*

of Chancery. The Chancery, like the Exchequer, was originally a department or public office, and not a court. It was attendant on the person of the King; and its staff included the Chancellor and the Masters, who were generally ecclesiastics and whose duty was to hear and to examine the petition of complainants and to afford them due remedy by the King's writ. Before the reign of Edward the Third the Chancellor appears never to have exercised judicial functions unless when directed by the council or when acting by its authority; and when he acted ministerially, he was assisted by his Masters. But the Chancellor, a learned and dignified ecclesiastic and skilled in the Roman law, was in matters of law the chief adviser and guide of the council. He was the head of an organized department, and had at his disposal proper machinery for enforcing his decrees. It was inevitable that a single will, to which habitual deference was paid and which was armed in its own right with sufficient power, should establish its separate authority. In the reigns both of Edward the First and of Edward the Second petitions addressed to the King or to the King and his council were frequently referred to the Chancellor for justice.† In the reign of Edward the Third a much greater advance was made. The Chancery ceased to follow the King, and became stationary like the Courts of Common Law. The separate jurisdiction of the Chancellor was recognized by Parliament.§ The Chancellor began || to decide causes as a Judge in Equity. Several attempts were made to restrain the jurisdiction of the Chancellor in the same manner in which attempts were made to restrain the

§ 27 Edw. III. St. I c. 1; 36 Edw. III. St. I c. 9.

|| Palgrave, On the Council, 69; Hardy's Introd. Close Rolls, 28; Middle Ages, iii. 246.

jurisdiction of the council. In the reign of Richard the Second the Chancellor was empowered* to give to the party aggrieved damages in cases before the council or the Chancery grounded upon false suggestions. This Act seems to have produced greater regularity in the proceedings of the court. From the year in which it was enacted, bills in Chancery and the answers to them have been regularly filed: the grounds on which relief is demanded appear, and the Chancellor renders himself in every instance responsible for his orders by thus showing that they come within his jurisdiction.†

Various petitions from the Commons were presented in the reigns of the Lancastrian Kings complaining of the encroachments of the Court of Chancery. It would seem that about the reign of Henry the Sixth a sort of tacit compromise was effected. The Court of Chancery ceased to interfere with matters of Common Law. The Common lawyers acquiesced in the independent remedial jurisdiction of Chancery. About the latter part of that reign the extension of the Chancellor's authority over feoffments to uses was established. § This great event, to which as it resulted from their own rulings the judges could raise no objection, both enhanced beyond all previous precedent the authority of the Chancellor, and opened a new era in the history of our law. At length, in the reign of James the First, a vigorous attempt to repress this ever-encroaching jurisdiction was made by Lord Coke. That great master of the Common Law was animated not only by the jealousy of his profession but by a tenacious regard for his own dignity, and still more by a personal enmity towards the then Chancellor, Lord Ellesmere. He insisted that any attempt to sue in another court after judgment at law was

*

17 Rich. II. c. 6.

Ib., 249; I Spence, 349.

+ Hallam, Middle Ages, iii. 247.
§ Hallam, ubi supra, 249.

contrary to the Statute of Premunire;* and, in two cases where the merits at least were clearly against him, he caused indictments to be filed against persons who had invoked the aid of Chancery against a judgment which had been obtained by fraud. The King referred the question for the opinion of his law officers, and upon their report in favour of the Chancellor's claim made an entry upon the Council Book that the Chancellor had not exceeded his jurisdiction. Notwithstanding some late attempts to revive the controversy, this strange exercise of the prerogative seems to have been generally accepted as conclusive. From that time at least the authority of the Chancellor has been exercised without interruption. †

of Ordinary

§ 6. The growth of the equitable jurisdiction of the Court of Chancery naturally absorbed much of the civil jurisdiction of the council. This jurisdiction, however, was Other judicial not taken away, and an additional organ for its developments exercise was created. An order in Council was Council. made in 1390 which provided that the bills of the people of lesser charge should be examined by the "eeper of the Privy Seal and such of the council as should be present with him. When the council met for this purpose, it sat in the White Chamber, and was known as the Court of Requests. This court was in fact a subsidiary Court of Equity. It sprang from the same source as the Court of Chancery. It was under the presidency of the Keeper of the Privy Seal, just as the Court of Chancery was under the presidency of the Keeper of the Great Seal. It had a similar jurisdiction, a similar staff of civilians, and a similar

27 Ed. III. St. I. c. I.

+ See 2 Swanston's Reports, 22, note; Hallam, Const. Hist., i. 345; Gardiner's Hist. of Eng., ii. 269.

13 Rich. II. See I Spence, 351.

*

process. It also came into collision with the Courts of Common Law, but with a fortune different from that of its sister court. In the reign of Elizabeth the Court of Common Pleas adjudged that "this which was called the Court of Requests or the White Hall was no court that had power of judicature." It would seem, however, that notwithstanding this decision the Court of Requests was reserved for a higher function, as occasion might require, than that of a minor Court of Equity. Lord Bacon+ tells us that "there was always reserved a high and permanent power to the King's Council in causes that might in example or consequence concern the state of the Commonwealth; which, if they were criminal, the council used to sit in the chamber called the Star Chamber; if civil, in the White Chamber or White Hall."

The same process by which the civil jurisdiction of the council was exercised by distinct tribunals tended to give to its criminal jurisdiction increased strength and a more definite character. Out of the old council sitting in the Starred Chamber there had been developed three courts, two of civil and one of criminal jurisdiction. The two former, those which had in the words of Bacon "the Prætorian power of Equity," were, as we have seen, the Court of Chancery and the Court of Requests. The third, that which had "the Censorian power for offences under the degree of capital," was the Star Chamber properly so called. This court-in other words, the Privy Council sitting judicially-was indeed the mother court from which the Courts of the Keepers of the two Seals had been detached; and when it became in effect a Court of Criminal Equity, it naturally retained, even while it had abandoned most of its old powers, the original designation. It has been

sometimes supposed that this court was established by an Act of Henry the Seventh, and that its jurisdiction was limited to the cases therein specified. This Act gave jurisdiction to the Star Chamber in seven cases viz., maintenances, giving of liveries, having retainers, embracery, jurors receiving money, untrue demeanours of sheriffs in false returns and panels, routs and riots. It was, however, "solemnly adjudged by the chief judges of England, Sir Edward Coke and the Lord Howard, attended by the King's learned counsel, then Sir Francis Bacon and Sir Henry Yelverton, in the cause betwixt the Earl of Northumberland and Sir Stephen Proctor, and published in open court, that the Statute 3 Henry VII. extended not any way to this court; but that the Lords authorized by that Act may at all times in all places determine of the matter therein specified." In accordance with this decision, demurrers to the jurisdiction of the court in proceedings not within the statute were on several occasions overruled; ‡ and the doctrine was established that "the court subsisted by ancient prescription, and had neither essence nor subsistence by that Act of Parliament." The Star Chamber seems to have discontinued the exercise of its civil jurisdiction about the time of Queen Mary,§ and during the remainder of its existence was exclusively a criminal court. In this capacity its jurisdiction was limited only in respect of the punishment that it could inflict. It could deal with every offence, and inflict every punishment except that of death. "In a word," says Hudson, "there is no offence punishable by any law but if the court find it to grow in the Commonwealth this court may lawfully punish it except only when life is questioned." In this court the defendant

* 3 Henry VII. c. I.

+ Hudson on the Court of Star Chamber in 2 Collect. Jurid., 10.