(for which reason they are called brevia), which is to be discussed in the proper court according to law. Out of this court issue writs of error, of right of dower, and of quare impedit; writs for the election of knights, citizens, and burgesses to serve in parliament (for which reason the validity of the returns thereto were, until the reign of queen Elizabeth,2 determined there); for the election of coroners and venderors; for summoning lords of parlia ment, and the assistants and attendants of the House of Lords; and for a multitude of other purposes. Thence, also, go forth commissions of the peace, of gaol-delivery, oyer and terminer, assize, sewers, lunacy, idiocy, and many others.

But the extraordinary court, or court of equity, is now become the court of the greatest judicial consequence. The distinction between law and equity, as administered in different courts (which is peculiar to the jurisprudence of this country), has already been sufficiently explained for the object of this commentary. That peculiar distinction was unknown to our ancient law in the times of Bracton, Glanville, Fleta, and Britton. In the works of those writers, as Blackstone informs us, there is not a syllable relating to the equitable jurisdiction of the court of chancery, which seems to have arisen out of the extensive remedial jurisdiction of the king in his ordinary council; from whence also sprung the court of requests, abolished, together with the star-chamber, by stat. 16 Chas. I. c. x. In the ancient common law, the ordinary courts could not give relief in any case without a writ, called an original writ, out of chancery, containing a formula adapted to the

1 Old Nat. Brev. 4. Shep. Abr.

2 Hallam, Const. Hist. vol. i. p. 372, 375.

3 Chapter III.

4 Blackst. Com. b. iii. c. iv. p. 50.

nature of the particular case; and in those early times the chief judicial employment of the chancellor must have been devising new writs, directed to the courts of common law, to give remedies in cases where none was before administered. To facilitate the composition of new writs, the statute of Westminster 2 (13 Ed. I. c. xxiv.) empowered the clerks in chancery to frame them in all cases analogous to those wherein writs were already provided; but required that the matter should be adjourned to the next parliament, if those magistrates could not agree in devising the new formula. And we may here remark, that these original writs were analogous to the actiones legis, or strict formulæ of the ancient civil law, mentioned by Pomponius in the Pandects, which were abolished by the emperor Constantine; as, indeed, the writs have also (with a few exceptions) been, by stat. 2 and 3 Wm. IV. c. xxxix. As the technical forms and inflexible rules arising from the legis actiones caused the prætorian jurisdiction to spring up, so, in our law, the equitable jurisdiction of the court. of chancery derived its commencement from the harsh or imperfect judgments of the common-law courts, proceeding merely upon the ground of the king's original writs. But the equitable jurisdiction first became important about the end of Edward III.'s reign, when uses of land were introduced, by which land was vested in one man, subject to a trust and confidence to hold the same for the benefit and use of another. These fiduciary estates were totally discountenanced by the courts of common law, but were considered as binding in conscience by the

1 L. ii. § 6. ff. De orig. jur. And see Brissonius De formulis; and Solemn. Pop. Rom. verbis.

2 L. i. cod. De form. et impetr. act. sublat. L. ii. cod. eod. tit. Pothier, Præfat. ad Pandect. Voet ad Pand. tit. De edendo, § 8. Gravina, Hist. 1. i. De action. leg.

clergy and John of Waltham, bishop of Salisbury, and chancellor to king Richard II., by a strained interpretation of the stat. of Westminster 2, devised the writ of subpœna, returnable in the court of chancery only, to make the feoffee to uses, or fiduciary tenant, accountable to his cestui que use, for whose benefit he held the land. This process of subpoena was afterwards extended to other matters, wholly determinable at law, upon fictitious suggestions: the chancellors, who were for the most part ecclesiastics, moulded the proceedings of their court on the imperial and pontifical formularies; and this great jurisdiction, though frequently and strenuously opposed, especially in the reigns of Richard II., Henry IV., and James I., became at length fully established, and grew to an extraordinary magnitude.'

The lord chancellor is assisted in the discharge of his judicial duties by the master of the rolls, who holds his office during good behaviour, in the same manner as the common-law judges, and may hear causes in his absence in the court of chancery, but usually sits in a distinct court, called the Rolls Court, and hears those causes which are set down for him. The office of the master of the rolls is as ancient as the court itself:2 he is the chief of the masters in chancery, and keeper of the rolls of the court, and of the patents that pass the great seal, from which portion of his functions the title of master of the rolls is derived. He is also, by a recent statute, ex-officio

1 Blackst Com. b. iii. c. iv. p. 50-52, &c. Palgrave on the Jurisdiction of the King in Council.

22 Comyn, Dig. 208.

As to his jurisdiction sitting alone, see 4 and 5 Wm. IV. c. xciv. ; and also the exception in stat. 3 Geo. II. c. xxx., providing that the master of the rolls shall not make such decrees or orders as ought only to be made by the lord chancellor, lord keeper, or lords commissioners of the great seal.

keeper of the records of the realm. From all his decisions there is an appeal to the lord chancellor. The increase of business in the court of chancery occasioned the appointment of a third judge in that tribunal, by virtue of the statute 53 Geo. III. c. xxiv. He is entitled the vicechancellor of England; enjoys rank and precedence next after the master of the rolls; holds his office during good behaviour, subject to removal upon address by both houses of parliament; and his jurisdiction extends to all causes in chancery, either in law or equity, according to the chancellor's direction. His decrees are subject to the lord chancellor's reversal or alteration, and cannot be enrolled till signed by him.'

From the determinations of the lord chancellor sitting in this court of equity, as from the other superior courts, an appeal lies to the House of Peers. But there are these differences between appeals from the court of equity and writs of error from the court of law: 1st, that the former may be brought upon any interlocutory matter, the latter upon nothing but a definitive judgment; 2d, that on writs of error the House of Lords pronounces the judgment, on appeals it gives direction to the court below to rectify its own decree.2

IX. The next court that we must consider is one that has no jurisdiction, except on appeal, to correct the errors of other jurisdictions. This is the court of Exchequer Chamber, which was first erected by statute 31 Ed. III. c. xii., to determine causes by writs of error from the common-law side of the exchequer. And to that end it

1 Smith, Chanc. Pract. vol. i. p. 8. A bill is now before parliament to create two additional judges in the court of chancery; and though some difference of opinion exists whether two judges are requisite, it is believed that one will be appointed.

2 Blackst. Com. b. iii. c. iv. p. 56.

consisted, until lately, of the lord chancellor and lord treasurer, taking unto themselves the justices of the queen's bench and common pleas. The stat. 20 Chas. II. c. iv. dispensed with the presence of the lord high treasurer when the office was vacant. The chancellor and treasurer were, under the stat. of Edward, the judges of this court, and the justices were but assistants. The practice, however, usually was, for the chief justices to sit alone, who reported their opinion to the chancellor, and the judgment was pronounced by him.2 In imitation of this tribunal, a second court of exchequer chamber was erected by stat. 27 Eliz. c. viii., though differently composed, consisting of the justices of the common pleas and the barons of the exchequer, before whom writs of error may now be brought to reverse judgments in all suits originally begun in the court of queen's bench. And by the stat. 1 Wm. IV. c. lxx. these two courts of exchequer chamber are assimilated, and the justices, or the justices and barons, as the case may be, are now the only judges therein on all writs of error from the courts of queen's bench, common pleas, and exchequer. Thus the appellate jurisdiction over each of the three courts belongs to the judges of the other two. Into the court, also, of exchequer chamber (which then consists of all the judges of the three superior courts, and now and then the lord chancellor also,) are sometimes adjourned, from the other courts, such causes as the judges upon argument find to be of great weight and difficulty, before any judgment is given upon them in the court below. And it is here necessary not to confound these courts of exchequer chamber with that which is held by

1.Blackst. Com. b. iii. c. iv. p. 56.

2 Johnstone v. Sutton, 1 Term. Rep. 510.

3 Blackst. Com. b. iii. c. iv. p. 56, 57. 4 Inst. c. xi. p. 110; c. xiii. p. 119. 2 Bulstr. 146.