Page:Encyclopædia Britannica, Ninth Edition, v. 5.djvu/400

388 epiritual counterpart of the empire, and possess a corre sponding hierarchy, the office was imitated at the ecclesi astical court of Rome, and a chancery at the Vatican was repeated throughout the several bishoprics, where each diocese had its chancellor. The great monastic houses too had frequently a chancellor. In the universities an officer of the same name was the connecting-link between those republican institutions and the Romish hierarchy. While the rector was elected by the proctors of the nation or some other corporate constituency, the bishop of the diocese, or in some cases the head of the monastic house to which the university was subordinated, was ex officio the chancellor. It was the ambition of the kings who rose on the fall of the Roman empire, even of those who reigned in Saxon England, to gather round them as many as they could obtain of the attributes of the emperor or basileus, and hence each generally had his cancellarius. In Central Europe the office would naturally descend from the imperial court of Charlemagne ; and in France the chancellor became the head of the law and the minister of justice. The office was abolished at the first Revolution. At the Restoration the ministry of justice was made a separate office, and the chief function of the chancellor was to preside in the House of Peers. It is perhaps in England that we have the most remarkable illustration of the struggle between the influence of the imperial usages and the constitutional spirit of the Northern nations. The existence of common law courts enforcing in its strictness what was deemed the old law of the land, and the chancery with its regal equity interfering to give redress, presents to us the English people with their common lawyers standing up for their rights and privileges, and the monarch, with his clerical advisers, endeavouring to acquire the imperial prerogatives. The chancellor was generally a churchman, who took his ideas of law from the canonists and the civilians, whose principles were intensely disliked by the common lawyers. Hence the two systems called law and equity grew up in antagonism, neither throughout a long contest being able to conquer the other ; and hence it is that England has been burdened with the inconvenience of having two systems of jurisprudence, the one called common law, the other equity. The spirit of the former, indeed, may be said to have been so far triumphant in compelling equity to depart from her digressional vagueness, and become a fixed system as securely bound to statute and precedent as the common law itself. But even in Selden s day we find the laxity of the chancellor s equity so much suspected, that he says in his Table Talk, "Equity is a roguish thing. For law we have a measure know what to trust to : equity is according to the conscience of him that is chancellor, and as that is larger or narrower, so is equity. It is all one as if they should make the standard for the measure we call a foot a chancellor s foot. What an uncertain measure tvould this be ! One chancellor has a long foot, another a short foot, another an indifferent foot ; it is the same thing in the chancellor s conscience." How little, indeed, the chancery practice had been at that time moulded into a strict system, we may infer from the seals being held by a churchman, the celebrated Archbishop Williams, and this at the time when the common law had accumulated that amazing mass of intricate precedents which it tasked all the diligence and genius of Coke to reduce into order. Clarendon, when he became chancellor, had been twenty years out of practice, and his successor Shaftesbury had no pretensions to be acquainted with law. Lord Nottingham appears to have been the first who wished to apply strict rules in the court of chancery, but it does not seem to have been in a fit condition for their application. Roger North says, <l He was a formalist ; and took pleasure in hearing and deciding, and gave way to all kinds of motions the counsel would offer; supposing that if he split the hair, and with his gold scales determined reasonably on one side of the motion, justice was nicely done not imagining what torment the people endured who were drawn from the law, and there tost in a blanket." (Life of Lord Keeper Guildford, 423). Guildford himself, who, in the words of Lord Campbell, "had as much law as he could contain," made light of the mere judicial business of his office, which ere then, however, had begun to show its characteristic defects, for, according to his biographer, " the greatest pain he endured ensued from a sense he had of the torments the suitors underwent by the excessive charges and delays of the court." The Lord High Chancellor of Great Britain is a great state officer, with varied and disconnected functions. He is in official rank the highest civil subject in the land out of the royal family, and when raised to the peerage, as he invariably is, he takes precedence immediately after the archbishop of Canterbury. His functions have sometimes been exercised by a " lord keeper of the great seal ;" but there appears to be no essential difference between the two offices, save that the keeper is appointed by mere delivery of the seal, which is of itself sufficient to confer all the powers appertaining to the office, while a chancellor receives letters patent along with it. As a great officer of state, the chancellor acts for both England and Scotland, and in some respects for the United Kingdom, including Ireland. As an administrative officer, as a judge, and as head of the law, he acts merely for England. In the first class of functions he acts as prolocutor, speaker, or chair man of the House of Lords, and in this capacity it some times falls to him to adjudicate in Scottish law, since he often leads the judgment of the house on appeals. (See APPEAL.) By the Treaty of Union, one great seal was appointed to be kept for all public acts. Hence, in this department, the chancellor s authority extends to the whole of Britain, and thus the commissions of the peace for Scotland as well as England issue from him. His English ministerial functions are thus briefly described by Blackstone : " He became keeper of the king s conscience, visitor, in right of the king, of all hospitals and colleges of the king s foundation, and patron of all the king s livings under the value of twenty marks per annum in the king s books. He is the general guardian of all infants, idiots, and lunatics, and has the general superintendence of all charitable uses in the kingdom." There is much convenience in the repetition of such vague definitions, from the difficulty of more specifically defining the chancellor s functions in these matters. His indistinct and unsatis factory authority as to charitable foundations has been virtually superseded by the Charity Commissioners Act of 1853 (17 Viet. cap. 137). The Lord Chancellor is by office a privy-councillor, and it has long been the practice to make him a cabinet minister. Hence he belongs to a political party, and is affected by its fluctuations. This has often been denounced as destructive of the independence and calm deliberativeness essential to the purity and efficiency of the bench. In defence, however, of the ministerial connection of the chancellor, it has been said that, while the other judges should be permanent, the head of the law should stand or fall with the ministry, as the best means of securing his effective responsibility to parlia ment for the proper use of his extensive powers. The addition of permanent judges to the Chancery Court has removed many of the objections to the fluctuating character of the office. Under the Judicature Act, 1873, the Lord Chancellor is

president of the Court of Appeal, and, although the Act i&