or the court of exchequer chamber, as the case may happen, according to the nature of the suit and the manner in which it has been prosecuted.13

VII. The court of exchequer is inferior in rank not only to the court of king's bench, but to the common pleas also: but I have chosen to consider it in this order on account of its double capacity as a court of law and a court of equity *also. It is a very antient court of record, set up by William the Con

*44] querer, (e) as a part of the aula regia, (f) though regulated and reduced. to its present order by king Edward I.,(g) and intended principally to order the revenues of the crown, and to recover the king's debts and duties.(h) It is called the exchequer, scaccharium, from the checked cloth, resembling a chessboard, which covers the table there, and on which, when certain of the king's accounts are made up, the sums are marked and scored with counters. It consists of two divisions: the receipt of the exchequer, which manages the royal revenue, and with which these commentaries have no concern; and the court or judicial part of it, which is again subdivided into a court of equity and a court of common law.1

The court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisnè ones. These Mr. Selden conjectures(i) to have been antiently made out of such as were barons of the kingdom, or parliamentary barons; and thence to have derived their name; which conjecture receives great strength from Bracton's explanation of magna carta, c. 14, which directs that the earls and barons be amerced by their peers; that is, says he, by the barons of the exchequer.(k) The primary and original business of this court is to call the king's debtors to account, by bill filed by the attorney-general; and to recover any lands, tenements, or hereditaments, any goods, chattels, or other profits or benefits, belonging to the crown. So that by their original constitution the jurisdiction of the court of common pleas, king's bench, and exchequer was entirely separate and distinct: the common pleas being intended to decide all controversies between subject and subject; the king's bench to correct all crimes and Inisdemeanours that amount to a breach of the peace, the king being then plaintiff, as such offences are in open derogation of the jura regalia of his crown; *45] and the exchequer to adjust and recover his revenue, wherein the king also is plaintiff, as the withholding and non-payment thereof is an injury to his jura fiscalia. But, as by a fiction almost all sorts of civil actions are now allowed to be brought in the king's bench, in like manner by another fiction all kinds of personal suits may be prosecuted in the court of exchequer. For as

() Lamb. Archeion. 24.

() Madox Hist. Exch. 109.

(#) Spelm. Guil. I. in cod. leg. vet. apud Wilkins.

(A) 4 Inst. 103–116.
(1) Tit. Hon. 2, 5, 16.
(*) L. 3, tr. 2, c. 1, 2 3.

13 The appeal from the King's or Queen's Bench is now in all cases to the justices of the Common Pleas and barons of the exchequer, in the exchequer-chamber, from whose judgment an appeal lies to the house of lords.-STEWART.

14 Though this court is inferior in rank as well to the court of Common Pleas as the King's Bench, and though, in general, a subject has a right to resort to either of the superior courts for the redress of a civil injury, yet this court, having an original, and in many cases an exclusive, jurisdiction in fiscal matters, will not permit questions, in the decision of which the king's revenue or his officers are interested, to be discussed before any other tribunal; and therefore, if an action of trespass against a revenue-officer for his conduct in the execution of his office be brought in the court of Common Pleas or King's Bench, it may be removed into the office of pleas of this court of exchequer., 1 Anstr. 205. Hardr. 176. Parker, 143. 1 Price, 206. 8 Price, 584. Manning's Exchequer Prac. 161, 164, n. On such occasions the court interposes on motion, by ordering the proceeding to be removed into the office of pleas, which order operates by way of injunction. The usual order in cases of this nature is that the action be removed out of the King's Bench or Common Pleas, or other court in which it is depending, into the office of pleas, and that it shall be there in the same forwardness as in the court out of which the action is removed. This order, however, does not operate as a certiorari to remove the proceedings, but as a personal order on the party to stay them there, and, of course, calls on the defendant in the action to appear, accept a declaration, and put the plaintiff in the same state of forwardness in the office of pleas as he was in the other court. Per Eyre, Ch. B. 1 Anstr. 205, in notes.-CHITTY.

all the officers and ministers of this court have, like those of other superior courts, the privilege of suing and being sued only in their own court; so also the king's debtors and farmers, and all accomptants of the exchequer, are privileged to sue and implead all manner of persons in the same court of equity that they themselves are called into. They have likewise privilege to sue and implead one another, or any stranger, in the same kind of common-law actions (where the personalty only is concerned) as are prosecuted in the court of common pleas.

And

This gives original to the common-law part of their jurisdiction, which was established merely for the benefit of the king's accomptants, and is exercised by the barons only of the exchequer, and not the treasurer or chancellor. The writ upon which all proceedings here are grounded is called a quo minus: in which the plaintiff suggests that he is the king's farmer or debtor, and that the defendant hath done him the injury or damage complained of; quo minus sufficiens existit, by which he is less able to pay the king his debt or rent. these suits are expressly directed, by what is called the statute of Rutland, (1) to be confined to such matters only as specially concern the king or his ministers of the exchequer. And by the articuli super cartas, (m) it is enacted, that no common pleas be thenceforth holden in the exchequer contrary to the form of the great charter. But now, by the suggestion of privilege, any person may be admitted to sue in the exchequer as well as the king's accomptant. The surmise, of being debtor to the king, is therefore become matter of form and mere words of course, and the court is open to all the nation equally. The same holds with regard to the equity side of the court: for there any person may file *a bill against another upon a bare suggestion that he is the king's [*46 accomptant; but whether he is so, or not, is never controverted. In this court on the equity side, the clergy have long used to exhibit their bills for the non-payment of tithes; in which case the surmise of being the king's debtor is no fiction, they being bound to pay him their first-fruits and annual tenths. But the chancery has of late years obtained a large share in this business.

15

An appeal from the equity side of this court lies immediately to the house of peers; but from the common-law side, in pursuance of the statute 31 Edw. III c. 12, a writ of error must be first brought into the court of exchequer cham ber. And from the determination there had, there lies, in the dernier resort, ù writ of error to the house of lords.16

VIII. The high court of chancery is the only remaining, and in matters of civil property by much the most important of any, of the king's superior and original courts of justice. It has its name of chancery, cancellaria, from the judge who presides here, the lord chancellor, or cancellarius; who, Sir Edward Coke tells us, is so termed a cancellando, from cancelling the king's letters patent when granted contrary to law, which is the highest point of his jurisdiction.(n) But the office and name of chancellor (however derived) was

16

() 10 Edw. I. c. 11.

(m) 28 Edw. I. c. 4.

(") 4 Inst. 88.

15 This fiction has been for some time abolished. 2 W. IV. c. 39.-STEWART. By the 31 Edward III. c. 12, this court of appeal is to consist of the chancellor and treasurer, and such justices and sage persons as they shall think fit. It is altered by 31 Eliz. c. 1, 16 Car. II. c. 2, 20 Car. II. c. 4, from which it appears that the court may consist of both the chief justices, or one of them, or of the chancellor, provided the chancellor is present when the judgment is given.. See the proceedings in the case of Johnstone vs. Sutton in this court. 1 T. R. 493.-CHITTY.

But by statute 5 Vict. c. 5 its jurisdiction as a court of equity was transferred to the court of chancery; and it is now only a court of law and revenue, with five judges,—a chief and four puisnè barons,-like the courts of Queen's Bench and Common Pleas. From the judgment of this court an appeal lies to the justices of the Queen's Bench and Common Pleas, sitting as the court of exchequer chamber; and from that court an appeal lies to the house of lords.-KERR.

According to the opinion of several learned authors, (as Mr. Cambden, in his Britannia, and Dr. Cowell, in his Interpreter, have observed,) the chancery had its name originally from certain bars laid one over another crosswise, like a lattice, wherewith it was environed to keep off the press of the people, and not to hinder the view of those

certainly known to the courts of the Roman emperors: where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a general superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters, and such other public instruments of the crown as were authenticated in the most solemn manner: and therefore *47] *when seals came in use, he had always the custody of the king's great seal. So that the office of chancellor, or lord keeper,18 (whose authority, by statute 5 Eliz. c. 18, is declared to be exactly the same,) is with us at this day created by the mere delivery of the king's great seal into his custody :(0) whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom, and superior in point of precedency to every temporal lord.(p) He is a privy counsellor by his office, (q) and, according to lord chancellor Ellesmere,(r) prolocutor of the house of lords by prescription. To him belongs the appointment of all justices of the peace throughout the kingdom. Being formerly usually an ecclesiastic, (for none else were then capable of an office so conversant in writings,) and presiding over the royal chapel,(s) he became keeper of the king's conscience; visitor in right of the king, of all hospitals and colleges of the king's foundation; and patron of all the king's livings under the value of twenty marks(t) per annum in the king's books. He is the general guardian of all infants, idiots, and lunatics;

(0) Lamb. Archeion. 65. 1 Roll. Abr. 385.

(P) Stat. 31 Hen. VIII. c. 10.

(9) Selden, Office of Lord Chanc. 23.

(7) of the office of lord chancellor, edit. 1651.

() Madox, Hist. of Exch. 42.

(t) 38 Edw. III. 3 F. N. B. 35, though Hobart (214) extends this value to twenty pounds.

officers who sat therein,-such gates or crossbars being by the Latins called cancelli. Vid. Dugd. 32. Cambden, Cowell, Cassiod. ep. 6, lib. 11. Pet. Pythæus, lib. 2, advers. c. 12. 1 Harr. Ch. 1. Dr. Johnson seems also inclined to this definition; and it indeed appears the most reasonable, for we have also the word "chancel," which signifies that part of the church formerly barred off from the body of it.-CHITTY.

18 King Henry V. had two great seals, one of gold, which he delivered to the bishop of Durham and made him lord chancellor, another of silver, which he delivered to the bishop of London to keep; and historians often confound chancellors and keepers, (1 Harr. Ch. 68, note. 4 Inst. 88;) but at this day, there being but one great seal, there cannot be both a chancellor and a lord keeper of the great seal at one time, because both are but one office, as is declared by the stat. 5 Eliz. 4 Inst. 88, and the taking away the seal determines the office. 1 Sid. 338. It seems that it is not inconsistent for the lord chancellor also to hold the office of chief justice of the King's Bench. Lord Hardwicke held both offices from 20th February till 7th June. 1 Sid. 338. Com. Dig. tit. Chancery, (B. 1.)-CHITTY.

19 With regard to the chancellor's patronage there seems to be some inaccuracy in the learned judge's text and references. I humbly conceive that a truer statement is this,viz., that it appears from the rolls of parliament in the time of Edward III. that it had been the usage before that time for the chancellors to give all the king's livings taxed (by the subsidy assessments) at twenty marks or under, to the clerks, who were then actually cleri or clergymen, who had long laboured in the court of chancery; but that the bishop of Lincoln, when he was chancellor, had given such livings to his own and other clerks, contrary to the pleasure of the king and the ancient usage; and therefore it is recommended to the king by the council to command the chancellor to give such livings only to the clerks of chancery, the exchequer, and the other two benches or courts of Westminster hall. 4 Edw. III. n. 51. But since the new valuation of benefices, or the king's books, in the time of Henry the Eighth, and the clerks ceased to be in order, the chancellor has had the absolute disposal of all the king's livings, even where the presentation devolves to the crown by lapse, of the value of twenty pounds a year or under in the king's books. It does not appear how this enlarged patronage has been obtained by the chancellor; but it is probably by a private grant of the crown, from a consideration that the twenty marks in the time of Edward III. were equivalent to twenty pounds in the time of Henry VIII. Gibs. 764. 1 Burn, Ec. Law, 129.

and has the general superintendence of all charitable uses in the kingdom. And all this over and above the vast and extensive jurisdiction which he exereises in his judicial capacity in the court of chancery; wherein, as in the exchequer, there are two distinct tribunals: the one ordinary, being a court of common law; the other extraordinary, being a court of equity.

The ordinary legal court is much more antient than the court of equity. Its jurisdiction is to hold plea upon a scire facias to repeal and cancel the king's letters-patent, when made against law or upon untrue suggestions; and to hold plea of petitions, monstrans de droit, traverses of offices, and the like; when the king hath been advised to do any act, or is put in possession of any lands

So far this was the note in my first edition; but a reverend gentleman has been so obliging as to suggest to me that, having once had occasion to examine the subject, he was inclined to think that the chancellor's patronage was confined to benefices under 201, a year, and that livings exactly of that value belonged to the king, to be presented to by himself or his minister. Having, in consequence, looked more attentively into the subject, I am still of opinion that the authorities support what is advanced in the preceding part of the note. It cannot be doubted that since the new valor beneficiorum, pounds were intended to be substituted for marks, and this is expressly stated by bishop Gibson, p. 764. In the 4 Edw. III., cited above, the chancellor's patronage is stated to be of all livings of 20 marks and under, del tax de vint marces et dedeyns. In the 1 Hen. VI. note 25, Rolls of Parliament, there is a record appointing the duke of Bedford protector, and the duke of Gloucestor protector in his absence; and amongst other privileges it grants the protector, for the time-being, the patronage of all the livings belonging to the crown, ultra taxam viginti marcarum usque ad taxam triginta marcarum inclusivè, and reserves the rest of the royal patronage to the king, except the benefices belonging to the chancellor, virtute officii sui. The word inclusive can only apply to the words usque ad triginta; it cannot be reconciled with ultra, which was intended to leave the chancellor 20 or under. This is also clearly expressed in the Registrum Brevium 307, where there is an ancient writ called de primo beneficio ecclesiastico habendo. Volumus quod idem A. ad primum beneficium ecclesiasticum (taxationem viginti marcarum excedens) vacaturum, quod ad præsentionem nostram pertinuerit, &c.

In the year-book, 38 Edw. III. 3, it is laid down as law that the king shall present to toutz esglises que passent l'extent de 20 marcs; and in the next line it is said that the chancellor shall present to all not taxed at 20 marks, and having understood that the living in question was taxed at 40s. he had presented to it, but as, in fact, it was taxed at 407., the king claimed it. The words in French state the general law; the rest only apply to the particular case. Yet Watson is so careless as to state the chancellor's patronage to be under 20 marks and under 20., and refers to this authority, ch. 9. But it is correctly cited by Comyns to support the position that the chancellor has the patronage of 20 marks or 201. Dig. tit. Esgl. H. 5. In Fitz. N. B. 35 it is stated to be under 20 marks, without taking any notice of 20 exactly. And in a case in Hob. 214 the word is under. In that case the chancellor had presented to a living lapsed to the crown above 207. a year, and it was held that the king could have no remedy, because the presentation had passed the great seal, and therefore apparently made by the king himself; but if the presentation had stated that the benefice was under the value of 20%., then it would have been void, because the chancellor must have been deceived. In this case there was no occasion to state the instance of a living of the exact value of 201. This was a benefice which had devolved to the crown by lapse; but no objection is made on that ground, and there seems to be no reason for any distinction, whether the benefice devolves to the king by lapse or by promotion of the incumbent, or it is part of his original patronage. I have stated the authorities which expressly give the chancellor the patronage of the value of 20 marks, or now 207., and I have referred to those which state it to be under; and, I cannot but observe, so far they are all consistent, as I find no authority in opposition to those above, declaring that livings of the value of 20%. belong to the king and not to the chancellor.

The gentleman who wished me to examine the authorities upon this subject was so obliging as to inform me that the crown has the patronage of five livings of the exact value of 201. in the king's books, but that several others of that value occasionally devolve to the crown by lapse and promotion; that he has examined the church-book in the secretary of state's office, and that he finds within the last century many instances of presentations to those livings by the crown; but he admits in some modern instances where the right to the presentation has been claimed both by the chancellor and the minister, that the latter has yielded to the former. From the whole, one is led to conclude that these presentations made by the crown were owing either to the inattention er the accommodation of the chancellor.-CHRISTIAN.

[BOOK III. or goods, in prejudice of a subject's right.(u) On proof of which, as the king *48] can never be supposed intentionally to do any wrong, the law questions not but he will immediately redress the injury, and refers that conscientious task to the chancellor, the keeper of his conscience. It also appertains to this court to hold plea of all personal actions, where any officer or minister of the court is a party.(v) It might likewise hold plea (by scire facias) of partitions of land in coparcenery, (w) and of dower,(x) where any ward of the crown was concerned in interest, so long as the military tenures subsisted: as it now may also do of the tithes of forest land, where granted by the king, and claimed by a stranger against the grantee of the crown ;(y) and of executions on statutes, or recognizances in nature thereof, by the statute 23 Henry VIII. c. 6.(z) But if any cause comes to issue in this court, that is, if any fact be disputed between the parties, the chancellor cannot try it, having no power to summon a jury; but must deliver the record propria manu into the court of king's bench, where it shall be tried by the country, and judgment shall be there given thereon. (a) And when judgment is given in chancery upon demurrer or the like, a writ of error in nature of an appeal lies out of this ordinary court into the court of king's bench:(b) though so little is usually done on the common-law side of the court, that I have met with no traces of any writ of error(c) being actually brought, since the fourteenth year of queen Elizabeth,

A.D. 1572.

In this ordinary or legal court is also kept the officina justitiæ: out of which all original writs that pass under the great seal, all commissions of charitable uses, sewers, bankruptcy, idiotcy, lunacy, and the like, do issue; and for which it is always open to the subject, who may there at any time demand and have, *49] ex debito justitiæ, any writ that his occasions *may call for. These writs (relating to the business of the subject) and the returns to them were, according to the simplicity of antient times, originally kept in a hamper, in hanaperio; and the others (relating to such matters wherein the crown is immediately or mediately concerned) were preserved in a little sack or bag, in parva baga: and thence hath arisen the distinction of the hanaper office and petty bag office, which both belong to the common-law court in chancery.

But the extraordinary court, or court of equity, is now become the court of the greatest judicial consequence. This distinction between law and equity, as administered in different courts, is not at present known, nor seems to have

(u) 4 Rep. 54.

(*) 4 Inst. 80.

(e) Co. Litt. 171. F. N. B. 62.

(*) Bro. Abr. tit. Dower, 66. Moor. 565.

() Bro. Abr. tit. Dismes, 10.

(*) 2 Roll. Abr. 469.

(b) Year-book, 18 Edw. III. 25. 17 Ass. 24. 29 Ass. 47. Dyer, 315. 1 Roll. Rep. 287. 4 Inst. 80.

(e) The opinion of lord-keeper North, in 1682, (1 Vern. 131. 1 Eq. Ca Abr. 129,) that no such writ of error lay, and that an injunction might be issued against it, seems not to have been well considered.

(4) Cro. Jac. 12. Latch. 112.

20 But on the equity side of the court questions of fact may be decided without an issue; but this jurisdiction ought to be exercised very tenderly and sparingly. 9 Vesey, 168. On the trial of an issue directed out of chancery, if either party be desirous of having a special jury, it is said to be proper to move the court of chancery for that purpose. See Prec. Ch. 264. 2 P. Wms. 68. 4 M. & S. 195, 196.-CHITTY.

It is important to confine this observation (which is not always done) to the commonlaw side of the court of chancery. Sitting as a judge at common law and trying causes according to the rules of the common law, the lord chancellor cannot decide by himself a disputed fact, and has no power of issuing process to the sheriff or other officer for summoning a jury. But on the equity side of the court, where the jurisdiction of the lord chancellor is placed entirely on other grounds than those of the common law, he is equally competent to decide on disputed facts as on disputed law; and it is matter of discretion only when he either orders or permits the parties to submit the trial of such fact to the cognizance of a jury. For the manner in which this is done, see post, 452. According to the later precedents, when a record comes into the King's Bench from chancery, the chancellor does not deliver it propria manu, but sends it by the clerk of the petty bag. 1 Eq. Ca. Abr. 128.-COLeridge.

And now, by 12 & 13 Vict. c. 109, any issue, either of fact or law, must be sent to one of the three superior courts of law, there to be determined according to the ordinary course of proceeding in those courts.—STEWART.