§ 33. Equity jurisdiction-Its origin and definitionContinued. As applications to the king and his council became frequent it was found necessary to make provisions to facilitate their disposal. For this purpose a committee of the council was appointed along with the chancellor to determine points in question. As these counselors had seldom any special knowledge of the matters referred to them, they naturally paid but little attention to the business, and as their number was arbitrary it was gradually diminished, until at last their appointment, being regarded as a mere ceremony, was entirely discontinued, and the business left in the hands of the chancellor and his subordinate officers who assisted him in the discharge of his duties; and from this time forward petitions addressed to the king were at once referred by him to his deputy - the chancellor.1

As might be anticipated, as the kingdom increased in population and wealth, the king found it inconvenient or impossible to personally attend to the increasing number of applications to him for the exercise of this "prerogative of grace." For this reason, even as early as the reign of Edward I., we see the king turning matters over to the chancellor for disposition. Spence says: "It was the 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)." The convenience of this method of disposing of such petitions, and its efficiency being demonstrated in practice, together with its superiority over the king's council, greatly increased references of this character, so that by the time of Edward III. (1326-77), the court of chancery appeared as a distinct court for giving relief in cases requiring extraordinary, remedies. Speaking of this king, Spence says

1 Millar, English Government, vol. stitution of the council, great incon2, p. 345. venience and uncertainty must have 21 Eq. Juris. of the Court of Ch., resulted from leaving the correction and extension of the law in civil cases to such a tribunal." Id.

p. 335.

3 "Considering what was the con

that he "being, as may well be conceived, looking to the history of his busy reign, unable from his other avocations to attend to the numerous petitions which were presented to him, he, in the twenty-second year of his reign (1348), by a writ or ordinance referred all such matters as were of grace, to be dispatched by the chancellor or by the keeper of the privy seal."1

It was this reserved judicial power of the king which was turned over to and exercised by his deputy - the chancellor. "The same duty of the crown to do justice where its courts fell short of giving due redress for wrong expressed itself in the jurisdiction of the chancellor. This great officer of state, who had perhaps originally acted only as president of the council when discharging its judicial functions, acquired at a very early date an independent judicial position of the same nature. It is by remembering this origin of the court of chancery that we understand the nature of the powers it gradually acquired. All grievances of the subject, especially those which sprang from the misconduct of government officials or of powerful oppressors, fell within its cognizance as they fell within that of the Royal Council. Its equitable jurisdiction sprang from the defective nature and the technical and unbending rules of the common law. As the council had given redress in cases where law became injustice, so the court of chancery interfered, without regard to the rules of procedure adopted by the common-law courts, on the petition of a party for whose grievance the common law provided no adequate remedy."

992

In speaking of the early court of chancery Nelson says: "The chief business of the court of chancery at that time was to mitigate the rigour of the common law, and clergymen were thought sufficiently qualified for that purpose, who gave relief according to their several opinions, in cases where the law seemed to bear too hard on the complainant, and, because they formed their judgment by no settled or established rules, therefore we have no reports of their decrees." "

§ 34. Antiquity of the court of chancery. The very name of the court itself and the official designation of its presiding

officer come down to us covered with the dust and bearing the musty odor of more than twenty centuries; and speak of a time when church and state were united, when the Roman faith held undisputed sway over our British ancestors, and when the highest offices in the gift of the king were filled by ecclesiastics.

Of the court of chancery it was said by Lord Hobart that it is a "fundamental court as ancient as the kingdom itself."1

Coke says, after quoting a passage from the Mirror: "Hereby it appeareth that in the reign of King Alfred there was a court of chancery out of which writs remediall issued, which was not then instituted, but affirmed to be a court then in esse.'

While it is said that the origin of the equitable jurisdiction of the chancellor is untraceable, yet a careful examination of historical sources will enable us to see, if not its commencement, at least the manner of its origin and the lines of its progress.

"The history of the court of chancery is inseparably connected with that of the other courts of law, and the origin of its equitable jurisdiction is only to be traced by exploring the great course of justice to which equity is but a tributary stream, not the main channel." 5

As early as Bracton's time men were beginning to speak of the chancery as a court, but even in the reign of Edward I. (1272-1307) it was not in any modern sense a court of justice; it did not hear and determine causes, but it was rather a great secretarial bureau, a home office, a foreign office and a ministry of justice. At its head was the chancellor, who, there being no longer a chief justiciary of the realm, ranked highest among the king's servants. He was the king's secretary of state for all departments. Under him were numerous clerks, the high

1 Martin v. Marshall, Hob. R. 63; 2 Comyn's Dig. 205; 2 Coke, Inst. 23, 551, 552; 4 id. 78, 79; Bracton, 108; Mirror, 8; Story, Eq. Jr. § 40.

24 Inst. 78.

3 The commencement of the chan cellor's equitable authority is untraceable, and has prescription for its parent. Burroughs, Hist. Ch. (1726), p. 44.

4"All the Judges of England, 10 Edw. 4, 53, did manifestly affirm that the Chancery, King's Bench, Common Pleas, and Exchequer be all the King's Courts, and have been time out of mind, and so that no man knoweth which of them is most ancient." Choyce Cas. in Ch. (1652), p. 57.

Parkes, Hist. Chan., p. &

est in rank among whom might fairly be styled 'under-secretaries of state,' ecclesiastics holding deaneries or canonries; they were sworn of the king's council; some were doctores utriusque juris; they were graduates, they were "masters; some of them as notaries of the apostolic see were men whose "authenticity" would be admitted all the world over.1

§ 35. Antiquity of the court of chancery - Continued.Constant directions from the king to his chief executive officer became necessary. As the chancery followed the king wherever he went, these communications were evidently at first oral and delivered direct by the king in person, but as the business increased in volume, and although theoretically the chancery still "followed the king," yet, as a matter of fact, it now often happened that the king was in one place while his chancellor was in another, it now became necessary that confidential clerks or secretaries should intervene, whose duty it was to carry written or oral messages. "In its final form almost every message, order or mandate that came, or was supposed to come, from the king, whether it concerned the greatest matter or the smallest, whether addressed to an emperor or to an escheator, whether addressed to all the lieges or to one man, was a document settled in the chancery and sealed with the great seal. Miles of parchment, close rolls and patent rolls, fine rolls and charter rolls, Roman rolls, Gascon rolls and so forth, are covered with copies of these documents, and yet reveal but a part of the chancery work."

Of this work, the most important was done by the king himself, by the king and his deputy- the chancellor - by the chancellor alone, while matters of less moment were committed to the master of the rolls and masters in chancery. Scores of clerks and under clerks were employed in the mechanical work of writing, copying, transcribing, engrossing and filing away of these rolls. Certain days were set apart for "sealing," that is attaching the great seal to such orders, writs cuments and other matters ready for it. The mere mechanical work of "sealing" must have been great, as during a few months not only

1 History of English Law, Pollock & Maitland, vol. 1, p. 172.

Id, p. 173; also Maitland's Par

liamentary Roll of 33 Edward L, p. XXXVII.

3 Pollock & Maitland, History of Eng. Law, vol. 1, pp. 173, 174.

hundreds of pounds but tons of wax were used for this purpose,' and all this was done or supposed to have been done under the eye of the chancellor.

"The ancient Lawyers that speak of the Chancery, mention it not once as a Court of Equity or Conscience, but always as a Court of ordinary Power, to determine Causes according to the Rules of the Common Law. The Equitable Court, perhaps, had not fully joined the other in their Time; and when they did meet, and became Brother-Courts, they did not move on pari passu, like Hippocrate's Twins. The younger soon over-run, and overpower'd the Elder, stiled itself, officina Justitiæ & Equitatis, seized every thing into its Jurisdiction; and, at last, made itself a Ware-house, into which all our Properties was going to be cast."?

§ 36. The king as the source of all legislative and judicial power.- The whole system of English remedial jurisprudence was based on the theory that the king was the fountain or source of all justice and to him the subject must apply for every real or imaginary wrong. In the most primitive times this application was doubtless addressed direct to the ear of the ruler and he in person granted the relief desired or refused the application, as to him seemed to be just or right. As time progressed these applications would naturally become more numerous and the questions raised more complicated, thus rendering this duty so onerous and burdensome as to render it impracticable for the ruler to discharge such duty, and thus arose the necessity and practice of delegating this authority to deputies. These deputies probably at first only listened to petitions and recommended to the king the granting or refusal of the same, the latter duty still being discharged by the ruler. Probably in matters of small importance, and in cases where nothing was to be done but to follow precedent, these deputies took the liberty, or were permitted, in person, to grant or refuse the relief prayed. But these deputies were always kept near the king so that at any time he could be consulted or preside over their deliberations. In course of time other courts were established by the king, as business increased or necessity required, and these might hold their sessions in dif

See post, § 60.

2 Burroughs, Hist. Ch. (1726), 9.