found in Mr. Scargill-Bird's Guide. As is there pointed out, some help in searching these records may be found in the bill books, cause books, and clerk in court's book-all connected with the Six Clerks' office, and with the work of the sworn clerks.2

3

Of these Chancery proceedings a few extracts have been printed. The old Record Commission printed in three volumes the calendars to the Chancery proceedings in the reign of Queen Elizabeth; and to the first two of these prefixed a selection of the older cases in extenso. The Selden Society have printed the earliest cases, between 1383 and 1412, not printed by the Record Commission; and a selection of later proceedings, which range in date between 1364 and 1471. Mr. Trice Martin has printed some further cases from the fifteenth century. It is clear that these proceedings are of primary importance for the early history of equity. W. T. Barbour's essay on the History of Contract in early English Equity shows how much light they shed upon the doctrines actually applied by the chancellor. But their bulk is so large that it can hardly be expected that they will ever be printed in their entirety. It seems to me that good service would be done if a selection dealing with specific heads of equity could be published, and if, in making these selections, preference were given to those cases in which a decree was made. The ex parte statements in Bills and Answers are useful illustrations in default of better evidence; but the litigants of this period never allowed the truth to stand in the way of the production of a picturesque effect. W. T. Barbour's Essay, and the Appendix of documents annexed thereto, show the kind of use to which such selections made on such a plan could be put. And the adoption of such a plan would at least give a much needed principle of selection. A miscellaneous mass of extracts made on no ascertainable principle, is difficult to use; and there is not the same security that the editor has not overlooked important cases. Το search a mass of material with one definite object in view is both

1 Scargill-Bird, op. cit. 48-50; see ibid 51-53 for the existing Record Office lists and indexes.

2 Ibid 51-52; the Bill Books range from about 1673-1852. They "contain entries of all the Bills filed in Chancery arranged alphabetically year by year, the names of the Six Clerks and clerks in Court who appeared for the plaintiffs being given in the margin, thus enabling the searcher to refer to the division in which the Records should be indexed"; the Cause Books range from about 1620-1842. "Each of the Six Clerks kept in his study a book called the Cause Book," in this was entered the names of the parties and the dates of their several pleadings, the entries being made alphabetically under the Plaintiffs' names; the Clerk in Court's Books range from about 1713-1842. They were books kept by the clerks in court in which were entered the dates of appearance and other proceedings.

3 Some Chancery Proceedings of the Fifteenth Century (1904); Clerical Life in the Fifteenth Century as illustrated by Proceedings of the Court of Chancery, Archæologia (Second Series) vol. x Pt. II. 353-378.

* Oxford Studies in Social and Legal History vol. iv.

easier and more satisfactory than to search it with several less definite objects.

1

(ii) The Entry Books of Decrees and Orders. These books were kept by the registrars of the court. They run from 36 Henry VIII. to 1885. They are in two series-Liber A and Liber B. The Liber A series runs from 36 Henry VIII. to 1629, and contains decrees and orders alphabetically arranged under the plaintiff's name from A to Z; after that date it contains the decrees and orders similarly arranged from A to K. The Liber B series runs from I Edward VI. to 1629, and contains decrees and orders alphabetically arranged from A to Z; after that date it contains decrees and orders similarly arranged from L to Z. General Orders are indexed under the letter O. Generally each book contains four terms; but in the earliest books there are variations.2 Some interesting extracts from these books have been printed by Monro in the second part of his Acta Cancellaria. We ought to have more of them. A series of extracts down to the Restoration would be very useful.

3

(iii) Reports and Certificates. These are a collection of reports made by the masters, from 1544 to the abolition of the masters in 1848. After that date their place is taken by the reports of the chief clerks and taxing masters. They comprise 4,108 volumes arranged alphabetically term by term. A valuable selection of these reports from the reigns of Elizabeth and James I. has been printed by Monro.

4

These are perhaps the most important classes of records from the point of view of legal history. But they are not by any means the only classes. Thus we get decree rolls on which were entered all such decrees as were solemnly enrolled; registrars' court or minute books, consisting of notes taken in court by the registrar with minutes of the court's decision; and Chancery masters' documents consisting of affidavits, accounts, and other evidence on which they grounded their reports.

6

5

1 Scargill-Bird, op. cit. 53; for a fuller description see T. Kennedy, Code of Chancery Practice (ed. 1845) 111-116; Monro, Acta Cancellaria, Pref.; in Legal Judicature in Chancery, at p. 151, a note of Sir Julius Cæsar on a decree roll of 31 Henry VIII. is cited to the effect that, till 36 Henry VIII., the decrees were not enrolled, but the history of the case was shortly noted on the back of the bill in Latin, according to the usual practice of the civil and canon lawyers.

2 Kennedy, op. cit. 111-116.

3 Scargill-Bird, op. cit. 55; Monro, Acta Cancellaria, Pref.

4 Scargill-Bird, op. cit. 54. The object of enrolment was "generally in order to render the record of the judgment more solemn and authoritative, any appeal against such Decrees or Orders having then to be made to the House of Lords."

5 Ibid 55.

They are arranged in Terms, there being generally one volume per Term for each Registrar, for which reason they are sometimes designated 'Term Books'."

• Ibid 56.

(2) The Orders of the Court.

The Orders of the Court are the best evidence of the organization of the court and of its rules of procedure. In other words they furnish us with a picture of the machinery which created the substantive rules of equity. These Orders stretch in a continuous series from 1388 down to the Judicature Acts. They are very various in their character, and must be sought in different places. I have already mentioned some of the more important general Orders issued by the chancellors of this period.1 But these general Orders by no means exhaust the whole body of Orders of the court. Some of them were never published as Orders, but were made in the course of the hearing of a cause. "They are made in private causes; but the Court, while deciding on the point before it, lays down a rule which it declares shall in similar cases be observed in future. Such Orders are entered in the Registrar's Book under the title of the private cause only; but the words 'Ordo Curiæ' are inserted in the margin, opposite to that part which is intended for the guidance of the public."2 Others were made, not by the chancellor or the master of the rolls, but by the Six Clerks, and approved by the chancellor. As Sanders, referring to these orders, says, "It is evident from the beginning there was something wrong with the constitution of the office of the Six Clerks. . . . Endless misunderstandings among themselves and with their superiors, quarrels respecting fees, encroachments upon the rights of other offices, and violence and insubordination in their servants and clerks, are conspicuous through the whole of their earlier history." We have seen that with the growth of the court it became impossible for them to fulfil their original function-that of acting as the attorneys to the parties.* They came to be so useless a clog in the cumbersome machinery of the court that even Lord Eldon's commission was unable wholly to approve of them.5

3

It will thus be seen that the growth of the Orders of the Court was somewhat haphazard. They were made by different authorities; and the necessity to repeat some of them shows that their enforcement was difficult. This was due, as I have said, partly to want of power and knowledge on the part of the chancellor, and partly to the vicious system under which the offices of the court were regarded as property, with which it was wrong to interfere.6 But it was also due to the ease with which it was possible for all concerned to forget Orders which had been made, owing to the absence of any official record. "The origina.

Orders of Court," says Sanders,1 says Sanders, "are neither filed nor officially preserved. . As regards some of them (and those among the most important), neither are they preserved, nor is any entry of them made in the Registrar's books. Those of early date are probably for ever lost; and those of more recent date exist only by accident, and in private repositories, where they are, not unfrequently, forgotten, and where, at least, they are not available for immediate reference. . . . The little attention which the Court has paid to the preservation of its General Orders, and to the means of obtaining a ready reference thereto, creates, perhaps, more surprise than anything else in its history."

The most complete edition of these Orders, and the only edition which is useful for historical purposes is that by G. W. Sanders, published in 1845.

(3) The Treatises and Tracts.

The treatises and tracts which deal with the development of equity in this period are few in number; and the only one of first-rate importance is the Dialogue of the Doctor and the Student. Of the rest, some are mainly controversial; and others are chiefly occupied with the office of the chancellor, with his court, and with its jurisdiction and procedure. I shall deal with this literature under these heads.

The Doctor and Student.

2

The author of the two Dialogues between the Doctor of Divinity and the Student of the common Law was Christopher St. Germain, a barrister of the Inner Temple, who lived from about 1460-1540. He was well read both in English law, and in the literature of the canon law; and he took a keen interest in the religious controversies of his time. His attitude was that of "a moderate reformer;" and the adoption of this attitude brought him into a controversy with Sir Thomas More, in the conduct of which More's stern orthodoxy caused him to lose his usual urbanity. St. Germain's studies in the canon law, and his knowledge of English law, naturally led him to interest himself in the development of equity, which, up to this time, had been closely connected with the canon law, because it had been mainly developed by the ecclesiastical chancellors. He was able to

1

4

1 Sanders, op. cit. i Pref. xv; as we have seen, vol. ii 427, 532-536, neither the statutes nor the law reports have ever been officially collected.

2 Dict. Nat. Biog.

3 Sir Paul Vinogradoff says, Reason and Conscience in Sixteenth Century Jurisprudence, L.Q.R. xxiv 374, that St. Germain is "quite at home in the legal learning of the Courts, and very well read in the philosophical and jurisprudential writings of his time."

4 Above 217.

look critically at the rules of English law, and, with the help of his knowledge of the canon law, to point to those parts of it which needed the help of equity if it was to fulfil the main object of law-the furtherance of justice and the promotion of virtue.

The first Dialogue was first published in Latin in 1523, but no copy of this edition is known to exist.1 It was reissued in 1528. The second Dialogue was published in English in 1530, and the first Dialogue was revised and published in English by the author in 1531. These English editions were republished with additions in 1532, and there have been very numerous subsequent editions.2 The English version of the first Dialogue is not a mere translation. Disquisitions upon and references to the canon law, which would be useless or unmeaning to English lawyers, were omitted; and therefore, as Sir Paul Vinogradoff has pointed out, from the point of view of the early history of equity, the Latin version is the most valuable. "It puts clearly before us the elements of the author's learning and the thread which connects him with his predecessors.'

I have already said something of the sources from which the author drew his learning, and of the manner in which he applied it to explain the theory which underlay the administration of equity by the medieval chancellors. At this point I must deal with the importance of the book in the later history of the development of equity. That its importance was great can be seen from the fact that it is cited by practically every writer upon equity down to Blackstone's day.5 The reasons why it was so important were, I think, somewhat as follows:

6

Firstly, the English version of the first Dialogue put into a popular and an intelligible form the current learning of the canonists as to such fundamental legal conceptions as the nature and objects of law, and the different kinds of law and their respective functions. This enabled the author to explain in an equally intelligible way the principles underlying the canonist view as to the necessity and the reason for the existence of equity. We have seen that, according to that view, equity was needed to cure the injustice caused by the generality of the law. "Since the deeds and acts of men, for which laws have been ordained, happen in divers matters infinitely, it is not possible to make any general rule of law, but it shall fail in some case.

377.

" 8

3 Reason and Conscience in Sixteenth Century Jurisprudence, L.Q.R. xxiv 374,

4 Vol. iv 275-276, 279-281.

6 Above 216.

5 Vinogradoff, op. cit. L.Q.R. xxiv 373-374.

7 Ibid; vol. iv 276, 279-280.

8 Doctor and Student i c. 16, cited vol. iv 280 n. 3.