English Law and the Role of the Lord Chancellor (1485 – 1625)

The Origins of the Lord Chancellor’s Office

In the early mediaeval period, kings were personally involved in both creating law, and in administering justice. To give weight to documents that the king had authorised, they were sealed with a ‘Great Seal’. Each monarch had his own Great Seal, which was ceremonially broken after his death. From the reign of Edward I, the counterfeiting of the Great Seal was an act of treason.

Kings typically did not write, that being work for clerks, so the office of secretary or ‘Lord Chancellor and Lord Keeper of the King’s Seal developed. The position was usually held by a cleric in Holy Orders, as they were the most likely to have the education and skills required.

Chancellors were always one and the same as the Lord Keeper, but occasionally, an individual would be appointed to the latter office, but not the former - usually if he were of undistinguished birth.

The Chancellor was responsible for supervising the preparation of the king’s correspondence, sealing it with the Great Seal, where appropriate, and dispatching it. The Great Seal might reside with the monarch, or the Chancellor, or sometimes, if the monarch were abroad, be left in the Treasury. During the reign of Henry VIII, when Wolsey was Chancellor, he took the seal with him, even when abroad on diplomatic missions.

The Chancellor could only use the seal if commanded to do so by the king, verbally, by letters sealed with the king’s signet, or the Privy Seal, or by a letter sealed with the king’s signet sent to the Lord Keeper of the Privy Seal, who issued a warrant to the Chancellor.

As time went on, this office become more important, and began to take on additional functions, including representing the monarch in Parliament, sitting on the famous woolsack that represented the most important element of the English economy, and presiding over part of the legal system.

The Common Law Courts

During the Middle Ages, law was divided throughout Europe into two main categories – Canon Law, which was the province of the ecclesiastical authorities and dealt with a wide swathe of matters, from marriage to wills, and secular law, which was administered by the monarch and his or her courts.

Until the reign of Henry II, there was little centralised justice – both criminal and civil cases were usually heard in the local baronial courts. Henry II, inheriting a kingdom after the nineteen years of the ‘anarchy’ sought to implement a more consist system under Crown control by appointing Justices to travel around the country hearing both criminal and civil cases at ‘assizes’.

Henry did not, however, give up his own right to dispense justice personally, although the frequency with which he was absent from England in his other realms led him to promulgate an ordinance in 1176 that appointed five judges to sit in Westminster Hall to dispense justice on his behalf. This was known as the Court of King’s Bench. It sat in the southern part of the Hall, on a raised dais, with Henry on a marble bench if he were present.

The Court of King’s Bench was largely concerned with criminal matters that disturbed the King’s Peace, and by the late twelfth century a separate court had grown up, the Court of Common Pleas, to deal with matters ‘between subject and subject’. Magna Carta decreed that the Court of Common Pleas should also base itself in Westminster Hall, so it took up residence at the north end. The courts were divide by oak planks, with benches inside for litigants. The judges sat on raised benches about 27 ft (8m) in length, with the clerks below them on similar seating.

In 1268, a Lord Chief Justice was appointed as head of the Court of King’s Bench, and monarchs no longer participated. A Chief Justice of Common Pleas was appointed from 1272.

There was also the Exchequer of Pleas, presided over by the Barons of the Exchequer, which dealt with financial matters related to the king’s revenues, debts due to the Crown, and the recovery of land or goods by the Crown.

Court of Chancery

By the late fourteenth century, there was increasing discontent with the Courts of King’s Bench and Common Pleas. The Common Law courts were restricted in the actions they could take – the only damages that could be awarded were monetary, and the only rights that could be recognised in land were legal rights – equitable rights were not recognised. Failure to use the right writ or procedure could result in a case failing. The problem was exacerbated by the intimidation and control of juries exercised by the ‘overmighty’ barons of the fifteenth century.

These limitations led to manifest injustice or ‘inequity’ in many cases. The increasing number of appeals to the king was dealt with by remitting appeals and petitions to the Lord Chancellor for remedy. The Lord Chancellor, not bound by precedent as Common Law judges were, could determine the case in accordance with equity, although of course, that was subjective and a parallel system of courts of equity grew up, presided over by the Lord Chancellor, who was said to be ‘the Keeper of the King’s Conscience.’ He was supported by the Master of the Rolls.

During the fifteenth and sixteenth centuries, many suitors brought cases in the Chancellor’s Court (known as the Court of Chancery), but as time went on, it too, started to become bound by precedent and it became a byword for delay and obfuscation by the nineteenth century.

During the period 1485, the outstanding Lords Chancellor were Thomas Wolsey, Cardinal-Archbishop of York, who quickly established a reputation for favouring the poor, and forcing the rich to obey the law equally as well as greatly expanding a court designed to help poor litigants, later called the Court of Requests: Thomas More, a lawyer who was well-known for refusing the bribes commonly offered; Sir Christopher Hatton, one of Elizabeth I’s favourites, and Sir Francis Bacon, Lord Chancellor under James VI & I, who was disgraced for taking bribes, although he denied ever being influenced by gifts.