regno. The Chancellor has an exclusive authority to restrain a Ne exeat party from leaving the kingdom, where it appears that he is purposely withdrawing himself from the jurisdiction of the court, to the disappointment of honest creditors. This is effected by the writ "ne exeat regno," issuing under the great seal;—a high prerogative remedy, which, as it affects personal liberty, is granted with great circumspection, particularly where foreigners are concerned.* tion over It is the province of the Chancellor to issue a writ under Jurisdicthe great seal "de coronatore eligendo," directed to the sheriff, Coroners. and requiring the freeholders of the county to choose a coroner. † He also decides in the Court of Chancery questions arising as to the validity of the election. ‡ And upon complaint against a coroner for neglect of duty, or upon an allegation of incapacity, as from being confined in prison, or of incompetency, as from mental derangement or habits of extreme intemperance, — the Chancellor may remove him from his office. § but Anciently the Chancellor took cognizance of riots and Criminal jurisdicconspiracies, upon applications from surety of the peace ; tion. this criminal jurisdiction has been long obsolete, although articles of the peace still may, and sometimes are, exhibited before him. The Chancellor has a most important jurisdiction in Bank- Bankruptcy. ruptcy, which arose partly from the commissions for distributing the effects of insolvent traders being under the great seal, and partly from the powers directly given to him by act of parliament. The proceeding is here generally by Petition, in which case there is no appeal; but on questions of difficulty the Court makes its equitable machinery ancillary to this summary jurisdiction; and, a Bill being filed, the matter may be carried to the House of Lords. The weight of this branch of business, which was at one time nearly overwhelming, has been greatly lightened by the appointment of permanent De Carriere v. Calonne, 4 Ves. 577. See Beames' Writ Ne exeat regno, and Beames' Chancery Orders, p. 39. +F. N. B. 163.; 1 Black. 347. Re Coroner Co. Stafford, 2 Russ. 475. $ Ex parte Parnell, 1 Jac. & W. 451.; Ex parte Pasley, 3 Drur. & War, 34. Tunnicliffe v. Tunnicliffe, A.D. 1823; Williams v. Williams, A.D. 1841. Lunacy. Commissioners and the Court of Review; but the Chancellor retains a superintendence over bankruptcy by appeal; and he alone, in the administration of a bankrupt's estate, can decree a specific performance.* It has been a common opinion that the Chancellor has no jurisdiction whatever in Lunacy by virtue of his office, and that this jurisdiction is entirely derived from a special authority under the royal sign manual, which might be conferred on any one else. But I clearly apprehend that a commission "de idiota," or "de lunatico inquirendo," would issue at common law from the Court of Chancery under the great seal, and that the Lord Chancellor, without any special delegation for this purpose, would have authority to control the execution of it, and to make orders for that purpose. The sign manual takes its origin from stat. 17 Edw. 2. c. 9., by which the rents and profits of the estates of idiots are given to the Crown, and form part of the royal revenue. During the existence of the Court of Wards and Liveries, the management of the estates of idiots and lunatics was intrusted to it, and since has been delegated to the Chancellor. Being a fiscal matter, the warrant is countersigned by the Lord High Treasurer, or Lords Commissioners of the Treasury.† See 3 Bl. Com. c. 27.; Ex parte Cutts, 3 Deacon, 242. † I was obliged to investigate this matter during the short time when I had the honour to hold the great seal of Ireland. By an oversight, the usual warrant under the sign manual respecting lunatics had not in the first instance been delivered to me, but I found that I might safely make some orders in lunacy before I received it. On such matters perhaps the appeal ought to be to the House of Lords, although the appeal respecting others comprehended in the special delegation be to the sovereign in council. See 3 Bl. Com. 48. 427.; Story's Equity, ii. 542. ; In Re Fitzgerald, 2 Sch. & Lef. 432. 151. As the form of the warrant throws some light upon the subject, and is nowhere to be found in print, I subjoin a copy of that which was addressed to me: "VICTORIA R. "Right trusty and wellbeloved councillor, We greet you well. Whereas it belongeth unto us in right of our royal prerogative to have the custody of idiots, and their estates, in that part of our United Kingdom called Ireland, and to take the profits thereof to our own use: And whereas such idiots and lunatics, and their estates, since the erecting of the Court of Wards and Liveries, have been in rule, order, and government of that court, and upon the disuse thereof are now in our immediate care, commitment, and dispose, which doth occasion multiplicity of suitors and addresses to our own person: We therefore, for the ease of ourself, and of the said suitors, from the charge of attendance, and considering that the writs of inquiry of idiots and lunatics are to issue out of the Queen's Court of Chancery of that part of our said United Kingdom So much may for the present suffice respecting the forensic character of the Lord Chancellor; and I now proceed to give a rapid sketch of his other functions. It is said by Selden that the Chancellor is a privy councillor by virtue of his office; but this can only mean that he is entitled to offer the king advice, as any peer may do; - not that by the delivery of the Great Seal to him he is incidentally constituted a member of the Privy Council, with the powers lawfully belonging to the office of a privy councillor; for no one can sit in the Privy Council who is not by the special command of the sovereign appointed a member of it; and, as far back as can be traced, the Lord Chancellors who were not privy councillors previous to their elevation have been sworn of the Privy Council, like other great officers of state. Chancellor not ex officio Privy Lords. He certainly is ex officio Prolocutor or Speaker of the Speaker of House of Lords, whether he be a peer or not. Without any commission or express authority for the purpose, he called Ireland, and the inquisitions thereupon taken and found are returnable in "To our right trusty and wellbeloved councillor John Baron Campbell, our Chancellor of that part of our United Kingdom called Ireland. By Her Majesty's command. W. CowPER. "Entered at the Signet Office, the sixteenth day of July, 1841. * See Selden's Office of Lord Chancellor, § 3. It has often been said that the Lord Mayor of London is a privy councillor by virtue of his office, but for this there is not the slightest pretence, although he is styled "right honourable," and on a demise of the Crown joins with the aldermen and other notables in recognising the title of the new sovereign. Protection dence. always presides there when present. This privilege is said to belong to him by prescription, and he has enjoyed it many centuries, although in the reigns of Richard I., John, and Henry III. (within time of legal memory) it was exercised by the Chief Justiciary. The Crown may by commission name others to preside in the House of Lords in the absence of the Chancellor; and, no speaker appointed by the Crown being present, the Lords, of their own authority, may choose one of themselves to act as speaker, which they now often do in hearing appeals; - but all these speakers are imme diately superseded when the Chancellor enters the House.* By 25 Edw. III. c. 2., to slay him in the execution of his and prece- office is high treason. By 31 Hen. VIII. c. 10., he has precedence above all temporal peers, except the king's sons, nephews, and grandsons, whether he be a peer or a commoner. If he be a peer, he ought regularly to be placed at the top of the dukes' bench, on the left of the throne; and if a commoner, upon the uppermost sack in the parliament chamber, called the Lord Chancellor's woolsack." For convenience, here he generally sits, though a peer, and here he puts the question, and acts as prolocutor; but this place is not considered within the House, and when he is to join in debate as a peer, he leaves the woolsack, and stands in front of his proper seat, at the top of the dukes' bench. Chancellor no vote or voice in If he be a commoner, notwithstanding a resolution of the House that he is to be proceeded against for any misconduct as if he were a peer, he has neither vote nor deliberative less a peer. voicet, and he can only put the question and communicate Lords un * Lord Chief Baron Gilbert suggests that the Chancellor sits on the woolsack as steward of the King's Court Baron, and draws an ingenious but fanciful parallel between the Court Baron of a manor and the House of Lords. Gilb. Ev. 42. By an old standing order of the House of Lords, his constant attendance there is required. From the manner in which the journals are kept, it might have been inferred that the Chancellor, or Keeper of the Great Seal, though a commoner, was considered a member of the House. Thus, in the times of Sir Nicholas Bacon, his presence is recorded as if he were a peer, under the designation of "Custos Mag. Sig. ;" and the same entries continued to be made with respect to Sir N. Wright and Sir R. Henley. So, on the 22d Nov. 1830, there is an entry in the list of peers present, " Henricus Brougham Cancellarius," but he had no right to debate and vote till the following day, when the entry of his name and office appears in the same place, "Dominus Brougham et Vaux Cancellarius." the resolutions of the House according to the directions he receives.* addressed From very early times the Chancellor was usually employed Anciently on the meeting of a new parliament to address the two Houses two Houses in the presence of the King, and to explain the causes of at meeting their being summoned, although this was in rare instances ment. done by the Chief Justice of the King's Bench, and by other functionaries. † Whether peer or commoner, the Chancellor is not, like the Speaker of the Commons, moderator of the proceedings of the House in which he seems to preside; he is not addressed in debate; he does not name the peer who is to be heard; he is not appealed to as an authority on points of order; and he may cheer the sentiments expressed by his colleagues in the ministry.‡ of parlia. impeach On the trial of a peer for treason or felony, either before Trial of the House of Lords or before selected peers when parliament peers, and is not sitting, the presidentship of the Lord Chancellor is ments. suspended, and a Lord High Steward is specially appointed pro hac vice by the Crown. This arose from the Lord Chancellor, in early times, being almost always an ecclesiastic, who could not meddle in matters of blood. Since the Chancellor has been a layman, he has generally been nominated Lord High Steward; but then he becomes "His Grace," and presides in a different capacity.§ On the impeachment of commoners (which can only be for high crimes and misdemeanors ||) he presides as in the ordinary business of the House. The Chancellor was once a most important criminal Star Chamjudge, by ruling the Court of Star Chamber; and, while this Lord Keeper Henley, till raised to the peerage, used to complain bitterly of being obliged to put the question for the reversal of his own decrees, without being permitted to say a word in support of them. † See Elsynge on Parliaments, p. 137. This arises from a proper distrust of a Speaker holding his office during the pleasure of the Crown, and necessarily an active political partisan; but most inconvenient consequences follow from there being no moderator in an assembly which is supposed to be the most august, but is probably the most disorderly in the world. On the late trial of the Earl of Cardigan, Lord Denman was appointed and acted as Lord High Steward, on account of the temporary illness of Lord Chancellor Cottenham. So settled in Fitzharris's case, Temp. Car. II. See Lives of Shaftesbury and North. VOL. I. ber. |