238 Review: Foss's Lord Chancellors and Keepers of the Seal in the Reign of King John. 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 attendLongchamp, 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, formcare 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 Charters of King John forms a strong presumption that they did not possess it. "A curious confirmation of the presumption that they were no more than officers in attendance on the Lord Chancellor, occurs in two "Again, the fact already mentioned, that the instances of charters in 2 John, authenticated 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 Chancellor. 'In addition to this, there is the converse of the fact; many instances occurring in which one or other of these officers was a witness to charters authenticated by the Chancellor himself. 66 Moreover, as will subsequently appear, there were, at the same period of time, two or three and sometimes four individuals performing the same duty of authenticating the charters in this manner. "And, lastly, no document exists evidencing any appointment of Keeper or Vice-Chancellor, unless a single entry with regard to Ralph de Neville may be considered an exception. "It is scarcely too much to say that any one of these facts would be sufficient to ground a presumption that these officers were neither Keepers of the Seal nor Vice-Chancellors. "If then they were not Keepers nor ViceChancellors, what character did they really bear? Keepers at this very time, and were then authenticating charters in the same manner. "There is no single fact that tends to contravene the probability that these so-called Keepers or Vice-Chancellors were either officers of the Treasury of the Exchequer or Clerks of the Chancery; and, in pursuing the inquiry into the names of the Chancellors and their deputies, this presumption will appear more probable. Indeed, the dates of the attestation of the officers in question are in such regular succession, as almost to enable us to distinguish the order of their attendance." All writers, as Mr. Foss observes, agree in making Hubert Walter, Archbishop of Canterbury, the first Chancellor of the reign, and that he was appointed at, or soon after, the coronation of the king, on the 27th May, 1199. The period of his retirement is variously stated by Philipot and Dugdale; but Mr. Foss considers it certain that Hubert continued Chancellor from his first appointment till his death, on the 13th July, 1205. 66 office, his name frequently appears to the char'During the earlier part of his tenure of the ters after the words Data per manum;' but in the later years his authentication occurs but seldom and at long intervals. To the officers who so signed them when he did not, Mr. Hardy and Lord Campbell give the title of Keepers of the Seal, or Vice-Chancellors. They state them to be Simon Fitz-Robert, Archdeacon of Wells, and John de Gray, Archdeacon of Cleveland, jointly; John de Brancestre, Archdeacon of Worcester; Hugh * Rot. Chart. 2 John, vol. i. p. 64. b 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 $71. 3s. 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 summary 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; deputies acted. 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 geneAnother error relates to the chancellorral jointly, but on some occasions within these months each of them signs alone. On the ship of Richard de Marisco, the claim in elevation of John de Gray to the Bishoprick of whose 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 them separately, and also Josceline de Wells, subscribed the charters in the same manner. There is one instance also in which John de Brancestre signed alone on the same day on which he had affixed his signature in conjunetion with Hugh de Wells. "Thus, if these attestations are to be deemed proofs of their being Vice-Chancellors or Keepers, there would be at least three, if not four, enjoying that character at the same time." After the death of Archbishop Hubert, when the "Chancery" came into the king's hands, Lord Campbell states, that "then the Great Seal remained some time in the custody of John de Brancestre," im plying that he held it till the appointment of the new Chancellor, Walter de Gray; and Mr. Hardy's arrangement would lead to the same conclusion. "The Charter Roll, however," says Mr. Foss, "does not support this view." "Walter de Gray being about to proceed to Flanders on a temporary mission, he sent the Seal to the King by Richard de Marisco, who appears, by many entries on the Patent Roll,d to have been a clerk of the Chamber of the Exchequer, which was the place where the Seal was usually deposited; and he no doubt was the officer responsible for its safe custody, and was naturally employed to deliver it to the King. A royal mandate, dated the 10th of October, the very day after, is directed to the Sheriff of Kent, commanding him to provide a vessel for the voyage. Not only in that document, but in many subsequent records, to as late a date as July 7, 16 John, 1214, Walter de Gray is invariably mentioned with the title of Chancellor." Mr. Foss next notices another claimant who is put forward.-Ralph de Neville, afterwards Dean of Lichfield and Bishop of Chichester, to whom the seal was delivered on the 22nd Dec., 1213. But this claim is deemed equally untenable until a later period. It is remarked also by Mr. Foss, as an extraordinary circumstance, that though others have been introduced as "It is true that John de Brancestre's name is attached to the charter next following the 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 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 attestation constitutes him a Keeper, the title would be more justly applicable to Hugh de Wells and Josceline de Wells, under whose hands all the other charters during the intervening months are given. The learned authors, however, have passed them over at this period, although they mentioned them as Keepers when performing the same duty under Hubert. that of 3 John, has been published by the Commissioners of Public Records. Under an entry in the Patent Roll of 6 John, p. 52, the following memorandum appears: 'Non est in Rotulo A. de Essex quia oblit' est.' The fact is, that the Great Seal remained p. e Rot. Pat. 8 John, vol. i. p. 70. Rot. Pat. vol. i. pp. 74, 81, 82, 83, 86, 91. 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. "The order in which the Chancellors succeeded each other, are shewn in a tabular view, and a second table is added, exhibiting the names and succession of those officers of the Treasury of the Exchequer, or clerks of the Chancery, who authenticated the charters when the Chancellors did not; together with a statement of the time during which each of them acted. A comparison of these dates will make it manifest that these persons. were merely official instruments, exercising a formal duty at stated intervals during the same period of time, and that they were not, as they have been called, either Keepers of the Great Seal or ViceChancellors." would deem the punishment much less heavy than transportation. The evidence all plainly points to the conclusion that this punishment has peculiar terrors for such persons, and there is only one opinion given by all the witnesses, or rather one fact stated by them, as to receivers of stolen goods, by whom transportation is dreaded in an extreme degree. "It ought, however, to be observed, that the degree of weight which may be given to the evidence generally, or to the testimony of particular witnesses, in any discussion upon the administration of criminal justice, must depend in great measure upon the answer to another question, viz., what particular mode of executing the sentence, either of transportation or of imprisonment, is in the contemplation of the witness or of the persons whose opinions he professes to give. We are glad thus to see that Mr. Foss, 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 long, two volumes will appear of his large biographical work of our illustrious judges. within a shorter period of rejoining his family, prisonment at home which holds out the hope and renewing all his criminal associations. But, before forming any sound opinion upon 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. TRANSPORTATION AND JUVENILE OF- THE Report of the Select Committee of the House of Lords on the execution of the Criminal Law, has just been published. It states, that many witnesses have been examined and answers received to the questions submitted to the Judges of the United Kingdom, and the committee report as follows: other is to be carried into execution. "Upon the subject of transportation nearly all the learned judges are clearly and strongly of the same opinion; they consider that it would be extremely unwise to abandon it. "Secondly.-That imprisonment as usually practised is not an efficacious punishment, though accompanied with hard labour, and with separation or with silence, as it is in some prisons, is likewise the result of the evidence. Only those who undergo it for the first time appear to feel it much; this suffering soon wears off. A second commitment finds the criminal by no means unprepared to undergo it, and it ever after ceases to exercise a deterring effect. The number of times that young offenders have been committed, some of them twelve or fifteen times within a few years, seems strongly illustrative of this position; whereas convicts returned from transportation, either by escape or by expiration of their sentences, regard with the utmost terror the repetition of that punishment. "In the first place, nearly all are agreed that the punishment of transportation cannot safely be abandoned; that it has terrors for offenders generally which none other short of death possesses; that no such fear attends imprisonment, especially for hardened offenders; that no hope exists of imprisonment being so far rendered more formidable as to supply in all 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. Execution of the Criminal Law. 241 dence could be given, inasmuch as no sufficient should be entrusted with it, to interposing the experience has yet been had of the improved check of a jury, composed, however, not of systems which are now in partial operation. twelve but of three or four persons. It is also "Thirdly.-The evidence all tends to show the very general opinion that magistrates may the great importance of improving our prison safely and advantageously be armed with a discipline. Solitary confinement ought on no power of discharging for slight offences, upon account to be inflicted beyond a very short taking the recognizances of parents or masters time, as three or four weeks with a consi- for the good behaviour of the party. Imderable interval after each week, and only two portant evidence will be found in the appendix, or at most three weeks during a period of eighteen months or two years. Its effects on both the bodily and mental health are such as plainly to prescribe these limits. especially from Birmingham and Manchester, in favour of a judiciously exercised discretion in discharging boys, especially when apprehended for the first time. The principal difficulty of giving a summary jurisdiction arises from the difficulty of fixing a limit in point of age, and of ascertaining in each case that the party comes within the line. But the committee are strongly inclined to think that much pointing special justices, by enabling magistrates in petty sessions to exercise the summary power, with the previous consent of the parties themselves to submit to such tribunal, confining the jurisdiction to certain offences, and the punishment of six months imprisonment, with or without labour, or to the infliction of whipping in the presence of certain appointed officers, with or without such imprisonment. "The evidence also establishes an important distinction between solitary confinement and the discipline of the separate system. For the cure of moral evil, time is so essential a condition that any system incapable of being long continued must fail of attaining its object. For of this might be got over, even without apthis reason solitary confinement, which cannot be prolonged without injury to the prisoner, must fail. The silent system, as it has been termed, i. e., criminals working together in silence, is objectionable as leading to a multiplicity of gaol offences, and inefficient as wanting that power of forcing men to commune with themselves, which criminals especially dread and require. The separate system, where it has been fairly tried, seems to supply "The question of punishment of juvenile exactly what is needed, forcing the mind to offenders is a further and distinct one beside self-communion, and allowing this to be bro- that of the jurisdiction and power of conviction ken only by communication with those morally in their case. Very important evidence has the superiors of the convict. Nor does this been given in favour of dealing with such system, on the balance of the evidence, appear offenders, at least on first convictions, by to the committee to be inconsistent with the means of reformatory asylums on the principle health of the prisoners in body or mind, of Parkhurst prison, rather than by ordinary although on this last point there is a difference imprisonment; the punishment in such asyof opinion, some witnesses regarding this dis- lums being hardly more than what is implied cipline as hurtful, not indeed to the structure in confinement and restraint, and reformation and functions of the understanding, but to the energies of the will. On this subject the committee would recommend, first, that great care be taken in administering the system of separate confinement with labour, and, secondly, that the number of prisons adapted to the practice of it be multiplied. and industrial training being the main features of the process. Without going beyond the principle which should be followed on this question, the committee are disposed to recommend the adoption, by way of trial, of the reformatory asylums as above described, combined with a moderate use of corporal punishment. The committee also recommend the trial of a suggestion made by witnesses who have given much attention to this subject, that, wherever it is possible, part of the cost attending the conviction and punishment of juvenile offenders should be legally chargeable upon their parents. 66 "Fourthly.-The evidence throws some light upon the treatment of young offenders. That the contamination of a gaol as gaols are usually managed may often prove fatal, and must always be hurtful to boys committed for a first offence, and that thus for a very trifling act they may become trained to the worst of crimes, is clear enough. But the evidence Fifthly. The working of convicts exposed gives a frightful picture of the effects which to public view is condemned by most of those are thus produced. In Liverpool, of fourteen who have been consulted or examined as a cases selected at random by the magistrates, practice tending to harden the offender, as rethere were several of the boys under twelve volting to the feelings of the community, and who in the space of three or four years had even as calculated to excite a feeling in the conbeen above fifteen times committed, and the vict's favour. The French authorities have average of the whole fourteen was no less than with great courtesy and candour communicated nine times. The opinions of competent judges, to the committee valuable information upon especially on the bench, vary as to the expe- this subject; and this information, corroborated diency of giving to magistrates a power of by a witness examined upon the state of the summary conviction in such cases; but the Bagnes or places of forced labour in France, inclination of opinion is in favour of confining leads to a very unfavourable opinion respectthis to professional persons exercising judicial ing this punishment as there conducted. or police functions; or if two ordinary justices "It is moreover clear upon the evidence that 242 Execution of the Criminal Law. this kind of working would tend to undo the corrupting effects produced on the community effects of any reformatory system which might even by those who escape a second punishbe adopted prior to such working. "The objections, however, to this practice are materially diminished if the convicts be employed in remote and comparatively unpeopled districts," such as may be found in some of the colonial possessions of the crown, or in other situations, where the labour of convicts may be employed without all the evils attendant upon working under the public gaze. ment. "Looking to these facts, the committee are of opinion that the punishment of transportation should be retained for serious offences; that such punishment should in some cases be carried into effect immediately, in others at a later period; that the first stages of the punishment, whether carried into effect in this country or in the colonies, should be of a reSixthly." Witnesses of the most competent formatory as well as of a penal character, and authority from Ireland are of opinion that the that the later stages at all events should be carsystem of employing large bodies of convicts ried into effect in the colonies, the convict together in the public view could not be adopted being for that purpose retained under that with safety in that country, where the sympathy qualified restraint to which under the existing of the mass of the people would be in favour system of transportation men holding tickets of the criminal, especially in all cases of agra- of leave or conditional pardon are subjected. rian crimes, and that it would be consequently necessary to transfer to England all Irish criminals destined to be employed on public works, in case this mode of punishment were adopted. 66 "The particular spots to which convicts may be thus sent, and the degree of superintendence to which it is expedient that they should for a limited time be subjected, are matters requiring the most attentive consideration of the governSeventhly.-There is almost entire unani- ment, with whom much discretion respectmity in opinion against imprisonment for short ing them must of necessity be left; they will terms. There is no prospect of the reforma- have to make their decision upon these points tion of any class by such punishments while from time to time according to the varying their tendency is certain to accustom young circumstances of different localities, such as offenders to the infliction, and thereby to lessen the state of the labour market and the moral its deterring effects. If, however, it is found condition as well as the feelings and wishes of in the administration of the criminal law that the free colonists. short imprisonments must still be inflicted, the committee see no reason why solitary confinement should not form part of such sentences, subject to the formerly stated limitation in respect of time. "Eighthly. The evidence, both from France and elsewhere, of the evil effects produced by the liberation of many convicts yearly as their terms of imprisonment expire, would seem strongly to inculcate the necessity of obviating the great inconvenience of setting at liberty in this country on the expiration of their sentences those who had once been convicted of serious crimes. "It appears that Christiana, the capital of Norway, is so injuriously affected by the proportion which the liberated convicts bear to the population-nearly one in thirty-that the inhabitants have been called upon by the police to provide the means of their own security from such persons. In France, where between 7,000 and 8,000 convicts are liberated yearly, the superintendence of the police (surveillance), and the compulsory and fixed residence of the convict, are found very insufficient, especially since the invention of railways. The residence of the liberated convicts is found to be a permanent danger to society. The system of imprisonment (Reclusion), or of the Bagnes or Travaux forcés, is of little effect in reforming, or even in deterring from a repetition of the offences punished, and the proportion of those recommitted for new offences is not less than thirty per cent. Thus of about 90,000 persons tried in the whole kingdom, above 15,000, or one sixth of the whole number, had already suffered imprisonment, to say nothing of the "The papers lately presented to parliament and referred to the committee lead to the inference that in many parts of our colonial possessions there will be a readiness to receive and employ convicts after they have undergone a period of reformatory discipline either at home or in the colonies. The accounts received of the behaviour of the prisoners sent out from Pentonville and Parkhurst, and the opinions expressed in the colonies respecting them, are very encouraging on this point. "The committee must not be supposed to have either overlooked or underrated the alarming state of crime and depravity which appears to have arisen in parts of the Austra lian colonies, but they think that these evils might be remedied by alterations in the police, the penal, the religious, and the moral system to which the convicts, after undergoing reformatory discipline either at home or in the colonies, are subjected, together with such measures as would remedy the existing disproportion of the sexes in the colonies. "Ninthly.-Respecting the expediency of abolishing capital punishments the committee found scarcely any difference of opinion. Almost all witnesses, and all authorities, agree in opinion that for offences of the gravest kind the punishment of death ought to be retained. But the committee find considerable difference of opinion upon the deterring effect of punishment generally. But it is remarkable that those who have actual intercourse with convicts are they who feel the least sanguine as to this deterring or exemplary effect of penal infliction, and who lean the most to make trial of punishment as affording the means of reforma |