ever been known, in any other country at any time:(d) and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans; (e) the jus prætorium, or discretion of the prætor, being distinct from the leges, or standing laws,(ƒ) but the power of both centred in one and the same magistrate, who was equally intrusted to pronounce the rule of law, and to apply it to particular cases by the principles of equity. With us, too, the aula regia, which was the supreme court of judicature, undoubtedly administered equal justice according to the rules of both or either, as the case might chance to require: and, when that was broken to pieces, the idea of a court of equity, as distinguished from a court of law, did not subsist in the original plan of partition. For though equity is mentioned by Bracton(g) as a thing contrasted to strict law, yet neither in that writer, nor in Glanvil or Fleta, nor yet in Britton, (composed under the auspices and in the name of Edward I., and *treating particularly of courts and their several juris[*50 dictions,) is there a syllable to be found relating to the equitable jurisdiction of the court of chancery. It seems therefore probable, that when the courts of law, proceeding merely upon the ground of the king's original writs, and confining themselves strictly to that bottom, gave a harsh or imperfect judgment, the application for redress used to be to the king in person assisted by his privy-council, (from whence also arose the jurisdiction of the court of requests, (h) which was virtually abolished by the statute 16 Car. I. c. 10;) and they were wont to refer the matter either to the chancellor and a select committee, or by degrees to the chancellor only, who mitigated the severity or supplied the defects of the judgments pronounced in the courts of law, upon weighing the circumstances of the case. This was the custom not only among our Saxon ancestors, before the institution of the aula regia,(i) but also after its dissolution, in the reign of king Edward I. ;(k) and perhaps, during its continuance, in that of Henry II.(1)

In these early times the chief judicial employment of the chancellor must have been in devising new writs, directed to the courts of common law, to give remedy in cases where none was before administered. And to quicken the diligence of the clerks in the chancery, who were too much attached to antient precedents, it is provided by statute Westm. 2, 13 Edw. I. c. 24, that "whensoever from thenceforth in one case a writ shall be found in the chancery, and in a like case falling under the same right and requiring like remedy *no [*51 precedent of a writ can be produced, the clerks in chancery shall agree in forming a new one; and, if they cannot agree, it shall be adjourned to the next parliament, where a writ shall be framed by consent of the learned in the law,(m) lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors." And this accounts for the very great variety of writs of trespass on the case to be met with in the register; whereby the suitors had ready relief, according to the exigency of his business, and adapted to the specialty, reason, and equity of his very case.(n) Which provision (with a little accuracy in the clerks of the chancery, and a little liberality in the judges, by extending rather than narrowing the remedial effects of the writ)

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

(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 Kaimes's Histor. Law Tracts, i. 325, 330; Princ. of Equity, 44.

Thus Cicero: "jam 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. l. i.

(2) L. 2, c. 7, fol. 23.

(A) The matters cognizable in this court, immediately before its dissolution, were “almost all suits that, by colour of equity, or supplication made to the prince, might be brought before him; but originally and properly all poor

might have effectually answered all the purposes of a court of equity;(0) except that of obtaining a discovery by the oath of the defendant.

But when, about the end of the reign of king Edward III., uses of land were introduced,(p) and, though totally discountenanced by the courts of common law, were considered as fiduciary deposits and binding in conscience by the clergy, the separate jurisdiction of the chancery as a court of equity began to be established;(9) and John Waltham, who was bishop of Salisbury and chancellor to king Richard II., by a strained interpretation of the above-mentioned' statute of Westm. 2, devised the writ of subpoena, returnable in the court of chancery only, to make the feoffee to uses accountable to his cestuy que use: which process was afterwards extended to other matters wholly determinable at the common law, upon false and fictitious suggestions; for which therefore the chancellor himself is, by statute 17 Ric. II. c. 6, directed to give damages *52] to the party unjustly aggrieved. But as the *clergy, 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 any breach of civil contracts;(r) till checked by the constitutions of Clarendon,(s) which declared that "placita de debitis, quæ fide interposita debentur, vel absque interpositione fidei, sint in justitia regis:" therefore probably the ecclesiastical chancellors, who then. held the seal, were remiss in abridging their own new-acquired jurisdiction; especially as the spiritual courts continued(t) to grasp at the same authority as before in suits pro læsione fidei so late as the fifteenth century, (u) till finally prohibited by the unanimous concurrence of all the judges. However, it appears from the parliament rolls, (w) that in the reigns of Henry IV. and V. the commons were repeatedly urgent to have the writ of subpoena entirely suppressed, as being a novelty devised by the subtlety of chancellor Waltham against the form of the common law; whereby no plea could be determined unless by examination on oath of the parties, according to the form of the law civil, and the law of holy church, in subversion of the common law. But though Henry IV., being then hardly warm in his throne, gave a palliating answer to their petitions, and actually passed the statute 4 Hen. IV. c. 23, whereby judgments at law are declared irrevocable unless by attaint or writ of error, yet his son put a negative at once upon their whole application: and in Edward IV.'s time the process by bill and subpœna, was become the daily prac tice of the court.(x)

*53] *But this did not extend very far: for in the antient treatise entitled diversité des courtes, (y) supposed to be written very early in the sixteenth century, we have a catalogue of the matters of conscience then cognizable by subpoena in chancery, which fall within a very narrow compass. No regular judicial system at that time prevailed in the court; but the suitor, when he thought himself aggrieved, found a desultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman: no lawyer having sat in the court of chancery from the times of the chief justices Thorp and Knyvet, successively chancellors to king Edward III. in 1372 and 1373,(z) to the promotion of Sir Thomas More by king Henry VIII. in 1530. After which the great seal was indiscriminately committed to the custody of lawyers, or courtiers, (a) or church

(0) This was the opinion of Fairfax, a very learned judge in the time of Edward the Fourth. "Le subpæna (says he) ne serrot my cy soventement use come il est ore, si nous attendomus tiels actions sur les cases, et mainteinomus le jurisdiction de ceo court, et d'auter courts." Year-book, 21 Edw. 1V. 23.

(P) See book ii. ch. 20.

(9) Spelm. Gloss. 106. 1 Lev. 242.

(*) Lord Lyttelt. Hen. II. b. iii. p. 361, note.

() 10 Hen. II. c. 15. Speed. 458.

() In 4 Hen. III., suits in court Christian pro læsione fidei npon temporal contracts were adjudged to be contrary to Jaw. Fitz. Abr. tit. Prohibition, 15. But in the statute or writ of circumspecte agatis, supposed by some to have issued 13 Edw. I., but more probably (3 Pryn. Rec. 336) 9 Edw. II., its pro lasine fidei were allowed to the ecclesiastical

courts; according to some ancient copies, (Berthelet stat. antiq. Lond. 1531, 90, b. 3 Pryn. Rec. 386,) and the common English translation of that statute; though in Lyndewode's copy (Prov. 1. 2, t. 2) and in the Cotton MS. (Claud. D. 2) that clause is omitted.

(*) Year-book. 2 Hen. IV. 10. 11 Hen. IV. 88. 38 Hen. VI. 29. 20 Edw. IV. 10.

(w) Rot. Parl. 4 Hen. IV. N° 78 and 110. 3 Hen. V. N° 46, cited in Prynne's Abr. of Cotton's Records, 410, 422, 424, 548. 4 Inst. 83. 1 Roll Abr. 370, 371, 372.

(2) Rot. Parl. 14 Edw. IV. N° 33, (not 14 Edw. III.) as cited 1 Roll. Abr. 370, &c.

() Tit. Chancery, fol. 296. Rastell's edit. A.D. 1534.
(*) Spelm. Gloss. 111. Dugd. Chron. Ser, 50.
(a) Wriothesly, St. John, and Hatton.

men,(b) according as the convenience of the times and the disposition of the prince required, till serjeant Puckering was made lord keeper in 1592; from which time to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was intrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln; who had been chaplain to lord Ellesmere when chancellor.(c)

In the time of lord Ellesmere (A.D. 1616) arose that notable dispute between the courts of law and equity, set on foot by Sir Edward Coke, then chief justice of the court of king's bench; whether a court of equity could give relief after or against a judgment at the common law? This contest was so warmly carried on, that indictments were preferred against the suitors, 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.(d) This matter, being brought before the king, was by him referred to his learned counsel for their advice and opinion; who [*54 reported so strongly in favour of the courts of equity,(e) that his majesty gave judgment in their behalf; but, not contented with the irrefragablo reasons and precedents produced by his counsel, (for the chief justice was clearly in the wrong,) he chose rather to decide the question by referring it to the plenitude of his royal prerogative. (f) Sir Edward Coke submitted to the decision,(g) and thereby made atonement for his error: but this struggle, together with the business of commendams, (in which he acted a very noble part,)(h) and his controlling the commissioners of sewers, (i) were the open and avowed causes,(k) first of his suspension, and soon after of his removal, from his office.

Lord Bacon, who succeeded lord Ellesmere, reduced the practice of the court into a more regular system; but did not sit long enough to effect any considerable revolution in the science itself: and few of his decrees which 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: and even after the restoration the seal was committed to the earl of Clarendon, who had with drawn from practice, as a lawyer, near twenty years; and afterwards to the earl of Shaftesbury, who (though a lawyer by education) had never practised at all. Sir Heneage Finch, who succeeded in 1673, *and became afterwards [*55 earl of Nottingham, was a person of the greatest abilities and most uncorrupted integrity; a thorough master and zealous defender of the laws and constitution of his country; and endued with a pervading genius that enabled him to discover and to pursue the true spirit of justice, notwithstanding the embarrassments raised by the narrow and technical notions which then prevailed in the courts of law, and the imperfect ideas of redress which had possessed the 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, in the course of nine years, to build a system of jurisprudence and jurisdiction upon wide and rational foundations; which have also been extended and improved by many great men who have since presided in chancery. And from that time to this the power and business of the court have increased to an amazing degree.21

(4) Goodrick, Gardiner, and Heath. (e) Biog. Brit. 4278.

(4) Bacon's Works, iv. 611, 612, 682.

(Whitelocke of Parl. ii. 390. 1 Chanc. Rep. Append. 11. (f)“For that it appertaineth to our princely office only to judge over all judges, and to discern and determine such differences as at any time may and shall arise between our several courts touching their jurisdiction, and the same to settle and determine as we in our princely wisdom shall find to stand most with our honour," &c. 1 Chanc. Rep. Append.

26.

(See the entry in the council-book, 26 July, 1616. Biog. Brit. 1390.

(A) In a cause of the bishop of Winchester, touching a commendam, king James, conceiving that the matter affected

his prerogative, sent letters to the judges not to proceed in it till himself had been first consulted. The twelve judges joined in a memorial to his majesty, declaring that their compliance would be contrary to their oaths and the law; but, upon being brought before the king and council, they all retracted and promised obedience in every such case for the future, except Sir Edward Coke, who said "that, when the case happened, he would do his duty." Biog. Brit. 1388. (4) See that article in ch. 6.

(*) See lord Ellesmere's speech to Sir Henry Montague, the new chief justice, 15 Nov. 1616, Moor's Reports, 828. Though Sir Edward might probably have retained his seat, if, during his suspension, he would have complimented lord Villiers (the new favourite) with the disposal of the most lucrative office in his court. Biog. Brit. 1391.

21 Besides the chancellor, the master of the rolls has jurisdiction of judging causes on the

From this court of equity in chancery, as from the other superior courts, an appeal lies to the house of peers. But there are these differences between appeals from a court of equity, and writs of error from a court of law: 1. That the former may be brought upon any interlocutory matter; the latter upon

extraordinary side of the court of chancery. Cardinal Wolsey was, it is said, the first who introduced this power, though then much objected to; yet now it seems he is authorized by special commission under the great seal. Wyatt, Prac. Reg. 278. Com. Dig. Chancery, B. 4. The time and place of his sitting are usually at six o'clock in the evening at his own court in the rolls yard. All decrees made by him must be signed by the lord chancellor before they are enrolled. 3 Geo. II. c. 30, s. 1. By statute 23 Geo. II. c. 25, s. 6, a yearly sum of 12007. was granted to him; and by the late act 6 Geo. IV. c. 84 his salary is raised to 70007. He holds his office by patent for life, and takes the oath prescribed by 18 Edw. III. in open court. Wyatt, Prac. Reg. 277. He takes precedence next after the chancellor, before all other of the judges.

Owing to the great increase of business, and which is still increasing, it was provided, by the 53 Geo. III. c. 24, that his majesty might appoint an additional judge-assistant, called the vice-chancellor, to assist the chancellor, who must be a barrister of fifteen years' standing, to hold his office during good behaviour, subject to removal upon the address of both houses. By sect. 2, he shall hear such cases as the chancellor shall direct. His decrees shall be subject to reversal by the chancellor, and must be signed by the latter before they are enrolled. By sect. 3, he cannot alter or vary a decree of chancellor or master of rolls. Sect. 4 directs in what court he shall sit; and he is to rank next after the master of rolls. Sect. 5 appoints his officers. Sect. 6, how he is to be removed. Sect. 7, oath of office. Sect. 8, his salary, (50007., increased by 6 Geo. IV. c. 84 to 60007.) Sect. 12, that he and his officers shall receive no fees for business done. Query, Whether the vice-chancellor has power to hear, by consent, a motion to discharge or alter an order made by the lord chancellor? See 1 J. & W. 429. If he is authorized to discharge it, he is not to alter it. Id. ib. When sitting for the lord chancellor, he has no jurisdiction to alter or discharge orders made by the chancellor. Id. 431.

Besides the master of the rolls, (the chief,) there are eleven other masters in chancery. Com. Dig. Chancery, B. 5. All answers and affidavits are sworn before one of them and signed; all matters of account, exceptions to answers, &c., irregularities, contempts, and such like, are referred to them. 13 Car. II. st. 6. 12 Geo. I. c. 32. 5 Geo. III. c. 28. 32 Geo. III. c. 42. 9 Geo. III. c. 19. 46 Geo. III. c. 128. Besides these, there are masters extraordinary, appointed in the country to take affidavits, &c. Next in precedence are the six clerks, each of whom has ten sworn clerks under him. The six clerks are principally concerned in matters in equity, and it is their business to transact and file all proceedings by bill and answer, and also to issue certain patents which pass the great seal, as pardons of men for chance medley, patents for ambassadors, sheriff's patents, and some others. All these matters are transacted by their under-clerks. 1 Harr. Ch. P. 75. Though formerly otherwise, clients are now at liberty to choose their own clerks. Ord. Ch. 107. They claim, besides fees of six clerks' offices, others as comptrollers of the hanaper, and for enrolling warrants, for patents, grants, and other matters passing under the great seal and returned into hanaper office. Six clerks and three clerks of petty bag are by letters-patent (16 Eliz.) incorporated and styled clerks of the enrolment of the high court of chancery, and have two deputies. See 14 & 15 Hen. VIII. c. 8.

The office of registrar of this court is of great importance. Com. Dig. Chancery, B. 6. The registrar has four deputies, two of whom always sit in court and take notes of orders and decrees, &c.; and before the same are entered he signs them. 45 Geo. III. c. 75. Besides these, there are the master of the subpoena office, registrar of affidavits, examiners, ushers, accountant-general, (12 Geo. I. c. 32. 12 Geo. II. c. 24. 9 Geo. III. c. 19. 32 Geo. III. c. 42. 46 Geo. III. c. 129. 54 Geo. III. c. 14,) cursitors, clerks of the petty-bag office, serjeant-at-arms, warden of the fleet, clerk of the chapel of the rolls, &c.-CHITTY.

The master of the rolls has long administered justice according to the rules of equity, in a separate court. He is appointed by letters-patent, and was formerly the chief merely of the masters in chancery, who carried out the decrees and performed the ministerial functions of the courts of equity. A recent statute (15 & 16 Vict. c. 80) has provided, however, for the gradual abolition of the masters in chancery and the transference of their functions, under an amended procedure, to the judges and their chief clerks. The jurisdiction of the master of the rolls is regulated by the statute 3 Geo. II. c. 30, by which all decrees and orders made by him, except in matters of bankruptcy and lunacy, which when this statute was passed were appropriated exclusively to the lord chancellor, are to be valid, subject, however, to their being discharged or altered on appeal to the lord chancellor. His jurisdiction is extended by the 3 & 4 W. IV. c. 94; and an appeal now lies from his judgment to the lord chancellor, or to the court of

nothing but only a definitive judgment. 2. That on writs of error the house of lords pronounces the judgment; on appeals it gives direction to the court below to rectify its own decree.

IX. The next court that I shall mention is one that hath no original jurisdiction, but is only a court of appeal, to correct the errors of other jurisdictions. This is the court of exchequer chamber; which was first erected by statute 31 Edw. III. c. 12 to determine causes by writs of error from the common-law side of the court of exchequer. And to that end it consists of the lord chancellor and lord treasurer, taking unto them the justices of the king's bench and common pleas. In imitation of which, a second court of exchequer chamber was erected by statute 27 Eliz. c. 8, consisting of the justices of the common pleas, and the barons of the exchequer, before whom writs of error may be brought to reverse judgments *in certain suits(7) originally begun in the court of king's bench. Into the court also of exchequer chamber (which then [*56 consists of all the judges of the three superior courts, and now and then the lord chancellor also) are sometimes adjourned from the other courts such causes as the judges upon argument find to be of great weight and difficulty, before any judgment is given upon them in the court below.(m)

From all the branches of this court of exchequer chamber a writ of error lies to

X. The house of peers, which is the supreme court of judicature in the kingdom, having at present no original jurisdiction over causes, but only upon appeals and writs of error, to rectify any injustice or mistake of the law com

appeal in chancery. The master of the rolls is, by 1 & 2 Vict. c. 94, the custodier of the public records.

In 1813, an additional judge in chancery, or vice-chancellor, was created, with power to hear and determine all matters depending in the court of chancery, according to the direction of the lord chancellor. This additional assistance was soon found insufficient to keep under the business which flowed into this court; and in 1832 it was relieved from the jurisdiction in bankruptcy, which it had previously exercised, and which was then transferred to the courts of bankruptcy, an appeal, however, being still open to one of the vice-chancellors appointed to sit in bankruptcy. But this appeal must now be made to the court of appeal in chancery. It was still, however, generally admitted that the court of chancery was inadequate to relieve the crowd of suitors who awaited its judg ments, and an increase of judges was loudly called for. Accordingly, when the equity jurisdiction of the court of exchequer was transferred to the court of chancery in 1841, two additional vice-chancellors were appointed, (5 Vict. c. 5;) and a third vicechancellor's court has since been created. 14 & 15 Vict. c. 4. 15 & 16 Vict. c. 80. These judges are to hear and determine all matters depending in the court of chancery,—either as a court of law or equity,-or which have been or shall be submitted to the jurisdiction of the said court or of the lord chancellor by the special authority of any act of parliament. There is an appeal from the judgment of any of the vice-chancellors, either to the lord chancellor or to the court of appeal in chancery.

The court of appeal in chancery was created by the stat. 14 & 15 Vict. c. 83. It consists of two lords-justices, appointed by letters-patent, with whom the lord chancellor sometimes sits to form a full court, but who, with or without the lord chancellor, exercise all the jurisdiction in equity possessed by him, without prejudice to his sitting alone and exercising such jurisdiction alone as formerly. This court may consist of the lord chancellor and the two lords-justices, or of the chancellor and one of such judges, or of the two lords-justices sitting together. The appeal in bankruptcy, formerly to one of the vice-chancellors, is now to the two lords-justices, who, together and exclusive of the lord chancellor, constitute the court of appeal in bankruptcy, whose judgment in such cases is final. An appeal from any judgment or order of the master of the rolls or any of the vice-chancellors lies to this court or to the lord chancellor.

From these courts of equity in chancery, as from the other superior courts, an appeal lies to the house of peers.-STEWART.

By the stat. 11 Ĝeo. IV. and 1 W. IV. c. 70, these courts have been abolished, and the court of exchequer chamber, as it now exists, constituted in their place. Error brought upon (that is to say, an appeal presented against) any judgment given by the courts of Queen's Bench, Common Pleas, or Exchequer is to be heard and determined only by the judges-or judges and barons, as the case may be-of the other two courts in the exchequer chamber, from the judgment of which court no error lies except to the house of lords.-STEWART.