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persons it has been held to be as ancient as the kingdom itself.1 Others are of a different opinion. Lambard, who (according to Lord Coke) was a keeper of the Records of the Tower, and a Master in Chancery, says that he could not find that the chancellor held any Court of Equity, nor that any causes were drawn before the chancellor for help in equity before the time of Henry IV.; in whose days, by reason of intestine troubles, feoffments to uses did first begin, as some think.2 Lord Coke says it has been thought that this Court of Equity began in the reign of Henry V., and increased in the reign of Henry VI.; but that its principal growth was during the chancellorship of Cardinal Wolsey, in the reign of Henry VIII. And he adds, in another place, that we find no cases in our books reported before the reign of Henry VI. Lord Coke's known hostility to the jurisdiction of the Court of Chancery would very much abate our confidence in his researches, if they were not opposed by other pressing authorities.

1 Com. Dig. Chancery, A. 2; Jurisd. of Chancery Vind. 1 Rep. in Chan. App. 9, 10; 1 Collect. Jurid. 28, 29, 30, 62: Discourses on Judicial Authority of the Master of Rolls, 2; Id. Edit. of 1728, Preface, cxi. to cxix. (ascribed to Lord Hardwicke); Barton, Equity, Introd. 2 to 13. This was Lord Hobart's opinion (as we have seen), who added: That part of equity being opposite to regular law, and in a manner an arbitrary discretion, is still administered by the king himself, and his chancellor in his name, ab initio, as a special trust committed to the king, and not by him to be committed to another.' Hob. Rep. 63. Camden (Britannia, p. 181) says: It is plain and manifest that chancellors were in England before the Normans' Conquest.' In the Vindication of the Judgment, given by King James, in the case of the Court of Chancery (1 Collectanea Juridica, pp. 23, 61, 62), it is said: 'It cannot be denied but that the chancery, as it judgeth in equity, is a part of the law of the land and of the ancient common law;' 'for equity is, and always hath been, a part of the law of the land.'

2 2 Inst. 552. But see 1 Wooddes. Lect. vi. p. 176, note (b); Parkes, Hist. Chan. 27; Id. 34; Jurisdiction of Chan. Vind. 1 Rep. in Chan. App. 7, 8; 1 Collect. Jurid. 27; Legal Judic. in Chan. stated (1727), pp. 28, 29.

3 2 Inst. 553.

4 4 Inst. 82.

5 3 Black. Comm. 54; 1 Collect Jurid. 23, &c.; Com. Dig. Chancery, A. 2; 1 Wooddes. Lect. vi. pp. 176, 177. Camden (Britannia, p. 181) says: To this chancellor's office, in process of time, much authority and dignity hath been adjoined by authority of Parliament; especially ever since that lawyers stood so precisely upon the strict points of law, and caught men with the traps and snares of their law terms; that of necessity there was a Court of Equity to be erected, and the same committed to the chancellor, who might give judgment according to equity and reason, and moderate the extremity of law, which was wont to be thought extreme wrong.'

Mr. Cooper, in his Lettres sur la Cour de la Chancellerie (Lettr. 25, p. 182),

42. Lord Hale's account of the matter is as follows: There were many petitions referred to the Council (meaning either the Privatum Concilium or Legale Concilium Regis) from the Parliament; sometimes the answers to particular petitions, and sometimes whole bundles of petitions in Parliament which by reason of a dissolution could not be there determined, were referred, in the close of the Parliament, sometimes to the Council in general, and sometimes to the chancellor. And this I take to be the true original of the Chancery Jurisdiction in matters of equity, and gave rise to the multitude of equitable causes to be there arbitrarily determined.' And he afterwards adds: Touching the equitable jurisdiction (in chancery), though in ancient time no such thing was known, yet it hath now so long obtained, and is so fitted to the disposal of lands and goods, that it must not be shaken, though in many things fit to be bounded or reformed. Two things might possibly give original [jurisdiction], or at least much contribute to its enlargement. (1) The usual committing of particular petitions in Parliament, not there determined, unto the determination of the chancellor, which was as frequent as to the Council; and such a foundation being laid for a jurisdiction, it was not difficult for it to acquire more. (2) By the invention of uses (that is, trusts), which were frequent and necessary, especially in the times of dissension touching the Crown. In these proceedings the chancellor took himself to be the only dispenser of the king's conscience; and possibly the Council was not called, either as assistants or co-judges.'1 We shall presently see how far these suggestions have been established.

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43. Lord Hardwicke seems to have accounted for the jurisdiction in another manner. The chancery is the grand Officina Justitiæ, out of which all original writs issue under the great

says that there is not a doubt that the jurisdiction now exercised by the chancellor to mitigate the severity of the common law has always been a part of the law of England. And he cites, in proof of it, the remark, stated in Burnet's Life of Lord Hale, p. 106, that he (Lord Hale) did look upon equity as a part of the common law, and one of the grounds of it. There is no doubt that this remark is well founded; but it may well be doubted whether Lord Hale meant anything more than a general assertion, that in the administration of the common law there often mingled equitable considerations and constructions, and not merely a strict and rigid summum jus.

1 Parkes, Hist. Chan. App. pp. 502, 503. See also Hist. Chan. (1726), 11, 12, 13, 14; Parkes, Hist. Chan. 56.

seal, returnable into the Courts of Common Law, to found proceedings in actions competent to the Common Law Jurisdiction. The chancellor therefore (according to Lord Hardwicke) was the most proper judge whether upon any petition so referred such a writ could not be framed and issued by him as might furnish an adequate relief to the party; and if he found the common-law remedies deficient, he might proceed according to the extraordinary power committed to him by the reference: Ne Curia Regis deficeret in justitia exercenda. Thus the exercise of the equitable jurisdiction took its rise from his being the proper officer to whom all applications were made for writs to ground actions at the common law; and from many cases being brought before him in which that law would not afford a remedy, and thereby being induced through necessity or compassion to extend a discretionary remedy. If (Lord Hardwicke added) this account of the original of the jurisdiction in equity in England be historically true, it will at least hint one answer to the question how the forum of common law and the forum of equity came to be separated with us. It was stopped at its source, and in the first instance; for if the case appeared to the chancellor to be merely of equity, he issued no original writ, without which the Court of Common Law could not proceed in the cause, but he retained the cognizance to himself. The jurisdiction then may be deemed in some sort a resulting jurisdiction in cases not submitted to the decision of other courts by the Crown, or Parliament, as the great fountain of justice.4

44. Lord King (or whoever else was the author of the treatise entitled, The Legal Judicature in Chancery stated') 5

1 An account, nearly similar, of the Court of Chancery, is given in Bacon's Abridg. Court of Chancery, A. C.

2 Parkes, Hist. Chan. App. pp. 503, 504.

8 Id. Rex v. Hare, 1 Str. Rep. 150, 151. Per Yorke arguendo.

Id. 502; Hist. of Chan. (1726), pp. 9, 10, 12, 13; Parkes, Hist. of Chan. 56. Sir James Mackintosh, in his elegant Life of Sir Thomas More, has sketched out a history of chancery jurisdiction not materially different from that given by Lord Hardwicke, aided, as he was, by the later discoveries of the Commissioners of the Public Records, as stated in their printed reports. I would gladly transcribe the whole passage, if it might not be thought to occupy too large a space for a work like the present.

5 Mr. Cooper, in his Lettres sur la Cour de la Chancellerie, 85, note (1), expresses a doubt whether Lord King was the author of this pamphlet, stating that it was written by the same person who wrote the History of the Chancery,

deduced the jurisdiction of the Court of Chancery from the prerogative of the king to administer justice in his realm, being sworn by his coronation oath to deliver his subjects æquam et rectam justitiam. This it was impossible for him to do in person; and therefore of necessity he delegated it, by several portions, to ministers and officers deputed under him. But inasmuch as positive laws must in their nature consist of general institutions, there was of necessity a variety of particular cases still happening where no proper or adequate remedy could be given by the ordinary courts of justice. Therefore to supply this want, and correct the rigor of the positive law, recourse was had to the king as the fountain of justice, to obtain relief in such cases. The method of application was by bills or petitions to the king, sometimes in Parliament and sometimes out of Parliament, commonly directed to him and his Council; and the granting of them was esteemed not a matter of right, but of grace and favor. When Parliament met, there were usually petitions of all sorts preferred to the king; and the distinguishing of these petitions and giving proper answers to them occasioned a weight and load of business, especially when Parliament sat but a few days.1 Accordingly in the 8th of the reign of Edward I. an ordinance passed by which petitions of this sort were to be referred, according to their nature, to the chancellor and the justices; and in matters of grace, to the chancellor. And if the chancellor and others could not do without the king, then they were to bring the matter with their own hands before the king, to know his pleasure. So that no petitions should come before the king and his Council, but by the hands of the chancellor and other chief ministers.2 And hence the writer deduces the

relating to the judicial power of that court and the rights of the Masters (1726). Bishop Hurd, in his Life of Warburton, says that they were both written by Mr. Burrough, with the aid of Bishop Warburton. The discourse of the Judicial Authority of the Master of the Rolls is said to have been written by Lord Hardwicke alone, or in conjunction with Sir Joseph Jekyll. Cooper, Lettres, &c., p. 334, App. C.; Id. p. 85, note.

1 Parkes, Hist. Chan. 56.

2 Legal Judic. in Chan. (1727), pp. 27, 28, 29. The Ordinance (8 Edw. I.), is cited at large in the work, The Legal Judicature, &c., p. 27, and is as follows. It recites that the people who came to Parliament were often ' delayed and disturbed, to the great grievance of them and of the court, by the multitude of petitions laid before the king, the greatest part whereof might be despatched by the chancellor and by the justices; therefore it is

conclusion that at this time all matters of grace were determinable only by the king. And he added that he did not find any traces of a Court of Equity in chancery in the time of Edward II., and that it seemed to him that the equity side of the court began in the reign of Edward III.,' when by proclamation he referred matters of grace to the cognizance of the chancellor.2

provided that all the petitions which concern the seal shall come first to the chancellor; and those which touch the exchequer, to the exchequer; and those which concern the justices and the law of the land, to the justices; and those which concern the Jews, to the justices of the Jews; and if the affairs are so great, or if they are of grace, that the chancellor and others cannot do it without the king, then they shall bring them with their own hands before the king, to know his pleasure; so that no petitions shall come before the king and his Council, but by the hands of his said chancellor and other chief ministers; so that the king and his Council may, without the load of other business, attend to the great business of his realm and of other foreign countries.' The same ordinance will be found in Ryley, Placit. Parliam. p. 442, and Parkes, Hist. Chan. 29, 30.

1 Legal Judic. in Chan. (1727), p. 28.

2 Id. 30, 31 (22 Edw. III.). See Parkes, Hist. Chan. 35; 1 Equity Abr. Courts, B. note (a). The proclamation is given in the Legal Judicature, &c., pp. 30, 31, and in Parkes, History of Chancery, p. 35. It is as follows: The King to the sheriffs of London greeting: Forasmuch as we are greatly and daily busied in various affairs concerning us and the state of our realm of England: We will, That whatsoever business, relating as well to the common law of our kingdom as our special grace, cognizable before us, from henceforth be prosecuted as followeth, viz. The common law business, before the Archbishop of Canterbury elect, our chancellor, by him to be despatched; and the other matters, grantable by our special grace, be prosecuted before our said chancellor, or our well-beloved clerk, the Keeper of the Privy Seal, so that they, or one of them, transmit to us such petitions of business which without consulting us they cannot determine, together with their advice thereupon, without any further prosecution to be had before us for the same; that upon inspection thereof we may further signify to the aforesaid chancellor or keeper our will and pleasure therein; and, that none other do for the future pursue such kind of business before us, we command you immediately, upon sight hereof, to make proclamation of the premises,' &c. Mr. Lambard, in his work on the Jurisdiction of Courts, says of the Court of Chancery, that 'the king did at first determine causes in equity in person; and about the 20th of Edward III., the king, going beyond sea, delegated this power to the chancellor;' and then, he says, Several statutes were made to enlarge the jurisdiction of this court, 17 Rich. II. ch. 6,' &c. Bigland arguendo in Rex v. Standish (1 Mod. R. 59). And Bigland then adds,' But the chancellor took not upon him, ex officio, to determine matters in equity, till Edward the Fourth's time; for till then it was done by the king in person, who delegated to whom he pleased.' This last remark seems, from the recent publication of the Record Commissioners, to be founded in error. 1 Cooper, Public Rec. p. 354, ch. 18.

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