conveyances.1 In 1628 the Star Chamber declared,2 "that if any man do make conveyances of his land, or acknowledge Statutes or Recognizances or suffer judgments, whether the same be upon just and good considerations or without, and concealing the same do afterwards for valuable considerations convey the same lands to other persons, as though the same were free from any manner of incumbrance; such double and unjust dealing is a notorious fraud and deceit against the law of the realm, and fit for the censure of this court; and albeit such former conveyances and incumbrances, if they be upon good consideration and bona fide, cannot be avoided; yet this court will upon complaint punish the offenders and their confederates by imprisonment, fine and damages to the party grieved, to the full of his loss and hinderances, and otherwise, as the cause shall require." Similarly the Council interfered in cases in which contracts had been induced by fraud; and the Star Chamber punished manufacturers who deceived the public by their methods of manufacture. We shall see that in the exercise of this branch of jurisdiction both the Council and the Star Chamber were seconded by the equitable jurisdiction of the Chancellor.5 All these courts by their example helped to induce the common lawyers to develop the common law remedies for fraud, and ultimately to produce some changes in the principles of civil liability." (g) Acts contrary to public policy. We have seen that the Star Chamber possessed an indefinite power to suppress "errors creeping into the Commonwealth, which otherwise might prove dangerous and infectious diseases... although no positive law or continued custom of common law giveth warrant to it." Just as the king through the Council had an indefinite power by proclamation or otherwise to make rules or forbid acts which he deemed to be contrary to public policy, so the Star Chamber assumed an indefinite power to punish the breach of these rules or the doing of these acts. I have already said something of the manner in which it interfered as between landlord and copyholder 1 Dasent xiv 29 (1585-1586), 313, 330, 347 (1586-1587); xxii 414 (1592). 3 Dasent xx 100, 101 (1590)-a jeweller had sold goods worth £20 for £185; cp. ibid xxii 116 (1591)-fraud practised on a youthful surety. Case of the Hatband makers (1632), Cases in the Star Chamber (C.S.) 115116-they had made their hat bands of copper and other base metals, and sold them for good silver and gold bands; "and because fraude is a common hurt to the weale publique and that, in all manufactures, from the great commodity cloath to the meanest, fraud is too much used, tendinge to the distruction of the whole trade of the kingdome, for example sake it was ordered that this Decree should be carefullie drawen up, and to be read at the next generall meetinge of the Liveries of every Companie in London, and the Guyldhall.' Below 292, 328-329. 7 Hudson, op. cit. 107; vol. i 504. 6 Pt. II. c. 5 § 6. 8 Vol. iv 99-104, 296-297; below 433. 3 to secure the copyholder against oppression. Its interferences as between employer and workman,2 its regulation of the course of trade, and its control of all courts and bodies and persons exercising governmental functions, rested upon the same principle of paramount public policy. Further, it even assumed a power to deal with cases already dealt with by other courts.5 "In a word, there is no offence punishable by any law, but if the court find it to grow in the Commonwealth, this court may lawfully punish it, except only where life is questioned." " A large discretionary power of this kind could be exercised with general applause when the peace and security of the state were in danger. Lambard says, "Is it not meet and just, that when the wicked sort of men have excogitated anything with great labour of wit and cunning, so as it may seeme they have drawne a quintessence of mischief, and set the same abroach to the remedilesse hurt of the good and quiet subject; Is it not meet and just (I say) that authority it selfe also . . . should straine the line of justice beyond the ordinary length and wonted measure, and thereby to take exquisite avengement upon them for it? Yea is it not right necessary that the most godly, honourable, wise, and learned persons of the land should be appealed unto, that they may apply new remedies for these new diseases?" But such a power was certain to arouse unpopularity when, the peace and security of the state having been assured, men began to question the meetness and justness of its exercise; and when the court replied to these questionings by asserting a larger measure of the power which was questioned. The most important work of the Star Chamber was the exercise of this criminal or quasi-criminal jurisdiction. It is its work in this direction which has had a permanent influence upon the development of the English law of crime and tort. But all through this period both the Council and the Star Chamber interfered in civil cases. In fact, just as the court of Chancery only gradually ceased to exercise a semi-criminal jurisdiction, ancillary to its general equitable jurisdiction, so the Council and Star Chamber only gradually ceased to exercise a general civil jurisdiction ancillary to their criminal jurisdiction. But it was only in so far as the work of the Council and Star Chamber in this direction was adopted by the Chancellor, and became part of the system of equity administered by him, that it has had a permanent influence upon the development of English law. Therefore its history naturally falls to be related under that head. 1 Vol. iii 210-211. 2 Vol. iv. 380-381, 385-386. 3 Ibid 335-338. 6 Ibid 117-118. II THE EQUITABLE JURISDICTION OF THE CHANCELLOR Continuity is the characteristic feature of the history of the common law. An absence of continuity is the characteristic feature of the early history of equity. No doubt the root idea of equity, the idea that law should be administered fairly and that hard cases should so far as possible be avoided, is common to many systems of law at all stages of their development;1 and this root idea came very naturally to the mediaeval mind, which regarded the establishment of justice, through or even in spite of the law, as the ideal to be aimed at by all rulers and princes.2 In England the mediaval history of the application of this ideal to the law passed through two distinct stages. There is the stage in which it was applied in and through the common law courts, and there is the stage in which it was applied in and through the Council and the chancellor. The first stage ended, as we have seen,3 in the course of the first half of the fourteenth century. In the latter half of the fourteenth and in the fifteenth centuries the common law tended to become a fixed and a rigid system. It tended to be less closely connected with the king, and therefore less connected with, and sometimes even opposed to, the exercise of that royal discretion which was at the base of the equitable modification of the law.* Equity therefore came to be exercised by the chancellor and Council who were in close touch with the king, because through them the king exercised his executive and extraordinary judicial power. This second stage in the history of Equity differs in three important respects from the preceding stage. In the first place, its growth was caused, and its development was largely conditioned, by the rigidity which had naturally become a marked characteristic of the common law, when it ceased to develop those equitable principles and ideas which it possessed at an earlier period. The defective state of the common law, both substantive and adjective, and the disturbed state of the country, which not only rendered its cumbersome procedure useless but even enabled litigants to abuse it to promote injustice, gave rise to a need for the growth of a set of equitable principles outside of and even opposed to the common law. In the second place, being thus developed outside 1Cp. Pollock, The Transformation of Equity, Essays in Legal History (1913), 287-289. 2 Vol. ii 131-132. Ibid 346; vol. i 210-211. 3 Ibid 344-345. the sphere of the common law and mainly by ecclesiastical chancellors, its interference with the common law was more direct and avowed than it would have been if it had been developed in and through the common law courts. In the third place, the theory upon which the equity of these ecclesiastical chancellors was based, was somewhat different from the theory upon which the equity described by Bracton, and administered by the common lawyers of the thirteenth and early fourteenth centuries,2 rested. But this third difference needs a few words of explanation. The common lawyers of the thirteenth and early fourteenth centuries used the term 'equity' in a wide sense, and included under it such ideas as abstract justice and analogy. The ecclesiastical chancellors, on the other hand, based their equity on the more restricted idea that the court ought to compel each individual litigant to fulfil all the duties which reason and conscience would dictate to a person in his situation. Reason and conscience must decide how and when the injustice caused by the generality of the rules of law was to be cured. They were the executive agents in the work of applying to each individual case those dictates of the law of God and nature upon which the ecclesiastical chancellors considered equity to rest. As we have seen, therefore, their equitable jurisdiction was based on an application of the current ideas of the canonists of the fifteenth century regarding the moral government of the universe to the administration of the law of the state. The law of God or of nature or of reason must be obeyed; and these laws required, and, through the agency of conscience, enabled abstract justice to be done in each individual case, even at the cost of dispensing (if necessary) with the law of the state. How far it could interfere with the law of the state was to be determined by drawing distinctions, in the light of this theory, between the various provisions of the laws which governed the state. Naturally equity administered on these lines was "loose and liberal, large and vague." But the popularity of the equity administered by the chancellor on these lines was so great that, in the latter part of the fifteenth and in the sixteenth centuries, we begin to see the growth of a separate 1 Vol. ii 346-347. 4 2 Ibid 245-249, 334-345. 3 Sir Paul Vinogradoff, Reason and Conscience in Sixteenth Century Jurisprudence, L.Q.R. xxiv 379, says "In the thirteenth and fourteenth centuries, in the period of the early predominance of the common law, equity, though specifically recognized and sometimes applied in practice, was taken in a wider sense, including justice and analogy;" on the other hand it is clear from St. Germain's Doctor and Student, below 266-269, that the ecclesiastical chancellors were guided by a different principle; St. Germain "formulates distinctly the proposition that equity excepts from the law on grounds supplied by reason and conscience, and it is on the strength of conscience that remedies in equity were commonly granted." Vol. iv 276, 279-281. 5 Ibid 281-282. 1 court of Chancery, with its own staff of officials and its own peculiar procedure. Naturally this separation caused the growth of friction between this new court and the common law courts; and the literature of the period shows that this friction had become acute in the first quarter of the sixteenth century.2 This second stage in the history of equity ends with the be-ginning of the Reformation in Henry VIII.'s reign. One of the indirect results of that movement was the beginning of a third stage, in which the ecclesiastical chancellors of the preceding period gradually gave place to English lawyers. Fortunately, however, the principles upon which the ecclesiastical chancellors had acted had been summarized and rendered intelligible to English lawyers by St. Germain's Dialogue between the Doctor and the Student; and thus a greater degree of continuity between the second and third stages was secured than would otherwise have been possible. At the same time, the fact that English lawyers, educated at the Inns of Court, presided over the Chancery, tended to keep the equity administered by the court of Chancery in close touch with the development of the common law, and to improve the relations between common law and equity. At any rate an open conflict was avoided. But the root of the earlier differences was still present, and, at the beginning of the seventeenth century, the old conflict broke out with renewed vigour in the dispute between Coke and Lord Ellesmere. James I. settled it in favour of the court of Chancery; with the result that from henceforth the court of Chancery was a court of equal, and in some respects of superior authority, to the courts of common law." 3 These developments introduce us to a fourth stage in the 4 history of equity. Equity tended to become less a principle or a set of principles which assisted, or supplemented, or even set aside the law in order that justice might be done in individual cases, and more a settled system of rules which supplemented the law in certain cases and in certain defined ways. We can see the beginnings of this change in the first half of the seventeenth century. But, during this period, its progress was hindered by the victory of the Parliament, because Parliament suspected the equity administered by a chancellor in intimate relations with the king." 1 Vol. i 400-409. 8 Below 220, 222-223. 5 Vol. i 461-463; below 236-238. Vol. i 463-465, as Sir F. Pollock says, Transformation of Equity, Essays in Legal History (1913), 294-295, "the chancellor was still eminently the king's minister; his jurisdiction was practically uncontrolled, for there was no appellate court; and men saw in the chancellor's discretion, as they had seen in the criminal equity of the Star Chamber, a power of being abused to political ends. Here, and not in any merely technical prejudices, is the explanation of Selden's famous gibe Equity is a roguish thing.' It is so because the measure of the chancellor's foot |