The monarch exercised this high judicial authority in his great Court of Justice, or in private. In either case the Chancellor appears at the earliest period to have been his assistant and adviser upon the subjects brought before him. His decision was made upon principles of equity as well as law, and the distinction of Courts administering justice upon these separate principles, was wholly unknown. At what period the Chancellor was first employed as an officer of the Crown, it is perhaps impossible to ascertain. He appears to have held a station of dignity and importance long before the Conquest. Part of his duties were to prepare and attest the charters and writings of the monarch.(8) **Rex et non alius debet Judicare si solus ad id sufficiere possit, Bracton, cum ad hoc per virtutem sacram teneatur." Cap. 2. Nous voulons que nostre Jurisdiction soit surtoutes Jurisdic- Britton, tions en nostre Royalme, issint que in toutes maneres de felonies, Introduction, trespas, Contractes, et en toutes maneres d'auters accions personal- fol. 2. les on reales." Edit. 1640. The kings used to go from county to county every seven Mirrour, 62. years to enquire of offences and trespasses and of wrongs done to Cap. 2. S. 3. themselves and to the crown and to the common people, and wrongs of their officers and all false judgments, and they used to do right to all persons, by themselves, or by their chief justices." Speaking of Turketulus Mr. Spelman says: Cancellarium suum eum constituit (Rex Edwardus Senior) ut Spelman's quecunque negotia temporalia vel spiritualia Regis Judicum, expec- Gloss. verbo tabant, illius consilio et decreto, (tam sanctæ fidei, et ta profundi Cancellarius, citing Ingulingenii tenebatur) oinnia tractarentur, et tractata, irrefragibilem phus. sententiam sortirentur." vindicated, "That relief was given in equity in former times appeareth by Jurisdiction the law of king Edgar, Cap. 2. and by the laws of Henry I. Grain Chancery addicuntur." viora placita soli Justitiæ: vel misericordiæ principis "Cases were adjudged according to equity before the customs of the realm were written and made certain." 61. Mirrour, Cap. 1. Sec. 8. "Such as then (before Edw. 1.) sought relief by equitie were Archion, 59. suitors to the king himself, who being assisted by the Chancellor and Council, did mitigate the severitie of the law, in his own person when it pleased him to be present; and did in absence either refer the same to the Chancellor alone or to him and some other of the council.-So as the Chancellor had not then any court proper to himself, but rather assisted the king, as did then the chief justice, and the rest of the king's council also." "As to the third point of inquiry, viz. of the persons who sat and Maddox Hist. acted in the king's courts, the king himself was properly head of of the Exthis court." Mr. Madox (sect. 6.) cites many Rolls of pleas held chequer, Cap. 3. Sec. before the king in person, in the time of Henry 3d. 5. (8) Hereby it appeareth that the office of Chancellor then was at first to make and seal the instruments that passed from the prince. Lambard's This I call his original duty, because it cannot be shewn out of Archion, 51. B Spelman's 2d Reports in Chan. 5. Jurisdiction in Chan. Vindicated, 10. Madox Exch. The kings of the Saxon times administered justice in the Wittenagemotte, the seat of the Supreme Judicial, as well as Legislative power. William the Conqueror established one general Court in his palace, and composed it of the chief officers of the crown. But the increasing number of causes arising from the greater complication of the affairs of the community, the power of the Barons, which drove suitors to the Crown for justice, and the magnitude of the authority possessed by the chief justicier, at last led to the division of this great body into lesser jurisdictions, which prevail to this day.(9) Both before and after this division the Chancellor was em ployed in the formation and sealing of writs and processes, issued for the commencement of suits. The Normans bad pushed the principle of the king being the source of all justice, to the length of declaring, that no writs (where the matter was over 40s.) should issue, but of his special grace, and upon arbitrary fines. It was this oppressive doctrine that the maxim of Magna Carta nulli negabimus, nulli Vendemus rectum vel justitiam was intended to destroy.(10) any historie (as I think) that ever there was in England any sealings or writings, or mention of the name of Chancellor before the days of Edward the Confessor, who first brought the Seale from Normandie. Mr. Spelman however traces the office to the time of Edward the Elder. "Turketulum, Athelstano, Eadmundo, et Edredo, Regibus, nec non eorum patri Edwardo Seniori Cancellarium fuisse indicat Ingulphus, etiam consiliarum primum præcipuum, et a secretis familiarissimum. De munere cancellarii haud perspicue constat subistis sæculis; sed in dictandis chartis regiis si non in exarandis operam Navasse palam est, ex Ingulpho." See also jurisdiction in Chancery vindicated. (9) "These four Courts (Chancery, King's Bench, Common Pleas, and Exchequer) then included in one Court, called Aula Regis, did follow the king's Court; but by the Charter granted by John, and after by king Henry 3d, the common pleas were appointed to be holden in a place certain, and not to follow the king's Court; yet the Chancellor and Judges of the king's bench did long after follow the king's court. But king Edward 1st, being weary of the great power of the Chief Justice of England, did appoint more to be judges in criminal cases. King's Bench began to be a distinct court, and then the Chancery and Exchequer also came to be several courts.” And then the For the organization of the Aula Regis, see Gilbert's History of the common pleas. Introduction. (10) "The Chancellor used likewise to supervise and seal the Cap. 3. Sect. writs and precepts that issued in proceedings pending in the Cu 9. When the Aula Regis was broken up, those courts which were appointed to administer the settled law were of course bound to observe its rules with strictness, and one branch ria Regis and the Exchequer; and after the division, in the king's other courts of law." "In tems Le Roy Alfred nestoit nul briefe de grace, eins fue- Mirrour, Cap: rant touts briefs remdeials, grantables come de det per Vertue de 5. Sec. 1. serement." Apud. preface 9 Rep. See also "King Alfred at the division of the kingdom into shires or counties instituted this Court called the County Court, and es- Hughes tablished jurisdiction in it,-granting power and authority to the Translation, sheriff to hear and determine such matters as should be brought 246. unto him." "Munus igitur Comitis Judiciarum fuit vim et injuriam prohi- Spelman's bere latrocinia comperure, pacem regiam non solum legum tramite Glos. verbo sed armis etiam promovere, Jura Regia et vestigalia curare, col- comites. ligere, fisco inferre. Presidebat autem foro comitatus, non solus, sed adjunctus Episcopo, hic, ut jus divinum, ille ut humanum, diceret." "From the first Assemblies came Consisteries which we now Mirrour, Cap. call Courts, whereof the sheriff held one monthly.-And these 1. Sect. 15. Courts are called County Courts where the judgment is by the Hughes suitors, if there be no writ, and is by warrant of jurisdiction ordinary." Transl. Introduction. Dial. 1. "No cause of consequence was determined without the king's Gilbert's Hiswrit, for even in the County Courts of the debts which were above tory common forty shillings there issued a Justicies to the sheriff to enable him pleas. to hold such plea, where the suitors are judges of the law and the fact. So likewise there issued out the writ of right to enable the lord to hold pleas of land within his jurisdiction, for it grew a maxim among the Normans, that no one could hold lands without the king's patent, nor plea above 40s. without the king's writ.” "There was sometime a maxim of the law of England, that no Doctor and man should have a writ of right but by special suit to the king, Student, and for a fine to be made in the chancery for it. But these maxims be changed by the statute of Magna Carta, Cap. 16. where it Cap. 8. is thus said. Nulli negabimus, nulli vendemus rectum vel Justitiam. And by the words nulli negabimus, a inan shall have a writ of right of course in the chancery, without suing to the king for it, and by the words nulli vendemus, he shall have it without fine." If the Lord Chancellor did not grant out writs, the courts of common pleas, and the Kings Bench would sit still and have no- in Chancery, thing to do; and before the statute of Magna Carta he used to de- vindicated, ny them, nor did he grant any writs then but upon great fines." 14. The construction given by St. Germain if correct, seems to have been violated in practice. Jurisdiction The author of the Mirrour, speaking of the clause of Magna Cap. 26. Carta, that nothing shall be taken for a writ of inquisition of life and member, but that it should be granted freely and not denied, says "The defence which is made of the writ de odio et atia, that the King nor Chancellor shall take any thing for granting the writ, ought to extend to all remedial writs." Ibid. Law Lectures, Sect. 42 Spelman's of sovereign jurisdiction, that of judging by equitable principles continued solely in the king It appears to have been exercised by him for some time in a council, but the increase of cases, and of the general business of the state, soon rèndered this impossible; and the Chancellor became the minister of this dispensing and relieving power. The selection of the Chancellor for this office probably arose from this, that he had been almost universally taken from the most learned and enlightened class of the community, and as his habits of judging were not restricted by the narrow rules of the common law, but derived from the more enlarged system of the civil code, he was peculiarly qualified to determine cases where equitable principles and general reasoning were to be resorted to for the rules of decision.(11) "It is abuse that the remedial writs are saleable." It is also stated in Fleta that the remedial writs are sometimes prepared without fine, and sometimes with; and after citing the passage from Magna Carta, it is added,-Sed non inhibitur quin fines capiantur pro brevibus possessionum et actionum personalium civilium, et pro celiori Justitia habenda." The account given by Mr. Sullivan appears to be the correct statement of this point. "In the Saxon times almost all suits except between grandees, were expedited in the county courts. I have observed before, that the Conqueror and his successors discouraged these, and encouraged suits in the Aula Regis. Still it was a matter of favour where the cause properly belonged to the country jurisdiction. As a matter of favour, it might be denied by the King, or his Chancellor, who was the issuer of the original writs, unless a sum of money was paid, such as they demanded. This was selling justice. Or if the person to be sued was a favorite of the King or Chancellor, the writ might be denied. This was denying Justice. This however is not to be understood as prohibiting the moderate and accustomed fees which had been paid to the officer for making the writs out, or to the judge for sealing them, but only those arbitrary sums which had been before taken." (11) Omnis regni Justicia solius regis est, et a solo ipso (si sufficeret ad tantam molem) administranda. Illud autem cum impossibile sit, in plurimas distrubatam portiones ministris cogitur delegare, quos limitibus tamen circumscripsit positivælegis, ne pro arbitrio spatientur. Positiva vero lex in generalibus versatur, ideoque agit in casus particulares, alias intentius alias remissius; ex quo non justicia sed injuria sæpe fieret si horundum esset in summo jure; oriuntur indies causæ arduæ et difficultates, quæ nulla ejusdem pagina continentur. In his igitur necessario, recurrendum ad regem Justicia fontem. Humanæ vero fragilitatis memores, Principes Christianæ curiam suam id est proceres et Barones adhibuere in consilium. Ingens multitudo exemplorum quibus prisci illi Thus then arose the equitable jurisdiction of the court of chancery, and as it was a branch of that arbitrary judicial power which the rising spirit of independence dreaded; as Reges causas ad pallatium suum allatas, non unius alicujus Judicio, sed communi Procerum consillio definire. Fessi autem tandi rei mole, cogunter Judiciorum lancem delegatis credere. Func erectis se orsum a Palatio tribunalibus singula multis (quamvis ex canone Judicaturis) nullum unico substituerunt Judici. Causas vero exorbitantes quæ nulli constitutorum tribunalium rite competerent, ad Palatium ceu oraculum Regni deferenda statuunt; Judicium Principis e consilio procerum expectaturas. Eo pertinet quod Edouardus primus prisci tenax ritus, lege cavit, ut Cancellarium et Regii Tribunalis Judices aulæ suæ continuo famulantes haberet; hos nempe ut quid legitimum esset, pronunciarent, illum vero ut quid æquum et bonum submoneret. Succedentes autem Reges provinciam hanc conclavi procerum a consiliis suis coacti sunt re linquere. Præsertim Cancellario reliquorum Corypheo cum propter summam viri prudentiam, tum quod a sinu Regis esset, et in rebus gerendis versatissimus." The following passage is cited by Blackstone from Joannes Sarisburiensis, who died 26 Henry 2d. speaking of the Chancellor."Hic est qui Leges regni cancellat iniquas, Et mandata Pii principis æqua facit.” At what period the Chancery was established as a separate court cannot be settled with precision. The argument, (which was first used by Mr. Lambard) that the Archeion, 60. court did not exist as a court of equity, during the Reigns of Ed- See also ward 1. & 2d. because it is not spoken of as such in Glanville, Brac- 4 Inst. 82. 2 ton, Britton, or Fleta, most of whom treat minutely of the courts, Sec. 3. Pref. Inst. cap. 5. appears almost conclusive. Fleta, the latest of these authors, 10 Rep. lived in Edward 2 & 3d. It is stated that the origin of this jurisdiction was a statute pass- King v. ed in the 36 Edw. 3. that if any person think himself grieved, Standish, contrary to any of the articles therein written, and will come to 1 Lev. 242. the chancery, or any for him, he shall presently have there remedy without elsewhere pursuing to have remedy." But Lord Coke is clear that this should be taken as confined to 4 Inst. 82. the issuing of original writs to the party grieved called remedial, grounded on a statute for relief. Although the power of the Chancellor was complained of by the 4 Inst. 82. parliament in the reign of Richard 2d, and a petition presented citing Rot. to the King by the commons, that neither the Chancellor nor oth- Parl. er counsellor might make any order contrary to the law, yet it does 13 Rich. 2d. See also not distinctly appear, that the orders complained of were orders 2 Inst. Cap. in the exercise of an equitable jurisdiction; and in the case dur- 5. Sec. 3. ing the same reign, cited by Lord Coke, as the first decree in chancery, the Chancellor seems to have been merely a ministerial officer to attest the judgment, and issue the injunction. The petition was to the king, and the award by his council. However it is probable, that it did begin to exist as a separate court in this reign. Mr. Lambard says, "I do not remember that Archeion, 67. in our reports of common law, there is any frequent mention of |