LECTURE XXXIII.

The jurisdiction of the high court of chancery—The Chancellor, a very considerable officer in the Curia Regis—The repeal of letters patent, improvidently issued to the detriment of the King or the subject, a branch of the jurisdiction of the court of chancery—The chancery, assistant to the exchequer in matters of the King’s revenue—Other branches of the business of this court.

In my last lecture, having taken notice, that, in the reign of Henry the Second, the curia regis and the Exchequer, which dealt with the king’s revenue, were distinct courts, and that there were even traces of the Common Pleas, as another court, different from the higher court, the curia regis; I took occasion to treat of these several courts, and the several limits of their jurisdictions; although the now general opinion be, that these courts were not separated till after the barons wars, that is, not until an hundred years later; which opinion, as I conceive, hath, thus far, its foundation in truth, that the precise limits of their several jurisdictions were not perfectly ascertained, and kept distinct till then, though the division had been made before, that is, about the time I am now treating of. For, if it be a good maxim, as my Lord Coke says, boni judicis est officium ampliare jurisdictionem, it is not to be wondered at, that, for some time after the separation, the Justiciarius Angliæ, who had the sole jurisdiction in him before, should retain, in many instances, the exertion of it, where, after the separation, the matter properly belonged to another court.

The maxim, indeed, is, in my opinion, utterly false. For where there are separate courts with distinct powers, surely it is the duty of each court, were it only to prevent confusion, to keep within their proper limits. However thus much must be allowed in justification of Lord Coke’s maxim, that, as it is too much the inclination of human nature, when in power, to grasp at more than is properly our due, so the judges of all courts, and of all nations, have been as little exempt from this infirmity as any other set of men. Witness the outrageous usurpation upon the temporal jurisdiction in antient days, both by the ecclesiastical judges in the times of the Pope’s grandeur, and by the judges of the constables and admirals courts, when supported by arbitrary kings[363].

The temporal judges, on the other hand, with a firmness highly to be commended, have successfully not only resisted these encroachments, but, by way of reprizals, have, in these latter days, made considerable inroads into the antiently allowed territories of those courts; not to the detriment of the subject, I must confess; for the method of trial by the common law, is certainly preferable to theirs. But the common law courts have not satisfied themselves with extending their jurisdiction, in derogation of those courts, which they justly looked on, in those days, as enemies to them, and to the laws and constitution of the kingdom, but they have made invasions into each others territories, and, by what they call fictions of law, have made almost all causes, except criminal ones, cognizable in any court; contrary to the very intention of dividing the courts; which was, that each should have their separate business, and that the judges and practitioners, by being confined in a narrower track, should be more expert in their different provinces[364].

In treating of these courts, I began with the King’s Bench, which, as long as the office of Justiciarius Angliæ subsisted, was the superior; but since Edward the First discontinued that office, on account of its too great power, and the business of that officer hath been shared between several judges, the rank of this court hath declined, and the Chancery hath obtained the first place. To this court, then, I shall now proceed. And as in it there are, at present, and have been for some ages, two distinct courts, one ordinary, proceeding by common law, and the other extraordinary, according to the maxims of equity, where common law could give no relief; I shall, for the present, confine myself to the former, and defer treating of the latter, until I come to that period when the Equity jurisdiction arose.

In the antient times, before the division of the courts, the chancellor was a very considerable officer of the curia regis. It was his business to write and seal with the great seal the diplomata, or chartæ regis, what we now call letters patents; to issue all writs, either for founding the jurisdiction of the curia regis, and the bringing causes into that court, that by the antient law belonged to the courts in the country; or those to the nobles, to summon them to attend the commune concilium, or parliament. Afterwards, when the House of Commons was formed, he issued writs to the proper places, for the election of the members thereof. Hence, when the courts were divided, the making out letters patents, the keeping the inrolments thereof, and issuing of original writs, as they are called, that is, those that found the jurisdiction of courts, and other writs of like nature, continued to belong to him; and, as these records remained with him, there arose to him a jurisdiction concerning them; except as to such writs as were intended to found the jurisdiction of another court, which, though issued from Chancery, were returnable into the proper court, and the cause determined there[365].

The first branch of the jurisdiction of this court, then, was the repeal of letters patents, that had issued improvidently, to the detriment of either of the king or the subject; and this properly fell to the lot of the chancellor, as he made out the patents, and kept the enrolments of them. The method of repealing those was by a writ called scire facias notified to the party claiming under the patent, and calling him in to shew cause why it should not be revoked. This scire facias issued in three cases: the first, at the suit of a subject; where two patents were granted to two persons of the same thing, the first patentee brought a scire facias against the second, to repeal his grant; the other two were at the suit of the king, where the king was deceived, either by false suggestions of merit, or as to the value of the thing granted; or, in the second place, if the king had, by his patent, granted what by law he could not have granted. Here, if the case was clear in law, and there was no controverted matter of fact necessary to be settled, to ascertain the right, the chancellor was judge; and if his judgment was against the patent, it was his duty to cancel the inrolment thereof; from which part of his office he had his name. I say if the case was clear in law, and there was no controverted matter of fact; for, if this latter was the case, he could not try it, he being antiently but an officer of the curia regis, and not a judge; and therefore unqualified to summon a jury. The rule continued the same after the separation of the courts, and his becoming a judge; principally, as I conceive, for the preservation of the common law, and the birthright of Englishmen, the trial by jury. For, as the chancellor was almost always, in those days, an ecclesiastic, and consequently supposed more attached to the civil and canon law, there might be danger, if he was suffered to try matter of fact himself, he might introduce a new method of trial. When, therefore, the cause was heard upon a demurrer, that is, the facts admitted of both sides, and only the law in dispute, he gave judgment; but if they came to issue on a fact, he must carry the record over to the King’s Bench, who summoned the jury, and gave judgment on the verdict[366].

Another branch of his jurisdiction was with relation to the inquisitions of office. There are many officers whose duty it is to take care of the profits and revenues of the king, and to that purpose they are sworn in the Exchequer; such as escheators, sheriffs, and others, whose duty it is to make enquiry what the king is entitled to in their respective limits, whether lands or chattels, or by what title. For this purpose they are to summon juries, and to return the verdicts found to the court of the revenue of the Exchequer, in order that that court may take care of the king’s rights. These were called inquisitions, or enquiries, of office, as proceeding from the duty of an officer that made them. But these officers being negligent in the performance of this their duty, it became sometimes necessary, and afterwards customary to quicken them, by issuing writs for this purpose; and these writs issued out of Chancery, the Officina Brevium; and then, that it might be seen they were properly obeyed, the return of the inquisition was made into the court that issued the writ, and thus, the Chancery gained a jurisdiction in this point, and became an assistant to the Exchequer in the matters of the king’s revenue; not indeed in the administration thereof, but in bringing it into the king’s possession[367].

It is a maxim in the English law, that nothing can pass from the king to a subject but by matter of record, which maxim was not only advantageous to the royal estate, as preventive of persons getting grants by surprise, but also advantageous to the subject in the firmness of his title, when once he had obtained it. And, on the contrary, the regular and equal way of restoring possessions to the crown was by record also, that is, by inquisitions finding the king’s title returned, as I have mentioned. But as the verdicts taken in these inquisitions may be erroneous, and detrimental to another person, by finding what was really his property, to have been the property of another, and to have accrued to the king by forfeiture or escheat; and as, regularly, by another maxim of law, there is no averring against or contesting a record, it was necessary that the bare return of inquisition into Chancery should not be final and conclusive, but that time should be given to any that thought himself affected to claim his right. Hence a month’s time is given by statute, after the return of the inquisition, in which any person may come in and traverse the office, that is, contest the validity of it. And here the chancellor is judge, in the same manner as in the repeal of letters patents, that is, if the subject of the controversy depends merely upon matter of law; but if the parties come to an issue on matter of fact, he cannot try it, for the reason above given, but it must go to the King’s Bench[368].

Another branch of the judicial business is the hearing of petitions to the king for justice in his own causes. No man, by the feudal principles of our law, can bring an action against the king. For the charging him with wrong doing would be a breach of fealty. The king cannot, by our law, do wrong; but yet, from the multiplicity of his occupations, or from his being misinformed, the subject may sometimes suffer wrong from him. The remedy thereof, in this case, is by humble petition to the king, that he would enquire into the cause, and do justice to the party, which, though conceived in an humbler strain, is as effectual as an action, and must be tried in this court, the proper channel to convey his majesty’s graces, and the king, by his chancellor, dispenses justice to the party.

Another branch of the judicial business of this court was the proceeding in certain cases against persons privileged, that is, the officers of the court, who being supposed to be constantly attendant, were to be sued here, as the officers of other courts, were in their respective courts.

Lastly, this court had jurisdiction with respect to proceeding upon recognizances, or acknowledgments of obligations taken in this court, which being here recorded, and not to be removed, were properly here triable[369].

There are some other causes, proper for the jurisdiction of Chancery, which would carry me too far at present. I shall, therefore, conclude here with mentioning one striking difference between this and the other courts, that they sit only in the times of the four terms, whereas it is open all the year. The confining the others to the terms arose from the religion of the times, and the inquisitions of canon law, which forbad courts to be held during the seasons of the three great festivals, and of harvest. In obedience to this law, I may say (for the papal power was then very high in England) was our Michaelmas vacation set apart for the solemnization of Christmas, the Hillary vacation for Easter, the Easter vacation for Whitsuntide, and the Trinity or long vacation, for the uses of husbandry. But great would be the evils, if that court which is the Officina Justiciæ, the Shop of Justice, were to be ever shut. Writs, therefore, issued hence at all times, and all such causes as, for the public good, cannot brook delay till the ordinary times of sitting of other courts, are here handled in the vacations, such as to mention a few, habeas corpus’s and homine replegiando’s, to restore persons imprisoned to liberty, prohibitions to keep inferior courts within their proper limits; and replevins, to restore the possession of goods distrained.

But the great business of this court, as a court of common law, was, that it was the Officina Brevium, the shop where original writs were purchased by suitors, in order to commence their actions. An original writ, in the most common form, is an order to the sheriff to summon the party complained of to do justice to, or else to answer to the complainant in the proper court; containing a short description of the complainant’s title, and the wrong done to him, from whence, in Latin, it is called Breve, and answers to the original citation in the Roman and ecclesiastical laws. This, and the making out patents, was the principal business of the chancellor in the curia regis, and therefore naturally continued with him after the division of the courts. The reasons assigned by Gilbert for having one of these superior courts a public shop for justice, are three; first, that it might appear that all power of judicature flowed from the crown; secondly, that the crown might not be defrauded of the fines due to it for suffering persons to desert the inferior courts, and to sue for justice immediately from the king; and lastly, to preserve an uniformity in the law; for these writs being made out in one constant form contributed greatly thereto, being both a direction to the judge, and a limitation of his authority.

Originally, the chancellor heard the complaints of the person injured, and formed a writ according to the nature of the case, but as, among a rude military people, little versed in commerce, and the variety of transactions that attend it, the complaints of the people were confined in a narrow compass, it but seldom happened, after some time, that there was occasion for making a new writ, in a form different from what had been used before. These forms, therefore, were collected into a book of our law, called the Register, the antientest book of our law; and the making them out, being now matter of course, nothing more than copying out the old terms, inserting the proper names of persons, and places, and the chancellor’s business encreasing, became devolved upon the chancellor’s clerks, the Clerici, as they were antiently, or the Masters, as they are now called, of Chancery; and they were restrained from making out any of a different form from those in the Register. However, as, in process of time, cases would happen which none of the forms in that book would suit, and it was looked on as the corner-stone of the law, the chancellor could not of himself venture to make out new and unusual writs, but referred the complainants, in such cases, to petition the parliament for remedy[370].

These petitions afterwards growing too frequent, and interrupting the public business, it was found necessary to enlarge the power of the Masters of Chancery, and to give them a qualified power of forming new writs. This was done by the statute of Westminster the second, cap. 24, in Edward the First’s reign; it runs thus: Quotiescunque de cætero evenerit me cancellaria, quod in uno casu reperitur breve, & in consimili casu cadente sub eodem jure, & simili indigente remedio, non reperitur, concordent clerici de cancellaria in breve faciendo, vel atterminent querentes in proximum parliamentum, & scribantur casus, in quibus concordare non possunt, & referant eos ad proximum parliamentum, & de consensu jurisperitorum fiat breve ne contingat de cætero, quod curia domini regis deficiat conquerentibus in justitia perquirenda; which last words, ne contingat, &c. gave a handle, as I shall shew hereafter, to this court to erect their equitable jurisdiction[371].

We see how this power given to the Masters was limited: it must be exercised only in cases parallel to such as there was a remedy already provided for; all the Masters must agree in the form of the new writ; and the remedy must be the same as was in the similar case in the Register. To illustrate this by the example of the first writ formed by the Masters upon this statute, and which therefore, by way of eminence, is called a writ, in consimili casu. The statute of Glocester ordered the Chancery to form a writ for the relief of the person in reversion, where a tenant in power had aliened her dower. The writ was accordingly framed, and inserted in the Register. Now, by virtue of this statute of Westminster, the Masters framed the writ in casu consimili, in favour of the person in reversion, where a tenant by the courtesy, or tenant for life, had aliened, he being equally damaged as the former case. But though this was particularly called a writ, in casu consimili, there were many others formed by virtue of this statute, such as for various kinds of trespasses unknown in former ages, and actions upon the case, so frequent in these our days, and so called, because the writ is formed according to the circumstances of the case, and not upon the old forms continued in the Register.

This new employment of Masters in Chancery, and the business of the court encreasing, created a necessity of erecting new officers, to make out the brevia de cursu, namely, those in the Register, who were therefore called Curritors. The chief of the Masters is Keeper of the Rolls of this court, which was formerly a part of the chancellor’s business; and he is therefore called Master of the Rolls. For ages past, since the Equity business multiplied in England, this officer has been there, in matters of equity, an assistant judge to the chancellor, but his decrees are liable to a rehearing, and to be reversed by the chancellor. But in this kingdom, the office hath not had any judicial authority annexed to it.