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
Patent by them signed and also with the Masters of Requests which have the oversight and admitment of all such Writs and Patents as are to be sealed and moreover in every Parliament of France there is by the King of France established a Chancery wherein is placed a Keeper of the Seale a certaine number of Secretaryes as in the former which are said subscripti in sublevamen Cancellarij propter multitudinem negotiorum in Cancellaria Curia Regis affluentium and likewise as are in the Great Chancery there is one Audiencer one Comptroler and one Referendary or Recorder The Chancellor if he doe exercise his Office hath for wages by the yeare eighteen thousand French livers and having a Keeper of the Seale substituted he received twelve thousand Livers and six thousand Livers are assigned unto him principally for the entertainment of the Masters of Requests which do ordinarily dyne at the Lord Chancelors Table in their turne of quarters he hath also besides his wages many other rights and duties as at the entry of Kings into Cityes he hath a garment of cloth of Gold and yearly he hath certain Elles of Velvet a certain number of lights and an allowance of Wax the Chancellor ought not nor may not passe any writing under Seale contrary to the deliberation and determination of the Privy Councell neither whereof any doubt is moved by any Master of Requests of the household but he ought to send the same to the Councell for a resolution Of those which have accesse to the Seal we may place in order next to the Chancellor the Master of Requests which are appointed him for surveyors and examiners of such writings as passe the Seale especially of Patents and Commissions and all other persons whatsoever are forbidden to enter at Sealing time saving the Kings Secretaries the Audiencers the Comptroller the Procurator Generall which is ordained in the said Chancery and the Câ—afewax By this appeareth the name and some part of the Office of the Chancellor of France to be given by Chaâ—lemain more than one hundred years before the time of Edward the Confessor in whose dayes began the name of our English Chancellors according to the assertion of Florentius Wigornensis for that the aforesaid Edward having spent a great part of his Age in Normandy was the first that brought the use of the Seale from thence and with it the name of him that had the charge thereof and that is the Chancellor in whom Leafricies the Britain is named the first Chancellor But saving correction I must be of that opinion of the Normans we did not learn our manner of sealing not onely for that I have seen the Copies of our Kings Patents before those dayes with Ego Iâ—a Ego Aluredus c. subsignavi which indeed may be al one with subscripsi according to 40th Law in the Digests lib 50. But surely I have either seen the very points of the Saxony Danish Seale or else they were counterfeit to no profitable purpose Let other men give what credit they will to the collection of Chancellors by Mr. Thinne in the new addition to Mr. Hollinsteeds Chronicle lately Published For my owne part I am neither of experience nor judgment to impugne it But under the authority of allowable writers I shall set downe and that shortly what I have gathered in so few daies as I have therein bestowed of the present estate of our Modern Chancellor and herein some particulars of the Court of Chancery and first in mine opinion he is the same Chancellor that was Rembaldus to holy Edward and Mauritius to William the Conquerour whose office was to make and seale the instruments that passed from the Prince as writeth Lupanus and as for the former mentioned Chancellors before this time they seem more kindly cheif Secretaries than to exercize the present Office of Chancellors For howsoever I am induced probably to conjecture that before Edward the Confessor there was use of Sealing as I have said so have I no warrant to allege for a great Seale of the King to passe the Instruments whereof the charge was committed to the Chancellors the which as I take it may be reputed the originall of his office and this his originall office was not altered by the aforesaid Conqueror in the erection of the College of Scribes or notaries neither his name changed as I conceive the words of Pollydore where he saith that Ejus Collegij Magistrum vocavit Cancel larium qui paulatim supremus effectuâ— magistratus of qualis hodie habetur But I suppose that authority was also given him by sealing and making certain Writs originalls the forme whereof was for the most part produced out of Normandy but not the granting of all originalls because that by Glanvill it is affirmed that many of them did beare Teste of himself viz. Ranulpho Ganvilla who was chief Justice many yeares after and this by the way is to be remembred that in the name of Chancellor our ancient Histories may easily deceive us for some were called Cancellarij Regis and others Cancellarij Regni and of those which had this great Seaâ— of the K. in their charge and custody Some were termed Chancellors and Seale bearers also that had no partakers of their office such a one was the same Rembaldo to the aforesaid Edward and many others some were Keepers of the Great Seale and that solely Qâ—i Custodiam sigilli Regli acciperent Cancellarii vices acturi officium c. as saith Mathew Paris of John Maunsell although there may be perceived some small difference betweene a Keeper of the grev Seale and a Vice Chancellor for of Vice-Chancellors also I finde two sorts the one as I take it exercising the Office of a Chancellor in matters of Justice and such a one was Malus Catulus in the time of Richard the First another which was chiefe Secretary as it seemed unto the Chancellor to write the Patent of the Prince and such a one was Sywardus whose name I have seen subscribed to a Charter of Edward the Consessor Ego Sywardus Notorius ad vicem Rambaldi Regis Dignitatis Concellarij subscripsi The first sole Keeper of the Great Seale I take to be Symon the Noâ—man who had the Seal delivered unto him in the 23d year of the Raigne of King Hen. 3d. and shortly after also taken from him againe when he was also banished the Court for that he would not seale the Patent whereby Thomas Earl of Flanders might aske 4d for every sack of Wool that went out of England into Flanders But that the Authority of the Lord Keeper was beforetime some way inferiour to the Authority of the Chanceller that may seem by the Act of Parliament which was made Anno 5 Eltz that did equall the power of the one with the other sometimes also the Chancellor of England had a Keeper of the seale subscribed to him and so was Ranulphus the Chancellor and Richard the Chaplaine keeper
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
within the Shires and Places to them allotted And that no other person shall make these Writs but they by which Ordinance also the nomination and allowance of these Cursitors doth appertain to the Chancellor or Keeper of the Great Seale for the time being as in the said Ordinances is declared together with all other Orders c. concerning the said company whereof is to be observed that although by the late Lord Keeper the writing of the aforesaid VVrits was particularly assigned to such particular Officers yet were there Cursitors before that time of the same name and of the same exercise The Serjeant of the Mace who carrieth the Mace before the Lord Chancellor and is to call any man before him at his commandement There is also mentioned in Record of Edw. 3â—Officium de portandi votulis ubi Curia se divertabat priusquam in loco certo tenebatur vocat Porâ—j concessum Adamo Marlyn c. The which is the same Office of Keeper of the Rolls at this day And this place in the 13th year of Edw. 3. was granted by the chancellor and Master of the Rolls the which Grant remaineth upon Record Other Officers there are for particular Functions in the Chancery granted by Patent from the Prince as of making the VVrit of Diem clausit extremum making of Subpoena's writing the Liecnse of Alienation of Protections and a great number of others of the like nature so are there also the Sealer the Chafe-wax c. Some are constituted by Parliament to be Ordained by the Kings Letters patents as the writer and inroller of confirmations of all such Licenses Dispensations c. as shall be brought into the Chancery under the Archbishop of Canterbury his Seal c. For the Oath to be taken by the Clerks of the Chancery may be seen the Statute of 18. Ed. 3. which is to be taken not by the six Clerks only but by all other Officers in the Chancery of the like quality and their servants also Moreover for the privilege of the Officers in the Chancery there is a record of Rich. the 2. Quod Clerici ibidem nec eorum servientes non câ—gantur respondere coram aliquibus Justiciarijs Judicibus secularibus praeter quam coram Cancellario Regis seu custoae magni sigilli Regis super aliquibus placitis seu demandis quae Dom. Regem non tanguut except placitis de libero tent felon Apellis Bâ—ev Regis Anno secundo R. 2 parte secunda Article 18. The forme of their privilege is set down in the Register of Writs and in the new Natura brevium The Masters of the Chancery have privilege to be exempted from beâ—ng Procurators of the Clergy But leave we the Officers to speak something more largely of the power of the aforesaid Judg which is the Chancellor c. wherin will fall out some further matter concerning the Chancery The absolute power of the Lord Chancellor THe power of the Lord Chancellor is divided into two parts the one Judiciall and the other Ministeriall the Judiciall is likewise of two distinct sorts viz. either absolute or else ordinary whereof intending to proceed to their particular discourse I have chosen the absolute power to be the first as well for that it proceedeth in Dignity being absolute without comptrollment other than in Parliament as also it spreadeth it self most largely being most infinite without any prescribed limitation intending to leave the rest to be hereafter severally handled with better opportunity In this present Treatise I have plainely and faithfully set down the Cases Opinions and Decrees in such sort as they may by the Reports of the Year-Books and by the ancientest sort of Records in the Chancery be best warranted and have thought fitter to set down the makers of the Statutes and the pronouncers of the Law to be heard as it were speaking in their own phrases and proper terms than that I should presumptuously wrest the same into any other curious method only I had regard unto two things the manner of proceeding and the matter of the subject unto the first I referred these Titles following viz. CHAP. 1. Of the Authority Judiciall of the Lord Chancellor and Court of Chancery in generall for praesenti Chap. 2. What matters he may absolutely hold Plea of in his absolute power Chap. 3. Whom he may call to be assistants Chap. 4. How the absolute power increased and of the Statutes concerning the same Chap. 5. Of what force the Decrees Injunctions Executions and Punishments of the Chancery be Chap. 6. Whether the Chancellor may intermixe his power absolute with the ordinary Chap. 7. The forme of pleadings Chap. 8. What costs and damages shall be awarded in the Chancery And under the second I have contrived these Titles CHAP. 1. Of Lands Chap. 2. Of Lands in use or in trust Chap. 3. Of Coppy-holds Chap. 4. Of Chatells reall Chap. 5. Of Chatells personall Chap. 6. Of Chatells intrust Chap. 7. Of Aliens and Strangers Chap. 8. Certaine speciall powers absolute given to the Lord Chancellor by severall Statutes Chap. 9. Certaine speciall powers absolute given to the Lord Chancellor joyntly with others by severall Statutes CHAP. I. Of the Authority Iudiciall of the Lord Chancellor and Court of Chancery in generall 1 THe Chancellor hath two manner of powers viz. Potentiam ordinatam and Potentiam absolutaÌ„ Ordinata potentia is where a certain order is observed and so it is used in positive Law But Potentia absoluta is lex naturae quae non habet certam ordinem but useth all meanes to know the verity Et ideo dicitur processus absolutus also in lege naturae requiritur that the parties be praesentes or that they be absentes per contumaciam which is when they are warned and make default and in both these there must be Excommunicatio veritatis per cancellar. 9. E. 4. 14. Subpoena 11. b. Conscientiae 26. b. jurisdict. 10. 2. The Chancery is no Court of Record in respect that it is a Court of Conscience and holdeth Plea upon Subpoena but as it tryeth matter upon Scir. fac and Debt and such like it is a Court of Record Per Prisc. Cap. Justic. in Com. Banco 37. H. 6. 14. 3. If a Statute do ordain processe at the Common Law the Chancery doth not follow the Form prescribed by the Statute but if a Statute doth give a title of right to any man then the Chancery doth obey the Statute per cancellar. 8. E. 4. 5. This is to be understood of generall Statutes in which the Court of Chancery is not expresly named 4. The Chancery may hold plea upon Scir. fac and other such Writs as appertain to that Court as well out of the Term as in the Term per Fitz Harbert in Natura Brevium b. jurisdict. 116. 5. When the Term is adjourned by reason of sicknesse or of any other cause yet the
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.