Sunday, September 3, 2017

Blackstone's Account of the History and Jurisdiction of the High Court of Chancery

Posting here Sir William Blackstone's account of the Court of Chancery, included in Chapter 4 of Book III of his Commentaries of the Laws of England.

Source:
William Blackstone, Commentaries on the Laws of England, 7th Edition, Book III (Oxford, William Strahan, Thomas Cadell and Daniel Prince, 1775), pp. 46—55


VIII. The high court of chancery is the only remaining, and in matters of civil property by much the most important of any, of the king's superior and original courts of justice. It has it's name of chancery, cancellaria, from the judge who presides here, the lord chancellor or cancellarius; who, sir Edward Coke tells us, is so termed a cancellando, from cancelling the king's letters patent when granted contrary to law, which is the highest point of his jurisdictionn But the office and name of chancellor (however derived) was certainly known to the courts of the Roman emperors: where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a general superintendency over the rest of the officers of the prince. From th Roman empire it passed to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved it's chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all the charters, letters, and such other public instruments of the crown, as were authenticated in the most solemn manner: and therefore when seals came in use, he had always the king's great seal. So that the office of chancellor, or lord keeper, (whose authority by statute 4 Eliz. c. 18. is declared to be exactly the same) is with us at this day created by the mere delivery of the king's great seal into his custodyo: whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom; and superior in point of precedency to every temporal lord p. He is a privy counsellor by his office officeq, and, according to lord chancellor Ellesmerer, prolocutor of the house of lords by prescription. To him belongs the appointment of all justices of the peace throughout the kingdom. Being formerly usually an ecclesiastic, (for none else were then capable of an office so conversant in writings) and presiding over the royal chapels, he became keeper of the king's conscience; visitor, in right of the king, of all hospitals and colleges of the king's foundation; and patron of all the king's livings under the value of 20 l. per annum in the king's books. He is the general guardian of all infants, idiots, and lunatics; and has the general superintenance of all charitable uses in the kingdom. And all this, over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the court of chancery; wherein, as in the exchequer, there are two distinct tribunals: the one ordinary, being a court of common law; the other extraordinary, being a court of equity.

The ordinary legal court is much more antient than the court of equity. It's jurisdiction is to hold plea upon a scire facias to repeal and cancel the king's patent, when made against law, or upon untrue suggestions; and to hold plea of petitions, monstrans de droit, traverses of offices, and the like; when the king hath been advised to do any act, or is put in possession of any lands or goods, in prejudice of a subject's rightt. On proof of which, as the king can never be supposed intentially to do any wrong, the law questions not but he will immediately redress the injury; and refers that conscientious task to the chancellor, the keeper of his conscience. It also appertains to this court to hold plea of all personal actions, where any officer or minister of the court is a partyu. It might likewise hold plea (by scire facias) of partitions of lands in coparcenaryw, and of dowerx, where any ward of the crown was concerned in interest, so long as the military tenures subsisted: as it may also do of the tithes of forest land, where granted by the king and claimed by a stranger against the grantee of the crowny; and of executions on statutes, or recognizances in nature thereof by the statute 23 Hen. VIII. c. 6z. But if any cause comes to issue in this court, that is, if any fact be disputed between the parties, the chancellor cannot try it, having no power to summon a jury; but must deliver the record propria manu into the court of king's bench, where it shall be tried by the country, and judgment shall there be given thereona. And when judgment is given in chancery upon demurrer or the like, a writ of error, in nature of an appeal, lies out of this ordinary court into the court of king's benchb: though so little is usually done on the common law side of the court, that I have met with no traces of any writ of errorc being actually brought, since the fourteenth year of queen Elizabeth, A. D. 1572.

In this ordinary, or legal, court is also kept the officina justiciae: out of which all original writs that pass under the great seal, all commissions of charitable uses, sewers, bankruptcy, idiotcy, lunacy, and the like, do issue; and for which it is always open to the subject, who may there at any time demand and have ex debito justitiae, any writ that his occasions may call for. These writs (relating to the business of the subject) and the returns to them were, according to the simplicity of antient times, originally kept in a hamper, in hanaperio; and the others (relating to such matters wherein the crown is immediately or mediately concerned) were preserved in a little sack or bag, in parva baga; and thence hath arisen the distinction of the hanaper office, and petty bag office, which both belong to the common law court in chancery.

But the extraordinary court, or court of equity, is now become the court of the greatest judicial consequence. This distinction between law and equity, as administred in different courts, is not at present known, nor seems to have ever been known, in any other country at any timed: and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romanse; the jus praetorium, or discretion of the praetor, being distinct from the leges or standing lawsf: but the power of both centered in one and the same magistrate, who was equally instrusted 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 Bractong 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 jurisdictions) is there a syllable to be found relating to the equitable jurisdiction of the court of chancery. It seems therefore probable, that when courts of law, proceedin 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 requestsh, 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 judments 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 regiai, but also after it's dissolution, in the reign of king Edward Ik; and perhaps during it's continuance, in that of Henry IIl.

In these early times the chief juridical 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 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 lawm. 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 suitor had ready relief, according to the exigency of his business, and adapted to the specialty, reason, and equity of his very casen. 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) might have effectually answered all the purposes of a court of equityo; 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 introducedp, 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 establishedq; 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 centuy 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. 6. directed to give damages to the parties 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 laesione fidei, as a spiritual offence against conscience, in case of nonpayment of debts or any breach of civil contractsr; till checked by the constitutions of Clarendons, which declared that “placita de debitis, que fide interposita debentur, vel absque interpositione fidei, sint in justicia 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 continuedt to grasp at the same authority as before, in suits pro laesione fidei, so late as the fifteenth centuryu, till finally prohibited by the unanimous concurrence of all the judges. However, it appears from the parliament rollsw, 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 subtilty of chancellor Waltham, against the form of the common law; whereby no plea could be determined, unless by examination and 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 on their whole application: and in Edward IV's time, the process by bill and subpoena was become the daily practice of the courtx.

But this did not extend very far: for in the antient treatise, entitled diversite des courtesy, 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 sate in the court of chancery from the times of the chief justices Thorpe and Knyvet, successively chancellors to king Edward III in 1372 and 1373z, 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 courtiersa, or churchmenb, 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 chancellorc.

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, the solicitors, the counsel, and even a master in chancery, for having incurred a praemunire, by questioning in a court of equity a judgment in the court of king's bench, obtained by gross fraud and impositiond. This matter, being brought before the king, was by him referred to his learned council for their advice and opinion; who reported so strongly in favour of the courts of equitye, that his majesty gave judgment on their behalf: but, not contented with the irrefragable 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 prerogativef. Sir Edward Coke submitted to the decisiong, and thereby made atonement for his error: but this struggle, together with the business of commendams (in which he acted a very noble parth) and his controlling the commissioners of sewersi, were the open and avowed causesk, 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 withdrawn 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 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, cooperated 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.

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 on 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 it's own decree.


n 4 Inst. 88.

o Lamb. Archeion. 65. 1 Roll. Abr. 385.

p Stat. 31 Hen. VIII. c. 10.

q Selden. office of lord chanc. § 3.

r of the office of lord chancellor. edit. 1651

s Madox. hist. of exch. 42.

t 4 Rep. 54.

u 4 Inst. 80.

w Co. Litt. 171. F.N.B. 62.

x Bro. Abr. tit. dower. 66. Moor.565.

y Bro. Abr. t. dismes. 10.

z 2 Roll. Abr. 469.

a Cro. Jac. 12. Latch. 112.

b Yearbook, 18 Edw. III.25. 17 Ass.. 24. 29 Ass. 47. Dyer. 315 1 Roll. Rep. 287. 4 Inst. 80.

c The opinion of lord keeper North in 1682 (1 Vern. 131. 1. Equ. Cas.abr. 129.) that no such writ of error lay, and that an injunction might be issued against it, seems not to have been well considered.

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

e 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 Kayms. histor. law tracts, I. 325. 330. princ. or equit. 44.)

f Thus Cicero: “jam illis promissis non esse standum, quis non videt, quae coactus quis metu et deceptus dolo promiserit? quae quidem plerumque jure praetorio liberantur, nonnulla legibus.” Offic. l. 1.

g l. 2. c. 7 fol. 23.

h The matters congnizable in this court, immediately before it's 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 men's suits, which were made to his majesty by supplication; and upon which they were entitled to have right, without payment of any money for the same.” (Smith;s commonwealth. b. 3. c. 7.)

i Nemo ad regem appellet pro aliqua lite, nisi jus domi consequi non possit. Si jus nimis severum sit, alleviatio deinde quaeratur apud regum. LL. Edg. c. 2.

k Lambard. Archeion. 59.

l Jeannes Sarisburiensis (who died A.D. 1182, 26 Hen. II.) speaking of the chancellor's office in the verses prefixed to his polycraticon, has these lines;
Hic est, qui leges regni cancellat iniquas;
Et mandata pii principis aequa facit.

m A great variety of new precedents of writs, in cases before unprovided for, are given by this very statute of Westm. 2.

n Lamb. Archeion. 61.

o This was the opinion of Fairfax, a very learned judge in the time of Edward the fourth. “Le subpoena (says he) ne ferroit 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.” (Yearb. 21 Edw. IV. 23.)

p See book II. ch. 20.

q Spelm. Gloss. 106. 1 Lev. 242.

r Lord Lyttelt. Hen. II. b. 3. p. 361. not.

s 10 Hen. II. c. 15. Speed. 458.

t In 4 Hen III. suits in court christian pro laesione fidei upon temporal contracts were adjudged to be contrary to law. (Fitzh. Abr. t. 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. II, suits pro laesione fidei were allowed to the ecclesiastical courts; according to some antient copies, (Berthelet stat. antiqu. Lond. 1531. 90 b. 3 Pryn. Rec. 336) and the common English translation, of that statute: though in Lyndewode's copy (Prov l. 2. t. 2.) and in the Cotton MS. (Claud. D. 2.) that clause is omitted.

u Yearb. 2 Hen. IV. 10. 11 Hen. IV. 88. 38 Hen. VI. 29. 20 Edw. IV. 10.

w Rot. Parl. 4 Hen. IV. no. 78 &c 110 3 Hen. V. no. 46. cited in Pryanne's abr. of Cotton's records. 410. 422. 424. 548. 4 Inst 83. 1 Roll. Abr. 370, 371, 372.

x Rot. Parl. 14 Edw. IV. no. 33. (not 14 Edw. III. as cited in 1 Roll.Abr. 370, &c..)

y tit. chancery. fol. 296. Rastell's edit. A.D. 1534.

z Spelm. Gloss. 111. Dug. chron. Ser. 50.

a Wriothesly, St John, and Hatton.

b Goodrick, Gardiner, and Heath.

c Biogr. Brit. 4278.

d Bacon's Works. IV. 611, 612, 632.

e Whitlocke of parl. ii. 390. I Chan. Rep. append. 11.

f “For that it appertaineth to our princely office only to judge over all judges, and to discern and determine such difference, as at any time may and shall arise between our seveal courts touching their jurisdictions, and the same to settle and determine, as we in our princely wisdom shall find to stand most with our honour, &c.” (1 Chan. Rep. append. 26.)

g See the entry in the council book, 26 July, 1616. (Biogr. Brit. 1390.)

h 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 for sir Edward Coke, who said, “that when the case happened, he would do his duty.” (Biogr. Brit. 1388.)

i See that article in chap. 6.

k See lord Ellesmere's speech to sir Henry Montague, the new chief justice, 15 Nav. 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. (Biogr. Brit. 1391.)

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