Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

Lastly, it has cognizance of all personal actions brought against persons that have the privilege of this court. The persons privileged are two, first the officers of the court, who are supposed to be constantly attendant thereon, and to whom it would be inconvenient, as well as to the court, to sue or be sued elsewhere; and therefore the privilege extends to suits brought as well by, as against such officers; secondly, the prisoners who are in the custody of the marshal of the court, and who are consequently not at liberty to appear in any other. These therefore can only be sued here; for the court will, in such case, order the prisoner up from their own prison to make his defence; and, under the colour of this rule, they now, by a fiction, make all sorts of a actions suable in this court; for it is only alledging the defendant is in the custody of the marshal, though in fact he is not, and that is held sufficient to found the jurisdiction[362].

I shall next proceed to the jurisdiction of the high court of Chancery, the second in antient times, but for some ages past the first court of the realm.

LECTURE XXXIII.

The jurisdiction of the high court of chancery—The Chancellor, a very considerable officer in the Curia Regis—The repeal of letters patent, improvidently issued to the detriment of the King or the subject, a branch of the jurisdiction of the court of chancery—The chancery, assistant to the exchequer in matters of the King’s revenue—Other branches of the business of this court.

In my last lecture, having taken notice, that, in the reign of Henry the Second, the curia regis and the Exchequer, which dealt with the king’s revenue, were distinct courts, and that there were even traces of the Common Pleas, as another court, different from the higher court, the curia regis; I took occasion to treat of these several courts, and the several limits of their jurisdictions; although the now general opinion be, that these courts were not separated till after the barons wars, that is, not until an hundred years later; which opinion, as I conceive, hath, thus far, its foundation in truth, that the precise limits of their several jurisdictions were not perfectly ascertained, and kept distinct till then, though the division had been made before, that is, about the time I am now treating of. For, if it be a good maxim, as my Lord Coke says, boni judicis est officium ampliare jurisdictionem, it is not to be wondered at, that, for some time after the separation, the Justiciarius Angliæ, who had the sole jurisdiction in him before, should retain, in many instances, the exertion of it, where, after the separation, the matter properly belonged to another court.

The maxim, indeed, is, in my opinion, utterly false. For where there are separate courts with distinct powers, surely it is the duty of each court, were it only to prevent confusion, to keep within their proper limits. However thus much must be allowed in justification of Lord Coke’s maxim, that, as it is too much the inclination of human nature, when in power, to grasp at more than is properly our due, so the judges of all courts, and of all nations, have been as little exempt from this infirmity as any other set of men. Witness the outrageous usurpation upon the temporal jurisdiction in antient days, both by the ecclesiastical judges in the times of the Pope’s grandeur, and by the judges of the constables and admirals courts, when supported by arbitrary kings[363].

The temporal judges, on the other hand, with a firmness highly to be commended, have successfully not only resisted these encroachments, but, by way of reprizals, have, in these latter days, made considerable inroads into the antiently allowed territories of those courts; not to the detriment of the subject, I must confess; for the method of trial by the common law, is certainly preferable to theirs. But the common law courts have not satisfied themselves with extending their jurisdiction, in derogation of those courts, which they justly looked on, in those days, as enemies to them, and to the laws and constitution of the kingdom, but they have made invasions into each others territories, and, by what they call fictions of law, have made almost all causes, except criminal ones, cognizable in any court; contrary to the very intention of dividing the courts; which was, that each should have their separate business, and that the judges and practitioners, by being confined in a narrower track, should be more expert in their different provinces[364].

In treating of these courts, I began with the King’s Bench, which, as long as the office of Justiciarius Angliæ subsisted, was the superior; but since Edward the First discontinued that office, on account of its too great power, and the business of that officer hath been shared between several judges, the rank of this court hath declined, and the Chancery hath obtained the first place. To this court, then, I shall now proceed. And as in it there are, at present, and have been for some ages, two distinct courts, one ordinary, proceeding by common law, and the other extraordinary, according to the maxims of equity, where common law could give no relief; I shall, for the present, confine myself to the former, and defer treating of the latter, until I come to that period when the Equity jurisdiction arose.

In the antient times, before the division of the courts, the chancellor was a very considerable officer of the curia regis. It was his business to write and seal with the great seal the diplomata, or chartæ regis, what we now call letters patents; to issue all writs, either for founding the jurisdiction of the curia regis, and the bringing causes into that court, that by the antient law belonged to the courts in the country; or those to the nobles, to summon them to attend the commune concilium, or parliament. Afterwards, when the House of Commons was formed, he issued writs to the proper places, for the election of the members thereof. Hence, when the courts were divided, the making out letters patents, the keeping the inrolments thereof, and issuing of original writs, as they are called, that is, those that found the jurisdiction of courts, and other writs of like nature, continued to belong to him; and, as these records remained with him, there arose to him a jurisdiction concerning them; except as to such writs as were intended to found the jurisdiction of another court, which, though issued from Chancery, were returnable into the proper court, and the cause determined there[365].