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

42.

COMMON LAW AND CONSCIENCE IN THE ANCIENT COURT OF CHANCERY1

By Luke Owen Pike2

IT has commonly been supposed that the equitable jurisdiction of the Court of Chancery was altogether different in origin from its ordinary or common law jurisdiction. The opinion is, perhaps, not inconsistent with the evidence upon which it was formed, but seems to deserve reconsideration in connection with three distinct but closely associated branches of enquiry. These are:—

• (1) The functions of the Chancery as the Officina Brevium or fountain-head of justice sending forth its remedies for wrongs in the form of Original Writs returnable in other Courts.
• (2) The judicial functions of the Chancery in proceedings commenced otherwise than by Bill.
• (3) The judicial functions of the Chancery in proceedings commenced by Bill.

The first of these three subjects appears to have been commonly regarded as being less closely connected with the other two than it really was; and the last two appear to have been insufficiently illustrated by early cases.

There was a doctrine, so old that it is difficult to fix its age with precision, according to which there could not be any wrong which had not its appropriate legal remedy. The remedy existed in the form of the Original Writ which issued out of the Chancery upon a proper representation there of the facts to which it was to be adapted. It was, however, very soon found that this theory, though most satisfactory as a theory, was sometimes a little at variance with the exigencies of every-day practice and the circumstances of human life. The difficulty was recognised in the Statute of Westminster the Second, c. 24. By that Act an attempt was made to provide for cases to which the writs in the Chancery Register were not strictly applicable. The conclusion is of great importance in relation to the subject now under consideration:—‘And whensoever it shall happen from henceforth in the Chancery that in one case a writ is found, and that in like case falling under the same law and needing like remedy a writ is not found, let the Clerks of the Chancery agree in making a writ, or adjourn the complainants to the next Parliament. And let the cases in which they cannot agree be set forth in writing, and let the Clerks refer the cases to the next Parliament. And let a writ be made by agreement among men learned in the law, so that it happen not from henceforth that the Court of the Lord the King do fail complainants when seeking justice.’1

The Chancery is here recognised as the place in which new remedies are to be devised when necessary, but subject, in cases of extraordinary difficulty, to a reference to Parliament and the assistance of those who are learned in the law. The reference to Parliament and the agreement of men learned in the law appear at first sight to be somewhat abruptly brought into juxtaposition. But the Judges were members of the Council; petitions were commonly presented to the King ‘in his Council in his Parliament’ in relation to suits actually pending in various Courts; and, as will presently appear, decisions were given on judicial proceedings in the Chancery ‘de avisamento peritorum de Concilio.’ The Council, in fact, or the Council in Parliament, exercised a general supervision over all legal matters, though for certain purposes the Chancery was regarded as an office of Parliament.

If, now, we consider for a moment the judicial proceedings on what is usually called the Common Law side of the Court, under what is usually called its ordinary jurisdiction, we shall find much to remind us of the Act which provided for writs in consimili casu. In cases of Scire facias to repeal Letters Patent or upon Recognisances in the Chancery, and in Traverses of Office, the nature of the jurisdiction exercised may be best understood by the aid of the form in which the judgment was given. Without always preserving exact verbal identity it preserved a general uniformity in its outline or framework. Judgments of this kind have been preserved in considerable numbers in filaciis Cancellariae among a class of documents usually assigned to the common law side of the Court and now known as ‘County Placita.’ The following instances may sufficiently illustrate the subject:—‘Habita plena deliberatione cum toto Concilio domini Regis, videtur Curiae,’ &c.; ‘De avisamento Justiciariorum et Servientium ipsius domini Regis ad Legem, ac aliorum peritorum de Concilio ejusdem domini Regis in eadem Cancellaria ad tunc existentium, consideratum fuit quod literae praedictae revocentur et adnullentur;’ ‘De avisamento domini Cancellarii Angliae, Justiciariorum, Servientium ad Legem, et Attornati ipsius domini Regis consideratum est,’ &c.

From these examples, ranging in date from the reign of Edward III. to that of Henry VI., it will be seen that judicial functions in the Chancery, even on the so-called Common Law side, were not always, if ever, exercised by the Chancellor alone. The authority of the Council or of constituent members of the Council was commonly asserted, or at any rate their advice was considered necessary. The proceedings are thus wholly distinct from those in the Courts of King’s Bench and Common Pleas, where (though points of law might be referred to the Council during the progress of an action) judgment was given on the authority of the Justices of those courts respectively.

These facts should be borne in mind in considering the case of Hals and others v. Hyncley,1 to call attention to which is one of the principal objects of this article. It is probably the earliest (being of the reign of Henry V.) in which proceedings by Bill addressed to the Chancellor can be traced from the Bill itself to the decision. It was clearly not at common law, because the want of a common law remedy was the ground of the Bill, and yet it bears in many respects the strongest resemblance to proceedings which have in later times been thought to belong to the Common Law side of the Chancery.

The general heading or description of the proceedings is in the same form as the headings or descriptions of proceedings upon Scire facias. It is, perhaps, worth quoting in its entirety:—

‘Placita coram Domino Rege in Cancellaria sua apud Westmonasterium in Octabis Sancti Michaelis anno regni Regis Henrici quinti post Conquestum septimo.’

Then follows a statement commencing, ‘Be it remembered’ (‘Memorandum’ in the original Latin) to the effect that John Hals, William Clopton, esquire, Robert Chichele, Thomas Knolles, William Cavendish, citizens of London, Robert Cavendish, John Tendryng the younger, William Bartilmewe, chaplain, James Hog, and Philip Morcell had exhibited ‘venerabili in Christo patri Thomae Episcopo Dunolmensi, Cancellario Angliae, quandam Billam, quae sequitur in haec verba.’

The Bill (which, it will be seen, itself suggests the idea of a Scire facias towards the end) is in French, and may be thus translated:—

John Hals [and the other plaintiffs, as above] very humbly pray [supplient] that (whereas one John Hyncley, of Thurlow in the County of Suffolk, esquire, has wrongfully disseised the said orators [suppliauntz], since the last passage of our Sovereign Lord the King to the parts of Normandy, of the manor of Pentlow and the advowson of the church of the vill of Pentlow with their appurtenances in the vill and lordship of Pentlow, whereof they were in peaceable possession at the time of the same passage, and it was so ordained by our same Sovereign Lord the King, upon his said passage, that no assise of Novel Disseisin should be prosecuted against any person whatsoever until our said Lord the King should return into England, wherefore they cannot have remedy by assise of Novel Disseisin to recover the said manor with the advowson and appurtenances aforesaid, to the great damage and annihilation of the poor estate of the said orators if they be not aided by your very gracious Lordship in this behalf) it may please your very gracious Lordship to consider this matter, and thereupon to command the said defendant to answer to the said orators in respect of the disseisin aforesaid, and whether he hath or knoweth anything to say for himself1 wherefore the said orators should not be restored to their former possession of the manor with the advowson of the church and appurtenances aforesaid together with the issues and profits thereof in the meantime taken, for the sake of God and as a work of charity (‘pur Dieu et en eovere de charite’).

The subpoena, to compel Hyncley’s appearance, then appears at length. Both the writ and all the subsequent proceedings are in Latin.

Hyncley appeared, prayed and had oyer of the Bill, and then answered or pleaded2 to the following effect:—

One John de Cavendish, being seised of the manor and advowson, enfeoffed thereof one Andrew Cavendish and Rose his wife to hold to them and the heirs of the body of Andrew. Andrew and Rose were seised, and had issue William, who is still living and with the King in Normandy. Andrew died seised, and Rose, who survived him, leased the manor and appurtenances to one Thomas Clerk for a term of years still unexpired and, during that term, executed a charter of feoffment of the manor and advowson to John Hals and other feoffees (being the plaintiffs named in the Bill), and a letter of attorney directing certain persons to give livery of seisin to the feoffees. The feoffees and the persons named in the letter of attorney went to the manor with the intention respectively of receiving and giving livery of seisin, but the tenant for years did not and would not attorn to the feoffees. Rose thereafter took the profits of the manor to her own use, and so died seised thereof in her demesne as of free-hold. After her death John Hyncley, the defendant, as father of Katharine, the wife of Andrew’s son William and his next friend, at the time at which the disseisin is supposed to have been made, while William was abroad with the King, entered upon the manor and took and is at present taking the profits thereof to the use of William and with his consent. And Hals and the other feoffees, by colour of the charter and letter of attorney, would have entered upon the manor upon the possession of William and expelled him therefrom, and this John Hyncley, the defendant, would not permit them to do. ‘Quæ omnia et singula idem Johannes paratus est verificare, pro-ut Curia, &c. Unde non intendit quod prædictus Johannes Hals et alii feoffati prædicti restitutionem manerii prædicti cum pertinentiis habere debeant, &c.’

The plaintiffs (saying by way of protestation that they did not admit the allegations of the defendant) replied to the effect that Rose was seised in her demesne as of fee of the manor and advowson, and enfeoffed thereof John Hals and the other feoffees, long before the King’s last passage into Normandy, and while William was in England, and that Thomas Clerk, the tenant for years, attorned to them so that they were seised of the manor and advowson in their demesne as of fee long before the last passage of the King into Normandy. And afterwards Rose by a deed (produced in Court) released to the feoffees then in possession of the manor and advowson all her right and estate therein, and bound herself and her heirs to warranty. And now her heir is William. And Rose had nothing in the manor and advowson, nor did she take any profits thereof, after the feoffment, except at the will of the feoffees; and they were seised until driven out by the defendant after the last passage of the King into Normandy ‘in forma qua ipsi per Billam suam prædictam supponunt. Et hoc parati sunt verificare, &c. Unde, ex quo prædictus Johannes Hyncley expresse cognovit expulsionem prædictam, petunt quod ipsi ad possessionem manerii prædicti una eum exitibus et proficuis inde a tempore expulsionis prædictæ in forma prædicta factæ restituantur, &c.’

The defendant (saying by way of protestation that he did not admit that Rose had ever been seised in her demesne as of fee, or had released to the feoffees, as they alleged), rejoined that Rose died seised of the manor and advowson as he had previously alleged, absque hoc that the tenant for years attorned to the feoffees, and absque hoc that the feoffees had any thing in the manor and advowson at the time at which the release was supposed to have been made. ‘Et hoc paratus est verificare pro-ut Curia, &c. Unde petit judicium, et quod prædictus Johannes Hals et alii feoffati prædicti de restitutione sua manerii prædicti in hac parte præcludantur, &c.’

The plaintiffs sur-rejoined that Rose was seised and enfeoffed them, that the tenant for years attorned, and that Rose released to them while they were in full possession of the manor, as they had previously alleged, absque hoc that Rose died seised of the manor and advowson, or took any profits thereof after the feoffment, except at the will of the feoffees. ‘Et hæc omnia petunt quod inquirantur per patriam.’

The defendant joined issue—‘et prædictus Johannes Hyncley similiter’—just as in any other Court.

The issue was tried in a manner which is very remarkable. It was not sent into any other Court, but was treated as the subject of an Inquisition to be returned into the Chancery in the same manner as an Inquisition post mortem or other Inquest of Office. The special commission to take inquisition or verdict appears among the proceedings:—

‘Henry, by the grace of God, King of England and France, and Lord of Ireland, to his beloved and faithful William Hankeford, Richard Norton, and William Cheyne, greeting. Know that we have assigned you jointly and severally to enquire by the oath of good and lawful men of the county of Essex by whom the truth of the matter may best be known whether’ &c. [Here follow at length the allegations made on both sides, which it is unnecessary to repeat.] And if the jurors found in accordance with the allegations of the plaintiffs they were further to enquire on what day the expulsion from the manor and advowson took place, and the value of the manor per annum, ‘and the truth respecting all other points and circumstances in any way concerning the premises. And therefore we command you that at certain days and places which ye shall have appointed for this purpose, ye make diligent Inquisitions on the premises and send them clearly and openly made without delay, to us in our Chancery, under your seals or the seal of one of you, and under the seals of those by whom they shall have been made.’

Hankeford alone took the Inquisition and returned it into the Chancery. The jurors found in accordance with the allegations of the plaintiffs, stating also the day of the expulsion and the value of the manor per annum. ‘In cujus rei testimonium juratores prædicti huic Inquisitioni sigilla sua apposuerunt.’

Thereupon the plaintiffs ‘venerunt coram ipso domino Rege in Cancellaria sua prædicta,’ and prayed that they might be restored to their possession of the manor and advowson, together with the mesne profits, according to the form and effect of their Bill.

Then follows the judgment in these words:—‘Super quo, habita super præmissis matura et diligenti deliberatione cum Justiciariis, et Servientibus dicti domini Regis ad Legem, ac aliis peritis de Concilio suo in Cancellaria prædicta existentibus, de eorum avisamento consideratum est quod prædicti Johannes Hals, Willelmus Clopton, Robertus, Thomas Knolles, Willelmus, Cavendisshe, Robertus, Johannes Tendryng, Willelmus Bartilmewe, Jacobus, et Philippus ad possessionem suam manerii et advocationis prædictorum cum pertinentiis, una cum exitibus de eodem manerio a prædicto die Mercurii perceptis, restituantur.’

With the exception that they were commenced by Bill, and that appearance was compelled by subpoena, the whole of the proceedings resembled those on the so-called Common Law side of the Court. The pleadings between the Bill and the joinder of issue were, except in the conclusions praying for restitution or refusal of restitution, just such as might have been used in the Court of Common Pleas; and the final conclusion to the country with the similiter was in the ordinary common law form. The mode of arriving at the truth concerning the facts upon which issue was joined was simply that with which the Chancery had long been familiar in the ordinary Inquests of Office.

A word or two, however, may be necessary in relation to the persons who were appointed Commissioners for the purpose of taking the Inquest, Inquisition, or verdict. It will be observed that they are not described as Justices, or as holding any office, but simply as ‘dilecti et fideles.’ But as they were named William Hankeford, Richard Norton, and William Cheyne, and as the Chief Justice of the King’s Bench was named William Hankeford, the Chief Justice of the Common Pleas Richard Norton, and a puisne Judge of the King’s Bench William Cheyne, the triple coincidence leaves hardly any room for doubt that the Commissioners may thus be identified. They were no doubt included among those Justices and members of the Council upon deliberation with whom the judgment was ultimately given.

The Court, therefore, which heard the cause, and which, whatever may be its proper designation, gave judgment as prayed in the Bill addressed to the Chancellor, practically never lost sight of the matter even when the parties concluded to the country. The Letters Patent nominating the Commissioners passed under the Great Seal. The warrant—whether ‘by the King himself’—‘by writ of Privy Seal’—or otherwise—does not appear. But the whole transaction was very different from that of sending an issue to be tried in another Court, and comes very near if it does not actually amount to the calling of a jury by the authority of the Chancery itself for the purpose of trying an issue joined in the Chancery. This, it has generally been said, the Chancery had not the power to do. It is however clear that a power existed, and was actually exercised, to obtain the verdict of a jury in proceedings by Bill addressed to the Chancellor without the aid of the Courts of King’s Bench or Common Pleas. The power did not, perhaps, exist in the Court of Chancery, but may have been derived from a higher source. The Petition or Bill to the Chancellor was only a substitute for a Petition to the King, or King in Council, or King in Council in Parliament, the proceedings were before the King in his Chancery, and judgment was not given without the advice of the Council. The Chancery, in fact, appears to have been regarded as an office connected with the Council and Parliament, and, being the office for the issue of original Writs, was the most natural place for the discussion of the proper remedy when, for any reason, an Original Writ was inapplicable. A Commission to enquire concerning certain matters as well as for other purposes could, of course, issue under the Great Seal by authority of the King in Council. If, then, the whole proceedings are regarded as being under the King and Council, through some general delegation of power to the Chancellor to receive and examine Petitions or Bills, there is a complete unity of jurisdiction throughout.

It will be observed that the decision is in the form of a Judgment (‘consideratum est’), and not of a Decree (‘ordinatum et decretum est’), and that judgment (‘judicium’) was prayed in the course of the pleadings. It is commonly stated that there was a decree in Chancery as early as the reign of Richard II.; and could such a decree be produced it would be of great value for comparison with the proceedings in Hals and others v. Hyncley. That decrees were made by the King with the advice of his Council in the reign of Richard II. is a fact which admits of no dispute, but that they were made in Chancery, or in consequence of a Bill presented to the Chancellor, has yet to be shown. The proceedings in Hals and others v. Hyncley render it far more probable that the first decisions upon a Bill in Chancery took the form of judgments, and that the adoption of the form of a decree resembling that in which the King and Council administered extraordinary remedies, was of later date.

Sir Edward Coke, whose authority was once regarded as almost infallible, is responsible for a statement often copied and commonly accepted that the first known Chancery Decree was in the seventeenth year of the reign of Richard II. It is strange that so painstaking an author as Spence should have accepted Coke’s assertion on this point without referring to the authority which Coke gave. Had he taken this simple precaution he would never have written the following sentence and note: ‘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. See the case Rot. Parl. 17 R. II. 2 Inst. 553, 4 Inst. 83.’1 Even in the cited passages in the Institutes there is little to warrant Spence’s general proposition, for Coke merely says that the Chancellor ‘confirmed by his decree the King’s award made by the advice of his Council.’ Had the Chancellor really done this it would have been a very memorable proceeding, but, as a matter of fact, he did nothing of the kind.

Coke’s account of the case is erroneous in many particulars. He has not even correctly stated the names of the parties. What appears upon the Roll of Parliament2 is briefly this. There is a Petition of John de Wyndesore to the King and to the ‘tres sages Seignours de Parlement.’ It contains a very long recital to the effect that the Petitioner and ‘Monsire Robert de Lisle’ had put themselves upon the order, award, and judgment of the King in respect of all disputes relating to certain manors; that the King had charged and commanded his Council to hear and examine the matters in dispute; that it appeared to the Council that Wyndesore had been ousted by De Lisle from the manors; that the King by advice of his Council ordered and decreed (‘ordeigna et decrea’) that Wyndesore should be restored to his previous estate in the manors; and that while Wyndesore was suing the necessary writs to be restored in accordance with the decree, Richard le Scrope purchased the manors of De Lisle by champerty, so that no execution could be had. Wyndesore therefore prayed restitution in accordance with the Decree made, not by the Chancellor but by the King with the advice of his Council.

His petition was read in Parliament, and various documents relating to the matter were there exhibited, including some produced by the Keeper of the Privy Seal and the Keeper (custos) of the Rolls. Among these was the King’s writ of Privy Seal, reciting the decree of the King and Council, and directing the Chancellor ‘to cause to be made out writs under our Great Seal, in due form, to the said Robert that he make restitution to the same John of the manors,’ &c., ‘and also to our Sheriff of the said county of Cambridge, that he be intendent’ in carrying out the restitution. The writs drawn pursuant to these instructions and enrolled were also read. In them the King’s Decree is recited (ordinavimus et decrevimus, &c.). The operative part of the writ, or, as Coke calls it, ‘Injunction,’ addressed to De Lisle, is ‘ideo vobis mandamus quod restitui faciatis,’ and equivalent words are used in the writ addressed to the Sheriff. The Decree is throughout described as the Decree of the King, made by the advice of his Council; and the authority given to the Chancellor under the Privy Seal, is expressly limited to that of preparing and issuing writs, ‘de executione Decreti facienda.’

Upon a subsequent petition from De Lisle, the King sent another writ of Privy Seal, directing the Chancellor to prepare Letters Patent to the effect that Wyndesore was to be left to his remedy at common law, ‘aliqua ordinatione seu decreto per nos in contrarium factis non obstantibus.’ Thus, even after the supposed ‘confirmation’ in Chancery, the decree is described in the same words as before. From first to last there is no decree in Chancery mentioned, for the simple reason that no decree in Chancery was made.

Spence has cited another alleged decree in Chancery of the reign of Richard II. upon the authority of Sir Francis Moore’s Reports.1 In the place to which he refers there certainly do occur the words ‘Decree en Chancery per ladvice des Judges’ as applied to something which happened in the reign of Richard II.; but they occur in such a manner as at once to suggest a doubt and to render verification impossible. The report or note consists of a few lines only; there is nothing to show at what time it was made by Moore (who was King’s Serjeant in the 12th year of James I.), and it is referred to the forty-first year of the reign of Elizabeth. In Easter Term in that year it is stated that Egerton, then Keeper of the Great Seal, said he had seen a precedent (‘president’) of the time of Richard II., to which he applied the above words ‘decree,’ &c. But neither the year of the reign nor the names of the parties are given, and any attempt to identify the case in any contemporary documents would therefore necessarily be vain. The actual words in the report can be accepted only as subject to all the following possible causes of error:—that Egerton did not care to distinguish carefully between a decree made by the King with the advice of his Council, and a decree made by the Chancellor; that Moore did not quote the precise words of Egerton in his manuscript notes; that the notes may have been inaccurately transcribed before they were sent to the printers; and that the printers did not reproduce the transcript with exact fidelity. Any one who has compared printed reports in French with the MSS. will know how frequently mistakes creep in. If the case cited by Coke, when examined and tested by the enrolment to which he refers, is found to give no sort of warrant for the assertion that it is an example of a decree in Chancery, it would hardly be prudent to accept as an example the case cited by Moore, which comes to us at third hand, and does not afford the means of further investigation.

The case of Hals and others v. Hyncley may, therefore, perhaps fairly be regarded as the first in which we have the complete proceedings on a Bill addressed to the Chancellor; and it is remarkable that the decision did not technically take the form of a Decree, but followed the lines of a Judgment given upon Scire facias, and other proceedings on the socalled Common Law side of the Court. Even the Bill was made to savour of the latter jurisdiction by the introduction of a clause borrowed from the writ of Scire facias. There appears to be here a real instance of a connecting link in a process of development. It is to be remembered that a writ of assise of Novel Disseisin would in this case have issued out of the Chancery but for the fact of the King’s general ordinance to the contrary. It was in the Chancery that another remedy was sought and was applied. But the methods used were for the most part those already familiar to the Chancery not as a Court of Equity according to later notions, but as a Court which, according to those later notions, is clearly distinguished from a Court of Equity. On the other hand, these familiar Chancery methods were not in early times regarded as being at common law. It was a subject of complaint in a petition in Parliament that the Justices of the King’s Bench and Common Pleas were withdrawn from their own Courts to hear proceedings on Scire facias and Traverses of Office in Chancery; and the mischief which was alleged in consequence of this practice was the delay which it caused in the administration of the common laws of the realm.1

On the whole, it seems clear that, as late as the reign of Henry V. there was no broadly marked distinction, as defined at a later period, between the two classes of judicial functions exercised in the Chancery. There was naturally a distinction (though apparently not any difference of origin) between the more or less extraordinary judicial functions exercised in it and the ordinary functions exercised in it as the office for the issue of Original Writs which were returnable and triable in other Courts. But, in the regular course of human affairs, that which is at one time extraordinary comes at length, from long familiarity, to be regarded as ordinary. If, too, in earlier times the extraordinary remedies took the form of Judgments, and some of them in later times the form of Injunctions or Decrees, a new element of difference was at length introduced. The proceedings which followed the old methods were classed as ordinary, those which followed the new as extraordinary.

The division between the two kinds of judicial functions was, however, wanting in clearness even as late as the end of the sixteenth century. Staunford, whose ‘Exposition of the King’s Prerogative’ was published in 1590, was evidently in some uncertainty about the matter. In one passage2 he says, in relation to a Traverse of Office in the Chancery, ‘Note, that if the party take a Traverse which is judged insufficient in the law, this is peremptory unto him, and he shall not be received after to take a new, as appeareth in 40 Assise, 24. Howbeit T. 14 E. 41 the contrary opinion is holden, and that it is not peremptory, because it proceedeth in the Chancery which is the Court of Conscience. But, as to that, a man may answer and say that a Chancellor hath two powers, the one absolute, the other ordinary, and this Traverse is before him by an ordinary power, in which case all things touching the same must proceed as it should before any other ordinary Judge of the common law, and therefore it should appear . . . that if the party be nonsuit in his Traverse it is peremptory unto him, for so might he delay the King infinitely. Tamen quære.’ Staunford probably leaned to the opinion that Traverses of Office belonged to a jurisdiction different from that of the Court of Conscience; but the words ‘Tamen quære’ show that he did not consider the point to be settled. In another passage2 he allows the contrary opinion to pass unchallenged:—‘In 14 E. 4, fo. 73 it appeareth that one had traversed an Office which was sent into the King’s Bench to try, and had forgotten to sue his Scire facias, and yet he was suffered to go again into the Chancery to pray a Scire facias upon the first Traverse, for it was said that the Chancery is a Court of Conscience, and for that cause the thing that was there amiss may be reformed at all times.’

In the end, of course, the difference between the two branches of the judicial functions of the Chancery became very distinctly marked, and was recognised by Statute. The case of Hals and others v. Hyncley, however, seems to be a curious monument of a time when the Chancery was not very clearly distinguished from the Council, and when lawyers had not arrived at any satisfactory distinction between a Court of Conscience and a Court of Common Law in Chancery.

[1 ]This essay was first printed in the Law Quarterly Review, vol. I, pp. 443-454 (1885).

[2 ]A biographical notice of this author is prefixed to Essay No. 37, ante, p. 597.

[1 ]This is an independent translation, differing slightly both from that given in the ‘Statutes of the Realm’ and from that given in the ‘Statutes at Large,’ but will, it is believed, be found to agree with the original Latin as printed in 2 Inst., 405.

[1 ]This case exists among the class of documents known in the Public Record Office as ‘County Placita,’ and generally supposed to belong to the Common Law side of the Court of Chancery (County Placita, Essex, No. 75). It was found by chance, during a search made with the object of illustrating, by the corresponding record, a report in the Year Books of a Scire facias in the Chancery. It is, however, but one of innumerable instances in which the legal historian might find altogether new material among the Public Records, and in which the value of the Public Records might be brought into greater prominence by careful study from a legal point of view.

[1 ]It will be perceived that the form of a writ of Scire facias has served as a precedent for this part of the Bill.

[2 ]The distinction between a Plea and an Answer in Chancery was not recognised until a much later period.

[1 ]1 Spence, 345.

[2 ]Rot. Parl. 17 Ric. II. No. 10 (printed, vol. iii. pp. 310-313).

[1 ]1 Spence, 345; Moore, Rep. 554.

[1 ]‘A grant arerisment de lesploit de voz communes leys de vostre roialme.’ Original Parliament Roll, 2 Hen. IV., No. 95. The passage is not quite correctly printed in 3 Rot. Parl. 474 b.

[2 ]Fol. 65 b.

[1 ]The Year Book, Trinity, 14 Edward IV, No. 8.

[2 ]Fol. 77.

[3 ]Again the Year Book, Trinity, 14 Edward IV, No. 8.