Imágenes de páginas
PDF
EPUB

236

New Statutes.-Representation of the Profession in Parliament. NEW STATUTES EFFECTING ALTERA- the duties, rights, privileges, and emolumen TIONS IN THE LAW.

thereto belonging, as if a master in ordinary had been duly appointed to succeed the said

Andrew Henry Lynch, but nevertheless for a ABOLITION OF A MASTERSHIP IN CHANCERY. time not exceeding twelve months from the 10 & 11 Vict, c. 60.

passing of this act; Provided always, that in An Act to abolish One of the Offices of Master of the said George Barrett and Edward Wright,

the event of the death, resignation, or removal in Ordinary of the High Court of Chancery. or either of them, before the expiration of the [2nd July, 1847.]

said twelve months, it shall be lawful for the 1. Recites 3 & 4 W. 4, c. 94, appointing Lord Chancellor, if he shall think fit, to appoint masters and giving salaries, &c. to their clerks. a successor to them or either of them during 5 Vict. c. 5, abolishing, master of Exchequer the time aforesaid. and appointing Mr. Richards. Resignation of 3. Compensation to chief and second clerks, Mr. Lynch. One mastership abolished. That it shall be lawful for the Lord Chancellor, Whereas by an act passed in the 3 & 4 W. 4, with the consent of the commissioners of her c. 94, it was enacted, that the appointment of Majesty's treasury, to award such compensation all masters in ordinary of the High Court of (if any), and in such manner and upon such Chancery should be vested in his Majesty, his conditions, as he may think fit, to the said heirs and successors, and that such master George Barrett and Edward Wright, or either should thereafter be appointed by letters patent of them, in consideration of the loss they or he under the great seal of Great Britain ; and it may have sustained by the abolition of the said was by the said act also enacted, that the salaries office of master in ordinary. to be paid to the chief and junior clerks of each of the said masters should be 1,0001. a year and REPRESENTATION OF THE PRO1501. a year respectively, and that it should be lawful for the said junior clerks to receive and

FESSION IN PARLIAMENT. take 11d. per folio of 90 words for every copy of every document or writing made in the office of the said master : And whereas by an act

At the commencement of the present passed in the 5 Vict. c. 5, Richard Richards, year we called the attention of our readers Esquire, then one of the masters of the Court to the want of due professional representaof Exchequer, was appointed as an additional tion in parliament. "Looking at the events master in ordinary of the High Court of Chan. of the session, we cannot say that our cery, and it was thereby enacted, that upon the " learned friends" on either side of the death, resignation, or removal from office of house have rendered much "suit and the said Richard Richards it should be lawful for her said Majesty from time to time by letters service," either to the law itself, or to any patent under the great seal to appoint a fit and branch of the profession. The only exproper person to supply such vacancy: And ception we can find is in the labours of Mr. whereas Andrew Henry Lynch, Esquire, late Watson's committee for inquiring into the one of the said masters in ordinary, did on the enormous amount of fees of courts of law 25th day of March now last past duly resign and equity. We anticipate that much and now is vacant : And whereas it is expedient good will ultimately result from the investithat the number of the said masters in ordinary mittee, relating to the taxes on justice.

gations which are in progress in that comof the High Court of Chancery should be reduced to the same number as existed before The report of the Legal Education Comthe passing of the said last-mentioned act: Be mittee, founded on the evidence of the preit therefore enacted by the Queen's most ex- vious session, is also a valuable contribution cellent Majesty, by and with the advice and to our defective stock of information on the consent of the Lords spiritual, and temporal, state of the profession. and Commons, in this present parliament assembled, and by the authority of the same,

Whilst we think the members of these That it shall be lawful for her Majesty not to committees are entitled to all praise for

the office so vacant by the resignation of their devotion of time and attention to the the said Andrew Henry Lynch, but that the important subjects before them, we search same shall be and the same is hereby abolished. in vain for any other evidence of profes

2. Chief and second clerks retained for period sional zeal amongst the many eminent law. not exceeding twelve months.--'That for the con- yers who adorn the roll of parliament. venience of prosecuting the causes and matters referred to the said Andrew Henry Lynch, and

It will not be a useless employment, if now transferred to the other masters in ordinary,

our readers, in contemplation of the close it shall be lawful for the Lord Chancellor, if he of the present and the election of a new shall think fit, to retain George Barrett and parliament, will go over the names of the Edward Wright, the late chief and second members of the bar who hold seats in the clerks of the said Andrew Henry Lynch, as House of Commons, first examining those chief and second clerks respectively, with all who are either well known in Westminster

fill up

Review : Foss's Lord Chancellors and Keepers of the Seal in the Reign of King John. 237 Hall or in the ranks of law reform. Let " The only certain evidence of the names them ponder upon the deeds done by these and succession of John's Chancellors is to be gentlemen towards the real improvement of collected from the public records of his reign; the administration of justice, or the due direct entries of the disposition of the Great

and, inasmuch as there are among them few maintenance of the station and character of Seal, similar to those which were introduced professional men, and we shall be infinitely in subsequent reigns, such evidence can only obliged by receiving a statement of their be obtained by a careful examination and comsenatorial labours, whether successful or parison of dates and facts in the various rolls otherwise.

which have come down to us. The Patent.

and Close Rolls contain important testimony, NOTICES OF NEW BOOKS.

and incidental notices appear on the Rotuli de

Finibus and other Rolls; but the principal The Lord Chancellors and Keepers of the the Rotulus Chartarum affords.

dependence must be placed on the proofs which Seal in the reign of King John. Com- “ The general impression has been, that municated to the Society of Antiquaries when a charter is authenticated by the words by EDWARD Foss, Esq., F.S.A., and Data per manum A. B. or C. D. the person published in the Archæologiu, vol. xxxu. so subscribing was either a Chancellor, or London : J. B. Nichols & Son. 1847.

Keeper of the Great Seal, or Vice-Chancellor.

This mode of authentication has occasioned This is an exceedingly interesting dis- the discrepancy in the various lists hitherto sertation on the Chancellors and Keepers published ; some authors designating as Chanof the Seal in the reign of King John. cellors persons whom others call Keepers or Notwithstanding our natural respect for

Vice-Chancellors.” most of the subjects which relate to ages The object of Mr. Foss's present disquilong passed away, we must admit that sition is, to remove the confusion which many topics of antiquarian research are has thus arisen, by fixing with greater cerpot deserving of the expenditure of learn- tainly the names and order of the Chaning and ingenuity which are sometimes be cellors, and by considering the real chastowed upon them. Here, however, we racter borne by those who have been thus heartily enter into the controversy, and called Keepers or Vice-Chancellors. rejoice that Mr. Foss has investigated, with his accustomed accuracy of research and

“ It is not to be presumed, however,” (says force of reasoning, the several questions

our author,)“ that all the charters of this reign

are subscribed in the manner above mentioned. which arise on this important portion of our They are attested in all varieties of forms legal history. A discussion, indeed, which sometimes solely by the King himself, and. relates to the Charters of a reign me. sometimes by him in the presence of a witness morable for the greatest of all our charters, or witnesses ; sometimes by one witness alone, cannot fail to interest every reader. It is and sometimes by several ; and sometimes with very remarkable, as pointed out by Mr. and sometimes without the before-mentioned Foss, that

additional authentication, commencing with

the words 'Data per manum.' “Scarcely two writers agree either in the “Throughout the reign there are comparativenames or the succession of the Lord Chan-ly few charters which are so authenticated by the cellors of the reign of King John. The earlier Chancellors themselves. That it was not their compilers of the list of those officers had to positive duty, even when present, to affix their rely either on the historians, who were often names to this form, is proved by the fact, ocmistaken, or on their own examination of curring in multitudinous instances, of a Chanoriginal documents, which was necessarily cellor being, eo nomine, one of the witnesses, limited and unsatisfactory. Since the publi- when the formal authentication has been made cations issued by the Record Commission, and by one of the so-called Keepers.. In every subsequently by royal authority, the means of case, however, where the name of a known arriving at correctness have been materially Chancellor appears, his title is distinctly added, increased; and recent authors must be pre- except in one instance, to be afterwards adsumed to have used them, Much allowance verted to ; while, on the contrary, with respect is therefore to be made for the errors of the to those who have been denominated Keepers, former, while the assertions of the latter be- in no one instance is there any addition to their come a fair subject of critical inquiry; the names, beyond the clerical dignity they hapmore especially in John's reign, most of the pened to hold at the time. records of which have been published in ex- “ The question then that first occurs is, tenso."

What was the official character of those perMr. Foss then states the names of the whose names the designation of Chancellor

sons who thus authenticated the charters, to principal writers who have treated of the was not added ; and whether, even if it be Lord Chancellors of this period, and pro- allowed that they were in some way connected ceeds thus :

[ocr errors]

238 Review : Foss's Lord Chancellors and Keepers of the Seal in the Reign of King Jokr. with the Great Seal, they have been properly the Great Seal was frequently, if not usually, designated as Keepers or Vice-Chancellors ? deposited in the Treasury of the Exchequer;

" In the previous reign of Richard I., when of course under the care of its officers, who the King went to the Holy Land, he left one were answerable for its safe custody, and when seal in England to be used by the Chancellor it was required to be used would be in attend. Longchamp, whom he had deputed, with ance for the purpose of producing it. The others, to rule the kingdom in his absence; Clerks of the Chancery also were high officers, and he took another seal with him, under the performing certain important functions, formcaro of an officer, who was called Vice-Chan- ing part of the state of the Chancellor ; and cellor. Roger Malus Catulus was one of those when the office was vacant, the Great Seal was who held this office, and the seal was suspended secured under the private seals of two or three round his neck when he was unfortunately of the principal among them. Some of them drowned off the Isle of Cyprus. These officers were no doubt in daily attendance on the Lord authenticated the charters that were granted Chancellor, as is the case now with their reabroad, by adding their names to the words presentatives the present Masters in Chancery, Data per manum ;' but when they did so, relieving each other in turns, and at that time they almost invariably appended the designation probably performing in succession the duty of of Vice Cancellarius,' or 'tunc agens vices affixing the formal authentication to the docuCancellarii nostri.' The constant omission ments sealed in their presence. then of this title by the subscribers of the “A curious confirmation of the presumption Charters of King John forms a strong pre- that they were no more than officers in attendgumption that they did not possess it. ance on the Lord Chancellor, occurs in two

“Again, the fact already mentioned, that the instances of charters in 2 John, authenticatel Chancellor, as Chancellor, is often named as a in this form by the Chancellor, to which the witness to charters, the formal authentication only witnesses are Simon Archdeacon of Wells, of which is signed by one of the so-called John de Gray, Archdeacon of Gloucester, and Keepers, proves that such formal subscriber John de Brancestre, Archdeacon of Worceswas not a Keeper appointed, as in Richard's ter ;all three of whom are represented as reign, to act merely in the absence of the Keepers at this very time, and were then auChancellor.

thenticating charters in the same manner. In addition to this, there is the converse of There is no single fact that tends to conthe fact; inany instances occurring in which travene the probability that these so-called one or other of these officers was a witness to Keepers or Vice-Chancellors were either offcharters authenticated by the Chancellor him- cers of the Treasury of the Exchequer or self.

Clerks of the Chancery; and, in pursuing the Moreover, as will subsequently appear, inquiry into the names of the Chancellors and there were, at the same period of time, two or their deputies, this presumption will appear three and sometimes four individuals perform- more probable. Indeed, the dates of the ating the same duty of authenticating the charters testation of the officers in question are in such in this manner.

regular succession, as almost to enable us to “And, lastly, no document exists evidencing distinguish the order of their attendance." any appointment of Keeper or Vice-Chancellor, unless a single entry with regard to Ralph de in making Hubert Walter, Archbishop of

All writers, as Mr. Foss observes, agree Neville may be considered an exception. " It is scarcely too much to say that any one

Canterbury, the first Chancellor of the of these facts would be sufficient to ground a reign, and that he was appointed at, or presumption that these officers were neither soon after, the coronation of the king, on Keepers of the Seal nor Vice-Chancellors. the 27th May, 1199. The period of his

“If then they were not Keepers nor Vice- retirement is variously stated by Philipot Chancellors, what character did they really and Dugdale; but Mr. Foss considers it bear?

“There is ample evidence to shew that all certain that Hubert continued Chancellor of them held situations about the Court, with from his first appointment till his death, on other official duties connected with the payment the 13th July, 1205. or receipt of the revenue or otherwise, and that some of them were in constant attendance on office, his name frequently appears to the char

“During the earlier part of his tenure of the the king in his perpetual movements from ters after the words * Data per manum ;' but in place to place. They were also, without ex- the later years his authentication occurs but ception, ecclesiastics, rewarded with benefices, seldom and at long intervals. To the officers and gradually promoted to various clerical who so signed them when he did not, Mr. dignities,-canonries, archdeaconries, deane- Hardy and Lord Campbell give the title of ries, and sometimes bishopricks.

Keepers of the Seal, or Vice-Chancellors. "Now there were two classes of officers to They state them to be Simon Fitz-Robert, whom this description would particularly ap- Archdeacon of Wells, and John de Gray, ply, viz., the Clerks of the Treasury or Cham- Archdeacon of Cleveland, jointly : John de ber of the Exchequer, and the Clerks of the Brancestre, Archdeacon of Worcester ; Hugh Chancery. “The rolls of subsequent reigns prove that

• Rot. Chart. 2 John, vol. i. p. 64.

Review : Foss's Lord Chancellors and Keepers of the Seal in the Reign of King John. 239 Wallys, Bishop of Lincoln, (meaning Hugh de in the King's hands during the whole of the Wells, so called from the place of his birth); period in question, and was no doubt given and Josceline de Wells, whom Lord Campbell out to be used under his orders, as occasion by mistake calls a layman, he in fact afterwards required, by the customary officer of the court. becoming Bishop of Bath and Wells :--a A positive proof of this is recorded on the goodly assemblage of Keepers during one Patent Roll, where there is the entry of a Chancellorship of only six years' duration ! quittance to Adam de Essex, a chaplain to the . “There is no doubt, however, that these King, and a clerk in one of the Chancery five persons, whatever was the character of offices, on his accounting for $77. 38. 8d., the their office, performed the duty of authenti- proceeds of the Chancery, while it was in the cating the charters during Hubert's Chancel King's hands after the Archbishop's death, viz., lorship; and the following suminary of their from Thursday next after the Feast of St. signatures will shew that there were no less Mildred (July 13) to Saturday next after the than seven different modes in which these five Feast of St. Michael (September 29) 7 John;c deputies aeted. From October, 1 John, to a period occupying the whole of the interval up June, 2 John, the names of Simon, Archdeacon to the appointment of Walter de Gray.” of Wells, and John de Gray, appear; in general jointly, but on some occasions within these

Another error relates to the chancellormonths each of them signs alone. On the ship of Richard de Marisco, the claim in elevation of John de Gray to the Bishoprick of wlose behalf (until a much later period) is, Norwich in 2 John, Simon de Wells continued we think, conclusively disposed of by our to sign alone, till June, 6 John, when he was acute and diligent antiquary who states appointed Bishop of Chichester. During the thatsame period, John de Brancestre and Hugh de Wells, for a short time together, and each of

“Walter de Gray being about to proceed to them separately, and also Josceline de Wells, Flanders on a temporary mission, he sent the subscribed the charters in the same manner.

Seal to the King by Richard de Marisco, who There is one instance also in which John de appears, by many entries on the Patent Roll, Brancestre signed alone on the same day on to have been a clerk of the Chamber of the which he had affixed his signature in conjunc- Exchequer, which was the place where the tion with Hugh de Wells.

Seal was usually deposited ; and he no doubt “ Thus, if these attestations are to be deemed was the officer responsible for its safe custody, proofs of their being Vice-Chancellors or and was naturally employed to deliver it to the Keepers, there would be at least three, if not King. A royal mandat', dated the 10th of four, enjoying that character at the same time.” October, the very day after, is directed to the

Sheriff of Kent, commanding him to provide a After the death of Archbishop Hubert, vessel for the voyage. Not only in that docu. when the “Chancery" came into the ment, but in many subsequent records, to as king's hands, Lord Campbell states, that late a date as July 7, 16 John, 1214, Walter “then the Great Seal remained some time de Gray is invariably mentioned with the title in the custody of John de Brancestre,” im.

of Chancellor." plying that lie held it till the appointment

Mr. Foss next notices another clainant of the new Chancellor, Walter de Gray; who is put forward.—Ralph de Neville, and Mr. Hardy's arrangement would lead afterwards Dean of Lichfield and Bishop to the same conclusion. “ The Charter of Chichester, to whom the seal was deRoll, however,” says Mr. Foss, “does not livered on the 22nd Dec., 1213. But this support this view.'

claim is deemed equally untenable until a

later period. It is remarked also by Mr. “It is true that John de Brancestre's name Foss, as an extraordinary circumstance, is attached to the charter next following the that though others have been introduced as entry as to the death of the Archbishop, dated July 24, 1205 : but it is to that charter alone ; and he not only never afterwards signs another u I conceive that Adam de Essex was percharter in that character, but the next two haps the Clericus or Magister Scriptorii, or charters, dated on the 26th July, are authenti- more probably the Scriptor Rotuli Cancellariæ, cated by another officer. There is nothing to and kept the duplicate of the Great Roll, called shew that he held it beyond the day on which the Chancellor's Roll, of which a specimen, he signed that single charter; and if that at- that of 3 John, has been published by the testation constitutes him a Keeper, the title Commissioners of Public Records. Under an would be more justly applicable to Hugh de entry in the Patent Roll of 6 John, p. 52, the Wells and Josceline de Wells, under whose following memorandum appears : Non est in hands all the other charters during the inter- Rotulo X. de Essex quia oblit’est.' vening months are given. The learned authors, € Rot. Pat. 8 John, vol. i. p. 70. however, have passed them over at this period, • Rot. Pat. vol. i. pp. 74, 81, 82, 83, 86, 91. although they mentioned them as Keepers when • Rot. Claus. 15 John, vol. i. p. 156. performing the same duty under Hubert. ' Ibid. pp. 161, 162, 168. Rot. Pat. vol. i. * The fact is, that the Great Seal remained p. 105, 108, 109, 111.

240

Execution of the Criminal Law. Chancellors, or Keepers, solely on the when one or two of the witnesses state that ground of the mode in which the charters prisoners in a superior station, as merchants were authenticated, the name of Peter de or bankers' clerks, or persons in the law, conRupibus has been hitherto omitted in every abroad because they are observed, when under

victed of forgery, would prefer being sent list, either as a Chancellor or a Keeper ; sentence of imprisonment, to have a peculiar and yet there is no doubt, on the unques- fear of being seen and recognized, the same tionable evidence now adduced, that he witnesses allow that these individuals, if imwas Chancellor during Walter de Gray's prisoned in places where they are unknown, absence.

would deem the punishment much less heavy

than transportation. The evidence all plainly "The order in which the Chancellors suc- points to the conclusion that this punishment ceeded each other, are shewn in a tabular view, has peculiar terrors for such persons, and and a second table is added, exhibiting the there is only one opinion given by all the witnames and succession of those officers of the nesses, or rather one fact stated by them, as to Treasury of the Exchequer, or clerks of the receivers of stolen goods, by whom transChancery, who authenticated the charters when portation is dreaded in an extreme degree. the Chancellors did not ; together with a state- It ought, however, to be observed, that the ment of the time during which each of them degree of weight which may be given to the acted. A comparison of these dates will make evidence generally, or to the testimony of parit manifest that these persons.were merely offi- ticular witnesses, in any discussion upon the cial instruments, exercising a formal duty at administration of criminal justice, must depend stated intervals during the same period of time, in great measure upon the answer to another and that they were not, as they have been question, viz., what particular mode of ercalled, either Keepers of the Great Seal or Vice-ecuting the sentence, either of transportation Chancellors."

or of imprisonment, is in the contemplation of We are glad thus to see that Mr, Foss, he professes to give.

the witness or of the persons whose opinions who is honourably known to our readers as • There can be little doubt that a sentence the author of “ The Grandeur of the Law,” which imports an entire separation for life, or still continues, in his retirement from for a very long period, from his criminal assothe profession, to pursue his learned ciates and from his family, must have a greater researches into the history and antiquities degree of terror for an offender than any imof the law. We understand that, ere within a shorter period of rejoining his family,

prisonment at home which holds out the hope long, two volumes will appear of his and renewing all his criminal associations. large biographical work of our illustrious But, before forming any sound opinion upon judges.

the relative merits of these different modes of

secondary punishment, it would be necessary EXECUTION OF THE CRIMINAL the details through which either one or the

to clearly understand and fully to consider all LAW.

other is to be carried into execution.

“Upon the subject of transportation nearly

all the learned judges are clearly and strongly TRANSPORTATION AND

of the same opinion; they consider that it FENDERS,

would be extremely unwise to abandon it. The Report of the Select Committee of

Secondly.—That imprisonment as usually the House of Lords on the execution of practised is not an efficacious punishment, the Criminal Law, has just been published. with separation or with silence, as it is in some

though accompanied with hard labour, and It states, that many witnesses have been prisons, is likewise the result of the evidence. examined and answers received to the Only those who undergo it for the first time questions submitted to the Judges of the appear to feel it much; this suffering soon United Kingdom, and the committee re- wears off. A second commitment finds the port as follows:

criminal by no means unprepared to undergo

it, and it ever after ceases to exercise a deter. “In the first place, nearly all are agreed that ring effect. The number of times that young the punishment of transportation cannot safely offenders have been committed, some of them be abandoned ; that it has terrors for offenders twelve or fifteen times within a few years, seems generally which none other short of death strongly illustrative of this position; whereas possesses ; that no such fear attends imprison- convicts returned from transportation, either ment, especially for hardened offenders; that by escape or by expiration of their sentences, no hope exists of imprisonment being so far regard with the utmost terror the repetition of rendered more formidable as to supply in all that punishment. respects the place of transportation. There “How far imprisonment can be so far altered prevails some slight difference of opinion, but as to be efficacious, either as preparatory to more in appearance than reality, as to what transportation or as a punishment by itself, is classes of criminals dread it the most ; for a question of difficulty, upon which little evi.

JUVENILE OF

« AnteriorContinuar »