Til 



CHANCELLOR OF SCOTLAND 



CHANCERY. 





duchy of Lancaster. The court is held four time* a year by the 

 Vice-Chancellor at Liverpool 



The CAonmAor* o/ Ike l'irmilif of OjforJ and Camhnit,/f are 

 elected by the respective corporate bodies of which they ar? the bead* ; 

 they exercise exclusive jurisdiction in all civil action* ami suit where 

 a member of the university or privileged person is one of the parties, 

 except in caw* where the right to freehold is concerned. In both the 

 Knglish universities the duties of the chancellor are in nearly all oases 

 discharged by a vice-chancellor. 



The C'AawW/or of tie Erdie^iifr a under-treasurer, and hold* the 

 seal of the exchequer. The office of lord high treasurer U now 

 executed by the lords commissioners of the treasury. The chancellor 

 of the exchequer U the principal finance minister of the crown, and 

 the office u generally held by the prime minister when he is a member 

 of the House of Common*. The legal functions of the chancellor of 

 the exchequer are now merely formal. Bills in the exchequer are 

 iiJJnjau.il to him and to the barons of that court, and on some occa- 

 ions (as on his appointment) he sits in court; but all the legal 

 holiness is transacted by the barons. If the chief boron and barons 

 are equally divided in opinion, the chancellor of the exchequer may be 

 required to rehear the cause with the barons, and give his decision. 

 The last instance occurred in 1735, when Sir Robert Walpole gave 

 his decision upon a question of considerable doubt and difficulty 

 which is said to have given great satisfaction. (Fowler's ' Exchequer 

 Practice.') 



The Ckaaetilor of the Order of the Garter, and other orders of 

 knighthood, seals and authenticates the formal instruments of the 

 chapter, and keeps the register of the order. He exercises various 

 functions at the installation of the knights, and during their meetings 

 and processions. 



CHANCELLOR OF SCOTLAND. As in England, the chancellor 

 (.f Scotland wag always a high officer of the crown, and had great in- 

 fluence with the king and authority in his councils. As in England 

 too, that authority at length extended itaelf beyond its former limits, 

 and affected the whole judicial power of the kingdom. Its operation 

 and effect in the two countries, however, was different : for while in 

 England the chancellor only carved out for himself a jurisdiction in 

 equity, in Scotland he reached the head of the administration of 

 justice, and sat in a court which dispensed both equity and common 

 law, and the course of proceeding in which all the other judicatures 

 of the realm were bound to follow. 



In 1425, shortly after the return of James I. from his long captivity 

 in England, the " chancellor and with him certaine discreet* persones 

 of the thre estates chosen and depute by the king " were erected into 

 the court of the session, for the final determination of all matters com- 

 petent to the king and his council. This court however expired with 

 Bishop Wardlaw, from whom in all likelihood it originated ; and the 

 former policy of determining suits by the old common law was 

 restored. This continued (with the exception of an attempt to the 

 contawy in 1457, probably under the influence of Bishop Shorse- 

 wood, the favourite and confessor of King James II.) till the time of 

 Bishop Elphinstone, to whom undoubtedly may be ascribed the crafty 

 acts passed in 1487 for the recovery of the large jurisdiction of the 

 chancellor and court of the session, as well as the act 1494, c. 5, to 

 enforce in the courts the study and practice of the canon and civil 



laws. Nor perhaps shall we greatly >-n ii nceiviug his ueal to have 



been employed in establishing in 1503 the court of daily council, 

 which was Essentially a restoration of the old court of the session. 

 Rut all these proved only preparatory steps to the erection of the 

 court of council and session, or college of justice, which WOK instituted 

 in 1632, and has continued to our own time. Of this college the chan- 

 cellor, or, as he then began to be styled, lord chancellor of Scotland, 

 was to be principal ; and as on the one hand it was the supreme court 

 ot the kingdom, and on the other all inferior courts were required < 

 copy its proceedings, it wielded the whole indicative power of the 

 country. It early claimed also, and exercised, a large legislative power 

 under the statutes permitting it to pass acts of sedenmt; ami the 

 officers who executed its warrants and decrees, were either its own 

 macers or else messengers, over whom it obtained complete control 

 These powers the court wielded so as to effect nearly an entire change 

 of the law. The ecclesiastical estate for some time predominated both 

 on the bench and at the bar. The consequence was, the canon and 

 civil laws became, what indeed they used to be styled, the common 

 law of the land, and the old common law became antiquated, and 

 ultimately obsolete. The new system was too effectually established to be 

 much disturbed by the Reformation ; and the union with England, where 

 the old common Uw had been and has ever continued the antar 

 Roman jurisprudence, has accordingly not produced any assimilation 

 of the laws of the two countries. At the Reformation the authority, 

 though not the spirit, of the canon law may be considered, in matters 

 ecclesiastical at least, to have ceased ; and not long afterwards ministers 

 f th<- Oospel were disabled by statute from being either of the bench 

 or bar. Since the union, when both portions of the island became one 

 great mercantile community, various provisions have been made to 

 improve and assimilate the laws of the two kingdoms ; but these have 

 been confined to that one branch of jurisprudence, and an apparently 

 invincible repugnance has bam evinced to more extensive changes. 



The procedure in the court of session in Scotland resembles in some 



points that of the court of chancery in England. Both courts indeed, 

 and the ecclesiastical courts of both countries, borrowed their forms 

 from the court of Rome, and with these last the forms of tin ,-om-t of 

 session in many respects still agree. The bill or written i-iippl: 

 to the court for letters, whether of summon.- or of dili^enc. . i- of the 

 same nature with the supplication for letters in the e\irt of Koine : 

 and it is observable that when the dexire of the bill is granted, it is 

 in the same terms in both courts. The condeacendence and answers 

 are plainly derived from the articuli and responsiones of the papal 

 tribunal. The initialia testimonii. or purging of a witness, 

 with the interrogator!.-! geueralia of that court. Letters of adv< 

 suspension, and reduction, are well known there. The " male appella- 

 tum et benc processum " is but verbally translated in the phrase of the 

 Scots court, "Finds the l.tt'i- orderly proceeded;" and letters of 

 horning, caption, and relaxation, bear their papal origin impressed 

 upon them. It appears also that from an early period the court issued 

 commissions to its macers to perform judicial duties, as the ecclesiastics 

 appoint the inferior church officers their legates and commissaries for 

 the like purposes ; and at an early time also the judges began the yet 

 subsisting custom of changing their name on their elevation to the 

 bench, in imitation, as it seems, of the like custom on elevation in the 

 papal hierarchy. 



From what is above stated, we may see why there is no court of 

 chancery in Scotland, separate from the courts of common law. .,- in 

 England ; the whole judicatures of Scotland having become subject to 

 the court of session, where the chancellor presided, dispen-.n.- \\lnt 

 has been described as both equity and common law. But from the 

 earliest times there has Iwen a chancery in Scotland, and many of the 

 early chancellors are described as " clerici concellarii." 



A list of the chancellors as of the other great officers of the crown 

 in early times, is given in Crawford's ' Officers of State.' A subsequent 

 list is given by Chalmers in his ' Caledonia ; ' but a correct or complete 

 list has not yet, it is )>elieved, been compiled; and except to the 

 Scottish antiquary the matter is not one of any great interest. Tin- 

 earliest chancellor whose existence can be authenticated, was Con-t.m 

 tine, earl of Fife, chancellor, temp. Alex. I. Alan St. Kdtnouds, bishop 

 of Caithness in 1291, seems to be the only chancellor nominated by Kinp 

 Edward I. of England, who associated in office with him Walter de 

 Agmodescham ( Ayloff s ' L'al.' 1 05), and thereafter Adam de Boding- 

 don, who was vice-chancellor, 1 29 1 ( with half a mark a day for his salary, 

 Kotul. ' Scot." 9), and chancellor in December of the same year, the 

 bishop of Caithness having previously died. He was followed by nearly 

 thirty ecclesiastical chancellors, till, in 1480, Andrew, Lord Avendale, 

 held the office. After three episcopal chanceUorships, Colin, earl of 

 Argyll, held office in 1483 to 1488; and after him came Archibald. 

 earl of Angus, and George, earl of Huntley. James Beaton, abbot of 

 Dunfermline, became chancellor in 1513. In 1525, on the removal of 

 the duke of Albany from the regency, the earl of Angus turned Beaton, 

 now bishop of St. Andrews, out of the chaucellorate, which with 

 several other offices he then engrossed to himself. On Angus's fall 

 the place was given, in 1528, to Oavin Dunbar, archbishop of Olasgnw. 

 in whose time the college of justice was instituted. 



The series of chancellors need not be further continued. By the 

 treaty of Union it was provided that there should in future IK- but 

 one great seal for the United Kingdom, and that a seal should be kept 

 and used in Scotland for such private rights or grants as had usually 

 passed the great seal of Scotland. The office of chancellor of Scotland 

 then properly expired, and none have been appointed to it since the 

 earl of Seafield, who wa- < h:m< > llor at the time of the Union. 



CHANCERY (Canctllaria) ; the term is derived from Chancellor, 

 CaaceUarlut, and signifies the court where that judge exercises his 

 functions. There are several -. as there are several chan- 



cellors; but the place where the Lord High Chancellor's judicial 

 functions are exercised is especially called the Chancery. 



The principal part of the business of the Court of Chancery consists 

 in the administration of n/iiily, a name which in this country com- 

 prehends a particular set of rules, having the force of law, which are 

 applicable to such matters as belong to the jurisdiction of the court . 

 [EquiTi.] The court of chancery of the County Palatine of Lancaster, 

 the court of the Stannaries, the Lord Mayor's court of London, and 

 various local courts have a similar jurisdiction. 



The Lord Chancellor, the Lords Justices of the Court of Appeal in 

 Chancery, the Vice-chancellors, and the Master of the Rolls are the 

 judges by whom equity is administered in Chancery. Each of these 

 judges has a separate court These courts have no fixed or permanent 

 situation ; but except on the first day of term, when they meet at 

 Westminster, the former are held in Lincoln's Inn, and the last at the 

 lioll-. in Chancery-lane. 



The Court of Chancery is a name which properly belongs to HI.- 

 Lord Chancellor's court, and the court of the Lords Justices and Vice 

 Chancellors. The Master of the Rolls, who is appointed by the crown 

 by letters patent, and holds his office for life, administers equity in a 

 separate court, called the Rolls. He has the power of hearing and 

 determining originally the same matters as the lord chancellor, ex- 

 cepting cases in lunacy, which are specially delegated by the crown to 

 the chancellor and lords justices. All orders and decrees pronounced 

 by the Master of the Rolls must be signed by the Lord Chancellor 

 before they are enrolled. This officer has precedence next to the lord 



