Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/229

 7. SCRUTTON: ROMAN LAW INFLUENCE 215 clerk j^ until the end of Wolsey's Chancellorship in 1530 only a few lay holders of the office are found, and up to that year 160 Ecclesiastics had held the office. ^ In this clerical prepon- derance, the advantages of the Civil la w^ familiar to the Chancellors by their early training, and as the system in use in the ecclesiastical Courts, are obvious. But the laws of Rome had a further foothold in the Chancery, There were 1^, afterwards 6, Clerks de prima forma ^ and Masters of the Chancery, who " are assistants in the Court to show what is the Equity of the Civil law, and what is Conscience."^ Down to the time of Lord Bacon some of the Masters learned in the Civil law sat upon the Bench with the Chancellor to advise him, if necessary. The author of the " Treatise on the Masters " states that " the greater part have always been chosen men skilful in the Civil and Canon laws," in order that the decisions of the Chancellor may accord with " Equity, jus gentium, and the laws of other nations," seeing that a number of matters came before the Chancellor " which were to be expedited not in course of common law, but in course of civil or canon law."* And though the Chancellors became laymen and decided without reference to the Masters, their system was still largely clerical and Roman. Under Charles I. it was ordered that half the masters in Chancery should always be Civil lawyers, and that no others should serve the king as Masters of Request. Duck,^ writing in 1678 says: " Judicia apud Anglos, in Curiis quae non ex mero jure Anglicano, sed ex aequo et bono exercentur, cum jure civili Romanorum plurimum conveniunt ; quarum suprema Canoellaria prima est. . . . Cancellarii au~ tern feres omnes fuerunt Episcopi aut Clerici, plerumque legum Romanarum periti usque ad Henricum VIII. quo D, » Spence, i. 340-7, 356 note. • Apparently a term of Roman origin. (Hargreaves, Law Tracts (1787), p. 296.) The conferring of the office by placing a cap on the • head is compared by the author of this Tract, (probably a master in Chancery, writing about 1600), to the conferring of the freedom of a Roman city by putting on a cap, or to " capping " a doctor at the Universities (p. 294). But the custom is not traced to these sources, as Spence says, i. 360. • Sir T. Smith, Commonwealth of England, ed. 1663, p. 121. Spence, i. 360, note. • Hargreaves, pp. 309, 313. •!!. 8, 3; 10-11.