"4 part of the book is taken up with a general account of the office of chancellor, of the court of Chancery, and of some of the officers of the court.1 The remainder of the book is divided into two parts. The first part deals in eight short chapters with the jurisdiction and procedure of the court. The second part deals in six chapters with certain topics of equitable jurisdiction, and in three other chapters with other pieces of jurisdiction exercised by the lord chancellor. The writer emphasizes the uncertainty of the principles of equity, owing to the fact that they depend upon the chancellor's conscience 2-"whereby the man of law is not able to informe his Clyent what is like to become of his action, or whether it be determinable in the court of Chancery or to be tryed at Common Lawe." 8 At the same time he promises to cite "a competent store of cases where upon reasonable conjecture may be grounded what is like to fall out. But his authorities are for the most part the Year Books and the Doctor and Student. He very rarely cites any more modern case, and ignores the statute of uses, though he cites on other topics several later statutes of Henry VIII. and Elizabeth's reigns. It is a rather pretentious and a very second-rate piece of work. The third of these works is Crompton's chapter on the Chancery in his book on the authority and jurisdiction of courts.5 The subject is naturally treated from the point of view of a common lawyer, and the main authorities relied upon are the Year Books, The Doctor and Student, Dyer, Plowden, Fitzherbert, and Brooke. It is a somewhat formless collection of cases upon the question whether or no the court will give a remedy. The last of these books is the account of the Chancery given by West in the second part of his Symboleography. West knew something of the civil law. He can cite the Digest, and some of the modern writers on the 6 appear that the absolute power (of the chancellor) was feared and prevented in the time of K. John and that it was frequented and usurped in the time of Edward 3, who so often restrained the same, and it was allowed and established in the time of R. 2, who in some part made Reformation thereof; " (2) from the epilogue-" the which poor barren treatise I have not presumed to collect either for instruction of his Honor (from whose wisdom I have always thought nothing can be hidden) or for ostentation of my reading and experience (who do freely acknowledge myself the most ignorant man of my profession) but to this end. . . have I done it, partly to provoke some good matter from those learned lawyers, and skilful Antiquaries that are attendants upon his Lordship, and especially for satisfaction to his desire that did demand it and may command me." 1 At pp. 1-41. 2" What manner of general notions the lord chancellor doth assign unto himself for limitation of equity and direction of his conscience, that lyeth hidden and concealed in his own breast," at p. 7. 3 Ibid. 4 Ibid. 5 At pp. 41b-67; for this book see vol. iv 211-212; a work of the same character, but less detailed, is Coke's chapter on the court of Chancery in the Fourth Institute. 6 See pp. 66b, 67, where he discusses the statute 4 Henry IV. c. 23 vol. i 462. 7 For this book see below 389-390. VOL. V.-18 civil law such as Budé and Oldendorp.1 He can therefore give an intelligible account of the nature of equity and its relation to law, by way of introduction to and explanation of the powers of the Chancery as a court of conscience.2 After describing the powers of the Chancery, he gives a short summary of the cases in which it will interfere,3 and passes on to the main topic of his book-the forms of the writs and pleadings in use in the court.* The largest part of West's book thus deals with procedure. It is a collection of precedents for the use of practitioners. Other books on this topic are "the Practice of the High Court of Chancery Unfolded," published in 1652 together with Choyce Cases in Chancery. It deals mainly with the court itself, its jurisdiction, and practice; but it occasionally diverges into other topics. Thus it tells us something of the substantive rules as to the cases in which equity will give relief," as to the history of the court, and as to other functions of the Chancery. A smaller book of a similar character is appended to Tothill's Transactions of the High Court of Chancery. A chapter in Thomas Powell's Attorney's Academy gives clear directions for the conduct of a suit in Chancery. 6 8 It will be clear from this summary that the literature of equity as yet mainly consists of tracts upon somewhat disparate topics. A definite and accepted theory has been arrived at as to the nature of the distinction between law and equity. The independent position of equity in relation to the law has been successfully asserted and defended. Some definition of the cases in which equity will intervene, and of the principles which it will apply, has been reached. Some definite rules of procedure have grown up. But as yet little progress has been made in the direction of welding these various principles and rules into a connected system. For this we must wait till the beginning of the systematic reports of equity cases in the latter part of the seventeenth century. But at the end of this period we can see the beginnings of this process in one or two small collections of cases, which were made at the beginning, and printed in the middle of that century. (4) The Reports. The best evidence that the Court of Chancery was beginning to create a body of substantive rules is to be found in the fact that the lawyers who practised in the court, and the officials 1 See e.g. pp. 173b, 174. 3 At pp. 177b-183a. 5 At pp. 40-49. 7 At pp. 83-92, 96-100. 2 At pp. 173b-177a. 4 At pp. 183a-290b. 8 At pp. 1-86; for this book see below 381-382. of the court, were beginning to make notes of cases therein decided. common We can see the main reason for this practice in developments which were taking place at the end of the fifteenth century. As early as 1483 the chancellor could say that it was the "common course" of the Chancery to grant relief in certain cases, and that it was so recorded.1 But when a court has acquired a course" which is recorded, it soon develops fixed rules of practice, which, in their turn, gradually create fixed substantive rules. No doubt this process operated more slowly in the case of the Chancery than 'in the case of the courts of common law, because, all through this period, equity was equity-it tried to lay down the ideally just rule applicable to the circumstances of each particular case. But the influence of the new school of lawyer chancellors was beginning to be felt at the end of the sixteenth century. Lambard, who, as we have seen, was a master in Chancery,2 notes that the question, "whether it be meete that the Chancellour should appoint unto himselfe and publish to others any certain rules and limits of equity," was one "about the which men both godly and learned doe varie in opinion; and it is clear that the opinion in favour of an affirmative answer to this question was growing in strength. As we have seen, the Chancery Orders were beginning to lay down a few fixed rules; 4 and we shall see that Lambard himself thought it worth while to make a collection of cases that seemed to him to be notable.5 In fact, the evidence both of the records of the court and of the cases points in the same direction. At the very beginning of the seventeenth century the records show that for the decision of certain points recourse was had to precedent. In 1600 the plaintiff's counsel, having alleged that they could show precedents for the exercise of the equitable jurisdiction, the court ordered 1Y.B. 22 Ed. IV. Pasch. pl. 18-"Le Chancelor dit, que est le comen course en le Chancery pur granter [subpoena] encontre obligacions, et auxi sur feoffements de trust lou l'heir le feoffee est eins per discent on auterment, car nous trouvomus recorde en le Chancery de tiels." 2 Above 260. 3 Archeion (ed. 1635) 83-85-"Whether it be meete that the Chancellour should appoint unto himself, and publish to others any certaine Rules and Limits of Equity, or no; about the which men both godly and learned doe varie in opinion : For on the one part it is thought as hard a thing to prescribe to equity any certaine bounds, as it is to make any one generall law to bee a meet measure of justice in all particular cases. And on the other side it is sayd, that if it bee not knowne before hand in what cases the Chancellour will reach forth his helpe, and where not, then neither shall the Subject bee assured how, or when he may possesse his owne in peace, nor the practizer in Law be able to informe his Client what may become of his Action; see above 272 for Norburie's opinion that too great attention was sometimes paid to precedents. 4 Above 265. 5 Below 277. 1 them to produce their precedents next term; and, in the following year, on the question of awarding a sequestration, precedents were cited. In 1604 there is a reported case in which Lord Ellesmere seems to assume that "a full decree" would be a precedent for like cases; and other cases decided in accordance with precedents occurred in 1626, 1649, 5 and 1650.o 3 8 Under these circumstances it was inevitable that both the lawyers who practised before the court, and the officials of the court should make collections of cases for their own use. As common lawyers practised at the chancery bar, it was inevitable that some of these cases should find their way into the collections of cases which they made. We have seen that a fair number of them were reported in the Year Books and found their way into the Abridgments.7 Similarly, a few of them appear in the collections of Brooke, Dyer, Coke, Gouldesborough, Popham, Moore, and Rolle; and, at the end of the sixteenth century, collections devoted entirely to cases decided in the court of Chancery were being made. Like the early reports of cases decided in the common law courts, these early reports of cases decided by the court of Chancery are short and scrappy. They are more like notes in an Abridgment than regular reports. And just as the maker of one early MS. of the Year Books thought it necessary to prefix to it a rough alphabetical Calendarium, so, one of the earliest collections of Chancery casesthat made by Tothill-is arranged on the alphabetical plan.10 But, unlike the reports of cases decided by the common law courts, two of the earliest of these collections were made by officials of the court.11 1 Monro, Acta Cancellaria 744-745-the case had been referred to the judges for their opinion; "yet nevertheless, the said justices cannot be procured to certify their opinions; and the rather, because they something vary in opinion (as it is supposed); for which cause the plaintiff's counsel most humbly desired that the cause in equity may be heard in this court, and alleged that like cases have been retained and relieved in this court, as will appear by several precedents"; for earlier cases in which precedents were cited before Hatton see Spence, op. cit. 423 n. b; and before Nicholas Bacon, ibid 416 n. b. 2 Monro, op. cit. 758-759. 3 Mynn v. Cobb, Cary 25-"Nota... the trust was not so fully proved as the Lord Chancellor would make a full decree thereupon, so as it should be a precedent for other causes, and yet so far forth proved, as it satisfied him as a private man; and therefore in this case he thought fit to write his letters to the defendant to conform himself to reason; and affirmed, that if he should find the defendant obstinate, then would he rule this cause specially against the defendant, sans la tires consequence." 4 Jackson v. Barrow (1626) Nelson 2-3. 5 Underwood v. Swain (1649) I Ch. Rep. at p. 162. 6 Thin v. Thin (1650) 1 Ch. Rep. at p. 163. 7 Above 220-222. 9 Vol. ii 536-537. 8 For these reports see below 357-362. 11 That the practising lawyers also made collections of cases is probable from what is said in the Preface to Nelson's Reports; the editor says that most of them The following are the collections of Chancery reports which belong to this period: In In 1649 was published Tothill's Transactions of the High Court of Chancery.1 Tothill, the title page tells us, was one of the Six Clerks, and the work was published and edited after his death by Sir Robert Holborne, one of Hampden's counsel in the case of Ship Money. The book contains two treatises. The first part-the Transactions of the High Court of Chanceryconsists of very short notes of cases arranged alphabetically. many cases the references to the registrar's books are given. All we can gather from these notes is that a certain point has been decided, and often that point is so obscurely stated as to be unintelligible. The second part consists of a short account of the Procedure of the Chancery. In the following year there was published by master George Carew 2 a collection of cases which he had gathered "out of the labours of master Lambard." These are known as Cary's reports, as his name is so spelt on the title page. They are short notes of points decided between 1537 and 1604, and, as Monro says, "they are very often mere verbal transcripts from the registrar's books." In 1652 another little book was published anonymously, which comprises both a tract on procedure and some notes of cases.5 The tract on procedure, called "The Practice of the High Court of Chancery Unfolded," I have already mentioned. The notes on cases are usually styled "Choyce Cases in Chancery." They report cases decided between 1557 and 1606. 3 4 "were transcribed from the fair Manuscript of a late Attorney-General, and are supposed to be collected by him for his own use, amongst many more which have been copied from that very Manuscript, and probably by some of his Clerks, for I find them already printed in the first Reports which were published of this nature. Some of the later cases have been added by one who formerly attended at the Court." 1The Transactions of the High Court of Chancery, both by Practice and President, With the fees thereunto belonging, and all speciall orders in Extraordinary cases, which are to be found in the Register's Office as they are quoated by Tearmes Yeares and Bookes. Collected by that famous lawyer, William Tothill, Eqr.; late one of the 6 Clearkes. And since reviewed by Sir Ro. Holborne, Bencher of Lincoln's Inn; there was a second edition in 1671, and reprints in 1820 and 1872, Wallace, The Reporters 474-476. 2 He had served as ambassador and master of the Wards, as well as master in Chancery, Monro, op. cit. 29, 30. 3 Reports or Causes in Chancery. Collected by Sir George Cary out of the Labours of Mr. William Lambert; another edition was printed in 1668, there was a third edition in 1820, and a reprint in 1872, Wallace, op. cit. 469; to it is added the king's decree as to the Chancery of 1616. 4 Op. cit. 29. 5 The Practice of the High Court of Chancery Unfolded, with the Nature of the sev ral Offices belonging to that Court, and the Reports of many Cases wherein relief hath been there had, and when denied; there was a second edition in 1672, and a reprint in 1870, Wallace, op. cit. 474. 6 Above 274. |