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Published online by Cambridge University Press: 24 April 2015
The Spanish Cardinal Merry del Val once said that for the Protestant, the Bible is a wax nose to be twisted anyway one pleases. The same could be said for the lawyer and equity. That intellectual quick-silver of justice called equity has taken on many different guises in many different contexts throughout the history of law. It has been both friend and foe to individuals as well as groups in times of legal conflict.
Throughout history, appeals to notions of equity, the spirit of the law that “bloweth where it listeth,” have been made by individuals and groups whose needs were not being met by the strict letter of the law. Individual pleaders, often the poor and oppressed, have made appeals to equity in order to overcome the severe effects of the letter of the law. Civil rights leaders, labor unions and women suffragists have appealed to the broad concept of equity in order to effect social change.
Although appeals to equity have often wrought positive change in the law, equitable power is seldom (if ever) in the hands of those who have the perfect “mind of God,” that impartial eye that metes out justice from a totally balanced scale. Nor can it be said that equitable power has at all times been sought by those who are in positions of weakness and oppression. Perhaps this is why the famous Selden called equity a “roguish thing,” likening it unto the measure of the Chancellor's foot.
1. This illustration was taken from the opening line of an essay by my good friend James Luther Adams entitled, Conceptions of Natural Law, The Weightier Matters of the Law, Essays on Law and Religion, A Tribute to Harold J. Berman 179 (Witte, J. & Alexander, F. eds. 1988)Google Scholar.
2. The courts of law and equity were amalgamated in England by the Judicature Acts of 1873-1875. In the United States, the merger of law and equity was recognized at the federal level through the uniform adoption of the Federal Rules of Civil Procedure in 1938.
3. I have chosen to refer to the author of Doctor and Student as “St. German” rather than “St. Germain.” Both spellings appear in the literature, as reflected in the note references.
4. German, C. St., Dialogue Between a Doctor of Divinity and a Student of the Laws of England (1974)Google Scholar [hereinafter cited as Doctor and Student].
5. Hobbes, T., IV Dialogue Between a Philosopher and A Student of the Laws of England 3 (1681)(Molesworth, ed. 1839–1845)Google Scholar.
6. See Van Baumer, Le, Christopher St. German: The Political Philosophy of a Tudor Lawyer, XLII no.4 Am. Hist. Rev. 631–51 (1937)CrossRefGoogle Scholar.
7. Hobbes, supra note 5, at 5, 60.
8. McNeill, , The Relevance of Conciliarism, 31 The Jurist 92–99 (Winter, 1971)Google Scholar.
9. Plato, Politicus, (quoted by Konvitz, , Equity in Law and Ethics, Dictionary of the History of Ideas 148 (1973))Google Scholar.
10. Aristotle, , Nichomachean Ethics 1137b (Ross, W. trans. 1925)Google Scholar.
11. Aristotle, , Magna Moralia, book II, c.1 (Stock, St. George trans. 1925)Google Scholar.
12. Chancellor at the University of Paris in the early fifteenth century.
13. Cicero, Topica, Section 23 (A.S. Wilkins ed. n.d.).
14. Cicero, De Legibus, I. XV. 42 (quoted by Konvitz, supra note 9, at 150).
15. As evidenced in the writings of Bracton.
16. Cicero, supra note 14, at I. XII. 42.
17. For a full discussion, see Buckland, W. W., Equity in Roman Law (1911)Google Scholar.
18. See Pollock, F., The Transformation of Equity, Essays in Legal History 287–90 (1913)Google Scholar; also see Holdsworth, , The Early History of Equity, 13 Mich. L. Rev. 293–96 (1915)CrossRefGoogle Scholar.
19. See Barton's Introduction, xxxv, Doctor and Student, supra note 4.
20. Y.B. Trin, 9 E. 4, fol. 14, para.9.
21. See Barton, supra note 19 at xliv-li.
22. 27 Ed. III, St.I, c.1.
23. 4 Henry IV, c.23.
24. Sir Coke, Third Institute 124-25 (n.d.).
25. I Ch. Rep.I (1615).
26. See SirHoldsworth, W., I A History of English Law 461–63 (7th ed. 1956)Google Scholar.
27. Their report is set out with comments at the end of the first volume of the Reports in Chancery.
28. Per Ipsum Regem 18, July 14, 1616, 1 Ch. Rep. 49.
29. The controversy was not entirely forgotten even in the 18th Century. See Holdsworth, supra note 26, at 460-69.
30. St. German was born in Shilton in Warwickshire about 1460. He was the only son of the four children born to Henry St. German, a knight, and Anne, daughter of Thomas Tyndale. The rest of this history is generally taken from Anthony Wood's Athenae Oxonienses (1813).
31. When he died, he left a library that was said to have exceeded anyone in his profession. Le Van Baumer, supra note 6, at 631. See Barton's Introduction, supra note 19, at xi.
32. This meant he could dispute before benchers of the Middle Temple and could practice in any court of law (except the Common Pleas when sitting in banc), as long as he could obtain clients. Public record indicates that he attended parliaments of the Middle Temple, except in Hilary term of 1S02, until Trinity term 1511. It appears that St. German retired from the formal practice of law shortly thereafter.
33. See Guy, J.A., Christopher St. German on Chancery and Statute 11–13 (1985)Google Scholar.
34. Id at 16-17.
35. Id. at 19-55.
36. The first edition of the revised English version is not dated, but would seem to have appeared a little before the publication, in English, of the second dialogue in 1S30. This is based on the assumption that in the edition of 1530 the reference to “our first dialogues” (Doctor & Student, supra note 4, at 1-76) is not an error of the printer.
37. St. German notes the source of property law as the Bible. For as it says in Exodus, xx. 17: “Thou shalt not covet they neighbor's house, nor his ox, nor his ass” & c. without saying what is or not my neighbor's house or thing, it is English law that says which house or thing is mine, and which my neighbor's. Doctor and Student, supra note 4, at 2-5.
38. Doctor and Student, supra note 4, chapter xli of the first version.
39. Id. at 273-75.
40. Id. at 2-3.
41. Id. at 176-77.
42. St. German did for English common law what, a generation or so later, John Jewel and Richard Hooker did for the Anglican church. See Holdsworth, supra note 15, at 296-97. See also Vinogradoff, , Reason and Conscience in Sixteenth-Century Jurisprudence, 91 L. Q. Rev. 373–84 (1908)Google Scholar; Thorne, , St German's Doctor and Student, Essays in English Legal History 211 (1985)Google Scholar; Holdsworth, W., St. German, More, Ellesmere and Bacon, Some Makers of English Law 94 (1938)Google Scholar.
43. See Barton, supra note 19, at xlvi.
44. Guy, supra note 33, at 20.
45. Id. See also Vinogradoff, supra note 42, at 377-79.
46. Id. See also Rueger, , Gerson's Concept of Equity and Christopher St. German, 3 Hist. Political Thought 1–30 (01, 1982)Google Scholar.
47. See Barton, supra note 19, at xliv-xlviii. For St. German's exposition of the eternal law, the law of nature and the law of God, see Doctor and Student, supra note 4, at 8-25.
48. Barton, supra note 19, at xlvii.
49. The words not reproduced in St. German's English version, which are italicized in the Selden Society edition, are enclosed in square brackets. Doctor and Student, supra note 4, at 76-77.
50. Deriving substantially from the ecclesiastical practice in conscience, the writ of subpoena requires the party to whom it was addressed to appear before the Chancellor to answer what should be objected against him. See Barton, , Equity in the Medieval Common Law, Equity in the World's Legal System 144–49, (1973)Google Scholar, see also Coing, , English Equity and the Denunciatio Evangelica of the Canon Law, L. Q. Rev. 223 (1955)Google Scholar. Coing argues that the denunciatio evangelica of the canon law must be considered as the model on which the medieval Chancellors worked. Id. at 230.
51. This ambiguity may indeed reflect a more accurate picture of contemporary English practice. Barton, supra note 19, at xlvii. For a discussion of the rivalry between the commonlaw courts and Chancery during Wolsey's tenure as Lord Chancellor (1515-1529), see GUY, supra note 33, at 66-71.
52. Doctor and Student, supra note 4, at 77.
53. Concerning matters in conscience wherein proof is lacking, see Barton, supra note 19, at xxxv-xxxvi.
54. Doctor and Student, supra note 4, at 79.
55. Id. at 80-83 (quoting The Doctor in chapter xiii).
56. Id. at 86-95. The Doctor notes the deviation of the word conscience, which in Latin is called conscientia, is compounded of this preposition, cum, that is to say in English “with,” and with this noun scientia, that is to say in English “knowledge,” and so conscience is as much as to say a knowledge of one thing with another thing.
57. Id. at 94-99.
58. Doctor: … As if a man make a vow that he will never eat white meat and after it happeneth him to come there where he can get none other meat. In this case it behooveth him to break his vow for that case is excepted secretly from his general vow by this equity. …
Id. at 96-97. This example also appears in the discussion of the Carthusian vow of abstinence from meat in Gerson's tract De Non Esu Carnium Apud Carthusienses. See Rueger, supra note 46, at 14.
59. Doctor: … Also if a law were made in a city that no man under the pain of death should open the gates of the city before the sun rising, yet if the citizens before that hour fleeing from their enemies come to the gates of the city and one for saving of the citizens openeth the gates [before the hour appointed by the law:] yet he offendeth not the law. For that case is excepted from the said general law by equity as said before. And so it appeareth that equity rather followeth the intent of the law.
Doctor and Student, supra note 4, at 99-101. This example also appears in St. Thomas Aquinas' Summa Theologiae, Ia2ae. 96, 6.
60. Student: … Also notwithstanding the statute of Edward the third made the twenty-third year of his reign, whereby it is ordained that no man upon pain of imprisonment should give any alms to any valiant beggar that is well able to labour. Yet if a man meet with such a valiant beggar in so cold a weather and so light apparel that if he have no clothes he shall not be able to come to no town to have succour, but is likely rather to die by the way, and he therefore giveth him apparel to save his life, he shall be excused of the said statute by such an exception of the law of reason as I have spoken of.
Doctor and Student, supra note 4, at 99-101. This example appears in part in Hobbes' Dialogue, supra note 5, at 37.
61. Student: First it is to be understood there be in many cases divers exceptions from the general grounds of the law of the realm by other reasonable grounds of the same law whereby a man shall be helped in the common law. …
… And in all these cases the parties shall be helped in the same court and by the common law. And thus it appeareth that sometime a man may be excepted from the rigour of a maxim of the law by another maxim of the law. And sometime the rigour of a statute by the law of reason and sometime by the intent of the makers of the statute.
Doctor and Student, supra note 4, at 101, 103.
62. Id. at 103.
63. Id. at 102-03.
64. See Prall, , The Development of Equity in Tudor England, Am. J. Legal Hist. (1964)Google Scholar, Gray, , The Boundaries of the Equitable Function, 20 Am. J. Legal Hist. 192 (1976)CrossRefGoogle Scholar.
65. Doctor and Student, supra note 4, at 104-05.
66. It seemeth that if it were ordained by statute that there should be no remedy upon such equities [nor upon any other matter in conscience whatsoever] in the Chancery nor in none other place, but that every matter should be ordered only by the rules and grounds of the common law [and that there should be no recourse to any remedy outside it] that that statute were against right and conscience.
Id. at 106-07.
67. Id.
68. Although, as Professor Guy has suggested, the Chancery appears to have operated as an irregular court of appeal under Wolsey, the issue of Chancery's right to review final judgments was left simmering until the great debate between Coke and Ellesmere in the early seventeenth century. Guy, supra note 33, at 68.
69. Doctor and Student, supra note 4, at 109.
70. Id. at 112-13.
71. Hobbes was the second son of the Vicar of Charlton and Westport. At the age of four he was sent to school in Westport Church, by the age of six was learning Latin and Greek, and at the age of fourteen he entered Magdalen Hall, Oxford. Upon completion of his bachelor's degree at the end of 1607, he entered the services of William Cavendish, Baron Hard wick, and afterwards Earl of Devonshire, whose family remained patrons for the rest of his life. During the course of his continental travels as a tutor, first with the Earl's son and then with his grandson, he became acquainted with many of the great minds of that age, including Galileo and Descartes.
72. De Montmorency, , Thomas Hobbes, Great Jurists of the World 195 (Macdonell, J. ed. 1914)Google Scholar.
73. John Aubrey's Brief Lives reports:
The Lord Chancellour Bacon loved to converse with him. He assisted his lordship in translating several of his Essayes into Latin, one, I well remember, is that the Greatness of Cities: the rest I have forgott. His lordship was a very contemplative person, and was wont to contemplate in his delicious walkes at Gorambery, and dictate to Mr. Thomas Bushell, or some other of his gentlemen, that attended him with inke and paper ready to sett downe presently his thoughts. His lordship would often say presently his thoughts. His lord would often say that he better like Mr. Hobbes's taking his thoughts, then any of the other, because he understood what he wrote, which the others not understanding, my Lord would many times have a hard taske to make sense of what they writt. Aubrey, J., Brief Lives (1949)Google Scholar.
74. Referring to Hobbes' Dialogue, John Dewey said, “But Hobbes is most explicit (about his views on written law) in a work, too infrequently made use of by historians of philosophy.” See Dewey, , The Motivation of Hobbes's Political Philosophy, Thomas Hobbes in His Time 19 (Ross, R.et al. eds. 1974)Google Scholar.
75. John Aubrey gives the following account of the motivation behind the writing of the dialogue:
In 1664, I sayd to him “Me thinkes ‘tis pitty that you have such a cleare reason and working head did never take into consideration the learning of the laws’; and I endeavoured to perswade him to it. But he answered that he was not like to have life enough left to goe through with such a long and difficult taske. I then presented him the lord chancellor Bacon's Elements of the Lawe (a thin quatro), in order thereunto and to draw him on … but afterwards it seemes, in the countrey he writt his treatise De Legibus of which Sir John Vaughan, Lord Chiefe Justice of the Common Pleas, had a transcript, and I do afflrme that he much admired it.
Aubrey, supra note 73, at 341. Bacon's Elements of the Law are better known as Bacon's Maxims. Although they may have served to inspire Hobbes to write on the subject of English Law, there appears no striking, thematic similarity between Hobbes Dialogue and Bacon's Maxims.
76. See supra note 73.
77. In his letter of February 21, 1615, to King James in reference to Coke's attack on the Chancery concerning the praemunire in the King's Bench, Bacon (then Attorney General) said:
On the other side, this great and public affront, not only to the reverend and well deserving person of your chancellor, and at a time when he was thought to lie on dying, which was barbarous, but to your high court of chancery, which is the court of your absolute power, may not, in my opinion, pass lightly, nor end only in some formal atonement, but use is to be made thereof for the settling of your authority and strengthening of your prerogative according to the true rules of monarchy.
5 The Works of Francis Bacon 381 (Montagu, B. ed. 1824)Google Scholar. Joseph Cropsey has gone so far as to suggest that, “Hobbes seems to have appointed himself the heir of his old master's law, and Hobbes' controversy with the dead Coke is the continuation of Bacon's. See Cropsey, J., Introduction to Hobbes's Dialogue 12 (1971)Google Scholar.
78. Cropsey suggests, however, that it is not unlike Hobbes to reflect on the grounds of the late Revolution, as evidenced in Hobbes's reflections in Behemoth. Id. at 13.
79. Hobbes, supra note 5, at 3.
80. As Holdsworth noted, the common law in the seventeenth century relied upon medieval sources in which the supremacy of law over the organs of state power were not infrequently cited. During this period, many of the medieval legal classics were published and new books on the common law were written which served to reinforce faith in the wisdom of generations of lawyers. See W. Holdsworth, supra note 26, vol. 5 at 378-433.
Undoubtedly, St. German's Doctor and Student was among the major works circulating during this time which served to support the late medieval view of the common law. Not only is the Doctor and Student cited in Hobbes' Dialogue, it is frequently cited in Edward Hake's Epieikeia and in SirDodderidge's, JamesThe English Lawyer (1631)Google Scholar. Lord Keeper John Williams (Lord Chancellor after Francis Bacon) is reported to have spent four years in Ellesmere's household where he studied St. German's Doctor and Student, Littleton's Tenures, and various “other Compliments of that Profession” under the Lord Chancellor's guidance. See Thomas, , James I, Equity and Lord Keeper John Williams, XCI The Eng. Hist. Rev. 524 (1966)Google Scholar.
81. See Olafson, , Thomas Hobbes and the Modern Theory of Natural Law, IV J. Hist. Phil. 15 (1966)CrossRefGoogle Scholar. Olafson argues:
First of all, there can be no doubt that Hobbes flatly rejected the Thomistic view that substantive moral guidance is available to human beings in the form of certain necessary truths of practical reason by reference to which conflicts of interest could at least in principle be resolved even in a state of nature.
Id. at 20. In support of this argument he refers to Hobbes's description of the state of nature found in Hobbes' Dialogue 3 (1839-1845).
82. [A]nd I agree with Sir Edward Coke, who … says that reason is the soul of the law; and upon section 138, nihil quod est contra rationem, est licitum; that is to say nothing is law that is against reason; and that reason is the life of the law, nay the common law itself is nothin else but reason; and upon section 21; aequits est perfecta quaedam ration, quae just scriptum interpretatur et emendat, nulla scripture comprehensa, sed solum in vera ratioe consistens.
83. The Philosopher continues in this passage:
There is no reason in earthly creatures, but human reason. But I suppose that he means, that the reason of a judge or of all the judges together without a King, is that summa ratio, and the very law: which I deny, because none can make a law but he that hath the legislative power. That the law hath been fined by grave and learned men, meaning the professors by law, is manifestly untrue; for all the laws of England have been made by the kings of England, consulting with the nobility and commons in parliament, of which not one of twenty was a learned lawyer.
Lawyer: You speak of the statute law, and I speak of the common law.
Philosopher: I speak generally of law.
Emphasis added. T. Hobbes, supra note 5, at 4-5.
84. The full argument reads:
Lawyer: … This distribution is justice, and this properly is the same which we say is one's own; by which you may see the great necessity there was of statute laws, for preservation of all mankind. It is also a dictate of the law of reason, that statute laws are a necessary means of the safety and well-being of man in the present world, and are to be obeyed by all subjects, as the law of reason ought to be obeyed, both by King and subjects, because it is the law of God.
Philosopher: All this is very rational: but how can any laws secure one man from another, when the greatest part of men are so unreasonable, and so partial to themselves as they are, and they, and the laws of themselves are but a dead letter, which of itself is not able to compel a man to do otherwise than himself pleaseth, nor punish or hurt him when he hath done a mischief?
Lawyer: By the laws, I mean laws living and armed. For you must suppose, that a nation that is subdued by war to an absolute submission to a conqueror, may, by the same arm that compelled it to submission, be compelled to obey his laws. Also, if a nation choose a man, or an assembly of men, to govern them by laws, it must furnish him also with armed men and money, and all things necessary to his office; or else his laws will be of no force, and the nation remains, as before it was, in confusion. It is not therefore the word of law, but the power of a man that has the strength of a nation, that makes the laws effectual. …
Philosopher: We agree then in this, that in England it is the King that makes the laws, whosoever pens them. …
Id. at 9-10.
85. Id. at 15.
86. Id. at 25.
87. Id.
88. The Student continues:
Therefore after them that be learned in the laws of England, the said question, that is to say where the law is to be left for conscience and where not, is to be understood in divers manners and after divers rules as hereafter shall be somewhat touched.
Doctor and Student, supra note 4, at 110-13.
89. T. Hobbes, supra note 5, at 25.
90. Id.
91. Id. at 25-26.
92. Doctor and Student, supra note 4, at 12-15.
93. Id. at 30-35.
94. See Barton, supra note 19, at xii-xiv, xx-xxv. For full discussion of St. German's role in the Henrician Reformation, see J.A. Guy, supra note 33. Especially relevant is the comparison made of controversies of the reign of Henry VIII and James I. Id. at 88-89.
95. An Answer to a Letter, quoted by Guy, supra note 33, at 43-44. After quoting this portion of An Answer, Professor Guy argues that:
St. German meant to echo Fortescue's view in The Governance of England that England was less an empire than a constitutional monarchy. Moreover, the representative character of parliament was even better appreciated in St. German's day than it had been in Fortescue's. Experienced common lawyers in the 1530s had started to grasp the idea of ‘making’ law in the true sense of that term, so that the notion of imminent practical reform of the realm by parliamentary statute no longer caused much difficulty to most of them.
Id.
96. See T. Hobbes, supra note 5, at 31-32.
97. Hobbes' Philosopher observes in the Dialogue: “If judges were to follow one another's judgments in precedent cases, all the justice in the world would at length depend upon the sence of a few learned, or unlearned, ignorant men, and have nothing at all to do with the study of reason.” Id. at 86. And concerning custom, the Philosopher declares:
Now as to the authority you ascribe to custom, I deny that any custom of its own nature can amount to the authority of a law. For if the custom be unreasonable, you must, with all other lawyers, confess that it is not law, but ought to be abolished; and if the custom be reasonable, it is not the custom, but the equity that makes it law. For what need is there to make reason law by an custom how long soever, when the law of reason is eternal?
Id. at 62-63.
98. Id. at 62-63.
99. Id. at 49. Hobbes's Philosopher was not espousing a novel interpretation of this statute. This interpretation was held by Lord Ellesmere in the Earl of Oxford's Case, (I Ch. Rep. at pp. 10, IS) and by Sir Francis Bacon (then Attorney General), as Evidenced by his letter to King James, dated February 21, 1615, concerning the debate between Coke and Ellesmere. See The Works of Francis Bacon, supra note 77, at 378-83.
100. The Philosopher argues that plaintiff loses because of lack of proof, not because the equity court has no jurisdiction.
Lawyer: If the defendant wage his law in an action of debt brought upon a true debt, the plaintiff hath no means to come to his debt by way of compulsion, neither by subpoena, nor otherwise; and yet the defendant is bound in conscience to pay him.
Philosopher: Here is no preferring, that I see, of the law above conscience and equity. For the plaintiff in this case loseth not his debt for want either of law, or equity, but for want of proof; for neither law nor equity can give a man his right, unless he prove it.
The Philosopher further challenges the ability to overturn a jury verdict.
Lawyer: And if the grand jury in attaint affirm a false verdict given by the petty jury, there is no further remedy, but the conscience of the party.
Philosopher: Here again the want of proof is the want of remedy. For if he can prove that the verdict given was false, the King can give him remedy such way as himself shall think best, and ought to do it, in case the party shall find surety, if the same verdict be again affirmed, to satisfy his adversary for the damage and vexation he puts him to.
T. Hobbes, supra note 5, at 49-50.
101. Id. at 52.
102. Lawyer: … The highest ordinary court in England is the Court of Chancery, wherein the Lord Chancellor, or otherwise Keeper of the Great Seal is the only judge. This court is very ancient, as appears by Sir Edward Coke, 4 Inst. p.78, where he nameth the Chancellors of King Edgar, King Etheldred, King Edmund, and King Edward, the Confessor. His office is given to him, without letters-patent, by the King's delivery to him, of the Great Seal of England; and whosoever hath the keeping of the Great Seal of England, hath the same, and the whole jurisdiction that the Lord Chancellors ever had by the statute of 5 Eliz. c. 18, wherein it is declared, that such is, and always has been the common law. And Sir Edward Coke says, he has his name of Chancellor from the highest point of his jurisdiction, viz. a cancellando; that is, from cancelling the King's letter patent, by drawing strokes through it like a lattice.
103. Philosopher: Very pretty. It is well enough know that Cancellarius was a great officer under the Roman empire, whereof this island was once a member, and that the office came into this kingdom, either with or in imitation of the Roman government …. And afterwards, as I have read in a very good author of the Roman civil law, the number of complaints being much increased and being more than the Emperor could dispatch, he appointed an officer as his clerk, to receive all such petitions; and that this clerk caused a partition to be made in a room convenient, in which partition wall, at the heighth of a man's reach, he placed at convenient distances certain bars; so that when a suitor came to deliver his petition to the clerk, who was sometimes absent, he had no more to do but to throw his peitition between those bars, which in Latin are called cancelli.
Hobbes might have found such a description of the origins of the English Chancery in W. Camden's Britannia (1586). Camden states:
The Chancery drew that name from a chancellor, which name, under the ancient Roman Emperors, was not so great esteem and dignity, as we learn out of Vopiscus. But nowadays a name it is of the highest honour and chancellors are advanced to the highest pitch of civil dignity; whose name Cassiodorus fetcheth from cross gates, or lattices, because they examined matters within places (secretum) severed apart, enclosed with partitions of such cross-bars, which the Latins called Cancelli. Regard (saith, to a chancellor) what name you bear. It cannot be hidden, which you do within lattices. For you keep your gates lightsome, your bars open and your doors transparent as windows. Whereby it is very evident that he sat within gates, where he was to be seen on every side; and thereof it may be thought he took his name. But minding it was his part, being, as it were, the prince's mouth, eye and ear, to strike and slash out with cross lines, lattice-like, those letters, commissions, warrants, and decrees, passed against law and right, or prejudicial to the commonwealth, which, not improperly, they called to cancel, some think the name of chancellor came from this cancelling. And in a glossary of a latter time this we read. A chancellor is he, whose office it is to look into and peruse the writings of the emperor; to cancel what is written amiss, and to sign that which is well.
Quoted by Story, Justice in his Equity Jurisprudence 25 (Grigsby, W.E. ed. 1892)Google Scholar.
104. T. Hobbes, supra note 5, at 55-57.
105. Philosopher: Here again, you see the King may deny or grant any petitions in Parliament, either as he thinks it necessary, as in this place, or as he thinks it prejudicial or not prejudicial to his royalty; as in the answer of the former petition, which is a sufficient proof that no part of his legislative power, or any other essential part of royalty, can be taken from him by a statute. Now seeing it is granted that equity is the same thing with the law of reason, and seeing Sir Edward Coke (I Inst. sec. xxi) defines equity to be a certain reason comprehended in no writing, but consisting of only in right reason which interpreteth and amendeth the written law; I would fain know to what end there should be any other Equity at all, either before the Chancellor or any other person, besides the Judges of the Civil or Common Pleas? Nay, I am sure you can allege none but this, that there was a necessity for a higher Court of Equity than the Courts of common-law, to remedy the errors in judgment given the justices of the inferior courts; and the errors in Chancery were irrevocable, except by Parliament, or by special commission appointed thereunto by the King.
Id. at 60.
106. And though a judge should, as all men may do, err in his judgment, yet there is always such power in the laws of England, as may content the parties, either in the Chancery, or by commissioners of their own choosing, authorized by the King; for every man is bound to acquiesce in the sentence of the judges he chooseth.
107. Philosopher: They are the men that teach the people what is sin; that is to say, they are the doctors in cases of conscience. What reason then can you show me, why it is unfit and hurtful to the commonwealth that a bishop should be a Chancellor; as they were most before the time of Henry VIII, and since that time once in the reign of King James?
Id. at 65-66.
108. “Williams' appointment was a direct expression of James I's views on the meaning of ‘equity’ and the relationship of Chancery to the common law.” See Thomas, supra note 80, at 507.
109. According to Nicholas Underhill in his chapter entitled, The Rise of the Lawyer Chancellor, “Thomas More, who accepted the Great Seal on 29th October, 1529, is conventionally represented as the first of a new breed of Chancellor. He was a layman and trained in the common law.” See Underhill, N., The Lord Chancellor 97 (1978)Google Scholar.
110. T. Hobbes, supra note 5, at 68.
111. Yntema, , Equity in the Civil Law and the Common Law, 15 Am. J. Comp. L. 60 (1967)CrossRefGoogle Scholar.