xxxiv The First Century of the Court of Chancery.
and other instruments were to be issued in the name of the Lord Proprietary
and not in the name of the King. It was further provided that all civil causes
in any other court in which any judge (unless he be the Governor) of that court
was a party, should be tried in the Court of Chancery (Arch. Md., 1, 49-50).
Although the act for erecting a Court of Chancery failed of passage for the
reason just given, it seems certain that the provisions of the bill were an expres-
sion of the lines along which equity jurisdiction was then developing in the
Province and that it continued to develop along these same lines.
At the session of July, 1642, however, “An Act for Rule of Judicature”
was passed. This act, which did not go into details of court organization,
declared as to equity that” right and just shall be determined according to equity
and good conscience * * * according to the law of the Province, or in defect
of certain Law then they may be determined according to the best discretion of
the Judge or Judges judging, as neer as Conveniently may be to the laudable
law or usage of England” (Arch. Md., i, 147). It has been said by Bernard C.
Steiner that the distinction between law and equity was recognized in Maryland
from the early settlement in a way that was not to be found in the other colonies
(Maryland's First Courts, Amer. Hist. Assoc. Report 1901, p. 227).
Although the jurisdiction of the court was similar to that of the High Court
of Chancery of England, the organization and form of the Maryland court
differed widely from the English court as we find it at the time of the founding
of Maryland. While all writs were issued under the seal of the Chancellor in the
name of the Proprietary, and the authority of the Chancellor as Keeper of the
Great Seal was similar to that of the English Chancellor, the Maryland Court of
Chancery at this period in its judicial capacity was not a one-man court where
causes were heard and decided by the Chancellor as in the English court. Nor
need we concern ourselves here with the view held by some, that the English
Chancery should not be considered a one-man court because of the fact that the
Chancellor regularily referred cases before him for advice to the various mas-
ters in Chancery, of which there were twelve attached to the court, and at
least one of whom, the Master of the Rolls, had definite, although limited,
judicial functions. The general conception of the court, however, certainly
was, that the Chancery was the court of the Chancellor alone. The Chancellor
of Maryland during the seventeenth century, unless he was at the same time
Governor, did not even preside in the Court of Chancery except in the Gov-
ernor's absence, ana his vote counted for no more than did that of any other
associate member of the court.
To find the English prototype of the Maryland Court of Chancery as it
appears in the seventeenth century we must go back to the medieval Chancery
Court of England when it was merely a committee of the King's Privy Council,
and at a somewhat later date to the Court of Chancery of the Palatinate of
Durham, as it was found at the beginning of the sixteenth century. It will be
recalled that the Maryland Charter gave to the Proprietary all the powers then
exercised, or which ever had been exercised, by the Bishop of Durham. On
account of its exposed position on the borders of Scotland and its distance from
London, the broad powers of a count palatine had been conferred upon the