CHAPTER VII. ROTHERHAM CHANCELLOR OF ENGLAND. -- My Lord of York, it better showed with you, Than now to see you here, an iron man. How deep you were within the Books of God! To us, the imagined voice of God Himself. Henry IV., Act iv., Scene II.—SHAKSPEARE. The Chancellorship-Judicial Functions-The Chancellor in Parliament-Rotherham's Speech to the Commons—The State of the Realm-The Enemies of England-Lewis of France The Allies of Edward-Burgundy and Bretagne— The Foreign Wars of the Past-The Perils of Losing this Golden Opportunity-Peroration and Appeal-The Happy Conclusion of Parliament-The Benevolence-Rotherham and Alcock concurrently Chancellors-The War with FranceThe Peace of Pecquigny. The Chancellorship. THE HE consideration of his complete plans for Lincoln College has carried us too far onward in the sequence of Rotherham's public life. We must revert to the spring of 1474,* in which he exchanged the office of Privy Seal for the exalted though often precarious dignity of Chancellor of The exact date of the appointment is not known. Booth, his preprorogued Parliament as Chancellor on Feb. 1. Rotherham in the same office on May 28. See "Biographical Dictionary by Edward Foss. "Life of Rotherham," vol. IV., p. 474. England. In addition to its supreme judicial function, the Chancellorship was a post of intimate confidence with the King, and held often opportunities of statesmanship. Its power varied greatly with the personal capacity of the occupant, and the weakness or delegated administration of the Sovereign. In the minority of Henry VI. it had been a vantage-ground for the imperiousness of Cardinal Beaufort: Wolsey at the height of his greatness reminds us of the great Continental Chancellors of the present. Edward's Chancellors, on the other hand, since the dismissal of Warwick's brother, Archbishop Neville, had been smaller men: probably it was not his policy to aggrandize the office. Functions. the Rotherham was a stronger man all round Judicial than Booth and Stillington, whom he followed. Lord Campbell, speaking of his judicial character, says that he was considered greatest equity lawyer of the age.' 'The equitable jurisdiction of the Courts of Chancery may be considered as making its greatest advance (hitherto) in this reign, although still in the rudest state, without systematic rules or principles.' The most notable part of this advance was its jurisdiction over trusts. The practice of enfeoffing trustees, who should hold lands to the use of a man and his heirs, had been introduced in the close of the previous century. “During our long wars in France,” says Blackstone, "and the subsequent civil commotions between the Houses of York and Lancaster, uses grew almost universal, through the desire men had (when their lives were continually in hazard) of providing for their children by Will, or of securing their estates from forfeiture, when each of the contending parties, as they became uppermost, attainted the other. The weak point of the arrangement was the abuse of the trust: and as the common law judges held, that the persons for whose benefit the trust existed could maintain no action at law in their courts, and so were debarred from redress at their hands, all cases of this kind came to the Court of Chancery. This exercise of jurisdiction in the matter of trust was, however, only one instance of the function of the Chancellor, to give redress to the subject, where the common law either failed or was unable to render justice. In cases where no known writ was applicable, he could take the matter into his own hands and decide it. In cases where there had been a miscarriage of justice in the common law courts he could stay judgment after their verdict, deciding according to that which was just and equal (secundum æquum et bonum). The last procedure might occasionally bring him into conflict with the judges, though this was generally avoided by consultation with them. One one occasion, however, Lord Campbell records a very serious combination of the judges against Rotherham, because he had granted an injunction after verdict in a case depending in the King's Bench, on the ground that the verdict had been fraudulently obtained.' Hussey, the Chief Justice, was extremely indignant, and wanted to carry out the verdict in spite of the injunction: if the Chancellor imprisoned any one in the Fleet for infringing the injunction he would issue a habeas corpus, and release him; and if the injunction was continued, the whole body of the judges were unanimous in their declaration that they would nothing the less give judgment and award execution.'* As the known facts of Rotherham's life all point to his uprightness, humanity, and even courage, it would be a gross injustice to his memory to surmise that he exercised * Lord Campbell's “Lives of the Lord Chancellors,” 4th edition, vol. I., pp. 340, 341. The issue of the struggle is not stated, F his judicial power merely as the creature of Edward. Still, in the paucity of these facts, we may note the dangers and temptations of the office. The Chancellor's court did not inspire the same trust as the courts of common law. There had been complaints in former reigns that ecclesiastics, who usually held the Chancellorship, were necessarily without legal training.* But the confidential position of the Chancellor about the King, along with the fact that he was removable at pleasure, was a more serious ground of suspicion. The strong feeling of the Commons about this extorted from Edward III., during a crisis in the French war, a partial concession (which he immediately afterwards recalled) to a demand 'that the Chancellor, with the other great officers might be chosen in open Parliament.' Again and again the Commons complained of the interference of the Court of Chancery with the course of common law and the transference of matters, which could be dealt with in the common law courts, to the Chancellor's court.‡ When * No lay Chancellor was ever appointed until Sir Robert Bourchier (1340), whose appointment was not a success, owing to his ignorance of both civil and canon law (Campbell, vol. I., p. 211). He was followed by two other laymen, the last of whom was inefficient. From that time, with the exception of Sir Robert Thorpe and Chief Justice Knyvet, who died in 1377, there was no lay Chancellor till the time of Sir Thomas More. (Henry Bourchier, Earl of Essex, who held the seals for a month between the tenures of Stillington and Booth, is scarcely worth counting among the Chancellors.) The uncertainty of equity judgments even at a later period than Edward IV.'s reign is often illustrated by a sarcastic speech of Selden in James I.'s time. "Equity is a roguish thing: for law we have a measure. Equity is according to the conscience of him who is Chancellor. . . It is all one, as if they should make the standard for the measure we call a foot the Chancellor's foot, one Chancellor has a long foot, another a short foot, conscience." Campbell, vol. I., p. II. it is the same thing in the Chancellor's † Campbell, vol. 1., pp. 208, 209. Campbell gives numerous instances of petitions from the Commons, we couple these facts with the conditions of the Chancellor's office in the later years of Edward IV., and remember the quantity of business issuing out of the forfeitures and attainders, and the greedy espionage with which the King watched every opportunity of gain in the incidents of feudal tenures, such as escheats, wardship and dower, or in appeals against injustice in the King's patents (of which we had an illustration in the last chapter)-all of them specially in the Chancellor's cognizance-we see how delicate and difficult must have been the task of being fearlessly just, and the cheats that might be put upon conscience. "There will never be wanting," says Sir Thomas More in 'Utopia,' “some pretence for deciding in the King's favour; as that equity is on his side, or the strict letter of the law, or some forced interpretation of it; or if none of these, that the Royal prerogative ought with conscientious judges to outweigh all other considerations." "These notions are fostered by the maxin that the King can do no wrong, however much he may wish to do it; that not only the property but the persons of his subjects are his own; and that a man has a right to no more than the King's which the King always evaded. In 1379 they pray "that parties may be sent to the proper court to answer according to due course of law.” In 13th of Richard II. they pray that the Chancellor might make no order against the common law, and that no one should appear before the Chancellor where recovery was given by the common law. In 1415, on the King's return after Agincourt, they made a vehement protest against the writ of subpœna, "which John Waltham of his craft invented" . . against the form of the common law of the realm in the reign of Richard II., and which became one of the most powerful instruments of Chancery. In 1422 they proposed that, to prevent persons being called upon to answer in Chancery, the judges of the King's Bench or the Common Pleas should first certify, that the complainants could not have any action or remedy at common law. In 1436 they prayed "that every person . vexed in Chancery for matter determinable by the common law should have action against him that so vexed him, and recover his damages." |