King that hath an Authority by Prerogagative above the Law in many cases as to pardon and acquit by Mercy where the Law of Justice condemneth must attribute to the Law Dominion and Power the Lord Chancellor though he hath an Authority besides Law and yet allowed by the Law is to attribute Dominion and Power to the Law in all that he can for that it made him an Officer in so high degree and therefore he may not Cancell or deface it Which point that he is made by Law and hath his Authority therby is afterwards fully proved And it is to be Noted That his Lordship by his Absolute power cannot stay the Course of Law but onely bindeth the person not to follow the Law in any Unconscionable Course This may serve to shew that it was not said of Cancelling the Law for in those Cases of Conscience it is found by experience that the Law will take her course if the party call upon it though the Lord Chancellor hath otherwise ordered the Cause But his Lordship hath his Name of Cancelling the Kings Letters Patents which is a thing of as great Honour to his Lordship and the Law as th' other had been of Dishonor and Disgrace to both wherein it was Noted That the Letters Patents of the Prince once passed the Great Seal do bind both his or her Majesty their Heirs and Successors and all Subjects yea so far as the King or Queen cannot call them in if they find them unfit nor any Subject can gainsay them if they be not just Yet by Law if Letters Patents be past the Great Seal in deceipt of the King or Queen the Judges by the Law are to adjudge it undue and not to bind the King or Queen in that respect wherein they were deceived but yet they must leave it under Seal and cannot deface it But if any Letters Patents pass the Great Seal injurious to any Subject or prejudicial to the Law the Lord Chancellor as a Judge of Law and not by his absosolute Authority by his Ordinary power and by the course of the Common Law is to judge of it which proveth that the Law and not Prerogative giveth him that power For he is to hold plea of it by course of Law and to call the party interessed in it by process of Law and so proceed according to the Law and repeal it by Judgement if it be found in Law to be injurious And then the Lord Chancellor may Cancell it and pull the Seal frō it and deface it which neither the King or Queen by Prerogative nor any other Judge of Law nor other Lord of England can do but himself who only hath that Authority Wherefore thereof he is called Dominus Cancellarius Angliae as if it were said that Lord that only hath Authority in England to Cancell the Letters Patents of the Kings that bind both the King and the Subjects if they be injurious to any Subject or prejudicial to the Law In this part there were Three things Noted One that hereof his Lordship took his Name Another that this was his highest Authority for that none but he had the like in the Land The third that his Lordship hath it given him by the Law and is in that respect a Judge of the Law and proceedeth in course of Law and not according to Conscience and by his Absolute power or extraordinary Authority for he cannot judge thereof any otherwise but by the Law of the Land 3. Then was Noted As all justice floweth from the King or Queen as from the Fountain and no Authority or Jurisdiction in England is lawfull that is not drawn from thence so is his Lordship and his Office next under the King or Queen to direct such Commissions and Grants as shall give Judicial authority to any judge according to the Law which must pass under the Great Seal or they be not sufficient For example There is no Judge made by Writ or Commission but it cometh from thence neither hath any Man power tenere placita but it must grow first by Grant from thence except it be the petit Sutes that belong to petit Courts as Courts Baron and County-Courts whereof it is said by Law de minimis non curat Lex but the Law left them to the Lords at home to order them for the Peoples ease Yet in these Courts if any falle Judgement be given it cannot be redressed but by Writ out of the Chancery to bring it before better Judges But here of was noted That though he must direct out all Commissions and Grants before any can have Authority to judge according to the Law that his Lordship doth that also by the Law of the Land And the Commissions and Grants made by him are to be adjudged by the Law of the Land for their validity or invalidity And therefore that his Lordship therein is a Judge and member of the Law to appoint and direct the rest in that behalf and is to do it in that form and to that effect that the Law hath prescribed him which his Lordship may not alter whereby it is apparent that he hath that Authority also by the Law of the Land 4. Then was Noted That by the Common Law if any would complain of wrong or sue for right he was to come into the Chancery and set down by one of the Clerks thereof a Brief of his matter that he would put in Sute and that was by the Clerk to be set down in form in parchment and a Precept written before it in the Kings or Queens Name and that directed to the Sheriff of that Shire where the Plaintiff allegeth the Defendant was to be best found or the cause most aptly lay to be sued to Trial which Precept Commandeth the Defendant or Tenant to render right to the Plaintiff or Demandant or appear at the day prefixed in the Court appointed to him to answer him to the Law and that Brief enclosed in Wax sealed with the Great Seal the L. Chancellor is to send out by the course of the Common Law before any Subject can be sued for any matter of weight by the course of the Common Law And that Writ is called in Latine Breve wherein also was noted a great regard that the Law had that Men should not be lightly heard to complain of their Neighbours nor any Subject drawn into Sutes nor troubled nor any Causes but the petit ones aforesaid should be brought to judgement but by his Honours direction so as Judges should not send for whom they would nor listen to all that complained but to do Justice to those that were sent to them by the Kings Writ directed by the Lord Chancellor of England to be Retorned before them as fit to be considered of and meet to be drawn into Sute and Judgement Though sithence by usage divers Courts have obtained other proceedings by other process according to their Course and not by Originals and that is not derogatory either
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
doubted by some whether his Lordships Authority absolute might bind the great Men of the Land viz. The Nobility as well as the mean Subjects And the doubt rose upon this For that their Honours are not to be Arrested by their Bodies for any cause between Them and any Subject by the Law of the Land and the processe out of the Chancery is by Attachment of their Bodies if they come not in upon a Sub-poena served and the execution of that Court is Imprisonment untill the party will yield to obey the Decree and Order thereof and by the Great Charter no Freeman ought to be Imprisoned but by the Law of the Land But that seemeth no cause why the Order of the Lord Chancellor should not bind them for by the Law of the Land if the Peers commit any contempt to the Crown they are to be taken by their Bodies as other men And Mr. Bracton Lib. 1. Cap. 24. hath these words Ea quae sunt Justitiae Paci annexa ad nullum peirinent nisi ad Coronam Dignitatem Regiam est enim Coronae Regis facere Justitiam Judicium tenere Pacem illa à Corona separari non possunt And what can be more near annexed to Justice than when a poor Man complaineth to the chief Judgement Seat that he should have justice according to Conscience and Equity without respect of persons and that his Might should not overcome the poor Mans right Therefore when it is found and Ordered for the poor Man and his Right in Conscience and the great Man thereby appointed and Ordered that he shall cease his hard dealing with him and he contemneth it Must not that contempt needs be Contra Coronam Dignitatem Regiam seeing that Jurisdiction cannot be separated from them And then all Men agree That for any contempt against the Crown their Honours may be arrested and imprisoned as well as any other Subjects But in all these great Cases neither the Reader nor any his Associates took upon them to decide the Law touching the Authorities aforesaid nor to give any certain Rules for them but dealt only for Learning to open the points and leave the judgement to the Judges as the manner of that Exercise is to determine what the Law is And touching his Lordships Absolute Authority in this whole Discourse they all both the Reader and his Associates submitted themselves to the judgement of the Lord Chancellor himself for every thing appertaining to his Lordships Office for that God hath not limited how farr nor wherein he should go or deal but guideth his Conscience in every case that shall come before him by his Grace to do that which shall be good just and equall before God and Men so farr as God shall direct him in that matter for his own Glory and the good or punishment of the parties according to his Good will 13. But the last Note was this That where every other Judge if he erreth in judgement is subject to a Writ of Error to have his judgement examined by other Judges above him and so reversed and himself not to be reproved if it be but error in judgment and if he erre of falshood then to be Fined or punished by the Lords in the Star Chamber and his false Action defaced Yet the Lord Chancellor of England if he erre in his judgement which he giveth according to his Conscience there is no Appeal to any but to God to reform it for he is the only Judge of the Conscience of Man and he only may condemn any for Error only in Conscience and he only may direct Conscience into a better course if Man erre therein for every Man of his own Nature is subject therunto and also for that in that respect there is no Magistrate in England superiour to him for only the King or Queen is superiour to him in Government and they are not by the Law to distribute Justice themselves but are the superintendents over all others immediate under God to appoint thē to it to see it done by them and charge them with it and to maintain them therein Thus escaping out of this Laborinth they left it as they found it saving this doubt resolved That his Lordships Authority and Office was erected by the Law and remains a principal Member thereof and that so of necessity as without it the Law could not be just and equal to all in every Case FINIS
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