indication of the principles by which it is to be guided, but it is obvious that some time must elapse before the necessary alterations in practice can be elaborated. It is, however, satisfactory to reflect that this part of the scheme has been entrusted by the legislature to the wisdom and caution of the judges themselves, and that all cause for injudicious haste has been removed by enactments that where no special provision is contained in the Act, or in such rules or orders as shall be made pursuant thereto, the jurisdiction transferred to the new court shall be exercised, and all forms and methods of procedure hitherto in use shall continue to be used and practised, as nearly as may be, in the same manner as by the respective courts whose jurisdiction shall have been transferred (a); and further, that the existing rules in the Court of Probate, the Court for Divorce and Matrimonial Causes, the Admiralty Court, and the London Court of Bankruptcy, shall (until altered) remain in force in the new Supreme Court of Judicature (b). And these considerations, moreover, make it proper in this part of our work to enter into some matters (particularly with regard to the distinctions between actions) which will always be worth attention, in order the better to understand the changes which have been effected, though as the new system receives by degrees its full development they will perhaps become of somewhat less importance in the future.

With the objects thus above indicated, "The Supreme Court of Judicature Act, 1873" (36 & 37 Vict. c. 66), has been passed, and it is to commence and come into operation on the 2nd November, 1874 (c); and from such time the High Court of Chancery, the Court of Queen's Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes

(a) 36 & 37 Vict. c. 66, ss. 23, 73. (b) Sect. 70.

(c) Some few of its provisions

took effect on the passing of the Act, viz. the 5th August, 1873.

and the London Court of Bankruptcy are united and consolidated together; and are made to constitute one supreme Court of Judicature in England, which shall administer both law and equity: so that if any plaintiff, petitioner or defendant shall advance an equitable claim or defence, such relief shall be given therein as heretofore by the Court of Chancery; and so that all legal claims, demands and liabilities existing by common law, custom or statute, shall be recognized and given effect to therein as heretofore by any of the courts whose jurisdiction is by that Act transferred to the High Court of Justice, as will be presently explained (d).

But before we proceed to treat of the constitution of the new court, and the divisions of which it is to consist, it will be necessary, in order to explain the alterations it is intended to work in our legal system, to give an account of each of the above courts out of which it is to be composed, concerning which we have not already spoken in other parts of this work. And we shall commence with—

I. [The High Court of Chancery. This, in matters of civil property, has always been deemed the most important of any of the superior courts of justice. It has its 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 (e). 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 superintendence over the rest of the officers of the prince. From the Roman empire it passed

(d) 36 & 37 Vict. c. 66, ss. 16, (e) 4 Inst. 88. 24, et vide post, p. 346.

[to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved its chancellor; with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters and such other public instruments of the crown as were authenticated in the most solemn manner: and therefore, when seals came in use, he had always the custody of the sovereign's great seal. So that the office of chancellor, or lord keeper, (whose authority, by statute 5 Eliz. c. 18, is declared to be exactly the same,) is with us at this day created by the mere delivery of the Great Seal into his custody (f); whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom; and superior, in point of precedency, (if of the peerage,) to every temporal lord (g).] His salary is 10,000l. per annum (h). [He is a privy councillor by his office (i); and, according to Lord Chancellor Ellesmere, prolocutor (or speaker) of the House of Lords by prescription (k). To him, (under the crown,) belongs the appointment of all justices of the peace throughout the kingdom (1). Being formerly usually an ecclesiastic, and presiding over the royal chapel, he became keeper of the king's conscience; visitor, in right of the king, of all hospitals and colleges of royal founda36 & 37 Vict. c. 66, s. 13.

(f) Lamb. Archeion, 65; 1 Roll. Abr. 385.

(9) Stat. 31 Hen. 8, c. 10, ss. 4, 8. See the Table of Precedence, sup. vol. II. p. 615, n., where it is stated (on the authority of Blackstone) that the Lord Chancellor comes immediately after the Archbishop of Canterbury.

(h) 14 & 15 Vict. c. 82, s. 17; 15 & 16 Vict. c. 87, s. 16. And see

VOL. III.

(i) Selden, Office of Lord Chancellor, sect. 8.

(k) Of the Office of Lord Chancellor, edit. 1561.

(1) In the case of magistrates for the county he usually makes these appointments on the nomination of the lord lieutenant (vide sup. vol. II. pp. 585, 586).

Y

[tion; and patron of all the king's livings of the value of 201. per annum or under, in the king's books (m). He is also the general guardian of all infants, idiots and lunatics; and has the general superintendence of all charitable uses in the kingdom. And all this, over and above the jurisdiction which he has exercised in the Court of Chancery.

The chief province of the High Court of Chancery is to administer that large portion of our law which is distinguished from the common law, by the term equity (n). This distinction between law and equity, as administered in different courts (o), seems never to have obtained in

(m) Madox, Hist.of Exchequer, 42. This limit is stated by Blackstone (vol. iii. p. 48) as "under the value of twenty marks;" and he cites 38 Edw. 3; 3 F. N. B. 35. But, according to Mr. Christian, (who cites Gibs. 764, and 1 Burn's Ecc. Law, 129,) since the new valuation of benefices in the time of Henry the eighth, it has been considered as 201. per annum or under, probably on the ground that the twenty marks temp. Edward the third were equivalent to 207. temp. Henry the eighth. And see Lord Chancellor's case, Hobart, 214. As to the sale of certain livings the patronage whereof is vested in the lord chancellor for the time being under 26 & 27 Vict. c. 120, vide sup. vol. II. p. 739.

(n) Vide sup. vol. I. p. 80. The Court of Chancery, however, it is to be observed, consists of two distinct tribunals, one being the court of equity described in the text, and the other a court of common law, out of which have issued all the original writs passing under the Great Seal, and all commissions of sewers, lunacy, and the like-some of these writs being originally kept in a ham

per (whence the "hanaper office," as to which see 5 & 6 Vict. c. 103), and others in a little sack or bag (whence the "petty bag office," as to which see Baddeley v. Denton, 1 L. M. & P. 172; Still v. Booth, ibid. 440). And as to writs thus issuing out of the common law division of the Court of Chancery, see 12 & 13 Vict. c. 109. In addition to thus keeping the officina justitiæ, the common law Court of Chancery has also a jurisdiction to hold plea upon a scire facias to cancel letterspatent, and to hold plea of petitions, monstrans de droit, traverses of office, and the like. But suits on the common law side have been rare. Blackstone observing (vol. iii. p. 49) that he had met with no proceeding in error from it since the year 1572. By 12 & 13 Vict. c. 109, it was provided that issues arising in proceedings therein might be sent to one of the superior courts of common law to be there determined.

(0) This anomaly of administering equity and law in distinct courts, is however approved by Lord Bacon. (See De Aug. Scient. lib. viii. ch. 3, app. 45.)

[any other country; and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans; the jus prætorium, or discretion of the prætor, being distinct from the leges, or standing laws (p); but the power of both centred in one and the same magistrate, who was equally intrusted to pronounce the rule of law, and to apply it to particular cases, by the principles of equity. With us, too, the aula regia, which was the supreme court of judicature under the Conqueror, undoubtedly administered equal justice according to the rules of both or either, as the case might chance to require: and, when that tribunal was broken to pieces, the idea of a court of equity, as distinguished from a court of law, did not subsist in the original plan of partition. For though equity is mentioned by Bracton (q), as a thing contrasted to strict law, yet neither in that writer, nor in Glanvil or Fleta, nor yet in Britton, (composed under the auspices and in the name of Edward the first, and treating particularly of courts and their several jurisdictions,) is there a syllable to be found relating to the equitable jurisdiction to the Court of Chancery. Nor is it very clear in what manner or under what circumstances that anomaly was first established in this country (r). But it was probably the result of the rude and imperfect constitution of our courts of the common law, which derived their authority in each case from the king's original writ, issued at the commencement of the suit, in some fixed and antient form, so that they found, or supposed, themselves unable to afford any remedy beyond what the writ

(p) Thus Cicero: "jam illis promissis non esse standum, quis non videt, quæ coactus quis metu et deceptus dolo promiserit? Quæ quidem pleraque jure prætorio liberantur, nonnulla legibus."-Offic. 1. i. x.

(q) L. ii. c. 7, fol. 23; also f. 3 a, s. 5; see Plowd. 467.

(r) Some interesting information as to the early history of the Court of Chancery and the growth of its jurisdiction, will be found in the Introduction to Lord Campbell's Lives of the Chancellors; and in Spence on the Equitable Jurisdiction of the Court.