Trial by Jury, such as it then was, was limited in criminal cases to those who could afford to pay for such a luxury. For the others, Trial by Ordeal was adopted, but after a time that system of trial was forbidden, and in the year A.D. 1215, the year before the granting of the Great Charter, it was formally abolished. Trial by Compurgation had been done away with by the Normans soon after their arrival, and Trial by Battle was suited to peculiar cases only. The Trial by Jury, therefore, as established by Henry the Second, became general in criminal as well as other cases. At last it was provided by the Magna Charta granted by King John, that no man should be condemned but by the lawful judgment of his peers or equals. In the words of Magna Charta, it was enacted that "no freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land." Here the great principle of Trial by Jury is distinctly recognised. It is not exactly the modern system, for it does not appear that witnesses were at that time brought before the juries, and there is no distinct evidence of such being the practice for two hundred years afterwards. 48 Nevertheless the two great principles on which the system rested, viz., first, the separation of the jury from the judge, and secondly, the pronouncing the guilt or innocence of the prisoner by the verdict of his equals, were established at the time that the Magna Charta was granted, and it is unnecessary in the present place to trace the history of the changes until it arrived exactly at its present form. Court of tempers the severity of common law, and prevents the commission of injuries. The King I cannot, however, leave the subject of Trial by Jury, without again expressing my opinion of its value, particularly in criminal cases, and summing up its special advantages. It secures, as far as is possible, an honest verdict, it educates the people in the laws of the country, it compels a judge to attend carefully to a trial, as he has to sum up all the facts to the jury, and it renders impossible the corruption or despotism of a judge. COURT OF CHANCERY. There is another court, and, indeed, another branch of law, and one of the utmost importance, of which you have not yet heard. It is a court to temper the severity of the rules of law administered by other courts 33, and while the object of the other courts is to give redress for offences or injuries committed, one principal object of this court is to prevent the commission of such offences or injuries. So great was the respect paid to this court, that, in ancient times, it was considered by the humbler classes, and by the oppressed generally, that the head of this court had the power of giving redress for every kind of injury and injustice, whether the Common Law provided a remedy or not.38 This high and mighty court was called the Court of Chancery; and I must now endeavour to trace out how this great court arose, and when it obtained its high powers. Origin of the Court of Chancery. In the earliest times of our history, as I have told appointed a you, the King personally was applied to for the. secretary, office was the secre tary was called a Chancellor. redress of injuries. It was impossible for the King himself to attend to all such applications. Consequently he appointed wise men under him to look to them. But still, it was necessary for the King to have a secretary to assist him in bringing these complaints under the notice of the wise men, and in other matters of business.106 Writs (that is, written precepts or orders) also had to be issued summoning the adversary, against whom the complaint was made, to appear before the wise men, and forms were adopted to be used in like cases. An office, or chamber, in whose which such business should be transacted, also was called The necessary. The office was called The Chancery, and Chancery, the secretary was called The Chancellor. The name and hence of Chancery was given to this office, because the Secretary, who sat in the office, had his seat in a kind of inner chamber, divided from the rest of the office by a sort of lattice work, called in Latin cancelli, from which the word "chancery" is derived. The chancel of a church is derived from the same word, and is applied to a part of the church which is railed off. It is supposed by some, that the word "chancellor" is derived from another Latin word meaning to cancel, because the Chancellor sometimes cancelled the proceedings of other courts. But inasmuch as the secretary was called a Chancellor before the Lord Chancellor performed such duties, it seems clear that the derivation of the name from the place where he sat is the correct one. But, whatever may have been the derivation of the name, the King had a secretary, who was called a Chancellor. With out attempting to trace the existence of a Chancellor up to a more remote time, it is certain that the AngloSaxon monarchs, from Ethelbert downwards, had Anglo Saxon Kings had Chancel cellor ori ginally was always a priest. The Chan- such an officer.54 The secretary or Chancellor, at first, was always a dignitary of the church. When the Anglo-Saxons were converted to Christianity by St. Augustine, in the reign of King Ethelbert, the King had his own chapel and his own priest, who was always near his person, who acted as his confessor, and who took care of his chapel.55 This person was undoubtedly much better educated than the AngloSaxon laymen who attended on the King. On the conversion of Ethelbert, he probably selected as his priest one of the Italian missionaries who came over with St. Augustine, and who must have possessed much more knowledge than the Anglo-Saxons. The priest being constantly near his person, and being a well-educated man, naturally acquired the King's confidence, and we find that the King made him his secretary, and not only employed him in matters of common business, but consulted him in matters of state. I have told you in what way this secretary came to be called Chancellor. Now, the Chancellor, or priest-secretary, being the King's confessor, became the keeper of the King's conscience, and, Keeper of although the Chancellor is not now a priest, nor has conscience. been since Cardinal Wolsey, he is still to the present day called the keeper of the King's conscience. The Chan cellor became the the King's He thus became the Judge of the Court of Chan cery. The fact of the Chancellor being the keeper of the King's conscience, led to his being made the judge of this Court of Chancery, the object of which was, as I have told you, to soften the severity of the law, which in early ages was too rude and clumsy to be applied to all cases of wrong which needed a remedy. In very early times the King himself had the power of mitigating the severity of the law, for we find in the Laws of King Edgar, "If the law be too heavy, let him seek a mitigation of it from the King." It was always a maxim that the King could not intentionally do any wrong, and that therefore if any of his subjects suffered wrong from being unable to obtain justice in the courts of law, the King, if he only knew of this, would set the wrong to rights.64 The Chancellor, consequently, as keeper of the King's conscience, was bound to see that the King did no wrong, or if inadvertently he did wrong, the Chancellor advised him how to act, or acted for him. The Law administered in the Court of Chancery is founded on the Roman Law. As the Lord Chancellor was almost always, for several centuries, an ecclesiastic, he was well versed in the principles of the Roman law, which then formed a leading subject of study with the clergy. The Roman Empire, which so long governed the world, reached a high state of civilisation, and gradually perfected an elaborate and enlightened system of law, which is contained in books which have come down to our times. This system, which is called the Civil Law, in contradistinction to the Common Law (which I have already explained to you), is superior in many respects to the ruder and more imperfect laws of our ancestors, and from it the Chancellors mainly drew the principles which they applied with great success to regulate those transactions between man and man which could not, consistently with justice, be settled by the rules of the Common Law of the realın. The Roman system of equitable jurisprudence is mainly therefore the foundation of the law administered in the Court of Chancery. Civil Law founded on Law. |