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otherwise, as seemed best calculated to discover the truth, and enforced obedience to his decrees by imprisonment. The chancellors did not, and probably felt that they could not, assume all the powers which were exercised by courts of law; such, for instance, as summoning a jury to determine questions of fact, and this became one of the principal defects of the court, which have recently been rectified. In its judgment, the Court of Chancery, whilst adhering to those rules of law which were consonant with principles of equity, boldly overruled those rules or maxims of almost absurd and fanciful rigour [* 42 ]
which had been laid down and pertinaciously adhered to by judges, * not
withstanding that through the accidents or necessities of social life they in fact often worked great injustice (i).
The relief given, as compared with that now obtained, did not, however, for a long time extend very far; for in the ancient treatise entitled Diversité des courtes, or Diversity of courts and their jurisdictions (k), written by an unknown author in the time of King Henry the Eighth, we have a catalogue of the matters of conscience then cognisable in chancery, and these fall within a very short range (?). No regular judicial system or rules of equity at that time prevailed in the court. A suitor who thought himself aggrieved could but obtain a desultory and uncertain remedy according to the private opinion of the chancellor (m), generally, and as we have already remarked in very early times always, an ecclesiastic, sometimes, though rarely, a statesman, scarcely ever a lawyer. From the times of the chief justices Thorpe and
Knyvet, successively chancellors to King Edward III. in 1372 and * 1373, [ * 43 ]
till the promotion of Sir Thomas More by Henry the Eighth in 1530, no lawyer sat in the Court of Chancery (n). After this time the great seal was indiscriminately committed to the custody of lawyers, courtiers (0), and churchmen (p), according as the convenience of the moment, or the caprice of the sovereign, might require, until, in 1592, Sergeant Puckering was made lord keeper, from which time to the present the Court of Chancery has always been filled by a lawyer; except that during the interval from 1621 to 1625 the seal was entrusted to Dr. Williams, then Dean of Westminster, but afterwards Bishop of Lincoln, who had been chaplain to Lord Ellesmere when chancellor (a). But it is only in very recent times that men have, as a general rule, been made judges in the Court of Chancery who have specially devoted
(1) Such as the rule that a debt or other (m)“ Equity is a roguish thing. For law, chose in action shall not be assigned ; not- we have a measure, and know what to trust withstanding what Lord Coke says —“The to; equity is according to the conscience of great wisdom and policy of the sages and him that is chancellor; and as that is larger founders of our law have provided that no or narrower, so is equity. "Tis all one as if possibility, right, title, nor thing in action they should make the standard for the meas. shall be granted or assigned to strangers, for ure a chancellor's foot. What an uncertain that would be the occasion of multiplying measure would this be! One chancellor has of contentions and suits, of great oppression a long foot, another a short foot, a third an to the people, and chiefly of terre tenants, indifferent foot. It is the same thing with and the subversion of the due and equal exe- the chancellor's conscience.” (Selden's Table cution of justice.” Lampet's Case, 10 Rep. Talk, tit. Equity.) This, though scarcely 48. See, as to the present policy of the legis- just at the time it was written, might with lature, 30 & 31 Vict. c. 144, which gives to more truth be applied to the early exercise assignees of a policy of life assurance the of the court's jurisdiction. right to sue at law in their own name; and (n) Spelm. Gloss, 111; Dugd. Chron. Ses. 50. the similar act relating to marine insurances, (0) Wriothesly, St. John, and Hatton. & 32 Vict. c. 86.
(p) Goodrick, Gardiner, and Heath. (k) See title-page of English edition, 1646. (2) Biog. Brit. 4278. (1) Tit. Chancery, p. 296, Rastell's edit. 1534 ; p. 293, English edit. 1646.
their study to the doctrines of equity as distinguished from the rules and practice of common law courts. Equity lawyers are of very modern extraction (r).
The establishment of a series of rules and precedents guiding and controlling the judgment of equity judges, and, to a great extent, excluding the application of any peculiar personal notions of justice, at the same time extending and defining the nature of the relief which the Court of Chancery will, and which a court of common law will not, grant, has been gradual. Among
other questiones vexate, one great one occurred as to the power Assumption of
of the Court of Equity to interfere with judgments or proceedCommon Law Courts.
ings in courts of law, a notable dispute as to which was set on foot by Sir Edward Coke, then chief justice of the Court of King's Bench. That distinguished * judge strenuously contended against the assumption which was made on the part of a court of equity to restrain by
[ * 44] injunction, i. e., on pain of imprisonment, a complainant at law from pursuing his remedy at law, and reaping the fruits of his success.
This contest, which took place when Lord Ellesmere was chancellor (A. D. 1616), was so warmly carried on, that indictments were preferred against the suitors, the solicitors, the counsel, and even a master in chancery, for having incurred a præmunire by questioning in a court of equity a judgment in the Court of King's Bench obtained by gross fraud and imposition (s).
This matter being brought before the king, was by him referred to his learned counsel for their advice and opinion, who reported so strongly in favour of the courts of equity (t), that his majesty gave judgment on their behalf; but, as might be expected from King James's character, he, not content with the irrefragable reasons and precedents produced by his counsel (for the chief justice was clearly in the wrong), chose rather to decide the question by referring it to the plenitude of his royal prerogative (u). Sir Edward Coke submitted to the decision (x), and thereby made atonement for his error; but this struggle, together with the business of commendams (in which he acted a very noble part) (y), and his conduct * relative to the commissioners of sewers in insisting upon their being subject to the control of the
[*45] Court of King's Bench were the open and avowed causes (z) first of his suispension and then of his removal from office.
Lord Bacon, who succeeded Lord Ellesmere, reduced the practice of the
(7) It is said that when Lord Eldon first ing that the matter affected his prerogative, practised at the bar, there were but twelve sent letters to the judge not to proceed in it or fifteen counsel regularly practising at the till himself had first been consulted. The chancery bar. Twiss's Life of Lord Eldon, twelve judges joined in a memorial to his f. 117.
majesty declaring that their compliance Bacon's Works, iv. 611, 612, 613. would be contrary to their oath and the law. (t) Whitelock on Parl. ii. 390 ; 1 Ch. Rep. But upon being brought before the king and Append. 11.
council they áll retracted and promised obe(V) "For that it appertaineth to our princely dience in every such case for the future, exoffice only to judge over all judges, and to cept sir Edward Coke, who said, “ that when discern and determine such differences as at the case happened he would do his duty.” any time may and shall arise between our Biog. Brit. 1388. se veral couris touching their jurisdictions, (2) See Lord Ellesmere's speech to sir and the same to settle and determine as we Henry Montague, the new chief justice, 15 in our princely wisdom shall find to stand Nov. 1616. (Moor's Reports,828.) sir Edward most with our honour,” &c. 1 Ch. Rep. Ap. Coke might probably have retained his seat, pend. 26. Williams, Jus Appellandi, p. 123. if during his suspension he would have
() See the entry in the council book, 26 complimented Lord Villiers (the new favour. July, 1616; Biog. Brit. 1390.
ite) with the disposal of the most lucrative (y) In a cause of the Bishop of Winchester, office in his court. Biog. Brit. 1391. touching a commendam, King James conceiv.
court to a more regular system (a); but did not sit long enough to effect any considerable revolution in the science of equitable jurisprudence itself, and few of his decrees that have reached us are of any great consequence to posterity.
His successors, in the reign of Charles I., did little to improve upon his plan. Lord Clarendon, when the seal was committed to him, had withdrawn from practice as a lawyer nearly twenty years (6), and the Earl of Shaftesbury, who received it on Clarendon's fall, though a lawyer by education, had never practised at all. But somewhat later there was a change, when, in 1673, Sir Heneage Finch, afterwards Earl of Nottingham, became chancellor. He was a person of the greatest abilities and most incorruptible integrity, a thorough master and zealous defender of the laws and constitution of his country. His genius enabled him to discover the true spirit of justice, notwithstanding any [*46]
embarrassments raised by the narrow and *technical notions prevailing
in courts of law, and the imperfect ideas of redress then recognised in courts of equity. The reason and necessities of mankind, arising from the great change in property by the extension of trade, and the abolition of military tenures, co-operated in establishing his plan, and enabled him to build up, in the course of nine years, a system of jurisprudence and jurisdiction upon wide and rational foundations. This has been extended and improved by the many great men who have since presided in chancery, and constitutes a noble monument to their memory, monumentum æere perennius. The great variety in the necessities, the desires, and the habits of society, and the craft of men following the increase of riches, rendered the comparatively simple procedure of courts of law inadequate for the complete administration, though often well adapted to the ordinary administration of justice; and this led, as we see, to the application for an adequate remedy to the jurisdiction of the Court of Equity, and thereby to the establishment of that jurisdiction. Now this application was always in the form of a petition of the party aggrieved, stating the grievance, the defect of remedy in the courts of common law, and mentioning the remedy which it was conceived ought to be administered. By the nature of most of such cases, a part of this remedy consisted in the unravelment of a long chain of fraud, the examination of complicated accounts, or the administration of large properties; the mere enumeration of these seems suggestive of cumbrous machinery, and it must be admitted as a fact, that the procedure which grew up in the court, though powerful to redress wrong, was also often, and this from an almost excess of caution, attended with such delay and expense as almost to defeat its own objects. This was a grievance not likely to escape the reforming spirit of the present century. It was easily recognised that whilst the motive vital power of the court might be developed
and expanded, the weight of its machinery, * which bore it down and [ *47]
diminished its efficacy, might be with safety lessened. Accordingly, in 1824, a royal commission was appointed to consider whether any alterations might advantageously be made in the practice of the court so as to abridge the expense and time attending proceedings in the court. This commission, in
(a) He appears to have published, about published in 1661, which, however, were the year 1618, a collection of orders, com- little more than copies of those published prising the more important rules of practice in 1656 by the Lords Commissioners Whitewhich had previously obtained. See Chan- lock, Lenthall, and Keeble, continued in cery Commission Report, p. 10.
force as regulating the practice of the court (6) Lord Clarendon's Orders as to Practice, until very recent times.
1826, made an elaborate report, and since that time numerous statutes have been passed for the purpose of remodelling the procedure, and correcting errors, or supplying deficiencies in the various offices of the court (c). By abolishing many useless forms and requisitions, due to an over anxiety for the prevention of injustice, by retaining only those rules of practice which involve the essence of the administration of justice, by adding further powers to the court, a reform has been carried out to such an extent that we may safely affirm, that at the present day the Court of Chancery is nearly as free from reproach on the score of useless formalities, expense and delay, which bring disappointment to the suitor, as it has ever been in regard to the purity of the principles governing its decisions. We shall presently recur to this subject in the course of giving an outline of the present procedure by suit. We have, in what we have said, sufficiently traced in outline the history of the establishment of the court as a conrt of equity, presided over by the Chancellor, Lord Keeper, or Lords Commissioners for the custody of the great seal (d). It remains to say somewhat concerning the other officers and the present subdivision of judicial labour. In addition to the Lord Chancellor, there has been from * the earliest
[ * 48 ] existence of the court (e), an officer called the Master of the Rolls, to The Master of
whom the custody of the records, or rolls of the court, was
cntrusted. It appears, however, that his duties always extended beyond those merely of a conservator to the superintendence of the issue of writs (f ), and there seems no doubt that he in very early times took part in the judicial administration, not only of the common law, but also of the equity side of the court (g), though as to the exact extent of his authority there has been much controversy (k); but it is certain that he in later times acted as a judge, subordinate in authority to the Chancellor, his decisions being subject in some degree to modification by the Chancellor. In order to remove the doubt as to his authority in hearing and determining causes, an act was passed in the reign of Geo. II. (3 Geo. 2, c. 30), by which it was declared that all orders and decrees made by him, except such as by the course of the court were appropriated to the great seal alone, should be deemed to be valid, subject nevertheless to be discharged or altered by the Lord Chancellor, 80 as they should not be inrolled until signed by his lordship. The business disposed of by him continued, however, to be of limited character (i) until
(C) See 2 Will. 4, c. 33 ; 2 & 3 Will. 4, c. alii custodes eam habere consuleverunt tempori111; 5 & 6 Vict. c. 103 ; 3 & 4 Vict. c. 94, bus retronctis.” Thus indicating the then amended by 4 & 5 Vict. c. 52 ; 5 Vict. c. 5; and ancient nature of the office. Rot. Claus. 23 8 & 9 Vict. c. 105 ; 11 & 12 Vict. c. 10; 13 & 14 Edw. 1. See also 2 Com. Dig. 208. Vict. c. 35; 14 & 15 Vict. cc. 4,83; 15 & 16 Vict. (f) 4 Inst. 82 ; Registrum Brevium, 7. C. 86, amended by 17 & 18 Vict. c. 100, and 18 (9) See a Discourse of the judicial author. & 19 Vict. c. 134; 15 & 16 Vict. c. 87, amended ity belonging to the office of the Master of by 16 & 17 Vict. c. 98 ; 16 & 17 Vict. cc. 22, the Rolls, 2nd edit. 1728. This work is 78; 21 & 22 Vict. c. 27; 23 & 24 Vict. c. 149; ascribed to Lord Hardwicke. (Harris's Life 25 & 26 Vict. c. 42; and other statutes cited of Lord Hardwicke, vol. i. p. 195.) below.
(h) In several instances in the reign of (d) As to the authority of a lords keeper, Henry VIII. the Master of the Rolls was see 5 Eliz. c. 18; and as to that of lords com- styled Vice-Chancellor. See Discourse, &c., missioners, see 1 W. & M. c. 21.
(e) In the earliest notice of a master of the (i) And extent also, for at the time, in 1813, rolls extant in the records of the court, it is when the office of Vice-Chancellor of Engsaid that the custody of the rolls of chancery land was instituted, the Master of the Rolls was committed to Adam de Osgodby, “ itn only held his sittings in the evening. quod custodiam illam eodem modo habent quo
another act, passed more recently (3 & 4 Will. 4, c. 94), has further declared [ *49]
what judicial power * should be exercised by the Master of the Rolls;
and under this act he now has complete power, as a judge, of primary jurisdiction.
Besides the Lord Chancellor and the Master of the Rolls, there were from very early times numerous officers having duties connected with both the Other ancient common law and equity sides of the court. These offices (k) officers.
have, however, for the most part been abolished, and of those which remain the duties have been so far modified that it is unnecessary to do more than refer to them.
The vast increase of business in the court under the circumstances which have been already alluded to, and the great necessity which was felt for the more speedy despatch of that business, led to the appointment of a new judge, Vice-Chancellor as a further assistant to the Lord Chancellor, under the title of of England.
Vice-Chancellor of England (2). His decrees and orders were, like those of the Master of the Rolls, subject to the revision of the Lord Chancellor.
Subsequently, in the year 1841 (m), when the equitable jurisdiction which [ * 50 ]
had previously been exercised by the * Court of Exchequer was trans
ferred to the Court of Chancery, two more Vice-Chancellors were The Vice-Chan. appointed. At that time the Master of the Rolls had complete
authority to hear and determine causes at all their stages, so that there were thus constituted four courts of primary jurisdiction of equal authority, but the decisions of all subject to appeal. The business of hearing appeals from these courts of primary jurisdiction soon became the principal duty of the Lord Chancellor, whilst sitting in chancery, and he has for some time confined his attention almost exclusively to it. The labour of this appellate business is now shared by two judges, called the Lords Justices of the Court of Appeal in Chancery, who, with the Lord Chancellor, now form the Court of Appeal in Chancery. This court was constituted in the year 1551 (n); it possesses and exercises all the jurisdiction previously possessed by the Lord Chancellor, and exercises and performs all powers, authorities, and duties, as well ministerial as judicial, incident to such jurisdiction, and also any which recent legislation may have added to those formerly belonging to the Lord Chancellor sitting in the Court of Chancery.
The functions of the Court of Appeal may be exercised not only by the full court of the three judges, but by the Lord Chancellor alone (who, it may be
(k) The masters in chancery were the prin- judges. Other ancient officers were the cur. cipal of the subordinate officers, being ap- sitors, whose offices were similar in character, pointed by letters patent. They were “ for but of inferior importance to the ancient the most part doctors of the civil law, and masters, being the framers of those writs do assist the court to show what is the equity which were in common form (breria de cursu), of the civil law.” (Ellesmere's Office of the and the six clerks, who acted as attorneys on Lord Chancellor, 37. See, also, 4 Inst. 82; behalf of the suitors. See a Treatise on the Smith's Commonw. bk. ii. c. 12.) Their Practice of the Court of Chancery, London, duties in very early times were, as before 1672, p. 66; and Gilbert's History and Pracstated, mostly connected with framing writs; tice, p. 9. in later times, they transacted the greater (1) See 53 Geo. 3, c. 24. part of the ministerial business, such as (m) See 5 Vict. c. 5; 14 Vict. c. 4; and 15 & prosecution of inquiries into pedigrees, ac- 16 Vict. c. 80; by the last of which acts (s.52) counts, &c. Their offices, after being regu- perpetual authority was given to fill up valated by 3 & 4 Will. 4, c. 94, and 10 & 11 Vict. cancies in the number of Vice-Chancellors. c. 60, were abolished by 15 & 16 Vict, c. 80, (n) Seo 14 & 15 Vict. c. 83, ss. 1, 3, 5. being replaced by the chief clerks of the