that in the 3 year of Rich. the 2. in a Parliament holden at London Dominus Richardus Scroope cessit officio Cancellariae c. Archiep. Cantuar. Magister Simon Sudbury contra gradum suae dignitat ut plurimi conclamabant illi Officio militaturus accessit sed si ipse illum procuraverit aut sponte susceperit novit Deus Sometimes were chosen to that place Archbishops and Cardinalls as John Thoresby Archbishop of York and Cardinall c. in the time of Edw. the 3. c. Sometimes Threasaurers of England were advanced to the honour of Chancellors as Henry de Burgh in the time of Edw. the 3. Sometimes to the Office of the Keeper of the Great Seale as John de Cheshall in the time of Henry the 3. and many other to either of the places Sometimes common Lawyers were called to be Chancellors as Robert â—erning Justice and Robert Thorpe Justice in the time of Edward the 3. Sir Thomas Moore in the time of Hen. the 8. and others Sometimes were trusted with the Keeping and exercise of the Seale as John Maunsell L. Chiefe Justice in the time of Edw. the 3. c. Sometimes the Lord Keeper of the Privie Seal was made Lord Chancellor as Edmund Stafford in the time of Henry the 4. and others Sometimes were made Keepers of the Seale men cunning in the Custome of the Chancery as was Sylvester de Eversden in the time of Hen. 3. Sometime men learned in the Civill and Common Lawes as William of Kilkenny in the time of the said King Sometimes the Master of the R oâ—â—s as Henry Cliffe in the time of Edw. 3. who was his Chancellor also and others Sometimes a Keeper of the Wardrobe hath been appointed to keep the Seale as John Drakensord to Edw. 1. Some have been twice Lo. Chancellors as John Hotham in the time of Rich. 2. Some thrice as John Stratford in the time of Edward 3. And sometimes there have been three Chancellors in one year as Rotheram Alcoch and Moreton in the 1. yeare of Htn. 7. and he that hath been the longest in office either of Chancellor or Keeper of the Seale is not remembred to have continued above 18. years Some with their Office of Chancellor have retained other places as William Velson after Bishop of Telâ—ard was at one time Chaplaine and Chancellour to William the Conquerour Rannlph Brittaine at one time Cancellarius Regis specialis as saith Matthew Paris and Treasurer of the Chamber But the mightiest of living by multiplicity of Offices that I may readily finde were John Maunsell in the time of Henry the 3. Simon Langham in the time of Edw. 3. John Stafford in the time of Hen. 6. Woolsey Cardinall in the time of Hen. the 8. And in honour and temporall Dignities the Lord Marquesse of Winchester who was Keeper of the Seal in the time of Edw. the 6. And thus much may suffice for the Originall Office Dignity and Election of the Lord Chancellor Now may something bee added of the Conrt of Chancery and Authority absolute of the Chancellor As the Chancellor is at this day Norma omnium jura Reddentium câ—â—â—mnes Magistrat honorun suorum fasces submittere not â—ndignentur And withall as Budeus calleth them Promus Condus clementiae benigniâ—atisque principalis and generally the mouth the eare the eye and the very heart of the Prince so is the Court whereof he hath the most particular administration the Oracle of equity the Store-house of the favor of Justice of the liberality Royall and of the right pretoriall which openeth the way to right giveth power and Commission to the Judges hath jurisdiction to correct the rigour of Law by the judgement and discretion of equity and grace It is the refuge of the poore and afflicted It is the Altar and sanctuary for such as against the might of rich men and the countenance of great men cannot maintaine the goodnesse of their cause and truth of their Title the entry and doore whereof ought Patere omni postulanti omnibus â—oris nulli tamen â—â—are which is meant not to gape after such men as bring rewards oâ— seek accesse to the help thereof by corruption and it is called Caria saith Valla a Cura for that care and heed is to be taken therein for the deciding of controversies but it seemeth rather to be called Curia an Assembly or the place of assembly c. like as the Kings Court was first called Curia for that the Court of Justice was there first holden For the originall of this speciall Court is to be considered that in the time of the Saxons and of the Danes the King by himselfe did hold a high Court of Justice wherein he sate in person and did judge not onely according to meer right and Law but also after equity and good conscience and this is confirmed by the Law of the Saxon King Edgar viz. Let no man seek to the King in matter of variance unlesse he cannot finde right at home but if the right be too heavy for him then let him seek to the King to have it lightned The like to this Law is also among the Lawes of Canutus the Dane and for the understanding of this right at home we may remember that in those days were certaine Jurisdictions over Leets Boroughs and Tythings c. and there by authority permitted to the Reeves or Judges of the lower roomes for the hearing of sutes of small importance and grant of greater power to the Sheriffes and Aldermen which had the charge of greater Assemblies all was retained and reserved to the King himselfe the decision of such matters as by just cause of appellation either for law or equity should be brought before him to be considered and resolved in the aforesaid high Court of the King out of which as were the former so were all the high Courts of Justice or Conscience at this day derived by the Ecclesiasticall Courts or Temporall And here I might take some fit occasion to touch by the way how in the Parliament Lawes not onely for civill and criminall causes but also for the matters of the Church are made abrogated or mitigated common wrongs not holden in other Courts are there amended and heard and difficult causes are there ended Attainders confirmed and annulled corruption of blood there restored errors committed in other Courts there corrected and all constitutions for the State are there confirmed c. How in the Kings Bench are properly all such causes onely to be handled which appertaine to the Crowne or wherein the King is a partie if they be not by Commission particularly assigned to some other Court How in the Court of Common Pleas are holden all Common Pleas between subject and subject of all matters of Common Law How in the Exchequer are the Queenes receipts and her yearly revenues recorded and kept how it is her common Treasury and a Court for Justice betweene
her Majesty and her Subjects c. How the Court of Wards and Liveries is the Court wherein the Queenes prerogative for Wards is maintained out of which are sued Liveries and therein their ages are proved which are in Ward to the King by reason of Tenure c. How the Court of Starre-Chamber is ordained to redresse certaine great offences provided by Statute and appointed to this Court How the Duchie Court of Lancaster is also the Queenes Court and of Record wherein are holden all Pleas reall and personall which concerne any the Tenants of the Duchy lands now in the hands of her Majesty and parcell of her Crowne but severed in Court and Jurisdiction How in the Court of Requests are holden by vertue of their Commission none other but sutes that are made to her Majesty by way of supplication which is called the poore mans Court because he should have right there without paying any money How the Admirall hath disseisin of Marine How the Constable and Marshall of England determineth the Contract touching Deeds of Armes out of the Realme and handleth matters concerning warres within the Realme and Combats Blazon and Armory c. may be tryed by the Lawes of the Land How the Marshall of the Kings House before the Stat. of Articuli super chartas had Authority to heare and determine the pleas of the Crowne within the verge and now hath the hearing of Trespasses Contracts and Covenants made within the verge c. How the Court of Presidents and Councels in the Marches of Wales and in the North parts are Courts of equity in their principall Jurisdiction although they doe withall exercise other powers by vertue of other severall Commissions that doe accompany the same c. I might further busie my selfe with the County Courts Leets Courts of Barons and Courts of Pyepowders c. the Assizes Quarter-Sessions Commissions of Oyer and Determiner and Justices in Eyre to search and set downe when by whom and upon what occasion all the aforesaid Courts were erected wherein they doe containe within their appointed limits and wherein they doe usurp Jurisdiction which was appropriated to some others c. but for that the matters to be moved therein would require a severall Treatise of every severall Court for the which I feele my selfe very insufficient I will forbeare at this time to mingle Jurisdictions and onely continue in the course of the Court of Chancery the which Court I cannot finde in the time of the Conquerour to be served from the Court of the King and appointed to be holden by the Chancellor although I read in that time and the time of his sonne Rufus the ordinary course of Justice was altered in forme but not in substance and whether the Collegium sâ—ribarum founded by the Conqueror whereof he appointed the Chancellour to be President might beare the name and title of a Chancery in very truth I have much doubted for I cannot gather thereout any jurisdiction to determine causes and moreover I read expresly that during the Reignes of both the Williams Hen. 1. Stephen and Hen. the 2. there continued still a Court belonging to the King which was the place of Soveraigne justice both for matters of Law and Conscience called Curia Domini Regis and Aula Regia for that the Prince himselfe did many times sit there in person and had Justices a latere suo sedente as saith Bracton namely his chief Justice Chancelor Constable Marshall and others and howbeit in the 9. year of Hen. 3. by the erection of the Common Pleas the Common Pleas were withdrawn from the Court which followed the King to a place and Jurisdiction certaine it seemeth that by the division of Jurisdiction made by Bracton in his Book which he compiled by the commandement of K. Edw. 1. in the beginning of his reigne and of the particular authorities delivered out by the King to his Justices Commâ—ssioners and Delegates that the Jurisdiction oâ— determining the causes now belonging to this Court did remaine to the exercise of himselfe and yet was not the Jurisdiction of the other Courts out of the King for Jurisdiction as saith Bracton Non potest a Rege delegare but the causes proper to this Court were managed and determined either by himself in person or in his absence by his Chancellour Councellours of State and Iustices of Law that continually attend upon him for that service namely the Justices to informe him of the Law and the Chancellor which was most usually a spirituall person to give advice according to equity and good conscience in which respect also he was visitor for the King and passed the presentations of Benefices so that such as sought for reliefe by equity were sutors to the King himselfe who being assisted with the Chancellor and his Councell did mitigate the severity of the Law in his owne person when it pleased him to be present and did in absence either referre it to the Chancellor alone or to him or some other of the Councell yet have I some good causes of conjecture that the Chancellor in those dayes was a Judge ordinary in the same Court to hold plea by Latin Bil In monstrance de Droit Pleas and Enterpleas of Livery and Ouster ie Maâ—nes of portions and such like as a Minister to make processe c. And therefore I cannot agree with the opinion of some men that this Court of Chancery was erected and first assigned to the Lord Chancellor in the 36. year of Edw. 3. as well for the Patentees afore set downe doe grant and confirme unto the said Nevill officium Cancellariae of the Chancery and not Caucâ—llarii which was in Hen. 3. time as also for that in divers Statutes long before this time and in Yeare Books there is mention made of the ordinary authority of the Chancellor the Register and the Clerks of the Chancery viz. in the Statute of Glouc. in Anno 6. Quo warranto c. of Acton Burnell in Anno 11. Processe upon Recognizance in Westm 2. cap. 24. concordand Cleris de novo brevi c. Ad cap. 49. Champertie c. and Statut. Marchante Brev. al. Viscount c. in Anno 13. Slat de consultat procedendo c. in Anno 24. Articuli super chartas cap. 5. follow the King c. 6. Seale c. in Anno 28. of Ed. 1. and in Ed. 3. his time Anno t. Stat. 2. cap. 15. writing by Dures c. Anno 14. cap. 8. chuse Escheators c. Anno 5. Stat. Carhal adymytt Attorneyes c. Anno 19. Sacrum Clericorum cancellar. c. Anno 20. cap. 3 Oath of Justices Chancery c. ad cap. 6. Chancellor and Treasurer c. Anno 25. cap. 2. Sley Chancellor Treason c. and ibid. cap. 4. writ to Mayors c. Anno 31. ca. 3 Fifty wives c. in the 29. of the Booke of Assizes wee may see partition before this
time made in the Chancery and execution thereof by Scire fac out of the com pleas in the 20 Ed. 3. Sute in the Chancery by Petition to repeale a patent c. So may wee remember 15. 18 and 2. Edw. 3. for Petitions c. before this time and divers other cases In 20. of Edw. 3. an absolute power was by Statute given to the Chancellor joyntly with the Treasurer to punish divers offences therein mentioned according as Law and Reason required c. but whether this may be said to give them authority of extraordinary and absolute proceeding against theÌ„ I stand in some doubt how be it I do not think that the jurisdiction of the Chancery was thereby inlarged but it seemeth very probable that the Statute of 36. of the same King though it were not the foundation and erection of the Chancery did notwithstanding adde a great measure of jurisdiction unto the same for there it was agreed by Parliament that if any man were grieved contrary to the Articles in that Statute mentioned which were many and generall or others contained in divers Statutes he might come into the Chancery or any for him and thereof make his complaint where he should be relieved by force of the said Articles and Statutes without elsewhere pursuing to have remedy By which Law the Chancellouâ— was not onely made sole Judge in this Court but was inabled also to proceed in judgement there after his owne discretion for otherwise the wordâ— without other Sute were not beneficiall but saving correction I take the Statute of 17 Edw. 2 to be the especiall ground-work of the Chancellor his absolute power where authority is given him upon untrue suggestions to ordaine and award damages according to his discretion by expresse word c. after which time his power from time to time Vires accrevit eundo be enlarged by sundry Parliaments as by one to senâ— forth Proclamations of Rebellions c. against such as would not appeare and by others both to grant Commissions of divers kinds and to doâ— many other things whereof mention shall bee made in the cases set downe hereafter concerning his power absolute the which is intended the speciall but an object of this Treatise Now therefore in the meane time may we confidently cali the Chancery the Kings High Court of Conscience made especially to redresse private causes such as by extremity of Law cannot have agreeable end to equity by reason of circumstances hindering wherein it is to be noted that conscience is so regarded in this Court that the Lawes are not neglected but they must both meet and joyne in a third that is in a moderation of extremity It holdeth plea also of common or civill matters between the Prince and his Subjects so farre forth as the same hath to do with Petitions Traverses Monstrance de Droit and such like out of this Court as from the person of the Prince came all manner of originall Writs whereof some are Commissional or Commissary giving Authority to certaine Judges or Officers to heare and determine causes some are certificatory or Remotaries of Records Pleas or other Acts some doe command to proceed as Writs De Procedendo c. some inhibit or excuse as Prohibitions Protections or Graunties de jours and of Essoynes c. Some are deductory to summon and bring the party impleated into the Court to answer to the Plaintiffe Out of this Court come most commonly Commissions Patents Licenses Inquisitions c. of this Court is said Arâ—iculâ— super narrationes novas that it is Curia ordinaria pro brevibus originalibus emendis concedendis sed non pro placitis Communibus habuendis meant as it seemeth according to the course of the common Law and in the Treatise of Diversities of Courts It is noted that the Court of Chancery is a Court of high nature out of the which doth proceed Writs Originall as is aforesaid and there a man may traverse Offices and in the same Court the Kings Widdowes shall be sworne that they will not marry without the Kings leave before they be endowed and it is there said that the errour upon a Patent or Traverse there cannot be reversed anywhere else then in Parliament c. And in this Court a man shall have remedy for such things for therewith he shall not have remedy at the common Law c. ibid. In this Court of Chancery a man shall not bee prejudiced for his mispleading or for default of forme but according to the truth of the matter for that awards there are to be made according unto conscience and not Ex rigore Juris And further in Fleta are these words Fiant autem brevia inde audicialia in Cancellaria ea recognitionibus contractis habitis inde Rotulis Cancellariae irrotulatis Et ex Recordo Consellario Cloricis sibi assasiatus per hanc constitut concessae quia de hâ—s quae Recordata sunt coram Cancellario Dom. Regis ejus Justitiar qui recordum habent in rotulis eorum irrotulantur non debent fieri processus placiti per summonationem vel Attachiamenta Essonia visus terrae alios Solempnitaâ—is Curiae sicut fieri consuevit in contractibus commencionibus factis extra Curiam c. This Court is also by some called Oâ—ffic Juris Civilis Anglorum because out of this Court issue all manner of Proces which give the party his cause of action in other Courts The Proces in the Chancery is a Subpoena which is to call the party before the Chancellour upon paine of one hundred pounds c. and this is the way used to bring in the partie or else by the Serjeant as shall be said afterwards and how the paine is but in terrorem for thereof shall be no forfeiture but if the party come not in or comming in will not obey the order of the Court hee shall be imprisoned during the pleasure of the Lord Chancellour as will appeare in the severall handling of his absolute power where also will be remembred the Stat of 15. H. 6. that no Subpoena may be granted without Suerty to satisfie the Defend. for his damages and expences â—f the matter cannot be made good which is contained in the Bill c. The order of proceeding in the Chancery is by Injunctions Decrees and Orders the which how farre they binde the party and how hee is punished by imprisonment for resisting them shall be also shewed in the cases of the power absolute hereafter plaeed The Judge in this Court is the Lord Chancellour onely and he is Keeper also of the Great Seale the which is usually carryed with him wheresoever he goeth so he goe not beyond the Seas for then he is to leave it behinde him to such for whose fidelity he will answer As did John Stratford Chancellour and Embassadour in the time of Edw. 3. And so did Stephen Gardiner in the time