Land which is that Lex terrae allowed of that Authority also as of the rest and that it was also a Species of that General the Law of the Land which was the ant ent Custom of the Realm And that it was of necessity to be in that sort For that the Common Law Custom of the Realm or Law of the Land term it as they list standing of General Grounds Rules and Maxims it was impossible but some particular Cases must fall out that either the General Rule whereon it lighteth should be too bard for it or too short to reach it And therefore was it of necessity to the end that all Cases might be judged according to Right and Equity to have one under the Prince above the rest to have such an Authority that might judge secundum aequum bonum sanam conscientiam in these cases and to mitigate where the Rule of Law would light too hard and to supply where it came too short and to the end that he might have the sending forth of Commissions to authorise Judges of Precepts from the Prince to produce them to judgment that were to be sued And to be of especial Trust with the King for keeping his Great Seal ordering thereof in such other things as appertains to that office Wherefore entring into consideration thereof I found that Office also to be limited by the Law and erected thereby and therfore I gather'd divers Notes concerning the same to Answer such Objections as might in that respect be objected against that Charter and Statute and the Law of the Land which lying by me when your Lordship was placed in that great Office whom I profess I ever affected from my first comming to the Temple more thā others though then I knew and was known of many of excellent Gifts and Natures And after your Honor was called to the Court by her Majesty I coming sometimes to you from my old good Lord dear Friend Sir Edward Saunders late L. Chief Baron I found you most gracious and favourable unto me and now lately received such honorable usage from you as I could not have desired when some of good and honorable Nature excellent good Disposition dealt hardly with me as I thought not affording me a good word for a dutiful heart ever born them and some hard pains performed for thē which God for some offence committed by me but not against them laid on me yet your Lordship of whom I had never deserved any thing nor shewed any Duty to except God revealed to you the Intention and Affection of my heart defended my poor credit as I heard to my great Comfort and spake well of me Wherefore to shew my self thankfull for an ungratefull Man I have ever hated as a Devil and loathed as a Monster I bethought me how to present something to your Honour as a token of my dutifull mind heart tyed to you But amongst things of price I could find nothing that was not too dear for me to compass or too mean for you to receive as a present and that to deal that way was but to pour water into the Sea so plentifully God be blessed for it he hath blessed you with abundance And yet seeing your Honor had so well used me for nothing but of your honourable Nature I gathered hope that you would accept something were it never so small in good part at my hands whose heart and what he hath is ever at your Commandement And taking example by the poor Gardiners that present flowers to the greatest Princes that have nothing in them but a small smell and no profit yet are well accepted of their gracious minds I thought good to compose my Papers together that concerned the Authority Exercise of your Lordships Office and to present them unto you which though too simple to inform your Wisdom of any understanding yet at some vacant time may serve to recreate your self in reading as the plainest things not the gravest matters are meetest for that purpose But my good Lord with these papers I present unto you my self my poor service to be altogether at your Commandement with faithful promise That if my life may hold one of your fingers frō hurt I will lay it down to help it or to do you any good while I live will speak well of you to men as one that deserveth it of all pray for you to God that he may still bless you with increase of his excellent Graces much Honor perfect assurance of everlasting joy And that her Matie and this Land may long enjoy you for the maintenance of the Laws and Liberties thereof and the relief of the oppressed Subjects Notes touching the Office and Authority of the Lord Chancellor of England Collected out of a Reading made in the Middle Temple in Lent Anno Dom. 1570. upon the 28 Chap. of the Great Charter of England granted under the Great Seal in the 9th year and Enacted and made a Statute at Marlbridge in 52 year of King Henry the Third WHen the Reader had found That by his Statute No Man might be arrested imprisoned or dealt withall in his Person or Liberty or put out of his Freehold Free Customs or Liberties Nor that the King would send forth against any nor proceed upon any but by the lawful trial of their Peers or the Law of the Land And that the King would not sell deferr or deny Justice or Right to any And that that Law of the Land was the Antient custom of the Country which hath continued ever sithence there was a King here and that by it the King was made and had his power and preheminence And that it was confirmed by the Oath of Kings before the Statute and sworn to be observed by all the Kings sithence And that all Judges are bound to try their doubts and Judge their Causes accordingly howsoever their private knowledge or Conscience leadeth them Then both by Practice and by the Authority of Books looking into the course of the proceedings in the Chancery by the Lord Chancellor of England from time to time it seemed as though that Office had been besides the Law erected out of the absolute Authority that the Conquerors claimed and that it hath been continued from time to time against the Law and the Provision of that Charter and Parliament as it were by a Prerogative above the Law for that he is not tyed to any Form of Trial of any point of Fact that falleth out doubtfull before him as other Judges be but may examine Witnesses as he pleaseth and when he pleaseth to inform his Conscience also examine the parties by Oath or otherwayes and to proceed as it shall seem best to his Wisdom to beat out the Truth as it seemeth good to him in his privat judgment And that his Lordship may Order Decree the Cause as it seemeth to him to agree most with Equity and Conscience howsoever
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
But therein there is no certain Rule but his Lordships own Wisdom and Opinion to discern whether the Law can relieve it or not or that there be any defect or not so as if his Lordship think there is cause to retain it he may or dismiss it if it please him according to his own Conscience which is in that behalf to direct him as God shall direct it 8. And some cases there be that seem unconscionable and yet the Law alloweth them for good and necessary and never Lord Chancellor thought good to deal in them As for example That the Warranty of a Collateral Ancestor that never had any thing in the Land descended upon one that had right should barr the right Owner from his Inheritance for that he is Heir to him that made the Warranty though he hath nothing for it Or that a supposed Recovery in value in a Common Recovery against a Cryer of the Court of Common Pleas that is not worth a Groat nor like ever to be able to make Recompence in value should stand for a Recompence and be a barr of a mans lawfull Inheritance and to barr him that he can never demand it seemeth in every Mans particular Conscience to be unconscionable And yet the Law hath allowed of them upon this General Rule of Law Better to suffer a Mischif than an Inconvenience and upon the regard that the Law hath to settle Possessions of Inheritace in certainty by such Instruments and Policies as the Law hath allowed to assure them by of which kind these be wherefore the Law hath not suffered them either by Law or in Conscience at any time to be violated or infringed for any respect or in any case 9. And it was said That wheresoever an Act of Parlament hath made any provision for any unconscionable thing that was not to be relieved by the Common Law if the Lord Chancellor think in his Conscience that the Parlament hath not sufficiently relieved the party yet his Lordship is not to relieve him further than the Parlament hath done as before the Act he might have done for that so much is provided for as the whole Three Estates thought meet to whose judgement his Lordship is to yeeld But if any go about to defraud any Act of Parlament or not able to seek relief as the Statute appointeth Then as aforesaid according to Conscience his Lordship is to deal therein when and where as God and his Conscience is to direct and no other nor other rule there can be for his direction in that behalf Hereupon was it also concluded That his Lordships Authorities Judicial both by Ordinary power and by Absolute power are limited by the Law of the Land For in the Ordinary he is tyed to the strict course of the Law as other Judges be and in the Absolute power though not tyed to the course of the Law yet he is to deal per Regulatam Conscientiam and according to the course of the Court and in such Cases as in cases of Conscience and Equity likewise hath been relieved before-time but not in any Case that Law hath allowed of for good and necessary nor in any that any Parlament hath made provision for unless for some circumstances the party can not have that which the true intent of the Law or the Parlament allowed him but by means of that Court And many things that a good Conscience would will a man to doe in Charity to his Neighbour his Lordship by his Conscience cannot compell him to do by the course of that Court. 10. But in all that Discourse none could find how farr his Lordships Absolute power went nor within what limits certain it could be contained nor by what means he might find out the truth But that is without limitation referred to his own Gifts and the Grace of God that giveth Wisdom to find out the Truth and Conscience to judge accordingly sometime to find it out by the Law of Nature as Solomon did when no Testimony could be found in the world yet he found by her bowels of compassion the true mother of the Child And sometime it is found out by one mean and sometime by another But God never faileth to give wisdom and means to perform those Offices and Callings that his Majesty placeth men in so as they serve him in Fear and walk before him with a good Conscience and seek it in Humility and with prayer at his hands whose Will which is Infinite is the Rule of the Lord Chancellors Conscience and therefore his Authority in that respect is infinite and not limited in certainty 11. Upon all these Notes the Reader concluded with this Note That it is certain that his Lordships Office and Authority is by the Law of the Land and not derogatory thereto but was constituted by the Law-makers to supply those things that the Judges that be bound to the general Rules could not relieve but in nothing to proceed to the prejudice of the Law And to that end his Lordship was made a Judge of the Law in some Cases and also a Judge by Conscience besides the general Rule of Law in some other Cases for that being a Judge of the Law as well as others his Lordship is with others to uphold the credit of the Law and that most of all others for that she gave him greater Authority than any other and trusted him above all the rest in that she tyed all the rest to follow strict Rules and left him to rule by the Grace of God and his own Conscience and to observe only the Equity and not the strict Rules thereof Wherefore no man ought once to controll his Lordships judgement in any cause that he proceedeth in by his Absolute power but is with reverence to yeeld unto it for as much as every one by the Rule of Charity and of the estimation that we ought to have of them that God hath substituted over us is to judge the best that is that his Lordship hath proceeded in singleness of heart according to his Conscience and the Director of a good Mans Conscience is the will of God which is the perfect rule of Righteousnesse howsoever it seemeth to Man in his Wit or Judgement Wherefore when his Lordship hath set down his judgement as God hath guided his Conscience in any case where he is Judge by Conscience though it differ from some other judgement given either by himself or any other good Man that sat in his Seat all men are bound to think that the case differed in some circumstance that they cannot see or hath not understood it Or that God in this case according to his good Will which is subject to no Rule but it self hath ordered this thus and that so and each being according to Gods good VVill though different in our Understanding the one from the other both to be Righteous and Just Judgements and are not to be disliked or disobeyed of any 12. But then was it