should early take cognisance of some legal matters, and especially those connected with rights depending upon the king's grants, since he, being the

Common law jurisdiction of the court.

holder of the great seal, was the officer through whom they had been obtained. Thus arose the ancient common law jurisdiction of the chancellor. It is not possible to fix with exactness the time when it may be said first to have been completely established, but its authority is recognised in very early times (y).

As a court of justice, it has now almost reached a fossil state, the only matters which for many years have been brought before it judicially being a few suits relating to patents for invention, but its ancient jurisdiction was to hold plea upon a scire facias (z) to repeal and cancel the king's letters [*33] patent of all kinds when made against law, or upon untrue suggestions (a), to hold plea of petitions of right (b), monstrans de droit, traverses of offices found upon inquisition of escheated lands or in lunacies (c), and the like, or when the king has been advised to do any act, or has been put in possession of lands or goods in prejudice of a subject's right (d).

Much of this jurisdiction of the chancellor seems but natural, because, since the king can never be supposed to do any wrong, if any error be proved to have arisen whereby a subject has suffered, the law assumes that, on due proof of it, he will give immediate redress, and a conscientious task like this would, of course, be performed by the chancellor, the keeper of his conscience.

The jurisdiction of the court extended over all personal actions where any officer or minister of the court was a party, over partitions (by scire facias) of lands in coparcenary (e), and, whilst military tenures existed, over claims for dower where any ward of the court was concerned in interest (f). It afterwards retained jurisdiction in cases relating to tithes of forest land, where granted by the king, and claimed by a stranger against the grantee of the crown (g), and over executions upon statutes or recognisances in the nature of * statutes, by the statute 23 Hen. VIII., c. 6 (h).

[*34]

The proceedings in a suit in the common law court, when it was more used than is now the case, were not dissimilar to common law actions elsewhere. Ancient practice If, however, any cause came to issue, that is, if any fact were of the court. disputed between the parties, the chancellor having no power to summon a jury, could not try it (i), he then must deliver the record or a

(y) Lord Campbell supposes that the chancellor, during the existence of the Aula Regia, practically decided questions similar to those which were afterwards recognised as coming within his common law jurisdiction, by that court referring such questions for his opinion; and he concludes that when the Aula Regia was broken up, the chancellor assumed the jurisdiction, and so established a separate court. Lives of the Chancellors, P. 6.

(2) The writ is scire facias, because, as above stated, a patent is a record in chancery. The practice of issuing the same writ in similar cases, returnable in the King's Bench, seems to have first been established in Queen Anne's reign. Brewster v. Wells, 6 Mod. 230. (a) Similar suits were afterwards sometimes instituted on the English side. See Sawyer v. Vernon, 1 Vern. 277, 370; and Attorney-General v. Corporation of London, 8 Beav. 270; 1 H. L. C. 440; 12 Beav. 8.

(b) Rastell's Entries, 461 a. (a petition of right under 7 & 8 Hen. 8.)

(c) Yearbooks, 4 Edw. 4, 29 a; 13 Edw. 4, 8 a; 1 Hen. 7, 14 a. See In re Ann Parry, 35 L. J. Ch. 651; In re Kane, ib. n. (d) 4 Rep. 54.

(e) Co. Lit. 171; Fitz. Nat. Brevium, 62. The writ of partition formerly issuing out of chancery is now abolished, 3 & 4 Will. 4, c. 27, s. 36.

(f) Bro. Abr. tit. Dower, 66; Moor, 565.
(g) Bro. Abr. tit. Dismes., 10.
(h) 2 Rol. Abr. 469.

(i) The recent Act, 21 & 22 Vict. c. 27, s. 3, gives the Court of Chancery power to summon a jury. That Act, though probably not intended to affect procedure in the Petty Bag Office, still, is not in terms confined to the equity side of the court, and would therefore, seemingly, enable a suit in the Petty Bag Office to be completely tried there. By the Chancery Regulation Act, 1862 (25 & 26 Vict.

transcript of the record, propria manu, into the Court of King's Bench, where it could be tried by the country, and judgment given thereon (k).

When judgment was given in chancery upon demurrer or the like, a writ of error in the nature of an appeal lay out of this ordinary court into the King's Bench (7). This right of appeal has been so little exercised, however, that Sir W. Blackstone said that he could find no trace of a writ of error [*35] being actually brought since the 14th year of Queen Elizabeth, A. D.

1572.

The proceedings in this court as a court of justice have, even in these few suits which we have mentioned, been long confined to the formal proceedings, such as the pleadings, the substantial trial of the merits being in the Court of Queen's Bench (m).

Courts of the

There have always been two branches of this common law court, one called the Court of the Hanaper, the other the Court of the Petty Bag. In the former, writs relating to the business of the subject, and the Hanaper and of returns to them, were kept according to the simplicity of ancient the Petty Bag. times, in a hamper (in hanaperio). In the latter, those relating to matters wherein the crown was immediately or mediately concerned, were preserved in a little bag. The distinction between the two branches still exists, though the Petty Bag is the branch in which, for obvious reasons, most vitality remains. From it issue writs of what may be called a ministerial nature, such, for instance, as writs of election issued on calling a new parliament, writs of congé d'élire for the appointment of bishops and archbishops. In the Petty Bag Office, as a court of record, are kept the records of an endless variety of proceedings, not to be here enumerated; the above examples are sufficient illustrations of its present duties. We may add, however, the inrolment in chancery of deeds, such as disentailing deeds, which forms part of the duties of the common law side of the court. The practice and duties of the officers in the Petty Bag Office, and of the Inrolment Office have recently been regulated by the legislature (n).

The Extraordinary Court, or Court of Equity, has now become the court of the greater judicial consequence, and this in such a marked degree that many well-informed * persons are hardly, if at all, aware that [*36] the Court of Chancery possesses any judicial or adminCourt of Equity. istrative functions other than its equitable ones. Recent legislation has so far modified the practice, and added to the duties of the equitable

The Extraordinary Court, or

c. 42) it is made obligatory upon the court to decide questions of fact (s. 1), unless it can be more conveniently tried elsewhere (s. 2). Quere, as to the effect of this upon a suit in the Petty Bag Office.

(k) Cro. Jac. 12; Latch. 112. There has been recently a case of revocation of letters patent for an invention, initiated by scire facias in the Petty Bag Office, Bynner v. The Queen, 9 Q. B. 523, in which some points of practice were considered, but quare whether they are still the law.

(7) This is the opinion of Sir W. Blackstone (citing Yearbook, 18 Edw. 3, 25; 17 Ass. 24; 29 Ass. 47; Dyer, 315; 1 Roll. Abr. 287; 4 Inst. 80,) who remarks that a contrary opinion given by Lord Keeper North, in R. v.

Cary, 1 Vern. 131, Eq. Ca. Ab. 129, pl. 9, S. C., was not well considered. In Foxwith v. Tremain, 1 Vent. 102, one of the points resolved by the Court of King's Bench was that a writ of error did lie out of the Petty Bag into B. R. on an error in fact. See also Bynner v. The Queen, 9 Q. B. 523. Mr. Macqueen however, in his learned work on the Appellate Jurisdiction of the House of Lords (p. 369), contends that the only appeal is to the House of Lords.

(m) But see the doubt suggested in a former note as to whether this is now the case. (n) 11 & 12 Vict. c. 84, amended by 12 & 13 Vict. c. 109. These acts do not specifically mention the Hanaper office.

side of the court, that the business transacted by it equals in extent that of the common law courts.

The distinction between law and equity, as administered in different courts in England, is not at present known, and seems not to have ever been known in other countries (o), (444) though the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans (p), the jus prætorium, or discretion of the prætor, being distinct from the leges or standing laws (q); but the power of both centred in one and the same magistrate, who was equally entrusted to pronounce the rule of law, and to apply it to particular cases by the principles of equity.

With us, too, the Aula Regia, presided over by the chief justiciar, which was the supreme court of judicature, and in which all cases of importance were tried, undoubtedly administered equal justice according to the rule of both law and equity, or either, as the case might require. When this court was broken up, though there was no formal establishment of a court of equity, yet it is probable that some desire for freedom from the trammels of strict legal procedure would often be felt, which desire *would scarcely be disregarded. Still, though Bracton mentions equity as a thing contrasted to strict law (q), neither that writer nor Glanvil, nor the author of Fleta, nor even Britton (who wrote under the auspices, and in the name of Edward I., treating particularly of courts and their several jurisdictions), mentions anything about the chancellor's equitable jurisdiction.

[*37]

Probably it was with the view of satisfying this desire that the statute of Westminster the Second was passed, which, by the ready issue of suitable writs, and with a little elasticity on the part of the judges, might probably have answered every purpose; indeed, opinions to this effect have been. expressed by eminent judges (r). The only real want which might then have remained unsatisfied would have been that of obtaining discovery upon oath. from the defendant (s).

It seems, however, that notwithstanding the varied forms of actions so devised, and the means afforded for further developement, courts of law, through a too rigorous adherence to established forms, and the letter rather than the spirit of law, still fell short of administering that complete relief which a natural sense of justice seemed to require. No satisfactory reason can be given why this should have been the case; certainly in modern times courts of law do not exhibit the same narrowness of spirit, and they have long rejected

(0) The Council of Conscience, instituted by John III. of Portugal to review the sentences of all inferior courts, and moderate them by equity (Mod. Un. Hist. xxii. 237), seems to have rather a court of appeal than a court of distinct jurisdiction.

(p) Thus too the Parliament of Paris, the Court of Session in Scotland, and every other jurisdiction in Europe of which we have any tolerable account, found all their decisions as well upon principles of equity as those of positive law. (Lord Kames' Hist. Law Tracts, i. 325, 330; Princ. of Equity, 44.,

(7) Thus Cicero:-" Jum illis promissis non esse standum, quis non videt, quæ coactus quis metu et deceptus dolo promiserit? quæ quidem

plerumque jure prætorio liberantur, nonnulla legibus. Offic. 1. i.

(q) 1. 2, c. 7, fol. 23.

(r) "Le subpoena ne serroit my cy souvente ment use come il est ore, si nous attendomus tiels actions sur les cases et mainteinomus le jurisdiction de ceo court et d'auter courts." Per Fairfax, a learned judge of Edward the Fourth's time. See Yearbook, 21 Edw. 4, 23.

(8) This important requisite for the attainment of justice might have been provided by the legislature in common law courts somewhat before the time (1854) when it was actu ally furnished. (See Common Law Procedure Act, 1854, s. 51.)

(444) See ante, 27, note 443.

some of the old rigid rules: still, they have, naturally, been unable in many instances entirely to disregard the authority of ancient precedents, and it is but very recently that they have received any adequate aid from the [*38] legislature. But, whatever may have been the reason, a court of equity was found to be a necessity, if complete justice was to be obtained. An important influence towards its establishment came into operation, when in the 14th century (t) there grew up new doctrines concerning the holding and enjoyment of property, separating the legal title from the right to the beneficial enjoyment of it, in imitation to some extent of the usufructus of Roman law, though arising out of causes peculiar to the age. With the growth of these doctrines there arose a necessity or desire for the judicial recognition of trusts or uses, as they were commonly called (u). The device of one person having the legal dominion over property, but bound to allow another to have the full benefit of it, was found to meet and overcome several obstacles which the law had imposed upon the disposition of landed property. Of these, perhaps, the most notable was the law of mortmain, prohibiting lands from being given for religious purposes. Ecclesiastical chancellors, therefore, readily sanctioned the plan of avoiding these statutes, by vesting the legal estate of lands in persons to the use of the religious houses, and then, by binding the conscience of the legal owner to give effect to the use. And since the jurisdiction to enforce this obligation was refused by court of law (v), it was assumed by the Court of Chancery. The invention of the writ of subpœna, returnable only in the Court of Chancery, by which the feoffee to uses was [*39] made * accountable to his cestui que use is ascribed to the "subtilty" of John de Waltham, Bishop of Salisbury, and chancellor to Richard II. (x). This writ, requiring the defendant to appear to and answer a bill of complaint in the Court of Chancery, continued from that time until very recently, to be the foundation of a chancery suit. It was originally framed under a strained construction of the above-quoted statute of Westminster the Second; but the process having been found to answer well the ends of those who used it, the practice of issuing it was soon extended to many cases, even to some which were properly determinable at common law; a false and fictitious suggestion being made in the bill that common law furnished no relief. To remedy this, which was thought to be an evil, the statute 17 Rich. 2, c. 6, was passed, by which the chancellor was directed to award damages to the party unjustly vexed by such a proceeding. It may be noticed that the clergy

(t) 1 Sand. Uses, 12.

(u) It has been commonly thought that the jurisdiction over trusts was one of the principal causes of the equitable jurisdiction being assumed by the Court of Chancery. Lord Campbell, however, gives reasons for believing that it did not play so important a part in this matter as was supposed. Still it must have had much to do with the determination with which the chancellors adhered to their power when once assumed. See Lord Campbell's Lives of the Chancellors, p. 10.

(v) Not, however, without some occasional wavering. See Jevon v. Bush, 1 Vern. 349, and note (3) to that case.

(x) Rot. Parl. 3 Hen. 5, n. 46; Spelm. Glos. 106; 1 Lev. 242; 1 Roll. Abr. 371. John de Waltham was master of the rolls, but had

the great seal entrusted to him on several occasions. Rymer, vii. 362, 381, 496; 510. From the invention of trusts and the exclusive control which the court of equity took of them, there naturally grew up that vast administrative business by which family estates and property are preserved and managed under the direction of the court, which now occupies so large a portion of its attention. The policy of recent legislation is to continually add to this part of the court's duties, the exercise of judicial discretion being clearly most beneficial to those persons who occupy the position of guardians, and those (such as infants) who are entitled to the enjoyment, yet incapable of the management of property.

Jurisdiction

so early as the reign of King Stephen had attempted to turn their ecclesiastical courts into courts of equity, by entertaining suits, pro læsione fidei, as a spiritual offence against conscience, in case of non-payment of debts or breach of civil contract (y), and these attempts were continued till they were checked by the Constitution of Clarendon (z), which declared that "placita de debitis quæ fide interposita debentur vel absque interpositione fidei sint * in justi[*40] tiá regis." Yet even after this enactment the spiritual courts continued to grasp at the same authority (a) down to so late a time as the fifteenth century (b), till finally prohibited by the unanimous consent of all the judges. The fact is undoubted, and the reasons are sufficiently apparent, that the chancellors clung to, and sought to extend, the jurisdiction which they had acquired, and they succeeded in doing this, notwithstanding that assumed by the repeated efforts were made to put an end to their power. We Chancellors. find that in the reigns of Henry IV. and Henry V. (c), there were several petitions presented by the commons to the king, urging the suppression of the writ of subpoena as a novelty contrary to the form of the common law, whereby, as they declared, no plea could be determined unless by examination and oath of the parties, according to the form of the civil law, and the law of holy church, but in subversion of the common law. Henry IV., feeling perhaps not too secure on his throne, evaded these requisitions, or even, to some extent, acceded to them (d); but Henry V. gave a decided negative to the application, and the process by writ of subpoena and bill in chancery then became, * and continued to be, until the year 1852 (e), the daily [*41] practice of the court, its application being constantly extended. Equitable jurisdiction of some kind was, no doubt, exercised before the time of John de Waltham's writ, but it seems to have been the first instanco of process issued out of the Court of Chancery without special commission from the king, or special authority derived from parliament (ƒ), for the purpose of enforcing equitable rights by the authority of that court alone. Thus was established, in addition to his ordinary power (potentia ordinata), the extraordinary or absolute power (potentia absoluta) (g) of the chancellor, in the exercise of which he disregarded the ordinary rules of procedure in courts of law (h), adopted such means, by examination on oath of the parties or

(y) Lord Lytt. Hen. 2, b. 3, p. 361. (2) 10 Hen. 2, c. 15; Speed, 458.

(a) In 4 Hen. 3, suits in court christian pro lasione fidei upon temporal contracts were adjudged to be contrary to law. (Fitzh. Abr. tit. Prohibition, 15.) But in the statute or writ of circumspecte agatis, supposed by some to have issued 13 Edw. 1, but more probably (3 Pryn. Rec. 336) 9 Edw. 2, suits pro læsione fidei were allowed to the ecclesiastical courts, according to some ancient copies (Berthelet, Stat. Antiq. Lond. 1531, 90, b.; 3 Pryn. Rec. 336), and the common English translation of that statute, though in Lynde wode's copy (Prov. 1. 2, t. 2), and in the Cotton MS. (Claud. D. 2), that clause is omitted.

(b) Yearbook, 2 Hen. 4, 10; 11 Hen. 4, 88; 38 Hen. 6, 29; 20 Edw. 4, 10.

(c) Rot. Parl. 2 Hen. 4, 69; 4 Hen. 4, 78 & 110; 3 Hen. 5, 46, cited in Prynne's Abridg. of Cotton's Records, 410, 422, 424, 548. See 4 Inst. 83; 1 Roll. Abr. 370, 371, 372. (d) See 4 Hen. 4, c. 23, by which judgments VOL. II. 6

at law were made irrevocable, except by attaint or writ of error, and not to be impeached in equity. Doctor and Student, Dial. 1, c. 18. (e) See 15 & 16 Vict. c. 86, s. 2.

(f) Lord Campbell gives an instance, taken from the Close Rolls, of a suit for specific performance in 40 Edw. 3, where the plaintiff petitioned the king in parliament, who caused the defendant to come before the chancellor, the treasurer, the justices, and other sages; and he states that the records of the court of chancery contain other instances still earlier of the exercise of equitable jurisdiction, though none so early of compelling the execution of a trust. Lives of Chancellors, 8 n.

(g) Ellesmere, 44.

(h) Though the procedure which grew up in chancery was far from being free from reproach. See, for instance, the table of processes to compel appearance and answer exhibited in page 152 of the Report of the Chancery Commission, 1826.