Sir Robert de Plesyngton was as ardent a partizan of the Duke of Gloucester as John Cary now became of the king, and in that is found the real reason for the removal and the new appointprimary and original business of the 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 court 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 their plaintiff, as such offenses are in open derogation of the jura regalia of his crown: and the exchequer to adjust and recover his revenue, wherein the King also is plaintiff, as the withholding and non-payment thereof is an injury to 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 the 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 one 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 by 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 (10 Edw. I, c. ii), to be confined to such matters only as specially concern the King or his ministers of the exchequer. And by the articuli super cartas (28 Edw. I, c. 4) it is enacted that no common pleas be thenceforth holden in the exchequer

ment.1 For John Cary it might have been an ominous beginning of a judicial career, but at least he knew what was expected of him.

On assuming his high office and so achieving a place in the world far greater than anything his ancestors had ever attained, Sir John Cary (for it was now that he was knighted) doubtless felt a serene pride in his distinction. He was already well-to-do, as we have shown, and he doubtless believed that he had every right to expect a long and comfortable public career full of honors for himself and full also of opportunity to promote the fortunes of his family according to the custom of the day. But the event showed that he lived in what, a few years later, a great noble justly characterized as "un merveillous

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 become matter of form and mere words of course, and the court is open to all the nations equally. The same holds with regard to the equity side of the court: for there any person may file 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 of exchequer chamber. And from their determination there lies, in the dernier resort, a writ of error to the house of lords."

1 Foss, Judges of England, 518.

monde et faux." His elevation to the bench was to prove calamitous to himself and to bring after it a train of distress and suffering which involved all his kin, and had the immediate effect upon most of his own children of wiping out the position in the world which had been achieved by generations of their ancestors, scattering them to begin anew in obscurity. His misfortune was to enter the stage as one of the dramatis persona of The Tragedy of King Richard the Second, for all that his name does not appear on Shakespeare's page. The sequel is a part of English history.2

In the ninth year of his reign and the twentieth

1 Mowbray, Duke of Norfolk, to Henry of Bolingbroke, then Duke of Hereford, in a conversation fraught with fate. (Rot. Parl., iii, 382.)

2 As a preface to the story of Sir John Cary's judicial experience it will be profitable to observe the illustration it affords of the tendency of family tradition to interpret into heroic action the weakness of ancestors. Sir William Pole, the Devon antiquarian who died in 1635, has left a charming collection of anecdotes of the early Devonshire worthies. Doubtless, like all other local historians, he pieced out the material found in his notable MS. library of deeds and charters, to which his successors refer with such respect (e.g., Prince, Worthies of Devon, 176), by the current traditions of the families of which he treated, and he found that in the Cary family, certainly, all the geese were esteemed to be swans of necessity, for was not a swan the family crest? But it is apparent that Sir William Pole did not read the Rolls of Parliament, for here is his entry (in Collections, etc., 88) on the Chief Baron:

"Sr John Cary was one of the Judges of the King's Bench, temp. R. 2, who sacrificed his estate to preserve his conscience, chusing rather to suffer his goods to be confiscated & himself banished, than to violate his oath in consenting to the proceedings of the procurators for the resignation of the unhappy King his master."

ter.

of his age, Richard II had entrusted the conduct of his government to that sturdy soldier Sir Michael de la Pole, then chancellor of England and recently created Earl of Suffolk. Pole being deemed a novus homo1 by the great nobles, his administration was opposed by a growing party led by the king's uncle, the Duke of GloucesWhen Parliament met October 1, 1386, the Gloucester party was in control. Richard was forced to dismiss his chancellor, who was thereupon impeached of alleged high crimes and misdemeanors, tried in Parliament and acquitted on all the criminal charges. This trial went to the merits of the preceding government, and we may be sure that nothing which could be interpreted as discreditable to either Pole or the

It would be difficult to put into a few lines more misstatements of fact.

Indeed, if the kindly antiquarian, jealous of the honor of all Devon men, had perversely attempted to describe what Sir John Cary did not do, he could not have chosen words more apt; and yet he has given color to the most widely read notice of this particular Cary. (Fuller, Worthies of England, ed. Nuttall, 1840, 410.)

There is the less excuse for Pole by reason of the fact that the description of the Chief Baron in the Visitation of Devon, 1620, to which he might have had access, was reasonably correct except as to date:

"This Sir John Cary was very well learned in the lawes of the realm & Chief Baron of the Exchequer under K. R. 2, who giving his opinion in certayne matters then in question was very well liked and allowed, but afterwards in the time of H. 4 he was called to accompt for the same, & being indicted was attainted & his goods & lands confiscated: and pardoned of his life, he was banished to Ireland, where he died."

1 He was derived from a merchant family, the Poles of Hull. See for them, H. R. E. Bourne, English Merchants, 1898.

king was omitted in the presentation of the evidence. "Both the proceedings and the result," says Lingard, "seem to prove that the administration of Richard had not been so arbitrary and oppressive as we might otherwise have been led to suppose."

The Gloucester party now disclosed its real purpose and flew at a higher quarry even than the late chancellor. It was proposed on precedents of the reigns of John, Henry III, and Edward II to establish a permanent council to reform the state of the nation. Richard demurred, but as Parliament refused to vote supplies to support the army which was gathering to repel a threatened invasion from France, the king was obliged to yield, and consented to the constitution for one year of a commission of eleven prelates and lords headed by Gloucester, only a minority of whom were the king's friends; they were to enquire into the grievances of the people, with large executive powers. It was in fact a practical deposition of the king. Richard openly protested that this was a violation of the prerogative of the crown.

The king and his supporters at once set out on a campaign to overthrow the commission. Under the lead of Pole, Richard made a progress to York, to Chester, and into Wales during the spring of 1387, propitiating men of influence in order to secure their support when the next