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Chancellor of Scotland

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CHANCELLOR OF SCOTLAND, As in England, the chancellor of Scot land was always a high officer of the crown, and had great influence with the king and authority in his councils. As in England too, that authority at length extended itself beyond its former limits, and affected the whole judicial power of the kingdom. Its operation and effect in the two countries, however, was dif ferent: for while in England the chan cellor only carved out for himself a juris diction in equity, in Scotland he reached the head of the administration of justice, and sat in a court which dispensed both equity and common law, and the course of proceeding in which all the other ju dicatures of the realm were bound to follow.

In 1425, which was shortly after the return of King James I. from his long captivity in England, the " chancellor and with him certain discreete persons of the thre estates chosen and depute by the king" were erected into the court of the session, for the final determination of all matters competent to the king and his council. The court of the session, how ever, expired with Bishop Wardlaw, from whom in all likelihood it originated ; the chancellor's office being taken, on his death, from his protdgd, Bishop Cameron. and given to Sir William Crichton, a layman, when the former policy of deter mining suits by the old common law was restored. This continued (with the excep tion of an attempt to the contrary in 1457, probably under the influence of Bishop Shorsewood, the favourite and confessor of King James H.) till the time of Bishop Elphinstone, to whom undoubtedly may be ascribed the crafty acts passed in 1487 for the recovery of the large jurisdiction of the chancellor and court of the session, as well as the act 1494, c. 5, to enforce in the courts the study and practice of the canon and civil laws. Nor perhaps shall we greatly err in conceiving his zeal to have been employed in establish ing in 1503 the court of daily council, which was essentially a restoration of the old court of the session. But all these proved only preparatory steps to the erec tion of the court of council and session, or college of justice, which was instituted in 1532, and has continued to our own time. Of this college the chancellor, or, as he then began to be styled, lord chancellor of Scotland, was to be principal ; and as on the one hand it was the supreme court of the kingdom, and on the other all in ferior courts were required to copy its proceedings, it wielded the whole judica tive power of the country. It early claimed also, and exercised, a large legis lative power under the statutes permitting it to pass acts of sederunt ; and the offi cers who executed its warrants and de crees were either its own macets or else messengers, over whom it obtained com plete control. These powers the court wielded so as to effect nearly an entire change of the law.. The ecclesiastical estate for some time predominated both on the bench and at the bar. The con sequence was, the canon and civil laws became, what indeed they used to be styled, the common law of the land, and the old common law became obsolete and antiquated. Much of this has been cor rected since the Reformation ; and still more since the union with England, where the old common law has ever con tinued the antagonist of Roman jurispru dence. At the Reformation the authority of the canon law ceased, and not long afterward ministers of the gospel were disabled by statute from being either of the bench or bar. The authority of the

canon law was in like manner essentially broken by the Union, when both portions of the island became one great mercan tile community, to which the civil law was in many respects unsuitable ; and since that event various provisions have been made to improve and assimilate the laws and practice of the two kingdoms.

The similarity of procedure in the court of session in Scotland and the high court of chancery in England is striking. Both courts indeed, and the ecclesiastical courts of both countries, borrowed their forms from the court of Rome, and with these last the forms of the court of session in many respects still agree. The bill or written supplication to the court for letters, whether of summons or of dili gence, is of the same nature with the sup plication for letters in the court of Rome , and it is observable that when the de sire of the bill is granted, it is in the same terms in both courts. The condescen dence and answers are plainly derived from the articuli and responsiones of the papal tribunal. The initialia testimonii, or purging of a witness, are identical with the interrogatoria generalia of that court. Letters of advocation, suspension, and reduction are well known there. The " man appellatum et bens processum" is but verbally translated in the phrase of the Scots court, "finds the letters orderly proceeded ;° and letters of horning, cap tion, and relaxation bear their papal origin impressed upon them. It appears also that from an early period the court issued commissions to its macers to per form judicial duties, as the ecclesiastics appoint the inferior church officers their legates and commissaries for the like pur poses; and at an early time also the judges began the yet subsisting custom of changing their name on their elevation to the bench, in imitation, as it seems, of the like custom on elevation in the papal hierarchy.

From what is above stated, we may see why there is no court of chancery in Scotland, separate from the courts of com mon law, as in England ; the whole judi catures of Scotland having become sub ject to the court of session, where the chancellor presided, dispensing both equity and common law. But from the earliest times there was an office of chancery in Scotland, and we shall find that many of the early chancellors had been clerici cancel I arii In the list of chancellors for Scotland in the Penny Cyclopzedia,' art. " Chan cellor," various errors are corrected which occur in Crawford's Officers of State' in the series of chancellors of Scot land. In Beatson's Political Index' there is a chancellor as early as the reign of Malcolm III., but the more authentic series begins with Constantine, earl of Fife, who was chancellor in the time of Alexander I.

By art. 24 of the treaty of Union, it was provided that there should in future be but one great seal for the United King dom, and that a seal should be kept and used in Scotland for such private rights or grants as had usually passed the great seal of Scotland. The office of chancel lor of Scotland then properly expired, and none have been appointed to it since the earl of &afield, who was chancellor at the time of the Union.