to the Law or that great Office for some have grown by Grant by reasō of the Kings Prerogative which both the Law and the Chancery alloweth and are to allow of right so it be not in derogation of their Authorities and may stand with the Law of the Land For the Kings Bench proceedeth by Bill without Original against such as be Prisoners to the Mareschal thereof and that justly for that no Law can prescribe the King a form to proceed in Iustice for those Causes that be before himself but he may receive any complaint without Writ and proceed as it please him so he observe the Law for Iustice Iudgement which is done there as well as in the Common Pleas where all come in by Original Writ For though it be not by like form for process yet it is by the same form of pleading and judgement in matter substance of Law all one And in this part it is manifest that this Authority also in the Lord Chancellor to direct out Original Writs is by the Law of the Land given unto him and his form prescribed to him by the Law how he should make them And to that purpose there is a Book of Law left in the Chancery that the Chancery men are bound to follow which is called The Register And if the Writs be not made according to the form of Law thereby prescribed the Judges will reject them and judge thē void which is called in Law abating of the Writ So as it is apparent that in this also his Lordship and his Office is by the Common Law and are members of the Commō Law and that he doth it not by any other Authority above Law or besides it 5. Then was considered of his Lordships authority to judge which appeareth in 9 E. 4. fol. 14. in a Book-case to be of two sorts or by two powers viz. One according to the course of the Common Law or Positive Law which is there said to be Potentia ordinata which is in process in pleading and in judgement according to the course of the Common Law of the Land The other is said Absoluta potentia which is in process according to the Law of Nature to send for the party to Answer and receive his Answer if he will make it then proceed to examine the truth of the matter and if he will not answer but be Contumax yet his Honour is to proceed to the examination of the truth and not to condemn him in the cause for his obstinacy if it may appear that the matter be not good against him And there is noted this difference which is apparent and common in practice That where the proceeding is according to Ordinary power mispleading on either part may marr his Matter and the judgement must be according to the Law howsoever the equity of the Case shall fall out But if the proceeding be according to Absolute power though the party mis-plead if the Lord Chancellor shall perceive the matter to be good on his side his Lordship is to judge for him for whom Equity serveth be it the Plaintiff or Defendant for that he is to judge as he shall find the matter to be in Conscience good or bad and not as he shall find the pleading to be formal and good or vicious and evil or as the Law will in the Case As for example in such actions as be brought in the Chancery before the L. Chancellor as an Audita querela to avoid a Recognisance for Nonage or other good Cause in Law And in actions brought according to the course of the Law either by any of the Court or against any of them by reason of their Privilege and in Vouchers upon Aid-prayer of the King and such other whatsoever actions are pursued there according to the course of the Law his Lordship is not to regard what Conscience would in the Case but is tyed to the strict course of Law so as if the matter be against Conscience in his Lordships opinion yet he is to adjudge with him that the Law serveth for yea if his matter appear to be good and his Counsel have lost it by pleading his Lordship can not help it in judgement nor if the Law be against him though Equity Conscience would seem for him But on the other side if the proceeding be by the Absolute power howsoever the party or his Counsel oversee or set forth their matter whatsoever the precise Rule of Law requireth if his Lordship perceive by his Wisdom that the cause in Conscience is good on his side his Lordship is to adjudge with him for that then judgement is to proceed secundum Conscientiam Veritatem and not in Forma Juris But in any Case that is there in form of Law if it fall out that in Conscience it ought to be relieved the party may put in a Bill follow it in that course and then his Lordship may stay the course of Law 6. Then was it enquired Whether his Lordship may take order in all causes which are against Conscience or that the Law hath limited them also and allowed of some to hold in that course and some not And it seemed that Conscience whereby his Lordship is to judge is not to be understood simpliciter and to be Simplex Conscientia but Regulata Conscientia and therein to follow Order and Course accustomed viz. to take order in such Cases as by the Course of the Court hath been ordered before-time and in Causes of like Equity or greater wherfore oftentimes Presidents are sought for and required and for lack of Presidents it hath been sought how cases in the like reason or in eodem respectu with that that is then in question have been used to prove that that Court may take cognizance of the Cause As for example it is against Conscience that a rich Father should suffer an honest Son to begg that a rich Son should suffer a good Father to want yet his Lordship in those cases cannot make the one to give away his goods to relieve the other according to Conscience But that which that Regulata Conscientia relieveth is not when one keepeth his own unconscionably but when one seeketh an other mans Goods or Lands or to trouble his person unconscionably either by colour of Law or extorted power further or otherwise than in good Conscience it ought to be then his Lordship proceeding according to the course of that Court is in Conscience to relieve the party that is so dealt with or his Lands or Goods so taken or sought contrary to Conscience 7. And it was thought that if it be unconscionable that is done if the Law in ordinary course may give a competent remedy and the party sufficiently able to follow it and that there be no defect in any circumstance but that by the Law the party wronged may be relieved that his Lordship ought not to deal in it but referr it to the Law to be judged
of the chief of the Nobility were Partners therin which were never fully appeased until the Parliament was holden at Marlebridge about the 52 year of his Reign when and where that Charter was enacted in that Parliament and thereby the antient Laws and Liberties revived and restored which Charter so enacted sithence hath been by all Kings Queens solemnly sworn at their Coronations to be kept and so hath been sacredly Observed to this day unless some Forgetfulness in some Kings and Ignorance in some Officers hath infringed the same But now by Gods blessing plentifully powred upon us it is in sull Use to the great Comfort of all good Subjects and immortal fame of her most Excellent Majesty And in the 28 Chapter of that Charter and Act of Parliament I find it set down in Latine in excellent and significant brief words to this effect That no Freeman shall be dealt with either in Life Liberty Lands Liberties Body or Goods nor that the King would send for any nor proceed against any Nisi per legale judiciū parium suorum aut per legem terrae And that the King would not defer deny nor sell Justice or Right to any which is as it were the sum of all the Charter Act and the whole mark that was shot at to revive the antient Laws and restore the antient Liberty and Liberties to the Subjects Wherein I noted That both how far the Prerogative should go and what is Right and Justice common to all is referred to be decided per legem terrae what therefore that Lex terrae was which was so carefully sought dearly bought with so much Noble blood which was then thereby revived I thought if I could find I had that I sought for And therfore I thought it best to begin with such Reporters or Writers of our Law as writ nearest the time of that Charter and looked into Mr. Bracton that wrote about 9 H. 3. the very time of the first granting of the Charter who was one of the chief that were appointed as it is delivered by Traditiō to find out again the antient Laws of the Land when the King was pleased to put thē again into the force that they had lost by the Conquest And in his Book in print I find it thus written Cum autem ferè in omnibus Regionibus utatur legibus jure scripto sola Anglia usa est in suis fmibus jure non scripto consuetudine in ea quidem ex non scripto jus venit quod usus comprobavit And after that he saith in the next Chapter these words Leges Anglicanae fuerunt approbatae consensu utentium Sacramento Regum confirmatae And Cap. 3. Consuetudo more utentium approbata vicem Legis obtinet consuetudinis non vilis est authoritas And he saith further Lib. 1. Cap. 8. treating of that Law which he calleth the Custom of the Land Lex autem facit Regem attribuat igitur Rex Legi quod Lex attribuit ei id est dominationem potestatem nam ubi dominatur voluntas non Lex ibi non est Rex Whereof may be aptly collected that before this Law was there was no King here in this Land for if the Law of the Land made the King there was none before it But Kings we find by all Stories to be of a great antiquity here in this Land and so by consequence the Law must And then looking for that matter in the Reports of the Law I found a Book Case in 2 H. 4. fol. 18. That it was agreed by the Judges that the Common Custom of the Realm was the Law of the Land And in that point looking further I found all Books of Law agree which Judgement of the Judges from time after the Enacting of that Charter and the judgement of Mr. Bracton before at the time of the penning of the Charter concurring in one satisfied me That Lex terrae which is there set down and thereby revived and now holden by the great Charter whereto every King and Queen is sworn at the Coronation was the antient Custom of the Land that all People of several Nations that at several times inhabited here liked best of as fittest for this place whereby the Kings lived in greatest Honor and Ease and the People in greatest Quietnes and Freedom wherfore thereto the Kings were content to bind themselves and the Subjects could abide no other And so I drew that travel to this conclusion That our Law is the antient Custom of the Country or Land and of that Antiquity that there is no Record nor Matter that can shew the Commencement thereof nor any man can tell it but it was before all memory of Man that remaineth in the world consisting of Maxims General Grounds Rules received approved allowed as just good necessary for the Governmēt of this Land begun when this Land first became a Common-wealth under a King and ever sithence used approved and allowed from time to time time out of mind of Man and by experience found in all Ages to be fittest for the place and to be necessary honest and profitable both for the Prince and People and being so found fit and continued it became a Custom to be observed of all that should inhabit or remain here and when it was lost by the Conquest it was again restored by Common consent of Parliament as was necessary it should be for that the force it had by Custom and Usage was interrupted by the Conquest So as the Custom of the Realm revived by Parliament is the Law of the Land which is the Genus to all And the Parliament and the Acts thereof and the Prerogative of the Prince and the particular Customs of several Counties Cities Boroughs Manors be all but Species of it For that General Custom of the Realm which is the Law of the Land authorizeth the Parliament limiteth the Prerogative alloweth and disalloweth of Private Customs and whatsoever in England is to be allowed and not to be allowed as they are consonant or dissonant to the reason thereof But when I had found out this by Reading then looking into the course of Practice I found the Lord Chancellor fitting highest in Westminster-Hall and had most to do bare the greatest rule and yet gave his judgement as it seem'd to me as it pleased himself whatsoever the Law of the Land required in the case And seeing Men of great Honor Learning Integrity sit in that place and so judge I was in a maze not finding at the first how it could stand with the Great Charter that referred all judgement ad Legem terrae and how any thing different from that Law could be allowable in the Land sith the Kings were all sworn to maintain the Charter that restored the Law and his Lordship and all the Judges were placed by the King But when I looked further and perused it well I found that the Custom of the
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
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