Court of

tempers

the severity of

common

law, and prevents the com

injuries.

I cannot, however, leave the subject of Trial by Jury, without again expressing my opinion of its value, particularly in criminal cases, and summing up its special advantages. It secures, as far as is possible, an honest verdict, it educates the people in the laws of the country, it compels a judge to attend carefully to a trial, as he has to sum up all the facts to the jury, and it renders impossible the corruption or despotism of a judge.

COURT OF CHANCERY.

There is another court, and, indeed, another Chancery branch of law, and one of the utmost importance, of which you have not yet heard. It is a court to temper the severity of the rules of law administered by other courts 33, and while the object of the other courts is to give redress for offences or injuries committed, one principal object of this court is to prevent the commission of such offences or injuries. So great was the respect paid to this court, that, in ancient times, it was considered by the humbler classes, and by the oppressed generally, that the head of this court had the power of giving redress for every kind of injury and injustice, whether the Common Law provided a remedy or not.38

The King

This high and mighty court was called the Court of Chancery; and I must now endeavour to trace out how this great court arose, and when it obtained its high powers.

Origin of the Court of Chancery.

In the earliest times of our history, as I have told appointed a you, the King personally was applied to for the

secretary,

ORIGIN OF THE COURT OF CHANCERY.

133

office was

tary was

called a

Chanceller.

redress of injuries. It was impossible for the King himself to attend to all such applications. Consequently he appointed wise men under him to look to them. But still, it was necessary for the King to have a secretary to assist him in bringing these complaints under the notice of the wise men, and in other matters of business.106 Writs (that is, written precepts or orders) also had to be issued summoning the adversary, against whom the complaint was made, to appear before the wise men, and forms were adopted to be used in like cases. An office, or chamber, in whose which such business should be transacted, also was called The necessary. The office was called The Chancery, and Chancery, the secretary was called The Chancellor. The name and hence of Chancery was given to this office, because the the secreSecretary, who sat in the office, had his seat in a kind of inner chamber, divided from the rest of the office by a sort of lattice work, called in Latin cancelli, from which the word "chancery" is derived. The chancel of a church is derived from the same word, and is applied to a part of the church which is railed off. It is supposed by some, that the word "chancellor" is derived from another Latin word meaning to cancel, because the Chancellor sometimes cancelled the proceedings of other courts. But inasmuch as the secretary was called a Chancellor before the Lord Chancellor performed such duties, it seems clear that the derivation of the name from the place where he sat is the correct one. But, whatever may have been the derivation of the name, the King had a secretary, who was called a Chancellor. With out attempting to trace the existence of a Chancellor up to a more remote time, it is certain that the AngloSaxon monarchs, from Ethelbert downwards, had

Anglo

Saxon

Kings had

Chancel

cellor ori

always a

priest.

The Chan such an officer.54 The secretary or Chancellor, at ginally was first, was always a dignitary of the church. When the Anglo Saxons were converted to Christianity by St. Augustine, in the reign of King Ethelbert, the King had his own chapel and his own priest, who was always near his person, who acted as his confessor, and who took care of his chapel.55 This person was undoubtedly much better educated than the AngloSaxon laymen who attended on the King. On the conversion of Ethelbert, he probably selected as his priest one of the Italian missionaries who came over with St. Augustine, and who must have possessed much more knowledge than the Anglo-Saxons. The priest being constantly near his person, and being a well-educated man, naturally acquired the King's confidence, and we find that the King made him his secretary, and not only employed him in matters of common business, but consulted him in matters of state. I have told you in what way this secretary came to be called Chancellor. Now, the ChanThe Chan- cellor, or priest-secretary, being the King's confessor, became the keeper of the King's conscience, and, although the Chancellor is not now a priest, nor has conscience. been since Cardinal Wolsey, he is still to the present day called the keeper of the King's conscience.

cellor became the

Keeper of

the King's

He thus became the Judge of the Court of Chancery.

The fact of the Chancellor being the keeper of the King's conscience, led to his being made the judge of this Court of Chancery, the object of which was, as I have told you, to soften the severity of the law, which in early ages was too rude and clumsy to be applied to all cases of wrong which needed a remedy. In very early times the King himself had the power of mitigating the severity of the law, for we find in the Laws of King Edgar, "If the law be too heavy,

let him seek a mitigation of it from the King."" It was always a maxim that the King could not intentionally do any wrong, and that therefore if any of his subjects suffered wrong from being unable to obtain justice in the courts of law, the King, if he only knew of this, would set the wrong to rights.64 The Chancellor, consequently, as keeper of the King's conscience, was bound to see that the King did no wrong, or if inadvertently he did wrong, the Chancellor advised him how to act, or acted for him.

The Law administered in the Court of Chancery is founded on the Roman Law.

As the Lord Chancellor was almost always, for several centuries, an ecclesiastic, he was well versed in the principles of the Roman law, which then formed a leading subject of study with the clergy. The Roman Empire, which so long governed the world, reached a high state of civilisation, and gradually perfected an elaborate and enlightened system of law, which is contained in books which have come down to our times. This system, which is called the Civil Law, in contradistinction to the Common Law (which I have already explained to you), is superior in many respects to the ruder and more imperfect laws of our ancestors, and from it the Chancellors mainly drew the principles which they applied with great success to regulate those transactions between man and man which could not, consistently with justice, be settled by the rules of the Common Law of the realm. The Roman system of equitable jurisprudence is mainly therefore the foundation of the law administered in the Court of Chancery.

Civil Law

founded on

Roman

Law.

The Great Seal.

The Chancellor was also the keeper of the King's seal. The writs issued in the King's name by the Chancellor were usually signed, but the art of writing was not common at that time, and therefore seals were often used instead. The King, following the custom of the times, adopted a seal, which was called the Great Seal. The King's chapel was the place

where these sealed documents were kept for safety, and the Chancellor, as keeper of the chapel and Great Seal issuer of the writs, had charge of the seal. This held by the seal was used as early as the reign of Edgar, Alfred's grandson, and the Lord Chancellor is Keeper of the Great Seal to the present day. The mere delivery of this seal to him by the sovereign, constitutes him Lord Chancellor.

Chancellor.