been mentioned, had found themselves in a similar condition as regards the law which was contained in the Twelve Tables, and the subsequent additions which had been made to it. To supply this deficiency in their original system of jurisprudence, first the Consuls, then the Prætors, were permitted as occasion required to correct “the scrupulosity and mischievous subtlety of the Law,”3 and supply its defects; not, indeed, as regards the Prætors, by altering the law itself, but by means of a distinct equitable code, framed by themselves and propounded on entering on their office; and which was for the most part administered by the same tribunals which dispensed the ordinary law, and by the same mode of procedure.4

Hadrian, as we have seen, compiled from the previous Edicts a code of Equitable Jurisprudence,1 and that code was expounded by the commentaries and responsa of the Jurisconsults, so that it became, like the Common Law of England, though by a different process, a lex scripta. But even the jus honorarium, when thus reduced to system, was found to be insufficient to answer every exigency. It appears that the judges and persons intrusted with the administration of the law, assumed authority to apply principles of equity, or natural justice, to the particular cases which seemed to require such an interposition. However, probably from a fear of the uncertainty and inconvenience which might have resulted from such a course being pursued, Constantine, ad 316, and after him Valentinian, as has already been adverted to,2 prohibited the judges from exercising any such discretion, reserving to themselves alone, in their consistory or council, the application of principles of equity, as distinct from the received rules and maxims of the law.3 From that time cases were continually referred to the Emperors, either originally, or by way of appeal; and their decisions, thus pronounced, as well as their less formal rescripts, became part of the written law.4 If such a deficiency was found to exist after Hadrian’s Edict, we cannot be surprised at its having been experienced in England at the time when the Court of Chancery first came into existence as a distinct Court of equity.5 A very large infusion of equitable principles had been incorporated in the Roman law by means of the Perpetual Edict. In those important branches of the law, particularly, which related to contracts, a system of equitable jurisprudence had been introduced, which left little, if anything, to be supplied. Equitable principles were applied to every contract of sale and purchase, pledge, letting, hiring, and the like;1 whether the contract were executory, or perfected. In the former case, if there were a want of complete bona fides, the jus honorarium furnished a good defence to any attempt to enforce it at law;2 in the latter, by the same law the party complaining might, by a rescissory action, avoid the transaction,3 and a purchaser, who had been in any way defrauded, might bring an action for compensation, if that would afford a more appropriate remedy than a rescission of the transaction:4 express stipulation on the part of a contracting party for exemption from any such liability was of no avail.5 Provision was also made for the correction of mistakes, without rescinding the transaction.6 In every case, particularly in respect of transactions which were classed as bonæ fidei,7Fraud might be taken advantage of by way of defence;8 and where a person sustained an injury or loss by means of a fraud, for which he could not obtain redress by any recognized form of action, the Perpetual Edict gave him a remedy according to the circumstances of the case.9 These were the remedies which might be obtained before the ordinary tribunals; but, large as they were, it was found that proceedings by action in cases of fraud and circumvention, would not afford in all cases an adequate remedy;1 and that there were many cases calling for relief, which could not properly be provided for by any form of proceeding in the ordinary tribunals. Hence by a Prætorian Edict, which was incorporated in the Perpetual Edict, liberty was given to every person who had been led into doing any act by which his rights were affected, through fear, surprise, circumvention or trickery, or by mistake, “justum errorem,” to resort to the extraordinary jurisdiction2 of the Prætor for a Restitutio in integrum, that he might be restored to his rights, and placed in the same position as if no such transaction had taken place.3

The provisions of the Common Law of England, both as regards its principles and mode of procedure, but more especially the latter, at the period above alluded to, namely, the reign of Edward III., as will have been in part observed from the preceding sketch, fell far short of the lex scripta of the Roman jurisprudence. In many of the cases above enumerated, for which provision was made by the Roman law, no remedy, or at least no adequate remedy, could be obtained. Even as regards such of the principles of equity belonging to the Roman jurisprudence as were admitted into the Common mon Law, no adequate means for carrying them out were provided.

A system which was so materially deficient to answer the purposes of justice, could not be satisfactory.1 The Roman scheme of judicial organization, as handed down by the corpus juris, as we have seen, presented for imitation two modes for supplying the deficiencies of the English system: the one was for the Chancellor to supply the deficiencies of the law by introducing a jus honorarium to be administered by the Courts of Law; the other was to resort to the royal prerogative in each particular case, where no remedy, or an inadequate remedy, was provided by the law.2 The first method, namely, the introduction of a jus honorarium, could not be acted upon by the Chancellor of his own authority, as will have been collected from what has already been stated: for though the Chancellor issued all writs, the Judges of the Common Law Courts assumed exclusive jurisdiction to decide upon their validity, disregarding the sanction of the Chancellor, and his College of Clerks.3 Nor could the Chancellor declare what should be a sufficient defence to an action; indeed, with this part of the judicial machinery he had no opportunity to interfere.

However, it was possible to attempt a remedy of a corresponding nature to the Jus honorarium by means of the legislature, and that attempt was made, as has already been noticed, by the statute of Westminster the Second (13 Edward I.).4 This statute opened the measn of obtaining remedies in numerous cases, which were before excluded by the rules of the common law; and other statutes were passed to supply many of the deficiencies in the common law, as new circumstances, unprovided for by the law, arose.

But in fact a lex scripta grew up in the interpretation of the apparently large and flexible provisions of the statute of Westminister the Second itself. To supply the yet existing deficiencies in the law, the remaining expedient presented by the Roman judicial system, namely, the exercise of the royal prerogative in particular cases, and on their own circumstances as they occurred, was resorted to in the manner to be hereafter described.

But over and above these calls for the interference of the prerogative, the circumstances of the times1 required that some extraordinary powers should be exercised to prevent obstructions to the course of justice, even in cases where the law was sufficient, if duly administered, to afford a complete remedy—a necessity quite as urgent as that which arose from the deficiencies in the law itself. This combination of circumstances ultimately gave rise to the establishment of the extraordinary jurisdiction of the Court of Chancery, on which subject we are now about to enter. But it will be necessary for us, first, to direct our attention to the constitution of the King’s Select Council, from which the Court of Chancery may be said to have sprung.

We must go back a little in order to examine into the constitution of the Select Council after the Norman Conquest, which has hitherto been only casually adverted to, as the functions of the Court of Chancery were in the first instance delegated to that council.

The Norman Sovereigns, like their Anglo-Saxon predecessors,2 were advised in the exercise of their prerogatives in respect of matters political and judicial,3 by a Council always in attendance on the king’s person, which was distinct from the Great Council or Parliament,4 though, as it would appear, forming part of the Great Council when assembled. The king presided in both, and they had the same general appellation, namely, “The Council,” till the reign of Edw. I., from which time the Great Council, which usually was called together four times in the year, obtained the settled name of “The Parliament.”1

3 It is not easy to distinguish the peculiar functions of each of these councils;2 probably the functions of the minor or Select Council were in a great part suspended, whilst the Great Council was sitting; certainly from the time of Edward III. the Council and the Lords’ House were frequently blended together as a Council within a Council; but in that reign the Lords as a distinct body were the Judges of Parliament,4 though even then we find matters referred to the select Council, sometimes, that they might make a report to a subsequent Parliament.5

This select Council was composed of certain great officers who were members ex-officio, as the Chancellor, Treasurer,6 the Grand Justiciary and other justices in the early reigns,—the justices of either Bench after the institution of separate courts,—the justices in Eyre—the Escheators,7 and such others, usually but not exclusively, Bishops, Earls, and Barons, as the king thought fit to name.

The serjeants and the masters, who have already been mentioned and whose office will be further described hereafter, were also occasionally called in.8 Ultimately the masters became ex-officio members of the council9 for the purpose of advice.

The official members on some occasions sat alone, at other times with those who were associated to them.1

Whenever the council required the assistance of other persons, they were summoned by writs issued by the Chancellor, by order of the council, according to circumstances; and if any information was required by the council in respect of any matter before them, writs and commissions emanating from the council were dispatched out of the Chancery, and the inquisition taken under such writs having been presented to the council, such orders were thereupon made as justice appeared to require.2

This was the king’s permanent council, or what would now be termed the Privy Council in contradistinction to the Great Council or Parliament, before described, which only met in obedience to special writs of summons, whereas this council was always sitting for the dispatch of business.3

This council was used to sit in different chambers about the palace, such were the Painted Chamber, the Whitehall, the Chamber Marcolf; sometimes in la Chambre des Etoiles, to which place of their meeting the general return of certain writs in the reign of Edward III. coram nobis in camera, are referred. The council very often sat in the Chancery.4

It appears that in early times, probably down to the reign of Edward III., as will be more particularly noticed hereafter, it was in this council, presided over by the king himself, or some person delegated by him when absent, that all applications for the special exercise of the prerogative in regard to matters of judicial cognizance, criminal and civil, were discussed and decided upon.

The general nature of the applications which were addressed to the council may be ascertained from the answers to the petitions which have been preserved; they are as follows:—sue at Common Law, (that is by ordinary writ,) or in the County or Hundred Court;—sue in the Exchequer;—sue in Chancery, that is before the ordinary common law court held before the Chancellor, which will be noticed hereafter;—a writ on the subject shall be dispatched out of Chancery;—the king will consider;—a remedy shall be provided, and the like.1

As regards the particular description of judicial business which was disposed of by the council itself in early times, we are left somewhat to conjecture. It seems to have exercised a Criminal as well as Civil jurisdiction. Sir Francis Palgrave considers that the council exercised a general superintending authority over the courts of common law, though in a manner rather resembling the authority which a tribunal exercises over its members, than as resulting from the subjection of one court to another.2

Mr. Hardy, in his Introduction to the Close Rolls, has set out a passage from Benedict Abbas, from which it would appear that, so early as the time of Henry I., the council took cognizance generally of those cases which the ordinary judges were incapable of determining.3 From the records of the proceedings of this council in after times, we learn, that the council by delegation from the king, advised as to the exercise of the prerogative on all applications to obtain a remedy for injuries and acts of oppression, where from the heinousness of the offence, or the rank or power of the party, or any other cause, there was likely to be an impediment to a fair trial, or to the attainment of appropriate redress, in the ordinary tribunals; so also when by force and violence, justice was prevented taking its ordinary course.1 The council on such applications either took the case into their own hands, or gave specific directions in regard to it according to the circumstances of the case.2 Where a party was suffering imprisonment by the process of an inferior court, the double remedy of a subpœna against the pursuing party, and a writ of Habeas Corpus cum causa was sometimes given.3 The council had the power of issuing writs into all special Jurisdictions or Franchises, as Wales and Ireland,4 which, with their other extraordinary powers, gave them surpassing capabilities beyond those of any other court, except the Court of Chancery. The poor appear to have been the objects of their particular care.5 “For God and in work of charity” generally concluded all the petitions to the council.6

The council also appears to have exercised a prerogative jurisdiction in cases of fraud, deceit, and dishonesty, not so tangible as to be within the reach of the common law; and int. alia to have issued writs of ne exeat regno in civil cases against foreign debtors who desired to escape from payment of their debts.7

The clergy, as before observed, having been excluded in the time of Henry III. from entertaining any question as to fidei læsio and juramenti transgressio, may account for the council having been applied to in cases of fraud and deceit, after the reign of that monarch.

The interference of the Prerogative with the ordinary course of justice to the extent and in manner above described, appears to have been recognized in early times as constitutionally unobjectionable; but to provide against abuse, the Barons at various times claimed to have a voice in the appointment of the Chancellor, Judges, and great officers of state, who were ex-officio members of the select council, and which at times they exercised in Parliament.1 By the articles agreed on in the eighth year of Henry VI. it was provided, that all Bills forwarded to the council that embraced matters terminable at the common law should be sent there to be determined, unless there were too much might on one side, or there were other cause reasonable moving the council to retain them.2 By the statute 5 Rich. II. stat. 1, c. 8, those who had lost their deeds in the late troubles were authorized to present petitions to the king and his council, when such remedy was to be provided as was just; in this we may recognize an old Anglo-Saxon custom.

The Great Council, or Parliament, was also a court for judicial purposes, ordinary and extraordinary. Indeed, in the time of Edward I., and for some time afterwards, the Parliaments, excepting as regards the granting of taxes, were not so much legislative assemblies, as the King’s Great Council in which subjects applied for judicial relief against their fellow subjects.3 In early times petitions of all kinds and descriptions were presented to the king, or to the Great Council on the occasion of their meeting.4 The Parliament, or Great Council, itself disposed of many of the cases brought before it; amongst the rest those which had been referred to it, from their difficulty, by the ordinary tribunals.5

If the case required a new law, an award was made by the king and barons, who alone at this time, as already observed, interfered in regard to matters connected with the administration of justice.1 This award in early times had the force of a statute; afterwards the Commons, as has already been mentioned, established the right of concurring in all legislative Acts, and, by consequence, in these awards, which then became what are now called Private Acts of Parliament.2

In cases not requiring special interference, the same course seems to have been there adopted as on the applications which were made to the council. If the matter were remediable at law, and there were no obstacle to the remedy being obtained, the petitioner was sent to the Common Law Courts; if it were a matter of revenue, he was sent to the Exchequer; if the matter related to the king’s grants, or other matters cognizable under the Chancellor’s ordinary jurisdiction, he was sent to the Chancery; if it were matter proper for the consideration of the council it was sent there.3 The judges, and other official members of the select or privy council, originally attended as a constituent part of the Great Council; but in the time of Edward III. or Richard II. the Lords, by their ascendency, threw the judges and other official members of the council into the shade, and took the decisive jurisdiction into their own hands;4 thus, their ancient colleagues of the council, not being Lords, have been reduced to the condition of silent assistants, unless when called upon to give their opinions.5

During the time to which the references in the preceding pages relate, a growing Jurisdiction, exercised by the Chancellor apart from the council, is observable, the nature and progress of which are now to be the subject of inquiry. The Chancellor, whose office has been traced down to the reign of Henry II., continued to exercise very important functions; he was still almost always a high dignitary of the Church, and besides his independent legal jurisdiction, which will be particularly noticed hereafter,1 it would appear that this great officer was the principal actor as regards the judicial business which the Select Council, as well as the Great Council, had to advise upon or transact.2

Thus Matthew Paris, incidentally mentioning Radulphus de Neville, Bishop of Chichester, who was Chancellor to Henry III., says, “qui erat Regis fidelissimus Cancellarius, et inconcussa columna veritatis, singulis sua Jura, precipue pauperibus, juste reddens et indilate.”1 There are earlier notices of a similar kind. The panegyrics composed in honor of the famous Thomas à Becket, Chancellor of Henry II., by Fitzstephens, and of the Bishop of Ely, Chancellor of Richard I., ad 1189, by Nigel de Wetekre, refer to each, in the following terms,—

• Hic est qui regni leges cancellat iniquas,
• Et mandata pii principis æqua facit.

As to the latter it is added—

• Si quid obest populo, vel moribus est inimicum
• Quicquid id est, per eum desinit esse nocens.2

In the reign of Edward I., the English Justinian in more than one sense, we begin to observe unequivocal marks of an extraordinary jurisdiction exercised in the Chancery in civil cases. It was a custom with this monarch to send certain of the petitions addressed to him praying extraordinary remedies, to the Chancellor and Master of the Rolls, or the Chancellor or the Master of the Rolls alone, by writ under the privy seal, (which was the usual mode by which the king delegated the exercise of his prerogative to the council,) directing them to give such remedy as should appear to be consonant to honesty (honestati).3 There is reason to believe that this was not a novelty.4 Considering what was the constitution of the council, great inconvenience and uncertainty must have resulted from leaving the correction and extension of the law in civil cases to such a tribunal; though it would appear from an ordinance issued in the 8 Edward I., that the Chancellor was not necessarily the person to whom the exercise of the prerogative of grace even in matters purely civil was committed. When the Chancellor administered relief independently of the council, it was by express delegation from the king, and given, as it would seem, by the advice of the council.1 It will be remembered, that it was in the 13th year of the same king that the stat. of Westminster the Second, which authorized the granting of writs in consimili casu, was enacted, by which the necessity for many of these applications must have been superseded.

Several records relating to the Court of Chancery during the reign of Edward II. have been brought to light by Lord Campbell, from which it appears that the court was then in full operation.2

In the reign of Edward III. the Court of Chancery, as a court of ordinary jurisdiction, became of great importance. The Chancellor, under his ordinary jurisdiction, held Pleas of scire facias for repeal of letters patent,—of petitions of right, and monstrans de droit for obtaining possession or restitution of property from the Crown3 —Traverses of offices,4 —scire facias upon recognizances,—executions upon recognizances,—executions upon statutes,5 and pleas of all personal actions by or against any officer or minister of the Court of Chancery.6

The Chancellor also held jurisdiction on appeals of false judgement, when any lord would not do right to those under his jurisdiction.7 He was visitor of colleges, etc., of royal foundation, and had jurisdiction1 as to the king’s wards;2 he also took security for keeping the peace.3

The jurisdiction of the court as to recognizances, appears to have arisen in this way. It was a practice to secure the fulfilment of grants and leases, and other contracts, by recognizances acknowledged in Chancery; the power of issuing the writs of execution belonged to the court, and it naturally, therefore, assumed the power to judge of the default by which the recognizance was alleged to have been forfeited.4 Recognizances were afterwards, as we shall see, imported into the extraordinary jurisdiction of the court, and made use of to bind the parties to do right.5

The Chancellor had jurisdiction in all cases in which the crown was concerned.6 The petition of the Commons, 45 Edward III., seems to admit, that when the king was a party, he had a right to sue in the Court of Chancery, or in the ordinary courts of law at his pleasure, and so it seems had his grantees.7

The proceedings in all or most of these cases, were by common law process, not by petition or bill; but the Chancellor never had authority to summon a jury: on issue being joined on a matter of fact, in a cause before the Chancellor in his ordinary court, it was tried in the Court of King’s Bench.8 The Chancellor in the exercise of his ordinary or common law jurisdiction could not advert to matters of conscience.9

A summary jurisdiction was committed to the Chancellor in many cases, by various Acts passed in this reign, but whether to be exercised according to the formalities of common law procedure, or according to the course of the council, is matter of doubt.1

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 twenty-second 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.2

The establishment of the Court of Chancery as a regular court for administering extraordinary relief, is generally considered to have been mainly attributable to this or some similar ordinance.3 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.1

From this time suits by petition or bill, without any preliminary writ, became a common course of procedure before the Chancellor2 as it had been in the council. On the petition or bill being presented, if the case called for extraordinary interference, a writ was issued by the command of the Chancellor, but in the name of the King,3 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.4

One great engine for the discovery of truth, which, as before observed, was unknown to the common law, namely, the examination 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,1 Equity, and Conscience.2 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,3 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;4 but Equity is reserved for a more full discussion in a subsequent page.

The increased importance of the ordinary and extraordinary jurisdiction of the Chancellor5 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,6 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 in law there debated, and many times would argue himself.”1 He died two years afterwards.

In the 45th and 46th years of Edward III.,2 between which time and the death of Serjeant Parning there had been several clerical Chancellors, and the important ordinance of the 22d Edward 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.3 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.4

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.5

In this reign the Court of Chancery, as well as the Court of King’s Bench, ceased to follow the king.1

The terms “Honesty,” “Equity,” and “Conscience,” 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.2 It was the duty of 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.1

2 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, 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.”3

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.4 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.5

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 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.1

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 be left to the Common Law;2 but the Chancellors,3 supported by the Council, and under the shield of the clerical character, persevered against all opposition in exercising this branch of the prerogative, in the Council, and in the Court of Chancery;4 and a resort to the Chancellor under his extraordinary jurisdiction was thus secured for the poor, the weak, and the friendless,5 to protect them from the injuries to which they were exposed.

But many powerful reasons operated to induce persons of all classes to apply for the powerful aid of the Chancellor in cases which were not strictly within the range of the principles above adverted to. Before the Chancellor, disputed facts might be established by the personal examination, on oath, of the party against whom any complaint was made,—an advantage which could be obtained in no other court, with the exception of the Council. Besides this the Court of Chancery, and the Council, alone exercised a general Preventive jurisdiction. Again, it was in the Court of Chancery or the Council only that, in some cases of outrage, compensation could be obtained, the only remedy the Common Law afforded being punishment through the medium of criminal process.1 These concurrent causes operated, about the time we are now contemplating, to bring numerous suitors to this court.

In this reign petitions, or Bills as they were afterwards called here as in Parliament, were addressed directly to the Chancellor himself, whether because he was the person to whom the prerogative of grace had been committed,2 or, as some have conjectured, because it was known to the suitors that to that high dignitary their petitions would ultimately be referred.3 Many of these Bills are extant, some have been published by the Record Commissioners; most of these are founded on some outrage or violence for which redress is sought: they will be referred to more particularly in a future page.4

The Commons reiterated their petitions against this growing jurisdiction.1 The particular grounds of their remonstrances were, that persons were called to this court, not upon any specific complaint, but quibusdam certis causis; that persons were required to answer as to their franc tenement, (which was something almost sacred in the minds of land-owners,) and to disclose their titles, which the Commons denounced as being contrary to law; that the course of proceeding was not according to the Common Law, but the practice of the Holy Church; and that the process of these extraordinary tribunals was abused by being employed as the means of extortion.2 The answer to these remonstrances generally was, that the king would preserve his prerogative.

It is a little remarkable that amidst these complaints, although no Act of the legislature had conferred on the Chancellor any of the coercive powers which the Commons so forcibly denounced, no direct complaint is made, as to the jurisdiction which he had assumed being an invasion of any constitutional principle, or that this permanent delegation was an excess in the exercise of prerogative. Acts of Parliament indeed3 had been passed, which possibly may have been intended by one branch of the legislature at least, to control the extraordinary jurisdiction exercised by the Council, and subsequently by the Chancellor; but if so, they failed of their intended effect, as regards both: and the same fate attended the stat. 4 Hen. IV. c. 23, which will be presently mentioned.

The Commons not succeeding in their attempts to extinguish this extraordinary jurisdiction, they addressed their petitions to its due regulation, and in consequence, by the statute 17 Rich. II. c. 6, it was enacted, that where persons were compelled to appear before the Council or the Chancery on suggestions found to be untrue, the Chancellor should have the power to award damages according to his discretion; and though it was not until the statute or ordinance of the 15th Henry VI. c. 4, that it was directed that no writ of subpœna should issue until surety should be found to answer the party his damages if the matter contained in the bill could not be made good, sureties had been in fact required in the reign of Rich. II.1

From the time of passing the stat. 17 Richard II. we may consider that the Court of Chancery was established as a distinct and permanent court, having separate jurisdiction, with its own peculiar mode of procedure similar to that which had prevailed in the Council, though perhaps it was not yet wholly separated from the Council.2

The writ of subpœna, in its modern form, prior to the late alterations, now came into general use in the Court of Chancery, though, as appears from the preceding authorities, it was not then invented, as stated by the Commons, 3 Hen. V.3 In many of the petitions or bills, no other relief was prayed, than that a subpœna might issue.4

References to the Council were still made in extraordinary cases of a nature purely civil, but it seems to have been considered there, that the Chancery was the proper Court for making decrees in such matters.5

In this reign we find some matters delegated to the Chancellor by authority of Parliament. In the 15 Rich. II. two petitions were addressed to the King and the Lords of Parliament; the answer to each was the same, that the petition be sent to the Chancery, and by authority of Parliament the Chancellor was to cause the parties to come before him in the said Chancery, and there, the matter contained in the petition, to diligently view and examine, and hear the reasons of the one party and the other; “and further, let there be done by authority of Parliament that which right and reason and good faith and good conscience demand in the case.”1

Petitions for extraordinary remedies were still presented to the king, but they were usually referred by him to the Chancellor.2

The Chancellor at this time was assisted in the exercise of his judicial duties, legal and equitable, by the Master of the Rolls;3 but this high officer and his duties will be the subject of particular notice hereafter.

An event which I am about to notice took place in this reign, which appears to me to have had great influence in the establishment of the extraordinary jurisdiction of the Court of Chancery, and in throwing it into the hands of the clergy.

In the reign of Edward III. the exactions of the court of Rome had become odious to the king and the people. Edward, supported by his Parliament, resisted the payment of the tribute which his predecessors from the Conquest downwards, but more particularly from the time of John, had been accustomed to pay to the court of Rome; and measures were taken to prevent any further encroachments of the papal power.4 A general distaste on the part of the laity of all ranks to everything connected with the Holy See had begun to spring up. The name of the Roman Law, which in the reigns of Henry II. and III., and of Edward I., had been in considerable favor at court, and even as we have seen with the judges, became the object of aversion.

In the reign of Richard II. the barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common law tribunals.1 Perhaps one object on the part of the judges might have been to exclude the doctrine as to fidei commissa, or trusts, which, as we shall see, first came distinctly into notice in this reign. The effect, however, of the exclusion of the Roman law from the common law tribunals, was, as will be more particularly noticed when I come to treat of Trusts, that a distinct code of laws was formed and administered in the Court of Chancery, by which the enjoyment and alienation of property were regulated on principles varying in many essential particulars from the system which those who originated and carried into effect the exclusion of the Roman law, were so anxious to preserve.

Nor were these united endeavors for the exclusion of the Roman law, as it appears to me, less important in fixing the appointment of the office of Chancellor in the members of the clerical body. Notwithstanding all the efforts that were made to repress them, Trusts soon became general. Some rules for their regulation were absolutely necessary—it was from the Roman law they had sprung up;—who so proper to introduce and systematize the necessary rules for their regulation, as those who were now exclusively conversant with this law, and who alone, as it was excluded from the Common Law Courts, could resort to it for their guidance? Accordingly, from this time (with some exceptions, which only tend to affirm the general proposition) none but clerical Chancellors were appointed, down to the 21st year of Henry VIII.

It may well be doubted, whether, but for this last circumstance, the system of equitable jurisprudence which we find established in the reign of Henry VIII., on which the doctrine of Uses, and much of the modern jurisdiction of the court is founded, would then have existed. The antipathy to the Roman law, which in the reign of Elizabeth was extended as regards a considerable portion of the community, to everything Roman, and the intensity of which has scarcely yet subsided, broke forth in the latter end of the reign of Elizabeth, and in that of James I., in a way that leaves little doubt as to what would have become of the equitable principles of the Court of Chancery, if that court in its infancy had been permanently committed to Common Law Judges as Chancellors. Although a little in anticipation, I cannot but here notice, as some confirmation of the conjecture which is hazarded above, that a writer of the reign of James I., who, if not as he styles himself, a Serjeant, was evidently speaking the sentiments of that order,1 says, “The Common Law commandeth all that is good to be done.”2 —“The suit by subpœna is against the common weal of the realm.”3 The whole of the system which formerly prevailed in the Court of Chancery as to Uses, and which was then applied to Trusts, is also denounced by him in terms,4 which show that, under Chancellors taken from the professors of the Common Law merely, the modern system of Equitable Jurisprudence (whether for good or for ill others will judge) would never have been reared, at least in the Court of Chancery.

But to resume. In the reign of Henry IV. the Commons renewed their petitions against the Court of Chancery, particularly complaining that the court interfered with matters that were remediable at law;1 and in the fourth year of this king, as before noticed, a statute was passed declaring that judgments given in the King’s Court should not be reversed, “adnihilentur,” excepting by attaint, or for error;2 not, however, expressly referring to the Court of Chancery, nor, in terms, touching the jurisdiction exercised by that court, which did not annul, but deprived the party of the fruits of his judgment.

No bills addressed to the Chancellor in this reign have been found; few in the reign of Henry V., though uses and trusts had then become very general: now, however, the bills began to be in English.3

In the reign of Henry V. the Commons repeated their remonstrances against the obnoxious subpœna, but without effect.4 However, it was admitted by the Commons in the most angry of their petitions, that there were some cases in respect of which no remedy, or at least no effectual remedy could be obtained, by the ordinary course of law, and over which the Court of Chancery might justifiably exercise jurisdiction.5 Nor was this altogether denied by the judges of the courts of Common Law.1 The Council still exercised an extraordinary jurisdiction concurrently with, but distinct from, the Court of Chancery.2 Applications were also still made to Parliament, in cases where justice was obstructed in the courts of Common Law, or where those courts had not the means of affording relief. There are some instances of such applications on the subject of Trusts.3

In the reign of Henry VI., this court was in full operation, and large additional powers of coercion were conferred on the Chancellor in particular cases.4 The writs in the reign of Henry VI. refer to the proceedings as being in Cancellaria, without reference to the Council.5 From this time the bills appear to have been filed.6

In the reign of Edward IV. proceedings by bill and subpœna became the daily practice of the Court of Chancery;7 and from that time, though the judges continued to dispute the Chancellor’s authority to interfere with the proceedings of the Common Law Courts,8 we do not trace any further opposition on the part of the Commons to the authority of the Court of Chancery;9 and down to the reign of Charles II. the court continued to be substantially the same as it was in the reign of Edward IV.

In the reigns of Henry V. and VI. various statutes were passed, which expressly delegated to the Chancellor, in particular cases, some branches of the jurisdiction which had been claimed or exercised both by the Council and by Parliament in aid of the Common Law, to be exercised with the advice of the Chief Justice of either bench, or of the Chief Baron of the Court of Exchequer.1

The Star Chamber—The Court of Requests—Special Commissions of Oyer and Terminer—The Equity Court of the Exchequer.

Having traced the extraordinary jurisdiction of the Court of Chancery as connected with or as forming part of the Council, until the time of its establishment as a separate and independent jurisdiction, it may be well cursorily to notice two other branches or offsets from the Council, which also formed themselves into distinct tribunals, namely, the Star Chamber and Court of Requests.

It has already been noticed that in the reign of Edward III. the Council were in the habit of sitting in what was called the Starred Chamber. After it became the habit to depute to the Chancellor a portion of the business of the Council, namely, that which related to civil rights, the Council usually sitting in the Star Chamber entertained jurisdiction over those cases which were not sent to the Court of Chancery. At length the Court of Star Chamber was established. This Court, like the Court of Chancery, derived its origin from the Royal prerogative.2 The Court of Star Chamber by continued usage, and as ultimately regulated by the stat. 3 (Clarendon says 10th) Henry VII. c. 1, and 21 Henry VIII. c. 30, had jurisdiction in cases of oppression and other exorbitant offences of great men, (where, as Lord Coke observes, inferior judges and jurors, though they should not, would in respect of the greatness of the offenders be afraid to offend,) bribery, extortion, maintenance, champerty, embracery, forgery, perjury, dispensers of false and dangerous rumors, news, and scandalous libeling; false and partial misdemeanors of sheriffs and bailiffs of liberties; frauds, deceits,1 great and horrible riots, routs, and unlawful assemblies, single combats, challenges, duels, and other heinous and extraordinary offences and misdemeanors;2 leaving ordinary offences to the courts of common law.3 Thus a jurisdiction founded on the inefficiency of the ordinary tribunals to do complete justice in criminal matters, and other offences of an extraordinary and dangerous character, arose almost concurrently with the establishment of the Court of Chancery and entirely analogous in principle and procedure to that Court, but confining its jurisdiction to cases partaking of a criminal character;4 “and whilst it was gravely and moderately governed,” says Clarendon, “it was an excellent expedient to preserve the dignity of the king and the peace and security of the kingdom.”

The Court of Chancery sometimes, besides itself granting civil relief, made use of the Court of Star Chamber to subject the parties to punishment where gross frauds had been perpetrated. Thus, we find an order of Lord Keeper Bacon to this effect, “Because the Court disliketh the said evil practices and fraud, and thinketh them not meet to be passed over without further examination,” it is ordered that the plaintiff and one Frankland, shall at their equal charges, exhibit a bill in the Court of Star Chamber, against Fulwood the defendant, “touching his indirect, lewd, and fraudulent practices.”5

This Court, however, having become odious by the tyrannical exercise of its powers, it met with a different fate to that of the Court of Chancery, having been abolished by the statute 16 Car. I. c. 10.6

The Court of Requests

It has generally been supposed that the Court of Requests, which was a minor Court of Equity, had its origin from the writ or proclamation of the 22d of Edward III., before referred to;1 but the more probable origin is an order of the 13th Rich. II., for regulating the Council, by which the Lords were to meet between eight and nine o’clock, and the bills of the people of lesser charge were to be examined and dispatched before the Keeper of the Privy Seal, and such of the Council as should be present for the time being. From this time, at least, the Lord Privy Seal held a Court of Equity called the Court of Requests. The course of procedure was the same as in the Court of Chancery. The bills of complaint filed there, ordinarily contained the one or the other of these two suggestions, namely, that the plaintiff was a very poor man not able to sue at common law, or that he was one of the King’s servants or ordinarily attendant on his person;—it was the poor man’s Court of Equity.2 The Lord Privy Seal, and the Masters of the Requests, who exercised similar functions to those of the Masters in Chancery, presided. This court continued to be resorted to down to the 41st of Eliz. when it ceased to exist, having been virtually abolished by a decision of the Court of Queen’s Bench.3 Greater facilities were from that time given to the poor for enabling them to proceed in the superior courts in formâ pauperis, which will be noticed hereafter in treating of the course of procedure in the Court of Chancery.

Special Commissioners of Oyer and Terminer

The King was frequently applied to, as has been before observed, to grant a more certain and speedy remedy in criminal cases than could be obtained by the ordinary proceedings of the Common Law Courts. In answer to these applications, Special Commissioners of Oyer and Terminer were frequently awarded by the Council, to whom such applications were usually referred, directed to persons specially named, who usually, as it would appear, were not justices of the one bench or the other.1

Poverty or the number of the applicant’s enemies, and the inefficiency of the Common Law, were also the ordinary grounds of the applications for this extraordinary exercise of the Prerogative. The great abuses attending these commissions, caused them to be confined to “great and horrible trespasses;”2 and even these became less frequent as the remedial jurisdiction exercised by the Council in its various branches, especially in the Star Chamber, became more fully developed.3

Courts of Equity of the Exchequer, Counties Palatine and of Lords and Ladies

Not only the Court of Exchequer,4 whose functions were in a peculiar manner connected with the Royal authority, but the Counties Palatine of Chester, Lancaster and Durham, the Court of Great Session in Wales, the Universities, the City of London, the Cinque Ports, and other places, silently assumed extraordinary jurisdiction similar to that which was exercised in the Court of Chancery; some of them yet subsist.5

The equitable jurisdiction of the Exchequer has lately been transferred to the Court of Chancery.

In the reign of Rich. I. the Earl of Moreton, a nobleman of vast possessions, had his Chancellor;6 and after this time many Lords and Ladies affected to establish in their several Honors a Court of Chancery, with similar powers to those exercised by the High Court, but they were extinguished by the Legislature.7

[1 ]This essay forms chapters I-IV, vol. I, Part Second, pp. 321-351, of “The Equitable Jurisdiction of the Court of Chancery,” 1846 (London: V. & R. Stevens and G. Norton).

[2 ]1787-1850. Glasgow University. M. A. 1805; Barrister of the Inner Temple, 1811, Bencher, 1835, and Reader, 1845.

Other Publications: Origin of the English Laws and Institutions, 1812; Origin of the Laws and Political Institutions of Modern Europe, 1826; Code Napoleon Translated, 1826; Reform of the Court of Chancery, 1830.

[3 ]Int. al. Lord Coke, 10 Rep. 108 a. “The perfection of reason,” ib. 3 Rep. 13 b. So Celsus, Dig. i. l. 1, pr. says. “Jus est ars boni et æqui.”

[4 ]“Non possunt omnes articuli singillatim, aut legibus, aut senatus consultis comprehendi; sed cum in aliqua causa, sententia eorum manifesta est, is, qui jurisdictioni præest, ad similia procedere, atque ita jus dicere debet,” Dig. i. 3. 12. But when new cases arose, according to the language of the Jurisconsults of later times. “De his quæ primo constituuntur, aut interpretatione aut constitutione optimi Principis, certius statuendum est.” ibid. l. 1 & 11.

[5 ]Bracton, who wrote whilst the Common Law was yet being formed (non scripta), adopting the maxim which he found in the Roman law, “In omnibus, maxime tamen in jure, Æquitas spectanda est,” Dig. L. 17. 90, lays down, that the Common Law Courts might be guided by equity, even in questions of strict law; lib. 2, c. 7. fol. 23 b; lib. 4, fol. 186; and see Co. Litt. 24 b; 6 Co. 50 b; 1 Bla. Comm. 61, 62; ibid. 3. 429; and I Eden, 194; Judgment of Sir T. Clarke, M. R., in Burgess v. Wheate. See Additional Note to chapter I, p. 326, Spence, Equitable Jurisdiction of the Court of Chancery.

[1 ]The Year Books, or authorized reports of judicial decisions, commence in the reign of Edw. I. Bracton records the decisions of time of Hen. III.

[2 ]See Hunt’s argument for the Bishops’ right, 145-8. Parkes’ Hist. C. Chan. p. 236. Professor Millar, in his Historical View of English Government (Book ii. c. vii.) observes, that “Law and Equity are in continual progression, and the former is constantly gaining ground upon the latter. Every new and extraordinary interposition is by length of time converted into an old rule. A great part of what is now strict law,” adds the Professor, “was formerly considered as equity; and the equitable decisions of this age will unavoidably be ranked under the strict law of the next.”

[3 ]“Juris scrupulositate nimia que subtilitate.” Dig. xxviii. 3. 12; et. v. supra.

[4 ]The subject of fidei commissa, or Trusts, will be separately considered.

[1 ]It has been matter of dispute in modern times whether Hadrian ever issued such an Edict,—see the notes to Milman’s Gibbon, viii. p. 20; but, in fact, this compilation of Prætorian law, which was made in his time, and no other, continued to be of authority down to the time of Justinian.

[2 ]Spence, Equitable Jurisdiction of the Court of Chancery, p. 77.

[3 ]Cod. Just. i. 14. 1; ibid. i. 14. 9; supra, p. 77.

[4 ]See Gaius, quoted Milman’s Gibbon, viii. p. 23. The Emperors before this time frequently sat to hear causes referred from the inferior tribunals, (Sueton. Domit. c. viii.); particularly where the rigor of the law required to be tempered by equity, ex bono et æquo, (Sueton. Claud. c. xiv.); taking to them assessors, or sitting in consistory, Dion. Cass. Tiberius, lib. lvii. et v. supra.

[5 ]This, as we shall presently see, was in the reign of Edw. III.

[1 ]“Bona fides quæ in contractibus exigitur æquitatem summam desiderat.” (Dig. xvi. 3. 31; xix. 2. 24; xix. 1. 50;) “Omnia quæ contra bonam fidem fiunt veniunt in empti actionem,” (Dig. xix. 1. 1, 2,) “Nihil magis bonæ fidei congruit, quam id præstari quod inter contrahentes actum est; quod si nihil convenit, tunc ea præstabuntur quæ naturaliter insunt hujus judicii potestate,” (xix. 1. 11, 1, et seq.). Natural reason was an acknowledged principle of decision in questions bonæ fidei (ib. v. 3. 36, 5); but it was considered, that from the very nature of a sale, the buyer and seller should be at liberty to circumvent each other as to price, “In pretio emptionis et venditionis, naturaliter licere contrahentibus se circumvenire, Pomponius ait,” Dig. iv. 4. 16, § 4.

[2 ]Dig. xviii. 5. 3.

[3 ]Dig. xix. 1. 11, 5.

[4 ]Dig. xxi. 1. 1, 2.

[5 ]Dig. xix. 1. 6, 9.

[6 ]“Quum iter excipere deberem, fundum liberum per errorem tradidi, incerti condicam ut iter mihi concedatur,” Dig. xii. 6. 22, § 1, &c. This remedy was not adopted by the framers of our Common Law.

[7 ]Voet. in Pandect. i. p. 193 a. § 3.

[8 ]Dig. xix. 1. 25; xvi. 1. 29, pr. and § 28 & 46. tit. 2. 54, 1, &c.

[9 ]“Quæ dolo malo facta esse dicentur, si de his rebus alio actio non erit, et justa causa esse videbitur, judicium dabo, ait Prætor,” Dig. iv. 3. 1, pr.; Cod. Just. ii. 21, 2; Dig. xix. 5. 5, 3. It was sufficient that the remedy were doubtful, Dig. iv. 3. 7, 3; et v. Heinec. in Pandect. § 459-462. This extraordinary remedy was given against the heir if the succession had derived any benefit from it. Dig. iv. 3. 26.

[1 ]According to Labeo, if a restitutio in integrum would afford complete redress, it was to be resorted to, and not an action. Dig. iv. 3. 1, 6.

[2 ]“Magis mixtum imperium quam jurisdictio dominatur,” Voet. in Pandect. tom. i. p. 178.

[3 ]“Sub hoc titulo, plurifariam Prætor hominibus vel lapsis vel circumscriptis subvenit, sive metu. sive calliditate, sive ætate, sive absentia inciderunt in captionem, sive per status mutationem aut justum errorem,” Dig. iv. 1. 1 & 2. Voet. gives the following description of this jurisdiction. “Est enim remedium extraordinarium, quo Prætor vi sui officii et Jurisdictionis, naturalem secutus æquitatem, homines læsos aut circumventos ex justa causa in pristinum statum reponit, perinde ac si nullum negotium damnosum gestum esset. Magis mixtum imperium quam Jurisdictio dominatur, unde soli majores, et non municipales magistratus, restitutionis faciendæ potestate gaudent; multo que minus Pedanei Judices, proprie dicti, omni carentes jurisdictione,” Voet. i. p. 178; and see Dr. Phillimore’s Preface to Burn’s Ecclesiastical Law, p. xiii.

[1 ]After the Court of Chancery had become established, and its jurisdiction in the correction and extension of the law had become reduced to settled and well understood principles, many of its doctrines were adopted by the Courts of Law, and now form part of the Common Law; but the text refers to the Common Law as it stood when the Court of Chancery rose into existence.

[2 ]The exercise of this prerogative by any general regulations, affecting the law itself, was excluded; that required the assent of the Great Council; v. supra, p. 226.

[3 ]So it will be remembered, though the writs for the election of representatives to Parliament issued from and were returned to the Chancery, the Commons in their House established the right of determining as to the validity of the returns; see Lord Campbell’s Lives, Lord Ellesmere, ii. p. 221; Lord Shaftesbury, iii. p. 314.

[4 ]Supra, p. 240.

[1 ]See The Obsolete Jurisdiction of the Court of Chancery, Spence, Equitable Jurisdiction of the Court of Chancery.

[2 ]V. supra, p. 73.

[3 ]Hallam, Mid. Ages, iii. 208.

[4 ]Of the Great Council, v. supra, p. 263, et seq. The term “Parliament” is first met with, 42 Henry III. Report of Lords’ Comm. 1823, p. 99.

[1 ]See Lords’ Report, 1823, p. 169. 174, &c.

[3 ]Sir M. Hale—Hallam, Mid. A. iii. 213; Palgr. Council, p. 20. In the reign of Edward II. we find “Responsiones factæ coram Rege et magno concilio in parliamento Regis,” Rot. Parl. i. p. 289. The Lords in their Report, p. 268, conclude that the council which gave the answers to petitions, was the select council.

[2 ]Reeves, i. p. 62.

[4 ]Lords’ Report, 1823, p. 297.

[5 ]Palgr. Counc. p. 64. temp. Edward III. Rot. Parl. 9 Henry IV. p. 613; Lords’ Report, 1823, p. 360.

[6 ]Co Litt. 304, a & b.

[7 ]V. int. al. Stat. of the R. i. 109, 20 Edward I. and Report of Committee of the Lords, 1820, ed. 1823, p. 174, p. 451.

[8 ]See Palgr. Council, p. 20.

[9 ]See the Treatise of the Masters, written temp. Eliz., Harg. Law Tracts, 1, p. 298. The Queen’s Council and the Attorney and Solicitor-general appear also to have been members, ib. Indeed down to the time of Charles I. it was considered as inconsistent with the duties of the Attorney-general, who was called by writ to attend the House of Lords, that he should be a member of the House of Commons, Clarendon, Rebell. i. 210, ed. 1721.

[1 ]Report of the Lords’ Committee, 1823, p. 317. 451. Though a little beside the subject, it tends to show how high was considered the honor of serving the king, in any capacity, that he could find persons who did not blush to serve the office of Maris-callus Meretricium in Hospitio Regis. temp. Edward II. Lord Lytt. Henry II. iii. 353.

[2 ]Hardy, Introd. to C. R. p. xxvi.

[3 ]Sir H. Nicholas, Pref. to the proceedings of the Privy Council, p. iii.

[4 ]Reeves, vol. ii. 415; 4 Inst. 61; The stat. 31 Edward III. st. i. c. 12, notices these several chambers of council.

[1 ]Hardy, Introd. to Close Rolls, p. xxvi. Sir H. Nicholas, Privy Council, Pref. p. xxx. Seton.

[2 ]Sir F. Palgrave, Council p. 20, note (k) p. 118.

[3 ]Introduction to Close Rolls, p. xxv.; and see Lord Chief Justice Tindal’s Judgment, Regina v. Mills, in Dom. Proc. Jurist, vii. p. 913.

[1 ]See Lord Strange’s Case, Palgr. Counc. p. 9; ib. 93.

[2 ]Regulations as to the council, &c. 8 Edward I; Ry. Pla. Parl. 442; Legal Jud. in Chancery, 27, 28; Palgr. Council, p. 22. 91. 134; Reeves, i. p. 63.

[3 ]Palgr. Council, 90. 134; the latter writ brought the Cause and the Body of the Defendant, to be dealt with by the council itself.

[4 ]Palgr. C. p. 19.

[5 ]See the Regulations temp. Henry VI. Rot. Parl. iv. p. 201.

[6 ]Palgrave, C. p. 87.

[7 ]Palgrave, C. p. 37.

[1 ]See Parkes’ History of the C. of Ch. p. 37. 39, 43.

[2 ]Rot Parl. iv. 343, et v. ib. 201; Hallam, M. A. 111-216.

[3 ]The title of the earliest Rolls of Parliament extant, viz., 18 Ed. I. vol. i. p. 15, is—“Placita coram Domino Rege et eius consilio ad Parliamenta sua;” and see 1st Report of Lords’ Committee, 1823, p. 170. In the reign of Henry IV. these matters were commonly referred to the Council to report upon, Rot. Parl. 9 Hen. IV. p. 613; Lords’ Report, 1823, p. 360.

[4 ]Legal Judicat. p. 26. An account of the receivers and triers of petitions (who were nominated by the king, Palg. C. p. 125) is given in the 2d volume of Reeves’s Hist. of the Common Law, p. 26, 407, et v. ib. 415. The master or chief clerks of the Chancery were frequently nominated for this purpose.

[5 ]V. int. al. Mem. in Scacc. p. 30; Rot. Parl. iii. 61-2, temp. Rich. II.

[1 ]See Cruise, Dig. cited in the next Note, and Sir H. Nicholas’s Proceedings Privy Council, Pref. p. xxv.

[2 ]Cruise, v. p. 2.

[3 ]Reeves, vol. ii. p. 409; Sir F. Palgrave has ample details on this subject, Council, p. 30. 64. 72. 119. 124, temp. R. II. Ed. I. Ed. II. Ed. III. Hen. IV. particularly as to the Proceedings before “Special Auditors of Errors,” deriving their authority from the Great Council, p. 119.

[4 ]Hallam, M. A. iii. 215; Palgrave, C. 64. See the standing order, Dom. Proc. 9th June, 1660; Lords’ Report, 1823, p. 449, note. The Commons, 1 Hen. IV. acknowledged that they had no right to interfere in judicial matters, Rot. Parl. iii. 427; Lords’ Report, 1823, p. 360.

[5 ]The Masters in Chancery were doomed to descend still lower. “Doctor Barkley,” says the Author of the Treatise of the Masters, (Harg. L. T. p. 298,) “a Master of the Chancery, in the 18th of Elizabeth, sitting in the Parliament House, as the manner is, upon occasion of speech amongst the Lords of certain officers to have certain privileges, he, without asking leave, got up and entered into a speech of desiring that the Masters of Chancery might also be comprised in the said privilege then on foot. This request came so unseasonably, and was so inconsiderately propounded by the said Doctor, as the Lords in general took offence thereat,—some saying that whilst the Queen’s learned Council were silent it were great presumption in him, being one inferior to them [sic], to be so busy. So upon the next day the Serjeant, Attorney, and Solicitor took place above the Masters in Chancery there, which before time had never been done; and ever since, not only they, but Serjeants-at-Law also, do it generally at all public meetings, upon this reason that they took place before the Attorney and solicitor,” (Ibid. abridged.)

[1 ]It is supposed that the king’s chapel was used for keeping the records, and that it was from this custom, partly, that the Chancellor, who had the care of the king’s chapel, came to be so much connected with the diplomas and archives, Introd. to C. R. p. xxvii. note, and Spelman hac Voce.

[2 ]In the time of Edward IV., when the Chancery was, as we shall see, completely established as a court of extraordinary jurisdiction, all the judges of England affirm that the Chancery, King’s Bench, Common Pleas, and Exchequer, are all the king’s courts, and have been so time out of mind, so that no man knoweth which is most ancient, 8 Co. Præf. xvi. Lord C. J. Hobart also treats the Court of Chancery as a court of equity, and the courts of law, equally as fundamental courts. In the 11th year of James I. it was resolved by the Lord Chancellor, Chief Justice of England, Master of the Rolls, and two justices, that the king cannot grant a commission to determine any matter of equity (i. e. to constitute a new tribunal); but it ought to be determined in the Court of Chancery, which hath jurisdiction in such case, out of mind, and had always such allowance in law, 12 Rep. fol. 114, Earl of Derby’s case. But neither Glanville, who wrote in the reign of Henry II., Bracton in the time of Henry III., or Briton in the time of Edward I., and who expressly treats of courts, nor Fleta, nor Hengham, nor the Book entitled “Diversity of Courts,” mentions the Court of Chancery as a court of equity. The only extraordinary jurisdiction referred to in these early writers, is that which was exercised by the king himself, advised, no doubt, by his council, or the Chancellor the chief member.

[1 ]M. Par. ad. Ann. 1231, p. 312.

[2 ]Lord Lytt. Henry II., vol. ii. 480; Parkes, 42; 3 Bla. Com. p. 51, note; and Introd. to Close Rolls, by Hardy, p. xxviii., note, Sir H. Seton, p. 8.

[3 ]Discourse of the Judicial authority of the M. R. page 86. “Prout de jure et Gratia Curiæ videritis facienda,” 5 Edward I.; et ib. p. 87. In the 12 Edward I. a writ directed by the king to I. de Kirkby clerico suo, commands him to do “quale de Jure et gratia Cancellariæ” ought to be done.

[4 ]Discourse, &c. prf. p. cxii.; Petition of the Commons, 45 Edward III. 1 Roll, Ab. 372; Introd. to Close Rolls, p. xxviii. The Court of Chancery appears at this time to have been considered as the proper tribunal for a widow to obtain her dower, Mem. in Scacc. Y. B. vol. i. p. 38, and see Lord Campbell’s Lives, i. p. 186-7.

[1 ]Claus. Ann. 8 Edward I., Ryl. Plac. Carl. 442; Legal Jud. 27, 28; Hardy, Introd. C. R. xxviii.

[2 ]See Lives of the Chancellors, i. p. 206 to 209; and see Legal Jud. in Ch. p. 11, Rot. Parl. 18 Edward II. No. 43. i. p. 428. “Sequator in Cancellaria et ibi habeat quod justitia, &c.”

[3 ]3 Bla. Com. 256, Harg. L. T. 299.

[4 ]Leg. Jud. p. 18; Coke’s Entries, 419 d. 422.

[5 ]As under 11th Edw. I. Stat. of Acton Burnell, Leg. Jud. p. 11.

[6 ]Legal Judicature, p. 9. 17; Ld. Ellesmere, Treatise on Co. of Ch. 27. 29; Coke’s Entries, 438. 678; Palgr. Council, 95, et v. Reg. Lib. A. 1566-7, fo. 91.

[7 ]Fitz N. B. Crompton, 47 a. We find the remains of this jurisdiction as regards copyholds, temp. Ja. I. Vin. Abr. iv. 385.

[1 ]Crompton, 47 a.

[2 ]Discourse of the judicial authority of M. R. p. 4; Legal Jud. in Ch. p. 15, and Documents there cited; 4 Inst. 79. Some of these authorities relate to a later period, but there is no reason to believe that any of the matters above referred to were of subsequent introduction.

[3 ]Sir. F. Palgr. Council, p. 92.

[4 ]Sir F. Palgr. Council, p. 95. Recognizances were also, as we shall see, imported into the extraordinary jurisdiction, and made use of to bind the parties to do right and justice.

[5 ]Int. al. Reg. Lib. B. 1571 to 7 A. fo. 2, Temp. Eliz. A. 1573, fo. 27.

[6 ]Introd. to Close Rolls, p. xxix. Seton, p. 9; Calendar of proceedings in Chancery by the Record Commissioners, i. fo. 1, 2, 3, 68; a great part of this Jurisdiction was transferred to the Court of Augmentations by 33 H. VIII. c. 39, Seton, p. 34.

[7 ]1 Roll. Ab. 372. It was conceded, 39 Hen. VI., that the king had the option to sue in Chancery or at Common Law, Brooke, Prerog. 45, et Rot. Parl. 45 Edw. III. No. 24; Vin. Abr. iv. 380.

[8 ]3 Bla. Comm. 49.

[9 ]Ld. Ellesmere, p. 45.

[1 ]The stat. 20 Edw. III. c. 6, (Stat. of the R. vol. i. p. 305,) gave a summary jurisdiction to the Chancellor and Treasurer in respect of misdemeanors of officers; 36 Edw. III. c. 9, gave a similar jurisdiction to the Chancery; the 27 Edw. III. c. 1, enforced 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.

[2 ]Introd. to Close Rolls, p. xxviii. The Writ (22 Edw. III.) is there stated; and in Legal Judicature in Chancery, p. 30.

[3 ]See Legal Judicature in Chancery, p. 31.

[1 ]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-law, 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.

[2 ]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 accustomed 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.

[3 ]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 subpœna 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.

[4 ]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.

[1 ]Spence p. 385.

[2 ]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.

[3 ]V. supra, p. 223, et v. inf. tit. “Equity and Conscience.”

[4 ]“It is as old as Bracton,” Sir T. Clarke, M. R., Burgess v. Wheate, 1 Eden, 194; v. supra, p. 321.

[5 ]Lord Coke, Com. Journ. i. p. 574, ad 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.

[6 ]Fleta seems to have considered it as almost imperative that a dignified ecclesiastic should be appointed; his words are, “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.

[1 ]4 Inst. 79; one of the instances may be seen in the Year Book, 17 Edward III. fo. 14.

[2 ]Hardy’s Catalogue, p. 40.

[3 ]Rot. Parl. 45 E. III. No. 15, p. 304; 4 Inst. 79; and see Lord Campbell’s Lives of the Chancellor’s.

[4 ]It appears from Dugdale’s and Hardy’s Catalogues, and from the 3 R. II. to 3 R. III. all the Chancellors were ecclesiastics.

[5 ]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.

[1 ]Parkes’s History of the Court of Chancery, p. 34.

[2 ]By stat. 1 Edw. III. stat. 2, c. 15; 2 Edw. III. c. 6; 18 Edw. III. stat. 2, c. 3, and 31 Edw. III. c. 1.

[1 ]These statutes were extended by 8th 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 provisions 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, Spence, p. 221, the doctrine was of Roman original.

[2 ]By the answer to the petition it would rather appear that it was the Common Law Court that was referred to on this occasion.

[3 ]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.

[4 ]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.

[5 ]M. Par. ad. ad 1258.

[1 ]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.

[2 ]See their petitions, 3 Rich. II. No. 49, Rot. Parl. III. p. 44, Parkes, p. 39; like petition, 7 Rich. II. Introd. to Clo. Rolls, p. xxix.

[3 ]There were two lay Chancellors (2 & 5 Rich. II.) at the beginning of this reign, but from the 3d year to the end of this reign (with the short exception of the appointment of Sir M. de la Pole, 6 Rich. II.) the Chancellors were ecclesiastics; two archbishops, and five bishops held the office in this reign.

[4 ]See Additional Note 1, Spence, Equitable Jurisdiction of the Court of Chancery, p. 353.

[5 ]Lord Ellesmere (Treatise, p. 21) describing the Court, says, “It is the refuge of the poor and afflicted—it is the altar and sanctuary for such as, against the might of rich men and the countenance of great men, cannot maintain the goodness of their cause and truth of their title.” In the time of Hen. VI. we find it expressly recognized, that a man should have a subpœna against a great man to keep the peace, Crompton, 42 a.

[1 ]V. infra, and Sir H. Seton on the Court of Chancery, p. 5 and p. 18.

[2 ]The ordinances for the regulation of the offices and officers of the Courts of Chancery, hereafter particularly noticed, were made 12 Rich. II. In the Treatise of the Masters of the Chancery, Harg. Law. Tr. 309, it is stated, referring to Rot. Parl. 15 Rich. II. p. 1, that the patent appointing Chancellor Preston ran in these large terms,—“ad omnia et singula quæ ad expeditionem legum, et bonum regimen terræ necessario requiruntur.” Preston was not Chancellor, he was Lord Keeper of the Great Seal in Ireland, Cal. Rot. Parl. 15 Rich. II. No. 27. But this writ may perhaps be taken as an indication of what the powers of the Chancellor in both kingdoms were considered to be, in the precincts of the palace at least.

[3 ]Hardy’s Preface to the Calendars, p. xxv. xxvii.

[4 ]See Spence, Equitable Jurisdiction of the Court of Chancery, Book III. title, Obsolete Jurisdiction of the Court of Chancery.

[1 ]13 Rich. II. No. 30, Rot. Parl. iii. 266; Palg. Council, p. 70; Hardy, Introduction to Close Rolls, p. xxix; Legal Jud. p. 32; 4 Inst. 82.

[2 ]Summary by Sir H. Seton, 21, 23, 24.

[3 ]28 Edw. III. c. 3; 39 Edw. III. c. 14; 42 Edw. III. c. 3; Crompt. 41 b; Lord Ellesmere’s Treatise, p. 53.

[1 ]Calendars, i. p. 6, 11, 12.

[2 ]The writ temp. R. II. set out Cal. vol. i. p. 5, runs, “Coram nobis et dicto consilio nostro in cancellariâ.”

[3 ]See the petitions of the Commons, 12 R. II. & 17 R. II. sup.; and 3 Hen. V. ad 1415; Rot. Parl. vol. iv. p. 84, No. 46; Parkes, p. 47.

[4 ]Cal. vol. i. p. 1, 2, &c. The notices of the decrees made in this reign that have come down to us are few, but we have some memorials of the decrees and injunctions of that time. See Moore’s Rep. p. 554; and the Dict. of Egerton, Lord K., 2 Inst. 553, 4 Inst. 83.

[5 ]See the case, Rot. Parl. 17 R. II. 2 Inst. 553, 4 Inst. 83.

[1 ]Rot. Parl. iii. p. 297; Introd. to Close Rolls, xxix. n.; and see Proceedings of Privy Council, by Sir Harris Nicholas, p. 18; Seton, p. 17, and Rot. Parl. iii. p. 258, 9.

[2 ]See particularly the letter of Henry V. to his Chancellor, Cal. vol. i. p. 16; and see Sir H. Seton, p. 106.

[3 ]John de Scarle, Master of the Rolls, was made Chancellor and Keeper of the Seal, 1 Edw. IV., Dugdale.

[4 ]See Ranke’s Hist. of the Popes, i. 35, Mrs. Austin’s edition, and the general histories of the times. It was in this reign, as it will be remembered, that the famous Wickliffe flourished.

[1 ]Rot. Parl. 11 Rich. II. Pref. to Sir J. Davis’s Rep. and Duck. xxvi. viii.

[1 ]Many quotations establishing this fact, will be found in the pages of Spence, Equitable Jurisdiction of the Court of Chancery, particularly under the title Injunction; and I may refer to Mr. Parke’s History of the Court of Chancery, during the reigns of Henry VIII., Elizabeth, and James, to supply the rest.

[2 ]Hargr. Law Tracts, p. 327. This treatise was written against St. Germain’s Doctor and Student; there is a reply to it in the same collection, p. 332.

[3 ]One of his illustrations is, that relief was given where the amount secured by a bond or recognizance had been paid, and no release obtained. When a bill, says he, has been made to them (the Chancellors) that such a man should have great wrong to be compelled to pay two times for one thing, the Chancellor, not knowing the goodness of the Common Law, has temorously directed a subpœna to the plaintiff, commanding him to cease his suit (referring, no doubt, to Doctor and Student, c. 12, where it is so laid down; also by Lord Ellesmere, p. 106); and he, regarding no law, but trusting to his own wit and wisdom, giveth judgment as it pleaseth him; Hargrave’s Tracts, p. 326. It was held by Fairfax, and Hussey, J., in the Exchequer Chamber, 22 Edw. IV. 6, that no subpœna should issue in such case, for that the testimony of two witnesses should not defeat a matter of record, or specialty; even the Chancellor agreed as to matter of record.

[4 ]See the denunciations against the false and crafty invention, and the continuance, of Uses, ib. p. 329. Lord Bacon (Read. p. 40) notices the immoderate invectives against Uses which were current in his time. I have endeavored, as matter of curiosity, to ascertain whether the renewal of Uses, under the form of Trusts, took place under the lay or clerical Chancellors, who held the seals after the passing of the Statute of Uses. The first decision on the subject recorded by Tothill, is 9 Car. I., that would have been under Lord K. Coventry, who was appointed 1 Car. I. Williams, Bishop of Lincoln, immediately preceded him; but the date given in Tothill, as usual, is incorrect; there is no notice of such a cause in that year; the decisions at law, which caused the introduction of Trusts, took place during the Chancellorship of Heath, A. B., of York, Dyer, 155 a, Tyrrell’s case; and it is not improbable that it was the Archbishop who made the first decree establishing a modern Trust. If the old Registrar’s books had been moderately legible, I might possibly have looked through them, to solve this, and some other questions still remaining, as to the early jurisdiction of the court.

[1 ]See the petitions, Vin. Abr. iv. 378.

[2 ]4 Hen. IV. c. 23, Crompt. 41 b.

[3 ]Dodd v. Browning, Cal. i. p. 13. The proceedings after this time became distinguished as by “English Bill.”

[4 ]Petition of the Commons, 3 Hen. V. Rot. Parl. iv. p. 84, &c.; the answer was, Le Roy soy avisera. See Introd. Clo. R. xxx. Leg. Jud. 33. It was on a similar petition, 15 Hen. VI., that the statute or ordinance mentioned in the text was framed.

[5 ]See the Petition, 8 Hen. IV., cited Parkes, 47; though the reference is incorrect; 9 Hen. V. Rot. Parl. iv. p. 156; 1 Hen. VI. Rot. Parl. iv. p. 189; and see Palgr. Council, 49, 50.

[1 ]See the case as to waste, temp. Rich. II. cited by Lord K. Egerton, 41 Eliz. Moore’s Reports, p. 554; and the observations of Fairfax, J., temp. Edw. IV. Y. B. 21 Edw. IV. fo. 23; Brooke’s Abr. title “Conscience,” affords many such instances.

[2 ]Petition of Commons, 8 Hen. V. Rot. Part. iv. 127, No. 12; and see Report of Lords’ Committee (1823), p. 368.

[3 ]Rot. Parl. iii. p. 633, No. 43; ibid. iv. 151; Cruise, i. p. 392.

[4 ]See Additional Note (2), p. 353, Spence, Equitable Jurisdiction of the Court of Chancery.

[5 ]Cal. vol. ii. p. 16. 31; vol. i. p. 51, 52; Palgr. Council, 97. In the 6 Hen. VI. Rot. Parl. vol. iv. p. 321-2, No. 17, is a petition by two executors against a third, who had wasted the testator’s goods, which was presented to the Commons, and was carried by them to the Lords; it was thereupon ordered in Parliament, that the Chancellor to whom the matter was referred, should hear and determine the matter as “good faith and conscience” should require, Palgr. Council, p. 77.

[6 ]Pref. to Cal.

[7 ]3 Bla. Comm. i. p. 53; Palgr. Coun. 97. In some cases the parties were referred to Parliament, Crompt. 46 b.

[8 ]Y. B. 9 Edw. IV.; 22 Edw. IV.; Crompt. 41 b, &c.

[9 ]Palgr. Council, 97.

[1 ]2 Hen. V. stat. 1, c. 9; 33 Hen. VI. c. 1; Palgr. Council, p. 94.

[2 ]See Clarendon’s Hist. of the Rebellion, ed. 1721, i. p. 285; 4 Inst. 60, 61; the stat. 27 Edw. III. against those who appealed to the Papal Court, recognizes this Council as distinct from the Chancery.

[1 ]See Reg. Lib. B. 1579, fo. 479.

[2 ]Int. al. forcible entry, Reg. Lib. B. 1587, fo. 626.

[3 ]4 Inst. 63; Hob. Rep. p. 62, &c.; Sir F. Palgr. Council, 97.

[4 ]4 Inst. 61. 63; Sir F. Palgr. Council, p. 4.

[5 ]Reg. Lib. B. 1579, fo. 479.

[6 ]Clarendon, Rebell. i. 215.

[1 ]Spence, p. 337.

[2 ]The Lord Keeper “moved with compassion towards the poor man,” applied to the Master of the Requests to take order of a suit instituted in Chancery to be relieved from mistake, Reg. Lib. 5 & 6 Eliz. fo. 471.

[3 ]Palgrave, Council, 79, 99; and see stat. 16 Car. I. c. 10; Seton, p. 18; 4 Inst. 97; 3 Bla. Comm. 50, Christian’s note.

[1 ]See Palgr. Council, 27. 32, 33. 126.

[2 ]At the Parliament of Northampton, 2 Edw. III.

[3 ]See Palgr. Counc. 32-3, et v. ib. 126-7, 9.

[4 ]Petition of the Commons, 3 Hen. V. ad 1415, Parkes, p. 48, 50.

[5 ]Sir H. Seton has given a short account of them, p. 3. 10, 12. And see Lord Redesdale, Pleading, by Jeremy, p. 6. 151.

[6 ]Hoveden, 707, 29; Heywood, p. 85.

[7 ]Stat. 15 R. II. c. 13.