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
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.