dissented, he said, "I now do rightly the office of a Chancellor." " b But more weight will probably be attached to the authority of Gibbon, who, after exposing the profligate conduct of the Emperor Carinus in having selected his favourites, and even his ministers, from the dregs of the populace, and intrusted à "Chancellor " with the government of the city, observes, "This word, so humble in its origin, has by a singular fortune risen into the title of the first great office of state in the monarchies of Europe." C It would likewise be foreign to our purpose (though very carious) to trace the steps by which, under the later Roman Emperors, the "Cancellarius," like "the Justice-clerk " in Scotland, from being a humble scribe or secretary, came to be invested with high judicial powers. Nor should I be justified in inquiring how the office passed from the Roman Emperors to that body ever emulous of imperial state-the Roman Church, in which every bishop had his Chancellor,"-or into the manner in which the office was established, with a great variety of powers and duties, in the different states on the continent of Europe founded by the Northern invaders, who, clinging to their own institutions, were fond of borrowing titles from the conquered. Our business here is exclusively with "the Chancellor of the Kings of England." 66 This office has existed from the most remote antiquity. The almost fabulous British King Arthur is said to have appointed a Chancellor. The Anglo-Saxon monarchs, from b "Die Veneris videlicet, 4°. Januarii," Lords Wentworthe, &c., should be clearly (1 & 2 Ph. & Mar. 1554-5). "Hodie allatæ sunt a Domo Communi tres Billæ : quarum "Prima. For the repealing of all outlawries and other attainders had or made against Richard Pate, Bishop, William Peytoo, and others. "Secunda.-That persons dwelling in the country shall not sell divers wares in cities and towns corporate, by retail. "Tertia.-Repealing all statutes, articles, and provisions made against the See Apostolick of Rome since the 20th year of King Henry the Eighth; and for the establishment of all spiritual and ecclesiastical possessions and hereditaments conveyed to the laity. with two new provisoes added thereto by the Commons; and also a request that the two clauses, containing nineteen lines, and concerning the Bishops of London, &c., and the put out. Whereof one of the provisoes, for the manner of the penning thereof, being misliked to the House, another to the same effect was commanded to be drawn, which being three times read, and agreed unto by the whole House, except the Viscount Montacute, and the Bishops of London, and Coven. and Lichef., was sent down to the Commons, wnere being also thrice read and agreed unto, it was brought up again as an act fully assented unto by both Houses; nor the said nineteen lines were not razed nor taken out of the Act: but the Chancellor, in the sight of all the Lords, with a knife, cut them, saying these words, 'I NOW DO RIGHTLY THE OFFICE OF A CHANCELLOR.'"-Lords' Journals, vol. i. p. 484. Dec. and Fall, ii. 99; and see Casaubon and Salmasius ad Hist. Aug. 253. d Mirror of Justices. Ethelbert downwards, certainly had such an officer, although we must not therefore assent to the statement of Lord Coke, that the Chancery dispensed justice as an ordinary tribunal, in the remote reign of King Alfred. The office then existed, but, as we shall see hereafter, centuries elapsed before it assumed the functions of a COURT.-How the office originally sprung up in England, and what it has since become, it will now be my endeavour to describe. With us the King has ever been considered the fountain of justice. In very early times, as he could not himself in person decide all controversies and remedy all wrongs, tribunals were constituted, over which deputed judges presided, to carry the law into execution. Still, applications were made to him personally by injured parties for redress; these were to be referred to the proper forum, and process was to be made out for summoning the adversary, and directing that after both sides had been heard, the appropriate relief should be administered. To assist him in this department the King employed a secretary, on whom by degrees it was entirely devolved; and this officer, on a statement of facts by the complainant, framed writs or letters, in the king's name, to the judges, by which suits were instituted. Forms were adopted, to be always followed under similar circumstances, and a place was named to which all suitors might resort to be furnished with the means of obtaining justice. This was the officina justitia called CHANCERY, and the officer who presided over it was called CHANCELLOR. Again, grants of dignities, of offices, and of lands were made by the king. It was necessary that these grants should be framed and authenticated by an officer well versed in the laws and customs of the kingdom; and it was found convenient to employ for this purpose the same person who superintended the commencement of suits between subject and subject. Here we have the other great branch of the pristine duties of Chancellor. These writs and grants in the earliest times were verified merely by signature. From the art of writing being little known, seals became common; and the king, according to the fashion of the age, adopted a seal with which writs and grants e "Every one was to have a remedial writ from the King's Chancery, according to his plaint," of which the following is the most ancient form: "Rex, &c." [to the Judge) "Questus est nobis A. quod B., &c. Et ideo tibi (vices nostras in hac parte committentes) præcipimus quod causam illam audias et legitimo fine decidas."-Mirror of Justices, 8. See Fitzh. Nat. Brevium. were sealed. This was called the GREAT SEAL, and the custody of it was given to the CHANCELLOR.' A.D. 596. 66 But how are we to account for the important function which has immemorially belonged to this officer, of Keeper of the King's Conscience?" From the conversion of the Anglo-Saxons to Christianity by the preaching of St. Augustine, the king always had near his person a priest, to whom was intrusted the care of his chapel, and who was his confessor. This person, selected from the most learned and able of his order, and greatly superior in accomplishments to the unlettered laymen attending the Court, soon acted as private secretary to the king, and gained his confidence in affairs of state. The present demarcation between civil and ecclesiastical employments was then little regarded, and to this same person was assigned the business of superintending writs and grants,—with the custody of the Great Seal. For ages to come the Chancellor had no separate judicial power, and was not considered of very high dignity in the state, and the office was chiefly courted as a stepping-stone to a bishopric, to which it almost invariably led. Particular individuals holding the Great Seal acquired a great ascendancy from their talents, but among the Anglo-Saxons the Chancellor was not generally a conspicuous member of the government, and in the early Anglo-Norman reigns he ranked only sixth of the great officers under the Crown, coming after the Chief Justiciar, the Constable, the Mareschal, the Steward, and the Chamberlain. At this time the Chief Justiciar was by far the greatest subject, both in rank and power. He was generally taken from among the high hereditary barons; his functions were more political than judicial; he sometimes led armies to battle; and when the Sovereign was beyond the sea, by virtue of his office, as regent he governed the realm." f It has generally been supposed that Edward the Confessor was the first English zovereign who used a seal; but Dugdale shows that there were some grants under seal as far back as King Edgar. Dug. Off. ch. 2. 5 Madd. Exch. b. 1. h Hence comes the title of the "Lords Justices," appointed to represent the King in England in the reigns of George I. and George II.; and of the "Lords Justices" now appointed to act in Ireland in the absence of the Lord Lieutenant. There was likewise from very remote times a Grand Justiciar in Scotland with very arbitrary power. In that country when the Judges going the circuit approach a royal burgh, the Lord Provost universally comes out to meet them-with the exception of Aberdeen, of which there is by tradition this explanation. Some centuries ago, the Lord Provost, at the head of the magistrates, going out to meet the Grand Justiciar at the Bridge of Dee, the Grand Justiciar, for some imaginary offence, hanged his Lordship at the end of the Bridge,-since which the Lora Provost of Aberdeen has never trusted as The office of Chancellor rose into importance from the energy of A'Becket, Longchamp, and other ambitious mer. who held it; but it was only in the end of the reign of Henry III., or the beginning of the reign of Edward I., that its supremacy was established. Till then the Aula Regia existed, of which the Chief Justiciar was president, and in which all causes of importance, of whatever description, were decided. The origin of the different courts in Westminster Hall, they now exist, may be distinctly traced to the disruption of this great tribunal-like the formation of the planetary system from the nebulous matter of which some philosophers tell us it is composed. The Chancellor always sat as a member of the Aula Regia, and from his usual duties and occupations he must have been its chief legal adviser.* In all probability, early in its history, the different branches of judicial business which came before it were allotted to the consideration of particular members most conversant with them; and while matters of chivalry might be decided by the opinion of the constable and mareschal, the validity of the king's grants would be referred to him whose duty it was to authenticate them, and proceedings by virtue of mandatory writs or commissions, under the Great Seal, could best be judged of by the same person who had issued them. So, questions arising out of "petitions of right," "monstrans de droit," and "traverses of office," where a complaint was made that the King had been advised to do any act, or was put in possession of any lands or goods, to the prejudice of a subject, would be naturally referred to "the Keeper of his Conscience." m The officer to whom such references were made by degrees became a separate judge; and hence the origin of what is considered the common-law jurisdiction of the Chancellor. himself in the presence of a Judge beyond the walls of the city.-Ex relatione of a very venerable person who has filled the officenow called LORD JUSTICE GENERAL. i The office of Chancellor in France appears to have risen into great importance by the same means. "Magnitudinem virorum qui eo munere [Cancellarii] fungebantur, vires decusque illi attulisse crediderim, ut ab exiguis initiis ad tantam majestatem pervenerit."-Paul. Encycl. de rebus gestis Francon. p. 104, a. He was wont to act, together with the Chief Justiciar and other great men, in mat ters of revenue at the Exchequer, and sometimes with the other justiciars itinerant in their circuits. About the beginning of King Henry the Second's reign, there were pleas in the county of Kent holden" before the King's Chancellor, and before Henry de Essex, the King's Constable," and "before the Chancellor and the Earl of Leicester." Amerciaments were set upon several persons in Worcestershire by "the Chancellor and Stephen de Segrave;" and in the counties of Nottingham and Derby by the same persons.-Madd. Exch. cap. 2, p. 42. m Gilbert's History of the Exchequer, p. ■ It is certain, that almost immediately after the establishment of the Court of King's Bench for criminal law, the Common Pleas for civil suits, and the Exchequer for the revenue, all extraordinary cases of a juridical nature being reserved for the King in council,-the Chancellor held a separate independent court, in which the validity of royal grants was questioned by scire facias, and the other matters were discussed which I have supposed to have been previously referred for his opinion, to guide the decision of the Aula Regia. To assist in this new separate jurisdiction, officers were appointed, and they had the privilege of sueing and being sued in all personal actions in the court to which they were attached. These proceedings were carried on in accordance with the rules and maxims of the common law. Here then we have the Chancellor with two great occupations: the first, his earliest one, of supplying writs to suitors who wished to litigate in other courts; the second, the decision of a peculiar class of suits as a judge. According to ancient simplicity, the place where he carried on the business of his office was divided between the "Hanniper" or hamper, in which writs were stored up; and the "Petty-bag," in which were kept the records and proceedings in the suits to be decided by himself." Thus did the Chancellor decide all matters of law that might arise by his own authority, subject to a writ of error to the King's Bench; but he had no power to summon a jury; and issue being joined on a question of fact, he at once handed over the record to the King's Bench, where the suit proceeded, and was finally disposed of.° This "common-law jurisdiction" of the Chancellor has been generally carried back to the reign of Edward I.-by some much higher, and the validity of it has never been questioned; but his "Equitable Jurisdiction," which has become of infinitely greater importance, has been supposed to be a usurpation, and not to have been exercised till the reign of Richard II., upon the introduction of uses and trusts of real property, and the invention of the writ of subpoena by John of Waltham, Bishop of Salisbury. After n Even now a distinction is made between the "hanniper" side and the "petty-bag" side of the court. • I have followed the authority of Blackstone (Com. vol. iii. 49); but Mr. Macqueen, in his very learned and valuable treatise "On the Appellate Jurisdiction of the House of Lords," has collected weighty decisions and arguments to show that the writ of error from the petty-bag or common-law side ir. Chancery was directly to Parliament. This jurisdiction is now regulated by stat. 12 and 13 Vic. c. 109, s. 39 |