Difficult matters was reserved to Moyses wherein he might demeane his decrees according to the Information of his good conscience for so it may be understood if I be not deceived that in those cases he asked Counsell of God who gave him Warrant of his Authority and therefore some have not feared to call him Cancellariu Dei So was Joseph said to be Pharaohs Chancellor and therefore his Successors the Chancellors in our dayes are called Patres Patriae as he was Patriarcha and as the King only was in seate superiour unto him so is the Chancellor with us at this day Primus post Regem secundus in ordine of any temporall Magistrate And surely if in Greece I should look for a meet pattern and president to this purpose I would hope to finde him in the Common-wealth of the Athenians where from the time of the first King Cecrops unto the Athentes Anno I dare be bold â—o affirme that little light would be given unto â—ny man much better conversant in the Greekish Histories than my selfe and from the same time into the Tyranny of â—isistratus from thence to â—e renewed Domecticy after the Domination of Antigonus I cannot single out any one Justicer of â—ike quality unlesse I might allow that Solon was therefore Chancellor for that he did moderate and temper the positive Laws of Draco by his discretion as well in decreeing as in execution the which â—berty and power was after attributed to the Nemothâ—tae not those which did make lawes but those that did allow or reforme the lawes already famed But mee seemeth the chiefest part of our â—han cellors Office may be applyed to the Senate â—o whom the power was given of making decrees in the causes of private persons and the holding of dayly accidents but so as that they did not oppugne or contrary the lawes positive And further we may say of him that he hath Jus consultandâ— with their Demarches Jus judicandi between Citizen and Citizen with Action between Citizen and Alieâ— with their Polymarchus whom the Masters of the Rolls and the Masters of the Chancery are Paredri to informe him of the law as shall more easily be gathered in the processe of this Treaty and that he hath jus imperandi and Principatio judicior with the Aâ—opagitae and further that he may multum irrâ—gaâ—e with the aforesaid The smothetae whereof it followeth that he is undoubtedly a most absolute Magistrate and for that he hath closed in his office a credit for conservation of the peace over all the Realm with shall not be amisie to call him Nomophilax with this remembrance that Plutarch writeth Eumenes Cardiqnus to be ArchigraÌ„matea Alexandri magni Valgo Cancellarium ac principem Scribarum qui lâ—gothetâ— in regno petitiones deâ—retabat quos signabit in eis se suseridebat In the policy of the Roman Empire I meet not with one example saving that by report of Dyonisius the best and worthiest of the hundreth Senators was chosen by Romulus to whom oversight of Justice the appeasing of Tumults and the conservatioÌ„ of peace in the City was appointed at such times as the K. was otherwise busied in the expedition of warfare not unlike to the Ordinance of Edâ— the 3. who in the twentieth yeare of his raigne addressing himselfe to his warres upon the French did then authorize the Chancellor and the Treasurer of England to hear and determine of all complaints against extortion of Officers maintenance imbracery and such like offences by which authority he procured to be confirmed unto them by Act of Parliament and so it is at this day The Chancellor of France Vâ—carius Regis and as will appear hereafter and that there was no other Magistrates in the time of the Roman Kings is expressed by the same Dyonisius excepting onely Tribunus Celerum which was Militaris and as some hold opinion certain Quaesteres for oversight o the Treasury sent but otherwise in Rome omnia Regum Arbitrio administrata sunt in imitation whereof the two great Officers of France which are preferred before all other Et semper adsunt ad latu principis are the Constable of the Kingdom and the Chancellor which is called Quaestor by some writers Now in the permanent and ordinary offices of their popular government what Magistrate might be so mighty or generall in his Jurisdiction as is the present preheminence of the Chancellor I speake not of the Consuls of Dictators which did want nothing at all but the title and the denomination onely of Kings and chief Rulers Herbert Budaeus doth not sticke to call him Praefectum praetorio and further qui loco Dictatoris sit that our Chancellor hath Jus â—dicendi appeares by his rules and orders for matters of Consclence in the Chancery which doe especially concerne his absolute Authority Jus judicandi upon Audita quâ—relaes Petitions de droit c. where he judgeth according to form of Common Law jus cogendi by his service of the Mace and jus coercendi for over all the Realm he hath authority to command a man to Prison How he might be termed Censor in that he sendeth for the Commissioners for survey of Armour c. Aediâ—es in the prizing of Wines and Fish c. in the appointing of Sewers c. And so to compare him with the severall Officers of that Common-wealth by reason of his severall qualityes it were both tedious and impertinent only I have thought convenient to term him Pretor for these congruities First quoad cognitionem then quead curationem The Cognizance of the Pretor was either Domesticall or Popular Domesticall whereby he might hear the Complaints of every private man which his Palace and in his owne Chamber Ministrante at que admittente Cubiculario and order them by the Law of his Reason the which orders were ingrossed by any one of his Clarks and sealed with his owne signet Popular when he sate in Basilieâ— or in Foro where he was Circumdatus Cancellâ—s and had attendant upon him Scribes Cryers of the Court and Serjeants and this was called Locus staâ—uendi in whose constitutions there were two kinds one of decreeing another of giving judgement He was said to decree when without the Counsell or advise of the Judge he would manumiss emancipate award possessions of lands and goods commit wardship of pupills grant injunctions and generally when without assistance of a Judge he did hold cognizance of causes and determine thereof as he thought convenient and in this manner of Cognizance sometimes he would statuere sine Judice sometime he would Rem iudicibus Statuendum permittere as we may fitly translate to dismisse them to the Common law It was said the Judgment of the Pretor either when he proceeded to Judgment according to leges Regis duodecim tabulas Jus Civile leges plebiscita or Senatus Consulta and herein his authority was not absolute as in the other or where himselfe did heare and define
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
Chancery is never adjourned for the Chancery is alwaies open 4. E. 4. 21. b. jurisdict. 6. In an audita querela sued to avoid a recognizance knowledged in the Chancery the Chancellor ought to judge according to the course of the common Law because the matter commeth before him by Originall Writ but upon matters depending before him upon Bill he may judge according to conscience 5. E. 6 Con. 72. casus Rosse Pope 7. The Ceancellor ought not to take precise knowledge of any surmizes nor ought not to take away the Jurisdiction of any Court nor the profit of any person by credit or suggestions 6. E. 6. Con. 74. casus Wymbish c. 8. By these authorities it appeareth that 〈◊〉 hath two powers th' one ordinary th' other absolute By the ordinary he holdeth plea in Latin and the Record after issue joyned is sent into the Kings Bench to be tryed by Jury And this is wholly according to common Law and in such it is a Court of Record but the absolute power holdeth plea upon Subpoena and by English Bill and by pleading and so it hath been used excepting in Anno 20. H. 6. there are some Bils in French as appeareth by the Records of that Year and he intermedleth only with matters of Conscience and therein it is no Court of Record and in both these powers he may hold plea out of the Terme CHAP. II. What matters he may hold plea of in the absolute power 1. THe Chancery in the absolute power holdeth sute by Subpoena only of such matters as are nor remediable by the Common Law per Prisot capit Justic. in Com. Banco 37. H. 6. 14. per Jenney Apprentic 39. E. 6. 2. 6. conscience 6. 4. E. 7. 4. Subp. 17. 2. It appeareth that in Anno 21. E. 4. Many Subpoena's were used to be sued and therefore Fairfax Justice said That if the Chancellors would be good Pleaders there would not be so many Subpoena's sued in the Chancery as there are for divers of those Chancery matters might be converted to actions upon the case and so the Jurisdiction of the Common Law Courts should â—e maintained as for example if one do obtain a Supersed of privilege upon a false surmise an action upon the case doth lye and there needeth no Subpoena 21. E. 4. 23. 3. The Chancellor must judge secundum conscientiam non secundum allegatum For if the Complaintiffe suppose in his Bill that the Defendant hath done some wrong and the Defendant answereth nothing yet if the Chancellor hath knowledge that he hath done no wrong to the Complaintiffe the Complaintiffe shall not recover at all per Cancel 9. E. 4. 14. subp. 11. b. consc. 26. 6. Jurisdictions 50. 4. One sued by Bill in the Chancery and he could not prove his Bill but the proofe of the Defendant was better than his Wherefore Grevill Serjeant said That the Defendant ought to have Judgment to be discharged and Complaintiffe to be barred to whom it was said for the Complaintiffe That the matter is determinable at the Common-Law and therefore such Judgements may not be given and Grevill said That the Complaintiffe shall be estopped to sue so because it is his own doing And when one sueth a Bill he must prove his Bill before he shall have Judgment although the Defendant never answered and the Chancellor was of the same opinion but yet Conesby Serjeant said to the Defendant That he should never have Judgment in the Chancery upon the matter but only a procedendo 21 H. 7. 34. H. 5. By these causes it appeareth That the Chancellor holdeth plea but of matter not remediable by the Common Law and that he must judge according to truth and not upon the default of the party as the Common Law uâ—â—â—h 6. Note that in ancient time where the matter was against reason and the party had no remedy by the Common Law it was used to sue for remedy in Parliament and the Parliaments were holden of course twice every year but now most of those sutes are in the Chancery and the Parliaments are not so often holden vide Rot. Parl. Brooke Parl. 33. 7. The Chancellor said Nullus recedat a Cur cancellar. sine remedio but Fineux said si nul lus recedat sine remedio ergo nullus indiget esse confessus but the common Law is ordained for many matters and some such as are not remediable by the Common Law are to be relieved in the Chancery but divers are remediable by neither and such are in Conscience between a man and his Confessor 4 H. 7. 4 8. In many cases where a man doth wrong yet he shall not be compelled by way of compulsion to reform it for many times it must be left to the Conscience of the party whether he will redresse it or not and in such case he is in Conscience as well bound to redresse it if he will save his soule as he were if he were compellable thereto by the Law As if the Defendant wage his Law in an action of debt brought upon a true debt the Plaintiffe hath no means to come by his debt by way of compulsion neither by Subpoena nor otherwise and yet the Defendant is bound in Conscience to pay him Also if the Grand Jury in Attaint affirm a false Verdict given by a petty Jury there is no other remedy but the Conscience of the party Also where there can be had no sufficient proof there can be no remedy in the Chancery no more than there may be in the spirituall Court as Doctor and Student Câ— 18. 9. Note by these two last Authorities that there are two sorts of â—â—ges conscientiae the one is lex conscientiae politicae by which the Chancellor ordereth matters In which Law of Conscience there is respect had unto the Lawes Customes and State of this Commonwealth and the other is lex conscientiae Divinae by which there is no compulsive relief in this world but the offendor standeth at the judgment of God only and this in times past was said to be examinable between the Offendor and the Confessor Note also that this rule Nullus recedat a cancellar. sine remedio is to be expounded that the Chancery giveth remedy for the common law matters by granting of the Originall Writs which are for the most part returnable into the common law Courts and for matter of Conscience by examining them in the Chancery it self neither doth this rule any way extend to the Law of Conscience divine The Statute made in the 4. H. 4. is this That whereas in Plea reall as well as personall after Judgment given in the Kings Courts the parties be made to come upon grievous paine sometimes before the King himself sometimes before the Kings Councell and sometimes into the Parliament to make new answer thereunto to the great
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
Fleet-lane it is thus written Tot erant formulae Brev. quot sunt genera actionum quia non poterit quid sine bre agere praecipue de libero tento suo quia non tenetur quis respondere sine brevi nisi gratis voluerit cum hoc secerit quis ex hoc ei non injurabitur volenti enim scienti non fit injuria 13. By this it is to be collected that the right and possession of land may be decreed in the Chancery in a sute commenced by the parties consent as appeareth also by a President following 14. Agnis Lumbard being expulsed without proces out of Tenements in Beverley by Thomas Lumbard they submitted themselves to the Decree Order and Award of Michael De la Polle Earle of Suffolk Lord Chancellor who by writing under his Seal decreed that she should have the Tenements rents and arrerages thereof during her life and an Injunction Subpoena was awarded to the tenants to pay the rents and arrerages accordingly and to certain tenants unto whom Tho. Lumbard had leased against the will of Agnis that they should not meddle any more therewith or else they to shew cause to the contrary in decimaquinta pascha also it was then decreed by the advice of Robert Belknap chief Iustice of the Common-pleas and of John de Waltham Master of the Rolls and others that she should be put it full and peaceable seiz in thereof whereof a Writ Patent by warrant of the Counsell was directed to the Bailiffes Aldermen and Burgesses of Beverly to put her in seizin and possession and to defend her therein claus. Anno 9. R. 2. pro Agnet Lumbard CHAP VI Whether the Chancellor may intermixe his power absolute with the ordinary 1 IF an attachment of Privilege be sued against an Attorney in the Chancery this attachment is in the nature of an action at the common law and the Chancellor said that in that sute he had two powers one as a Iudg temporall another as a Iudge of Conscience for if it appear unto him upon the matter shewed in the sute that there is conscience he may judge thereof according to Conscience but all the Iudges said that he might not ludge aecording to Conscience because it is to be ruled according to common law and if there be Conscience in the matter then the party grieved may exhibite a bill thereof and in that the Chancellor may judg according to conscience 8. E. 4. 66. consc. 15. jurisd. 112. 2. One was bound unto I S. and I D. in a star staple and I S. released afterwards I S. not knowing thereof sued execution the Debtor sued an Audita querela and upon the scir. fac I S. and I D being demanded in the Chancery I D. made default and that was ruled to be a default in them both Yet this being the Court of Conscience we as well judge according to conscience as to law and it were against conscience that he which had no knowledge of the release should pay damages But Chock Iustice said that in this case they are and must be Iudges only according to Law and the Master of the Rolls said he would be advised 11. E. 4. 9. b. dammages 3. One traversed an office in the Chancery and being at issue was sent into the Kings Bench to be tryed the party came and shewed that the King had granted the Land before so he should have had a scir. â—ac against the Grantee wherefore he pursued not his Traverse and it was demanded of the Justices if he might have a scirâ— fac out of he Chancery upon the first Traverse and they all answered that he might because that in pleading a default of form should not in any case be prejudiciall in the Chancery for it cannot be called a Court of conscience if the act of a Clerke in pleading should cause the party to lose his sute and his expences 4. In Camera Scaccarij 14. E. 4. 76. traverse d' Office 39. 6. jurisdict. 76. Upon Petition made to the King and by him delivered over to the Chancellor to do right appeared that the Kings Tenant being Tenant in Taile had granted with warranty Lands and an advowson to a College and that the King had Presented by colour of the Wardship of the Heir contrary to the grant and the Incumbent pleaded for the King That the Heir had no Lands discended from his Father and that the Wardship was no Barre but because it appeared by divers Offices returnd into the Court that Lands to the value of 1000. markes were discended to the Heir Therefore the Court awarded in Conscience That the College should be restored to the Presentation without tryall by Jury that the same assetz did discend 43. ass p. 21. Agr. 75. Hereby it appeareth That although the Chancellor may not mix his absolute power with the ordinary concerning the right of the cause yet he may somewhat use the same in matters of expedition of proceedings CHAP. VII The form of the Pleadings ONe sold certain Wool to I S. and I D. for 3. l. and I S. had all the profit thereof and they were bound in severall Obligations Afterwards the Creditor sued I D. the surety upon one of the Obligations being 300l who sued a Subpoena and shewed in his Bill that the Creditor was satisfied of a great part and had given long day for the rest and exception was taken to the bill by Catesby Aâ—prentice because that the Complalntiffe alleged that a great part of the whole summe was paid and shewed not how much was paid and it may be that the money paid was for other obligations and not for this also he hath not shewen what day was given to I S. The Chancellor said that it did not lye in the notice of I. D what summe was paid or what day was appointed and therefore he cannot declare it but it must appear upon the examination of the Defendants confidence but he shall shew certainly such matter as lyeth in his knowledge Also in this Court it is not requisite that the Bill be all certaine according to the solempnity of the Common law for it is but a Petition 9. E. 4. 41. Subp. 12. et b. Conse. 3. 2. Note that the Chancellor said that a man shall not be prejudiced by mispleading or for default of form but according to the verity of his matter and the Chancellor must judge secundum conscientiam non secundum allegat For if the Complaintiffe suppose by his Bill that the Defendant hath done him wrong a d the Defendant answereth nothing yet if the Chancellor have knowledge that the Defendant did no wrong to the Complaintiffe the Complaintiffe shall not recover any thing 9. E. 4. 14 Snbp. 1â— jurisd. 51. Consc. 26. 3. Mispleading nor default of form shall not be prejudiciall to the Chancery omnes Justice in Camera Scacc. 14. E. 4.
Decree made in the Chancery by sub Poena the party may have a writ of error in the Parliament to recover the same if it be erroneous in such sort as he may have to reverse Judgements erroneously given in the Kings Bench per Chock Serjeant 37 H. 6. 3. Iurisd. 53. error 95. But note that Brook abridgeth the case that Prisot the chief Justice was of the contrary opinion which is not to be so collected by the book but by implication yet may it seem that no writ of error doth lie but a petition to the Parlament in the nature of a writ of error but Prisot said that Judgements in the Chancery upon scire facias to repeal Parents and pleas or persons priviledged are reversable by Parlament because they are Judgements but the decrees are not 2. Cholmly Serjeant said if a decree be made in the Chancery that the Chancellor hath not power to reverse that decree in the same Court but it must be redressed in the Parlament for Judgement given in the Kings Bench Common-place or Exchequer are not reversable in the same Court but in a higher Court But Knightley Serjeant said that a decree was but an Order taken by the Court for the time the which upon good causes shewed may be redressed in the same Court hut Devistall Serjeant said that if it might be so there would be an incessant confusion of all causes wherefore the Chancellor cannot reverse an absolute Decree but he may reverse a Decree which is made with a quousque for an absolute decree is much like a definitive sentence given in the spiritual Court which cannot be redressed in the same Court but by application into a higher Court and the Kings Secretary interrupted him to speak any further of the authority of the Chancery In Cancell 27 H. 8. 6. In a writ of error to reverse a Judgement of petition in Chancery the Defendant took exception that the Judgement given in the Chancery might not be reve sed in the Chancery being all one Court but in the Parlament Et non allocatur exception per Cur Cancell 42. asss. p. 22. b error 131. It seemeth that this was not properly a reversall of the petition but rather and is like to the case ensuing I the Lord Chancellor grant a patent of land and after make a patent to another of the same land the second patent is revocable in the Chancery by scire facias but not by writ of error for a Court may reform but not reverse their own Judgements 2 R 3. A statute Merchant was acknowledged in the Chancery the money payable Anno 16. and the party sued execution and his writ supposed the same to be payable Anno 14. and by this sute the Feoffee was put out of power and he sued a writ of error in the Kings Bench and it was awarded that he should be received to the sute 18 E. 3. 25. error p. 17. asss. p. 24. And Plowden reciting the case saith that if upon sutes in the Chancery according to the order of the common Law there be error that shall be reformed by a writ of error in the Kings Bench which is a higher Court 13 El. Com. 393. The Second Part of the Absolute Power CHAP. I. Of Lands IF two Copartners bring a Formidon and one of them by Covin between the Tenant and him will not joyn with the other in a true Declaration the other may compell her by such poeâ—a to joyn in the true Declaration for else the Action would abate per Mâ—â—le Iustice Ienâ—ey Serjeant in Co. Ba 6 E. 4. 10. b. consâ— 12. 2. If two men have a wood jointly and one of them felleth the wood and keepeth all the money to himself his fâ—llow hath â—o remedy by the Law for as when they took the wood joyntly they put each other in trust and were contented to occupy together so the Laâ— suffereth them to order the profitâ— thereof according to the trust that each did put in other and yet if one took all the profits he is bound in conscience to restore the half to his fellow for as the Law giveth him right onely to half the land so it giveth him right onely in conscience to the half profits and yet it cannot be said that the law is against conscience for the Law willeth not that one shall take all the profits but leaveth it to their conscience Lib. Doct Stud. cap. 19. 3. In many cases conscience shall be ruled after the Law as the eldest son shall have his fathers land by conscience as he shall in law and so he shall in law and so in Burgh English the youngest son shall enjoy the land both in law and conscience and in Gravel-kinde all the sons and daughters shall inherit together and there can be no other reason gives why it should be so in conscience but because law or custome is so lib. Doct. Stud. 2. c. 15. for divers good causes upon that ground 4. Tho. Parrick and Agnes his wife exhibited a bill conteining that one Beatrice whose heir Agnes is was seized and took to husband Thomas Bradley present in the Court and dyed Bradley continued as Tenant by the curtesie of England untill now of late he claimeth and publisheth that he hath fee-simple and withheld the Charters wherefore they prayed that he might he examined what estate he claimeth and to be recorded and to knowledge what Charters he hath to deliver them to the complainants defendant Dâ—smissum est à curia quietus sine die per consi cur co qd materia in hac supplicatione contenta non est sufficiens ad pâ—nendum ipsâ—m defend ad examinat super â—undem petition Pet. in Canc. 20 H. 6. the defendant hath authority by law to keep the Charters and although in words he claimeth fee-simple yet because it is not alleadged that he did not any act to the dis-inheritance of the complainants therefore it seemeth he was dismissed CHAP. II. Of Lands in use or trust LAnds in Lond. were devised to the devisors son and three others in fee and that one of them should have the profits during his life the devisor dyed the son and heir sued a sub p against the two others to compell them to release unto him because the use of the land ought to be in him after the death of the per â—or and it was thought reasonable per omnes Justic. in camera Scac. 3 H. 6. devise 22. 8 feofment al uses 49. So it is if the same had been done by Feofment 2. Onâ—â—made a Feofment upon confidence and afterwards declared his will to the Feoffee that one of the daughters should have the land after his decease and after that he came to the Feoffee and told him that his said daughter would not be
is punishable by sub poena as well as the Feoffee 11 E. 4. 8. sub poena 13. consc. 17. 28 A sub poena was sued against two sons and heirs of gavel land to compell them to make an Estate of the land of which the Complaintiff had infecffed their father and others to his use of whom their father was the Survivor the Defendant said that the common voice of the Country is that the Feofment was to the use of the Complaintiff and of his VVife and of the Heirs of their two Bodies begotten who have Issue therefore they prayed a VVrit to warn the Issue and upon the VVrit the issued appeared and shewed that he was under age and prayed that the matter might stay untill he came to age and the Chancellour by the advice of Laicon and Littleton Iustices awarded that the matter should not stay because he was not seized of the Land by a Discent wherefore the Issue by his next Cousin declared his Title 14 E. 4. Age 20. 30 Note that a sub poena doth lie against the Heir of the surviving Feoffees 14 E. 4. Sub. 14. 31 A sub poena was brought against three Feoffees upon trust to compell them to execute an Estate to the Complaintiff one of them said that the Complaintiff made a Feofment to the other two in his absence to the behoof of all three and he died never agreed to the Feofment and the Land is holden of him so that he cannot execute an Estate but that he shall extinguish his own Seigniority and therefore he disclaimed in the Land and it was allowed to be a good answer per curiam Cancellarii 16 E. 44. sub poena 18. 32 If I and another do submit our selves to an award and it is awarded that I shall cause my Feoffees in trust to release to the other being in possession I may compell my Feoffees by sub poena to fulfill the award per omner Iustic. in communi banco 17 E. 4. 4. 33 A VVoman made a Feofment upon confidence and afterwards took a Husband and in her Death-bed she made Testament that her Feoffees should make an Estate to her Husband and to his Heirs the VVoman died and the Husband sued a sub poena to compell the Feoffees to perform her Testament and it was ruled that the Testament was void and that the Feoffees were not compellable to perform the same for Law and Conscience do allow nothing to be good which is done by VVoman Covert concerning her Inheritance except it be by Fine leavied where she is openly examined in the Court for this Testament would be a Disinheritance inheritance to her Heir but she may make her Testamet of Goods and make Executions by consent of her Husband per Cancell omnes Justic. uno tantum excepto And Vavasor shewed to the Court that Anno 7 E. 4. a VVoman Covert having Feoffees upon trust she and her Husâ—and sold the Land and she received the money and afterwards the Husband died and she sued a sub poena and it was adjudged to be a good sute 18 E. 4. 118. consc. 28. b. Testament 13. 34 The custome of Kent is that an Infant of fifteen years may sell his Land and the case was that an Infant made Feoffees upon trust and afterwards being above fifteen years old he willed the Feoffeâ—s to make an Estate thereof to him and his VVife in tail and the question was whether they were compellable by sub poena to do it or no and it was holden that the Feoffees were not compellable because the Infant cannot will his Land by the custome for the custome is onely of Sale and is always to be construed strictly according to the very words also at the Common Law such a VVill made by the Infant of Lands is void and so it is in conscience per Littleton Jenney omnes socios Justic. 21 E. 4. b. Testament 17. 35 Note in Burgh English land where the youngest shall inherit if the Father make a Feofment upon trust the youngest son shall have the use and the sub poena and so it is of Gavel-kinde land where all the Brothers do inherit per Dig. App. 21 E. 4. 24. b. Testament 17. 36 Hussey chief Justice of England said that when he came first to the Court which was about thirty years past it was holden by all the Court that if one infeoffed another of trust which died seized so that his Heir were in by Discent no sub poena should lie against the Heir for the same reason a sub poena might be against the Heir after two Discents which were inconvenient but the Chancellor said that there are Presidents in the Chancery that a sub poena doth lie against the Heir in Cam. Scacc. 22 E. 4. 6. b. consc. 23. 37 If a ftoffee upon confidence make a feofment to one that hath knowledge of the confidence the feoffer shall be restored again in the Chancery otherwise it is if the purchasor had no knowledge of the confidence per Cancel 7 H. 7. 12. sub poena 18. 38 The Feoffees upon trust of an Infant may grant all ordinary Offices for term of life as Steward Bailiff and Receiver and they shall have allowance thereof in their Accounts when they are called to account in the Chancery but they cannot grant any fees for term of life without the assent of the Heir when he is of full age per Hussey Brian cap. Just Ang. But Keble Serjeant said that if the Feoffor were able and willing to be Bailiff or Receiver himself or if that there were need of any Steward Bailiff or Receiver then he might repeal the Grants by sub poena also it was agreed that the feoffees might defend the Land in all sutes with the profits thereof and should have allowance thereof in Counsel 8 H. 7. b. Ftofments al uses 12. 39 Note it was adjudged that a VVoman Covert Executrix might make sale of her lands to her Husband and that it is a good Bargain and the feoffees upon trust are bound to make a feofment accordingly and in this case because three feoffees did the contrary they were committed to the Fleet 10 H. 7. 20. This is to be understood where the Land was devised to the Woman being Executrix to the intent to be sold for the performance of the VVill of the Testator 40 Certain feoffees were seized to the case of Sir Richard Rooe for life and afterwards to the use of others and the feoffees made a feofment in fee to Sir Richard Rooe the question was whether Sir Richard Rooe had forfeited his Estate or no and Hussey and Brian chief Justices agreed that it was no forfeiture by the common Law for no mans Reversion is discontinued continued thereby otherwise it is if Tenant for life of land had made a feofment to a
proffits of the people but if the same acts or ordinances be examined and approved by the Chancellor Treasurer or chiefe Justice or three of them or before both the Justices of Assize in their circuit in the Shire where such acts and ordinanees be made upon paine of forfeiture of 40 l. for every time that they do the contrary Stat. de Anno 19 H. 7. cap. 7. Corp. 2 3. If the Wardâ—ns and Masters of Fellowships of handicrafts within any City or Borough or Town Corporate where such Wardens be and in such where no Wardens of handicrafts are then if the Bayliffs or Governors of the Boroughs or Towns will wrongfully intreat any stranger in executing of the Stat. de Anno 14. H. 8. then the stranger so grieved may by bâ—ll or information complain to the Chancellor or Treasurer of England or to the Justices of Assize in the County for the time being which by their examination shall have authority to hear and determine the same Complaint and to award to the Complainant such amends as by their discretions shall be thought reasonable Stat. Anno 14. H. 8. cap. 2. Aliens 3. 4. The Tables to be set up in the City of London touching Scavage within the same shall be first viewed examined and approved by the Chancellor and Treasurer the President of the Counsell and the Lord Privy seal the Lord Steward and the two chief Justices or by 4. of them at the least and by them subscribed Stat. Anno 22 H. 8. cap. 8. Aliens 5. If any Printers or Sellers of Printed Books doe inhance their prises in sale of binding at too high and unreasonable prises in such wise as complaint be made thereof unto the King or to the Chancellor or Treasurer or either of the chief Justices then they or two of them shall have authority to enquire thereof as well as by oathes of 1â— persons as otherwise by due examination by their discretions and after the same so found then they or two of them from time to time shall have authority to redress such inhaunsing of prises by their â—retions and to limit prises as well of the books as for binding them and moreover â—hat the offendor being convicted forfeit for every book by them sould and inhaunsed 3. s. 4 d. the one half to the King the other to the party grieved that will complaine Stat. Anno 25 H. 8. cap. 15. books 6. The Chancellor Treasurer President of the Counsell Privy Seal and the two chief Justiees or three of them shall have authority by their discretion to set prices of all kind of Wines that is to say of the prices of the But Tun Pipe Hogshead Ponchen Teirce Barrel or Rundlet when it shall be sold in gross so that they or any of them cause the prices by them set to be written and open Proclamation thereof to be made in Chancery in Term time or eise in the City Borough or Town where any such Wines shall be sold in gross 28. H. 8. cap. 14 Wines 20. 7. The L. Chancellor Keeper of the Great Seal Treasurer President Privy Seale and other of the Privy Couusell the chief Justices or three of them at the least whereof the Lord Chaneellor Keeper Treasurer President or Privy Seal to be one upon complaint made in writing shall have Authority to take order with the bodies lands and goods of Banckerupts for the payment of their debts Vide Stat. Anno 34 H. 8. cap. 4. Banckerupts And thus much of the Absolute power of the Lord Chancellor his Judiciall power the which poor barren Treatise I have not presumed to collect either for instruction of hi Honor from whose wisdome I have alwayes thought nothing can be hidden or for ostentation of my reading and experience who do freely acknowledg my selfe the most ignorant man of my profession but to this end and with this intention have I done it partly to provoke some good matter from those learned Lawyers and skilfull Antiquaries that are Attendants ûupon his Lordship and especially for satisfaction to his desire that did demand it and may command me Sic litabant Mola qui non habcbant Thuca FINIS An ANALYSIS IN the Office of the Chancellor of England are six things to be considered I. HIS ANTIQUITY in Office and not in name which hath been from the time of the first Creation of Kings and Rulers And he was called AMONG the Hebrewes Mazcre AMONG the Grecians Nomophilax AMONG the Romans Praetor In OFFICE and name which hath bin from the time of Charls the Great King of France IN OFF CE and name in England which hath bin from about the time of King Edward the Confessor II. The ETYMOLOGY of his name Either à Cancellando Iniqua Concessa Regis viz. by cancelling or disallowing the unjust Grants of the King by withholding them from the Seale untill the King may be better informed according to the verse Et mandata pii principis aequa fuit Iniquas leges viz. by cancelling the rigor of extreme laws in tempring them with Conscience according to the verse Hic est qui leges Regni cancellat iniquas RECORDS viz. Of Cancelling such Records as ought to be made void which may be either by drawing of crosse lines over such Records and by entring of a vacat in the Margent declaring the cause of the Cancelling Which may also be either by Judgment given in the Court for admitting such Record or else by personall agreement of such partie or parties as it only concerneth Or by plucking the Records from the File And this ought not to be done but by authority of Act oâ— Parliament Or â—Cancellis for that he fitteth in Judgement within certain limits or bounds c. III. His constitution which hath bin and may be in two sorts viz. By Letters Patents which hath been but rarely used and I find only three of them of Record Walieâ— Grey Bishop of Chester and Chancellor by Patent dated Anno 7 Regis Johannis Ralph Nevill Bishop of Chichester and Chancellor by severall Patents one bearing date Anno 11 H. 3. the other Anno E7 ejusd. Regis One other in the time of H. 6. BY DELIVERY of the Great Seal unto his hand and custody which delivery is to be entred of Record wherein is to be noted that the Keeper of the Great Seal had the Seal delivered in diverse manners It was delivered to the Chancellor by the King and immediately he took an Oath for the faithfull exercising of the Office of Chancellor and then he sealed Writs therewith alone It was delivered to the Keeper of the Great Sease without any Oath and therefore he did not commonly Seale therewith but in presence of some of the Masters of the Chancery IIII. Hâ—S preheminences viz. Unto him are substituted all the Chancellors in England Ireland Wales and Scotland and aâ—l they that have charge of any the Kings Seales wheresoever beside the Lord Privy seal By prescription