But what principle should be applied to rectify the injustice so caused? The canonists, as Sir Paul Vinogradoff has pointed out, found a guiding principle in conscience. Conscience must decide how and when the injustice caused by the generality of rules of law was to be cured. It is, so to speak, the executive agent in the work of applying to individual cases the dictates of the law of God or reason.1 And it is the emphasis laid by the canonists on conscience, which differentiates the equity administered by the ecclesiastical chancellors of the fifteenth century, from the equity which, in the thirteenth and early fourteenth centuries, had been administered by the common law courts.2 St. Germain's popular exposition has made these canonist principles the basis and starting point of English equity.

Secondly, the time when the book appeared was extraordinarily opportune. It came at the close of the period during which the court of Chancery had been presided over by ecclesiastical chancellors, and at the beginning of the period when its development was to be guided by the common lawyers. Thus it helped to promote a larger amount of continuity in the development of equity than would otherwise have been possible. It enabled the new school of chancellors to understand and apply the principles which their predecessors had applied. It enabled them more easily to grasp the principles laid down in those Year Book cases which, as the literature of this period shows, were then almost the only other authorities on the substantive rules of equity.


Thirdly, although the Latin version of the first Dialogue is from the point of view of the early history of equity the most important, the English version is by far the most important from the point of view of the modern history of equity. The popular form in which the canonist principles were expressed, and their detailed application to the technical rules of English law, which the dialogue form rendered possible, facilitated the development

1L.Q.R. xxiv 378-379-" St. Germain's definition of equity is drawn through Gerson from Aristotle: equity comprises the guiding principles for the adaptation of general rules to particular cases. The Greek philosopher, however, did not specify from what particular sources such a guiding principle should be derived: he dwells rather on the necessity of taking into account all the complex circumstances of each single case. The canon lawyers did discover a guiding rule in conscience, and it is important from the outset that in the jurisprudence of the English Courts of the time this principle came to be accepted on all sides-by Common lawyers as well as by Chancery lawyers.'

[ocr errors]

2 Above 216 n. 3; see vol. ii 245-249, 334-347 for the equity of the thirteenth and fourteenth centuries.

3 Above 220-222.

4" His scheme of putting before his readers in a kind of living opposition the ideas of an English lawyer and of a theologian versed in Canon law was more than a passing happy thought, and it was carried out with considerable skill." Vinogradoff, L.Q.R. xxiv 374.

of these principles on native lines. In fact, as we have seen,1 St. Germain did for the canonist principles which he took from Gerson what Bracton did for the civil law principles which he took from Azo.2 Both writers adapted foreign principles to an English environment. In both cases there was a reception and a use of foreign principles thus adapted which helped on a native development of the law. But in neither case was there any re

ception in detail of foreign law.

For all these reasons St. Germain's treatise has exercised as great an influence upon the development of modern equity as Bracton's treatise has exercised upon the development of the common law. From both books many generations of lawyers drew the root principles underlying the many technical rules to which a continuous development gave rise.

The Controversial Tracts.

St. Germain's wide outlook and cosmopolitan learning, which enabled him to popularize the canonist conception of equity and to define its relations to the common law, was naturally not very comprehensible to those common law practitioners who were very ignorant of anything else but the technicalities of their own system. The Year Books, as we have seen, show that the growth of equity was accompanied by a growth of professional jealousy on the part of the common lawyers. Hence it is not surprising to find that an anonymous serjeant-at-law entered the lists to defend the common law against the aspersion that any supplementary system could be necessary to enable it to do complete justice in all cases.

The Replication of the serjeant-at-law to the Doctor and Student was obviously written shortly after the publication of the English version of the Doctor and Student. The internal evidence of the tract would seem to show that it was written, as it purports to be, by a serjeant-at-law, who had been brought up on the common law, and on that alone. He is wholly unable to appreciate the fact that the common law had any defects at all. "The lawe of the realme is a sufficient rule to order you and your conscience what ye shall do in everie thinge, and what ye shall not do." He could not see, for instance, that the system of uses, though liable to abuse, did successfully remedy some very grave defects in the land law.


1 Vol. iv 276 n. 2.

3 Vol. i 459; vol. ii 595; above 221.

2 Vol. ii 267-286.

4 Harg. Law Tracts 323-331; the full title is, " A Replication of a Serjaunte at the Lawes of England, to certayne Pointes alleaged by a Student of the said Lawes of England, in a Dialogue in Englishe between a Doctor of Divinity and the said Student."

5 At p. 327.

6 At pp. 328-331.

A rejoinder to this replication of the serjeant was made by the anonymous writer of the "Little Treatise concerning writs of Subpoena."1 It is a far abler performance than the Serjeant's. The writer can see that there are two sides to the question. Thus, while defending uses, he is quite prepared to admit that "unquietness and trouble" may sometimes be caused by them.2 He is sufficiently learned to state and defend effectively the position of the court of Chancery in relation to the common law courts.3 In fact the use which he makes of statutes and Year Book cases anticipates the arguments used in the seventeenth century. Thus, for instance, he shows that the existence and jurisdiction of the Chancery are assumed by the makers of some of these statutes; and that consequently the equity administered by the chancellor is an integral part of the law of England. It is because the writer does not deal in mere generalities either in this or in any other part of his argument, that the tract, though controversial, affords valuable evidence as to the actual position of the equitable jurisdiction at the time when it was written. is clear that already it is possible state rules as to the cases in which equity will intervene, as to the cases in which it will not,8 and as to the cases in which it is doubtful whether or not it should intervene.9 At the same time it is also clear that, though it could be stated that there were certain cases in which the chancellor would intervene, and certain cases in which he would


1 Harg. Law Tracts 332-355; Hargrave tells us that both this and the preceding tract are printed from a MS. in the Cottonian Library at the British Museum, to which is added the following note: "Founde amongste the bookes of Sir Edward Saunders, late chiefe justice of England, and after chiefe baron of the exchequer and noted by his hande writinge to be entitled on the outside, The Dialogue betweene a Serjaunte at the Lawe and Christopher Seinte German; and on the inside, The Answer of this Treatise by Christopher Seinte German; there seems to be no other evidence that this treatise was written by St. Germain; for Saunders, who was made chief justice in 1558, and chief baron in 1559, see below 350 n. I.

2 At p. 341.

[ocr errors]

3 At pp. 332-333.

466 Manye times the justices determined that a subpoena hath lyen, and some times have reasoned to the doubt that hath risen betwixte the parties admittinge the subpoena to lye . . . and there be so many cases reported thereof that it needeth not to recite them here," op. cit. 332.

5 Thus, dealing with 17 Richard II. c. 6, and 15 Henry VI. c. 4, which empowered the chancellor to take security for costs and to give damages, vol. i 403, he concludes that "they that weare of the parliament at the makinge of the said statutes assented, that in some cases a man mighte be righteouslye sued in the chauncerie," op. cit. 333.

6 Answering the argument that to issue a writ of subpoena is to hinder the operation of the law, which to do is contrary to the king's coronation oath, he says"the Kinge's oathe in that pointe is this, that he shall graunte to hold the lawes and customes of the realme; and then if the lawes and customes of the realme shall be understood as well the lawes and customes used in the chauncery as at the common lawe, as I suppose, they may be . . . then it is not againste the kinge's oathe, though the chauncellor by means of a subpoena minister justice unto the subjects,' op. cit. 351; and cp. ibid 338 where the same argument is more elaborately stated, 7 At pp. 332-342. 8 At pp. 343-346. 9 At pp. 346-347.

[ocr errors]

not, no substantive rules of equity as yet existed. There is the background of principle laid down in the Doctor and Student; there is the list of cases in which the chancellor habitually acted; but the two are as yet very separate. Much is still left to the conscience of the chancellor-so much that the author can even speculate whether the chancellor, if he is negligent in the hearing of the case, may not "charge himself in conscience some tyme with damages, some tyme with the whole thinge that is in demaunde before him, tho' he cannot be compelled thereto because he is judge of recorde."1

[ocr errors]


Three other tracts deal with this same controversy between the common law and the Chancery at a later stage. A tract styled Privileges and Prerogatives of the High Court of Chancery" was published in 1641. It is stated on the title page that it is by Lord Ellesmere. But there is no external evidence of this; and the internal evidence is against it. It is simply a commonplace commentary on Magna Carta and certain other statutes, which the common lawyers contended were decisive against the claim of the Chancery to issue injunctions against the judgments of the common law courts.2 The second tract is much later in date. It was published in 1693 at the end of the first volume of Reports in Chancery, and was meant to be an answer to the views expressed by Coke in his Third and Fourth Institutes.* But, though later in its date of publication, it belongs, from the point of view of its subject matter, to this period. It gives the report of Bacon and his fellows on the claims of the Chancery, and elaborately and, on the whole successfully, defends it. third tract is of quite a different character. It was written by George Norburie, evidently a practitioner and an office holder in the court. It is entitled "The abuses and remedies of the High Court of Chancery." It is dedicated to Lord Keeper Williams, and its object is to point out the best way to remedy some of the abuses of the court which had come before Parliament. These abuses he groups under three heads :-" the straining of authority of the court beyond its limits in matters of judicature; the impunity of litigious persons; and dilatory proceedings." 6 On all these points he clearly states the abuse, and

1 At pp. 348-351.



2 The title is misleading; it is, as it states on the first page, merely "Notes and observations upon the Statute of Magna Carta, c. 9 (a mistake for 29) and other statutes concerning the proceedings in the Chancery in cases of Equitie and Conscience."

3 Wallace, The Reporters 478; its full title is " Arguments proving from antiquity the dignity power and jurisdiction of the court of Chancery."

4 At p. 2.

5 Harg. Law Tracts 427-448; for an account of these abuses see vol. i 424-428. 6 At p. 430.

is prepared with a remedy. Occasionally he is a little inconsistent. Thus in one place he wishes that the rules of equity were better fixed-"the old rule must ever hold true, that the commonwealth is best governed when least is left to the direction of the judge."1 In another he sneers at judges who, in administering equity, are "inquisitive after precedents. Apparently he did not see that the only way in which the rules of equity could be fixed was by the inquisitiveness which he condemned. But'on the whole it is an able tract, and diagnoses truly the abuses from which the court then suffered, and for two centuries continued to suffer.

[ocr errors]

It marks

a later stage in the contest between common law and equity-the common lawyers had been worsted by James I.'s order, but they were still able to attack the court in Parliament. It thus marks the beginning of that Parliamentary opposition to the court which for a short period proved fatal to it.3

Tracts dealing with the Chancellor and his Court.

Of the tracts which deal with the office of the chancellor, with his court, and with its jurisdiction and procedure, the following four are the most important.

The first is "A Treatise of the Maisters of the Chauncerie.” 4 It is anonymous, and, from internal evidence, it appears to have been written when Egerton was lord keeper, and before he became lord chancellor with the title of Lord Ellesmere. The writer was obviously himself a master, and a contemporary of Lambard. The treatise describes firstly the manner in which the masters were created, secondly their "sundry appellations" and their number, thirdly their dignity and place, fourthly their duties and "what manner of learninge is requisite in them," and fifthly their fees. It is a clearly written, straightforward piece of work. The second of these tracts is entitled “Certaine Observations Concerning the Office of the Lord Chancellor." It was published in 1651, and was attributed to Lord Ellesmere. 5 But internal evidence shows clearly that it was not written by him, though it is possible that he may have encouraged the author to write it. The first

At p. 431.


2" Some judges, when they seem doubtful what to determine in a cause, will be inquisitive after precedents; which I cannot conceive to what purpose it should be, unless that being desirous to pleasure a friend . . . they would faine know whether any before them have done so ill as they intend to do," at p. 446.

3 Vol. i 431-434; below 445; vol. vi c. 6. 4 Harg. Law Tracts 293-319.

5 The Preface states that the copy was delivered by John Harding, late of Gray's Inn deceased, one of the readers of that Society, and was said by him to have been composed by Lord Ellesmere; but it does not seem clear who this John Harding was; the book was published in 1651, but the only John Harding mentioned in the Pension Book (at p. 422) was not called till 1658.

6 This is clear (1) from the manner in which (at pp. 52-58) he deals with the statutes, the interpretation of which was matter of controversy between the chancery and the common law; he concludes his discussion as follows: "So that by this may

« VorigeDoorgaan »