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Thus, although we can see the origins of some of our later equitable rules, they are, as yet, very rudimentary. We must wait till the latter half of the seventeenth century for marked progress in this process of transformation. It is not till then that the lineaments of our modern system of equity begin to emerge with any distinctness.

I have dealt in an earlier volume with the earliest stage in the history of equity. In this chapter I shall say something of the second, the third, and the beginning of the fourth stages, under the following heads :-The Chancellors and other Officials of the Court; the Literature of and the Authorities for the early Rules of Equity; the Subject-matter of these Rules; and, the Evolution of the Character of Equity.

The Chancellors and other Officials of the Court

The chancellors have always been more than mere lawyers. Though, in the mediaval period, their character of statesman generally predominated, by the end of this period they were as much, if not more noted, as lawyers than as statesmen. To write the biographies of all the chancellors would be both tedious and unnecessary. It is still less necessary even to enumerate the series of masters of the rolls and the other masters of the court, who, by the part which they took in settling the practice of the court, contributed in no small degree to the creation of fixed principles governing the administration of equitable relief. will be sufficient to illustrate from the lives of some of the more distinguished chancellors and their officials the gradual growth of fixity and system in the administration of equity, and the nature of the influences which helped to shape the contents of its rules.

It

We have seen that, with very few exceptions, the mediæval chancellors were ecclesiastics and statesmen.1 All the chancellors of Henry VII.'s reign-Alcock, bishop of Worcester, Cardinal Morton, Archbishop of Canterbury, Dene, Archbishop of Canterbury, Warham, Archbishop of Canterbury-were of the medieval type. Warham's successor was Cardinal Wolsey; and, if we except Bishop Goodrich, the last of Edward VI.'s chancellors, and Bishop Gardiner and Archbishop Heath, Mary's chancellors, he was the last of the chancellors of this type. More, his successor, was the first of the lawyer chancellors of the modern type. As we might expect, the practice of appointing lawyers as chancellors did not become fixed immediately. There was a period of hesitation; but it is clear that by the middle of the

may go too near to follow the measure of King Charles I.'s foot, peradventure even Archbishop Laud's." 1 Vol. ii 557-558.

seventeenth century the new type of chancellor had superseded the old. In fact the development of the equitable jurisdiction of the chancellor necessitated the change. But it is not improbable that the suddenness of the change from a chancellor of the type of Wolsey to a chancellor of the type of More was due partly to political and religious considerations..

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It is fairly clear that Wolsey made use of his position as the chief minister of the state to increase the jurisdiction of his court, and to settle it finally as a court of equity, quite distinct from the Council or the Star Chamber.1 It is clear too that he held very large notions as to the principles upon which equitable interference with the law was justifiable. "The king," he is reported to have said, "ought of his royal dignity and prerogative to mitigate the rigour of the law, where conscience hath the most force; therefore, in his royal place of equal justice, he hath constitute a chancellor, an officer to execute justice with clemency, where conscience is opposed by the rigour of the law. And therefore the Court of Chancery hath been heretofore commonly called the Court of Conscience; because it hath jurisdiction to command the high ministers of the common law to spare execution and judgment, when conscience hath most effect." It is also fairly certain that Wolsey acted upon these principles, with very little regard for the professional feelings of the common lawyers. But we have seen that the common lawyers had already begun to protest against the encroachments of the Chancery. It is not surprising, therefore, to find that, on Wolsey's fall, the grievances of the common lawyers found a place in the articles drawn by the Council against Wolsey.5 Complaints were made of his encroachments upon the jurisdiction of the common law courts, and upon his contemptuous treatment of some of the judges. We have seen that the common lawyers were an influential element in the House of

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1"He would repair unto the Chancery, sitting there till eleven of the clock, hearing suitors and determining divers matters, and from thence he would divers times go into the Star Chamber as occasion did serve,” Cavendish, Life of Wolsey 40.

2 Ibid 167.

and 7.

3 Below nn.
5 Coke, Fourth Instit. 89-95.

4 Vol. i 459-460. 6" Also the said Lord Cardinal hath granted many injunctions by writ, and the parties never called thereunto, nor bill put in against them: and by reason thereof, divers of your subjects have been put from their lawful possession of their lands and tenements. And by such means he hath brought the more party (sc.) of the suiters of this your realm before himself," art. 21, Fourth Instit. 92.

7" Also when matters have been near at judgment by proces at your common law, the same Lord Cardinal hath not only given and sent injunctions to the parties, but also sent for your judges and expressly by threats commanding them to defer the judgment, to the evident subversion of your laws, if the judges would so have ceased," art. 26, ibid; cp. art. 31-a specific charge of rebuking Fitzherbert because, at the session of oyer and terminer at York, held before him, bills for extortion against the Ordinaries were found.

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Commons, whose support for his matrimonial and ecclesiastical policy it was important for the king to gain. It was perhaps to conciliate this element that Henry VIII. made a new departure, and appointed as Wolsey's successor Sir Thomas More an eminent common lawyer, and the son of a common law judge.

That these were Henry's motives is of course a matter merely of conjecture. But, in support of this conjecture, we may remember, firstly, that at a later period Henry was obliged to conciliate the common lawyers in order to pass the Statute of Uses through the House of Commons; and, secondly, that the intimate and somewhat delicate relations, which existed at the latter part of the medieval period between the chancellor and the common law judges, could not be maintained in the face of Wolsey's high handed methods. The nature of these relations between the common law and equity, and the difficulty and necessity of maintaining them, can best be seen from the cases of the latter part of the fifteenth century which are reported in the Year Books.

It had been recognized, at least from the middle of the fifteenth century, that the relations of law and equity were so close that the united efforts of the chancellor and the common lawyers were needed to settle them satisfactorily. We have seen that the closeness of their relations necessarily followed from the theory which underlay the administration of equity. If the law was to be departed from on the ground of conscience or abstract justice, it is clear that the provisions of the law, which it was alleged worked some hardship, must be very carefully examined. The Year Books, from Henry VI.'s reign onwards, show us that in doubtful cases the chancellors were willing to hear a legal argument as to the justice or expediency of the application of equity to any particular case. Let us look at one or two illustrations.

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In 1459 it appeared that one J. had bought from J.R. certain debts due to him (J.R.); and that he (J.) had promised under seal to pay the price. But as the debts were choses in action and not transferrable, J. had got no quid pro quo for his promise to pay. As, however, the promise was under seal, J. was liable on it at common law. He therefore applied to the chancellor. The chancellor adjourned the matter into the Exchequer Chamber that it might be discussed by the judges of both benches. They agreed that as J. had got nothing he ought in equity to be released; and J.R. was committed to the Fleet

1 Vol. iv 174, 189; cp. vol. ii 430-434.

3 Ibid 280-281.

2 Vol. iv 453-455, 461.
4Y.B. 37 Hy. VI. Hil. pl. 3.

till he cancelled the bond. Nevertheless J.R. not only did not cancel the bond but sued upon it at common law. The chancellor issued an injunction; and an inconclusive argument took place as to the effect of the proceedings in Chancery and the issue of the injunction. The opinion of Prisot seems to have been that the proceedings in Chancery were not a good defence, and that therefore the injunction should be disregarded.1 The case shows both that the judges were willing to help the chancellor to settle questions as to the advisability of equitable interferences with the law, and that they were jealous of any attempt to interfere with the regular course and effect of their own procedure.

We see the same willingness of the chancellor to consult the judges, and the same jealousy of any interference with the sanctity of common law process in a case of the year 1483.2 The report runs as follows: "In the Exchequer Chamber before all the judges of the one bench and the other, several serjeants and apprentices being also present, the Archbishop of York, then chancellor of England, asked the advice of the judges as to the grant of a subpoena. And he said that complaint was made to him that one was bound by a statute merchant to another, and that the recognisor had paid the money and had no release; and that, notwithstanding these facts, the recognisee sued execution; and he said further that the recognisee would not deny, if he was examined, that he had been paid. . . . How say you then, My Lords, ought I to grant a subpoena?" To which Fairfax replied that, "it was against all reason to grant a subpoena, since it would mean that two witnesses might then defeat a record; since, when a man is bound in that form, he is not bound to pay without acquittance or release . so that it is his folly if he pays without;" and with this view of the law Hussey agreed. The chancellor, on the other hand, said that it was the common practice of the court to grant a subpœna in such But, apparently, in the end he fell in with the views of Fairfax and Hussey and refused to grant it.3

a case.

We see the same kind of consultation and argument in two cases of 1468 and 1479 relating to married women; and much

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1 Y.B. 37 Hy. VI. Hil. pl. 3 (p. 14)—“Quand le fait est bon et tout temps ad este, lour examinacion ne fera ceo mauveis, mes lour examinacion ne prove le fait bon et loyal en nostre Ley: et pur tant que il ne poit avoir remedy per nostre Ley, il suira la pur estre restore al obligacion; et cest l'effect de lour pouvoir et lour judgement, a restorer la party al obligation, ou a faire la party a faire acquit, ou release, ou a executer, ceo ne poit la court la rien faire, sinon commander luy al prison, etre la tanque il veut ce faire: et issint cest tout que le dit Court poit faire." 2Y.B. 22 Ed. IV. Pasch. pl. 18.

3" Et puis le Chancellor agree al statute merchant, pour ce que il fuit matter de recorde."

4Y.BB. 7 Ed. IV. Trin. pl. 8; 18 Ed. IV. Mich. pl. 4; for these cases see vol. iv 429.

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the same relations existed in Henry VII.'s reign. In 14891 the chancellor consulted the judges as to the effect of a release of a debt by one of two co-executors, whereby the assets were so diminished that the testator's will could not be carried out. The judges thought that nothing could be done at law, as each executor had full power to deal with the assets; but that there might be a remedy in equity." The chancellor agreed that it was a case for equitable interference. 'Every law," he said, "should be in accordance with the law of God; and I know well that an executor who fraudulently misapplies the goods and does not make restitution, will be damned in Hell, and to remedy this is, as I understand it, in accordance with conscience." So in 14923 the chancellor (apparently with the agreement of the judges) ruled, contrary to his opinion in 1483,* that an obliger who had paid, and had taken no acquittance, could get relief in Chancery. 5

If there is any truth in the charges made against Wolsey, it is clear that his high-handed proceedings had upset this working arrangement between the Chancery and the common lawyers. The lawyers naturally desired a reversion to the old state of things; and, as the lawyers were an important party in the House of Commons, they secured not only a reversion to the old state of things but something more valuable. They got in Sir Thomas More a chancellor who had been educated as a common lawyer; and his appointment on that account marks an important turning point in the history of equity. It marks the transition from the administration of equity by ecclesiastics and canonists to its administration by laymen and common lawyers. In the earlier period the ecclesiastical training of the chancellors had led to the infiltration of ideas of the canon law." But now the legal training of the chancellors was to lead to the infiltration of ideas of the common law. The occasion for the transition was political; and both political and religious causes made it permanent. The underlying assumptions of the canon law were opposed to the new ecclesiastical policy which the king was meditating; and its study was a few years later prohibited. The common lawyers

1 Y.B. 4 Henry VII. Hil. pl. 8.

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2"La Ley de la terre est pur moults choses, et moults choses sont etre sues icy que ne sont remediables a le Common Ley, et assez sont en conscience parentre un homme et son confesseur, et issint est cest chose," per Fineux.

3 Y.B. 7 Hy. VII. Pasch. pl. 2.

4 Above 221 n. 3.

5 See the opinions of Hussey and Brian at f. 12a; the chancellor, answering the argument that, because there is no remedy at common law, therefore there is no claim for equitable relief, says" Et issint si on paye un duty d'un obligation et n'ad escript, ceo est bon conscience; et uncore al Comon Ley nul barre."

Vol. iv 275-276; above 216; below 267-269.

7 Vol. i 592; vol. iv 228, 232.

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