Certaine OBSERVATIONS concerning the Office of the Lord CHANCELLOR.
HAVING ENDEAVOVRED (for duties sake) some what to consider the nature of this high Place & Dignity, for two causes, chiefly, I was much discouraged. For neither could I remember any man in this kinde of discourse to have bin imployed; Neither any Iudge or Potentate with whom this Magistrate may be compared, and herein the more I searched, the more I found my selfe confounded.
2 Sam. 8. 16. IN THE Eighth Chapter of the Second of Samuel Jehosaphat the Sonne of Ah [...]lud, the Chancellor among the Hebrewes, as the second of David his chiefe Officers, is termed Mazur; in he Greeke, Ananinnescoon, by Tremelius and J [...]aius translated (a Memoria or Monitor) by the Spaniard Chanciller▪ which is all one with [Page 2] Cancellarius or a Comentarijs; by the Italian, Seritor de le Cose Fatte, in the Duch Cantzfe [...], in the French Chroniqueur, and in our English Translation, a Recorder, In the fift place is called Serayah, and he is called Sopher, which in all the aforesaid Translations is tearmed Scriba or Sec [...]etarius, saving that the Italian doth name him Cancellario. Sebastian Munster conceiveth Mazur to be a Comentarius, and he was ordeined saith he, to be the principall Master to note such things as were worthy of remembrance, or as Solomon saith, his Office consisted in this point, to report the actions of old time unto the King, and Sopher was appointed to Record them; Herewith agreeth (for the signification of the words) the twentieth of the same Booke of Samuel, and the fourth Chapter of the first of the Kings; But whether the Lord Chancellor of England as now he is, may be properly termed Sopher or Mazur, it may receive some needlesse question, howbeit it cannot be doubted but his Office doth participate of both their Functions, being by William the Conquer our appointed Magister Collegij Scribabarum, by the same King instituted in the third yeare of his Raigne, (as writeth Polydore) and likewise having had the keeping of the Rolls of Records as Bracton witnesseth, either at the same time that the Common place was erected, which was about the ninth yeare of Henry the third, or not long after. But something more neer to our name of Chancellor, I finde the Hebrew word Kinkall, in Greek Knilizo, and in Latine Cancello, whereof cometh Kankill, in Greek Knilis, and in Latine Cancellus, and thereof not unproperly Cancellarius, as he s [...]teth intra Cancellos legis, (viz.) & Conscientiae, or otherwise a Cancellando, [Page 3] as shall be afterwards touched. Notwithstanding for that I finde the word Mazur better avowed than this latter, and I do not remember much mention to be made of any great Officer among the Grecians neere sounding to Kniklum, I will content my selfe with the former name only of the H [...]bricians, without further consideration of his Authority in Jury, notwithstanding with this observation, that long time before this Monarchy of the Hebrewes, a speciall privilege of Jurisdiction in Difficult matters was reserved to Moyses wherein he might demeane his decrees according to the Information of his good conscience, for so it may be understood if I be not deceived that in those cases he asked Counsell of God, who gave him Warrant of his Authority, and therefore some have not feared to call him Cancellariu Dei: So was Joseph said to be Pharaohs Chancellor, and therefore his Successors the Chancellors in our dayes, are called Patres Patriae, as he was Patriarcha; and as the King only was in seate superiour unto him, so is the Chancellor with us at this day, Primus post Regem, & secundus in ordine of any temporall Magistrate.
And surely if in Greece I should look for a meet pattern and president to this purpose, I would hope to finde him in the Common-wealth of the Athenians, where from the time of the first King Cecrops unto the (Athentes Anno) I dare be bold [...]o affirme, that little light would be given unto [...]ny man much better conversant in the Greekish Histories than my selfe, and from the same time into the Tyranny of [...]isistratus, from thence to [...]e renewed Domecticy, after the Domination of Antigonus, I cannot single out any one Justicer of [...]ike quality, unlesse I might allow that Solon was [Page 4] therefore Chancellor for that he did moderate and temper the positive Laws of Draco by his discretion, as well in decreeing as in execution, the which [...]berty and power was after attributed to the Nemoth [...]tae, not those which did make lawes, but those that did allow or reforme the lawes already famed; But mee seemeth the cniefest part of our [...]han cellors Office may be applyed to the Senate [...]o whom the power was given of making decrees in the causes of private persons and the holding of dayly accidents, but so as that they did not oppugne or contrary the lawes positive. And further we may say of him, that he hath Jus consultand [...] with their Demarches, Jus judicandi between Citizen and Citizen, with Action between Citizen and Alie [...] with their Polymarchus, whom the Masters of the Rolls, and the Masters of the Chancery are Paredri to informe him of the law, as shall more easily be gathered in the processe of this Treaty, and that he hath jus imperandi and Principatio judicior. with the A [...]opagitae; and further that he may multum irr [...]ga [...]e with the aforesaid The smothetae, whereof it followeth that he is undoubtedly a most absolute Magistrate, and for that he hath closed in his office a credit for conservation of the peace over all the Realm, with shall not be amisie to call him Nomophilax with this remembrance that Plutarch writeth, Eumenes Cardiqnus to be Archigrāmatea Alexandri magni Valgo Cancellarium ac principem Scribarum qui l [...]gothet [...] in regno & petitiones de [...]retabat quos signabit & in eis se suseridebat.
In the policy of the Roman Empire, I meet not with one example, saving that by report of Dyonisius the best and worthiest of the hundreth Senators was chosen by Romulus, to whom oversight [Page 5] of Justice, the appeasing of Tumults, and the conservatiō of peace in the City, was appointed at such times as the K. was otherwise busied in the expedition of warfare, not unlike to the Ordinance of Ed [...]. the 3. who in the twentieth yeare of his raigne addressing himselfe to his warres upon the French, did then authorize the Chancellor and the Treasurer of England, to hear and determine of all complaints against extortion of Officers maintenance, imbracery, and such like offences, by which authority he procured to be confirmed unto them by Act of Parliament, and so it is at this day. The Chancellor of France, V [...]carius Regis and as will appear hereafter; and that there was no other Magistrates in the time of the Roman Kings is expressed by the same Dyonisius excepting onely Tribunus Celerum, which was Militaris, and as some hold opinion, certain Quaesteres for oversight o the Treasury, sent but otherwise in Rome omnia Regum Arbitrio administrata sunt; in imitation whereof, the two great Officers of France, which are preferred before all other▪ Et semper adsunt ad latu, principis, are the Constable of the Kingdom and the Chancellor, which is called Quaestor by some writers. Now in the permanent and ordinary offices of their popular government, what Magistrate might be so mighty or generall in his Jurisdiction, as is the present preheminence of the Chancellor? I speake not of the Consuls of Dictators, which did want nothing at all but the title and the denomination onely of Kings and chief Rulers. Herbert Budaeus doth not sticke to call him Praefectum praetorio, and further (qui loco Dictatoris sit) that our Chancellor hath Jus [...]dicendi, appeares by his rules and orders for matters of Consclence in the Chancery, which doe especially [Page 6] concerne his absolute Authority, Jus judicandi upon Audita qu [...]relaes, Petitions de droit, &c. where he judgeth according to form of Common Law, jus cogendi, by his service of the Mace, and jus coercendi, for over all the Realm he hath authority to command a man to Prison: How he might be termed Censor, in that he sendeth for the Commissioners for survey of Armour, &c. Aedi [...]es in the prizing of Wines and Fish, &c. in the appointing of Sewers, &c. And so to compare him with the severall Officers of that Commonwealth, by reason of his severall qualityes it were both tedious and impertinent, only I have thought convenient to term him Pretor for these congruities: First quoad cognitionem, then quead curationem. The Cognizance of the Pretor was either Pretor.Domesticall or Popular, Domesticall whereby he might hear the Complaints of every private man which his Palace and in his owne Chamber, Ministrante at que admittente Cubiculario, and order them by the Law of his Reason, the which orders were ingrossed by any one of his Clarks and sealed with his owne signet; Popular when he sate in Basilie [...] or in Foro, where he was Circumdatus Cancell [...]s, and had attendant upon him, Scribes, Cryers of the Court, and Serjeants, and this was called Locus sta [...]uendi, in whose constitutions there were two kinds, one of decreeing, another of giving judgement. He was said to decree when without the Counsell or advise of the Judge he would manumiss, emancipate, award possessions of lands and goods, commit wardship of pupills, grant injunctions, and generally when without assistance of a Judge he did hold cognizance of causes and determine thereof as he thought convenient, and in this manner of Cognizance [Page 7] sometimes he would statuere sine Judice, sometime he would Rem iudicibus Statuendum permittere, as we may fitly translate to dismisse them to the Common law. It was said the Judgment of the Pretor either when he proceeded to Judgment according to leges Regis, duodecim tabulas, Jus Civile, leges, plebiscita, or Senatus Consulta, and herein his authority was not absolute as in the other, or where himselfe did heare and define, remitting the sentence of judgment to be pronounc't by the Judges, in this kinde our Chancellor and their Pretor [...]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. [Page 8] 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.
The Chancellor of France. 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 Ca [...]oli quinti Supremus o [...]ni [...]m ordinum & honorum Cancellarius (quique subinde Regi a Consi [...]s intimis statent, exhibit is tactisque sanctis Evangelijs in manu Regia in [...]oec verba j [...]rabunt, quod sci [...]cet et nullum faedus nec ullum conspirationem ini [...]ut inter [...]os & si quia a quoquam contra fieret a statu su [...] dejectus exauthorazetur.
Per insignem dignam (que) Majestat is regiae huc referre libuit modum quem Carolus ille q [...]ntus cognomine sapiens in [...]ligend [...] & designando supremo [...] Nom [...]hylice Cancel [...]arie non minus cite quam sancte observavit, cum ad c [...]ntum & trigint. ade [...]sent p [...]tres conscripti octo juri a libellis Proceres caeteris (que) rati [...]ales, cos a conclavi Rex ab [...]re & [Page 9] exire jussit, postea sigillatim omnes ad unum accersunt, & Jure jurando adegit, ut bona fide quem e Republica huno Nomophylacie putarent esse [...]erficiendum utrius li [...]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 on [...]ri) sese longe imparem excusare. Ac vero Rex tot tantisque ca [...]culis a [...] 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 par [...]es primoe sunt videre ut nulla principis constitutio, nulla Sanctio, nullum diploma, nullum Res [...]rip [...]um, nulli Cudicilli Regij none Republica [Page 10] atque etiam e dignitate Reipublicae principaliqu [...] exeant cujus censurae aut stilo principum Majestas acts sua eximi volunt, deni (que) qui principis pr [...]sentis viarius pera [...]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 [...]qui bonique Columen appellari potest atque etiam debet id quae creder eme cogit consensus fere hominum institutū 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 A [...]re [...] 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 [Page 11] 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 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.
[Page 12] 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 Secreraries, the Audiencers, the Comptroller, the Procurator Generall, which is ordained in the said Chancery, and the C [...]afewax.
By this appeareth the name, and some part of the Office of the Chancellor of France, to be given by Cha [...]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 I [...]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 [Page 13] 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 effectu [...] magistratus of qualis bodie 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 [Page 14] 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 Sea [...] 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, Q [...]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 No [...]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 [Page 15] 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 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 of the Chancellor. 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 [Page 16] 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, an [...] although the King in displeasure did take the sea [...] from him, and delivered the same to the custod [...] of others; yet did the aforesaid Nevill remain [...] Chancellor notwithstanding, and received th [...] profits thereof, to whom the King would hav [...] restored the Seale, but he refused to receiv [...] it.
And hereupon may be gathered, that the Keeper of the Seale is not Vice-chancellor in every respect.
An [...] [...]et us note by the way three several Parent [...] were granted unto this Ral [...]h Nevill aforesaid, w [...] 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 hae [...] [...]erba.
Henricus Rex, &c. Archiepiscopis, Episcopis &c. Sciatis nos dedisse, concess [...]sse & [...]a [...] charta nostra confirmasse Vene. Pa [...] Randolpho
Cicestrensi Episcopo Cancelldria [...] nostram hahend. & [...]nend▪ to [...]o [...]mpore vitae suae, cum omnibus p [...]rtinent. libertatihus & [...]eris consuetudinibus ad praedictam Cancellariam nostram, habeat bene & in pace libere & [...] integre, honorifice cum [...]bus exitus libertatibus & omnious all [...]s ad eam per [...]inentibus sicut Cancellar▪ Regn. Angl. praedecessor. nostror. ea mell us quietius liberius & integrius hab [...]ere hijs Testibus &c. datum per manum nostram 12. F [...]br. Anno Regni nostri 11.
His second Patent was of this Forme.
Henricus Dei gratia, &c. Archiepiscopis, Episcopis, &c. Sciatis nos concessisse et [...]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 An [...]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 [...]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 [Page 18] Custodiendo, aut quam custodiam praedicti sigilli recipiat▪ [...] si forte idem assignat. [...]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 Pool [...] created Earle of Suffolk, in the time of Hen Beakford. Rich. the 2. Sometimes they were the Sonnes of Noblemen and Princes children, as Henry [...]eauford, sonne of John of Caunt, &c. in the [Page 19] 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 scor [...]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 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 [...]erning Justice, and [Page 20] 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▪o [...]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 Tel [...]ard) was at one time Chaplaine and Chancellour to William the Conquerour; [Page 21] 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.
The nature originall of the Chancery. As the Chancellor is at this day, Norma omnium jura Reddentium c [...]mnes Magistrat▪ honorun suorum fasces submittere not [...]ndignentur: And withall, as Budeus calleth them, Promus & Condus clementiae benigni [...]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 [Page 22] [...]oris, nulli tamen [...]are; which is meant not to gape after such men as bring rewards, o [...] 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 [Page 23] 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, Parliam.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.
Kings Bench. 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.
Common Pleas▪ How in the Court of Common Pleas are holden all Common Pleas between subject and subject of all matters of Common Law.
Exchequer 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.
Court of Wards. 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.
Star-chamber. How the Court of Starre-Chamber is ordained to redresse certaine great offences, provided by Statute, and appointed to this Court.
[Page 24] Dutby 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.
Court of Requests: 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.
Admiralls court. How the Admirall hath disseisin of Marine.
How the Constable and Marshall of England determineth the Contract, touching Deeds of Constable of England.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.
Marshalls court. 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.
President of Wales & the North parts. 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 [Page 25] 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 s [...]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 [Page 26] 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, Comm [...]ssioners, and Delegates, that the Jurisdiction o [...] 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 Ma [...]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 [Page 27] 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 Cauc [...]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 time made in the Chancery and execution thereof by Scire fac. out of the com. pleas in the 20▪ Ed. 3. Sute in the Chancery by Petition to repeale a patent, &c. So may wee remember 15. 18▪ and 2. Edw. 3. for Petitions, &c. before this time, and divers other cases.
In 20. of Edw. 3. an absolute power was by [Page 28] Statute given to the Chancellor joyntly with the Treasurer, to punish divers offences therein mentioned, according as Law and Reason required, &c. but whether this may be said to give them authority of extraordinary and absolute proceeding against thē, I stand in some doubt; how be it, I do not think, that the jurisdiction of the Chancery was thereby inlarged, but it seemeth very probable, that the Statute of 36. of the same King, though it were not the foundation and erection of the Chancery, did notwithstanding adde a great measure of jurisdiction unto the same, for there it was agreed by Parliament, that if any man were grieved contrary to the Articles in that Statute mentioned, which were many and generall; or others contained in divers Statutes, he might come into the Chancery, or any for him, and thereof make his complaint, where he should be relieved by force of the said Articles and Statutes without, elsewhere pursuing to have remedy: By which Law, the Chancellou [...] was not onely made sole Judge in this Court, but was inabled also to proceed in judgement there after his owne discretion, for otherwise the word [...] without other Sute, were not beneficiall; but saving correction, I take the Statute of 17 Edw. 2 to be the especiall ground-work of the Chancellor his absolute power, where authority is given him upon untrue suggestions, to ordaine and award damages according to his discretion, by expresse word, &c. after which time his power from time to time, Vires accrevit eundo, be enlarged by sundry Parliaments, as by one, to sen [...] forth Proclamations of Rebellions, &c. agains [...] such as would not appeare, and by others, both to grant Commissions of divers kinds, and to do [...] [Page 29] many other things, whereof mention shall bee made in the cases set downe hereafter concerning his power absolute, the which is intended the speciall, but an object of this Treatise; Now therefore in the meane time may we confidently cali the Chancery the Kings High Court of Conscience, made especially to redresse private causes, such as by extremity of Law, cannot have agreeable end to equity, by reason of circumstances hindering; wherein it is to be noted, that conscience is so regarded in this Court, that the Lawes are not neglected, but they must both meet and joyne in a third, that is in a moderation of extremity. It holdeth plea also of common or civill matters between the Prince and his Subjects, so farre forth as the same hath to do with Petitions, Traverses, Monstrance de Droit, and such like; out of this Court, as from the person of the Prince came all manner of originall Writs, whereof some are Commissional or Commissary, giving Authority to certaine Judges or Officers to heare and determine causes, some are certificatory, or Remotaries of Records, Pleas or other Acts, some doe command to proceed as Writs De Procedendo, &c. some inhibit or excuse, as Prohibitions, Protections, or Graunties de jours▪ and of Essoynes, &c. Some are deductory, to summon and bring the party impleated into the Court, to answer to the Plaintiffe.
Out of this Court come most commonly Commissions, Patents, Licenses, Inquisitions, &c. of this Court is said, Ar [...]icul [...] super narrationes novas, that it is Curia ordinaria, pro brevibus originalibus emendis & concedendis, sed non pro placitis Communibus habuendis; meant, as it seemeth, according to the course of the common [Page 30] Law, and in the Treatise of Diversities of Courts, It is noted, that the Court of Chancery is a Court of high nature, out of the which doth proceed Writs Originall, as is aforesaid, and there a man may traverse Offices, and in the same Court the Kings Widdowes shall be sworne that they will not marry without the Kings leave before they be endowed; and it is there said, that the errour upon a Patent or Traverse there, cannot be reversed any where else then in Parliament, &c. And in this Court a man shall have remedy for such things, for therewith he shall not have remedy at the common Law, &c. ibid. In this Court of Chancery a man shall not bee prejudiced for his mispleading, or for default of forme, but according to the truth of the matter, for that awards there are to be made according unto conscience, and not Ex rigore Juris; And further in Fleta are these words, Fiant autem brevia inde audicialia in Cancellaria ea recognitionibus & contractis habitis & inde Rotulis Cancellariae irrotulatis, Et ex Recordo Consellario & Cloricis sibi assasiatus per hanc constitut. concessae quia de h [...]s quae Recordata sunt coram Cancellario Dom. Regis & ejus Justitiar. qui recordum habent & in rotulis eorum irrotulantur, non debent fieri processus placiti per summonationem vel Attachiamenta Essonia visus terrae & alios Solempnita [...]is Curiae sicut fieri consuevit in contractibus & commencionibus factis extra Curiam, &c. This Court is also by some called O [...]ffic. Juris Civilis Anglorum, because out of this Court issue all manner of Proces, which give the party his cause of action in other Courts.
Proces Cancella▪riae. The Proces in the Chancery is a Subpoena, which is to call the party before the Chancellour, [Page 31] upon paine of one hundred pounds, &c. and this is the way used to bring in the partie, or else by the Serjeant, as shall be said afterwards, and how the paine is but in terrorem, for thereof shall be no forfeiture; but if the party come not in, or comming in will not obey the order of the Court, hee shall be imprisoned, during the pleasure of the Lord Chancellour, as will appeare in the severall handling of his absolute power, where also will be remembred the Stat of 15. H. 6. that no Subpoena may be granted without Suerty to satisfie the Defend. for his damages and expences, [...]f the matter cannot be made good, which is contained in the Bill, &c.
The order of proceeding in the Chancery is by Injunctions, Decrees, and Orders, the which how farre they binde the party, and how hee is punished by imprisonment, for resisting them, shall be also shewed in the cases of the power absolute hereafter plaeed.
The Judge. The Judge in this Court, is the Lord Chancellour onely, and he is Keeper also of the Great Seale, the which is usually carryed with him wheresoever he goeth, so he goe not beyond the Seas, for then he is to leave it behinde him to such for whose fidelity he will answer; As did John Stratford Chancellour and Embassadour in the time of Edw. 3. And so did Stephen Gardiner, in the time of Queen Mary, when he went to Calice, leave the Seale with the Marquesse of Winton, the which lesson he might learne by the chastisement of Cardinall Woolsey, who carried the same beyond the Seas to Calice, where he left it with Doctor Taylor, Mr. of the Rolls, to keep untill his returne out of the French Dominions.
[Page 32] Yet may there be other occasions also, for the which the Chancellour may commit the same to other mens custody, as did Robert Thorpe Chancellor, in the time of Edw. 3. at his going hom to his owne house hee left the great Seale with foure of the Guardians, or Masters of the Chancery, to keep and ufe as need required.
Further for the keeping of the Seale wee may remember, that as the King himselfe doth deliver the same unto the Chancellor, so may he not surrender it to any other but to the same King or to his Successor.
To this purpose saith Thomas Walsingham, that Sir Richard Scroope having very solemne Messengers sent unto him from Rich. 2. and that in the Kings displeasure, to demand the Great Seale to be committed unto them: His Answer was, The Seale I am ready to resigne, not unto you, but unto him which gave me the same in custody: Nec erit medius portitor inter me & illum, sed ego restituam illud manibus suis qui mihi propriis non alicujus manibus commisit illud. Et ita pergens ad Regem sigillum quidem retradidit, & se fidelem Regi s [...]cut hactenus repromisit [...]fficiaturum tamen se futurum sub [...]llo in posterum denegavit, &c.
Yet seemeth it not so necessary, that the Chancellor deliver it with his owne hands: For it is written that R. Baldolke, Chancellor, upon the death of Edw. 1. did send the great Seale to Ed. 2. And Thomas Rotheram was shrewdly blamed for that he rendred the Seale to the Queen Widdow, to whom it did not appertaine after the death of Edw. 1. and in the circumstance of the delivery thereof we may also note this difference, that the Chancellour hath heretofore received an [Page 33] Oath with the receipt of the same, although the Keeper of the sease doth receive it without oath, for so it is Recorded, that Rich. 2. Manibus suis propriis received the Seale, Et ineontinenter praedictus Dom. nost. dictum magnum Sigillum suum in Bago sic inclusum venerab. in Christ. patri. Edoard. Episc. Exon. cujus sacrum de officio cancellarii bene & fideliter faciend. & excereend. ib. recepit in praesentia, &c. liberavit.
The forme or fashion of this Seale is usually altered upon every succession, the print whereof is directed by the pleasure of the Prince, the validity thereof I dare not to dispute, for that on the one side it is said by the Justices in the reports of the 18. and 19. of this Queene, that a Patent under the Great Seale is good, though the Chancellour have not warranty to make it.
And on the other side, the History is not forgotten, of the Duke of Northumberland, who alleged, as is reported, the Great Seale for his Warrant, &c. which was not accepted, and moreover is recorded in the time of Hen. the 6. a confirmation of such Deeds, &c. as had past the Great Seale, (viz.) Henry by the Grace of God, &c. To our Chancellor of England, greeting. All such Grants as that sith the tenth yeare of our Reigne, untill this time, you by force and vertue of Bills with our owne hand, and by Letters under our Signet of the Eagle and Armes, and also by Bills endorsed by our Chamberlains hand, and Clerks of our Coun [...]ell, have made our Letters Patents under our Great Seale, wee hold them firme and stable, and of as great strenght, &c. as though you had for them our Letters of Privie Seale, &c. long before which [Page 34] time there was a Statute made in the 2. yeare of Edw. 3. (viz.) it shall not be commanded by the Great or Little Seale, to delay or disturbe common right, and though such commandment doe come, the Justices therefore shall not cease to doe right in any point; and by the Statute of Articles, super Charia, cap. 6. It is forbidden that from thenceforth should passe under the little Seale, any Writ that concerneth common Law; And long after this time also (viz.) 2. & 3. Phil. and Mary, cap. 20. It is ordained, That the King under the Great Seale of England may unite Lands to the Duchy of Lancaster; but for the manner of renewing the Seale, the defacing and bestowing of the old, with the Proclamation and notification of the ne, we may observe the ancient manner out of these words remaining in the Tower of the time of Edward the First, (viz.)
Rex Vic. Ebor. salu [...]em. Quia pro regimine Regni nostri quoddam magnum Sigillum de novo fecimus fabricari differenetam in circumferentia [...]uam in diversi [...] sculpturis ex utraque parte sigilli sigillo a quo hucusque utebamur, & volumus quod eidem novo sigillo a quarto die praesen [...] ▪ mensis Octob▪ fides prebeatur & dictum antiquum sigillū [...]umpa [...]u [...] deinde post p [...]aedictum q [...]ar [...]um diem aliqua brevia seu litera nullaetenus consignentar & impressionem dicti sigilli novi in cera alba tibi duximus transmittendam tibi praecipimus quod in pleno Comitatu tu [...] mercatis feriis & locis aliis in balliva tu▪a ubi expedere videris dictam impressionem▪ [...]stondi & pace fieri facias omnibus & singulis ex parte nostra injungend. quod▪b [...]ev. brevis literis & chartis dicto novo sigilo consignatis fidem praebeant & aliqua brevia [Page 35] seu literas post praedictum quartum diem antiquo sigillo signat. non recipiant nec eis utantur quoquomodo, volumus tamen quod brevia literae & chart. praedicto antiquo sigillo ante praedictum quartum diem consignat▪in suo robore perseverent & eis fides praebeat. prout decet Teste Rege apud Nottingham tertio die Octobris, &c.
Eodem modo mandatum est singulis Vicecom. per Angliam, and further.
Memorandum quod die Dominiea, (viz.) quarto die Octob. Anno Regni Ed. primo; Eliens. Episcop. Cancellar. ipsius Regis in Camera sua in Priorat. de Lenta juxta Nottingham in praesen▪clericor. de can [...]el [...]ar. & aliorum tuuc ibidem existen. protulit in quodam panno lineo sigillo suo consignat: quoddam magnum sigillum ipsius Regis de novo fabricatū & asseru [...]t quod voluntas ipsius Regis fuit quod extunc. omnia brev. lit, et c [...]artae ipso novo sigillo consigna [...]en. & quod anti [...]. Sigil▪rumperat. et diae Lunae prox. sequen. in praesentia ipsius Regis in Cam. sua in Castro de Not. dict. antiq. Sigil. praecipiente ipso Rege ruptum fuit in m [...]ltas pecias & idem Cancellarius pecias illas dedit Richar. Spigurnello ipsius Cancellar. & dictum novum Sigillum ad dictum hospitium suum secum detulit & inde brevia chartas & literas consignavit, &c. And to the same purpose of bestowing the Old Seale, appeareth in Richard the 2. a Writ directed to the Treasurer, &c. of the Exchequer in this form.
Rex Thesa [...]rar, et camerar. Quia ex relata fide dignor. accepimus quod quotiescunque magnum Sigillum quod pro regimine Regni nostri Angl. ordinat. existit per mortem Regis aut alio modo mutari contigerit sigillum illu [...] Spigurnello Cancellar. nostrae pro tempor [...] existen. tanquam feodum [Page 36] suum de jure pertinere debet, nos volentes dilecto nobis Willialm. Wightman Spigurnello Cancellar. nostra pro feod. suo magni Sigilli dom. Ed. nuper Regis Angl. Avi nostri quod post mortem dict. Avi nostri cum gubernaculum Regni praedict. suscepimus mutatum existit satisfieri jubere vobis mandamus qud cidem Williel▪ centum solid. pro feodo suo sigilli praedict. de thesauro nostro solvatis excusa praed. Teste Rege apud Westm. 6. die Junij, &c.
The Assistants. The Assistants of the Lord Chancellour are the Masters of the Rolls, and the Masters of the Chancery.
The Master of the Rolls. The Chancellor and the Master of the Rolls, have been heretofore spirituall persons, it appeareth by the election of Bishops, &c. before rehearsed, to the place of Chancellor, and by a Patent of Ed. the 3. the Master of the Rolls was appointed and installed in the house of the Rolls in Chancery-lane by the Lord Chancellor, the which manner of induction and installment continued as long as the Masters of the Rolls were of the Clergy, which may be proved by the Presidents of those Inrollments, and the Writs themselves extant of Record.
The Mr. of the Rolls at this day is the Keeper of all Records, Judgements and Sentences given in the Chancery.
Besides that, in the absence of the Chancellor he doth both heare and decree, &c. as well in the Court, as in the Chappell of the Rolls, howbeit the Decrees made by him are entred either Per curiam, or Per Cancellar. and further, he hath much preheminence, and divers prerogatives by Statutes, Commission, and prescription.
The Masters of the Chancery are, for the most [Page 37] part, Doctors of the Civill Law, and doe assist the Court, to shew what is the equity of the Civill Law, and what is conscience; but surely they have bin heretofore such as have beene expert in the course of the Chancery, and skilfull in the Lawes of the Realme; as appeareth by the 2d. of Rich: 3 d. where they doe shew unto the Justice, the course of Writs of Error, and may be gathered out of the Book, Intituled Fleta, whose words are these.
Est inter caetera quoddam Officium quod dicitur Cancellaria quod in viro provido & discreto utpote Episcopo vel Clerico magnae dignitatis debet comitti simul cum cura magni sigilli regni cujus substituti sunt omnes Cancellarij in Anglia, Hibernia, Wallia, & Scotia, omnes quae sigilla Regis custodientes ubique praeter custodem sigilli privati, cui [...] associentur Clerici honesti & circumspecti Domino Regi Jurat▪ qui in legibus & cons [...]e [...]udinibus Anglicanis notitiam habent pleniorem quorum officium sit supplicationes & querelas conquerentium audire & eis super qualitatibus injuriarum ostensurum debitum remedium exhiberi per brevia Regis, &c. And further of the Masters of the Chancery ibidem.
Episcopi autem collaterales & socij Cancellarij esse dicuntur Praeceptores eo quod brevia causis examinat is remedialia fieri praecipiant & hoc quandoque tam sive denarijs ad opus Regis tam sive Fine, &c. The Officers of the Chancery:
The Officers in this Court are the Pregnatory of whose Office in Fleta is written thus.
Habet & Rex Clericos suos Prothonataries in Officio illo, qui cum Clericis, &c. Familiares Regis esso consueverunt & praecipue ad victum & vestitum qui ad brevia scribend. secund. diversitates [Page 38] queretarum sunt intitulati & qui omnes pro victu & vestitut de proficuo sigilli in cujuscunque usus pervenerit debent honeste inveniri. But at this day there is but one Pregnatory, neither doth he exercise his Office in the form abovesaid.
The Clerk of the Crown is the chief Guardian of the matters of the Crown.
The six Clarks of the Chancery, which are the Attornies, as well for the Plaintiffe as Defendant, in every Sute in this Court, and they were heretofore Spirituall men, as may appear by the Statute 14. Hen. 8. which doth License them to Marry, with Proviso; That the Master of the Rolls may notwithstanding grant those Offices as before time, the forfeiture by reason of Marriage only excepted.
The Register, who is the penner and keeper of the Decrees, Publications, Orders and Injunctions issuing out of this Court.
The Comptroller of the Seale, who is to see and allow of all the Writs made in the Court, of whom I take it is spoken in Fleta▪ where it is said; Eleget & Rex Clericos in Officio illo expertes & legales qui formas brevium cognoscunt qui approband. admittant, defectiva omnino repellan. quibus omnia brevia priusquam ad sigillum perveniunt cum deliberatione distincte et aperte in ration. dictione litera & silliba examinare injunctum est▪ & sciend. quod nullum brenisi per manus [...]orand▪ debet ad Sigillum admit [...]i.
Two Examiners also, who do take the Examination of the Witnesses, brought to prove or disprove any thing in Sute in this Court, and to put their Depositions and Answers made to their Interrogatories in writing.
The Clerk of the Hamper, which doth receive [Page 39] the Fines, due for every Writ sealed in this Court, &c.
The three Clerks of the Pettibagge, which doe Record the Offices that are found in the Court of Wards, and have the making of divers Writs proper to their Office, &c.
The 24. Cursitors have sundry divisions of charges, for the writing of all Writs Originals, &c. in all the Shires of England, &c. Qui bus de gratia Cancellaria concessum est pro expeditione populi, brevia facere Cursoria, as is in Fleta; the which Cursitor s at this day, by Ordinance set downe by the deceased Sir Nicholas Bacon Lord Keeper, and confirmed by her Majesties Letters Patents, are authorized and appointed to make all manner of Writs of Debt, Trespasse, Accompt, Assizes, Attaints, Replevies, Conspiracies, Cui in vita Dower, and Forme▪ dons, Ejectments of Leases and custodies, Errors, false Judgments, Petitions quare impedit, Recordaries and Writs of Right, valore Marritagij, Wast, Excommunicat. Ca [...]iend. and all Writs of Covenant, and of every and all manner of Dedimus potestat. to be made upon any such Writs, and originall processe, and all other originall Writs, or of the nature of originall VVrits, that are to be made 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 [Page 40] 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. 3 [...] Officium de portandi votulis ubi Curia se divertabat priusquam in loco certo tenebatur vocat Por [...]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 c [...]gantur respondere coram aliquibus Justiciarijs [Page 41] & 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 B [...]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 be [...]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 [Page 42] 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.
- [Page 43] 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 9. E. 4. Potentia ordinatam.THe Chancellor hath two manner of powers, (viz.) Potentiam ordinatam, and Potentiam absolutā; 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 Potentia absoluta. 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.default, and in both these there must be Excommunicatio veritatis per Cancellar. 9. E. 4. 14. Excom. veritatis. Subpoena, 11. b. Conscientiae, 26. b. Jurisdict. 10.
2. The Chancery is no Court of Record, in respect 37. H. 6.that it is a Court of Conscience, and holdeth Plea upon Subpoena, but as it tryeth matter Court of Record.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.
8. E. 4.Statute proces. 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 Right.Chancery doth obey the Statute; per Cancellar. 8. E. 4. 5. This is to be understood of generall [Page 45] Statutes, in which the Court of Chancery is not expresly named. Filz. Natura brevium. Term.
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.
4. E. 4. Adjournment. 5. When the Term is adjourned by reason of sicknesse, or of any other cause; yet the Chancery is never adjourned; for the Chancery is alwaies open, 4. E. 4. 21. b. Jurisdict.
5. E, 6. Common Law. Originall. Conscience. 6. In an audita querela sued to avoid a recognizance, knowledged in the Chancery, the Chancellor ought to judge according to the course of the common Law, because the matter commeth before him by Originall Writ, but upon matters depending before him upon Bill, he may judge according to conscience▪ 5. E. 6, Con. 72. casus Rosse & Pope.
6. E. 6. Surmise. 7. The Ceancellor ought not to take precise knowledge of any surmizes, nor ought not to take away the Jurisdiction of any Court, nor the profit of any person, by credit or suggestions, 6. E. 6. Con. 74. casus Wymbish, &c.
8. By these authorities it appeareth, that [...] hath two powers, th' one ordinary, th' other absolute: By the ordinary, he holdeth plea in Latin, and the Record after issue joyned, is sent into the Kings Bench, to be tryed by Jury.
And this is wholly according to common Law, and in such it is a Court of Record; but the absolute power holdeth plea upon Subpoena, and by English Bill, and by pleading, and so it hath English Bill. Pleadings in French.been used, excepting in Anno 20. H. 6. there are some Bils in French, as appeareth by the Records of that Year, and he intermedleth only with matters [Page 46] of Conscience, and therein it is no Court of Record, and in both these powers he may hold plea out of the Terme.
CHAP. II.
What matters he may hold plea of in the absolute power.
1. THe Chancery in the absolute power, holdeth sute by Subpoena only, of such matters 39. H. 6. No remedy.as are nor remediable by the Common Law, per Prisot. capit. Justic. in Com. Banco 37. H. 6. 14. & per Jenney Apprentic. 39. E. 6. 2. 6. conscience, 6. & 4. E. 7. 4. Subp. 17.
2. It appeareth that in Anno 21. E. 4. Many Good pleaders.Subpoena's were used to be sued, and therefore Fairfax Justice said; That if the Chancellors would be good Pleaders, there would not be so many Subpoena's sued in the Chancery as there Privilege.are, for divers of those Chancery matters might be converted to actions upon the case, and so the Jurisdiction of the Common Law Courts should [...]e maintained, as for example; if one do obtain surmise false.a Supersed. of privilege upon a false surmise, an action upon the case doth lye, and there needeth no Subpoena. 21. E. 4. 23.
Secundum Conscientiam. Secundum allegatum. 3. The Chancellor must judge secundum conscientiam, & non secundum allegatum. For if the Complaintiffe suppose in his Bill, that the Defendant hath done some wrong, and the Defendant answereth nothing; yet if the Chancellor hath knowledge that he hath done no wrong Default. 9. E. 4.to the Complaintiffe, the Complaintiffe shall not recover at all, per Cancel. 9. E. 4. 14. subp. 11. b. [Page 47] consc. 26. & 6. Jurisdictions 50.
21. H. 7. 4. One sued by Bill in the Chancery, and he could not prove his Bill, but the proofe of the Defendant was better than his; Wherefore Grevill Serjeant said, That the Defendant ought to have Judgment to be discharged, and Complaintiffe to be barred; to whom it was said for the Complaintiffe, That the matter is determinable at the Common-Law, and therefore such Judgements may not be given; and Grevill said, That the Complaintiffe shall be estopped to sue so, because Estoppell. Default.it is his own doing; And when one sueth a Bill, he must prove his Bill before he shall have Judgment, although the Defendant never answered: and the Chancellor was of the same opinion▪ but yet Conesby Serjeant, said to the Defendant, That he should never have Judgment in the Chancery upon the matter, but only a procedendo. 21 H. 7. 34. H.
5. By these causes it appeareth, That the Chancellor holdeth plea but of matter not remediable by the Common Law, and that he must judge according to truth, and not upon the default of the party, as the Common Law u [...]h.
Rot. Parliam. br. 6. Note that in ancient time, where the matter was against reason, and the party had no remedy by the Common Law, it was used to sue for remedy in Parliament, and the Parliaments were holden of course, twice every year, but now most of those sutes are in the Chancery, and the Parliaments Parliam.are not so often holden, vide Rot. Parl. & Brooke Parl. 33.
Remedy without Remedy. 7. The Chancellor said, Nullus recedat▪ a Cur Cancellar. sine remedio; but Fineux said, si nul▪lus recedat sine remedio ergo nullus indiget esse confessus, but the common Law is ordained for [Page 48] many matters, and some, such as are not remediable by the Common Law, are to be relieved in the Chancery, but divers are remediable by neither; and such are in Conscience between a man Conscience Doctor & Student. without Remedy. Conscience.and his Confessor, 4▪ H. 7. 4▪
8. In many cases where a man doth wrong, yet he shall not be compelled by way of compulsion, to reform it, for many times it must be left to the Conscience of the party, whether he will redresse it or not, and in such case he is in Conscience, as well bound to redresse it, if he will save his sonle, as he were if he were compellable thereto Wager of the Law.by the Law. As if the Defendant wage his Law in an action of debt, brought upon a true debt, the Plaintiffe hath no means to come by his debt, by way of compulsion, neither by Subpoena, nor otherwise, and yet the Defendant is False verdict.bound in Conscience to pay him. Also, if the Grand Jury in Attaint affirm a false Verdict, given by a petty Jury, there is no other remedy but Proofe.the Conscience of the party: Also where there can be had no sufficient proof, there can be no remedy in the Chancery, no more than there may be in the spirituall Court, as Doctor and Student, C [...]. 18.
9. Note by these two last Authorities, that there are two sorts of [...]ges conscientiae, the one is lex conscientiae politicae, by which the Chancellor ordereth matters; In which Law of Conscience, there is respect had unto the Lawes, Customes, and State of this Commonwealth, and the other is lex conscientiae Divinae, by which there is no compulsive relief in this world, but the offendor standeth at the judgment of God only, and this in times past was said to be examinable between the Offendor and the Confessor.
[Page 49] Note also that this rule, Nullus recedat a Cancellar. sine remedio, is to be expounded that the Chancery giveth remedy for the common law matters, by granting of the Originall Writs, which are for the most part returnable into the common law Courts; and for matter of Conscience, by examining them in the Chancery it self, neither doth this rule any way extend to the Law of Conscience divine.
The Statute made in the 4. H. 4. is this▪ That whereas in Plea reall as well as personall, Stat. 4. H. 4.after Judgment given in the Kings Courts, the parties be made to come upon grievous paine, sometimes before the King himself, sometimes Judgment.before the Kings Councell, and sometimes into the Parliament, to make new answer thereunto, to the great annoyance of the parties, and in subversion of the common Law. It is ordained, That after Judgment be given in the Kings Courts the parties and their heirs be thereof quiet, untill the Judgment be admitted by attaint or by error, if there be any error, as it hath beene used by the Law, in the time of the Kings Progenitors. Stat. Anno 4. H 4. Ca. 22.
And upon the said Statute is made by Doctor and Student an inference, (viz.) There is a Statute, made 4. H. 4. cap. 22. Whereby it is Enacted; That Judgements given in the Kings Courts, shall not be examined in the Chancery, Parliament, nor else where; by which Statute it appeares, that if any Judgement be given in the Kings Courts against Conscience, that there can be had no remedy, for the Judgement cannot be remedied without examination, and the examination is by that Statute prohibited; Yet this Statute is not against Conscience: for if such [Page 50] Judgments should be examined in the Chancery before the Counsell, or in any other place, the Plaintiffes should seldome come to the effect of their sure, nor the Law should never have end; to eschew that inconvenience the Statute was made, lib. Doct. & Stud. cap. 18. Note by that Statute, and by this explanation thereof, that the Chancery may not examine, nor intermeddle after judgement is given at the Common Law, and yet the Statute speaketh not expresly of the Chancery.
CHAP. III.
Whom he may call to be assistants to him.
1 IN a Parliament holden in the 2 d. yeare of H. 4. The Commons exhibited a Petition, conceiving that the Justices of both the Benches were called into the Chancery from both their places, to help the discussing of matters traversed into the Chancery, whereby the Common Law was hindred, and the subjects damaged, and therefore they prayed; That it might be Enacted, That when any traverse of any Office is tendred in any scir. fac. awarded, that the same may be sent and returned into one of the Benches, there to be discussed and ended according to Common Law.
To which Petition the King answered, the Chancellor may do so by his Office, and let it be as it hath been heretofore, by the discretion of the Chancellor for the time being, Rot, Parl. Anno. 2. H. 4. Artic. 95.
[Page 51] Sta 4: H: 4 2. The Statute de Anno 4. H. 4. is, Let the Chancellor have power, by Authority of Parliament, to call unto him such Justices as it shall please him, and the chiefe Baron of the Exchequer Justices Chief Baron.it need be, to provide remedy from time to time, according to their diseretion. Stat. Anno 4. H. 4. cap. 9. in most of the time of H. 6. the Decrees were entred in this forme, Considerat. Temp. H. 6 Decrees fuit per cur. de Assensu Johannis Fortescue Milit. capitalis Jus [...]ic. Dom▪ Regis, ad placita tenend. & diversor. alior. Justic. & Servient. ad legem Justices▪ S e [...]jeants. in Cur. praesent. existent. quod, &c. And sometime it was De assensu omnium Justic. utriusque Banci. And sometimes of one or two Justices, petition in Cancellar. de temps H. 6.
27▪ H. 6: 37. H. 6. 7. E. 4. 22. E. 4. Exchequer Chamber Justices. In the Chancery upon a Subpoena sued, the matter being doubtfull in Law, the Chancellor adjourned the parties into the Exchequer Chamber, and called the Justices of both Benches to assist him. 27. H. 6. 13. b. consc. 4. & 37. H. 6. b. consc. & 7. E. 4. 14. & 22. E. 4. b.
The Lord Chancellor called Fi [...]z-harbert, Justice into the Chancery, to assist him in the argument of a Question in Law, arising upon a 27. H. 8. Chancery.sute of Conscience, 27. H. 8.
By these Authorities it is evident, That the Chancellor may, as well in matters conce ning the absolute, as ordinary power, call the Justices to assist him, and that either into the Chancery, or into the Exchequer Chamber.
CHAP. IV.
How the absolute power increased, and of the Statutes concerning the same.
Magna Charta. 1 THe Statute of Magna Charta is, That Nul [...]us liber homo ca [...]iatur, vel impriso [...]etur aut d [...]ss [...]is [...]tur, de libero tenemento suo, vel libertat. vel liberis consuetudinib us suis, aut ut legetur, aut [...]xuletur, aut aliquo modo disturbatur, nec super eumibimus, [...]ec super eum mittemus, nis [...] per legem terrae, Magna Charta cap. 30. This Chapter is but a confirmation of the custom of the Realme, lib. Doct. & Student, cap. 7.
Doctor & Stud. Stat. 5. E. 3 2. The Statute of the 5. E. 3. is, That none shall be attached, by any accusation, nor forejudged of life nor limb, nor his Lands, Tenements, Goods nor Chatels seized into the Kings hands, against the form of the Great charter, and the Law of the Land. Statute 5, E. 3. cap. 9.
1 [...]. E. 3. 5. Stat. 3. The Statute of 15. E. 3. is, That none shal b [...] taken, by Petition or Suggestion made to the King, or to his Councell, unlesse it be by Indictment, or Presentment of good and lawfull men where such deeds be done, in due manner, or by Proces made by writ, or originall at the Common Law, nor that none be put out of the Franchises, nor of their Free holds, unlesse he be duely brought in to answer, and forejudged of the same by way of Law, and if any thing be done against the same, it shall be redresled, and holden for non-Stature. Anno 25. Edw. 3. cap. 4th.
[Page 53] 4. The Statute 28. E. 3. is that no man shall be put out of any Land or Tenement, or taken, or imprisoned, or disherited, or put to death, without being brought in to answer by due proces of the Law. Statute Anno 28. E. 3. cap. 3.
5. By these Statutes it seemeth that neither the King, Counsell, not Chancellor, might not atach, imprison, banish, or put to death any man, nor seize his lands nor goods, or cause him to answer, but upon indictment, presentment, or originall, as in the case ensuing.
A Commission was awarded out of the Chancery 42. E. 3.in 42. E. 3. to Commissioners, authorising them to apprehend a man and his goods, and to commit him to Prison, and because this was done without Indictment, or sute of any party, or other due Proces, it is contrary to the Law, and the Commission was adjudged void, per Knivet & Thorpe, Captal. Justic. 42. Assi. 15 & crompton 67.
Stat. 37. E. 3. The Statute of 37. E 3. That though it be not conteined in the great Charter, that no man be taken, imprisoned, or put out of his Freehold, without proces of the law, yet divers people make false suggestions to the King himself, as well for malice as otherwise, whereby the King is often grieved, and divers of the Realm put to great damage and losse, against the form of the same Charter. Wherefore it is ordained, that all they that make such suggestions▪ be sent before the Chancellor, Treasurer, and his great Counsell, and that they there finde surety to pursue their suggestions, and to incurre the same pain that the other should have had if he were attached, in case that this suggestion be found evill, and then proces of the Law be made against them, without [Page 54] being taken or imprisoned, against the forme of the Great charter. Stat. 37. E. 3. cap. 18. But this punishment is qualified by another Statute.
By this Statute, the abuse of suggestions was reserved and a form of proceeding appointed, also it seemeth to allow, that the party accused may have punishment, if the suggestion be true, by these words [the same paine as the other should have had if he were attainted.]
Also, though the Statute make mention that the Petition be sent before the Chancellor, Treasurer, and Counsell, yet this hath been expounded of the Chancellor in the Chancery alone, as experience teacheth, and so was the Law taken before the making of this Statute, in Anno 12. 12. E. 3. C [...]n Pu [...]sell. E. 3. 47. b. Jurisdiction 102. notwithstanding that the Petitioners, were by the indorsement directed to the Archbishop and Counsell, calling to them the Chancellor.
The S [...]tute of Anno 43. E. 3. is, That Stat. 43. E. 3.some accused persons have been imprisoned, and others compel'd [...]o come before the Kings Counsell b [...] writ or otherwise, upon a greivous paine against the Law; It is therefore affented, that no man be put to answer without presentments before Justices, or thing upon record, or by due processe, or by writ originall, according to the old Law of the land; and If an [...] thing from henceforth be done to the contrary, it shall be void in the law, and holden for error. Stat. Anno 42. E. 3 cap. 3.
11. By this Statute it appeareth, That men had been compelled to come before the Counsell by Writ or otherwise, upon grievous paine, which imployeth the usage of the Subpoena, but [Page 55] it was all restrained by this Act.
12. The Statute of 17. R. [...]. VVhen people be compelled to come before the Kings Counsell, or in the Chancery by writ grounded upon untrue suggestions, the Chancellor for the time being, by and by after such suggestions be duly found and proved untrue, shall have power to ordaine and award damages according to his discretion, to him which is so troubled untruly, Stat. Anno 17. R. 2. cap. 6.
13. This Statute, as it giveth damages against the accuser for it, establisheth the authority of the Chancellor in trying of such sutes, for the makers of the Statute would not ordain punishment for the abusers of such suggestions, unlesse they had meant to allow of the sutes being orderly used, and this Statute seemeth to give the first and greatest allowance to the Jurisdiction of the Chancery by Subpoena, which appeareth by Petition made by the Commons, in a Parliament holden 3. H. 8. where they complained, that the VVrits, called Subpoena, et certis de causis, were never granted before the time of R: 2. the art▪ of which complaint are as followeth.
In the third year of King H 5: the Commons exhibited a Petition unto the Parliament, concerning the grievances that did arise by the Sutes of Subpoena in the Chancery and Exchequer (viz.)
THat these Writs were sued of matters determinable by the Common Law. Rot. Parl. 3. H. 6.
That they were never granted nor used before the time of Richard the second, wherein John [Page 56] Waltham late Bishop of Sarum, and the Master of the Rolls, by his subtilty caused them to be found out, and to begin, that they are contrary to the form of the Common Law.
That they are a losse and hindrance of the proffits which should arise to the King, by the Fees, Fines, Issues and Amerciaments, and other profits in other Courts, if such matters were sued and determined by the Common-Law, because no profit ariseth to the King by the Subpoena, but only 6 d. for the Seal.
That the Justices of both Benches, when they should intend their places, about Pleas and taking of Inquests, for the dispatch of the People, be occupied with the Examinations upon Subpoenas, to the great vexation, losse, and costage of the People Subjects.
That the Subjects are long time delayed from the sealing of their Originall Writs, because of the great businesse of the Chancellor about such examinations.
That in such examinations there is great clamor and noise made by men unlearned in the laws without entring any record thereof.
That such sutes will not be ended but by examination and oath of the parties, according to the form of the civil Law and spiritual Law, in subversion of the Common Law.
That if the Defendant cannot be convicted by their examinations, then they are forced to compound and agree with their adversaries; or else to abide in Ward, or upon Baile, untill they have compounded or agreed.
That if the Defendants cannot be convicted by their examinations, then they are forced to find Suerties for the Peace, which they might have [Page 57] done in their Country, without repaire to the Courts.
VVherefore they pray redresse after speciall form in the Bill limited, but this Bill passeth not. Rot. Parl. Anno 3. Hen. 5. Art. 46.
Stat. 15. H. 6. 14. The Statute made in the 15. H. 6. is, That divers persons have been grearly grieved by writ of Subpoena, purchased for matters determinable by the Common Law of this Land, to the great damage of such persons so vexed, in subversion and impediment of the common-Law, the King will, that the Statutes thereof made, shall be kept after the form and effect of the same, and that no writ of Subpoena be granted, till surety be found to [...]atisfie the party so grieved and vexed for his damages and expences (if so be the matcer cannot be made good, which is contained in the n Bill.) Statute Anno 15. Hen. 6. cap the 4th.
15. This Statute explaineth, that the making of the great Charter, and the other old Statutes, was to redresse suggestions to the Kings Counsell or Chancellor, where the matters were determinable at the common law, but exte [...]deth not to such as had no other remedy▪ For this Statute willeth that the old Statutes shall stand, and yet alloweth a Subpoena to be granted, upon putting in of sureties▪ It is proved also by this President.
Note also that there are no petitions of the Chancery, remaining in the Office of Records, of elder time then the making of the said Statute.
16. One sued by Petition to the King, who delivered [Page 58] the same to the Chancellor, and upon a 21. E. 3. Petition scire sac. the Defendant appearing, took exception, alleging; That his Sute is to recover his Freehold which ought to be at the common law, & non allocatur, because this Sute cannot be in any Court but in the Chancery, 21. E. 3. 47. jurisdict. 102.
Note also that there are no Petitions of the Chancery remaining in the Office of Records, of elder time, then the making of the Statute of the 15. H: 6. for the ancientest to oe found are in the 20th. yeare.
So that by this may appear, that the absolute power was feared, and prevented in the time of K. John, by whom the Magna Char▪ was granted, and that it was frequented and usurped in the time of Edward 3. who so often restrained the same, and it was allowed and established in the time of R: 2. who in some part made Reformation thereof.
CHAP. V.
Of what force the Decrees, and Injunctions, Executions, and Punishments of the Chancery be.
39. E. 3. Judgment Reversall Counsell. 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 [Page 59] 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.
33. H. 6. 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, Obligationhee 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, andit was ruled to be no good plea in Barre, because the obligation had lost his force by the Decree per P [...]iso [...] & 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 aw [...]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. supersed. Privilege.of Privilege, per Billing & Boef S [...]rj [...]ants, 37. Henry 6. 13. Barre 75. b consc. 4
2. If a Feoffee upon trust, refuse to performe the trust, and upon Sub [...]oe [...] ▪ in Chancery it is 37. H. 6.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 Assise. Decree. Plea.against him, this Decree is no plea in Barre to the Assize, per Laicon Serjeant. 37. H. 6. 13.
37. H 6. Judgment▪ Plea. 3. Note that Judgment was glven in the Chancery in Pleas of Debt or of Patents may be pleaded [Page 60] Decree. Court of Record. 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 37. H. 6.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.
9. E. 4. Commandement. 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.
22. E. 4. Injunction Judgment. 6. In an action of Trespasse, the Plaintiffe recovered by verd [...]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 se [...]o hurt that could come Forfeiture. Subpoena.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 [Page 61] Fleet wee will ptesently grant a habeas corpus ret Habeas Corpus.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.
2. R. 3: Judgment. 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 Notice. Imprisonment. Gate had notice of the Judgment, then at al times after such notice the Chancellor might compell him by imprisonment. 2. R. 3. 9. 2. R. 3. 9.
8. A Feoffee upon trust, was enjoyned to make estate to the Feoffee before a certain day, Subpoena 10. H. 7. Injunction100l. and he did nor perform the Injunction, and H [...]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 Subpoena. Forfeiture.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.
[Page 62] 27. H. 8. Decree Right. Person. 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 Imprisonment.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. 27. H. 8. Injunction Execution. Obligation.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. Brooke. Heire. Executor. 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.
Fleta. 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 [Page 63] 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. Consent.
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.
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 Commō law damages shold be adjudged against them both. Audita querela Damages.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 [Page 67] to Law, and the Master of the Rolls said Conscience. Common Law.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. [...]ac. against the Grantee, wherefore he pursued not his Traverse, and it was demanded of the Justices if he might have a scir [...] 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.
14. E. 4. 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 Traverse of Office.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 Mispleading.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 [Page 68] 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.
9. E. 4. 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 Obligationthe 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 A [...]prentice, because that the longer day,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 Incertainty. the sum,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 Notice the day certaintyBill 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.
[Page 69] 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. 1 [...]. Jurisd. 51. & Consc. 26.
Mispleading. 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.
14. E. 4. Bill. 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 Answer.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 Variance,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, Amend.but not upon his Bill. quod nota 14. E. 4. subp. 15.
[Page 70] 16 E. 4. Answer. 5. A Bill was ab [...]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.
16 E. 4. Answer. 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 8 E. 4. Executors Answer.would, without his Companions, but shall not be compelled thereunto. 8. E. 4. 5. Brooke, Con [...]c. 15.
CHAP. VIII.
What Costs and Damages shall be awarded in the Chancery.
1 NOte that where a Woman is onely endowed 43 E. 31by reason that her first Dower was recovered from her she shall recover no damages, 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 exhibi ed 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, [Page 71] The King delivered the Pe [...]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 Wreck, Damages, Costs.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 fatisfie the Prior and his servants for their reasonable costs imployed in saving the sh [...]p and goods. Clauss. An. 5 R. 2. R. 6. pro W. Fishlack de Bacton.
17 R. 2 Damages. 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.
Stat. 15. H. 6. Surety. 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. & [Page 72] 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 Ye [...]man coram ipso Domino Rege in Cancellaria sua personaliter constituit manuceperunt [...]ropraed. querent. quod si ipse materiam in hac supplicatione content. verum probare non poterit tunc ipsi omnia damna & expenss Damna, Expenss.quae sub poena d [...]ct. d [...]f. in hac parte sustinebit per considerationem Curtae & satisfaciet juxta formam statuti inde editi, but this is now neglected▪ Pe [...]ic. in Canc. de An. H. 6.
7 E 4. Bill [...]nsuffic, 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 Costs, Damages, Bill untruethe statute, because the statute giveth the damages [...]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 E. 4. Grant to use costs. 7. Note that the grantee of Lands, or Goods upon trust, is not compellable in consc ence to sue or [...]efend, but onely at the costs and charges of the grantor, 7 E. 4 29.
11 E. 4. Audit. que. Damages. 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.
2 [...] E 4. Injunction. 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 [Page 73] not long delayed, and now (depending the Injunction) he prayed his Judgement in the Kings Bench, Iudgement Damages.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.
21 E. 4. 10. In an Action of Trespas the Defendant was found guilty by verdict, and the Plaintiff shewed in the Common place that the Defend Common place▪ Injunctionhad 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, Dismissionand 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.
37. H. 6. Decree, Parlament Error. 1. NOte that upon a Decree made in the Chancery by sub Poena, the party may have a writ of error in the Parliament to recover the same if it be erroneous, in such sort as he may have to reverse Judgements erroneously given in the Kings Bench per Chock Serjeant, 37 H. 6. 3. Iurisd. 53. & error 95. But Brook.note that Brook abridgeth the case, that Prisot the chief Justice was of the contrary opinion, which is not to be so collected by the book, but by implication; yet may it seem that no writ Petition,of error doth lie, but a petition to the Parlament in the nature of a writ of error, but Iudgement Record. Prisot said that Judgements in the Chancery upon scire facias to repeal Parents and pleas or persons priviledged are reversable by Parlament, because they are Judgements, but the decrees are not.
27 H. 8: 2. Cholmly Serjeant said, if a decree be made in the Chancery, that the Chancellor hath not Decree, tho same Court, Parlamentpower to reverse that decree in the same Court, but it must be redressed in the Parlament, for Judgement given in the Kings Bench, Common-place or Exchequer, are not reversable in the same Court but in a higher Court.
Order, good cause. But Knightley Serjeant said▪ that a decree was but an Order taken by the Court for the time [Page 75] the which upon good causes shewed may be redressed in the same Court, hut Devistall Serjeant said, that if it might be so, there would be an incessant confusion of all causes, wherefore the Chancellor cannot reverse an absolute absolute decree,Decree, but he may reverse a Decree which is made with a quousque; for an absolute decree is much like a definitive sentence given in the definitive,spiritual Court, which cannot be redressed in the same Court, but by application into a higher Court; and the Kings Secretary interrupted him to speak any further of the authority of the appellation. 2 R. 3. patent, scirefacias error, the same court, reform. Revocation.Chancery. In Cancell. 27 H. 8. 6.
In a writ of error to reverse a Judgement of petition in Chancery, the Defendant took exception that the Judgement given in the Chancery might not be reve sed in the Chancery, being all one Court, but in the Parlament. Et non allocatur exception. per Cur▪ Cancell. 42. asss. p. 22. b▪ error. 131. It seemeth that this was not properly a reversall of the petition, but rather and is like to the case ensuing.
2 R. 3. patent, scire facias, error, the same court, reform. 18 E. 3. Stat. Merchant, Kings Bench, I the Lord Chancellor grant a patent of land and after make a patent to another of the same land, the second patent is revocable in the Chancery by scire facias, but not by writ of error, for a Court may reform, but not reverse their own Judgements, 2 R▪ 3.
A statute Merchant was acknowledged in the Chancery, the money payable Anno 16. and the party sued execution, and his writ supposed the same to be payable, Anno 14. and by this sute the Feoffee was put out of power, and he sued a writ of error in the Kings Bench, and it was awarded that he should be received to the sute, 18 E. 3. 25. error p. & 17. asss. p. 24.
[Page 76] 13 Eliz. common Law. And Plowden reciting the case saith, that if upon sutes in the Chancery according to the order of the common Law there be error, that shall be reformed by a writ of error in the Kings Bench, which is a higher Court, 13 El. Com. 393.