were to be referred to the proper forum, and process was to be made out for summoning the adversary, and directing that after both sides had been heard, the appropriate relief should be administered. To assist him in this department the King employed a secretary, on whom by degrees it was entirely devolved, and this officer, on a statement of facts by the complainant, framed writs or letters, in the king's name, to the judges, by which suits were instituted. Forms were adopted, to be always followed under similar circumstances, and a place was named to which all suitors might resort to be furnished with the means of obtaining justice. This was the officina justitiæ called CHANCERY, and the officer who presided over it was called CHANCELLOR.*

Again, grants of dignities, of offices, and of lands, were And royal made by the king. It was necessary that these grants should grants. be framed and authenticated by an officer well versed in the laws and customs of the kingdom; and it was found convenient to employ for this purpose the same person who superintended the commencement of suits between subject and subject. Here we have the other great branch of the pristine duties of Chancellor.

Great Seal.

These writs and grants in the earliest times were verified Custody of merely by signature. From the art of writing being little known, seals became common; and the king, according to the fashion of the age, adopted a seal with which writs and grants were sealed. This was called the GREAT SEAL, and the custody of it was given to the CHANCELLOR. †

keeper of

But how are we to account for the important function Chancellor which has immemorially belonged to this officer, of "Keeper king's conof the King's Conscience?" From the conversion of the science. Anglo-Saxons to Christianity by the preaching of St. Au- A. D. 596. gustine, the king always had near his person a priest, to

Every one was to have a remedial writ from the King's Chancery, according to his plaint," of which the following is the most ancient form: "Rex, &c." [to the Judge]. "Questus est nobis A. quod B., &c. Et ideo tibi (vices nostras in hac parte committentes) præcipimus quod causam illam audias et legitimo fine decidas." Mirror of Justices, 8. See Fritzhert. Nat.

Brevium.

It has generally been supposed that Edward the Confessor was the first English sovereign who used a seal; but Dugdale shows that there were some grants under seal as far back as King Edgar. Dug. Off, ch. 2.

Chancellor formerly

subor

dinate offi

cer, without judicial power.

whom was intrusted the care of his chapel, and who was his confessor. This person, selected from the most learned and able of his order, and greatly superior in accomplishments to the unlettered laymen attending the Court, soon acted as private secretary to the king, and gained his confidence in affairs of state. The present demarcation between civil and ecclesiastical employments was then little regarded, and to this same person was assigned the business of superintending writs and grants, with the custody of the great seal.

For ages to come the Chancellor had no separate judicial power, and was not considered of very high dignity in the state, and the office was chiefly courted as a stepping-stone to a bishopric, to which it almost invariably led. Particular individuals holding the great seal acquired a great ascendancy from their talents, but among the Anglo-Saxons the Chancellor was not generally a conspicuous member of the government, and in the early Anglo-Norman reigns he ranked only sixth of the great officers under the Crown, coming after the Chief Justiciary, the Constable, the Mareschal, the Steward, and the Chamberlain. At this time the Chief Justiciary was by far the greatest subject, both in rank and power.* He was generally taken from among the high hereditary barons; his functions were more political than judicial; he sometimes led armies to battle; and when the sovereign was beyond the sea, by virtue of his office, as regent he governed the realm. †

The office of Chancellor rose into importance from the energy of A'Becket, Longchamps, and other ambitious men who held it; but it was only in the end of the reign of Henry III. or the beginning of the reign of Edward I., that its supremacy was established. Till then the Aula Regia

*Mad. Exch. b. i.

+ Hence comes the title of the "Lords Justices," appointed to represent the king in England in the reigns of George I. and George II.; and of the "Lords Justices" now appointed to act in Ireland in the absence of the Lord Lieutenant.

The office of Chancellor in France appears to have risen into great importance by the same means. "Magnitudinem virorum qui eo munere [Cancellarii] fungebantur, vires decusque illi attulisse crediderim, ut ab exiguis initiis ad tantam majestatem pervenerit."-- Paul. Encyl. de rebus gestis Francon. p. 104. a.

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.

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 accordance with the rules and maxims of the common law.

Here then we have the Chancellor with two great occupations: 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. According 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 "Pettybag," 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 authority, 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.

t 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 quære.

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.

jurisdic

By "equitable jurisdiction" must be understood the extra- Definition ordinary interference of the Chancellor, without common- of equitable law 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.