« EelmineJätka »
restored. This continued (with the excep- | broken by the Union, when both portions tión of an attempt to the contrary in 1457, of the island became one great mercanprobably under the influence of Bishop | tile community, to which the civil law Shorsewood, the favourite and confessor was in many respects unsuitable; and. of King James II.) til} the time of Bishop since that event various provisions have Elphinstone, to whom undoubtedly may been made to improve and assimilate the be ascribed the crafty acts passed in 1487 laws and practice of the two kingdoms. for the recovery of the large jurisdiction The similarity of procedure in the of the chancellor and court of the session, court of session in Scotland and the high as well as the act 1494, c. 5, to enforce court of chancery in England is striking. in the courts the study and practice of Both courts indeed, and the ecclesiastical the canon and civil laws. Nor perhaps courts of both countries, borrowed their shall we greatly err in conceiving his forms from the court of Rome, and with zeal to have been employed in establish- these last the forms of the court of session ing in 1503 the court of daily council, in many respects still agree. The bill which was essentially a restoration of the or written supplication to the court for old court of the session. But all these letters, whether of summons or of diliproved only preparatory steps to the erec- gence, is of the same nature with the suption of the court of council and session, or plication for letters in the court of Rome; college of justice, which was instituted in and it is observable that when the de1532, and has continued to our own time. sire of the bill is granted, it is in the same of this college the chancellor, or, as he terms in both courts. The condescenthen began to be styled, lord chancellor dence and answers are plainly derived of Scotland, was to be principal ; and as from the articuli and responsiones of the on the one hand it was the supreme court papal tribunal. The initialia testimonii, of the kingdom, and on the other all in or purging of a witness, are identical ferior courts were required to copy its with the interrogatoria generalia of that proceedings, it wielded the whole judica- court. Letters of advocation, suspension, tive power of the country. It early and reduction are well known there. The claimed also, and exercised, a large legis- “ malè appellatum et benè processum” is lative power under the statutes permitting but verbally translated in the phrase of it to pass acts of sederunt; and the offi- the Scots court, “ finds the letters orderly cers who executed its warrants and de- proceeded;" and letters of horning, capcrees were either its own macers or else tion, and relaxation bear their papal' messengers, over whom it obtained com- origin impressed upon them. It appears plete control. These powers the court also that from an early period the court wielded so as to effect nearly an entire issued commissions to its macers to perchange of the law. The ecclesiastical form judicial duties, as the ecclesiastics estate for some time predominated both appoint the inferior church officers their on the bench and at the bar. The con- legates and commissaries for the like pursequence was, the canon and civil laws poses; and at an early time also the became, what indeed they used to be judges began the yet subsisting custom of styled, the common law of the land, and changing their name on their elevation the old common law became obsolete and to the bench, in imitation, as it seems, of antiquated. Much of this has been cor the like custom on elevation in the papal rected since the Reformation ; and still hierarchy. more since the union with England,
From what is above stated, we may see where the old common law has ever con- why there is no court of chancery in tinued the antagonist of Roman jurispru- Scotland, separate from the courts of comdence. At the Reformation the authority mon law, as in England; the whole judiof the canon law ceased, and not long catures of Scotland having become subafterward ministers of the gospel were ject to the court of session, where the disabled by statute from being either of chancellor presided, dispensing both equity the bench or bar. The authority of the and common law. But from the earliest canon law was in like manner essentially times there was an office of chancery in
Scotland, and we shall find that many of law judges, that is, during good behaviour. the early chancellors had been clerici He has the power of hearing and detercancellarii.'
mining originally the same matters as the In the list of chancellors for Scotland Lord Chancellor, excepting cases in luin the Penny Cyclopædia,' art. “ Chan- nacy and bankruptcy ; orders and decrees cellor,
are corrected pronounced by the Master of the Rolls which occur in Crawford’s ‘Officers of are good and valid, but they must be State' in the series of chancellors of Scot- signed by the Lord Chancellor before land. In Beatson's • Political Index' | they are enrolled, and they are subject there is a chancellor as early as the reign to be reversed by the Chancellor. T'he of Malcolm III., but the more authentic Master of the Rolls has precedence next series begins with Constantine, earl of to the Lord Chief Justice of the King's Fife, who was chancellor in the time of Bench. This office is one of high anAlexander I.
tiquity. The salary is 7000l. a year By art. 24 of the treaty of Union, it under i Vict. c. 46. The Master of the was provided that there should in future Rolls in Ireland has 39691. a year under! be but one great seal for the United King- 4 Geo. IV. c. 61. dom, and that a seal should be kept and The office of Vice-Chancellor was creused in Scotland for such private rights ated by 53 Geo. III. c. 24.
This officer or grants as had usually passed the great (who, in Chancery, takes precedence next seal of Scotland. The office of chancel to the Master of the Rolls) is appointed lor of Scotland then properly expired, by the crown by letters patent, and and none have been appointed to it since holds his office during good behaviour. the earl of Seafield, who was chancellor Rank and precedence are given him by at the time of the Union.
5 Vict. c. 5 next after the Lord Chief CHANCERY (Cancellaria); the term Baron of the Exchequer. If a mem. is derived from Chancellor, Cancellarius, ber of the Privy Council, he is also to and signifies the court where that judge be a member of the Judicial Commitexercises his functions. There are several tee. He has power to hear and determine chanceries, as there are several chancel- all matters depending in the Court of lors ; but the place where the Lord High Chancery, either as a court of law or as Chancellor's judicial functions are exer a court of equity, or as incident to any cised is called the High Court of Chan- ministerial ollice of the said court, or cery.
which are subjected to the jurisdiction of The principal part of the business of such court or of the Lord Chancellor by the Court of Chancery consists in the any special act of parliament, as the Lord administration of Equity, a name which Chancellor shall from time to time direct. in this country comprehends those rules All orders and decrees of the Vice-Chan. of law, which are applicable to such cellor are valid, but subject to be altered matters as belong to the jurisdiction of or reversed by the Chancellor; and they the court. The Court of Exchequer had must be signed by the Lord Chancellor a similar jurisdiction, which was abo- before they can be enrolled. It is exlished by 5 Vict. c. 5. [EQUITY.] pressly provided by the act that the Vice
The Lord Chancellor, the three Vice-Chancellor has no power to alter or disChancellors, and the Master of the Rolls, charge any decree or order made by the are the judges by whom equity is admi- Lord Chancellor, unless authorisai by nistered in Chancery. Each of them has the Lord Chancellor, nor any power to a separate court. In term-time they sit alter or discharge any order or decree on in Westminster Hall; in vacation, the the Master of ihe Rolls. The salary is Chancellor and Vice-Chancellors sit in 60001. a year, granted by 2 & 3 Will. IV. Lincoln's Inn, and the Master of the Rolls c. 116. On the next appointment of a at the Rolls, in Chancery-lane.
Vice-Chancellor, under 53 Geo. III. c. The Master of the Rolls is appointed by 24, the salary will be 50001., with a retir. the crown by letters patent, and holds his ing pension of 35001. Since the appointoffice on the same terms as the common ment of two additional Vice-Chancellors
by 5 Vic. c. 5, he is styled the Vice- chequer was abolished by 5 Vict. c. 5. Chancellor of England.
They were formerly appointed by the The act appointing two additional | Lord Chancellor, but are now appointed judges (Vice-Chancellors) to assist in the l' by the crown, and hold office during good discharge of the functions of the Lord behaviour. (3 & 4 Wm. IV. c. 94.) The Chancellor is the 5 Vict. c. 5. They are salary is 25001. a year. It is the duty of respectively styled the first Vice-Chan- the Masters to execute the orders of the cellor and the second Vice-Chancellor, court upon references made to them, and hold office during good behaviour. whether in exercise of its original jurisThe act prohibits the appointment of a diction, or under the authority of an act successor to that one of the two new of parliament, and to make reports in Vice-Chancellors who was appointed se- writing upon the matters that are recond. The salaries of the new Vice- ferred to them. The Masters' reports Chancellors are 50001. a year each, paid must be confirmed by the court in order to out of the interest arising from the Sui- make them effectual. The heads of refertor's Fund. The salaries of the secretary, ence to the Masters are almost as numerous usher, and train-bearer, of each Vice- as the subjects of the court's jurisdiction. Chancellor are fixed by the act at 300l. a The principal subjects of reference are, year for the secretary, 2001. for the usher, to examine into any alleged impertinence and 100l. for the train-bearer. After fif- contained in pleadings, and into the sufteen years' service, or when incapacitated ficiency of a defendant's answer; to exfor the duties of office by infirmity, a pen- amine into the regularity of proceedings sion not exceeding 35001. a year may taken in any cause, or into alleged conbe granted to each Vice-Chancellor. If | tempts of court; to take the accounts of he holds any other office of profit under executors, administrators, and trustees, the crown the annuity will be reduced, so or between any parties whatsoever; to that on the whole his public income may inquire into, and decide upon, the claims not exceed 3500l. a year.
of creditors, legatees, and next of kin; to An appeal (which, strictly speaking, is sell estates, and to approve of the investnothing more than a re-hearing of the ment of trust-money in the purchase of cause) may be made from any decision estates, and, for this purpose (or for any of the Master of the Rolls or the Vice- other, as the case may be), to investigate Chancellors to the Lord Chancellor, and titles, and settle conveyances; to appoint the court of the Lord Chancellor has guardians for infants, and to allow proper been of late years much occupied with sums for their maintenance and educasuch appeals : original causes are gene tion; to tax the costs of the proceedings in rally confined to the courts of the Master any suit, or under the orders of the court: of the Rolls and the Vice-Chancellors. and generally to inquire into and inform The appeal from the decree of the Lord the equity judge upon all matters of fact, Chancellor is to the House of Lords. which are either disputed between the
There are officers of the Court of Chan- parties, or not so far ascertained by evicery by whom certain parts of the equit- dence as to preclude all doubt on the able jurisdiction are exercised. These subject. officers have however no original power
The Accountant-General is an officer for this purpose, but derive all their au created by the stat. 12 G. I. c. 32, which thority from special delegation by one of also regulates his duties. [ACCOUNTANTthe judges in Chancery. The principal GENERAL..] of these officers are the Masters in Ordi The proceedings in the Court of Channary, and the Accountant-General. The cery are conducted by Bill and Answer. Masters in Ordinary are eleven in num- But besides the jurisdiction, of which a ber, besides the Master of the Rolls, who sketch has been given above, a summary is the chief of them, and the Accountant- jurisdiction, upon Petition only, has been General. The number of Masters was given to Courts of Equity in certain cases increased from ten to eleven when the by acts of parliament. The principal equity jurisdiction of the Court of Ex cases in which this summary jurisdiction
has been granted are those where trustees court will have the issues tried by jury, or mortgagees die without heirs or leaving and give judgment in the actions : and, infant heirs, or where trustees are out of from a judgment on demurrer in this the jurisdiction, or refuse to convey pro- court, it is said that a writ of error lies perty to the persons beneficially entitled to the Court of King's Bench. to it. In these, and many similar cases, To the common law jurisdiction of the the court is empowered, upon petition of Court of Chancery belongs the power of the parties beneficially interested, to di- issuing certain writs ; particularly the writ rect a conveyance or assignment of the of habeas corpus, and the writs of certiorari property held in trust or on mortgage by and prohibition, for restraining inferior the infant, or in case of a trustee having courts of justice from assuming unlawful died without beirs, or being out of the authority. (1 Madd. Chanc. 17, &c.) jurisdiction of the court, or refusing to The place where the common law convey, to appoint some other person to jurisdiction of the Court of Chancery is convey in his place. The principal sta- exercised is the petty bag office ; which is tutes relating to this branch of the ju- kept solely for this purpose. No part of risdiction of the court are, 1 Wm. IV. the equity business of the Court of ChanC. 47, 1 Wm. IV. c. 60, 1 Wm. IV. c. 65, cery is carried on there. 4 & 5 Wm. IV. c. 23, 5 & 6 Wm. IV. The Court of Chancery, in respect of c. 17.
its common law jurisdiction, is said to be The stat. 52 G. III. c. 101 gives the a court of record, which, as a court of court a summary jurisdiction in cases of equity, it is not. (Spelm. Gloss. 3 BI. abuse of charitable trusts. The court Com. 24.) also appoints guardians for infants upon “ In this ordinary or legal court,” says petition merely.
Blackstone (vol. iii. 49), “is kept the The jurisdiction exercised in Chancery officina justitia, out of which all original over infants and charities is partly derived writs that pass the great scal, all letters from the general equity jurisdiction, and patent, and all commissions of charitable partly from acts of parliament. (As to uses, bankruptcy, sewers, idiotcy, luzacy, the origin of the jurisdiction over infants, and the like do issue.” The issuing of see Coke upon Litt., by Hargrave, 88 b. original writs, however, is now unfren. 16; 2 Fonbl. on Eq., p. 226, 232.) quent. These writs, which were for
The jurisdiction over infants is exer- merly the foundation of all actions in cised principally in directing maintenance the courts of law at Westminster, have, to be given them out of the property with few exceptions, been abolished by which they will enjoy on attaining their recent statutes. Commissions of bank. full age; in appointing and controlling ruptcy also are now never issued, owing guardians of them; and in providing to the late alterations in the bankrup: suitable marriages for them.
law. [BANKRUPT.] A distinct part of the business in Chan The principle of the High Court of cery, though but a small part, arises from Chancery in England has led to the estawhat is called the common lau jurisdiction blishment of courts of equity in the Briof the Court of Chancery.
tish dominions and dependencies. Some It has chiefly respect to actions by or of these are called Courts of Chancery. against any officer or minister of the In each of the counties palatine of Lan Chancery, and to judicial proceedings caster and Durham, and also in Ireland, respecting the acts of the king, when there is a court so named, which dispenses complained of by a subject. 3 Black- the same equity within the limits of its stone, Com. 48.
jurisdiction, as the High Court of ChanIn actions depending in the Court of cery. By 6 & 7 Wm. IV. c. 19, the palaChancery by virtue of its common law tine jurisdiction of Durham was separated jurisdiction, the court has no power to from the bishopric and vested in the king, try issues of fact. For this purpose the but the courts were expressly reserved. record of the pleadings must be delivered in the Irish Court of Chaucery the Lord to the Court of King's Bench, and that Chancellor for Ireland presides. From
these courts the appeal is immediately that any edifice should be erected for to the House of Lords.
it. Chantries were usually founded in In most of our colonies there are Courts churches already existing : sometimes the of Chancery (Howard's Laws of the Colo- churches of the monasteries, sometimes the nies). From the colonial courts an appeal great cathedral or conventual churches, now lies to "the judicial committee of the but very frequently the common parish Privy Council.” (Stat. 2 & 3 Wm. IV. church. All that was wanted was an altar c. 92.)
with a little area before it and a few apThere are Chancery Courts in some of pendages ; and places were easily found the states which compose the North in churches of even small dimensions in American Union.
which such an altar could be raised withCHANCERY, INNS OF. [INN.] out interfering with the general purposes
CHANTRY (Cantária, in the middle for which the churches were erected. An age Latin), a private religious foundation, attentive observation of the fabric of the of which there were many in England parish churches of England will often before the Reformation, established for show where these chantries have been; the purpose of keeping up a perpetual in some churches there are perhaps small succession of prayers for the prosperity remains of the altar, which was removed of some particular family while living, at the Reformation, but the traces of them and the repose of the souls of those mem are seen more frequently in one of those bers of it who were deceased, but espe- ornamented niches called piscinas, which cially of the founder and other persons were always placed near the altars. Somenamed by him in the instrument of foun- | times there are remains of painted glass dation. The French word Oratoire ap- which was once the ornament of these pears to correspond to rhantry.
private foundations, and more frequently Chantries owed their origin to the opi- we see one of those arched recesses nion once generally prevalent in the in the wall which are called Founders' Christian church of the efficacy of prayer Tombs, and which in many instances no in respect of the dead as well as the liv- doubt were the tombs of persons to whose ing. Among the English, it prevailed memory chantries had been instituted. in all ranks of society. The inscriptions In churches which consisted of only upon the grave-stones of persons of ordi nave and chancel with side aisles, the nany condition in the times before the eastern extremities of the north and south Reformation almost always began with aisles were often seized upon for the pur"Orate pro animâ,” “ Pray for the soul,” pose of these foundations ; in the larger which was
an appeal to those who churches, in which the ground-plan reTesorted to the churches to pray for sembles the cross on which the Saviour the soul of the person who slept below. suffered, the transverse beams (transepts) Princes and persons of great wealth, were generally devoted to the purpose of when they founded monasteries, included these private foundations.
In the great amongst the duties of the religious for conventual churches and the churches of whose use they gave them, that they monasteries, it would appear as if provishould receive in them their bodies, sion was often made for these private and for ever make mention of them in chantries in the original construction, their daily services. When a taste for each window that looks eastward being founding monasteries declined, which often made to light a small apartment may be referred to about the close of the just sufficient to contain an altar and a twelfth century, the disposition to secure little space for the officiating priest. the same object, by the foundation of It was by no means unusual to have chantries, began to prevail extensively four, five, or six different chantries in a in the better classes of society, and it con common parish church : in the great tinued to the Reformation, when all such churches, such as old St. Paul's in Lonfoundations were swept away as super- don, the Minster at York, and other ecstitious.
clesiastical edifices of that class, there A chantry did not necessarily require were at the time of the Reformation