of the Great Seale both at one instant to Henry the first Sometime there were two Keepers of the Great Seale and both at once as were Jefferey le Templer and Iohn de Lexinton notwithstanding that Ralph Nevill remained Cancellor of whom infra Sometime the great Seale was delivered unto 3 at once as by Edward the 2d to Will Melton and 2 others joyned with him for a certain time to execute all such things as were to be done therewith during the Kings pleasure The election or creation of Chancellors and Keepers c. was of more than one sort and also of Men of divers degrees and qualities Sometimes and for the most part the Chancellor was elected by the King Durante bene-placito and put in power of his Office by the Delivery of the Seale and sometimes the Chancellor was made by Patent to hold that place or office during his life as Walter Grey Bishop of Chester in the time of King John and others some and the most part were elected by the King onely some had Patents of the King and were confirmed Chancellors by consent of the three Estates as were Ralph Nevill Bishop of Chester in the time of King Henry the third with whom the Prince being offended as reports Mathew Paris and demanding the Seale at his hands he refused to yield the same unto him affirming that as he had received it by the common consent of the Nobility so he would not without like Warran resigne the same And in the dayes of the same King it was told him by all his Lords spiritual and Tempotall that of ancient time the election and dispofition of the chief Justice Chancellor and Treasurer belonged to the Parliament anâ— although the King in displeasure did take the seaâ— from him and delivered the same to the custodâ— of others yet did the aforesaid Nevill remainâ— Chancellor notwithstanding and received the profits thereof to whom the King would havâ— restored the Seale but he refused to receivâ— it And hereupon may be gathered that the Keeper of the Seale is not Vice-chancellor in every respect Anâ—â—et us note by the way three several Parentâ— were granted unto this Ralâ—h Nevill aforesaid wâ— whereby he is ordained to be Chancellor and the third for the custody of the Scale all remaining among the Records in the Tower in haeâ—â—erba Henricus Rex c. Archiepiscopis Episcopis c. Sciatis nos dedisse concessâ—sse â—aâ— charta nostra confirmasse Vene Paâ—â—â— Randolpho Cicestrensi Episcopo Cancelldriaâ— nostram hahend â—â—nend toâ—o â—â—mpore vitae suae cum omnibus pâ—rtinent libertatihus â—â—â—eris consuetudinibus ad praedictam Cancellariam nostram habeat bene in pace libere 〈◊〉 integre honorifice cum â—â—â—â—bus exitus libertatibus omnious allâ—s ad eam perâ—inentibus sicut Cancellar Regn. Angl. praedecessor nostror ea melius quietius liberius integrius habâ—ere hijs Testibus c. datum per manum nostram 12. Fâ—br Anno Regni nostri 11. His second Patent was of this Forme Henricus Dei gratia c. Archiepiscopis Episcopis c. Sciatis nos concessisse et â—ac Charta nostra confirmasse pro nobis et haered nostris venerab. pri. Randolpho Cicistrensi Episcopo Cancellario nostro Cancellariam Angliae toto tompore vitae suae cum omnibus pertin. libertatibus liberis consuetudinibus ad praedict Cancellariam pertinen quare volumus et firmit praecipimus pro nob is et haered nostris quod praedictus Episcopus habeat ipsam Cancellariam toto tempere vitae suae cùm omnibus pertinent libertat et liberis consuetudinibus ad praedictam Cancellariam pertin. sicut praedictum est Testibus c. Datum per manum meum apud Westm. quarto die Maij Anâ—o regni nostri decimo septimo This is the transcript of his third Patent the same day and yeare Henricus Dei gratia c. Archiepiscopis c. Sciatis â—os concessisse et hac charta nostra confirmasse venerab. patri Randolpho Cicestr Episcopo cancellar. nostro custodiam Sigilli nostri toto tempore vitae suae cum omnibus pertin. libertat et consuetudinibus ad praedict. custod pertinent Ita quod sigillum illud Portat et custodiat in propria persona sua quamdiu voluerit vel per aliquem virum discretum sufficientem idoneum assignatsuum qui quidem assignat nob fidelitat faciat de fideli servitio de sigillo nostro loco suo fideliter Custodiendo aut quam custodiam praedicti sigilli recipiat 〈◊〉 si forte idem assignat â—suus discesserit vel vitam suam mutaverit vel ob causam rationalem per nos vel per ipsum Cancellar amotus fuerit vel ipse assignat sigillum illud ulterius portare noluerit idem Cancellarius loco illius assignat substituat alium virum discretum sufficientem idoneum substituat Item quod fidelitatem faciat nobis de fideli servitio suo de praedicto sigillo loco suo fideliter custodiend antiqua Carstiaca sigilli praedicti recipiat sicut praedictum est quare volumus firmiter praecipimus quod praedictus cancellar. habeat custodiam c. hiis Testibus c. Datum per manum nostrum apud Westm. quarto die Maii Anno Regni nostri decimo septimo Sometimes the Chancellors of England were elected by the Nobility as Nicholas of Eli was made Chancellor by the Barons But this seemed a usurpation by them for they were afterwards the most of them most sharply chastised and the said Nicholas deprived by Hen. the 3 d. disdaining to have Officers of that estate appointed him by his Subjects Sometimes the Chancellors were created out of the Nobility as Richard Nevill Earle of Salisbury in the time of Hen. the 6. Henry Bourchier Earle of Essex in the time of Edw. the 4. the Lord Wrotesley the Lord Rich c. Sometimes they were enobled after their advancement to that Office as Richard Scroope Knight created Lord of Boulton and Michael de la Poolâ— created Earle of Suffolk in the time of Rich. the 2. Sometimes they were the Sonnes of Noblemen and Princes children as Henry â—eauford sonne of John of Caunt c. in the time of Hen the 4. Sometimes of base and meane parentage as Wolsey Cardinall c. Sometimes Archbishops and Clerkes were ordained Chancellors whereof the first Archbishop was Walter Hubert Archbishop of Canterbury in the time of King John to whom a Nobleman said in scorâ—e That he had often seen a Chancellor made a Bishop but he never before saw an Archbishop made a Chancellor where of is to be noted that many of the former Chancellors were not Bishops when they were elected to that Office but afterwards promoted to their Bishopricks upon which promotions many of them did yeeld and surrender up their Authority of Chancellors and to this purpose maketh the testimony of Thomas Walsingham who writeth
CERTAINE OBSERVATIONS Concerning the Office of the Lord Chancellor Composed by the Right Honorable and most Learned Thomas Lord Ellesmere late Lord CHANCELLOR of ENGLAND Whereunto is annexed a perfect Table and a Methodicall Analysis of the whole Treatise LONDON Printed for Matthew VValbanck at Grayes-Inne Gate for Henry Twyford in Vine Court Middle Temple and Iohn Place at Furnivalls Inne Gate 1651. TO THE READER Courteous Reader SOme yeares past the Copy of this Treatise was delivered unto me by John Harding late of Grayes Inne Esquire deceased and one of the Readers of that Honourable Society and by him then affirmed to be composed by the Right Honourable and most learned Thomas Lord Ellesmere Lord Chancellor of England of whose great and eminent abilities I dare not presume to speake being so unable and unworthy to be a judge of and the rather I am confident no man will be so hardy as to detract from the memory of so famous a Statesman A Perfect Table of the most notable matters contained in the first Part of this Treatise CHancellor his name in severall Languages Page 1. His Antiquity and Authority here and in other forain Nations 3 4 c. His name and office in France from the time of Charls the Great 8. And in England from the time of Edward the Confessor 12 13 c. Cancillarii Regis and Cancellarii Regâ—i 14. Symon the Norman the first sole Keeper of the Great Seal about 23 H 3. ibid. Sometimes there were two Keepers and sometimes three 15. Chancellor and his Election of divers sorts and of divers degrees ib. 18 19 Chancellor chief Iustice and Treasurer their Election belongeth to the Parliament 16. Patents of the office and their severall formes 16 17. Chancery the nature and orginall thereof 21. Chancellor his ordinary Authority when it began 26 27. Much inlarged by 36 E. 3. 28 His absolute power whereupon it was grounded ibi Error there reversable only in Parl. 30. No prejudice for mis-pleading there or default of form ibid. Processe is a Subpoena and the order of Proceeding in the Court 31 The Iudge of the Court 31. How the Seale is to be ordered 32. The form and fashion thereof 33. The Assistants to the Lord Chancellor 36 Master of the Rols ibid. The Officers of the Court 37 38 c. And their privilege 40. The manner of proceeding and the matter of the subject from 44 to 120. See in the end of this Treatise an exact Summary or Analysis of the whole booke most methodically composed by the Author thereof These bookes following are Printed and to be sold for Mathew Walbanck at Grays Inne Gate for Henry Twyford in Vine Court middle Temple and John Place at Furnivals Inne Gate 1651. PErfect Convveyancer Mirror Iustice Abridgment of Lord Cokes Reports Abridgment of Lord Dyers Reports Abridgment of Plowdens Reports Perkins Law English Actions Slander Marches Reports History of Normans both parts Parsons Law Privilege of Parliaments Young Clerkes Guide Collins Iustice of Peace Pauls Progresse Attorney Common-pleas Attorneys Accademy Tearms of the Law Fathers Legacy Compleat Parson Book of Oathes Habeas Corpus Womans Lawyer Liberty Subject Wards and Liveries Wilkinsons Sheriff Derhams Manuel Letter Writer Amends for Ladies Bancrofts Epigrams English Grammer Lee Caesar Mr. Williams in Pauls Church yard sells them Thorps charge Edgars charge Books sold by W. Lee M. Walbanck D. Pakeman G. Bedell Touchstone of common assurances by William Shepheard Esquire Fleta corrected and enlarged by Io Selden Esquire Three Readings One by Sir Iames Dyer one by Sir Iohn Bregrave one by Thomas Risden Esquire Books sold by Iohn Place Transactions of the high Court of Chancery ' both by practice and president with fees and speciall orders in extraordinary cases by Wil. Tothill Esq and revived by Sir Robert Holborn late Bencher of Lincolns Inne Clarastella with pious occasional Elegies Epigrams and Satyres by Robert Heath Esq Vade mecum being the substance of all Statutes usefull for a Justice of Peace by Val. Young Esquire Certaine OBSERVATIONS concerning the Office of the Lord CHANCELLOR HAVING ENDEAVOVRED for duties sake some what to consider the nature of this high Place Dignity for two causes chiefly I was much discouraged For neither could I remember any man in this kinde of discourse to have bin imployed Neither any Iudge or Potentate with whom this Magistrate may be compared and herein the more I searched the more I found my selfe confounded IN THE Eighth Chapter of the Second of Samuel Jehosaphat the Sonne of Ahâ—lud the Chancellor among the Hebrewes as the second of David his chiefe Officers is termed Mazur in he Greeke Ananinnescoon by Tremelius and Jâ—aius translated a Memoria or Monitor by the Spaniard Chanciller which is all one with Cancellarius or a Comentarijs by the Italian Seritor de le Cose Fatte in the Duch Cantzfeâ— in the French Chroniqueur and in our English Translation a Recorder In the fift place is called Serayah and he is called Sopher which in all the aforesaid Translations is tearmed Scriba or Secâ—etarius saving that the Italian doth name him Cancellario Sebastian Munster conceiveth Mazur to be a Comentarius and he was ordeined saith he to be the principall Master to note such things as were worthy of remembrance or as Solomon saith his Office consisted in this point to report the actions of old time unto the King and Sopher was appointed to Record them Herewith agreeth for the signification of the words the twentieth of the same Booke of Samuel and the fourth Chapter of the first of the Kings But whether the Lord Chancellor of England as now he is may be properly termed Sopher or Mazur it may receive some needlesse question howbeit it cannot be doubted but his Office doth participate of both their Functions being by William the Conquer our appointed Magister Collegij Scribabarum by the same King instituted in the third yeare of his Raigne as writeth Polydore and likewise having had the keeping of the Rolls of Records as Bracton witnesseth either at the same time that the Common place was erected which was about the ninth yeare of Henry the third or not long after But something more neer to our name of Chancellor I finde the Hebrew word Kinkall in Greek Knilizo and in Latine Cancello whereof cometh Kankill in Greek Knilis and in Latine Cancellus and thereof not unproperly Cancellarius as he sâ—teth intra Cancellos legis viz. Conscientiae or otherwise a Cancellando as shall be afterwards touched Notwithstanding for that I finde the word Mazur better avowed than this latter and I do not remember much mention to be made of any great Officer among the Grecians neere sounding to Kniklum I will content my selfe with the former name only of the Hâ—bricians without further consideration of his Authority in Jury notwithstanding with this observation that long time before this Monarchy of the Hebrewes a speciall privilege of Jurisdiction in
Patent by them signed and also with the Masters of Requests which have the oversight and admitment of all such Writs and Patents as are to be sealed and moreover in every Parliament of France there is by the King of France established a Chancery wherein is placed a Keeper of the Seale a certaine number of Secretaryes as in the former which are said subscripti in sublevamen Cancellarij propter multitudinem negotiorum in Cancellaria Curia Regis affluentium and likewise as are in the Great Chancery there is one Audiencer one Comptroler and one Referendary or Recorder The Chancellor if he doe exercise his Office hath for wages by the yeare eighteen thousand French livers and having a Keeper of the Seale substituted he received twelve thousand Livers and six thousand Livers are assigned unto him principally for the entertainment of the Masters of Requests which do ordinarily dyne at the Lord Chancelors Table in their turne of quarters he hath also besides his wages many other rights and duties as at the entry of Kings into Cityes he hath a garment of cloth of Gold and yearly he hath certain Elles of Velvet a certain number of lights and an allowance of Wax the Chancellor ought not nor may not passe any writing under Seale contrary to the deliberation and determination of the Privy Councell neither whereof any doubt is moved by any Master of Requests of the household but he ought to send the same to the Councell for a resolution Of those which have accesse to the Seal we may place in order next to the Chancellor the Master of Requests which are appointed him for surveyors and examiners of such writings as passe the Seale especially of Patents and Commissions and all other persons whatsoever are forbidden to enter at Sealing time saving the Kings Secretaries the Audiencers the Comptroller the Procurator Generall which is ordained in the said Chancery and the Câ—afewax By this appeareth the name and some part of the Office of the Chancellor of France to be given by Chaâ—lemain more than one hundred years before the time of Edward the Confessor in whose dayes began the name of our English Chancellors according to the assertion of Florentius Wigornensis for that the aforesaid Edward having spent a great part of his Age in Normandy was the first that brought the use of the Seale from thence and with it the name of him that had the charge thereof and that is the Chancellor in whom Leafricies the Britain is named the first Chancellor But saving correction I must be of that opinion of the Normans we did not learn our manner of sealing not onely for that I have seen the Copies of our Kings Patents before those dayes with Ego Iâ—a Ego Aluredus c. subsignavi which indeed may be al one with subscripsi according to 40th Law in the Digests lib 50. But surely I have either seen the very points of the Saxony Danish Seale or else they were counterfeit to no profitable purpose Let other men give what credit they will to the collection of Chancellors by Mr. Thinne in the new addition to Mr. Hollinsteeds Chronicle lately Published For my owne part I am neither of experience nor judgment to impugne it But under the authority of allowable writers I shall set downe and that shortly what I have gathered in so few daies as I have therein bestowed of the present estate of our Modern Chancellor and herein some particulars of the Court of Chancery and first in mine opinion he is the same Chancellor that was Rembaldus to holy Edward and Mauritius to William the Conquerour whose office was to make and seale the instruments that passed from the Prince as writeth Lupanus and as for the former mentioned Chancellors before this time they seem more kindly cheif Secretaries than to exercize the present Office of Chancellors For howsoever I am induced probably to conjecture that before Edward the Confessor there was use of Sealing as I have said so have I no warrant to allege for a great Seale of the King to passe the Instruments whereof the charge was committed to the Chancellors the which as I take it may be reputed the originall of his office and this his originall office was not altered by the aforesaid Conqueror in the erection of the College of Scribes or notaries neither his name changed as I conceive the words of Pollydore where he saith that Ejus Collegij Magistrum vocavit Cancel larium qui paulatim supremus effectuâ— magistratus of qualis hodie habetur But I suppose that authority was also given him by sealing and making certain Writs originalls the forme whereof was for the most part produced out of Normandy but not the granting of all originalls because that by Glanvill it is affirmed that many of them did beare Teste of himself viz. Ranulpho Ganvilla who was chief Justice many yeares after and this by the way is to be remembred that in the name of Chancellor our ancient Histories may easily deceive us for some were called Cancellarij Regis and others Cancellarij Regni and of those which had this great Seaâ— of the K. in their charge and custody Some were termed Chancellors and Seale bearers also that had no partakers of their office such a one was the same Rembaldo to the aforesaid Edward and many others some were Keepers of the Great Seale and that solely Qâ—i Custodiam sigilli Regli acciperent Cancellarii vices acturi officium c. as saith Mathew Paris of John Maunsell although there may be perceived some small difference betweene a Keeper of the grev Seale and a Vice Chancellor for of Vice-Chancellors also I finde two sorts the one as I take it exercising the Office of a Chancellor in matters of Justice and such a one was Malus Catulus in the time of Richard the First another which was chiefe Secretary as it seemed unto the Chancellor to write the Patent of the Prince and such a one was Sywardus whose name I have seen subscribed to a Charter of Edward the Consessor Ego Sywardus Notorius ad vicem Rambaldi Regis Dignitatis Concellarij subscripsi The first sole Keeper of the Great Seale I take to be Symon the Noâ—man who had the Seal delivered unto him in the 23d year of the Raigne of King Hen. 3d. and shortly after also taken from him againe when he was also banished the Court for that he would not seale the Patent whereby Thomas Earl of Flanders might aske 4d for every sack of Wool that went out of England into Flanders But that the Authority of the Lord Keeper was beforetime some way inferiour to the Authority of the Chanceller that may seem by the Act of Parliament which was made Anno 5 Eltz that did equall the power of the one with the other sometimes also the Chancellor of England had a Keeper of the seale subscribed to him and so was Ranulphus the Chancellor and Richard the Chaplaine keeper
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.