3 nue, or other mere civil action, can by the common law be prosecuted by any subject in this court, by original writ out of chancery; though an action of debt, given by statute, may be brought in the king's bench as well as in the common pleas. And yet this court might always have held plea of any civil action (other than actions real) 5 provided the defendant was an officer of the court; or in the custody of the marshal, or prison. keeper, of this court, for a breach of the peace or any other offence. 5 And 5 in process of time, 5 it began by a fiction to hold plea of all personal actions whatsoever, and has continued to do so for ages: it being surmised that the defendant is arrested for a [43] supposed trespass, which he never has in reality committed; and, being thus in the custody of the marshal of this court, the plaintiff is at liberty to proceed against him for any other personal injury: which surmise, of being in the marshal's custody, the defendant is not at liberty to dispute. And these fictions of law, though at first they may startle the student, he will find upon farther consideration to be highly beneficial and useful: especially as this maxim is ever invariably observed, that no fiction shall extend to work an injury; † it's proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law. So true it is, that in fictione juris x 4 Inst. 76. Trye's Jus Filazar. 101. y * Carth. 234. z 4 Inst. 71. a Ibid. 72. b Thus too in the civil law: contra fictionem non admittitur probatio: quid enim efficeret probatio veritatis, ubi fictio adversus veritatem fingit? Nam fictio nihil aliud est, quam legis adversus veritatem in re possibili ex justa causa dispositio." (Gothofred. in Ff. l. 22. t. 3.) c 3 Rep. 30. 2 Roll. Rep. 502. 5 Previously, "This court might likewise upon the division of the aula regia have originally held plea of any other civil action whatsoever (excepting actions real which are now very seldom in use)." 5 Previously, "this court began." 7 Previously, "is it." tt Quoted, 9 Humph. 321. Cited, 67 Cal. 561; 6 N. H. 86; 2 Johns, 556; 3 Am. Dec. 455. 3 BLACKST.-6. semper subsistit æquitas. In the present case, it gives the suitor his choice of more than one tribunal, before which he may institute his action; and prevents the circuity and delay of justice, by allowing that suit to be originally, and in the first instance, commenced in this court, which after a determination in another, might ultimately be brought before it on a writ of error. For this court is likewise a court of appeal, into which may be removed by writ of error all determinations of the court of common pleas, and of all inferior courts of record in England; and to which a writ of error lies also from the court of king's bench in Ireland. Yet even this so high and honorable court is not the dernier retort of the subject: for, if he be not satisfied with any determination here, he may remove it by writ of error into the house of lords, or the court of exchequer chamber, as the case may happen, according to the nature of the suit, and the manner in which it has been prosecuted.† VII. The court of exchequer is inferior in rank not only to the court of king's bench, but to the common pleas also: but I have chosen to consider it in this order, on account of it's double capacity, as a court of law and a court of equity [44] also. It is a very antient court of record, set up by William the conqueror,e as a part of the aula regia, though regulated and reduced to it's present order by king Edward I.;s and intended principally to order the revenues of the crown, and to recover the king's debts and duties. It is called the exchequer, scaccharium, from the chequed cloth, red 11 Rep. 51. Co. Litt. 150. e Lamb. Archeion. 24. f Madox. Hist. Exch. 109. g Spelm. Guil. I. in cod. leg. vet. apud Wilkins. h 4 Inst. 103.-116. **Quoted, substantially, 2 Fla. 565. Cited, 34 N. H. 475. sembling a chess-board, which covers the table there; and on which, when certain of the king's accounts are made up, the sums are marked and scored with counters. It consists of two divisions: the receipt of the exchequer, which manages the royal revenue, and with these commentaries have no concern; and the court or judicial part of it, which is again subdivided into a court of equity, and a court of common law.* The court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisnè ones. These Mr. Selden conjectures i to have been antiently made out of such as were barons of the kingdom, or parliamentary barons; and thence to have derived their name: which conjecture receives great strength from Bracton's explanation of magna carta, c. 14. which directs that the earls and barons be amerced by their peers; that is, says he, by the barons of the exchequer.k The primary and original business of this court is to call the king's debtors to account, by bill filed by the attorney general; and to recover any lands, tenements, or hereditaments, any goods, chattels, or other profits or benefits, belonging to the crown. So that by their original constitution the jurisdiction of the courts of common pleas, king's bench, and exchequer, was entirely separate and distinct; the common pleas being intended to decide all controversies between subject and subject; the king's bench to correct all crimes and misdemeanors that amount to a breach of the peace, the king being then plaintiff, as such offences are in open derogation of the jura regalia of his crown: and the exchequer to adjust [45] and recover his revenue, wherein the king also is plaintiff, as the withholding and non-payment thereof is an injury to i Tit. hon. 2. 5. 16. k l. 3. tr. 2. c. 1. 3. 4 Previously, "antiently been." his jura fiscalia. But, as by a fiction almost all sorts of civil actions are now allowed to be brought in the king's bench, in like manner by another fiction all kinds of personal suits may be prosecuted in the court of exchequer. For as all the officers and ministers of this court have, like those of other superior courts, the privilege of suing and being sued only in their own court; so also the king's debtors and farmers, and all accomptants of the exchequer, are privileged to sue and implead all manner of persons in the same court of equity, that they themselves are called into. They have likewise privilege to sue and implead one another, or any stranger, in the same kind of common law actions (where the personalty only is concerned) as are prosecuted in the court of common pleas. This gives original to the common law part of their jurisdiction, which was established merely for the benefit of the king's accomptants, and is exercised by the barons only of the exchequer, and not the treasurer or chancellor. The writ upon which all proceedings here are grounded is called a quo minus: in which the plaintiff suggests that he is the king's farmer or debtor, and that the defendant hath done him the injury or damage complained of; quo minus sufficiens existit, by which he is the less able, to pay the king his debt or rent. And these suits are expressly directed, by what is called the statute of Rutland,' to be confined to such matters only as specially concern the king or his ministers of the exchequer. And by the articuli super cartasm it is enacted, that no common pleas be thenceforth holden in the exchequer, contrary to the form of the great charter. But now, by the suggestion of privilege, any person may be admitted to sue in the exchequer as well as the king's accomptant. The surmise, of being debtor to the king, is therefore 1 10 Edw. I. c. 11. m 28 Edw. I. c. 4. become matter of form and mere words of course, and the court is open to all the nation equally. The same holds with regard to the equity side of the court: for there any person may file [46] a bill against another upon a bare suggestion that he is the king's accomptant; but whether he is so, or not, is never controverted. In this court, on the equity side, the clergy have long used to exhibit their bills for the non-payment of tithes; in which case the surmise of being the king's debtor is no fiction, they being bound to pay him their first fruits, and annual tenths. But the chancery has of late years obtained a large share in this business. An appeal from the equity side of this court lies immediately to the house of peers; but from the common law side, in pursuance of the statute 31 Edw. III. c. 12. a writ of error must be first brought into the court or exchequer chamber. And from their determination there lies, in the dernier resort, a writ of error to the house of lords. VIII. The high court of chancery is the only remaining, and in matters of civil property by much the most important of any, of the king's superior and original courts of justice. It has it's name of chancery cancellaria, from the judge who presides here, the lord chancellor or cancellarius; who, sir Edward Coke tells us, is so termed a cancellando, from cancelling the king's letters patent when granted contrary to law, which is the highest point of his jurisdiction." But the office and name of chancellor (however derived) was certainly known to the courts of the Roman emperors: where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a general superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman 4 Previously, "originally it." n 4 Inst. 88. 4 |