349 The Court of Chancery, temp. Hen. V. & VI. & Ed. IV. In the reign of Henry VI., this court was in full operation, and large additional powers of coercion were conferred on the Chancellor in particular cases (a). The writs in the reign of Henry VI. refer to the proceedings as being in Cancellariâ, without reference to the Council (b). From this time the bills appear to have been filed (c). In the reign of Edward IV. proceedings by bill and subpoena became the daily practice of the Court of Chancery (d); and from that time, though the judges continued to dispute the Chancellor's authority to interfere with the proceedings of the Common Law Courts (e), we do not trace any further opposition on the part of the Commons to the authority of the Court of Chancery (f); and down to the reign of Charles II. the court continued to be substantially the same as it was in the reign of Edward IV. In the reigns of Henry V. and VI. various statutes were passed, which expressly delegated to the Chancellor, in particular cases, some *branches of the jurisdiction which had been claimed or exer[*350] cised both by the Council and by Parliament in aid of the Common Law, to be exercised with the advice of the Chief Justice of either bench, or of the Chief Baron of the Court of Exchequer (g). THE STAR CHAMBER-THE COURT OF REQUESTS-SPECIAL COMMISSIONS OF OYER AND TERMINER-THE EQUITY COURT OF THE EXCHEQUER. Having traced the extraordinary jurisdiction of the Court of Chancery as connected with or as forming part of the Council, until the time of its establishment as a separate and independent jurisdiction, it may be well cursorily to notice two other branches or offsets from the Council, which also formed themselves into distinct tribunals, namely, the Star Chamber and Court of Requests. It has already been noticed that in the reign of Edward III. the Council were in the habit of sitting in what was called the Starred Chamber. After it became the habit to depute to the Chancellor a portion of the business of the Council, namely, that which related to civil rights, the Council usually sitting in the Star Chamber entertained jurisdiction over those cases which were not sent to the Court of Chancery. At length the Court of Star Chamber was established. This Court, like the Court of Chancery, derived its origin from the Royal prerogative (h). The Court of Star Chamber by continued usage, and as ultimately regulated by the stat. 3 (Clarendon says 10th) Henry VII. c. 1, and 21 ter. (a) See Additional Note (2) to this Chap (b) Cal. vol. ii. p. 16. 31; vol. i. p. 51, 52; Palgr. Council, 97. In the 6 Hen. VI. Rot. Parl. vol. iv. p. 321-2, No. 17, is a petition by two executors against a third, who had wasted the testator's goods, which was presented to the Commons, and was carried by them to the Lords; it was thereupon ordered in Parliament, that the Chancellor to whom the matter was referred, should hear and determine the matter as "good faith and conscience" should require, Palgr. Council, p. 77. (c) Pref. to Cal. (d) 3 Bla. Comm. i. p. 53; Palgr. Coun. 97. In some cases the parties were re ferred to Parliament, Crompt. 46 b. (e) Y. B. 9 Edw. IV.; 22 Edw. IV.; Crompt. 41 b, &c. (f) Palgr. Council, 97. (g) 2 Hen. V. stat. 1, c. 9; 33 Hen. VI. c. 1; Palgr. Council, p. 94. (h) See Clarendon's Hist. of the Rebellion, ed. 1721, i. p. 285; 4 Inst. 60, 61; the stat. 27 Edw. III. against those who appealed to the Papal Court, recognizes this Council as distinct from the Chancery. Star Chamber-Court of Requests. 350 Henry VIII. c. 30, had jurisdiction in cases of oppression and other exorbitant offences of great men, (where, as Lord Coke observes, inferior judges and jurors, though they should not, would in respect of the greatness of the offenders be afraid to offend,) bribery, extortion, maintenance, champerty, embracery, forgery, perjury, dispensers of false and dangerous rumors, news, and scandalous libeling; false and partial misdemeanors of sheriffs and bailiffs of liberties; frauds, deceits (a), great and horrible riots, routs, and unlawful assemblies, single combats, challenges, duels, and other heinous and extraordinary offences and misdemeanors (b); leaving ordinary offences to the courts of common law (c). Thus a jurisdiction founded on the inefficiency of the ordinary tribunals to do complete justice in criminal matters, and other [*351] offences of an extraordinary and dangerous character, arose almost concurrently with the establishment of the Court of Chancery and entirely analogous in principle and procedure to that Court, but confining its jurisdiction to cases partaking of a criminal character (d); "and whilst it was gravely and moderately governed," says Clarendon, "it was an excellent expedient to preserve the dignity of the king and the peace and security of the kingdom." The Court of Chancery sometimes, besides itself granting civil relief, made use of the Court of Star Chamber to subject the parties to punishment where gross frauds had been perpetrated. Thus, we find an order of Lord Keeper Bacon to this effect, "Because the Court disliketh the said evil practices and fraud, and thinketh them not meet to be passed over without further examination," it is ordered that the plaintiff and one Frankland, shall at their equal charges, exhibit a bill in the Court of Star Chamber, against Fulwood the defendant, "touching his indirect, lewd, and fraudulent practices" (e). This Court, however, having become odious by the tyrannical exercise of its powers, it met with a different fate to that of the Court of Chancery, having been abolished by the statute 16 Car. I. c. 10 (f). The Court of Requests. It has generally been supposed that the Court of Requests, which was a minor Court of Equity, had its origin from the writ or proclamation of the 22d of Edward III., before referred to (g); but the more probable origin is an order of the 13th Rich. II., for regulating the Council, by which the Lords were to meet between eight and nine o'clock, and the bills of the people of lesser charge were to be examined and dispatched before the Keeper of the Privy Seal, and such of the Council as should be present for the time being. From this time, at least, the Lord Privy Seal held a Court of Equity called the Court of Requests. The course of procedure was the same as in the Court of Chancery. The bills of complaint filed there, ordinarily contained the one or the other of these two suggestions, namely, that the plaintiff was a very poor man not able to sue at common law, or that he was one of the King's servants 351 Commission of Oyer and Terminer-Equity Court of Exchequer. or ordinarily attendant on his person; it was the poor man's Court of Equity (a). The Lord Privy Seal, and the Masters of the Requests, who exercised similar functions to those of the Masters in Chan[*352] cery, presided. This court continued to be resorted to down to the 41st of Eliz. when it ceased to exist, having been virtually abolished by a decision of the Court of Queen's Bench (b). Greater facilities were from that time given to the poor for enabling them to proceed in the superior courts in formâ pauperis, which will be noticed hereafter in treating of the course of procedure in the Court of Chancery. Special Commissioners of Oyer and Terminer. The King was frequently applied to, as has been before observed, to grant a more certain and speedy remedy in criminal cases than could be obtained by the ordinary proceedings of the Common Law Courts. In answer to these applications, Special Commissioners of Oyer and Terminer were frequently awarded by the Council, to whom such applications were usually referred, directed to persons specially named, who usually, as it would appear, were not justices of the one bench or the other (c). Poverty or the number of the applicant's enemies, and the inefficiency of the Common Law, were also the ordinary grounds of the applications for this extraordinary exercise of the Prerogative. The great abuses attending these commissions, caused them to be confined to "great and horrible trespasses" (d); and even these became less frequent as the remedial jurisdiction exercised by the Council in its various branches, especially in the Star Chamber, became more fully developed (e). Courts of Equity of the Exchequer, Counties Palatine and of Lords and Ladies. Not only the Court of Exchequer (f), whose functions were in a peculiar manner connected with the Royal authority, but the Counties Palatine of Chester, Lancaster and Durham, the Court of Great Session in Wales, the Universities, the City of London, the Cinque Ports, and other places, silently assumed extraordinary jurisdiction similar to that which was exercised in the Court of Chancery; some of them yet subsist (g). The equitable jurisdiction of the Exchequer has lately been transferred to the Court of Chancery. *In the reign of Rich. I. the Earl of Moreton, a nobleman of [*353] vast possessions, had his Chancellor (h); and after this time many Lords and Ladies affected to establish in their several Honors a Court of Chancery, with similar powers to those exercised by the High Court, but they were extinguished by the Legislature (i). (a) The Lord Keeper "moved with compassion towards the poor man," applied to the Master of the Requests to take order of a suit instituted in Chancery to be relieved from mistake, Reg. Lib. 5 & 6 Eliz. fo. 471. (b) Palgrave, Council, 79, 99; and see stat. 16 Car. I. c. 10; Seton, p. 18; 4 Inst. 97; 3 Bla. Comm. 50, Christian's note. (c) See Palgr. Council, 27. 32, 33. 126. 2 Edw. III. (e) See Palgr. Counc. 32–3, et v. ib. 1267, 9. (f) Petition of the Commons, 3 Hen. V. A. D. 1415, Parkes, p. 48, 50. (g) Sir H. Seton has given a short account of them, p. 3. 10. 12. And see Lord Redesdale, Pleading, by Jeremy, p. 6. 151. (h) Hoveden, 707, 29; Heywood, p. 85. (i) Stat. 15 R. II. c. 18. Stat. 31 Hen. VI. c. 2. ADDITIONAL NOTE (1) TO CHAPTER IV. p. 342. 353 The Council of Richard, in answer to the first of the petitions from the Commons, answered that no one should be compelled by the King to answer for his frank tenement, but as the law demands and the case requires, to be put in due course; adding -provided always that at the suit of a party where the King and his Council would be credibly informed as to maintenance, oppressions, and other outrages in places where the Common Law is not able duly to have its course, in such case the Council may be able to send for the person of whom the complaint is made for his surety to answer for his misprision, and further, at their good discretion to compel him to find surety by oath, and in other manner as shall seem best to be done for his good behavior, and that he will not by himself in any other cause, maintenance, or other thing disturb the course of the Common Law to the oppression of the people (1). In the 13th year of the same reign, in answer to a similar petition, the King declared that he would preserve his royalty as his progenitors had done before him. The answer given by Henry IV. to a similar petition is more explicit, it was that the statutes should be kept, except when one party was so great and rich and the other so poor that he could not otherwise have remedy (2). ADDITIONAL NOTE (2) TO CHAPTER IV. p. 349. By stat. 31 Henry VI. c. 2, (Stat. of the R. ii. 361,) reciting that before that time, upon certain suggestions and complaints, made as well to the King as the Council, against divers persons, for great riots, extortions, oppressions, and grievous offences by them done, against the King's peace and laws, to divers people, the King had given in commandment as well by writs under the Great Seal, as by his letters of Privy Seal, to appear before him in his Chancery, or before him and his Council at certain days, &c., to answer the premises, which commandments had been many times disobeyed, in contempt of the King, and to the hinderance, damage, and delay of the [354] complainants-it was enacted, that the Chancellor might issue writs of proclamation to sheriffs for the offenders to appear before him or the Council; and severe penalties were inflicted on those who should make default whether Lords or Commoners: but there was this proviso, that no matter determinable by the law of the realm should by that Act be determined in other form than after the course of the same law in the King's Courts having determination of the same law. By the same stat. c. 4, the Chancellor had authority to give redress for injuries done at sea, or in any port, to aliens in amity or with safe conducts; and by c. 9, a special jurisdiction was given to the Chancellor and others, in respect of obligations, &c., obtained from women by coercion, &c. This is the only Act of Parliament, that I am aware of, that gave the Chancellor coercive power. Had there been any other Act to be found relating to this subject, no doubt it would not have escaped the vigilance of Mr. Kennedy and Mr. Crabb. The Act above recited, as will be observed, does not introduce the writs, on the contrary, it is to be implied that it had been the constant practice to issue such writs. It is on these grounds that I have assumed that it was in virtue of the Prerogative delegated to the Chancellor, that he caused process of contempt to issue in the King's name in suits in the Court of Chancery. ADDITIONAL NOTE (3) TO CHAPTER IV. p. 351. In the case of Fysher v. Fysher, 25th October, 1594, almost every kind of charge is brought against the plaintiff, including fraud, cosenage, imposition, intimidation, and (1) Rot. Parl. 3 Rich. II. No. 49, vol. iii. p. 44; Parkes, 39; like petition and answer, 7 Rich. II. Introd. to Close Rolls, p. xxix.; Seton, 21. (2) Rot. Parl. 13 Rich. II. No. 33, vol. iii. p. 267; ibid. p. 446; Palgr. 47; 4 Inst. 82; Introd. to Close Rolls, p. xxix. A similar answer was given to a similar petition, 1 Hen. VI. Palg. p. 50. The language of these declarations in the name of the King, pretty plainly indicates who were their authors." He shall keep the simple folk by their right: defend the children of the poor, and punish the wrong doer," &c., 72d Psalm, v. 2. 4. 12 and 13, et sparsim; v.sup. p. 107. 354 Rank and Influence of the Chancellor. outrage; amongst the rest, it was alleged that he, on his meeting Serjeant Heale, and again on meeting Mr. Crewe, the counsel who had spoken against him in the cause, had presented a pistol to their bosoms; that he had forged an order of the Court, and exhibited an affidavit into the Court to be publicly read, being in manner of a libel, purporting very foul and unseemly matter against his sister, and the defendants his uncle and brother; "and it was now offered to be deposed by Dr. Helme that the plaintiff did heretofore, not only with most vile and opprobrious terms revile, and draw his rapier upon his natural father," and that he had used certain blasphemous expressions (which are detailed verbatim); and lastly, because the Marquis of Winton and the Lord Sondes, and divers Knights and Justices of the Peace, of good credit, had certified to the Lord Keeper of the lewd and bad behavior of the plaintiff, (it is by mistake defendant in the order,) the Lord Keeper ordered that he should be taken in custody by the Warden of the Fleet, and brought into the Star Chamber, to be informed against, ore tenus, by her Majesty's counsel, for all such of the aforesaid offences as are there punishable; and all parties, except the Serjeant and Mr. Crewe, were to be examined on interrogatories as to the aforesaid offences. in order that their depositions might be shown to her Majesty's Council to instruct them, and also to be showed to the Court of the Star Chamber; and Mr. Serjeant Heale and Mr. Crewe were ordered to attend the Star Chamber, and to inform their knowledges upon their credit touching the said abuses to them offered, and the plaintiff was ordered to find sureties to keep the peace. Moreover, Dr. Helme was commanded to inform the Archbishop of Canterbury of the aforesaid blasphemous speeches of the plaintiff, to the end he might be dealt with as the Lord Archbishop should think meet. -Reg. Lib. A. 1594, fo. 442. THE CHANCELLOR-THE MASTER OF THE ROLLS-THE MASTERS AND OTHER OFFICERS OF THE COURT FROM THE TIME OF RICHARD II. DOWN TO THE END OF THE REIGN OF CHARLES I. The CHANCELLOR-Rank and Influence of the Chancellor in early times-Appointment of Judges of the Common Law Courts-The Chancellor the sole or chief Equity Judge of the Court of Chancery. The MASTER OF THE ROLLS-the Rolls Mansion-High Rank and important Duties attached to the Office-Often constituted Lord Keeper-Judicial authority to be traced to the time of Edw. I.—Bills addressed to him temp. Hen. VI.-Had the Regulation of some branches of the business of the Court. The MASTERS-Master of the Rolls one-Assessors or Council of the Chancellor-Component part of the Select Council-Appointed by the Chancellor-Their Office similar to that of the Pedanei Judices in Justinian's time-Petitions on matters of procedure heard by them -References in suits made to the Master of the Rolls, among the rest, Demurrers-Masters sat in Court covered-Great Seal sometimes committed to their charge-References made to the Masters-Demurrers-Matters of Account-Abuses of the system of Delegation-Special Commissions. The Six Clerks-Registrars-Examiners-Affidavit Office. DURING the whole of the time which we have passed over, the Chancellor, as will have been in part collected from what has already been stated, generally speaking, was next to the King, the person of greatest consequence, not only in rank, but in influence and authority, politically as well as judicially (a). The conspicuous place which the Chancellor (a) The Archbishop of Canterbury rank- self Chancellor; v. int. al. sup. p. 117. ed above him, but he was sometimes him |