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
The punishment of Scandala magnatum to be inflicted upon them that misreport of him by the Statutes of W. 1. cap. 33. and of Anno 2 R. 2. ca. 5. He may weare in his apparel Velvet Satten and other Silks of any colour except purpuâ—â— and any manner of Furs except black Genets of what estate or degree soever he be by the stat of 24. of H. the 8. He must follow the Court and at all times be neer the King by the Statute called Articuli super Chartas Anno 28. E. pr. cap. 5. He may have three Chaplaines qualified whereof everâ— one may purchase dispensation to have two Benefices by the Statute de 21. H. 8. cap. 13. To sâ—ay him it is Treason declared by the Statute of 20 of Edw. the 3d. cap. 11. If he be a Baron or above hâ— shall sit in the Parlament on the left side of the Chamber on the higher part of the form on the same side above all Dukes except such as are soone Uncle Brother Nephew or Brothers or Sisters Sonne to the King and also above all Officers except the Vice-gerent And if he be no Baron he shall sit at the uppermost part of the Sacks in the midst of the Chamber and in such degree he shall siâ— in the Star-Chamber and in all other Assemblies and Conferences of Counsell by the Statute Anno 31 H. 3. cap. 10. He is a Conservor and Iustice of the peace throughout England by prescription He is the only Visitor of all Hospitalls and Free-Chappels which be of the foundation of the King or his Progenitors by prescription He is Prolocutor in the higher house of Parlament by prescription c. V. Places of his Judiciall Session viz. CHANCERY where he is the only Judge assisted by the Master of the Roâ—s and the Masters of the Chancery and heareth and determineth causes of Law and Conscience as Chancellor COUNSELL chamber where he is associated with others of the Privy Counsell and heareth and determineth causes of Estate as a Privy Counsellor STARRE Chamber where he is associated with the Lord Treasurer President of the Counsell and Privie Seale and associated with one Bishop one Temporall Lord of the counsell and two Justices and heareth and determineth perjuries causes penall and of Common peace by the Statutes of Anno 3 H. 7. cap. 1. and 21 H. 8. cap. 20. as a speciall Judge EXCHEQUER chamber where he is associated with the Treasurer and associated by the Justices and other Sage persons and examineth and reverseth or affirmeth judgments given in that Court by the Statute of 31 E. 3. cap. 12. as a special Judge VI HIS Authority and power which is of two sorts viz. As a Judge and that is either ORDINARY as in these Scire fac or execution upon a Statute Merchant taking acknowledgement of Recognizances Scire fac or execution upon a Recognizance knowledged in the Chancery Scire fac to repeale Patents which are void or faulty Monstrance de droit Petition de droit Traverse of Offices and Inquisitions Pleas and Enterpleas upon assignment of Dower Pleas and Enterpleas upon livery and ouster le maine Pleas and Enterpleas upon partition Attachments upon contempts in not executing of Writs and Proces by Officers or upon signification of untrue or insufficient causes thereof writs de Corodioâ— or Pencor habendo unto Abbots Priors and Bishops Andita querela sued upon sutes in the Chancery Prohibition to stay proceedings in the Court Christian or Admiralty and consulation to be granted thereupon Originalls or Bils by persons priviledged in the Chancery Originals or Bils against persons privileged there Writs of Privilege sued by persons privileged to remove sutes in other Courts into the Chancery AND DIVERS other of like soâ—t ABSOLUTE and by this power he ordereth and decreeth matters of Conscience and the pleadings are in English whereas in his ordinary power he holdeth plea of matters according to the form of Common Law and the pleadings are in Latine AS a MINISTER GRANTING of pardons of Common Grace GRANTING and sealing of Commissions OF patents and preservations c. MAKING of Originall Writs of Processe upon the Statute Staple c. CONSTITUTING of certaine Officers belonging to his Office GIVING of Oathes to Officers And such like FINIS 2 Sam. 8. 16. Pretor The Chancellor of France The Election of the Chancellor Hen Beakford 〈◊〉 The nature originall of the Chancery Parliam Kings Bench Common Pleas Exchequer Court of Wards Star-chamber Dutby Court Court of Requests Admiralls court Constable of England Marshalls court President of Wales the North parts Proces Cancella riae The Judge The Assistants The Master of the Rolls The Officers of the Chancery 9. E. 4. Potentia ordinatam Potentia absoluta Default Excom. veritatis 37. H. 6. Court of Record 8. E. 4. Statute proces Right Filz Natura brevium Term 4. E. 4. Adjournment 5. E 6. Common Law Originall Conscience 6. E. 6. Surmise English Bill Pleadings in French 39. H. 6. No remedy Good pleaders Privilege surmise false Secundum Conscientiam Secundum allegatum Default 9. E. 4. 21. H. 7. Estoppell Default Rot. Parliam br Parliam Remedy without Remedy Conscience Doctor Student without Remedy Conscience Wager of the Law False verdict Proofe Stat. 4. H. 4. Judgment Sta 4 H 4 Justices Chief Baron Temp. H. 6 Decrees Justices Serjeants 27 H. 6 37. H. 6. 7. E. 4. 22. E. 4. Exchequer Chamber Justices 27. H. 8. Chancery Magna Charta Doctor Stud. Stat. 5. E. 3 1â— E. 3. 5. Stat. 42. E. 3. Stat. 37. E. 3. 12. E. 3. Câ—â—â—â—â—n Puâ—sell Stat. 43. E. 3. Rot. Parl. 3. H. 6. Stat. 15. H. 6. 21. E. 3. Petition 39. E. 3. Judgment Reversall Counsell 33. H. 6. Obligation supersed Privilege 37. H. 6. Assise Decree Plea 37. H 6. Judgment Plea Decree Court of Record 37. H. 6. 9. E. 4. Commandement 22. E. 4. Injunction Judgment Forfeiture Subpoena Habeas Corpus 2. R. 3 Judgment Notice Imprisonment 2. R. 3. 9. 10. H. 7. Injunction Subpoena Forfeiture 27. H. 8. Decree Right Person Imprisonment 27. H. 8. Injunction Execution Obligation Brooke Heire Executor Fleta Consent 8. E. 4. Privilege Judge Temporall Conscience And the Debtor was discharged of the execution and prayed his damage against them both and the Master of the Rolls said although by the CommoÌ„ law damages shold be adjudged against them both Audita querela Damages Conscience Common Law 14. E. 4. Traverse of Office Mispleading 9. E. 4. Obligation longer day Incertainty the sum Notice the day certainty Mispleading 14. E. 4. Bill Answer Variance Amend 16 E. 4. Answer 16 E. 4. Answer 8 E. 4. Executors Answer 43 E. 31 Damages Wreck Damages Costs 17 R. 2 Damages Stat. 15. H. 6. Surety Damna Expenss 7 E 4. Bill â—nsuffic Costs Damages Bill untrue 7 E. 4. Grant to use costs 11 E. 4. Audit que Damages 2â—E 4. Injunction Kings Bench Iudgement Damages 21 E. 4. Common place Injunction Dismission 37. H.
remitting the sentence of judgment to be pronounc't by the Judges in this kinde our Chancellor and their Pretorâ—oe differ especially for that the Pretor would at his entry into that Office publish and propound certain Edicts which were principles and fountaines out of the which he would derive his decrees But what names or generall notions the Lord Chancellor doth assigne unto himselfe for limitation of equity and direction of his Conscience that lyeth hidden and concealed in his owne breast for as saith Lindwood Conscientia est Cognitione sui ipsuis Cordis Conscientiae alicujus quando quid relinquitur ipsemet erit judex c. Whereby the man of Law is not able to informe his Clyent what is like to become of his action or whether it be determinable in the Court of Chancery or to be tryed at Common Law But to give some understanding of such matters as are proper to this Court so farre forth as the absolute power of the Chancellor extendeth there shal be set here under a competent store of cases whereupon reasonable conjecture may be grounded what is like to fall out in matters of many natures But of his ordinary power of Judge and of his Office as he is the Princes Minister they shall not in this discourse be largely handled in particular but onely touched obiter in a word or two And thus much of Rome calling to mind by the way that Tribonianus to Justinian Seneca to Nero ulpian to Alexander the Pope are reported to have bin Chancellor And now in the meane time let us in short have regard to the Chancellor of France and to the great Chancery of that Kingdome which cometh nearest to our selves and would be much resemblance of the form force of our English Chancery had not the Court of Requests bin enacted by Commission from K. H. the 8. before which time the Masters of Requests had no warrant of ordinary Jurisdiction We are to give credit unto the Historyes of France which do report the first Chancellor of that Kingdome to be ordeined by Charles the Great and that his authority was inlarged by Charls the wise the fist of that name It may be gathered out of these words of Divus Lucius which I doe therefore report in Latine as he writ them for that they be significant Constitutionum Caâ—oli quinti Supremus oâ—niâ—m ordinum honorum Cancellarius quique subinde Regi a Consiâ—â—s intimis statent exhibit is tactisque sanctis Evangelijs in manu Regia in â—oec verba jâ—rabunt quod sciâ—cet et nullum faedus nec ullum conspirationem iniâ—â—ut inter â—os si quia a quoquam contra fieret a statu suâ— dejectus exauthorazetur Per insignem dignamque Majestatis regiae huc referre libuit modum quem Carolus ille qâ—â—ntus cognomine sapiens in â—ligendâ— designando supremo 〈◊〉 Nomâ—â—hylice Cancelâ—arie non minus cite quam sancte observavit cum ad câ—ntum trigint adeâ—sent pâ—tres conscripti octo juri a libellis Proceres caeterisque ratiâ—â—ales cos a conclavi Rex abâ—re exire jussit postea sigillatim omnes ad unum accersunt Jure jurando adegit ut bona fide quem e Republica huno Nomophylacie putarent esse â—erficiendum utrius liâ—et status sacrae aut Secularis hominem profiterentur latis suffragiis Petrus Orgs Montius Latinacensis Episcopus Centum quïnque puncta tabulas tulit Tumille ut ingenius erat semoribus minimeque ambitiosus tanto huic munere ne dicam onâ—ri sese longe imparem excusare Ac vero Rex tot tantisque caâ—culis aâ—probatum sibi jam valde probari testatus est signaque Codi cillaria ei in manus dando ab co Iusjurandum Sacrosancto per Evangelia excepit sub ijs concept is verbis Tuo Juramento firmas Orge menti Regi te obsequentissimum sore That you shall give unto him faithfull advice and Counsell and such as shall be for his commodity and convenient for his Majesty as also for the profit of him and the Common-wealth That you shall never put your self under the obedience of other than of Him that you shall preserve to the uttermost of your power the revenue of the King and of the Crowne that you shall never receive nor accept without his consent any gowne Cloake Fee or wages present or profit whatsoever of any other than of him that for favour affection or hatred you shall do nothing and if at this present you are bound by Oath to any Lord or Lady or have bin so heretofore that you forsake and renounce it wholly Hereout may be collected the preheminence election and duty of the Chancellor if we adde hereunto the Words of Budenes That bodie ejus parâ—es primoe sunt videre ut nulla principis constitutio nulla Sanctio nullum diploma nullum Resâ—ripâ—um nulli Cudicilli Regij none Republica atque etiam e dignitate Reipublicae principaliquâ— exeant cujus censurae aut stilo principum Majestas acts sua eximi volunt denique qui principis prâ—sentis viarius peraâ—ere agente Interrex quod a morbo esse censetur Jare proprie Nomophilax legum presidium Juris Assylum id quod E Papiniano quondam dictum est morum institurorum quae ara â—qui bonique Columen appellari potest atque etiam debet id quae creder eme cogit consensus fere hominum institutuÌ„ quae quod eam quasi per manus traditum caput eum per verticem Justic. appellantum And namely it is to be noted that he might be of either State Ecclesiasticall or temporall religious or secular for the order of all the Chancery Courts in France may be seen one Aâ—reâ— in the time of Charls the 7th another of Charls the 8th and that the High Court of Chancery which followeth the King at this day was ordeined by Lewes the 12th may appeare by the Ordinance of the same King Anno 1498. as also by the acts of Francis the First Anno 1540. and of Charles the 9th Anno 1560. There are two Seals belonging to the Chancery one is the great Seal wherewith are sealed letters of grace the other called the Common Seal lesser than the former wherewith are sealed the writs of simple Justice and so have I heard a motion to be made for a like little Seale proper and peculiar for the sealing of Writs originall in our Chancery all Letters Patents of the King arrests and ordinances made and agreed in the Privy Counsell are sealed with the Seale of the King either by the Chancellor or Keeper of the Seale in the great Chancery which followeth the Court For in France they have a chief or principall Chancery attendant upon the King in the which the Chancellor of France doth exercise the office of Sealing or else his Commissarie assisted with the Kings Secretaries which of right have a certaine Fee out of every
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
CHAP. V. Of what force the Decrees and Injunctions Executions and Punishments of the Chancery be 1. IN an Assize the Parliament wrote to the Justices to surcease notwithstanding which they proceeded and awarded the Assize whereupon the Chancellor did reverse the judgment before the Councell this reversall was adjudged void for that was no place where a Judgment might be reversed 39. E 3. 14. b. Judges 13. It was decreed in the Chancery by the advice of all the Justices that the Defendant should bring in an Obligation wherein the Complaintiffe was bound to him to be cancelled and because he refused hee was committed to the Fleete there to remain untill he would fulfill the Decree and the Defendant having put his Obligation in sute at the common Law the Complaintiffe pleaded this Decree in Barre and it was ruled to be no good plea in Barre because the obligation had lost his force by the Decree per Pâ—isoâ— alios Justic. in com Banco And if it had been decreed by expresse words that the Obligation should lose his force these words in the Decree would have bin voyd at the common Law per Billing Serjeant and of the Councellors awâ—rd a supersed under the Great Seal reversing the Decree and commanding the Justices not to proceed at the common law the same is not to be obeyed otherwise it is a supers of Privilege per Billing Boef Sâ—rjâ—ants 37. Henry 6. 13. Barre 75. b consc. 4 2. If a Feoffee upon trust refuse to performe the trust and upon Subâ—oeâ—â— in Chancery it is decreed that he shall reinfeoffe the Feoffor and he refuse and is committed if the Feoffor enter into the Land and the Feoffee bring an Assize against him this Decree is no plea in Barre to the Assize per Laicon Serjeant 37. H. 6. 13. 3. Note that Judgment was glven in the Chancery in Pleas of Debt or of Patents may be pleaded in any other Court at the common law other wist it is of decrees made thereupon a Subdoena because it is no Court of Record in respect of such sutes per Prisott cap. Justic. Co. Ba. 37. H. 6. 14. 4. Note that if it be decreed that a Defendant shall bring in an Obligation to be cancelled the Chancellor can do no otherwise but command him to prison to remain there untill he will doe it and that is all which the Chancellor can doe for if the party will lye in prison rather than deliver the Obligation the Complaintiffe is without remedy per Prisot cap. Just Co. Ba. 37 H. 6. 14. 5. Note that Young Justice demanded this Question What if the Chancellor should command me upon a pain that I should not sue my Debtor Billing Justice answered that he were not bound to obey it for that commandement is contrary to Law 9. E. 4. 53. b. Judges 22. but this is meant of a commandement no Bill being exhibited 6. In an action of Trespasse the Plaintiffe recovered by verdâ—ct at nisi prius before Judgment the Chancellor granted an Injunction commanding the Plaintiffe that he should not proceed to Judgment upon pain of 100l Fairfax Justice said that although the Injunction were against the Plaintiffe yet his Attorney might pray Jument vel è contra Hussey chief Justice of England said that they had communed upon the matter and they could seâ—â—o hurt that could come to the Plaintiffe although he prayed Judgement contrary unto the Injunction for the Law doth not give any forfeiture of the summe conteined in the Subpoena and if he be committed to the Fleet wee will ptesently grant a habeas corpus ret before us and then we will dismisse him and the Justices said though the Chancellor would not disallow the Injunction yet they would give Judgment if the party would desire it quod notum Banco Regis 22. E. 4. 37. 6. Judgement 86. 7. King Richard the third called before him into the Inner Starchamber all his Justices and demanded of them this Question among others That whereas Tho. Staunton had Iudgement in the Chancery to recover against Tho. Gate certain Lands and Tenements and in execution thereupon yet Tho. Gate contrary to the judgment and execution entred into the Lands where unto the chief Justices answered That if Gate had notice of the Judgment then at al times after such notice the Chancellor might compell him by imprisonment 2. R. 3. 9. 8. A Feoffee upon trust was enjoyned to make estate to the Feoffee before a certain day Subpoena 100l and he did nor perform the Injunction and Hâ—ssey chief Justice of England and Vavisor Justices and divers Apprentices said cleerly that there could no scire fac or other proces be awarded for the King against the party to levy the 100l because it is but a pain and if the Defendant make default in a Supoena the pain is not forfeited for it is put in the writ but only interiorem but if the party make default the Chancellor may assesse a Fine upon him according to his discretion and that assessement is a Judgment and a scire fac shall be awarded uppon that in such sort as it may be upon Recognizance in cancellar. 10. H. 7. 4. b. Const. 29. 10. Note that a Decree in Chancery doth bind the right of the party but doth not only bind his person to obedience that if he will not obey the Chancellor may commit him to ward untill he do obey and that is all which the Chancellor may doe but Judgement given in the Kings Court Common-pleas and other Courts of the common law do bind the right of the party per Knightly Serjeant in Canc 27. H. 8. 15. Judges 1. b. Judgment 2. 11. If an Injunction in Chancery be made That I shall not sue S I. if I dye my Executors may sue him notwithstanding for they are not bound thereby For if I be bound by Obligation that I shall not sue S I. if I dye my Executors may sue him and it is no for feiture of the Obligation per Fitzharbert Justic. in Canc. 27. H. S. 16. consc 1. and Brook in abridging the case doth think it were hard that the Chancellor should enjoyn the Heirs or Executors although they were expressed in the Injunction 27. H. 8 15. But at this day the form of Injunctions doth by expresse words extend to bind the Heirs Executors Counsellors Attorneys and Solicitors of the party saving that the Serjeants of the law do take themselves to be exempted by Warrant of their Oath by which it seemeth also that they should not be of Counsell with any Complaintiffe in the Chancery 12. Note that in the Book called Fleta which was made in the time of King Edw the first by all the Justices either at such time as they were in the Fleet or else at such time as they inhabited in the street called
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.
7. b. traverse d' Office 39. b. jurisd. 76. 4. A Subpoena was sued against T. Tate and before answer Tate exhibited a Bill against the Complaintiff to have an estate in the same land and because his Bill came in last he was forced to put in his answer to the first Bill and so they were at issue And afterwards it was shewed to the Court that Tates Bil did vary from his own answer in two points which were the ground of the matter And it was holden by the Chancellor by the advice of the Kings Serjeants that the answer should stand and it was notwithstanding the Bill and it was objected that if the matter were fond for Tate then he should recover upon his Bill but now he cannot doe so because his answer is directly contrary Whereunto the Kings Serjeants answered That Tate might be suffered to amend his Bill according to his answer because he was sworne upon his answer but not upon his Bill quod nota 14. E. 4. subp. 15. 5. A Bill was abâ—â—red for insufficiency of matter and the Complaintiffe shewed new matter and the Defendant was awarded to answer to it per Cur. cancellar. 16. E 4. 6. If a sub poena be sued against 4. Executors and one of them doth onely appear he shall not be forced to answer without his Companions but Markeham Capit. Iustic. Angl. But Rogers Apprentice said that he might answer alone if he would without his Companions but shall not be compelled thereunto 8. E. 4. 5. Brooke Conâ—c 15. CHAP. VIII What Costs and Damages shall be awarded in the Chancery 1 NOte that where a Woman is onely endowed by reason that her first Dower was recovered from her she shall recover no damages for damages are not awarded in the Chancery per Cur. cancellar. in praesen Iust. 43. Asss. p. 32. 43 E. 3. 2. Damages 195. B. sc. sa. 161 W. Fishlack exhibited a Petition to the King against the Prior of Windham that his ship sailing to Lon. was assaulted by Enemies of France that he his Mariners for fear fled to the land by boae by Hapsburgh in Norsolk and the ship being spoiled by them was cast up at Hapsburgh in the Priors land who seised the same as wreck The King delivered the Peâ—it by writ to the Admiral willing him to do justice who proceeding therein upon sute of the Prior made to the King was commanded to certifie his proceedings before the King and his Councel and to warn the parties to appear at a day certain in the Chancery where upon hearing it seemed to the Justices and Kings Serjeants and other Lawyers being there that the ship goods and chattels ought not to be accounted wreck and Judgement was given that William Fishlack should be restored thereunto and to his damages costs and expences which he had sustained by the Priors default in the prosecuting and that he should satisfie the Prior and his servants for their reasonable costs imployed in saving the shâ—p and goods Clauss An. 5 R. 2. R. 6. pro W. Fishlack de Bacton It was enacted Anno 17 R. 2. that where people be compelled to come before the Kings Councel or in the Chancery by writs granted upon untrue suggestions the Chancellor after that such suggestions be found and proved untrue shall have power to ordain and award damages after his discretion to him which shall so unduly be troubled Stat. Anno 17 R. 2. c 6 accusation 8. It was enacted Anno 15 H. 6. that no writ of sub poena shall be granted till Surety be found to satisfie the party grieved for his damages and expences if the matter cannot be made good which is conteined in the bill Stat. Anno 15 H. 6 c 4. accusac 9 5. It was used since these Statutes to enter the Sureties upon the bill in this form Plegii de prosequend T. W. de H. in Com. Midd. Ar. J. K. de B. in Com. Midd. Ar. or else in this form Memorand qd 23 die Januar. An. R. R. H. 6 34. E F. de paroch de S London Fulles T. J. de London Yeâ—man coram ipso Domino Rege in Cancellaria sua personaliter constituit manuceperunt â—ropraed querent quod si ipse materiam in hac supplicatione content verum probare non poterit tunc ipsi omnia damna expenss quae sub poena dâ—ct dâ—f in hac parte sustinebit per considerationem Curtae satisfaciet juxta formam statuti inde editi but this is now neglected Peâ—ic in Canc. de An. H. 6. 6. Note if a Bill be exhibited and the Deft demur upon the insufficiency thereof and by the Court the bill is awarded insufficient in that case the Def. shall have no costs or damages by the statute because the statute giveth the damages â—here the bill is found true or untrue but in this case the truth is not tried 7 E. 4 14. Dam. 44. b. Costs 19. b. Damages 163 per Cancellartam Jnstic utriusque Banci in Camera Scaccar 7. Note that the grantee of Lands or Goods upon trust is not compellable in conscience to sue or â—efend but onely at the costs and charges of the grantor 7 E. 4 29. 8. It seemoth that if one sue execution upon a statute staple where he hath released the duty before and the debtor sueth an Audit quer against him to avoid the Execution and the creditor maketh default he shall pay damages vid. 11 E 4. he fo. 46. a casu secundo In an action of Tresp the Plaint recovered by verdict and the Plaint shewed in the Kings bench that the Chancellor had awarded an Injunction against him whereby the sure had not long delayed and now depending the Injunction he prayed his Judgement in the Kings Bench and it was given but the Court would not afford any damages for the Plaint vexation in the Chancery by the Injunction in Banco Regis 22 E 4. 37. b. Damages 138. b. Iudgement 86. 10. In an Action of Trespas the Defendant was found guilty by verdict and the Plaintiff shewed in the Common place that the Defend had sued a sub poena in the Chancery and had obtained an Injunction that he should not proceed at the common Law till the matter in the Chancery were tried and how by means of the sute in the Chancery the Plaintiff had spent ten Marks and now the Injunction is dissolved the Plaintiff dismissed to the common Law and therefore he prayed the Justice to increase the costs because of this vexation And Brian the ch. Just awarded that the Plaintiff should recover three pounds for his costs besides his damages in com banco 21 E. 4. 78 b. consc. 22. b. costs CHAP. IX Reformation and Reversal of Iudgements and Decrees made in the Chancery 1. NOte that upon a
married by him and therefore he revoked his Will and willed that his other daughter should have the land by conscience Laicon when he made his first Will the first daughter had presently an interest in the land which he would not defeat as if one make a Feofment to the use of a stranger he cannot afterwards revoke that use Illingworth there appeareth not any cause why the first daughter should have the land and therefore seeing the Feoffor had not quid pro quo it is no bargain but of his meer will which he may by good conscience change as if the Feoffor had afterwards fallen into poverty he might with good conscience compell the Feoffee to re-feoff him again Prisot ch. Justice of the Common-pleas when the Re-feoffor had once declared his Will and willed the land to his daughter the Feoffee standeth presently subject to the will of the daughter and is discharged of the Feoffee and such a Will is as strong as a Feoffee which is annexed to a Livery of Seizin Fortescue chief Justice of England the Feoffor may have his will if there be special cause otherwise not as if after the first Will the Feoffor had a son born he might well have changed his Will and given it to his son and heir for there is a reasonable cause of his claim and so it is if the daughter had become a Felon 35 H. 6 sub poena 3. Stac consc. note that the better opinion is conceived to be that he may revoke the first Will 15 Eliz. Dyer 3. 25. 4. Note it was agreed if any infeoff another he may declare his Will unto him afterwards and appoint the use to whom he will 31 H. 6. sub poena 23. Stach consc. 5. If I infeoff one to perform my last Will and himself a stranger I have no cause of sub poena against the Feoffee but I may sue my first Feoffee and recover in damages for the value of the land per Yelverton Wilby Clericis Rotulorum and this is meant where the second Feofment is made bona fide in which cause I have no remedy for the land and so it was adjudged in the Cardinal of Winchesters case but if the second Feofment had been also upon trust then I might recover the land by sub poena against the second Feoffee 31 H. 6. sub poena 19. Stach sub poena 6. If I make a Feofment upon trust that the Feoffee shall infeoff my heir when he cometh to full age and the Feoffee infeoffeth a stranger bona fide to the intent to disinherit inherit my heir there the trust is deteined and the heir is without remedy against the second Feoffee by sub p. or otherwise but if the Feoffee had retâ—ined the land himself and refused to infeoff the heir at his full age he might have compelled him thereunto by sub poena per Dunby Just in com banco 33 H. 6. 15. 7. Richard Frank made Feoffees to the use of the last Will of him and Agnes his wife and they dyed having issue John and Izabel John was outlawed of murther and also delivered to the Abbot of Westminster as a Clerk attainted for robbing a boy called a Monstral out of the Church of the Prioress of Clerken-well and lastly was indicted and outlawed for Felonies and Treasons and during his life Isabel sued a sub poen against the Feoffees to be infeoffed of the land as next heir to the land the Feoffees upon their Oaths confessed the trust wherefore it was decreed by the Court by advise of John Fortescue Knight chief Justice of the K Bench and divers other Justices and Serj. that the Feoffees should execute an estate to Isabel and her heirs qâ— nota petic in Canc. Ann. 33 H. 6. 2 pts 8. It the Feoffee upon trust do refuse to perform the trust by denying to re-infeoff the Feoffer he shall be compelled thereunto by sub poena and decree and imprisonment per Liac Ser. 37 H. 6. 13. 9. One having four Feoffees seised to his use sold his land to J. S. and said to two of his Feoffees that his Will was that they four should make a Feofment unto J. S. accordingly which two Feoffees notified his Will unto the other two who refused to joyn in the Feofment whereupon the first two alone made a Feofment to J. S. of their parts and afterwards the Feoffer sold the lands to J. D. and required those two Feoffees which refused before to infeoff J. D. who did so accordingly and J. S. sued a sub poena against the two Feoffees which refused and because the two Feoffes did bur onely give notice to the other two Feoffees of the Feoffers Will and did not tell them that the Feoffer had commanded them to infeoff I. S. and without commandment they were not compellable to make the Feofment therefore the two Feoffees which so refused were dismissed per canc omnes Iust. 37 H 6. 35. sub poena b. consc. 5. 10. If the Feoffer do send his servant to his Feoffees commanding them to make estate according to his Will the Feoffees are not bound to make a Feofment without specialty proving his Will per plur. Instic 37 H. 6 35 sub poena 1 b. consc. 5. 11. One willed that his Feoffees should make an estate for life to I. S. the Remainders to I. D. in fee I. S. refused to make the Estate for life I. D. may compell the Feoffees by sub poena to limit an estate in rem unto him after the death of I. S. per Ienney Serj. Fincham apprentice and Fincham said that the Feoffees ought to make an Estate to the heir of the Feoff r during the life of I. S. if I. S. did â—â—fuse the rem to I. D. 12 And I. D. may compell the Feoffees by sub poena to grant the rem in the life of I. S. for else by the refusall of I. S. he should lose his rem otherwise it is if a man devise â—aâ—ds by his Testament to I. S. for life the rem to I. D. further if I. S. refuse yet there needeth 〈◊〉 sub poena because he may enter by the law bâ— force of the Testament 37 H. 6. 36. sub poena 6. consc. 5. 13 If any Feoffee in trust be dissâ—izâ—d I may have sub poena to compel him 〈◊〉 bring Assize against the Dissâ—â—sor per Mâ—â—le Danvers Iustice in communibance 2 E. 4. 2. b. consc. 5. 14 If If I be bound by obligation to I. S. to the use of I D. that I shall infecâ—s I. D. for certain lands if I do offer a Feofnient unto I. D. and do refuse â—o receive the obligation is thereby discharged but I. D. may â—ave a sub poena to compell me to infeoff him notwithstanding per Danby Capit. Iu stice de communi banco 2 E. 4. 3. 15
stranger for that were a forfeiture and the Chancellour said that in the first case it was no forfeiture in conscience but he would reform so much as was amisse done and no more and so it had oftentimes been ordered before the Chancellour 10 H. 7. 2. 41 A feoffee upon trust was seized by a sub poena by the Feoffor and the feoffee was injoyned that he should make an Estate to the feoffor before a day certain sub poena 100. lib. in Cauâ— 10 H. 7. 4. 42 The Heir of Co. qu. use shall have after the death of his father the issues and profits of the Lands as if his father had died seized thereof and he may compell the Feoffees upon trust by sub poena to infeoff him and shall have all advantages as if his father had died seised in Camera Scacc. per Wood Serjeant 13 H. 7. 7. 43 If the Feoffees upon trust will not infeoff the Feoffor he may compell them by sub poena in communi banco per Brian cap. Justic. de communi banco Danvers Justic. 14 H. 7. 19. 44 One having feoffees in trust devised by his Testament that his Feoffees should sell the Land the Feoffor died the Feoffees infeoffed others to the first use the second Feoffees may not perform the Will but the first Feoffees may and the second Feoffees may do it because there is a kinde of use in I. S. seeing he is specially named and he may compell them to sell unto him and if the Will were that the Feoffees should sell his Lands to pay his Debts the Creditors may compell the feoffees to selâ— it but if he had willed that the feoffees should sell the Land for money to be distributed there no man can compell them to make the Sale per Fineux cap. Justic. Read Tremaine Iust. If the Will were that his Executors should sell it though his Executors refuse to administer yet the ordinary Administrator may not sell it but the Executors themselves may notwithstanding the refusall cause the uses not testamentory per Finenx cap. Iusiic Angl. Read Termail Iustic. And if he will that his Land shall be sold and shew not by whom his Executors shall sell it and not the feoffees for the Executors have the greatest confidence put in them for they have the disposition of the money for which it is sold per Fineux cap. Iust. Angl. Read Tremaine Frowick Serjeant And if the Will be that the Land shall be sold the Heir shall take the profits untill it be sold per eosdem in Banco Regis 15 H. 7. 1â— b. Feofm al use 12. 45 If one having feoffees upon trust do make his Testment that they shall have an Estate to I. S. and dieth if the feoffees infeoff others to the first use the second feoffees may make the Estate by Kingsmell Serjeant 14 H. 7. 33. 23. Feofments al use 12. 46 In a Formedon against two feoffees upon trust if the feoffees refuse such Pleas as the feoffor doth minister to them or if they or one of them do refuse to vouch where the feoffor sheweth to them good cause of voucher the feoffor hath no remedy against the feoffees to compell them buy by sub poena or else by Action upon the case per toâ—am Curiam And Bradnell chief Justice of the Common-place said that if a feoffee upon trust die without Heir or die his Heir being within age or is attainted of felony so that the Land cometh to the Lord the Lord shall have it to his own use and the feoffor hath no remedy in communi Banco 14 H 8. 24. 47 The feoffees upon trust may grant the Offices of Steward and Receiver per Newdibank Serjeant if the feoffor die without Issue within age the Lord shall hold the land to his own use and if the feoffees acknowledge a Stat. Merchant and the Conusee do extend the Land he shall hold it to his own use because the said persons do come unto the Land by the operation of Law and not by their own Act nor by the Act of the Feoffees but if the feoffees infeof a stranger which hath notice of the first use there the second feoffee shall be seised to the first use though he paid a consideration Quia participes criminis consentientes agentes paci plena plectentur dolus fraus nemini patrocinetur and if the second feofment be to one that hath notice and he pay consideration then he shall be seised to the first use but if he pay no consideration nor have no notice yet it shall be to the first use per Justic. Servients If the feoffees grant a Rent for Life out of the Land without any consideration If it be to one that hath notice of the first use this Rent shall be to the use of the feoffor of the Land per Pollard Brook Fitzherbert Iust. in communi Banco 14 H. 8. 4. 48 A use shall ensue the nature of the Land for if it be use of the Burgh English Land the youngest shall have it and if of Gavel-kinde then all the Children por Pilman Serjeant 14 H. 8. 6. in banco 27 H. 8. per Pollard apprentic 49 If the feoffee upon trust die his Heir shall be subject to the trust per Bradwell cap. Just Fitzherbert Brook Justic. in communi banco â—4 H. 8. 7. 50 Note by Brook Justice that uses are created by the common Law and are relieved by conscience and all medling with the Land by the Feoffees ought to be at the desire of the Feoffor and if the Feoffee do otherwise he is chargeable in conscience 14 H. 8. 8. in communi Banco 51 If one have Feoffees in trust of Seigniory if the Tenancy do escheat unto them they shall be feised to the use of the Feoffor and so it is of Land recovered in value per 〈◊〉 Iust in communi Banco 14 H. 8 9 52 One having feoffees upon trust wills that his Executors should sell his Lard 〈◊〉 died if that Executor make another Executor in that case the Executor of the Executor cannot sell the Land because the first Executor had that power as in authority severall from his Executor ship and though the first Executor had refused the Aministration yet he might have sold the Land per curiam in cancellaâ—â—a Scacc. And if he had willed that the chief Justice should sell his Land although that the chief Justice had resigned his Office and another been placed yea the first should sell his Land per Bradwell Justic. communis Banci and if the will were that John S. should sell his Land if I. S. die his Heir cannot sell it because the trust is determined per Shelley Ingelfield Justic. Willoughby Spilman Serjeants 19 Hen. 8. 9. 53 Note by a Statute in Ann. 1 R. 3. the Will of the
7. 12. sub poena 18. CHAP. VII Of Aliens THe statute of Anno 27 E 3. is that if any Merchant privy or stranger be robbed of his Goods upon the Sea and the Goods so robbed come into any parties hands within the Realm and he will sue to recover the said Goods he shall be received to prove the said Goods to be his own by his work or by his Chart or Caket or by good and lawfull Merchants privy or strangers and by such proofs the same Goods shall be delivered to the Merchant without making other â—ute at the common Law Stat. Anno 27 E. 3. cap. 13. Merchant 12. Note that by this statute the Chancellor alone without any of the Justices hath power to proceed to Judgement 2 R. 3. 2. 2 Also the statute of 27 E. 3. is that if Debate arise betwixt the Maiâ—r and Constables of the Staple and such Merchant stranger as shall be assigned to â—it with them upon discussing of any plea or quarrell touching Merchants Aliens the Tenor of the same Plea shall be sent before the Chancellor and other of the Kings Counsel to be determined there without delay Anno 27 E. 3. cap. 24. staple 17. 3 If any Subject attempt or offend upon the Sea or in any Port within the Realm against any person stranger being upon the Sea or in any Port aforesaid by way of Amity or League or truce or by force of the Kings safe conduct or safeguard in any matter and especially in attaching of any such strange person robbing oq spoiling him of his Ship or Goods or against any other person of his Lay-people the Chancellor as well for the deliverance of such person attached as to make Restitution of Ship or Goods or the value thereof shall have authority calling to him any of the Justices upon a Bill of Complaint to him made to make such processe of the Chancery as well against such Offenders to bring them into the Chancery to answer as against any other persous to whose hands any such person so attached Ship or Goods shall come for the Deliverance Restitution by them to be made as shall seem to the Chancellor most necessary and upon this Processe the Chancellor further to proceed in this matter if the case do so require by advice of any such Justice to make the person stranger so grieved to have full Deliverance and Restitution of his Goods c. and also of all the Costs Expences and Losses made and suffered by him in this behalf and thereupon to make all manner of execution upon the same out of the same in such sort as shall seem to him necessary for such Deliverance and Restitution to be had calling him to any such Justice as aforesaid statute 31 H 6. cap. 4. Aliens First note that by this statute the Alien that complaineth must sue in the Chancery before the Chancellor assisted with one of the Justices 2 R. 3. â— 4 A Merchant Aâ—ien bargained with one to carry certain Bales of Merchandizes to Hampton the party took the Bales and carried them to another place and brake them up and took out the Merchandizes and converâ—ed it to his own use and the Alien complained to the Counsel in the Star-chamber the Chancellor that although this Fact be Fâ—lony yet it shall be tried before the Counsel and not at the common Law because the Complaintiff is a Merchant alien and is come by safe Conduct and it shall be determined according to the Law of Nature of the Chancery and he may sue there from hour to hour and from day to day for the speed of Merchants also he said that strangers shall not be bound by our statutes which are introduct. jura legis by statâ—te that are Deliberativa antiqui juris viz. juris naturae And although that by their being in the Realm the King hath Jurisdiction to compell them to abide right yet that shall be secundum legem naturae which is called by some the Law Merchant which is an Universal Law through all the World in cameâ—a stellata 1. 3. 2 4. 9. Denison 2. b. Dâ—nisen 5. 5 The Chancellor said that whereas there is a statute that safe Conducts inâ—olled and the number of Mariners and the name of the Vessel yet if any Alien have a safe Conduct and have not those circumstances therein the safe Conduct notwithstanding shall be allowed and so hath been adjudged for the Aliens do say that they are not bound to know our statutes and they do come into the Land by Warrant of the Kings Seal and safe Conduct and if it shall not be sufficient they are defrauded but others saith the statute which ordaineth for the Forfeiture of Merchandize shall binde as well Aliens as others in camera stellata 13 E. 4 10. b. Denisen 5. 6 Note that it was said in the Star-chamber that a Denizen shall not sue an Alien before the Counsel but an Alien may sue a Denizen and it was said that it is by force of the statutes 13 E. 4. 10 Denisen 26. Denison 5. If any Alien having a safe Conduct be robbed and the Goods waved by the Felons yet the Alien shall not be compelled to sue the Law against the Felon neither may the King have the Goods as a Waive nor any other by the Kings Grant or by prescription because the King hath granted unto him salvum securum conductum tam in corpore quam in bonis which is a Covenant between the King and him and he may sue the King upon the same per omnes Justiciarios in Camera stellata 13 E. 4 10. Note that an Alien born under any Prince which is in League with the King may sue at the common Law all Actions of Debt and personal Actions but not real Actions but if he be born under the obedience of the Kings Enemy then the Alien hath no Action or Sute unlesse he come by safe conduct and note that if all England do make War with a forreign Prince which is in League with the King yet if the King do not assent thereunto it is not open War for the League must be broken by Ambassage or otherwise by the King 19 E. 4. b Denison 16. 20. A Merchant of Spain exhibited a Bill before the King and his Counsel in the Star chamber against certain English men and shewed that he was robbed upon the Sea by certain Britains and that his Goods were brought into England and are come to the hands of the Defendants and prayed Restitution according to the statute de Anno 27 E. 3. cap. 13. and it was said by all the Justices that the Complaintiff must prove that the King of Spain was in League with the King at that time and the taking of the Goods also he must prove that the first taker was under the
Kings obedience or else in amity with the King and not the Kings Enemy for if the taker were the Kings Enemy and robbed the Complaintiff being the Kings Friend yet those Goods being come to English mens hands shall not be restored Quia non est depredatio sed legalis captio prout inimicus capit super immicum in camera stellata 2 R. 3. 2. 6. Denisen 8. CHAP. VIII Certain Statutes giving special Power to the Lord Chancellour 1. IN every original Writ of Action personal Appeals and Indictments in which the Exigent shall be awarded to the names of the Defendants addition shall be made to their Estate Degree or Mystery and the Town Hamlets or places and the Countries in which they were or be conversant and the Clerks under whose names such Writs shall go forth written shall not leave out the Additions upon pain to be punished and to make Fine to the King by discretion of the Chancellor stat de Anno 1 H. 5. cap. 5. Additions 2 If any person make Complaint duly in the Chancery that any Murthers Man-slaughters Assemblies of people in great number in manner of Insurrections and Rebellions Routs is or be fled and with-drawn in Woods secret or unknown places or elsewhere to the intent to avoid the execution of the Law upon such Complaint a Biâ—l shall be sufficiently made for the King and the Chancellor after such Bill to him delivered if he may be duly informed that such Bill containeth truth shall have power according to his discretion to make a Writ of Capias at the Kings sute to the Sheriff where the Offences are supposed to be done ret. in Chanc. then they shal be put in Award or Mainprise after the discretion of the Chancellor and moreover he shall send to inquire of such Offences and upon that shall be done as the Law requireth and if the parties stand out then a Proclamation shall be awarded ret. in the Kings Bench and upon Default they shall stand convict and attainted stat Anno 2 H. 5. cap. 9. Riots 5. This statute is made perpetual and it is enacted that the Capias shall not be awarded unlesse it be witnessed by two Witnesses of peace of the County where such Riots be supposed that the common voice and tame is of the same Riots stat Anno 8 H. 6. cap. 14. Riots 3 If any person be hurt or grieved in any thing that the Justices of peace may hear determine or execute in any wise he is commanded to make Complaint to the Justices that dwell next to him or to any of his fellows and desire a remedy and if he have then no remedy if it be nigh such times as the Justices of Assize come into that Shire that he then shew his Complaint to the same Justices and if he then have no remedy or if the Complaint be made long before the eoming of the Justices of Assize and then he so grieved come unto the King or to his Chancellor and shew his Grief and the King shall send for the said Justices to know the cause why his Subjects be not eased and his Laws executed and if he finde any of them in Default of executing of his Laws in the Premises he shall cause him so offending to be put out of the Commission and to be punished according to his demerits stat Anno 4 H. 7. cap. 12. Proclam 3. 4 Poor people having cause of Action against any person shall have by the discretion of the Chancellor Writs Original and Writs of sub poena therefore paying nothing to the Queen for the Seals nor to any person for the writing of them and the Chancellour shall assigne Clerks to write the same and also learned Counsel and Attouâ—nies for the same without any reward to the King thereof stat Anno 11 H. 7. cap. 12. Poor People 5 If any Farmer of any lands belonging to the reparation of Rochester Bridg do not like to give for a new Lease as another will then he shall have for his hettering or building such Recompence as shall be thought reasonable by Agreement between the Wardens and Assistants and him and in Default of their Grievances such as shall be thought meet by the Chancellor or Treasurer stat Anno 18 Eliz. cap. 17. Bridges 2. A statute was made concerning the exercise of Trades by strangers Deni sens in Anno 14 H. 8. cap. 2. and there was a Decree and an Act made that search should be made by all strangers being Artificers and Housâ—â—lders for Offences against that statute and if they refuse and the same proved before the Chancellor or before the chief persons of such Cities or Town the Refuser shall use no longer his Occupation stat Anno 21 H. 8. cap. 6. Aliens 4. 6 If any person falsly or deceitfully obtain into his hands or possession any Money Goods Chattels Jewels or other things of any other person by colour or means of any false token or counterfeit Letter made in any other mans name the Offender being convict by Witnesse taken before the Lord Chancellor or by Examination of Witnesses or by Confession taken in the Star-chamber before the Counsel or before the Justices of Assize in their Circuits or before the Justices of P. in their General Sessions or by Action in any Court of Record shal have such correction punishment by Imprisonment of his Body setting upon the Pillory or otherwise by corporal pain except pains of Death as shall be appointed by the person before whom he shall be convict stat 33 H. 8. cap. 1. If any variance arise in London about the payment of Tithes and upon a Complaint made to the Maior he not end the same within two moneths or if any of the parties themselves grieved then the Chancellor upon a Complaint to him made within three moneths next following shall make an end of the same with such Costs to be awarded as shall be thought convenient stat Anno 37 H. 8. cap. 12. Tithes 9. CHAP. IX Certain Statutes giving special Power absolute to the Lord Chancellour jointly to others THe Chancellor and Treasurer taking to them Justices and other of the Kings Counsell such as to them shall seem meet shall have power to ordain remedy for the buying of Stockfish and Botulph and Salmon of Barwick and 〈◊〉 Bristrâ—â—â— and elsewhere to the intent that the King and the people may the better be served and have better markets than they have had before this time and that the ordinances by them made in this party be sirmly holden Stat. de Callice 31 E. 3. cap. 5. Fishers 4. 2. No Master Wardens and Fellowships of Crafts or Mysteries nor any rulers of Guilds or Fraternities take upon them to make any ordinances or to execute any acts by them heretofore made in disheritance or diminution of the Prerogative of the King nor of any other nor against the common