stitutions from appearing as advocates in foro sæculari1, although they continued to act as judges there till a later period. The laity were then left to find among themselves persons qualified to be advocates, and hence the institution of the inns of court, and ultimately the present division of professional labour.

But the clergy only retired from the Common Law Courts to renew the fight in another and more extensive field, which they exclusively retained. They still kept possession of the office of Lord High Chancellor (under whom the Court of Chancery gradually rose into consequence), which was almost invariably held by a churchman down to the time of Sir Thomas More in 1530, and frequently after that period down to the year 1625, since which time the Great Seal has been always held by a lawyer. This long dominion in the Court of Chancery gave the clergy great power and importance, and enabled them by degrees to model the process of the Court at their own discretion. And there seems every reason to believe that the clergy acted here as advocates, besides unquestionably monopolising the other important offices of this Court as Masters in Chancery, and acting exTours under Pope Alexander III., it was ordained 'quod post votum religionis nullus ad physicam vel ad leges mundanas legendas permittatur exire.'” But the "votum religionis " here spoken of appears to be the monastic vow, and not the less rigorous engagement of the secular clergy, and "legendas" seems to refer to public lectures rather than to forensic practice. See Serjeant Manning's learned Report of the Serjeant's case, 171. It clearly would not and did not apply to conveyancing.

There can be no doubt, however, that at this period the clergy were by far the most competent advocates, and after the Norman conquest, when litigation was principally conducted before judges appointed by the King, the ecclesiastics received large fees by the practice of advocacy before the courts of law. Indeed, they devoted themselves, somewhat to the scandal of the body, to the study of the law in preference to that of divinity and other more fitting studies, and were thus open to Papal rebuke. (2 Palgrave's Eng. Commonwealth, 386. Matt. Paris, 759, 760.) They were indeed with the greatest difficulty driven from the practice of advocacy, as is shown by the familiar story of Serjeant William Bussy, A. D. 1259, quoted from M. Paris by Blackstone, who being called to account for his knavery claimed the benefit of his clergy, which till then remained an entire secret, and to that end, voluit ligamenta coifæ suæ solvere et palam monstraret se tonsuram habere clericalem; and hence Sir H. Spelman conjectures (Glossar. 335.), that coifs were introduced to hide the tonsure of such renegade clerks as were still tempted to remain in the secular courts in the quality of advocates or judges notwithstanding their prohibition by canon. 1 Bla. Com. 24. n.

clusively as attornies and solicitors under the name of the Six Clerks and Sworn Clerks. 1

There was also another important branch of the profession almost exclusively in the hands of the clergy down to a very late period of our history. The laity might talk, and some few of them might be able to read, but the priest could write and waved his pen at them in defiance. From an early period all the charters and other written documents had been exclusively prepared by the clergy, for the simple reason that the art of writing was known to them alone. In all cases, then, in which writing was employed, either in the transfer or devise of property, the assistance of the priest was absolutely essential. The great early assurance of land was the feoffment, to which writing was not rendered necessary until the reign of Charles II.2; the livery of seisin which was essential to it, being considered notice to all men, and which mysterious ceremony was manageable by the capacity of lawyers who could not sign their names. But that part of the profession who could, the clergy, never relished this public mode of transfer, and to them and to their ingenuity are to be ascribed most of those convenient but secret dealings with property which now go under the general names of deeds and wills. It cannot be doubted that all the transactions which formed the first attempts of conveyancing to develope itself were from the earliest period under the superintendance, and were in fact actually prepared by the clergy. This fact is however not a little curious, and as it has led to important and interesting results, we shall here enter a little into detail.

The earliest conveyancers were no doubt the Druids, who alone possessed the art of writing when the use of letters was reckoned dishonourable by all the barbarous nations of Europe. One of the most ancient and inviolable laws of the Britons of which we have any information, is that which forbad the committing their laws to writing. But the Druids, while they had no objection that all others should remain ignorant of and even despise the art of writing, took

4

1 Spence's Abuses of the Court of Chancery, 1839, p. 6. and post, p. 393. 2 29 Car. 2. c. 1. (The Statute of Frauds.) The origin of the feoffment seems referrible to Saxon times. See 1 Reeve, Hist. C. L. p. 10.

3 Ælian, Varior. Hist. 1. 8. c. 4.

4 Cæs. de Bel. Gal. 1. 6. cc. 13, 14.

care to be acquainted with it themselves. The letters which they used were probably those of the Greek alphabet', which the Druids of Gaul learnt from the Greek colony at Marseilles; and Strabo expressly says, that they wrote all their contracts and deeds in Greek letters.2 There is no reason to suppose that the British Druids were inferior to their Gaulish brethren in any thing; and we may therefore conclude, that the letters of the Greek alphabet were used by the Britons in writing contracts, treaties, and other important deeds, before they were invaded and conquered by the Romans. By that conquest the Roman letters were introduced, and from thenceforward continued to be universally used in such matters.

3

On the invasion of the Anglo-Saxons, it is most probable that they were strangers even to the most simple mode of disposition, that by will1; but after they had possessed themselves of Great Britain, they soon became acquainted with and adopted this method of conveying their estates, which had been established by the Romans and practised by the Britons; and thus the most ancient Anglo-Saxon testaments that have been preserved are agreeable to the Roman forms", and it became the custom for the bishop or other priest to make all wills, in which they did not forget to take especial heed to the interests of the Church.

6

The clergy being once possessed of this power took good care to retain it, and in this they had of course no difficulty so long as the art of writing remained exclusively known to them. 7 It was indeed one of their great holds of the

1 Cæs. ubi sup. Speaking of the Gauls, Cæsar says, "Publicis privatisque rationibus, literis Græcis utantur," lib. 6. c. 14. Hottiman rejects the words, Græcis, but Dr. Clarke has preserved it. See Wynne's Eunomus, 216. 5th ed. 2 Strabo, 1. 4. p. 181. cited by Henry, vol. ii. 58. 2d ed.

3 Henry, vol. ii. p. 59.

Henry, vol. iii. p. 403.

5 Hickes's Diss. p. 50-63. 6 Murat's Antiq. t. v. 654. Henry, iii. 405. 1 Hallam's Middle Ages, 511. 7 Down to the end of the thirteenth century, it was not usual for a person to be able even to sign his name, and, before the use of seals, charters were subscribed with a cross. A few signatures to deeds appear in the fourteenth century; in the next they are more frequent. The Emperor Frederic Barbarossa could not read; and Charlemagne, it is to be feared, could not write. See the authorities for these and other illustrious instances cited, 2 Hallam's Mid. Ages, 351. 8th ed. Seals were introduced by Edward the Confessor, (1 Reeve, Hist. C. L. p. 10.) who appears by those extant bearing his effigy to have had a most formidable pair of mustachios.

people. During the whole of the Anglo-Saxon, Danish, and Norman periods of our history the clergy were absolutely necessary to the people in most of the ordinary transactions of life. All instruments in writing, whether of sale, gift, or exchange inter vivos, and all testamentary dispositions, were of necessity drawn up by a priest or a monk, and in some charters this is expressly mentioned. Among the archives of the monasteries were to be found precedents for all the usual transactions and dealings with property, and the copies of the Church Bibles were not unfrequently employed as the most effectual repositories for transcribing private charters.2 This power was sometimes grossly abused, and as if their means of accumulating what they could not legitimately enjoy were insufficient, the monks prostituted their knowledge of writing to the purpose of forging charters in their own favour.3

Not only were the clergy the conveyancers of that day in knowledge, it seems certain that they acted as the paid servants of the public in this respect. Our early kings had their conveyancers, (as now Her Majesty has her attorney and solicitor-general,) an important station held by the king's priests or chaplains similar to the "clerks of the palace" of continental sovereigns. Their signatures were affixed to the royal charters with a notice of their station, and we find eleven of these clerks together with the twelfth, the chancellor, subscribing a charter of William Rufus. The chaplain or clerk was also attached to all large establishments, being the only person in the household who could use his pen. In the exercise of these functions it cannot be supposed that they were not liberally remunerated. "Their office," says Sir F. Palgrave, speaking of the clerks of the chapel, "was 1 Palgrave's English Commonwealth, vol. ii. p. 204. Kemble's Anglo-Sax. Chart. vol. i. 65. 92.

66

2 Hickes's Diss. Epist. pp. 9. 30. Sir F. Palgrave says, Conveyances of land as employed among the Teutonic nations settled upon Roman ground, were almost exclusively prepared by the clergy, and as the clergy constituted but one body throughout all Christendom, a general uniformity of style was soon introduced. All the monks of Latin Europe were virtually bred in the same college. The members of the Church were constantly in migration from province to kingdom, and a good precedent carefully settled at Monte Casino was rapidly transmitted to the Scriptorium at Worcester or at Canterbury.” vol. ii. 204. 31 Hallam's Mid. Ages, 503. 8th ed. Palgrave, vol. ii. 204, 205. 4 Palgrave's English Commonwealth, vol. i. 178, 179. 651.

merely ministerial; no authority had yet been delegated to them by the King, but the suitor might find the quill did not glide smoothly over the vellum which contained an ungrateful name, and the wax would melt more readily to oblige a friend. The chaplains also were shrewd and learned clerks; they could not make the grant, but their advice might influence the King's irresponsible discretion.1”

It might be well for chaplains and other clerical persons thus to practise on their own account. The monks and ecclesiastical bodies had higher aims and objects: they were not usually satisfied with that portion of the value of the property conveyed which comes into the pocket of the conveyancer in the shape of his fee: they coveted and obtained a much larger portion to be employed to pious uses, and on these occasions they no doubt kindly drew the deed for nothing. Indeed, we are inclined to think some knowledge of law, and more especially conveyancing, was an essential part of the education of the priest; hence the familiar proverb, nullus clerus nisi causidicus. The statutes of mortmain interfered from time to time with these benevolent but perhaps not strictly professional practices.2 The struggle to evade them, however, led to most important results. If it is to the priest that we are to ascribe some of the subtleties and intricacies of the art and mystery of conveyancing, we must not forget that we are indebted to him (although perhaps unintentionally, except for selfish ends) for removing the restraints on the alienation of property, by the invention of common recoveries, and the introduction of the doctrine of uses (the foundation of modern conveyancing), and thus giving the means of escape from the hurtful fetters of the system of feudal tenures. perfecting the invention of uses they had a friend at hand in the Court of Chancery, in the person of the clerical Judges of that Court, and more especially in John of Waltham, Mas1 Palgrave's English Commonwealth, i. 652.

In

2 The mortmain laws were enacted not only from the jealousy of the great power of the religious bodies, but with a view of preserving to the lord, and to the king as the chief lord, the advantages and incidents of tenure. That too much stress has been placed by modern writers on the first reason for their origin is clearly shown by Mr. Burge and Sir F. Palgrave in their evidence before the Mortmain Committee (1844), an inquiry of much interest.

3" I shall not scruple," observes an agreeable writer, "to say, that much of the conveyancing now in force was originally the offspring of fraud and evasion.” Eunomus, 217. 5th ed.