IX. to the world the best treatise upon law of which England CHAP. could boast till the publication of Blackstone's Commentaries, in the middle of the eighteenth century.* It would have been very gratifying to me if this work could have been ascribed, with certainty, to any of the Chancellors whose lives have been noticed. The author, usually styled Henry de Bracton, has gone by the names of Brycton, Britton, Briton, Breton, and Brets; and some have doubted whether all these names are not imaginary. From the elegance of his style and the familiar knowledge he displays of the Roman law, I cannot doubt that he was an ecclesiastic who had addicted himself to the study of jurisprudence; and as he was likely to gain advancement from his extraordinary proficiency, he may have been one of those whom I have commemorated, although I must confess that he rather speaks the language likely to come from a disappointed practitioner than of a Chancellor who had been himself in the habit of making Judges. For comprehensiveness, for lucid arrangement, for logical precision, this author was unrivalled during many ages. Littleton's work on Tenures, which illustrated the reign of Edward IV., approaches Bracton; but how barbarous, in comparison, are the Commentaries of Lord Coke, and the Law treatises of Hale and of Hawkins! Chief Jus Towards the end of this reign the office of Chief Jus- Abolition ticiary, which had often been found so dangerous to the of office of Crown, fell into disuse. Hugh le Despenser, in the 49th of ticiary. Henry III., was the last who bore the title. § The hearing of common actions being fixed at Westminster by Magna ⚫ The book must have been written between the years 1262 and 1267, for it cites a case decided in the 47th of Hen. 3., and takes no notice whatever of the Statute of Marleridge, which passed in the 52d of Hen. 3. + Describing the judges of his time he calls them, "Insipientes et minus docti, qui cathedram judicandi ascendunt antequam leges dedicerint." It must be admitted that juridical writing is a department of literature in which the English have been very defective, and in which they are greatly excelled by the French, the Germans, and even by the Scotch. The present state of the common law may now probably be best learned from "the notes of Patteson and Williams on Serjeant Williams's notes on Saunders's Reports of Cases decided in the reign of Charles II.," and written in Norman- French. § Dugdale, in his Chronica Series, when he comes to 55 Hen. 3., A. D. 1271, changes the heading of his column of justices from "Justiciariorum Angliæ" to "Justic. ad Plac. coram Regc." IX. Disruption of Aula Regia. 66 CHAP. Charta, the Aula Regia was gradually subdivided, and certain Judges were assigned to hear criminal cases before the King himself, wheresoever he might be, in England. These formed the Court of King's Bench. They were called "Justitiarii ad placita coram Rege," and the one who was to preside Capitalis Justiciarius." He was inferior in rank to the Chancellor, and had a salary of only 100 marks a year*, while the Chancellor had generally 500. Henceforth the Chancellor Chancellor, in rank, power, and emolument, was the first magistrate under the Crown, and looked up to as the great head of the profession of the law. now head of law. There are some cases decided in this reign which are still quoted as authority in Legal Digests; -the writs and summonses to Simon de Montfort's parliament are now given in evidence on questions of peerage,—and the England in which we live might be descried. *Dugd. Or. Jur. p. 104. The puisnes had only forty pounds a year. The chief justice of Common Pleas had one hundred marks, the chief baron forty marks, and the puisne barons twenty. 2 Reeve's Hist. of Law, 91. This is certainly poor pay, and I am afraid may have induced the judges to be guilty of the corrupt conduct for which they were punished in the following reign. The work was however very light till the times when salaries were so much increased. In the reign of Henry VI. the judges never sat more than three hours a day, from eight in the morning till eleven, employing the rest of their time in refection, reading, and contemplation, while the councillors and serjeants went to the parvise at Paul's to meet their clients. Fort. de Laud. CHAPTER X. CHANCELLORS AND KEEPERS OF THE GREAT SEAL DURING THE CHAP. EDWARD being proclaimed King, while still absent from England, the Council, as an act of power authorised by the urgency of the case, resolved to appoint a Chancellor. After Nov. 20. nine days' deliberation they selected WALTER DE MERTON, 1273. who had filled the office in the preceding reign, and who, having always been a zealous royalist, they had every reason Chancellor. to believe would be agreeable to the new Sovereign. The letters addressed to the Prince requiring his presence had produced the desired effect, and he had reached Sicily on his return from the Holy Land, when he received intelligence of the death of his father. Learning the quiet settlement of the kingdom, he was in no hurry to take possession of the throne; but from France he wrote a letter dated the 9th of August, in the first year of his reign-"To his beloved Clerk and Chancellor, Walter de Merton," confirming his appointment, and requesting him to continue to discharge the duties of the Chancellorship. * "EDWARD, by the grace of God King of England, Lord of Ireland, and Duke of Aquitaine, to his beloved clerk and Chancellor, Walter de Merton, greeting. "We give you special thanks for the diligence you have applied to our affairs and those of our kingdom, beseeching that what you have so laudably begun you will happily take care to continue, causing justice to be done to every one in matters which belong to your office, inducing others also to do the same, not sparing the condition or rank of any person, so that the rigour of justice may control those whom the sense of equity cannot restrain from injuries. Those things which you shall have rightly done in this matter we, God willing, will cause to be fully confirmed. "Given at Mellune on Seine, 9th of August, in the first year of our reign." This letter shows that the king clearly conceived he had a right to remove the Chancellor if he had thought fit, though he had been appointed by the council. This appointment is adduced by Prynne in his " Opening of the Great Seal," as a proof that the Chancellor was the officer of the parliament, not of the king; but the appointment of de Merton was an act of power exercised in the king's name, and demanded by necessity, as at the decease of Henry III. there was no WALTER DE MERTON CHAP. X. The nobles assembled at the "New Temple" in London* had ordered a new Great Seal to be made, having the name and style of Edward inscribed upon it, and in the attestation of public documents by the guardians of the realm during the King's absence the words occur,-"In cujus, &c., has literas sigillo Domini Regis quo utimur in agendis, eodem absente, fecimus consignari."-De Merton displayed extracharacter. ordinary ability as Chancellor, and materially contributed to the auspicious commencement of the new reign. His con duct and A. D. 1274. Sept. 21. To the great joy of the people the King at last arrived, was crowned, and took the Government into his own hands. He ordered another Great Seal, under which he confirmed the grants made in his absence, by "inspeximus"— according to the following form: "Is erat tenor prædictarum literarum quas prædicto sigillo nostro fecimus quo prædicti locum nostrum tenentes utebantur, quod quia postmodum mutatum est, tenorem literarum prædictarum acceptantes præsenti sigillo nostro fecimus consignari." † De Merton was now removed from the office,—not because his conduct was at all censured, but the King wished to promote to it a personal friend who had followed him in all his fortunes, and for whose abilities and character he had the highest respect. The Bishopric of Rochester was bestowed on the Ex-chancellor, and he employed his time in building, endowing, and making statutes for Merton College, Oxford, where his memory is still revered. He died in 1277. On the day of St. Matthew the Apostle §, 1274, the office of Chancellor was conferred on ROBERT BURNEL, and he continued to hold it with great applause for eighteen years, Chancellor, and the Seal was deposited in the wardrobe. Unless some one had + Pat. Rot. 1 Ed. 1. In the reign of Queen Elizabeth, his tomb being much dilapidated, it was repaired by the Warden and Scholars of Merton, who supplied an epitaph giving a minute account of the life and dignities of their Founder, and concluding with during all which time he enjoyed the favour and confidence of Edward, and was his chief adviser in all his measures. He is a striking example of the unequal measure with which historical fame has been meted out to English statesmen. Although intimately connected with the conquest and settlement of Wales; -—although he conducted Edward's claim to the superiority over Scotland, and pronounced the sentence by which the crown of that country was disposed of to be held under an English liege Lord; - although he devised a system for the government of Ireland upon liberal and enlightened principles; —although he took the chief part in the greatest reforms of the law of England recorded in her annals, and there can be no doubt that he occupied a considerable space in the public eye during his own age, — his name has since been known only to a few dry antiquaries incapable of appreciating his merits. CHAP. X. Robert Burnel was the younger son of Robert de Burnel, Birth and of a powerful family settled from time immemorial at Acton education. Burnel, in the county of Salop. Here the future Chancellor was born†; here he afterwards, by the King's licence, erected a fortified castle; and here, to illustrate his native place, he prevailed on the King to hold a parliament at which was passed the famous law, "DE MERCATORIBUS," called "the statute of Acton Burnel." panies Prince Ed ward to the Holy Land. As his elder brother, Hugh, was to inherit the paternal Accomestate, and was, of course, to do military service as a knight and baron, Robert was destined to rise in the state by civil and ecclesiastical employments, which were then generally combined. He early distinguished himself by his proficiency not only in the civil and canon law, but in the common law of England; and there is reason to think that after he had taken holy orders, he practised as an advocate in the Courts at Westminster. During the Barons' wars, while still a young man, he was introduced to Prince Edward, who was about his own age, and was much pleased with his address and social qualities, as well as his learning and ability. He In Hume's very superficial history of the reign of Edward I., Lord Chancellor Burnel is not once named or alluded to. Rot. Pat. 12 Ed. 1. m. 7. m. 18. |