chancellor, however, gradually absorbed more administrative power and in the Roman Empire became a scribe and secretary, sub sequently came to receive the petitions ad dressed to the throne, and issued the imperial writs or mandates.1 In France, as early as 850 A. D., the chancellor was the head of the judiciary presiding at the king's council and in the sovereign courts.2 There has been a chancellor in England since very early times. The exact date when the first chan cellor was appointed is conjectural, different authors assigning different dates;11 however, he exercised but little judicial power until the later Plantagenets and the Tudors,4 and did not obtain the first rank until Richard I.0 From this time on he gradually absorbed the remnant of the sovereign's judicial power, including that of the Select Council, the early parliament and the so-called prerogative of grace, which was the king's authority to in terfere specially in causes of particular hard ship; and in 1348, in the reign of Ediward III., the king, by special ordinance, directed that all matters which were of grace be heard by the chancellor and the lord keeper of the Privy Seal." The importance of the chan cery increased still more after this, by the in troduction of the writ of subpoena, and the activity in case of trust. The history of the chancerial office has been examined, the source from which its judicial power came has been noted. We have seen the importance, through all time, of the judicial function in government, its connection with the royal personage, the in timacy of its relation with the basic princi ples of natural justice, equity, honesty, gen erosity and good conscience; the transferrence of this judicial power in England first 1 Spence, Eq. Jur. I, * 78. 1 Woodeson's Lectures, vol. I, Lect. VI; Spence, Eq. Jur. I. • 79. 3 Campbell's Lives of the Chancellors, vol. I, pp. 3, 29.
- Spence Eq. Jur. I, * 78.
- Spence, Eq. Jur. I, * 117.
6 Spence, Eq. Jur. I, * 337; Campbell's Lives of the Chancellors, I, 206 (Note); Story, Eq. I, 48.
to the common law courts and finally the grant of the prerogative of grace to the chan cellor. It is also important to the inquiry to ex amine the history of the English common law. All nations have been more or less governed by custom and usage. This is true even to-day and even though the custom or usage is not enforced by governmental authority. Usage is largely responsible for the English common law. Its foundation is, the notions of right, justice and honesty, and the conditions, general ideas and neces sities of the early inhabitants of England. Avowedly and actually the common law is constructed on the broadest principles of justice, equity and sound reason. So long as it was in its formative state, it was in the truest sense lex non scripta; readily suscep tible to alteration in consonance with its fundamental principles, it then kept pace with the moral and intellectual developmnt of the English people. However, about the thir teenth century the common law began to crystallize. Respect for decisions, the recog nition of the rule stare decisis, the compila tion of reports of cases and the composition of treatises is responsible for this decrease in elasticity. When the common law had ceased to be a living, growing system, the continuation of British development left it 'behind. Within a generation a supplemental system was de manded. The parliament recognized the lack and endeavored to meet the situation, in the statute of 13-th Edward I., called of Westmin ster, the second making provision for like writs in similar cases,7 but failed. From the necessities of this condition of affairs came the court of chancery. This situation enormously increased the number of cases calling for the exercise of the prerogative of grace, and so magnified the equitable juris diction of the English chancellor. 7 Spence, Eq. Jur. I, * 239, 322; Pollock aud Mailland, Hist. Eng. Law before Edward I., vol. 1, p. 175.
