existed, in which the Chief Justiciary presided, and in which all causes of importance, of whatever description, were decided.

The origin of the different courts in Westminster Hall, Commonlaw jurisas they now exist, may be distinctly traced to the disruption diction of of this great tribunal-like the formation of the planetary Chancellor. system from the nebulous matter of which some philosophers tell us it is composed. The Chancellor always sat as a member of the Aula Regia, and from his usual duties and occupations he must have been its chief legal adviser.* In all probability, early in its history, the different branches of judicial business which came before it were allotted to the consideration of particular members most conversant with them; and while matters of chivalry might be decided by the opinion of the constable and mareschal, the validity of the king's grants would be referred to him whose duty it was to authenticate them, and proceedings by virtue of mandatory writs or commissions, under the great seal, could best be judged of by the same person who had issued them. So, questions arising out of "petitions of right," "monstrans de droit," and "traverses of office," where a complaint was made that the King had been advised to do any act, or was put in possession of any lands or goods, to the prejudice of a subject, would be naturally referred to "the Keeper of his Conscience." †

The officer to whom such references were made by degrees became a separate judge; and hence the origin of what is considered the common-law jurisdiction of the Chancellor.

It is certain, that almost immediately after the establishment of the Court of King's Bench for criminal law, the Common Pleas for civil suits, and the Exchequer for the

He was wont to act, together with the Chief Justiciar and other great men, in matters of revenue at the Exchequer, and sometimes with the other justiciars itinerant in their circuits. About the beginning of King Henry the Second's reign, there were pleas in the county of Kent holden before the King's Chancellor, and before Henry de Essex, the King's Constable," and "before the Chancellor and the Earl of Leicester." Amerciaments were set upon several persons in Worcestershire by "the Chancellor and Stephen de Segrave;" and in the counties of Nottingham and Derby by the same persons. - Madd. Exch. cap. 2. p. 42.

+ Gilbert's History of the Exchequer, p. 8.

U

Equitable jurisdic

tion.

revenue, all extraordinary cases of a juridical nature being
reserved for the King in council, the Chancellor held a
separate independent court, in which the validity of royal
grants was questioned by scire facias, and the other matters
were discussed which I have supposed to have been previously
referred for his opinion, to guide the decision of the Aula
Regia. To assist in this new separate jurisdiction, officers
were appointed, and they had the privilege of suing and
being sued in all personal actions in the court to which they
were attached. These proceedings were carried on in ac-
Icordance with the rules and maxims of the common law.

Here then we have the Chancellor with two great occu-
pations: the first, his earliest one, of supplying writs to
suitors who wished to litigate in other courts; the second,
the decision of a peculiar class of suits as a judge. Accord-
ing to ancient simplicity, the place where he carried on the
business of his office was divided between the "Hanniper"
or hamper, in which writs were stored up; and the "Petty-
bag," in which were kept the records and proceedings in the
suits to be decided by himself.* Thus did the Chancellor
decide all matters of law that might arise by his own au-
thority, subject to a writ of error to the King's Bench; but
he had no power to summon a jury; and issue being joined
on a question of fact, he at once handed over the record to the
King's Bench, where the suit proceeded, and was finally
disposed of. †

This "common-law jurisdiction" of the Chancellor has been generally carried back to the reign of Edward I.-by some much higher, and the validity of it has never been questioned; but his "Equitable Jurisdiction," which has become of infinitely greater importance, has been supposed

Even now a distinction is made between the "hanniper" side and the "petty bag" side of the court.

I have followed the authority of Blackstone (Com. vol. iii. 49.); but Mr. Macqueen, in his very learned and valuable treatise "On the Appellate Jurisdiction of the House of Lords," has collected weighty decisions and arguments to show that the writ of error from the petty-bag or commonlaw side in Chancery is directly to Parliament, and that when the issue of fact has been determined in the King's Bench, the record goes back to the Court of Chancery, where final judgment ought to be given. See p. 369. et seq. Ideo

quare.

1

to be a usurpation, and not to have been exercised till the reign of Richard II., upon the introduction of uses and trusts of real property, and the invention of the writ of subpoena by John of Waltham, Bishop of Salisbury. After much investigation, I must express my clear conviction, that the Chancellor's equitable is as indubitable and as ancient as his common-law jurisdiction, and that it may be traced in a manner equally satisfactory.

to anti

The silence of Bracton, Glanvil, Fleta, and other early Objections juridical writers, has been strongly relied upon to disprove quity of the equitable jurisdiction of the Chancellor; but they as little equitable notice his common-law jurisdiction, most of them writing tion. jurisdicduring the subsistence of the Aula Regia; and they all speak of the Chancery, not as a court, but merely as an office for the making and sealing of writs. There are no very early decisions of the Chancellors on points of law, any more than of equity, to be found in the Year Books, or old Abridgments. It was formerly objected, that there were no Bills or Petitions in Chancery extant of an earlier date than the time of Henry VI., but by the labours of the Record Commissioners many have been discovered of preceding reigns. Till the 17th Richard II., when the statute was made giving the Chancellor power to award damages or costs to the defendant on the plaintiff's suggestions being proved to be false, there was little use in filing or preserving them, and from that era we have them in abundance.

By "equitable jurisdiction" must be understood the extra- Definition ordinary interference of the Chancellor, without common- of equitable jurisdiclaw process, or regard to the common-law rules of proceeding, tion. upon the petition of a party grieved, who was without adequate remedy in a court of common law; whereupon the opposite party was compelled to appear and to be examined, either personally or upon written interrogatories; and evidence being heard on both sides, without the interposition of a jury, an order was made secundum æquum et bonum, which was enforced by imprisonment. Such a juris

• The first law book which treats of the judicial powers of the Lord Chancellor is the "Diversité des Courtes," written in the end of the fifteenth or beginning of the sixteenth century, tit. Chancery, fol. 296.

Extension

diction had belonged to the Aula Regia, and was long exercised by Parliament *; and when Parliament was not sitting, by the king's ordinary council. Upon the dissolution of the Aula Regia many petitions, which Parliament or the council could not conveniently dispose of, were referred to the Chancellor, sometimes with and sometimes without assessors. To avoid the circuity of applying to Parliament or the Council, the petition was very soon, in many instances, addressed originally to the Chancellor himself. For some ages these extraordinary applications for redress were received by the Parliament, by the Council, and by the Chancellor concurrently. The Parliament by degrees abandoned all original equitable jurisdiction, acting only as a court of appeal in civil cases, and taking original cognizance of criminal cases on impeachment by the Commons; but it will be found that the Council and the Chancellor long continued equitably to adjudicate on the same matters, and that there were the same complaints and statutes directed against both.

From various causes, however, the equitable jurisdiction of equitable of the Council gradually declined. jurisdiction The proper and imof Chancel- memorial business of the Chancellor being the preparation of writs, where a case occurred to which no known writ was properly applicable, and in which the common-law courts could not grant redress, he took it into his own hands, and,

lor.

* Audley v. Audley, 40 Edward III. This, the earliest instance I have found of a suit for a specific performance, is fully reported in the close roll of that year. By a deed executed in contemplation of the marriage of Nicholas son of James Lord Audley, he had covenanted to settle lands in possession or reversion to the amount of 400 marks. After the marriage, Elizabeth, the wife, petitioned the King in parliament that Lord Audley should be ordained to perform the covenant. The King caused the defendant to come before the Chancellor, the Treasurer, and the justices and other " sages" assembled in the Star Chamber. The Lady Audley "showed forth her grievances; that is to say, she declared them by word of mouth, and produced the indenture of covenant. A demurrer put in on the part of the defendant was overruled; and after various proceedings before the Chancellor and Treasurer in the Council, performance of the covenant was at last obtained.

One of the most remarkable examples of Parliament acting as a court of equity is William Lord Clynton's case, in the 9th of Hen. V., where William de la Pole, a feoffee to uses, was compelled to reconvey his lordship's estates. This might possibly have proceeded on the ground of parliamentary privilege. I believe the records of the Court of Chancery, although they prove the exercise of the equitable jurisdiction of the Chancellor much further back, do not show any example so early of compelling the execution of a trust. R. P 9 H. 5.

having heard both parties, gave relief. Again, where the proceedings in the courts of law under writs which he had issued were grossly defective and inequitable, he was naturally called upon to review them, and to prevent judgments which had been fraudulently obtained from being carried into effect. Another source of equitable jurisdiction to the Chancellor, From inof considerable importance, though little noticed, arose from rolments in Chancery the practice of inrolling in Chancery covenants and agree- under rements, releases of right, and declarations of uses, and of cognizance. securing the performance of these deeds by a recognizance acknowledged before the Chancellor, and entered upon the close rolls. On applications for writs of execution by reason of the alleged forfeiture of the recognizance, the Chancellor was of course bound to hear both parties, and to make such decree between them as justice required.

For the sake of fees to the Chancellor and his officers, Fees, &c. great encouragement was given to suitors resorting to Chancery, and from the distinguished ability of the men presiding there, who were assisted by the Master of the Rolls and the other masters,-ecclesiastics well skilled in the civil law,the business was more systematically and effectively transacted than before the Council, which has ever been a tribunal without fixity in its members or regularity in its proceedings. These various causes combining, the equitable jurisdiction. of the Council fell into desuetude, like that of the Parliament; and in the Court of Chancery that admirable system of equity which we boast of in England, and which with our common law has been adopted by our brethren in America, was gradually developed and matured.

It is thus a great mistake to suppose that the clerical expedient of a conveyance to uses, for the purpose of evading the statutes of mortmain, gave rise to the equitable jurisdiction of the Chancellor, or that he at first interfered only in cases of trust binding on the conscience. From the researches of the Record Commissioners it appears that his equitable jurisdiction was well established long anterior to the time when such cases came before him, and that the earliest applications to him for relief were from those who suffered by direct violence and the combinations of great men,