breviated, the pleadings became, if not a component part of the decree, at least introductory to and explanatory of it. During the examinations before the Chancery Commission, a difference of opinion appears to have prevailed amongst some of the gentlemen called upon to give their evidence, as to the necessity of these statements in decrees; and one of the most experienced of the Registrars had several questions addressed to him by the Commissioners upon this particular point. From his evidence it appeared, that the Registrar's Books had been examined so far back as Sir Nicholas Bacon's time (who, I believe, was appointed about 1559); that from the most ancient times to which such examination went, the present practice of statements, or recitals in decrees, existed; and that in the oldest decrees and orders, the pleadings were interwoven with the directions;* in other words, different parts of the pleadings were introduced as prefacing different directions, although at present the entire statement is placed before the decretal, or ordering part. As the recitals or statements in decrees do not appear in the first year of Mary, but are stated to be found in decrees in the first year of Elizabeth, I presume they must have been introduced in the former reign. I have been furnished with a copy of the result of the search which was made on the occasion alluded to. It commences in 1552, and is extended to the year 1744 inclusive. It corroborates the representation made by the Registrar before the Chancery Commission, and contains, immediately after the year 1565, this remark :-" In the orders and decrees about *See p. 6, post. this time, where there is no statement previous to the ordering part of such decrees and orders, it appears that such orders and decrees are made very much in detail, and that previous to the several directions, a short preliminary statement is introduced to each direction." This paper affords some evidence of the peculiar practice of the day. I allude in particular to a decree in the year 1625, in which the Master is directed to consider the bill and answer, and to report to the Court what "he findeth confessed in the answer, and what equities"!! At all events, it may, I apprehend, be assumed that previous to Lord Hardwicke's time, the mode of drawing up decrees had become very lax, and that by the introduction of recitals or statements, much had very uselessly been added to the length of decrees. To correct this evil, it forms part of the order made by that great judge, that "in original decrees and orders made on hearing of causes, the recitals previous to the exhibits read, be of the substance and scope only of the pleadings, tending to the points in controversy upon which the decree is founded, and be made in the most concise manner, and not to contain any recitals immaterial to the points in question.' "The same order extends to other statements and recitals. (Ord. Ch. Ed. Beam. 381, &c.) Such has been the beneficial effect of this regulation, which came into operation under the eye of Lord Hardwicke himself, that no material alteration, beyond that which necessarily flows out of the increased length of modern pleadings, appears to have taken place since the year 1743, when the order was promulgated. (Chanc. Com. p. 382.) This observation must, however, be understood as applied to the statements or recitals in decrees. *See p. 6, post. With respect to their ordering or judicial parts, the decrees of the present day are, generally speaking, far less explicit and much less in detail than were the decrees some time before, and even so late as, the period of Lord Hardwicke. "I copied," says Chief Baron Alexander, "when I was a young man in the profession, a set of decrees made in the time of Fortescue, when he was Master of the Rolls, and many of my Lord Hardwicke's time, and in them there were full directions; but what the origin of that was I cannot say it is certainly a very ancient course of direction. There are in that collection many decrees in which they pursue the thing throughout, so as almost to render any application to the Court for further directions unnecessary; whereas certainly the modern decrees are quite of a different stamp;" and he afterwards adds, that "Sir Thomas Sewell gave very particular directions in the old form; I think after him it ceased at the Rolls."(Chanc. Com. p. 346.) An instance of the minuteness of the directions given by Sir Thomas Sewell is to be found in Mr. Blunt's valuable edition of Ambler, being the decree, taken from the Registrar's Book, in the cause of Price v. Fastnedge. Ambler, p. 686. * * See p. 37, post. |