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the decrees passed in the courts of equity are carried to the House of Peers; which circumstance alone might suggest that a judge of equity is subjected to certain positive rules, besides those “ of nature and conscience only ;” an appeal being naturally grounded on a supposition that some rules of that kind were neglected.*
* The Court of Chancery has been greatly reformed since the first publication of the last edition by De Lolme of this work. Its judges are at present the Lord Chancellor, three Vice Chancellors, and the Master of the Rolls. During term time the four first sit at Westminster Hall, and in vacation at Lincoln's Inn. The Master of the Rolls sits at the Rolls Court, and in vacation at the Rolls in Chancery Lane. Formerly the Lord Chancellor was the King's chief secretary. Selden says the office existed in the time of Edward the Elder (920); and although he does not appear to have been a judge, the Lord Chancellor was the adviser of the King, and prepared charters, grants, and mandates. He was usually a prelate, and as such Keeper of the King's Conscience, or Lord Keeper. John Williams, Archbishop of York (1621 to 1625), was the last prelate who held this office. The Lord High Chancellor of Great Britain takes rank next to the Archbishop of Canterbury, and above all dukes not of the royal family. He is appointed merely by delivering to him the great seal, and the resumption of which by the Sovereign determines his office. He is a Privy Councillor, Prolocutor and Speaker of the House of Peers, chief judge in the Court of Chancery, and principal adviser of the Sovereign in matters of law. He is also head of the legal profession; and, in the King's right, visitor of all colleges and hospitals of royal foundation, and patron of all crown livings valued under £20 a year, according to the valuation in the reign of Henry VIII. and Elizabeth. He issues writs for summoning Parliaments, and all business connected with the use and custody of the great seal is also transacted by him. He appoints and removes at pleasure justices of the peace. After the dissolution of the Court of Wards, he became the ward of infants and property. He has jurisdiction over lunatics and idiots by delegation from the crown. With respect to writs of habeas corpus, he has concurrent jurisdiction with the judges of the superior courts. By various statutes he is empowered to exercise special jurisdiction as appellate and original judge in regard to friendly societies, infants, lunatics and idiots, trustees of charitable institutions, appeals in Bankruptcy and from Courts of Review. By the 5th Elizabeth, c. 18, the authority of Lord Keeper and of Lord Chancellor were equal. The last Lord Keeper was Lord Henley (1757); since that period the great seal has always been in the custody of the Lord Chancellor, although it has sometimes been put into commission, and entrusted to a Chief Čommissioner during the temporary vacancy of the office. His office changes with the Cabinet of which he is a member. The salary of the Lord Chancellor is £10,000 per annum, paid out of the suitors' fee fund, THE COURT OF CHANCERY. .
The above discussion on the English law has proved much longer than I intended at first; so much as to have swelled, exclusive of his salary as Speaker of the House of Lords ; and by 3 and 4 William IV. he resigns office on an annuity of £5000 a year.- Ed.
There is no Court of Chancery in Scotland ; but the civil law being the basis of Scottish jurisprudence, the Court of Session bears a striking resemblance to the Court of Chancery at Westminster. By the twentyfourth article of the Treaty of Union, it was provided that there should be but one great seal for the United Kingdom; but that a seal should be used for Scotland for private rights and grants, similar to that used when Scotland was an independent kingdom. The last Lord Chancellor was the Earl of Seafield, whose office expired at the union. See De Foe's Hist. of the Union.- Ed.
Ireland has a Lord High Chancellor, whose jurisdiction is nearly the same as that of the Lord High Chancellor of Great Britain. The Master of the Rolls ranks next to the Lord Chancellor, and holds his appointment by letters patent during good behaviour. Except in cases of lunacy and bankruptcy he hears and determines similar matters to those heard and determined originally by the Lord Chancellor. But orders and decrees pronounced by the Master of the Rolls are only valid and good when signed by the Lord Chancellor. The office is of ancient date. The salary by 1st Vict. c. 46, is fixed at £7000 a year. In Ireland the salary of Master of the Rolls is £3969. The next in rank of the Equity Judges at Westminster ‘and Lincoln's Inn, is the ViceChancellor, an office created as late as the 53 Geo. III., c. 24. He also holds office by letters patent during good behaviour. His rank and precedence as Judge is next after that of the Lord Chief Baron of the Exchequer (5 Vic. c. 57). He may hear and determine matters in the Court of Chancery either as a Court of Equity or a Court of Law : and his orders and decrees are valid when signed by the Lord Chancellor. His salary is £5000, with a retiring annuity of £3500. By 5 Vict. c. 5, two additional Vice-Chancellors have been appointed, who hold office under patent, and during good behaviour, with a salary of £5000 a year each, and after serving 15 years, or retiring from infirmity, they enjoy an annuity not exceeding £3,500. An appeal from any of the principal Judges may be made to the Lord Chancellor. The other principal offices in Chancery are the Masters in Ordinary and the Accountant-General, the former appointed by the Crown, during good behaviour, at a salary of £2500 a year each ; their present number, eleven, is about to be reduced. The Accountant-General was appointed 12 Geo. I. c. 32, for securing the money and effects of suitors in Chancery : his salary is £1500, but he realises a large sum from other emoluments. The money standing in his name exceeds £41,000,000, and is nearly all invested in the public funds. He is required to lay before Parliament annually an account of the suitors' fund and the suitors' fee fund. The first consists of money and stock unclaimed, which now amounts to £30,000,000 : the latter of fees formerly paid to the different officers of the Court, and out of which the salaries of the I find, into two additional chapters. However, I confess I have been under the greater temptation to treat at some length the subject of the courts of equity, as I have found the error (which may be called a constitutional one) concerning the arbitrary office of those courts, to be countenanced by the apparent authority of lawyers, and of men of abilities, at the same time that I have not seen in any book an attempt made professedly to confute the same, or indeed to point out the nature and true office of the courts of equity.
OF CRIMINAL JUSTICE.
We are now to treat of an article, which, though it does not in England, and indeed should not in any state, make part of the powers which are properly constitutional, that is, of the reciprocal rights by means of which the powers that concur to form the government constantly balance each other, yet essentially interests the security of individuals, and, in the issue, the constitution itself; I mean to speak of criminal justice. But, previous to an exposition of the laws of England on this head, it is necessary to desire the reader's attention to certain considerations.
When a nation intrusts the power of the state to a certain number of persons, or to one, it is with a view to two points : one, to repel more effectually foreign attacks; the other, to maintain domestic tranquillity. Lord-Chancellor, the Vice-Chancellors, and others holding office in Chancery are paid. There is also an Accountant-General of the Irish Chancery. See Supplementary Illustrations, No. 7.-Ed.
The proceedings of the Court of Chancery are carried on by Bill and answer, and for a long period, especially during the Chancellorship of Lord Eldon, suitors as well as defendants in Equity were worn out or ruined by the length and expense of suits, which frequently lasted a life-time. The reforms which have recently been carried into effect by Lord St. Leonard's, who is said to have left no suit undecided when he resigned office, will accelerate, and, to a considerable extent, diminish the expense of Chancery suits.--Ed.
To accomplish the former point, each individual surrenders a share of his property, and sometimes, to a certain degree, even of his liberty. But though the power of those who are the heads of the state may thereby be rendered very considerable, yet it cannot be said, that liberty is, after all, in any high degree endangered ; because, should ever the executive power turn against the nation a strength which ought to be employed solely for its defence, this nation, if it were really free (by which I mean, unrestrained by political prejudices), would be at no loss for providing the means of its security.
In regard to the latter object, that is, the maintenance of domestic tranquillity, every individual must, exclusive of new renunciations of his natural liberty, moreover surrender (which is a matter of far more dangerous consequence) a part of his personal security.
The legislative power being, from the nature of human affairs, placed in the alternative, either of exposing individuals to dangers which it is at the same time able extremely to diminish, or of delivering up the state to the boundless calamities of violence and anarchy, finds itself compelled to reduce all its members within reach of the arm of the public power, and, by withdrawing in such cases the benefit of the social strength, to leave them exposed, bare and defenceless, to the exertion of the comparatively immense power of the executors of the laws.
Nor is this all; for, instead of that powerful reaction which the public authority ought in the former case to experience, here it must find none; and the law is obliged to proscribe even the attempt of resistance. It is therefore in regulating so dangerous a power, and in guarding lest it should deviate from the real end of its institution, that legislation ought to exert all its efforts.
But here it is of great importance to observe, that the more powers a nation has reserved to itself, and the more it limits the authority of the executors of the laws, the more industriously ought its precautions to be multiplied.
In a state where, from a series of events, the will of the prince has at length attained to hold the place of law, he spreads an universal oppression, arbitrary and unresisted ; even complaint is dumb: and the individual, undistinguisha
ble by him, finds a kind of safety in his own insignificance. With respect to the few who surround him, as they are at the same time the instruments of his greatness, they have nothing to dread but momentary caprices; a danger, against which, if there prevails a certain general mildness of manners, they are in a great measure secured.
But in a state where the ministers of the laws meet with obstacles at every step, even their strongest passions are continually put in motion; and that portion of public authority deposited with them as the instrument of national tranquil. lity, easily becomes a most formidable weapon.
Let us begin with the most favourable supposition, and imagine a princewhose intentions are in every case thoroughly upright; let us even suppose that he never lends an ear to the suggestions of those whose interest it is to deceive him : nevertheless, he will be subject to error; and this error, which, I will farther allow, solely proceeds from his attachment to the public welfare, yet may happen to prompt him to act as if his views were directly opposite.
When opportunities shall offer (and many such will occur) of prucuring a public advantage by overleaping restraints, confident in the uprightness of his intentions, and being naturally not very earnest to discover the distant evil consequences of actions, in which, from his very virtue, he feels a kind of complacency, he will not perceive, that, in aiming at a momentary advantage, he strikes on the laws themselves on which the safety of the nation rests, and that those acts, so laudable when we only consider the motive of them, make a breach at which tyranny will one day enter.
Yet farther, he will not even understand the complaints that will be made against him. To insist upon them will appear to him to the last degree injurious: pride, when perhaps he is least aware of it, will enter the lists; what he began with calmness he will prosecute with warmth; and if the laws shall not have taken every possible precaution, he may think he is acting a very honest part, while he treats, as enemies of the state, men whose only crime will be that of being more sagacious than himself, or of being in a better situation for judging of the results of measures.
But it were to exalt human nature extravagantly, to think that this case of a prince, who never aims at augmenting his