Home1860 Edition

CHANCELLOR

Volume 6 · 2,131 words · 1860 Edition

Various origins have been attributed to this word, so important in its modern use over the greater part of the civilized world; and all of them are of a trivial nature, bearing little reference to the subsequent application of the term. The preceding word chancel is connected with the most ordinary and apt of these origins. It supposes the chancellor to have been so called because he sat within a lattice or screen partitioned from the court of justice or hall of audience. There was no such office in the early civil law, and even under the later western emperors the cancellarius appears to have been a mere subordinate person, a sort of clerk of the chamber, or scribe, who saw the petitioners, and arranged about their business. Gradually he appears to have risen to the rank of an adviser or conscience keeper, on whose decision the fate of suitors in a great measure depended. In the eastern empire the chief cancellarius had become a powerful and important officer. As it was the principle of the popedom to be the spiritual counterpart of the empire, and possess a corresponding hierarchy, the office was imitated at the ecclesiastical 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 their 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 Chancellor, enforcing in its strictness what was deemed the old law of the land, and the chancery with its regal equity interfering to give redress, just presents to us the English people with their common lawyers standing 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 digressive 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 would 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 Shafesbury 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, "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 lost 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 differences 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 chairman of the House of Lords, and in this capacity it sometimes 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 unsatisfactory authority as to charitable foundations has been virtually superseded by the Charity Commissioners' Act of 1853 (17th Vict., 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 parliament for the proper use of his extensive powers. The late addition of permanent judges to the chancery court has removed many of the objections to the fluctuating character of the office.

In Ireland, there is a lord chancellor at the head of the equity system, which arose in minute imitation of the English. He is generally raised to the peerage.

In Scotland, a chancellor appears at a pretty early period in history, as the person who, being the adviser and conscience-keeper of the king, issued his writs or letters for the remedy of injustice done by judges or other persons in power. A comparison between the English and the Scottish chancellor of the thirteenth century would probably show them to have then been much alike. Subsequently, however, the civil law predominating in Scotland, the chancellor was its chief administrator, instead of leading on a system antagonistic to the common law. Hence he became the leading judge of the Court of Session on its establishment in 1533. While Episcopacy predominated he was generally an ecclesiastic, never a working lawyer; and after the revolution he became an officer of state, who was not expected to be a working lawyer. Hence, when by the Treaty of Union the great seal for public transactions was appointed to be kept in England, the lord chancellor of Scotland dropped out of existence. A keeper of the great seal continued to be appointed for sealing writs as to private matters, and the office of director of chancery remained for the transaction of routine business connected with the department. When the method of certifying hereditary successions was simplified and placed on a uniform system in 1848, it was put under the direction of an officer called the sheriff of chancery. (J.H.M.)

Chancellor of a Cathedral, an officer who holds the courts of the bishop, and acts as his assessor or adviser in matters of ecclesiastical law. He also inspects schools, applies the seal, writes and despatches letters of the chapter, keeps the books, &c.

Chancellor of the Duchy of Lancaster, an officer appointed of old chiefly to determine controversies between the king and his tenants of the duchy land, and otherwise to direct all the king's affairs belonging to that court. By late practice, the office was nominally one of high dignity, but, demanding little exertion, has been given to statesmen who have grown old in other and more laborious offices, but whose services are still desired in the ministry.

**Chancellor of the Exchequer**, an officer who, according to the old definitions of his functions, presides in the exchequer court, and takes care of the interest of the crown. He is always in commission with the lord treasurer for the letting of crown lands, &c., and has power, with others, to compound for forfeitures of lands upon penal statutes. While the treasury is understood to have the custody and distribution of the collected revenue, it is the function of the exchequer to realize it. Hence the chancellor of the exchequer, as the head of that department which proposes to parliament the plans for the annual revenue, and sees to its realization, is always an important member of the cabinet. Sometimes he is prime minister. His annual statement of the method by which he proposes to meet the exigencies of the exchequer, called "The Budget," is always received with great interest by parliament and the public.

**Chancellor of the order of the Garter and other military orders**, an officer who seals the commissions and mandates of the chapter and assembly of the knights, keeps the register of their proceedings, and delivers their acts under the seal of their order.

**Chancellor of a University**, an officer who seals the diplomas, or letters of degrees, &c. The chancellors of the universities of Oxford, Cambridge, and London, are elected by the respective corporate bodies of which they are the heads. Their duties, however, are usually discharged by the vice-chancellors. Each of the Scottish universities, likewise, with the exception of that of Edinburgh, has a chancellor elected by the senatus.