to the Law or that great Office for some have grown by Grant by reasō of the Kings Prerogative which both the Law and the Chancery alloweth and are to allow of right so it be not in derogation of their Authorities and may stand with the Law of the Land For the Kings Bench proceedeth by Bill without Original against such as be Prisoners to the Mareschal thereof and that justly for that no Law can prescribe the King a form to proceed in Iustice for those Causes that be before himself but he may receive any complaint without Writ and proceed as it please him so he observe the Law for Iustice Iudgement which is done there as well as in the Common Pleas where all come in by Original Writ For though it be not by like form for process yet it is by the same form of pleading and judgement in matter substance of Law all one And in this part it is manifest that this Authority also in the Lord Chancellor to direct out Original Writs is by the Law of the Land given unto him and his form prescribed to him by the Law how he should make them And to that purpose there is a Book of Law left in the Chancery that the Chancery men are bound to follow which is called The Register And if the Writs be not made according to the form of Law thereby prescribed the Judges will reject them and judge thē void which is called in Law abating of the Writ So as it is apparent that in this also his Lordship and his Office is by the Common Law and are members of the Commō Law and that he doth it not by any other Authority above Law or besides it 5. Then was considered of his Lordships authority to judge which appeareth in 9 E. 4. fol. 14. in a Book-case to be of two sorts or by two powers viz. One according to the course of the Common Law or Positive Law which is there said to be Potentia ordinata which is in process in pleading and in judgement according to the course of the Common Law of the Land The other is said Absoluta potentia which is in process according to the Law of Nature to send for the party to Answer and receive his Answer if he will make it then proceed to examine the truth of the matter and if he will not answer but be Contumax yet his Honour is to proceed to the examination of the truth and not to condemn him in the cause for his obstinacy if it may appear that the matter be not good against him And there is noted this difference which is apparent and common in practice That where the proceeding is according to Ordinary power mispleading on either part may marr his Matter and the judgement must be according to the Law howsoever the equity of the Case shall fall out But if the proceeding be according to Absolute power though the party mis-plead if the Lord Chancellor shall perceive the matter to be good on his side his Lordship is to judge for him for whom Equity serveth be it the Plaintiff or Defendant for that he is to judge as he shall find the matter to be in Conscience good or bad and not as he shall find the pleading to be formal and good or vicious and evil or as the Law will in the Case As for example in such actions as be brought in the Chancery before the L. Chancellor as an Audita querela to avoid a Recognisance for Nonage or other good Cause in Law And in actions brought according to the course of the Law either by any of the Court or against any of them by reason of their Privilege and in Vouchers upon Aid-prayer of the King and such other whatsoever actions are pursued there according to the course of the Law his Lordship is not to regard what Conscience would in the Case but is tyed to the strict course of Law so as if the matter be against Conscience in his Lordships opinion yet he is to adjudge with him that the Law serveth for yea if his matter appear to be good and his Counsel have lost it by pleading his Lordship can not help it in judgement nor if the Law be against him though Equity Conscience would seem for him But on the other side if the proceeding be by the Absolute power howsoever the party or his Counsel oversee or set forth their matter whatsoever the precise Rule of Law requireth if his Lordship perceive by his Wisdom that the cause in Conscience is good on his side his Lordship is to adjudge with him for that then judgement is to proceed secundum Conscientiam Veritatem and not in Forma Juris But in any Case that is there in form of Law if it fall out that in Conscience it ought to be relieved the party may put in a Bill follow it in that course and then his Lordship may stay the course of Law 6. Then was it enquired Whether his Lordship may take order in all causes which are against Conscience or that the Law hath limited them also and allowed of some to hold in that course and some not And it seemed that Conscience whereby his Lordship is to judge is not to be understood simpliciter and to be Simplex Conscientia but Regulata Conscientia and therein to follow Order and Course accustomed viz. to take order in such Cases as by the Course of the Court hath been ordered before-time and in Causes of like Equity or greater wherfore oftentimes Presidents are sought for and required and for lack of Presidents it hath been sought how cases in the like reason or in eodem respectu with that that is then in question have been used to prove that that Court may take cognizance of the Cause As for example it is against Conscience that a rich Father should suffer an honest Son to begg that a rich Son should suffer a good Father to want yet his Lordship in those cases cannot make the one to give away his goods to relieve the other according to Conscience But that which that Regulata Conscientia relieveth is not when one keepeth his own unconscionably but when one seeketh an other mans Goods or Lands or to trouble his person unconscionably either by colour of Law or extorted power further or otherwise than in good Conscience it ought to be then his Lordship proceeding according to the course of that Court is in Conscience to relieve the party that is so dealt with or his Lands or Goods so taken or sought contrary to Conscience 7. And it was thought that if it be unconscionable that is done if the Law in ordinary course may give a competent remedy and the party sufficiently able to follow it and that there be no defect in any circumstance but that by the Law the party wronged may be relieved that his Lordship ought not to deal in it but referr it to the Law to be judged
the Law is in the Case and to Imprison the party if he will not be ruled by him and forbear the benefit of Law in every thing that the Lord Chancellor thinketh to be Unconscionable So as it seemed upon the first object for that his Lordship is neither bound to the trial nor the judgement that the Statute appointeth to be observed as it seemed upon the Letter that his Authority is above Law or besides Law so the Great Charter of England no further holden than it pleaseth the Lord Chancellor of England Also it appeared by practice That no Man hath Jurisdiction to judge according to the Law before he hath some Grant or Commission from the King or Queen out of the Lord Chancellors Office under the Great Seal that is in his keeping And also by course of the Common-law saving some particular prescriptions in some particular Courts the Judges cannot hold plea in any Cause until his Lordship send them it by an Original Writ framed in the Chancery retornable before the Judges by his Lordships appointment But when it was well considered That the Charter and Statute of Magna Charta was that none of these things should be done but according to the Law of the Land And that every King was sworn to observe it and that the Lord Chancellor is appointed by the King to his Office It was conceived that the Law of the Land appointed these things to be thus done by his Lordship for some necessary causes known to them that first invented the Law and so that great Office and the Great Charter and the Law of the Land might all stand together Wherefore then was sought for when that great Office of Chancery was erected by whom and for what cause and it was found to be erected by the Institutors of the Common Law as a Member thereof of necessity to observe order in making of Judges direction of Sutes and to relieve and supply in those Cases where the Judges by the general Grounds and Rules of Law could not give competent Remedy by Law according to Conscience and Equity as shall hereafter be more plainly shewed And so his Lordship nor his Office no derogation to the Law of the Land but his Office a member and he a Judge thereof without whom the Law could not have the perfection order and due honour that it hath For the better perceiving whereof it was Noted First that those the Kings Nobles and Commons whosoever and whensoever they were that Instituted the Law of the Land did see that it was best to make it so as it might stand of General Grounds and Rules that might comprehend all particular Cases that should fall out and to bind all that were in one Case to one judgment without respect of persons or other Circumstances or else the Law could not direct the Judges how they should proceed in judgement For if consideration of the person or other circumstance might have given a scope to the Judges to judge by one Rule one Case one way and another another way the Judge might have made of the Golden Rule of the Law a Leaden Rule to bend at his will and so confusion would have followed and infinite inconveniences for avoiding whereof they made the Rules to reach all persons alike according to Justice which regardeth the person of no Man in judgement Then they did see that many would be over-reached for some were too simple and would trust untrusty persons and be circumvented and were meet therefore to be holpen Some would fall into the lash of the Law ignorantly and therefore not to be punished as those that offended of Malice Many might craftily over reach their Neighbours by getting the better end of the staff And some by strength bear them down if by some extraordinary Authority the weaker were not upholden and the simple provided for and the subtill prevented For in many Cases men might offend wrong their Neighbours in subtil sort and be wronged by hap or simplicity or ignorance and yet the General Rule of the Law could not fully reach or relieve them that were so over-reached or circumvented Wherefore the Institutors of the Law found it to be a thing of necessity to tie the Judges to follow the Law in judgement in all Cases generally alike as the Case required and yet to constitute one Supreme Judge further trusted than the rest that might have an Authority absolute and extraordinary to supply and reform those particular Cases that might happen as aforesaid according to Equity and good Conscience and to bind the parties not to follow Law where by Law they might get more by subtilty or the others simplicity than Conscience would Here grew an Objection That it was a dishonour to the Law to have these wants by this great Man to be thus supplyed for that it shewd that she had not sufficiency and certainty in her Grounds and Rules But this is nothing For there is no Law in any Nation but particular mischiefs have grown upon it nor ever any Art or Science hath been so exquisitely set down but disputable Questions have been found in it And that it cannot be otherwise one example may serve Moyses that was the Law-giver to Gods People and delivered it himself by Inspiration was at the wall we see in his own Books in divers Cases that happened both in the Political Law who should inherit and the Ceremonial Law touching the uncleanesse that came by touching a dead body and he was driven to refer it to God to be decided and could not decide it himself by the general Rule of the most perfect Law that ever was given to any people Then if Moyses that man of God found some doubts that he could not decide in that Law delivered by himself Good Judges and learned may find some Cases that by Law they can hardly find a good provision for but leave it to such as God shall appoint to utter his Will by in Cases of Conscience sith by Law they are not otherwise provided for Then it was Noted whereof his Lordship hath his name of Dominus Cancellarius Angliae Lord Chancellor of England wherein all agree that he is called Cancellarius à Cancellando But what he may Cancell whereby he had that honour hath been doubted Some have said that he had authority Cancellare iniquam Legem Communem judicare secundum Conscientiam But that hath no reason and was rejected for it is absurd that sith the Law hath made him a Judge of Law and his Office a member of the Law and made thereby as as shall be plainly proved that the Law should give Authority to deface or Cancell her self or that his Honour should deface that wherby he sitteth and hath his Authority And to that end was cited Mr. Bractons saying Lex facit Regem attribuat igitur Rex Legi quod Lex attribuitei id est dominationem potestatem And thereupon it was concluded à fortiore If the
But therein there is no certain Rule but his Lordships own Wisdom and Opinion to discern whether the Law can relieve it or not or that there be any defect or not so as if his Lordship think there is cause to retain it he may or dismiss it if it please him according to his own Conscience which is in that behalf to direct him as God shall direct it 8. And some cases there be that seem unconscionable and yet the Law alloweth them for good and necessary and never Lord Chancellor thought good to deal in them As for example That the Warranty of a Collateral Ancestor that never had any thing in the Land descended upon one that had right should barr the right Owner from his Inheritance for that he is Heir to him that made the Warranty though he hath nothing for it Or that a supposed Recovery in value in a Common Recovery against a Cryer of the Court of Common Pleas that is not worth a Groat nor like ever to be able to make Recompence in value should stand for a Recompence and be a barr of a mans lawfull Inheritance and to barr him that he can never demand it seemeth in every Mans particular Conscience to be unconscionable And yet the Law hath allowed of them upon this General Rule of Law Better to suffer a Mischif than an Inconvenience and upon the regard that the Law hath to settle Possessions of Inheritace in certainty by such Instruments and Policies as the Law hath allowed to assure them by of which kind these be wherefore the Law hath not suffered them either by Law or in Conscience at any time to be violated or infringed for any respect or in any case 9. And it was said That wheresoever an Act of Parlament hath made any provision for any unconscionable thing that was not to be relieved by the Common Law if the Lord Chancellor think in his Conscience that the Parlament hath not sufficiently relieved the party yet his Lordship is not to relieve him further than the Parlament hath done as before the Act he might have done for that so much is provided for as the whole Three Estates thought meet to whose judgement his Lordship is to yeeld But if any go about to defraud any Act of Parlament or not able to seek relief as the Statute appointeth Then as aforesaid according to Conscience his Lordship is to deal therein when and where as God and his Conscience is to direct and no other nor other rule there can be for his direction in that behalf Hereupon was it also concluded That his Lordships Authorities Judicial both by Ordinary power and by Absolute power are limited by the Law of the Land For in the Ordinary he is tyed to the strict course of the Law as other Judges be and in the Absolute power though not tyed to the course of the Law yet he is to deal per Regulatam Conscientiam and according to the course of the Court and in such Cases as in cases of Conscience and Equity likewise hath been relieved before-time but not in any Case that Law hath allowed of for good and necessary nor in any that any Parlament hath made provision for unless for some circumstances the party can not have that which the true intent of the Law or the Parlament allowed him but by means of that Court And many things that a good Conscience would will a man to doe in Charity to his Neighbour his Lordship by his Conscience cannot compell him to do by the course of that Court. 10. But in all that Discourse none could find how farr his Lordships Absolute power went nor within what limits certain it could be contained nor by what means he might find out the truth But that is without limitation referred to his own Gifts and the Grace of God that giveth Wisdom to find out the Truth and Conscience to judge accordingly sometime to find it out by the Law of Nature as Solomon did when no Testimony could be found in the world yet he found by her bowels of compassion the true mother of the Child And sometime it is found out by one mean and sometime by another But God never faileth to give wisdom and means to perform those Offices and Callings that his Majesty placeth men in so as they serve him in Fear and walk before him with a good Conscience and seek it in Humility and with prayer at his hands whose Will which is Infinite is the Rule of the Lord Chancellors Conscience and therefore his Authority in that respect is infinite and not limited in certainty 11. Upon all these Notes the Reader concluded with this Note That it is certain that his Lordships Office and Authority is by the Law of the Land and not derogatory thereto but was constituted by the Law-makers to supply those things that the Judges that be bound to the general Rules could not relieve but in nothing to proceed to the prejudice of the Law And to that end his Lordship was made a Judge of the Law in some Cases and also a Judge by Conscience besides the general Rule of Law in some other Cases for that being a Judge of the Law as well as others his Lordship is with others to uphold the credit of the Law and that most of all others for that she gave him greater Authority than any other and trusted him above all the rest in that she tyed all the rest to follow strict Rules and left him to rule by the Grace of God and his own Conscience and to observe only the Equity and not the strict Rules thereof Wherefore no man ought once to controll his Lordships judgement in any cause that he proceedeth in by his Absolute power but is with reverence to yeeld unto it for as much as every one by the Rule of Charity and of the estimation that we ought to have of them that God hath substituted over us is to judge the best that is that his Lordship hath proceeded in singleness of heart according to his Conscience and the Director of a good Mans Conscience is the will of God which is the perfect rule of Righteousnesse howsoever it seemeth to Man in his Wit or Judgement Wherefore when his Lordship hath set down his judgement as God hath guided his Conscience in any case where he is Judge by Conscience though it differ from some other judgement given either by himself or any other good Man that sat in his Seat all men are bound to think that the case differed in some circumstance that they cannot see or hath not understood it Or that God in this case according to his good Will which is subject to no Rule but it self hath ordered this thus and that so and each being according to Gods good VVill though different in our Understanding the one from the other both to be Righteous and Just Judgements and are not to be disliked or disobeyed of any 12. But then was it
Land which is that Lex terrae allowed of that Authority also as of the rest and that it was also a Species of that General the Law of the Land which was the ant ent Custom of the Realm And that it was of necessity to be in that sort For that the Common Law Custom of the Realm or Law of the Land term it as they list standing of General Grounds Rules and Maxims it was impossible but some particular Cases must fall out that either the General Rule whereon it lighteth should be too bard for it or too short to reach it And therefore was it of necessity to the end that all Cases might be judged according to Right and Equity to have one under the Prince above the rest to have such an Authority that might judge secundum aequum bonum sanam conscientiam in these cases and to mitigate where the Rule of Law would light too hard and to supply where it came too short and to the end that he might have the sending forth of Commissions to authorise Judges of Precepts from the Prince to produce them to judgment that were to be sued And to be of especial Trust with the King for keeping his Great Seal ordering thereof in such other things as appertains to that office Wherefore entring into consideration thereof I found that Office also to be limited by the Law and erected thereby and therfore I gather'd divers Notes concerning the same to Answer such Objections as might in that respect be objected against that Charter and Statute and the Law of the Land which lying by me when your Lordship was placed in that great Office whom I profess I ever affected from my first comming to the Temple more thā others though then I knew and was known of many of excellent Gifts and Natures And after your Honor was called to the Court by her Majesty I coming sometimes to you from my old good Lord dear Friend Sir Edward Saunders late L. Chief Baron I found you most gracious and favourable unto me and now lately received such honorable usage from you as I could not have desired when some of good and honorable Nature excellent good Disposition dealt hardly with me as I thought not affording me a good word for a dutiful heart ever born them and some hard pains performed for thē which God for some offence committed by me but not against them laid on me yet your Lordship of whom I had never deserved any thing nor shewed any Duty to except God revealed to you the Intention and Affection of my heart defended my poor credit as I heard to my great Comfort and spake well of me Wherefore to shew my self thankfull for an ungratefull Man I have ever hated as a Devil and loathed as a Monster I bethought me how to present something to your Honour as a token of my dutifull mind heart tyed to you But amongst things of price I could find nothing that was not too dear for me to compass or too mean for you to receive as a present and that to deal that way was but to pour water into the Sea so plentifully God be blessed for it he hath blessed you with abundance And yet seeing your Honor had so well used me for nothing but of your honourable Nature I gathered hope that you would accept something were it never so small in good part at my hands whose heart and what he hath is ever at your Commandement And taking example by the poor Gardiners that present flowers to the greatest Princes that have nothing in them but a small smell and no profit yet are well accepted of their gracious minds I thought good to compose my Papers together that concerned the Authority Exercise of your Lordships Office and to present them unto you which though too simple to inform your Wisdom of any understanding yet at some vacant time may serve to recreate your self in reading as the plainest things not the gravest matters are meetest for that purpose But my good Lord with these papers I present unto you my self my poor service to be altogether at your Commandement with faithful promise That if my life may hold one of your fingers frō hurt I will lay it down to help it or to do you any good while I live will speak well of you to men as one that deserveth it of all pray for you to God that he may still bless you with increase of his excellent Graces much Honor perfect assurance of everlasting joy And that her Matie and this Land may long enjoy you for the maintenance of the Laws and Liberties thereof and the relief of the oppressed Subjects Notes touching the Office and Authority of the Lord Chancellor of England Collected out of a Reading made in the Middle Temple in Lent Anno Dom. 1570. upon the 28 Chap. of the Great Charter of England granted under the Great Seal in the 9th year and Enacted and made a Statute at Marlbridge in 52 year of King Henry the Third WHen the Reader had found That by his Statute No Man might be arrested imprisoned or dealt withall in his Person or Liberty or put out of his Freehold Free Customs or Liberties Nor that the King would send forth against any nor proceed upon any but by the lawful trial of their Peers or the Law of the Land And that the King would not sell deferr or deny Justice or Right to any And that that Law of the Land was the Antient custom of the Country which hath continued ever sithence there was a King here and that by it the King was made and had his power and preheminence And that it was confirmed by the Oath of Kings before the Statute and sworn to be observed by all the Kings sithence And that all Judges are bound to try their doubts and Judge their Causes accordingly howsoever their private knowledge or Conscience leadeth them Then both by Practice and by the Authority of Books looking into the course of the proceedings in the Chancery by the Lord Chancellor of England from time to time it seemed as though that Office had been besides the Law erected out of the absolute Authority that the Conquerors claimed and that it hath been continued from time to time against the Law and the Provision of that Charter and Parliament as it were by a Prerogative above the Law for that he is not tyed to any Form of Trial of any point of Fact that falleth out doubtfull before him as other Judges be but may examine Witnesses as he pleaseth and when he pleaseth to inform his Conscience also examine the parties by Oath or otherwayes and to proceed as it shall seem best to his Wisdom to beat out the Truth as it seemeth good to him in his privat judgment And that his Lordship may Order Decree the Cause as it seemeth to him to agree most with Equity and Conscience howsoever