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formed a professional association which developed into the Doctors Commons of later days.1 It took the place of the Rolls House, which Lambard tells us had long been the "College of the Chancery men; "2 and as we have seen, came to be to them very much what the Inns of Court were to the English lawyers. It could therefore supply a succession of trained civilians; and this helped to keep up the tradition that the post of master should go to a civilian. It would seem that these civilian masters continued to practise in the ecclesiastical courts, and presumably also in the court of Admiralty. In the second place, the Chancery, in its character of a secretarial and administrative department, had always needed the help of civilians. We have seen that in the past the ordinary forms of writs had owed something to their powers of legal draftsmanship; and their usefulness in secretarial work was recognized at this period. In the third place, the court of Chancery needed advisers who knew something of the civil law. Their advice was useful in mercantile cases; and more especially was it useful in cases turning upon wills of personalty, legacies, and administration of assets, which were being brought in increasing numbers before the court of Chancery. Such cases were governed by the law administered in the ecclesiastical courts, which was based on the conceptions of the civil law. In these cases the equity administered by the chancellor was obliged to start from the basis of the civil law, just as in cases governed by the common law it was obliged to start from the basis of that law; for the application of conscience or equity "must always be grounded on some law; "8 and "the

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2 Archeion 67.

1 Vol. iv 235-237. 3 Monro, Acta Cancellaria 410-a reference ordered in a case as to the validity of a will," to Mr. Doctor Harveye, and Mr. Doctor Clerke, and Mr. Doctor Hamonde, Masters of this Court (so that neither of them have been counsel in the cause with either side)."

* Duck, op. cit. ii 8. 3. 11, cited vol. ii 228 n. 5.

5" Forasmuch as all writinges, which passe the Great Seale are under the governance of the lord chauncellor; but the care of composinge and examininge the same appertayned to the masters, that is to say, all things that concearne the distribution of lawes amongst subjects and forrainers, the discussinge and orderinge of the king's revenewe and patrimony, the authentique publishing of leagues and treaties with forraine states and princes," Treatise of the Maisters (Harg. Law Tracts) 309; for this Tract see below 272.

6 Monro, Acta Cancellaria 439.

7 Ibid 499-They are to certify as to the civil law in a case concerning the liability of the executor of an executor to pay a legacy; ibid 618-as to whether, according to civil law, a legacy was conditional or absolute; ibid 672-674-a case turning on the construction of a will in which the judges are to be consulted on some of the points, while the masters are to be consulted on the points "which concern their law."

8 Norburie, The Remedies and Abuses of Chancery (Harg. Law Tracts) 445; vol. iv 280; the writer of the Observations concerninge the office of Lord Chancellor 37, after saying that they were generally civilians, adds, "but surely they have bin heretofore such as have been expert in the course of the Chancery, and skilful in the Lawes of the Realme."

first question that the judge should propound is to know what the law holdeth concerning the point, and upon what strain it is brought into this court."1 Conversely, and upon the same principle, it was found necessary occasionally to appoint a common lawyer to the post of master of Requests. Moreover the identification, often made at this period, of the equity of the chancellor with the Jus Prætorium tended to connect it more closely with the civil law than with the common law. This last reason for appointing masters from among the civilians is insisted on by the person who wrote, "The new additions of the cheefe Courts in England" in the third edition of Sir Thomas Smith's book de Republica Anglorum, and by other writers. But it should not lead us to take an exaggerated view of the influence of the civil law upon the development of equity. The statement that there is an analogy between the relations of jus civile and jus prætorium on the one side, and common law and equity on the other, furnishes no ground for large inferences as to the subject matter of the rules of equity.

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I have already given an account of some of the civilians who held the post of master in Chancery. Of the others we must mention Matthew Carew, distinguished for the quaint wording of some of his reports; his nephew George Carew, the compiler of Cary's reports; Tyndal, a master somewhat apt to shirk difficult work, and noted for his tragic murder by a disappointed litigant;' Benet, the judge of the Prerogative court who was impeached and condemned for corruption; 10 Hayward, the historian of Elizabeth's

1 Norburie, op. cit. 444.

2 It is stated in the additions to the third Ed. of Smith, De Republica Anglorum (vol. iv 210) at p. 167 (Alston's Ed.) that "the judges in this Court are the Maisters of Requests, one for the common lawes, the other for the civill lawes"; but the lists given by Mr. Leadam, Select Cases in the Court of Requests (S.S.) cii-cxxiv hardly bear this out; however Lambard, Archeion 227 says that "Two Doctors, and two Common Lawyers have bin many times known to have sitten heere together.

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3" The six Masters are assistants to the Court, to shew what is the equity of the civill law, and what is conscience," at p. 155; all other writers put the number of the Masters at twelve.

4" To the Court of Chancery they (the kings of this realm) have assigned the Professors of the civil law, for that a great sort of the titles of that law are titles of Equity, as whatsoever is Jus Prætorium or Jus Editum (sc.) with them is matter of Equity, so that they may seem best able for their skill in these titles, for the which no other law hath the like, to assist the Lord Chancellor in matters of Conscience," The Practice of the Court of Chancery Unfolded 69; cp. Ridley, View of the Civil and Ecclesiastical Law (4th ed.) Pt. IV. c. 3 PP. 394-395; Observations Concerning the Office of Lord Chancellor 36-37.

5 Above 6-8.

7 Ibid 73, 77, 81, 82.

Monro, Acta Cancellaria 2 n. 8 Ibid 29 n.

9 Ibid 32 n. 97 n., "After a somewhat extended acquaintance with Sir John Tyndal, it is difficult not to perceive that, with all his excellencies, he is much inclined to throw off on others the duty imposed on him"; for illustrations of this characteristic see ibid 97, 130, 162, 207; for the report which caused his murder see ibid 236-238.

10 Ibid 95 n.

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reign. The reports which these masters made on the matters referred to them often let us see more of their personality, than we can see of the personality of the chancellors from the formal decrees and orders of the court. We see them bothered by clamorous litigants, and trying to pass difficult or distasteful work on to some one else. They use strong language of counsel who carp at their reports, who promote litigation, or who needlessly lengthen suits. They sometimes put their findings into quaint and colloquial forms. As we have seen, Mathew Carew was specially noted for this. But he did not stand quite alone. On one occasion Tyndal reported, "I know not what opinion to be of, but that poor fly is fallen into the spider's web." 8 On another occasion Sir Charles Cæsar reported that a certain litigant, having refused to perform a decree, said, by way of excuse, that his counsel had never been heard; and "touching the fury of his words, he hopeth they are less to be weighed in regard he is a soldier."

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Though, as I have said, the greater number of the masters continued, throughout this period, to be civilians, there were occasional exceptions. William Lambard,10 the scholar, antiquary, and constitutional lawyer is a notable example. And in the case of the chief of the masters—the master of the rolls-the common lawyers were beginning to encroach. Southwell, created master of the rolls in 1547, his successor Beaumont, created in 1550 and dismissed for forgery and embezzlement in 1552, and Cordell, who held the office from 1557-1581, were all common lawyers; and Cordell's successors, Gerard and Egerton, had held the post of attorney-general. James I. broke this succession of English lawyers by appointing, in 1603, Lord Kinloss, a senator of the College of Justice in Scotland. But he was succeeded by a

1 Monro, op. cit. 255 n.

2 Ibid 78, 79, Masters Hone and Amye report that "At our meeting the plaintiff's father and the plaintiff's counsel were exceeding vehement in words; but not so well instructed as was fit. . . The defendant's examinations are long and cautelous, and the defendant himself hath been exceeding tedious, in often reading many leaves together impertinently; and besides clamorous in charging the plaintiff with unjust vexations; cp. ibid 113.

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3 Ibid 14-15, 97, 113; in the first cited case Masters Lambard and Hobarte report that the case is so tedious and so hinders other business that the Court should order the parties to choose some fit persons, "which, remaining here after term ended, and being assisted with one skilful auditor, may, at convenient leisure, and with good eyes, look into the estate of this whole reckoning.'

4 Ibid III.

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5 Ibid 85, Master M. Carew says-" finding by what injurious policy it hath heretofore been sought to draw excessive gain from clients by exasperating with bitter words their minds one against the other."

6 Ibid 78, cited above n. 2; 253.

7 Above 259 n. 7.

9 Ibid 265.

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serjeant at law-Sir Edward Phellips, whom Norburie1 credits with the attempt to shorten Chancery proceedings by abolishing as far as possible, all references to masters and others. After him came two civilians-Sir Julius Cæsar,2 and his son Sir Charles Cæsar; and two persons who were neither common lawyers nor civilians-Sir Dudley Digges* and Sir John Colepeper.5 Perhaps this was in part due to the influence of Laud. Clarendon tells us that he prevailed with the king to direct that "half the Masters of the Chancery should be always civil lawyers, and that no others, of what condition soever, should serve him as Masters of Requests." " Clarendon shows clearly the political folly of this advice; and it is clear that legally it was equally objectionable. We shall see that the victory of the common lawyers, won (Clarendon said) by the "fury and iniquity of the time," was more permanent than he thought; and that in the following period they managed to "stand upon the ground which they had won," and "to wear some of the trophies and spoils they had ravished from the oppressed." Comparatively few of the masters continued to be civilians, and the post of master of the rolls came to be always filled by an English lawyer.10

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The Literature of and the Authorities for the Early Rules of Equity

We can see from the early history of the common law that it is not until the courts have begun to make rules of substantive law that we get any great mass of legal literature. Till then the

1 The Remedies and Abuses of the Chancery (Harg. Law Tracts) 429, 447—“ I sitt not here to referr causes; they might have done that before they came hither: now they are here they shall know their doome."

2 1614-1636.

4 1636-1639.

6 History of the Rebellion 122.

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7" I believe experience hath now manifested, that though many of the common lawyers have much indiscretion, injustice, and malice to repent of towards the church, the professors of the civil law have not been less active. in the unnatural de

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struction of their mother. . . It will be no ill measure in making friendship, to look into the power of doing hurt and doing good. And it was apparent that the civil law in this kingdom could neither help or hurt the church in any exigent...; whereas the professors of the other had always by their interests, experience, abilities, and reputation, so great an interest upon the civil state, upon court and country, that they were notable friends or enemies," op. cit. 123.

8 Above 259.

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9" And I cannot but say, to the professors of that great and admirable mystery the law who seem now, by the fury and iniquity of the time, to stand upon the ground they have won, and to be masters of the field: and, it may be, wear some of the trophies and spoils they have ravished from the oppressed; that they have yet but sharpened weapons for others to wound themselves; and that their own eloquence shall be applied to their own destruction," Clarendon, op. cit. 123.

10 Sir Henry Powle, Master of the Rolls 1689-1692, Foss, Judges vii 340-343, Dict. Nat. Biog., was rather a politician than a lawyer, but even he was a barrister and bencher of Lincoln's Inn.

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main authorities are the records of the courts themselves and their rules of procedure. In the twelfth century the records of the Curia Regis and Glanvil's book, which deals mainly with its procedure, are the chief authorities for the origins of the common law. It is not till the thirteenth century that we get more important books," and the beginning of regular law reports. It is the same with authorities for the early history of equity. Before the sixteenth century the chief authorities are the records of the court, and a few short orders made by the chancellors, dealing with the organization and the procedure of the court. It is not till

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the sixteenth century that we get one or two books written about the substantive rules of equity; and some of them are controversial tracts written to attack or to defend equitable interferences with the common law. It is not until the middle of the seventeenth century that reports of cases decided in the court of Chancery begin to get into print.

In dealing with this subject therefore, I shall describe (1) the Records; (2) the Orders of the Court; (3) the Treatises and Tracts; and (4) the Reports.

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The records of the court of Chancery fall into several distinct classes. The following is a list of those which are the most important from the point of view of legal history :—

(i) The Chancery proceedings. These consist of Bills, Answers, Depositions, and other proceedings in Chancery. They are in three series. (a) From Richard II. to Philip and Mary. The basis of division is the succession of Chancellors. They are arranged chronologically under each chancellor. (b) From Elizabeth to Charles I. The basis of division is the succession of kings. They are arranged alphabetically according to the names of the plaintiffs reign by reign. (c) After Charles I. to 1842, when the Six Clerks were abolished, there is a most complicated and inadequate arrangement, based on the division of business among the Six Clerks. It is complicated because it involves an arbitrary sixfold division. It is inadequate because the chronological and alphabetical principles upon which it is based are not adhered to, with the result that there is no certainty that any given paper will be found in its right bundle, or under its right alphabetical heading. The details of this extraordinary arrangement will be

1 Vol. ii 185-186, 190-192.

2 Ibid 236-243, 319-322.

3 Ibid 525-526.

My authority for this section is chiefly Scargill-Bird's Guide to the Public Records 8-85.

5 Ibid 48-53.

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