The Great Council-its Jurisdiction.

331

The council also appears to have exercised a prerogative jurisdiction in cases of fraud, deceit, and dishonesty, not so tangible as to be within the reach of the common law; and int. alia to have issued writs of ne exeat regno in civil cases against foreign debtors who desired to escape from payment of their debts (a).

The clergy, as before observed, having been excluded in the time of Henry III. from entertaining any question as to fidei læsio and juramenti transgressio, may account for the council having been applied to in cases of fraud and deceit, after the reign of that monarch.

The interference of the Prerogative with the ordinary course of justice to the extent and in manner above described, appears to have been recognized in early times as constitutionally unobjectionable; but to provide against abuse, the Barons at various times claimed to have a voice in the appointment of the Chancellor, Judges, and great officers of state, who were ex officio members of the select council, and which at times they exercised in Parliament (b). By the articles agreed on in the eighth year of Henry VI. it was provided, that all Bills forwarded to the council that embraced matters terminable at the common law should be sent there to be determined, unless there were too much might on one side, or there were other cause reasonable moving the council *to

retain them (c). By the statute 5 Rich. II. stat. 1, c. 8, those [*332] who had lost their deeds in the late troubles were authorized to present petitions to the king and his council, when such remedy was to be provided as was just; in this we may recognize an old Anglo-Saxon

custom.

The GREAT COUNCIL, or PARLIAMENT, was also a court for judicial purposes, ordinary and extraordinary. Indeed, in the time of Edward I., and for some time afterwards, the Parliaments, excepting as regards the granting of taxes, were not so much legislative assemblies, as the King's Great Council in which subjects applied for judicial relief against their fellow subjects (d). In early times petitions of all kinds and descriptions were presented to the king, or to the Great Council on the occasion of their meeting (e). The Parliament, or Great Council, itself disposed of many of the cases brought before it; amongst the rest those which had been referred to it, from their difficulty, by the ordinary tribunals (ƒ).

If the case required a new law, an award was made by the king and barons, who alone at this time, as already observed, interfered in regard to matters connected with the administration of justice (g). This award

(a) Palgrave, C. p. 37.

(b) See Parkes' History of the C. of Ch. p. 37. 39. 43.

(c) Rot. Parl. iv. 343, et v. ib. 201; Hallam, M. A. 111–216.

(d) The title of the earliest Rolls of Parliament extant, viz., 18 Ed. I. vol. i. p. 15, is-"Placita coram Domino Rege et ejus consilio ad Parliamenta sua;" and see 1st Report of Lords' Committee, 1823, p. 170. In the reign of Henry IV. these matters were commonly referred to the Council to report upon, Rot. Parl. 9 Hen. IV. p. 613; Lords' Report, 1823, p. 360.

(e) Legal Judicat. p. 26. An account of the receivers and triers of petitions (who were nominated by the king, Palg. C. p. 125) is given in the 2d volume of Reeves's Hist. of the Common Law, p. 26. 407, et v. ib. 415. The master or chief clerks of the Chancery were frequently nominated for this purpose.

(f) V. int. al. Mem. in Scacc. p. 30; Rot. Parl. iii. 61-2, temp. Rich. II.

(g) See Cruise, Dig. cited in the next Note, and Sir H. Nicholas's Proceedings Privy Council, Pref. p. xxv.

332

The Great Council-its Jurisdiction-the Masters.

in early times had the force of a statute; afterwards the Commons, as has already been mentioned, established the right of concurring in all legislative Acts, and, by consequence, in these awards, which then became what are now called Private Acts of Parliament (a).

In cases not requiring special interference, the same course seems to have been there adopted as on the applications which were made to the council. If the matter were remediable at law, and there were no obstacle to the remedy being obtained, the petitioner was sent to the Common Law Courts; if it were a matter of revenue, he was sent to the Exchequer; if the matter related to the king's grants, or other matters cognizable under the Chancellor's ordinary jurisdiction, he was *sent to the Chancery; if it were matter proper for the considera[*333] tion of the council it was sent there (b). The judges, and other official members of the select or privy council, originally attended as a constituent part of the Great Council; but in the time of Edward III. or Richard II. the Lords, by their ascendency, threw the judges and other official members of the council into the shade, and took the decisive jurisdiction into their own hands (c); thus, their ancient colleagues of the council, not being Lords, have been reduced to the condition of silent assistants, unless when called upon to give their opinions (d).

(a) Cruise, v. p. 2.

(b) Reeves, vol. ii. p. 409; Sir. F. Palgrave has ample details on this subject, Council, p. 30. 64. 72. 119. 124, temp. R. II. Ed. I. Ed. II. Ed. III. Hen. IV. particularly as to the Proceedings before "Special Auditors of Errors," deriving their authority from the Great Council, p. 119.

(c) Hallam, M. A. iii. 215; Palgrave, C. 64. See the standing order, Dom. Proc. 9th June, 1660; Lords' Report, 1823, p. 449, note. The Commons, 1 Hen. IV. acknowledged that they had no right to interfere in judicial matters, Rot. Parl. iii. 427; Lords' Report, 1823, p. 360.

(d) The Masters in Chancery were doomed to descend still lower. "Doctor Barkley," says the Author of the Treatise of the Masters, (Harg. L. T. p. 298,) " a Master of the Chancery, in the 18th of Elizabeth, sitting in the Parliament House, as the

manner is, upon occasion of speech amongst the Lords of certain officers to have certain privileges, he, without asking leave, got up and entered into a speech of desiring that the Masters of Chancery might also be comprised in the said privilege then on foot. This request came so unseasonably, and was so inconsiderately propounded by the said Doctor, as the Lords in general took offence thereat,-some saying that whilst the Queen's learned Council were silent it were great presumption in him, being one inferior to them [sic], to be so busy. So upon the next day the Serjeant, Attorney, and Solicitor took place above the Masters in Chancery there, which before time had never been done; and ever since, not only they, but Serjeants-at-Law also, do it generally at all public meetings, upon this reason that they took place before the Attorney and solicitor," (Ibid. abridged.)

The Chancellor, temp. Hen. II. and Hen. III.

*334

*CHAPTER III.

THE COURT OF CHANCERY, DOWN TO THE END OF THE REIGN OF EDWARD III.

The Chancellor during the reigns of Henry II. and Henry II1-Extraordinary Jurisdiction exercised in the Chancery discernible temp. Edw. I.-The Chancery, temp. Edw. II.—In the reign of Edw. III. the ordinary Jurisdiction of the Chancellor rises into great importance-Jurisdiction in cases where the King was a party-Summary Jurisdiction-Matters of Grace delegated generally to the Chancellor-Suits by Bill become common- -Subpana issued on Bill being presented-Discovery obtained from the parties-Principles of decision, Honesty, Equity, and Conscience-Common Law Chancellors appointed by Edw. III. Re-appointment of Clerical Chancellors-Stat. 37 Edw. III. c. 3.-The Court of Chancery and the Court of King's Bench cease to follow the King.

DURING the time to which the references in the preceding pages relate, a growing Jurisdiction, exercised by the Chancellor apart from the council, is observable, the nature and progress of which are now to be the subject of inquiry. The Chancellor, whose office has been traced down to the reign of Henry II., continued to exercise very important functions; he was still almost always a high dignitary of the Church, and besides his independent legal jurisdiction, which will be particularly noticed hereafter (a), it would appear that this great officer was the principal actor as regards the judicial business which the Select Council, as well as the Great Council, had to advise upon or transact (b). Thus Matthew Paris, incidentally mentioning Radulphus de Neville, Bishop of Chichester, who was Chancellor to Henry III., says, "qui erat Regis fidelissimus Cancellarius, et inconcussa columna veritatis, *singulis sua Jura, precipue pauperibus, juste reddens et indilate" (c). There are earlier notices of a similar kind. The [335] panegyrics composed in honor of the famous Thomas à Becket, Chancellor of Henry II., by Fitzstephens, and of the Bishop of Ely, Chancellor

(a) It is supposed that the king's chapel was used for keeping the records, and that it was from this custom, partly, that the Chancellor, who had the care of the king's chapel, came to be so much connected with the diplomas and archives, Introd. to C. R. p. xxvii. note, and Spelman hac Voce.

(b) In the time of Edward IV., when the Chancery was, as we shall see, completely established as a court of extraordinary juris diction, all the judges of England affirm that the Chancery, King's Bench, Common Pleas, and Exchequer, are all the king's courts, and have been so time out of mind, so that no man knoweth which is most ancient, 8 Co. Præf. xvi. Lord C. J. Ho bart also treats the Court of Chancery as a court of equity, and the courts of law, equally as fundamental courts. In the 11th year of James I. it was resolved by the Lord Chancellor, Chief Justice of England,

Master of the Rolls, and two justices, that the king cannot grant a commission to determine any matter of equity (i. e. to constitute a new tribunal); but it ought to be determined in the Court of Chancery, which hath jurisdiction in such case, out of mind, and had always such allowance in law, 12 Rep. fol. 114, Earl of Derby's case. But neither Glanville, who wrote in the reign of Henry II., Bracton in the time of Henry III., or Briton in the time of Edward I., and who expressly treats of courts, nor Fleta, nor Hengham, nor the Book entitled "Diversity of Courts," mentions the Court of Chancery as a court of equity. The only extraordinary jurisdiction referred to in these early writers, is that which was exercised by the king himself, advised, no doubt, by his council, or the Chancellor the chief member.

(c) M. Par. ad. Ann. 1231, p. 312.

335 The Chancellor and the Chancery, temp. Ed. I., Ed. II. and Ed. III.

of Richard I., A. D. 1189, by Nigel de Wetekre, refer to each, in the following terms,

Hic est qui regni leges cancellat iniquas,

Et mandata pii principis æqua facit.

As to the latter it is added

Si quid obest populo, vel moribus est inimicum
Quicquid id est, per eum desinit esse nocens (a).

In the reign of Edward I., the English Justinian in more than one sense, we begin to observe unequivocal marks of an extraordinary jurisdiction exercised in the Chancery in civil cases. It was a custom with this monarch to send certain of the petitions addressed to him praying extraordinary remedies, to the Chancellor and Master of the Rolls, or the Chancellor or the Master of the Rolls alone, by writ under the privy seal, (which was the usual mode by which the king delegated the exercise of his prerogative to the council,) directing them to give such remedy as should appear to be consonant to honesty (honestati) (b). There is reason to believe that this was not a novelty (c). Considering what was the constitution of the council, great inconvenience and uncertainty must have resulted from leaving the correction and extension of the law in civil cases to such a tribunal; though it would appear from an ordinance issued in the 8 Edward I., that the Chancellor was not necessarily the person to whom the exercise of the prerogative of grace even in matters purely civil was committed. When the Chancellor administered relief independently of the council, it was by express [*336] delegation from the king, and given, as it would seem, by the advice of the council (d). It will be remembered, that it was in the 13th year of the same king that the stat. of Westminster the Second, which authorized the granting of writs in consimili casu, was enacted, by which the necessity for many of these applications must have been superseded.

Several records relating to the Court of Chancery during the reign of Edward II. have been brought to light by Lord Campbell, from which it appears that the court was then in full operation (e).

In the reign of Edward III. the Court of Chancery, as a court of ordinary jurisdiction, became of great importance. The Chancellor, under his ordinary jurisdiction, held Pleas of scire facias for repeal of letters patent, of petitions of right, and monstrans de droit for obtain

(a) Lord Lytt. Henry II., vol. ii. 480; Parkes, 42; 3 Bla. Com. p. 51, note; and Introd. to Close Rolls, by Hardy, p. xxviii., note, Sir H. Seton, p. 8.

(b) Discourse of the Judicial authority of the M. R. page 86. "Prout de jure et Gratia Curiæ videritis facienda," 5 Edward I.; et ib. p.87. In the 12 Edward I. a writ directed by the king to I. de Kirkby clerico suo, commands him to do “quale de Jure et gratia Cancellaria" ought to be done.

(c) Discourse, &c. prf. p. cxii. ; Petition of the Commons, 45 Edward III. 1 Roll, Ab. 372; Introd. to Close Rolls, p. xxviii. The

Court of Chancery appears at this time to have been considered as the proper tribunal for a widow to obtain her dower, Mem. in Scacc. Y. B. vol. i. p. 38, and see Lord Campbell's Lives, i. p. 186-7.

(d) Claus. Ann. 8 Edward I., Ryl. Plac. Carl. 442; Legal Jud. 27, 28; Hardy, Introd. C. R. xxviii.

(e) See Lives of the Chancellors, i. p. 206 to 209; and see Legal Jud. in Ch. p. 11, Rot. Parl. 18 Edward II. No. 43. i. p. 428. "Sequator in Cancellaria etibi habeat quod justitia, &c."

Equitable Jurisdiction of Court of Chancery manifest, temp. Ed. III. 336

ing possession or restitution of property from the Crown (a)-Traverses of offices (b),—scire facias upon recognizances,-executions upon recognizances,-executions upon statutes (c), and pleas of all personal actions by or against any officer or minister of the Court of Chancery (d). The Chancellor also held jurisdiction on appeals of false judgment, when any lord would not do right to those under his jurisdiction (e). He was visitor of colleges, &c. of royal foundation, and had jurisdiction (ƒ) as to the king's wards (g); he also took security for keeping the peace (h).

The jurisdiction of the court as to recognizances, appears to have arisen in this way. It was a practice to secure the fullfilment of grants and leases, and other contracts, by recognizances acknowledged in Chancery; the power of issuing the writs of execution belonged to the court, and it naturally, therefore, assumed the power to judge of the default by which the recognizance was alleged to have been forfeited (i). *Recognizances were afterwards, as we shall see, imported into [*337] the extraordinary jurisdiction of the court, and made use of to bind the parties to do right (k).

The Chancellor had jurisdiction in all cases in which the crown was concerned (1). The petition of the Commons, 45 Edward III., seems to admit, that when the king was a party, he had a right to sue in the Court of Chancery, or in the ordinary courts of law at his pleasure, and so it seems had his grantees (m).

The proceedings in all or most of these cases, were by common law process, not by petition or bill; but the Chancellor never had authority to summon a jury: on issue being joined on a matter of fact, in a cause before the Chancellor in his ordinary court, it was tried in the Court of King's Bench (n). The Chancellor in the exercise of his ordinary or common law jurisdiction could not advert to matters of conscience (o).

A summary jurisdiction was committed to the Chancellor in many cases, by various Acts passed in this reign, but whether to be exercised according to the formalities of common law procedure, or according to the course of the council, is matter of doubt (p).

(a) 3 Bla. Com. 256, Harg. L. T. 299. (b) Leg. Jud. p. 18; Coke's Entries, 419 d. 422.

(c) As under 11th Edw. I. Stat. of Acton Burnell, Leg. Jud. p. 11.

(d) Legal Judicature, p. 9. 17; Ld. Ellesmere, Treatise on Co. of Ch. 27. 29; Coke's Entries, 438. 678; Palgr. Council, 95, et v. Reg. Lib. A. 1566-7, fo. 91.

(e) Fitz N. B. Crompton, 47 a. We find the remains of this jurisdiction as regards copyholds, temp. Ja. I. Vin. Abr. iv. 385.

(f) Crompton, 47 a.

(g) Discourse of the judicial authority of M. R. p. 4; Legal Jud. in Ch. p. 15, and Documents there cited; 4 Inst. 79. Some of these authorities relate to a later period, but there is no reason to believe that any of the matters above referred to were of subsequent introduction.

(h) Sir F. Palgr. Council, p. 92. (i) Sir F. Palgr. Council, p. 95.

Recog

nizances were also, as we shall see, imported into the extraordinary jurisdiction, and made use of to bind the parties to do right and justice.

(k) Int. al. Reg. Lib. B. 1571 to 7 A. fo. 2, Temp. Eliz. A. 1573, fo. 27.

(1) Introd. to Close Rolls, p. xxix. Seton, p. 9; Calendar of proceedings in Chancery by the Record Commissioners, i. fo. 1, 2, 3. 68; a great part of this Jurisdiction was transferred to the Court of Augmentations by 33 H. VIII. c. 39, Seton, p. 34.

(m) 1 Roll. Ab. 372. It was conceded, 39 Hen. VI., that the king had the option to sue in Chancery or at Common Law, Brooke, Prerog. 45, et Rot. Parl. 45 Edw. III. No. 24; Vin. Abr. iv. 380.

(n) 3 Bla. Comm. 49.
(0) Ld. Ellesmere, p. 45.

(p) The stat. 20 Edw. III. c. 6, (Stat. of the R. vol. i. p. 305,) gave a summary jurisdiction to the Chancellor and Treasurer in