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393

ELIZABETH.

Reigned 44 years, 4 months, and 7 days; from November 17,
1558, to March 24, 1603.

SURVEY OF THE REIGN.

THE principal legal incident that distinguished the reign of Elizabeth was the settlement of the disputed question as to the difference between the powers attaching to the office of lord keeper of the Great Seal, and those which belonged to the lord chancellor. The title of the one being obviously superior to that of the other, the natural presumption would be that his authority also was greater; and the previous history of the two offices seemed to warrant such an inference.

In the first six reigns after the Conquest, although there were several vice chancellors, "agentes vices Cancellarii,” either at home or abroad, when the chancellor was not present, no instance occurred of a separate and independent keeper of the Seal being appointed. The reign of Henry III. affords the first example of a distinction being drawn between the office of chancellor and the custody of the Seal; and that, curiously enough, occurs not in reference to two individuals claiming different rights, but in regard to one person, Ralph de Neville, Bishop of Chichester, who at the time had possession of the Seal with the title of lord chancellor. While enjoying that office, he obtained in 1232 two patents from the king both dated on the same day, one granting him the chancellorship for his life, and the other granting him the

custody of the Seal for his life. But the patents contain no explanation of the different duties or privileges belonging to either office. Though he remained chancellor till his death in 1244, for six years before that event the Seal was out of his possession, and its custody was apparently entrusted to other persons, who may, however, have been merely officers of the court. But for seventeen years after Neville's death there is no proof that there was any chancellor at all, those who during that period performed the functions of the office being described only as receiving the custody of the Seal, and one of them, William de Kilkenny, being on his retirement in 1255 exonerated from all demands "de tempore quo fuit CUSTOS SIGILLI NOSTRI in Angliâ." 2

This is the first instance of the official use of that title. In 1261 the office of chancellor was revived; and for nearly two centuries and a half afterwards, although there were many occasions on which the Seal was temporarily deposited with different individuals, there was always a chancellor at the same time, during whose occasional absence these persons were commissioned to act, except in the short intervals which sometimes occurred between the retirement or death of one chancellor and the nomination of another. In the reign, indeed, of Edward II., it may be doubtful whether Walter Reynolds, Bishop of Worcester and Archbishop of Canterbury, resumed the title of chancellor (which he had formerly held) when the Seal was restored to him in 1312; but the peculiar position of the kingdom at that time renders this an exceptional case.

The first undoubted appointment of a lord keeper instead of a chancellor may be considered as occurring in the reign of Henry VII., when Henry Dene, Bishop of Salisbury, a month after the death of the chancellor Archbishop Morton,

See Vol. II. p. 139.

2 Rot. Pat. 39 Hen. III., m. 5.

was constituted keeper of the Seal on October 13, 1500. His successor also, Bishop Warham, in August, 1502, received the same title, which on his being elevated to the Archbishoprick of Canterbury was in January, 1504, changed to that of chancellor. It had not hitherto been the practice in the records of appointment to allude to, much less to define, the duties which appertained to the two offices; but, as that of keeper had been in most instances of a temporary nature, and in many conferred by the chancellor himself, it could not but be esteemed of inferior dignity,-the more especially when in the last case the promotion to the primacy was made the occasion of conferring on the keeper the title of chancellor. But whatever its inferiority in point of rank, its judicial duties seem to have been the same as those which devolved on the chancellor, since bills in Chancery were addressed even to the temporary keepers of the Seal.

On the appointment of Sir Thomas Audley as lord keeper, however, by Henry VIII., it is evident that some doubt had arisen as to the extent of his power in this respect, inasmuch as, for the first time, words were inserted in his patent expressly declaring that he was "to do all things, as well in the Court of Chancery as in the Star Chamber and Council, as the Chancellor of England was accustomed to do." Audley in the course of eight months was also raised to the superior title of chancellor.

This does not seem to have satisfied Sir Nicholas Bacon; for, though by the record of his appointment by Queen Elizabeth as lord keeper it appears that he was invested with the same powers, a special reference being made to those granted to Sir Thomas Audley 2, yet so doubtful was he of his authority to hear causes, that within two months he obtained letters patent, not only giving him in distinct terms full power in that respect, but also declaring that 2 Ibid. 1 Eliz., p. 12.

' Claus. 24 Hen. VIII, m. 24.

he "shall in no wise be ympeachable" for any act done since the Seal was committed to him, otherwise than he would have been had he been chancellor at the time.1 The accumulation of business in his court, and the serious responsibilities it involved, no doubt prompted the cautious lord keeper to take this step, and afterwards still further to secure himself and to remove all question by a parliamentary enactment. Accordingly, early in the year 1563, a statute was passed, somewhat adventurously declaring that the common law always was that the keeper of the Great Seal had, and enacting that he thenceforth should have, the same "place, authority, pre-eminence, jurisdiction, execution of laws, and all other customs, commodities and advantages," as if he were lord chancellor of England.2

After this legislative recognition of their equal rights and authority, it is difficult to understand why for the next two hundred years one man should be called only lord keeper, while another should be distinguished with the title of chancellor; and the fact that several of those who at first were invested with the former, were ultimately raised to the latter, title plainly proves that, notwithstanding the statute gave them identical privileges, it did not remove the former inequality of rank. In the latter part of this period, the elevation of some of the keepers to the peerage may to a certain degree account for the change; but that this reason did not operate in the reign of Queen Elizabeth, when all the five who held the seals were commoners, and yet two of them were dignified by the title of chancellor, will appear from the following account of their succession.

LORD CHANCELLORS AND KEEPERS.

Notwithstanding the activity displayed by Archbishop Heath in securing the peaceful accession of Queen Elizabeth,

1 Egerton Papers, 29.

2 Stat. 5 Eliz. ch. 18.

the Great Seal, which he of course surrendered on that occasion, was not replaced in his hands.

NICHOLAS BACON, the attorney to the Court of Wards, received it on December 22, 1558, as keeper, and was thereupon knighted. He held it for above twenty years; and after his death on February 20, 1579, the queen kept it in her possession for more than two months, during which she seven times delivered it out, "pro tempore," as the record says, to two of her councillors to seal the necessary writs, and immediately received it back from them. These were always Lord Burleigh and the Earl of Leicester, except on one occasion, when Sir Francis Walsingham was substituted for the latter; but they were never named as keepers, nor did they perform any other of the customary duties of the office.

SIR THOMAS BROMLEY, the solicitor-general, was at last selected as Bacon's successor, and created lord chancellor on April 26, 1579. He died in his office on April 12, 1587, having retained it nearly eight years. After about a fortnight's interval, during which the necessary writs were three times sealed, as before, in the queen's presence by some of her councillors,

SIR CHRISTOPHER HATTON, the queen's vice chamberlain, was constituted lord chancellor on April 29, 1587.2 He died, also in possession of the office, on November 20, 1591.

Six months elapsed before Elizabeth determined on a new chancellor or keeper, during which the duties were divided by virtue of two commissions issued two days after Sir Christopher Hatton's death. By one of these she appointed Lords Burleigh, Hunsdon, Cobham, and Buckhurst to use the Seal, and bills in Chancery were directed to them as lords commissioners; by the other she empowered Sir Gilbert Gerard, master of the Rolls, and others, to hear and determine the causes in Chancery. Justices Francis Gawdy, Clench,

Rot. Claus. 21 Eliz. p. 24.

2 Ibid. 29 Eliz., p. 24.

3

Ibid. 34 Eliz., p. 11.

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