Chancellor in his own court, which I ought to notice. In conjunction with the common-law judges, he is a guardian of personal liberty; and any one unlawfully imprisoned is entitled to apply to him for a writ of HABEAS CORPUS, either in term or in vacation. So the Chancellor may at any time grant PROHIBITIONS to restrain inferior courts from exceeding their jurisdiction, though he listens with reluctance to such motions when they may be made to the King's Bench, whose habits are better adapted to this sort of business.

The Chancellor has an exclusive authority to restrain a party from leaving the kingdom, where it appears that he is purposely withdrawing himself from the jurisdiction of the court, to the disappointment of honest creditors. This is ef fected by the writ "ne exeat regno," issuing under the Great Seal; a high prerogative remedy, which, as it affects personal liberty, is granted with great circumspection, particularly where foreigners are concerned.d

It is the province of the Chancellor to issue a writ under the Great Seal "de coronatore eligendo," directed to the sheriff, and requiring the freeholders of the county to choose a coroner.* He also decides in the Court of Chancery questions arising as to the validity of the election.' And upon complaint against a coroner for neglect of duty, or upon an allegation of incapacity, as from being confined in prison, or of incompetency, as from mental derangement or habits of extreme intemperance, the Chancellor may remove him from his

office.g

Anciently the Chancellor took cognizance of riots and conspiracies, upon applications for surety of the peace; but this criminal jurisdiction has been long obsolete, although articles of the peace still may be, and sometimes are, exhibited before him.h

The Chancellor had a most important jurisdiction in Bank ruptcy, which arose partly from the commissions for distributing the effects of insolvent traders being under the Great Seal, and partly from the powers directly given to him by act of parliament. The proceeding is here generally by Petition, in which case there is no appeal; but on questions of difficulty

b Crawley's Case, 2 Swanst. 6.

c Per Lord Redesdale, 2 Sch. & Lef. 136. See 4 Inst. 81; 2 P. Wms. 202.

d De Carriere v. Calonne, 4 Vess. 577. See Beames' Writ Ne exeat regno, and Beames' Chancery Orders, p. 39.

e F. N. B. 163; 1 Black. 347.

f Ke Coron. Co. Stafford, 2 Russ. 475. 8 Ex parte Parnell, 1 Jac. & W. 451; Ex parte Pasley, 3 Drur. & War. 34.

h Tunnicliffe v. Tunnicliffe, A.D. 1823; Williams v. Williams, A.D. 1841.

the Court makes its equitable machinery ancillary to this summary jurisdiction; and, a bill being filed, the matter may be carried to the House of Lords. The weight of this branch of business, which was at one time nearly overwhelming, has been greatly lightened by the appointment of permanent Commissioners and Vice-Chancellors; but the Chancellor still retains a general superintendence over bankruptcy.

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this

It has been a common opinion that the Chancellor has no jurisdiction whatever in Lunacy by virtue of his office, and that this jurisdiction is entirely derived from a special authority under the royal sign manual, which might be conferred on any one else. But I clearly apprehend that a commission “de idiota,” or "de lunatico inquirendo," would issue at common law from the Court of Chancery under the Great Seal, and that the Lord Chancellor, without any special delegation for purpose, would have authority to control the execution of it, and to make orders for that purpose. The sign manual takes its origin from stat. 17 Edw. 2, c. 9, by which the rents and profits of the estates of idiots are given to the Crown, and form part of the royal revenue. During the existence of the Court of Wards and Liveries, the management of the estates of idiots and lunatics was intrusted to it, and since has been delegated to the Chancellor. Being a fiscal matter, the warrant is countersigned by the Lord High Treasurer, or Lords Commissioners of the Treasury.

So much may for the present suffice respecting the forensic character of the Lord Chancellor; and I now proceed to give a rapid sketch of his other functions.

It is said by Selden that the Chancellor is a privy councillor by virtue of his office; but this can only mean that he is entitled to offer the king advice, as any peer may do ;-not that by the delivery of the Great Seal to him he is incidentally constituted a member of the Privy Council, with the powers lawfully belonging to the office of a privy councillor; for no one can sit in the Privy Council who is not by the special command of the Sovereign appointed a member of it; and, as far back as can be traced, the Lord Chancellors who were not privy

i I was obliged to investigate this matter during the short time I had the honour to hold the Great Seal of Ireland. By an oversight, the usual warrant under the sign manual respecting lunatics had not in the first instance been delivered to me, but I found that I might safely make some orders

in lunacy before I received it. On such matters, perhaps, the appeal ought to be to the House of Lords, although the appeal respecting others comprehended in the special delegation be to the Sovereign in Council. See 3 Bl. Com. 48, 427; Story's Equity, ii 542; In Re Fitzgerald, 2 Sch. & Lef. 432, 151,

councillors previous to their elevation have been sworn of the Privy Council, like other great officers of state.

He certainly is ex officio Prolocutor or Speaker of the House of Lords, whether he be a peer or not. Without any commission or express authority for the purpose, he always presides there when present. This privilege is said to belong to him by prescription, and he has enjoyed it many centuries, although in the reigns of Richard I., John, and Henry III. (within time of legal memory) it was exercised by the Chief Justiciar. The Crown may by commission name others to preside in the House of Lords in the absence of the Chancellor; and, no speaker appointed by the Crown being present, the Lords of their own authority may choose one of themselves to act as speaker,-which they now often do in hearing appeals ;-but all these speakers are immediately superseded when the Chancellor enters the House."

m

By 25 Edw. 3, c. 2, to slay him in the execution of his office is high treason. By 31 Hen. 8, c. 10, he has precedence above all temporal peers, except the king's sons, nephews, and grandsons, whether he be a peer or a commoner. If he be a peer, he ought regularly to be placed at the top of the dukes' bench, on the left of the throne; and if a commoner, upon the uppermost sack in the parliament chamber, called the Lord Chancellor's woolsack." n For convenience, here he generally sits, though a peer, and here he puts the question, and acts as prolocutor; but this place is not considered within the House, and when he is to join in debate as a peer, he leaves the woolsack, and stands in front of his proper seat, at the top of the dukes' bench.

If he be a commoner, notwithstanding a resolution of the House that he is to be proceeded against for any misconduct as if he were a peer, he has neither vote nor deliberative voice,"

k See Selden's Office of Lord Chancellor, §3. It has often been said that the Lord Mayor of London is a privy councillor by virtue of his office, but for this there is not the slightest pretence, although he is styled "right honourable," and on a demise of the Crown joins with the aldermen and other notables in recognising the title of the new sovereign.

m Lord Chief Baron Gilbert suggests that the Chancellor sits on the woolsack as steward of the King's Court Baron, and draws an ingenious but fanciful parallel between the Court Baron of a manor and the House

of Lords. Gilb. Ev. 42.-By an old standing order of the House of Lords, his constant attendance there is required.

n There are woolsacks for the Judges and other assessors, as well as for the Lord Chancellor. They are said to have been introduced into the House of Lords as a compliment to the staple manufacture of the realm; but I believe that in the rude simplicity of early times a sack of wool was frequently used as a sofa-when the Judges sat on a hard wooden BENCH, and the advocates stood behind a rough wooden rail, called the BAR. • From the manner in which the journals

and ne can only put the question, and communicate the resolutions of the House according to the directions he receives.P

From very early times the Chancellor was usually employed on the meeting of a new parliament to address the two Houses in the presence of the King, and to explain the causes of their being summoned,—although this was in rare instances done by the Chief Justice of the King's Bench, and by other functionaries.

Whether peer or commoner, the Chancellor is not, like the Speaker of the Commons, moderator of the proceedings of the House in which he seems to preside; he is not addressed in debate; he does not name the peer who is to be heard; he is not appealed to as an authority on points of order; and he may cheer the sentiments expressed by his colleagues in the ministry.'

On the trial of a peer for treason or felony, either before the House of Lords or before selected peers when parliament is not sitting, the presidentship of the Lord Chancellor is suspended, and a Lord High Steward is specially appointed pro hac vice by the Crown. This arose from the Lord Chancellor, in early times, being almost always an ecclesiastic, who could not meddle in matters of blood. Since the Chancellor has been a`layman, he has generally been nominated Lord High Steward; but then he becomes His Grace," and presides in a different capacity. On the impeachment of commoners (which can only be for high crimes and misdemeanors) he presides as in the ordinary business of the House.

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t

The Chancellor was once a most important criminal judge, by ruling the Court of Star Chamber. Here he alone had a

are kept, it might have been inferred that the Chancellor, or Keeper of the Great Seal, though a commoner, was considered a member of the House. Thus, in the times of Sir Nicholas Bacon, his presence is recorded as if he were a peer, under the designation of "Custos Mag. Sig. ;" and the same entries continued to be made with respect to Sir N. Wright and Sir R. Henley. So, on the 22nd Nov. 1830, there is an entry in the list of peers present, " Henricus Brougham Cancellarius," but he had no right to debate and vote till the following day, when the entry of his name and office appears in the same place, "Dominus Brougham et Vaux Cancel larius."

P Lord Keeper Henley, till raised to the peerage, used to complain bitterly of being

obliged to put the question for the reversal of his own decrees, without being permitted to say a word in support of them.

9 See Elsynge on Parliaments, p. 137.

This arises from a proper distrust of a Speaker holding his office during the pleasure of the Crown, and necessarily an active political partisan; but most inconvenient consequences follow from there being no moderator in an assembly which is supposed to be the most august, but is probably the most disorderly in the world.

On the late trial of the Earl of Cardigan, Lord Denman was appointed and acted as Lord High Steward, on account of the temporary illness of Lord Chancellor Cottenham. t So settled in Fitzharris's case, temp. Car See Lives of Shaftesbury and North.

II.

right to speak with his hat on; and if the councillors present were equally divided, he claimed a double vote, whether for acquitting or convicting." While this arbitrary tribunal flourished in the plenitude of its power under the Tudors and Stuarts,-with a view to proceedings here rather than in the Court of Chancery was the Great Seal often disposed of;-hut since the abolition of the Star Chamber, the Chancellor has been released from taking any part in criminal proceedings, unless on the rare occasions of impeachments, and the trials of peers.*

Still he presides at "the trial of the Pyx," when a jury of goldsmiths determine whether new coinages of gold and silver be of the standard weight and fineness, and the Master of the Mint be entitled to his quietus.

Since the institution of justices of the peace in the reign of Edward III., instead of the conservators of the peace formerly elected by the people,-to the Lord Chancellor has belonged the power of appointing and removing them throughout the kingdom. Upon this important and delicate subject, he generally takes the advice of the Lord Lieutenant, or Custos Rotulorum, in each county; but when any extraordinary case arises, it is his duty, and his practice, to act upon his own judgment.

He nominates, by his own authority, to many important offices connected with the administration of justice, and he is by usage the adviser of the Crown in the appointment to others still more important,-including the Puisne Judges in the three superior courts in Westminster Hall.” a

u Hudson's Star Chamber, 2 Coll. Jur. 31; 4 Inst. 63.

x Various statutes, now repealed, delegated to the Chancellor functions in aid of the criminal law. Thus by 2 H. 5, st. 1, c. 29, he was enabled to issue writs of proclamation in cases of bloodshed; and by 35 H. 6, c. 1, the like power was granted to him for the apprehension of fugitive servants embezzling the goods of their masters, to be exercised with the advice of the Chief Justice of either Bench, or of the Chief Baron of the Exchequer. Till the late new modelling of the courts of error, he likewise, by 31 E. 1, c. 12, sat in the Exchequer Chamber, to decide writs of error from the Court of Exchequer. He is now, ex officio, a member of the Central Criminal Court, and of the Judicial Committee of the Privy Council; but he is not expected to at tend in the former, and in the latter orly in cases of great difficulty. Till the accession of

a

the present Queen, the Chancellor had a most painful duty to perform, in advising on the report of the Recorder of London in what cases the law should be allowed to take its course; but convictions in the metropolis are now left as those at the Assizes with the Judges and the Secretary of State. 7 W. 4 & 1 Vic. c. 77.

y See 1 Ed. 3, st. 2, c. 16; 28 Hen. 6, c. 11. 2 Lord Eldon likewise claimed the patronage of the office of Chief Baron, as belonging to the Great Seal; but this, since the Court of Exchequer was reformed, has been supposed to belong to the Prime Minister,-of course with the concurrence of the Cabinet and the Sovereign.

a He formerly appointed the Masters in Chancery; but, by a most useful reform, these officers are now abolished. 14 & 15 Vic. c. 83.