The Chancellor's Influence in the Appointment of Judges. 355

holds in every Act of Parliament connected with the government of the country, and in the administration of justice, will alone suffice to show this; but after Becket's time his influence was for the most part silently exercised in the Council, so that the Chancellor *seldom appears as a prominent figure in history (a). The comparative immunity [356] of the clerical Chancellors from secular control, as has been already observed, tended greatly to increase this influence. No one but a dignified ecclesiastic (b) would ever have thought of establishing a court, constituted in effect of one man, for the correction of the law, when there was a legislature consisting of King, Lords, and Commons who were engaged (c) at the very time in providing for the amendment of the law and securing its due administration.

What the Chancellor was in his own court will be stated in the succeeding Chapters. I am about here to introduce a short notice of his influence over the judicial system generally. The Chancellor appears to have had the nomination of the Common Law Judges; the Chief Justices would seem to have been appointed directly by the king, by the advice no doubt of his council. We learn from Fortescue (d), who held the office of Chief Justice of the King's Bench, and also that of Chancellor though he never officiated as such, that as regards the puisne judges, it was the practice for the Chancellor to come into the Court where the vacancy was, bringing in his hand the letters patent by which the new judge was appointed; when sitting on the Bench, together with the Judges of the Court (e), he introduced the Serjeant who was appointed to be Judge, to whom in open court he notified the king's pleasure concerning his succession to the vacant office; then the Master of the Rolls administered to him the oath of office, and the Lord Chief Justice of the Court assigned to the newly appointed Judge his place on the Bench. The appointment of the puisne judges still belongs to the patronage of the Lord Chancellor, though subject to the control of his colleagues, who are directly responsible to the Houses of Parliament in the event of an improper appointment being made (ƒ).

The Court of Chancery from the reign of Henry VI. down to the Commonwealth, consisted of the Chancellor as sole or at least supreme *Judge (g), the Master of the Rolls, and a college of clerks who have been before noticed, of which the Master of the Rolls was [*357] the chief. The clerks in early times lived together in the King's Palace, or in some special Hostel allotted to them (h).

(a) There are some exceptions for which I beg to refer to Lord Campbell's very interesting Lives of the Chancellors.

(b) There were one hundred and sixty Ecclesiastics advanced to this office down to the time of Wolsey, Pref. to Nelson's Reports.

(e) See int.al. the Statutes before referred to, passed in the reign of Edw. III. and Rich. II. et v. supra, p. 242.

(d) De Laudibus Leg. Ang. c. 51. (e) "The Lord Chancellor admitteth all the Judges into their places, and sitteth above them in their own courts," Chancery Vindic. supposed to be by Lord Ellesmere, 1 Rep. in Ch. p. 7.

(f) The Masters are now, or ought to be, appointed by the Chancellor in the same manner. See Hansard's Parl. Debates, vol. xvii. 3d series, p. 71.

(g) Crompton, 41 a. first published 1594, and Camden's Britann. Some authors, as Lord Coke, 4 Inst. 84, Leg. Jud. 53, and Sir H. Spelman, Gloss. hac voce, and Sir H. Davis, Pref. to his Reports, treat the Chancellor as the Sole Judge, Leg. Jud. 54; and see Lord Ellesmere, p. 31. In the Year Book, 27 Hen. VIII. fo. 15, it is said that in this court there is but one judge, viz. The Chancellor.

(h) Treatise of the Masters, Harg. Law Tracts, p. 315.

357 Chancellor, sole or chief Equity Judge-Master of the Rolls.

The office of Master, or Clerk, or Custos of the Rolls, as he was called till the reign of Henry VII. (a), was, as we have seen, of the highest antiquity (b), and gave very high rank. In an Act of Parliament of the 12 Richard II. A. D. 1388, he is placed before all the judges, and next to the Chamberlain (c). He had from the most ancient times an office in the Chancery with distinct clerks (d). Edward III. in the 51st year of his reign, granted the Rolls House, which Henry III. had appropriated as an hospital for converted Jews, to the Master of the Rolls and his successors for ever, which was confirmed by Richard II. By the terms of the original grant the Chancellor or Keeper of the Great Seal was to put each successive Master of the Rolls in possession of the premises so granted (e); and this mode of induction and instalment took place so long as the Master of the Rolls was of the Clergy (ƒ), as he always was at this period, and for a considerable time afterwards.

Chief Justice Fortescue, as before mentioned, notices that the judges were sworn in his presence (g); and he attended with the Chief Justices at the appointment of the sheriffs (h). He was, like the Chancellor, a conservator of the peace, one of the most ancient offices in the kingdom, by prescription. The Master of the Rolls was usually associated with the Chief Justices, in all references made to them for their opinions on great questions on which the Crown desired to be advised (i). His style as Master of the Rolls was "The Right Worshipful" (k). __The Master of the Rolls was very frequently appointed to be the Lord Keeper of the Great Seal (1). Sometimes the judicial authority of Chancellor [*358] was conferred upon him without the seal, and sometimes when the seal was intrusted to him he was restricted in its use.

In early times the appointment to the office of Master of the Rolls does not appear, of itself, to have conferred any judicial authority (m). Indeed, some of the early appointments authorized the Keeper of the Rolls to appoint a deputy, which would seem to exclude the notion that any original judicial authority was attached to the appointment (n). Some of the appointments in the time of Edw. II. are expressed to be with the assent of the Chancellor, in some instances of others of the Council (o); this, together with the circumstance of his installation at the Rolls by the Chancellor, favors the conjecture (p), that originally the office was instituted to ease the Chancellor of a portion of his own duties, and that the office was in his own appointment.

(a) 1 Hen. VII. c. 20. Pettus. on Parl. p. 321, c. 13.

(b) V. sup. p. 100, and see Discourse, &c. p. 18: until the 26th Hen. VIII. all the Masters of the Rolls were churchmen, Pref. to Nelson's Ch. Rep.

(c) Discourse, &c. p. 19. The Act is set out by Knyghton in his Chronicle, p. 2729, 62; it is not in Ruffhead's edition.

(d) Ord. Cancell. 12 Richard II., Sanders's edition, p. 2.

(e) The grant is set out in Philipot's Catalogue of the Chancellors, p. 47.

(ƒ) Ibid. p. 48. et v. sup. p. 100, Lord Ellesmere's Treatise, p. 36.

(g) De Laud. c. 51, Amos's edn. P. 194. (h) Discourse, &c. p. 18.

(i) V. int. al. The case of the Serjeants, by Serj. Manning, p. 306.

(k) Reg. Lib. B. 1582, fol. 218.
(1) See Hardy's Catalogue.

(m) The first recorded appointment of Master of the Rolls, 23 Edw. I. a. D. 1295, or according to Mr. Hardy (Catalogue, p. 13), 14 Edw. I., merely confers on him, on the part of the king, the custody of the Rolls of Chancery, and he is to enjoy the office according to old established cus tom, Discourse, p. 12; Hardy's Catalogue, p. 14.

(n) Leg. Jud. 104–6.
(o) Discourse, p. 13.
(p) V. supra, p. 100.

Judicial Authority of Master of the Rolls-Judicial Duties. 358

The exercise of judicial authority by the Master of the Rolls, is to be traced from the reign of Edw. I. downwards (a).

In the reigns of Hen. VI. and Edw. IV. we find the Master of the Rolls sitting jointly with one of the judges on different matters connected with the judicial duties of the Chancellor (b). From the reign of Henry VI. there are bills for relief addressed to him (c).

In the reign of Elizabeth, the Master of the Rolls is described as the assistant to the Chancellor, for matters of Common Law; and in his absence, to hear causes, and make orders (d); but this power was always conferred on him by commission from the Crown.

The Master of the Rolls, at least from 1623, appears to have had *the regulation of some branches of the business of the court (e). In the reign of Hen. VIII. he is sometimes styled Vice-Chancellor [359] (f). But the judicial duties of the Master of the Rolls, excepting such as were specially conferred by commission from the Crown, appear to have more properly belonged to him in the character of one of the Masters (g). I will proceed, therefore, to consider the nature and duties

(a) In the 5 & 12 Edward I. petitions or bills to the king were transmitted by special delegation of the king, to the then Keeper of the Rolls. See Discourse, p. 12. 19, 20. 97. and 107, 108, temp. Hen. VI. and Edw. IV. The stat. 11 Hen. VII. gives to the Master of the Rolls, as well as the judges, power to punish perjury in certain cases, Discourse, 20, 21.

(b) Int. al. with Yelverton, J., 35 Hen. VL Fitz. Spa. 19; C. P. Cooper, Appendix. He is there placed after the judge; and see Discourse, &c. 97. 105. 108. 144.-Temp. 1 Edw. IV., the Master of the Rolls sat with Choke, J., on the Common Law side of the court, on an audita querela given by stat. 27 Edw. III. c. 9; other similar instances might be cited.

(c) Discourse, &c., p. 95-100; Goddard v. Reddington, Cal. i. 59; temp. Hen. VI., besides the bills in the shape of schedules to interrogatories, for the examination of parties, (Leg. Jud. 234. 237,) which will be noticed hereafter. When the M. R. was appointed Lord Keeper, though sometimes, as before mentioned, restricted in the use of the seal, he always, on such occasions, appears to have had the judicial authority of the Chancellor conferred upon him (Leg. Jud. 112, 113); in such cases the bills would, of course, be addressed to him; the bills addressed to Kirkham, M. R. temp. Edw. IV. are of this nature (Leg. Jud. 242); so, in all probability, was the bill, temp. Rich. II., addressed to him as The Right Honorable Lord the Keeper of the King's Rolls, for relief against a fraud, Discourse, &c., p. 92.

(d) Crompton on Courts (first published in 1594), fol. 41; Lord Ellesmere's Treat. p. 36; 4 Inst. 97. "The Chancery," said Sir E. Coke, in the debate 27 April, 1621 (Commons' Journ. i. p. 594), " embraceth so

many causes as the Lord Chancellor and Master of the Rolls cannot possibly determine them." The Master of the Rolls granted Injunctions, Return to Commission issued, 40 Eliz. p. 6, and see Legal Jud. p. 166.

(e) In 1623 there is a general order by the Master of the Rolls, regulating the admission of parties to sue in formâ pauperis, Beames, p. 49, A. D. 1625; and as to the Examiners, ibid. 50. After this time there are many general orders in which the Master of the Rolls joins with the Lord Chancellor. The general orders of Lord Coventry, A. D. 1635, are made with the advice and assistance of the Master of the Rolls, Beames, p. 69.

(f) Discourse, p. 20, v. sup. p. 117.

(g) The Masters, temp. Chas. I. (Cotton. MS. Leg. Jud. 123), say-"Doth not the Master of the Rolls, who has no warrant to sit next the Lord Chancellor upon the High Bench, but that he is 'primus de prædicto numero duodeno,' nor hath any jurisdiction there, but as a Master, &c." In consequence of the controversy on this subject, carried on by the author of the History of the Chancery and the Discourse on the Judicial authority of the Master of the Rolls, and the author of the Legal Judicature in Chancery, it was declared by the 3 Geo. II. c. 30, "that all decrees and orders of the Master of the Rolls, excepting such as, according to the course of the court, ought only to be made by the Lord Chancellor, were valid, subject to appeal to the Lord Chancellor; but all such decrees and orders were to be signed by the Lord Chancellor, prior to enrolment." Now the exception in this statute, at least as regards Pleas and Demurrers, has been removed, and the M. R. no longer sits for, or in the absence only of, the Chancellor; see Stat. 3 and 4 Will. IV. c. 94, § 24.

359

The Masters-their Judicial Duties-their Appointment.

of that most important office, though in doing so I must a little anticipate the mode of procedure in Chancery, which is the subject of the next Chapter.

It has already been observed, that there were from a very early period certain clerks of high degree, who were the council, or assessors and assistants of the Chancellor, in the exercise of the more ancient or Common Law duties of his office (a).

In the times of Richard II. there were twelve officers who were desig nated Clericos de primâ formâ (b), who were the assessors or council of the Lord Chancellor (c). It is probable, that from the first the *Master of the Rolls was one of the twelve, and their chief (d). In aftertimes he is expressly so described (e).

[*360] In the reign of Edward III. these twelve Chief Clerks obtained the style or title of Masters (ƒ).

The Masters, as before mentioned, besides being assistants to the Chancellor (g), became, if they were not from the first, a component part of the select or permanent Council, and as such they attended the higher house of Parliament without writ,-they were frequently appointed with others as receivers of petitions (h).

In early times the Masters, as well as the Master of the Rolls, were

(a) Supra, p. 238.

(b) Ord. Cancell. 12 Rich. II., Sanders's Orders, p. 1.

(c) Or "Concilium Regis in Cancellaria," Treatise of the Masters, Hargrave's Law Tracts, p. 295. The Clerks anciently lived together, either in the king's house, or some special hostel appointed for them. These Clerks had their lodging and diet provided for them; besides which they had 12 tuns of wine a year (one a month) allowed them from the king's cellar, through the Lord Keeper (temp. Richard II.). They had also an allowance from the king for robes, for horse provender, boat conveyance to and from Westminster, and that in the best manner, and fuel out of the king's park (temp. Edw. III.). They were wont, also, to be extraordinarily rewarded with sums of money, pensions, grants of licenses, and wines from the butler of England, and with preferment to higher places; this was over and above the benefices which were conferred upon them. See Treatise of the Mas ters, 315. 6, 7. In the 5 Rich. II. there was a complaint against them in Parliament, that they were over fat, both in body and purse, and put the king to very great cost, more than was needed (ibid. p. 314). This treatise is supposed to have been written by one of the Masters-temp. Ellesmere, C. (d) The ordinances (temp. Richard II.) above cited, are made per Dom. Cancellarium Angliæ, et per duodecim Clericos de prima forma ad robas in Cancell. Dom. Reg. By these ordinances it was "Concordatum quod inter omnes clericos de Canc. tam, &c., de cetero teneatur et observetur ordo

subscrip. viz., &c." The first section relates to the Master of the Rolls and his clerks, directing that he should have Six clerks instead of three, as theretofore, &c., (Sanders, p. 2;) it must have been as one of the twelve that he was a party to this ar rangement.

(e) Rénovatio ord. Cancellariæ, supposed to be of the time of Hen. V., Sanders, vol. i. p. 7 b. In the first year of Hen. VI. an allow ance is made to the Keeper of the Rolls, pro se ac sociis suis, &c., Close Rolls, cited, Treatise of the Masters, Harg. L. Tr. p. 296.

(f) 51 Edw. III. Treat. of the Masters, 295. Magister was a high title of dignity amongst the Romans, from whom it appears to have been derived. Thus there were the Magister Populi, or Dictator, Magister Equitum, &c., Niebuhr, i. 596. So in England it was given to those who held the high offices of the Master of the Horse (1 Edw. VI.) and Master of the Household (32 Hen. VIII.) and to others, and it is still continued; see Pettus on Parliament, c. 16, p. 378. 381. In the Treatise on the Masters, in Mr. Hargrave's Tracts, before cited, this and the more an cient title of the Masters, Clerici de primâ formâ, are traced to corresponding titles among the Romans, p. 297, et seq., citing Cod. J. xii. 24. 7; xxvi. 1, 2, &c.

(g) "The Six Masters," says Sir Thomas Smith, "are assistants in the Court to show what is the Equity of the Civil Law, and what is Conscience," Commonwealth of England, p. 121, ed. 1663, 12mo. Dr. Irving. So that it would appear there were only six in his time (Edw. VI. and Elizabeth). (h) Harg. L. Tr. 308, 309.

Masters in the nature of Pedanei Judices.

360

appointed by the King (a); but in the reign of Edward IV. the appointment of the eleven Masters was committed to the Chancellor, that of the Master of the Rolls remaining with the King. The office, from that time, was conferred by the Chancellor placing a cap on the Master's head in court (b), which ceremony was continued down to the last reign.

The patronage of all the livings in the King's gift under the value of twenty mares, appears to have been committed to the Chancellor expressly for the purpose of being given to the Clerks of the Chancery (c), but in the reign of Elizabeth this source of emolument with *many others had been cut off from the Masters, though it is probable that the office had then begun to be sold; they had no [361] doubt contrived some way or other to make up for the loss (d).

The Masters appear to have been looked upon very much in the light of the Pedanei Judices, the assistants of the Roman Prætors and Provincial Governors, and to whom the latter were in the habit of delegating some of their judicial duties (e). The Masters evidently so considered themselves, for in their return to the commission issued in the 40th of Elizabeth to inquire into the abuses of the officers of the Court of Chancery, they justified the taking of gratuities by citing the civil law as their authority, referring no doubt to Justinian's Novel which authorized the Pedanei Judices to receive gratuities (ƒ). What makes this

(a) 7 Edw. III., 49 Edw. III., 2 Hen. IV. Treatise on the Masters, p. 293. In the 21 Edw. III. the King called unto him his Chancellor, Treasurer, his Justices, and his Clerks of Robes in Chancery (Close Rolls 22 Edw. III.); it was to obtain their opinions concerning a suspicious deed of release, Treat. of the Masters, 297.

(b) Treatise of the Masters; Harg. Tracts, p. 293-4. This ceremony also is there traced to a Roman custom. Still the Masters received robes or satisfaction for robes and other benefits from the King, and they described themselves as the King's sworn servants. See their statement of the nature and privileges of their office, temp. Car. I. Leg. Jud. 72. Their oath was prescribed by stat. 13 Edw. III. Leg. Jud. 101. After an interval of nearly four hundred years they are again appointed by patent from the Crown; v. sup. 356.

(c) See the petition, 4 Edw. III. 1330, and the answer, Sander's Orders, i. p. 7, note, and the orders of the Chancery, 12 Rich. II. ib. p. 6; Y. B. 28 Edw. III. 3.

(d) See the return to the commission, 40 Eliz. and Treatise of the Masters, Harg. p. 316. In this treatise nothing is said as to the Masters having purchased their offices, (which, however, if the fact, prudence might induce them to conceal,) though all the grievances the Masters had to complain of, arising from their having been deprived of their usual emoluments, are enumerated with great minuteness. On the 27th of VOL. 1.24

April, 1621, Lord Bacon being Chancellor, Sir E. Coke affirmed in the House of Commons, that 150l. a piece had been given by eight of the Masters for their appointments, and that was the reason for their extortions, Comm. Journ. i. p. 594. The sale of the office had become a settled practice in the time of Charles II., as we learn from North's Life of Guilford; it was only put a stop to by Lord Macclesfield having not only sold the office but endeavored to screen the Masters from the corrupt practices they had resorted to in order to reimburse themselves. See the first, twelfth, and eight succeeding articles of his Impeachment, State Trials, vi. p. 477. fol. ed.

66

(e) "Solet Prætor jurisdictionem mandare, et aut omnem mandat, aut speciem unam; at is cui mandata jurisdictio est, fungitur vice ejus qui mandavit, non sua," Dig. ii. 1. 16. 'More Majorum," ib. l. 5; but the Præsides were prohibited from delegating questions relating to the status of individuals, which was a peculiar branch of extraordinary jurisdiction, Cod. J. iii. 3. 2. This was after the ordinary and extraordinary jurisdictions were amalgamated; in later times the Præsides were only permitted to delegate questions of minor importance to the Pedanei Judices, and from that time the functions of the Pedanei Judices, as before observed, may have been much of the nature of those which are exercised by the Masters.

(c) Novel, lxxxiii. c. 9.