The Court of Chancery was the highest court of judicature next to the House of Lords.
The Lord Chancellor presided in this court having under him the Lords Justices and Vice Chancellors, who act[ed] for him in separate courts, and the Master of the Rolls, who had the keeping of all the rolls and records of the Court of Chancery and also presided in a court of his own. The Court of Chancery was a court of equity. Under the Act of 1873 the powers and jurisdiction of Court of Chancery were transferred to High Court of Justice and it now exists as the chancery division of that court.

ORIGIN AND HISTORY. The courts of equity may be said to have their origin as far back as the Aula or Curia Regis, the great court in which the king administered justice in person assisted by his counsellors. Of the officers of this court, the chancellor was one of great trust and confidence, next to the king himself; but his duties do not distinctly appear at the present day. On the dissolution of that court, he exercised separate duties.

On the introduction of seals, he had the keeping of the king's seal, which he affixed to charters and deeds; and he had some authority in relation to the king's grants,—perhaps annulling those which were alleged to have been procured by misrepresentation or to have been issued unadvisedly.

As writs came into use, it was made his duty to frame and issue them from his court, which, as early as the reign of Henry II., was known as the chancery. And it is said that he exercised at this period a sort of equitable jurisdiction by which he mitigated the rigor of the common law,—to what extent it is impossible to determine. He is spoken of as one who "annuls unjust laws, and executes the commands of the pious prince, puts an end to what is injurious to people or to morals,"—which would form very ample jurisdiction; but it seems probable that this was according to the authority or direction of the king, given fromtime to time in relation to particular cases.

He was a principal member of the king's council, after the conquest, in which, among other things, all applications for the special exercise of the prerogative in regard to matters of judicial cognizance, were discussed and decided upon. In cononection with the council, he exercised a separate authority in cases in which the council directed the suitors to proceed in chancery. The court of chancery is said to have sprung from this council. But it may be said that it had its origin in the prerogative of the king, by which he undertook to administer justice, on petitions to himself, without regard to the jurisdiction of the ordinary courts, which he did through orders to his chancellor. The great council, or parliament, also sent matters relating to the king's grants, etc., to the chancery; and it seems that the chancellor, although an ecclesiastic, was the principal actor as regards the judicial business which the select or king's council, as well as the great council, had to advise upon or transact. In the reign of Edward I. the power and authority of the chancellor were extended by the statute of Westminster 2d.

In the time of Edward III. proceedings in chancery were commenced by petition or bill, the adverse party was summoned, the parties were examined, and chancery appears as a distinct court for giving relief in cases which required extraordinary remedies, the king having, "by a writ, referred all such matters as were of grace to be dispatched by the chancellor or by the keeper of the privy seal."

It may be considered to have been fully established as a separate and permanent jurisdiction from the 17th of Richard II.

In the time of Edward IV. the chancery had come to be regarded as one of the four principal courts of the kingdom. From this time its jurisdiction and the progress of its jurisdiction become of more importance to us.

It is the tendency of any system of legal principles, when reduced to a practical application, to fail of effecting such justice between party and party as the special circumstances of a case may require, by reason of the minuteness and inflexibility of its rules and the inability of the judges to adapt its remedies to the necessities of the controversy under consideration. This was the case with the Roman law; and, to remedy this, edicts were issued from time to time, which enabled the consuls and prætors to correct "the scrupulosity and mischievous subtlety of the law;" and from these edicts a code of equitable jurisprudence was compiled.

So the principles and rules of the common law, as they were reduced to practice, became in their application the means of injustice in cases where special equitable circumstances existed, of which the judge could not take cognizance because of the precise nature of its titles and rights, the inflexible character of its principles, and the technicality of its pleadings and practice. And in a manner somewhat analogous to the Roman mode of modification, in order to remedy such hardships, the prerogative of the king or the authority of the great council was exercised in ancient times to procure a more equitable measure of justice in the particular case, which was accomplished through the court of chancery.

This was followed by the "invention" of the writ of subpœna by means of which the chancery assumed, upon a complaint made directly to that court, to require the attendance of the adverse party, to answer to such matters as should be objected against him. Notwithstanding the complaints of the commons, from time to time, that the course of proceeding in chancery "was not according to the course of the common law, but the practice of the holy church," the king sustained the authority of the chancellor, the right to issue the writ was and regulated by statute, and other statutes were passed conferring jurisdiction where it had not been taken before. In this way, without any compilation of a code, a system of equitable jurisprudence was established in the court of chancery, enlarging from time to time; the decisions of the court furnishing an exposition of its principles and of their application. It is said that the jurisdiction was greatly enlarged under the administration of Cardinal Wolsey in the time of Henry VIII.

The courts of equity also began to act in personam and to enjoin plaintiffs in common-law courts from prosecuting inequitable suits. A controversy took place between Lord Chancellor Ellesmere and Lord Coke, Chief Justice of the King's Bench in time of James I., respecting the right of the chancellor to interfere with any the proceedings and judgments of the courts of law. The king sustained the chancellor; and from that time the jurisdiction then claimed has been maintained.¹

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DISTINCTIVE PRINCIPLES. It is quite apparent that some principles other than those of the common law must regulate the exercise of such a jurisdiction. That law not mitigate its rigor upon its own principles. And as, down to the time of Edward III., and, with few exceptions, to 21st of Henry VIII., the chancellors were ecclesiastics, much more familiar with the principles of the Roman law than with those of the common law, it was but a matter of course that there should be a larger adoption of the principles of that law; and the study of it is of some importance in this connection. Still, that law cannot be said to be of authority even in equity proceedings. The commons were jealous of its introduction. "In the reign of Richard II. the barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common-law tribunals."

This opposition of the barons and of the common-law judges furnished very sufficient reasons why the chancellors should not profess to adopt that law as the rule of decision. In addition to this it was not fitted, in many respects, to the state of things existing in England: and so the chancellors were of necessity compelled to act upon equitable principles as expounded by themselves. In later times the commonan-law judges in that country have resorted to the Roman law for principles of decision to a much greater extent than they have given credit to it.

Since the time of Henry VIII. the chancery bench has been occupied by some of the ablest lawyers which England has produced and they have given to the proceedings and practice in equity definite rules and forms which leave little to the personal discretion of the chancellor in determining what equity and good conscience require. The discretion of the chancellor is a judicial discretion, to be exercised according to the principles and practice of the court. See DISCRETION.

The avowed principle upon which the jurisdiction was at first exercised was the administration of justice according to honesty, equity, and conscience,—which last, it is said, was unknown to the common law as a principle of decision.

In the 15th of Richard II. two petitions, addressed to the king and the lords of parliament, were sent to the chancery to be heard, with the direction, "Let there be done, by the authority of parliament, that which right and reason and good faith and good conscience demand in the case."

These may be said to be the general principles upon which equity is administered at the present day.





1. [AJ Note: until 1873, when the court was dissolved and its jurisdiction transferred
to the Chancery Division of the High Court of Justice].

to Early 17th Century English Literature