and respective calling, but these documents shall be delivered over to him in the presence of two witnesses. Until 6 and 7 Will. IV. c. 114, no counsel was allowed a prisoner on his trial upon the general issue in any felony; but by that act, all persons tried for felony may make defence by counsel.

By the 7 Will. III. c. 3 no person shall be prosecuted for treason but within three years after the commission of the offence, except in the case of a designed assassination of the sovereign. The Statutes of Treason of Ed. III. and Ed. VI. failed to protect the subject by reason of the unscrupulous constructions put upon those statutes by the judges. The statutes passed after the Revolution went far to remedy this defect*—at all events, trial by jury and unrestrained cross-examination conducted before judges, who are limited by strict rules of evidence, afford more ample guarantees than are afforded by the superior courts of justice on the continent. In all other trials, besides those for high treason, the English judge is likewise bound by a settled theory of evidence, thus, no one can be convicted for perjury by the testimony of one witness only.

* Hallam, C. H. iii., 225.

CHAPTER VII.

THE CHANCELLOR AND THE EQUITY COURTS.

Meaning of Equity.-The Confessor of the Sovereign. -Contest between Lord Chancellor Ellesmere and Lord Coke.-Selden regarding Equity.-Lord Redesdale's Opinion. Great Power of the Lord Chancellor.-Compass of his Functions.Jurisdiction according to Common Law.-Extent of Equity Jurisdiction.-Juris diction of the Chancellor by Reason of Certain Statutes.-Delegated Jurisdiction. -Arbitrary Power of the Chancellor.-Proceedings in the Chancery Courts.— Cumbrous Mode of Procedure.-Lord Eldon.-The Chancellor and Party Government.-Pious Foundations.-Masters in Chancery.-Vice-chancellors.-Matters of Trivial Import Excluded.

THE equity courts occupy themselves with questions of law in which the common law courts are not competent,* and have jurisdiction in cases where a plain, adequate, and complete remedy cannot be had in the common law courts; the remedy must be plain, for if it be doubtful and obscure at law, equity will assert a jurisdiction; it must be adequate, for if at law it fall short of what the parties are entitled to, that founds a jurisdiction in equity; and it must be complete, that is, it must attain the full end and justice of the case, and must reach the whole mischief, and secure the right of the party present and future, otherwise equity will interpose and give relief. The separation of the law courts from those of equity is peculiar to England; America has not adopted the division, although it is advantageous for the elucidation of the legal opinions of the law courts.

In the times of the Normans the first chaplain of the king was, as a rule, his personal secretary (Cancellarius Regis). It was, indeed, an honorary office, although a portion of the fines levied by the king came to the chancellor; he is styled "the King's Confessor," "Keeper of the King's conscience." All matters in dispute which the sovereign, as the highest prætorian power, had to determine, were gradually transferred to him; he thus became a very important personage in the realm. Under Henry II. John of Salisbury, in a poetical letter addressed to St. Thomas à Becket describes the chancellor as a functionary who can soften the rigour of law, and by reason of his prætorian power amend what Brougham. Const., 335. + Story, Treatise on Equity.

was obsolete and hurtful.* Associated with the chancellor were certain discreet and honest clerks; being of the clergy, they were styled and addressed "Magistri," (Masters in Chancery), which title clung to their successors.†

It appears, at least as far back as King Edgar, that the kings of England exercised a power of moderating the summum jus arising from the rigour of the law. In the time of Edward I., and afterwards, this power was exercised on express petition to the king, and the chancellor usually assisted the king. Sometimes in the absence of the king these petitions were referred to the chancellor alone, till at length the jurisdiction was regularly delegated to him,‡ Edward III. decreeing that all appeals in matters of law and grace should go through the chancellor.§ The bill, it may be observed, still retains the form and language of a petition. On the back of every appeal addressed to him, the Lord Chancellor wrote a short answer. ||

This official, who under the Tudors lost his ecclesiastical character, acquired his extensive power only after prolonged struggles. At the end of the fourteenth century we find great complaints made by the commons touching the Court of Chancery, especially on account of the short interval of summons with a threat of penalty (subpana).

The famous contest between Lord Coke and Lord Chancellor Ellesmere in the year 1616 is well known, whereby the equity courts achieved the maintenance of their independent jurisdiction. Selden thus quaintly attacked the uncertainty of equity in his day :-" Equity is a roguish thing; for law we have a measure, and know what to trust to,-equity is according to the conscience of him that is chancellor, and as that is larger or narrower, so is equity. "Tis all one, as if they should make the standard for the measure a chancellor's foot. What an un

certain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same with the chancellor's conscience."

On the other hand, Lord Redesdale contends that the equity courts have no discretionary power. "There are," he says, "certain principles on which courts of equity act which are very well settled. The cases which occur in these courts are various, but they are decided on fixed principles. Courts of equity have in this respect no more discretionary power than courts of law."* Be this as it may, in no country of the world is there an official to be found invested with such tremendous powers, or so little hemmed in by legal checks and restraints as the Lord Chancellor of England. To begin with, he is Prolocutor of the House of Lords by prescription; in such capacity he need not be a peer, but in that event cannot take part in the debates, nor give his vote; generally speaking, however, the Lord Chancellor is created a peer of the realm soon after his appointment. He is ex-officio a member of the privy council and of the cabinet, and has gradually had transferred to him, as the highest judicial officer of the realm, certain powers approaching those of a continental minister of justice; he nominates the common law judges, the justices of the peace, and county court judges, subject to the approval of the Queen. He may dismiss justices of the peace, county court judges, and coroners in case of incapacity or improper behaviour; he is empowered to lay down regulations for the county court judges, and to map out anew the respective districts. He issues writs for the summoning of parliament, and from his court issue all commissions under the great seal, which is styled by Coke the 'key of the realm' (Clavis Regni). The Lord Chancellor may, further, of his own accord issue writs of habeas corpus during vacation time, hence it is said, "his court stands always open." By reason of his earlier character as ecclesiastic and confessor, the patronage of all the Crown livings under the value of £20 has been retained by him. He is chief guardian of the realm and visitor in right of the Crown of all hospitals and colleges of royal foundation, and has the general superintendence of all charitable uses in the kingdom. He is the general guardian of all infants, idiots, and lunatics. Subordinate to him are the Commissioners in Lunacy, who once a year have to lay before the Lord Chancellor a report upon the * Bowyer, 37.

lunatic asylums throughout the kingdom. Finally, the Lord Chancellor is the first judge of the House of Lords, and presides over it when it exercises appellate jurisdiction. Previously to attaining jurisdiction in matters of equity, he possessed a jurisdiction at common law. The Lord Chancellor had jurisdiction to hold pleas of scire facias, to repeal the Queen's letters patent, when made against law or upon untrue suggestions, and to hold plea of petitions, etc. In this ordinary or legal court is kept the Officina Justitiæ, out of which all writs that pass under the great seal are issued; as, for instance, the writ of error at common law.* Here also suits against the sovereign, as a private person, are allowed, for as the sovereign cannot do any wrong, the keeper of his conscience has to redress all errors in law committed by the sovereign. Should a question arise upon matters of fact, the lord chancellor, may direct an issue to be tried at law. As to its equity jurisdiction, Coke‡ indicates three things, which in the court of equity are wont to be tried.

1. Covin (Covina), that is a fraudulent contract to the injury of one of the parties, provided no remedy is to be had in the ordinary courts.

2. Infractions of law resulting from accident.

3. Breaches of trust and confidence, which constitute so important a branch of chancery jurisdiction.

A statutory jurisdiction of the Chancery Court is also mentioned. This exists in regard to all those matters wherein parliament has assigned jurisdiction to the court. The authority which the Court of Chancery exercises in the administration of the property of idiots and lunatics is termed "jurisdiction by delegation.'

Only equity jurisdiction, and that which is acquired by force of delegation is of importance. This jurisdiction is often of a peculiar kind, in the carrying out of wills in favour of pious foundations. The court has not unfrequently made venturesome interpretations; a Jew, for instance, bequeathed £1200 to make a provision for candidates to the office of Rabbi, to enable them to study the Holy Scriptures. The lord chancellor (Eldon) decreed, however, that the money should be made over to the Foundling Hospital, on the ground of the statute prohibiting legacies for " superstitious uses,"

* Bl., iii., 422. + Madock's Chancery Pract., p. 6.

Inst., iv., 84.