<!DOCTYPE ETS PUBLIC "-//UMDLPS//DTD EEBOPROOF 2.0//EN">
<ETS>
<TEMPHEAD>
<REVDESCR>
<CHANGE>
<DATE>2012-07-03</DATE>
<RESPSTMT>
<NAME>Colm MacCrossan</NAME>
<RESP>MURP</RESP>
</RESPSTMT>
<ITEM>Proofed and reviewed.</ITEM>
</CHANGE>
</REVDESCR>
</TEMPHEAD>
<EEBO>
<IDG S="marc" R="OX" ID="A93441">
<STC T="W">S4381A</STC>
<BIBNO T="oclc">38875528</BIBNO>
<VID>152381</VID>
</IDG>
<TEXT LANG="eng">
<FRONT>
<DIV1 TYPE="title page">
<PB REF="1" MS="y">
<P>THE ANTIQUITY &amp; ORIGINAL Of the COURT of CHANCERY, And AUTHORITY of the LORD CHANCELLOR OF <HI>ENGLAND</HI> BEING A Branch of Serjeant <HI>Snagg</HI>'s Reading, upon the 28 Chapter of <HI>Mag|na Charta,</HI> at the Middle Temple, in <HI>Lent,</HI> 13 <HI>Eliz.</HI> WITH His Congratulatory Epi&s;tle, (by way of Preface) to the Lord CHANCELLOR <HI>Hatton,</HI> in 29 <HI>Eliz.</HI></P>
<Q><HI>Major haeredit as &agrave; Legibus, quam &agrave; paren|tibus.</HI> <BIBL>Cicero.</BIBL></Q>
<P><HI>LONDON,</HI> Printed for <HI>Henry Seile</HI> over again&s;t Saint <HI>Dun&s;tans</HI> Church in Fleet&s;treet, 1654.</P>
</DIV1>
<DIV1 TYPE="dediation">
<PB REF="2">
<PB REF="2">
<HEAD>To the Right Honoura|ble the Lords Commi&s;sio|ners for Cu&s;tody of the Great Seal of <HI>England.</HI></HEAD>
<OPENER><SALUTE>My Lords,</SALUTE></OPENER>
<P>_WHat an eminent and a learn'd Profe&s;sor of the Laws of <HI>Eng|land</HI> heretofore in Manu|&s;cript pre&s;ented to an Ho|nourable Predece&s;&s;or of your Lord&s;hips at his fir&s;t en|trance to that high place, Be
<PB REF="3">plea&s;ed to give a Pui&s;n&egrave; leave to pre&s;ent in print unto your Lord&s;hips at your In|ve&s;titure. A &s;mall fragment, I confe&s;s: yet &s;uch, I hope, as will appear neither un|worthy of your approbation, nor improper for your Patro|nage and Protection; The &s;ubject-matter, as well of the Authors Epistle, as of his Readers ob&s;ervations, being a little Map and Modell of your Lord&s;hips great Office and Juri&s;diction, and rarely
<PB REF="3">to be found in our printed Authorities; which, perad|venture, may be the Rea&s;on, why that antient and excel|lent Judicatory hath lately met with &s;uch great Envy and Oppo&s;ition; Learning having no other Enemy but Ignorance, and mo&s;t Men being naturally inclin'd to apprehend ami&s;&s;e of that they comprehend not; Though it will not be denied, but that any Court of Iu&s;tice in <HI>England</HI> may admit of
<PB REF="4">Regulation. My Lords, I &s;hall not &s;ay any thing for the Piece, it &s;peaks Rea&s;on, and can be&s;t &s;peak for it &s;elf. I &s;hall only crave your <HI>Ho|nours</HI> pardon for this great pre&s;umption of</P>
<CLOSER><SIGNED>Your Lord&s;hips Mo&s;t humbly devoted, <HI>T. L.</HI></SIGNED></CLOSER>
</DIV1>
</FRONT>
<BODY>
<DIV1 TYPE="dedication">
<PB N="1" REF="4">
<HEAD>To the Right Honourable Sir <HI>Chri|&s;topher Hatton</HI> Knight, Lord Chancellor of <HI>England, Robert Snagg</HI> an Apprentice of the Com|mon Laws of that Realm, wi&s;h|eth all increa&s;e of Grace, Mercy, and Peace, Honour, and Pro&s;peri|ty in this World, and perfect Fe|licity in the World to come.</HEAD>
<P>_WHen (Right Honou|rable) it came to my cour&s;e to Read in the Middle Temple, after I had there continued a Pui&s;n&egrave; full 20 years, and more, (for &s;o they
<PB N="2" REF="5">are called till they Read) and then I was to become an Ap|prentice of the Common Law, and in my Reading to deliver to my Fellows of that Hou&s;e, &s;uch Notes as I had collected in the cour&s;e of my Study, that I thought to be mo&s;t profitable to be opened for the exerci&s;e and u&s;e of Law in our time; And whe~ I had looked into &s;ome o|ther mens Travels that had Read before me, and other Writers, and found many &s;everal Con|ceipts, and &s;undry Incertainties touching the Commencement of our Law, and whence it came, and what it was; and I thought it as meet (as <HI>Tully</HI>
<PB N="3" REF="5">teacheth) that it &s;hould be un|der&s;tood, <HI>Quid e&s;t de quo di&s;putetur,</HI> as to enter into argument of par|ticular ca&s;es which were to be decided thereby: which is the manner of that exerci&s;e, well known to your Lord&s;hip, as one that entred by that Gate into the happy and honourable Cour&s;e of life, that God of his great Goodne&s;s hath mo&s;t graciou&s;ly led you in, from Grace to Grace, and Honor to Honor, to the highe&s;t Honor and mo&s;t ab|&s;olute Office that is in <HI>England</HI> under her Maje&s;ty, who is im|mediate in all Dignity, Honor, and Authority under God in this Land. But when I had con|&s;idered,
<PB N="4" REF="6">according to my capaci|ty, of all the Reports that be in print of the practice of the Law, and of &s;ome other that I have, I could find no certainty of the Commencement of it, what it was, nor whence it came. For &s;ome &s;aid, it was the Cu&s;tom of <HI>Normandy</HI> that the Conquerour brought in, and placed here; Some, that it came out of <HI>Ger|many,</HI> brought by tho&s;e people that were called <HI>Angli,</HI> that came hither to inhabit, of who~ this Land took the name of <HI>Angolia,</HI> and the Law the name of <HI>Lex Angliae,</HI> which &s;avou|red more of Rea&s;on, that is the ground of our Law; And
<PB N="5" REF="6">&s;ome imagined one thing, and &s;ome another; But that great learned Judge Mr. <HI>Littleton,</HI> in his fir&s;t Book &s;atisfied me, that it could neither be the Law of <HI>Normandy,</HI> nor of any other Country in <HI>Germany,</HI> nor el&s;e|where, but peculiar to this Land; For he &s;aith, <HI>That Tenant by the Courte&s;y of</HI> England <HI>is to hold the Land, if his Wife die, during his life, by the Law of</HI> England, <HI>&amp; is called Tenant by the Courte&s;y of</HI> England, for this, that this is not u&s;ed in any other Realm, but only in <HI>England;</HI> whereof I collected, that if the &s;ame Law had been in a|ny other Realm, that Tenure by the Law had likewi&s;e been there.</P>
<PB N="6" REF="7">
<P>And I found in &s;tories, that pre&s;ently after the Conque&s;t there were divers In&s;urrections not only of the people, that did ri&s;e without Rea&s;on, but of di|vers of the Nobility of the be&s;t &s;ort, who endured Famin, (and that &s;o far as they did ear the vi|le&s;t vermin) yea, and the utter overthrow of their Hou&s;es and Po&s;terity; And all their cau&s;e was, but to be re&s;tored to their antient Laws &amp; Liberties. And that civil di&s;&s;ention continued long for that cau&s;e, and the No|bility, without re&s;titution of them, would not yield to their Kings, as men that &s;hewed them&s;elves to be made of the
<PB N="7" REF="7">right <HI>Engli&s;h</HI> mould, ready to endure any pain and lo&s;s, rather than the lo&s;s of their native Laws &amp; Liberties, and to &s;ub|ject them&s;elves to the Will-go|vernment of their new Lords, and new Laws, that the Con|queror brought in, and the plea|&s;ures, and oftentimes the di&s;|plea&s;ures of their Kings, who did all, and took all, as plea&s;ed them&s;elves, under pretence of their Prerogative; which Pre|rogative rightly u&s;ed, and truly under&s;tood, is a thing mo&s;t ho|norable to the Crown, and not prejudicial to the Law, nor hurt|ful to the Realm, nor any Sub|jects lawful Intere&s;t, or Liberty.</P>
<PB N="8" REF="8">
<P>But that Will-government in the Kings, di&s;contentment in the Nobility, &amp; continual Wars within the Realm, continued until K. <HI>Henry</HI> the 3. who (being by that time by divers de&s;cents purged and purified by our <HI>Eng|li&s;h</HI> Air, and by Education after the order of our Nation, and &s;o become <HI>Engli&s;h,</HI> and of a better nature than the Aliens, and their off&s;pring) of love to his &s;ubjects, was content to allow <HI>Engli&s;h|men</HI> their <HI>Engli&s;h</HI> Laws; And thereupon, the 10^t^h day of <HI>Febr.</HI> in the 9^t^h year of his Reign, granted under his great Seal the <HI>Great Charter,</HI> thereby to re&s;tore the Laws of the Land, the Li|berties
<PB N="9" REF="8">of the Subjects, and to li|mit his Prerogatives, &s;o, as they &s;hould be prejudicial to neither.</P>
<P>But after, kindled (as it &s;eem|ed) by the heat of his youth, he continued not in that good mind, but infringed the &s;ame <HI>Charter,</HI> and cho&s;e his Will for his direction, (as others his late Predece&s;&s;ors had don) and left that Law of the Land, which he had granted to be Re&s;tored and Revived. Whereupon 40 years wars after that followed between him and his Barons, (as they be generally Termed, though the greate&s;t Earls, &amp; o|thers of the chief of the Nobili|ty, were Partners therin) which
<PB N="10" REF="9">were never fully appea&s;ed, until the Parliament was holden at <HI>Marlebridge</HI> about the 52 year of his Reign, when and where that <HI>Charter</HI> was enacted in that Parliament, and thereby the an|tient Laws and Liberties revi|ved and re&s;tored; which <HI>Charter</HI> &s;o enacted, &s;ithence hath been by all Kings &amp; Queens &s;olemn|ly &s;worn at their Coronations to be kept, and &s;o hath been &s;a|credly Ob&s;erved to this day, un|le&s;s &s;ome Forgetfulne&s;s in &s;ome Kings, and Ignorance in &s;ome Officers, hath infringed the &s;ame. But now, by Gods ble&s;|&s;ing plentifully powred upon us, it is in &s;ull U&s;e, to the great
<PB N="11" REF="9">Comfort of all good Subjects, and immortal fame of her mo&s;t Excellent Maje&s;ty.</P>
<P>And in the 28 Chapter of that <HI>Charter</HI> and Act of Parliament, I find it &s;et down in La|tine, in excellent and &s;ignificant brief words, to this effect, <HI>That no Freeman &s;hall be dealt with either in Life, Liberty, Lands, Liberties, Body or Goods; nor that the King would &s;end for any, nor proceed a|gainst any,</HI> Ni&s;i per legale judi|ciu~ parium &s;uorum, aut per le|gem terrae; <HI>And that the King would not defer, deny, nor &s;ell Ju|&s;tice, or Right to any;</HI> which is, as it were, the &s;um of all the <HI>Char|ter</HI> &amp; Act, and the whole mark
<PB N="12" REF="10">that was &s;hot at, to revive the antient Laws, and re&s;tore the antient Liberty and Liberties to the Subjects.</P>
<P>Wherein I noted, That, both how far the Prerogative &s;hould go, and what is Right and Ju|&s;tice common to all, is referred to be decided <HI>per legem terrae;</HI> what therefore that <HI>Lex terrae</HI> was, which was &s;o carefully &s;ought, &amp; dearly bought with &s;o much Noble blood, which was then thereby revived, I thought if I could find, I had that I &s;ought for.</P>
<P>And therfore I thought it be&s;t to begin with &s;uch Reporters, or Writers of our Law, as writ
<PB N="13" REF="10">neare&s;t the time of that <HI>Char|ter,</HI> and looked into Mr. <HI>Bracton,</HI> that wrote about 9 <HI>H.</HI> 3. the very time of the fir&s;t granting of the <HI>Charter,</HI> who was one of the chief that were appointed (as it is delivered by Traditio~) to find out again the antient Laws of the Land, when the King was plea&s;ed to put the~ a|gain into the force that they had lo&s;t by the Conque&s;t. And in his Book in print, I find it thus written, <HI>Cum autem fer&egrave; in om|nibus Regionibus utatur legibus, &amp; jure &s;cripto, &s;ola Anglia u&s;a e&s;t in &s;u|is fmibus jure non &s;cripto, &amp; con|&s;uetudine; in ea quidem ex non &s;crip|to, jus venit quod u&s;us comprobavit.</HI>
<PB N="14" REF="11">And after that, he &s;aith in the next Chapter the&s;e words, <HI>Le|ges Anglicanae fuerunt approbatae con&s;en&s;u utentium, &amp; Sacramento Regum confirmatae.</HI> And Cap. 3. <HI>Con&s;uetudo more utentium approba|ta vicem Legis obtinet, &amp; con&s;ue|tudinis non vilis e&s;t authoritas.</HI></P>
<P>And he &s;aith further, Lib. 1. Cap. 8. treating of that Law which he calleth the Cu&s;tom of the Land, <HI>Lex autem facit Re|gem; attribuat igitur Rex Legi, quod Lex attribuit ei, id e&s;t, dominatio|nem &amp; pote&s;tatem; nam ubi domi|natur voluntas, &amp; non Lex, ibi non e&s;t Rex.</HI> Whereof may be aptly collected, that before this Law was there was no King here in
<PB N="15" REF="11">this Land; for if the Law of the Land made the King, there was none before it; But Kings we find by all Stories to be of a great antiquity here in this Land, and &s;o by con&s;equence the Law mu&s;t.</P>
<P>And then looking for that matter in the Reports of the Law, I found a Book Ca&s;e, in 2 <HI>H.</HI> 4. <HI>fol.</HI> 18. That it was a|greed by the Judges, that the Common Cu&s;tom of the Realm was the Law of the Land; And in that point look|ing further, I found all Books of Law agree; which Judge|ment of the Judges from time after the Enacting of that Char|ter,
<PB N="16" REF="12">and the judgement of Mr. <HI>Bracton</HI> before at the time of the penning of the <HI>Charter,</HI> con|curring in one, &s;atisfied me, That <HI>Lex terrae,</HI> which is there &s;et down, and thereby revived, and now holden by the great <HI>Charter,</HI> whereto every King and Queen is &s;worn at the Co|ronation, was the antient Cu|&s;tom of the Land, that all Peo|ple of &s;everal Nations that at &s;e|veral times inhabited here li|ked be&s;t of, as fitte&s;t for this place, whereby the Kings lived in greate&s;t Honor and Ea&s;e, and the People in greate&s;t Quietnes and Freedom, wherfore there|to the Kings were content to
<PB N="17" REF="12">bind them&s;elves, and the Sub|jects could abide no other. And &s;o I drew that travel to this conclu&s;ion, That our Law is the antient Cu&s;tom of the Country or Land, and of that Antiquity, that there is no Re|cord nor Matter that can &s;hew the Commencement thereof, nor any man can tell it, but it was before all memory of Man that remaineth in the world, con&s;i&s;ting of Maxims, General Grounds, &amp; Rules, received, ap|proved &amp; allowed as ju&s;t, good, &amp; nece&s;&s;ary for the Governme~t of this Land, begun when this Land fir&s;t became a Common|wealth under a King, and ever
<PB N="18" REF="13">&s;ithence u&s;ed, approved, and al|lowed, from time to time, time out of mind of Man, and by ex|perience found in all Ages to be fitte&s;t for the place, and to be nece&s;&s;ary, hone&s;t and profitable both for the Prince and People, and being &s;o found fit and con|tinued, it became a Cu&s;tom to be ob&s;erved of all that &s;hould inhabit, or remain here, and when it was lo&s;t by the Con|que&s;t, it was again re&s;tored by Common con&s;ent of Parlia|ment, as was nece&s;&s;ary it &s;hould be; for that the force it had by Cu&s;tom and U&s;age was inter|rupted by the Conque&s;t; So as the Cu&s;tom of the Realm revi|ved
<PB N="19" REF="13">by Parliament, is the Law of the Land, which is the <HI>Genus</HI> to all; And the Parliament and the Acts thereof, and the Prero|gative of the Prince, and the particular Cu&s;toms of &s;everal Counties, Cities, Boroughs, &amp; Manors, be all but <HI>Species</HI> of it: For that General Cu&s;tom of the Realm, which is the Law of the Land, authorizeth the Par|liament, limiteth the Preroga|tive, alloweth and di&s;alloweth of Private Cu&s;toms, and what|&s;oever in <HI>England</HI> is to be allow|ed, and not to be allowed, as they are con&s;onant or di&s;&s;onant to the rea&s;on thereof.</P>
<P>But when I had found out
<PB N="20" REF="14">this by Reading, then looking into the cour&s;e of Practice, I found the Lord Chancellor fit|ting highe&s;t in <HI>We&s;tmin&s;ter-Hall,</HI> and had mo&s;t to do, &amp; bare the greate&s;t rule; and yet gave his judgement (as it &s;eem'd to me) as it plea&s;ed him&s;elf, what&s;oe|ver the Law of the Land re|quired in the ca&s;e. And &s;eeing Men of great Honor, Learning, &amp; Integrity &s;it in that place, and &s;o judge. I was in a maze, not finding at the fir&s;t how it could &s;tand with the <HI>Great Charter,</HI> that referred all judgement <HI>ad Legem terrae,</HI> and how any thing different from that Law could be allowable in the Land, &s;ith
<PB N="21" REF="14">the Kings were all &s;worn to maintain the <HI>Charter</HI> that re&s;to|red the Law, and his Lord&s;hip and all the Judges were placed by the King.</P>
<P>But when I looked further, and peru&s;ed it well, I found, that the Cu&s;tom of the Land, which is that <HI>Lex terrae,</HI> allowed of that Authority al&s;o, as of the re&s;t; and that it was al&s;o a <HI>Species</HI> of that <HI>General,</HI> the Law of the Land, which was the ant ent Cu&s;tom of the Realm; And that it was of nece&s;sity to be in that &s;ort: For that the Common Law, Cu&s;tom of the Realm, or Law of the Land, (term it as they li&s;t) &s;tanding of General
<PB N="22" REF="15">Grounds, Rules, and Maxims, it was impo&s;sible but &s;ome par|ticular Ca&s;es mu&s;t fall out, that either the General Rule where|on it lighteth &s;hould be too bard for it, or too &s;hort to reach it; And therefore was it of ne|ce&s;sity (to the end that all Ca&s;es might be judged according to Right and Equity,) to have one under the Prince, above the re&s;t, to have &s;uch an Authority that might judge <HI>&s;ecundum ae|quum, &amp; bonum, &amp; &s;anam con&s;ci|entiam,</HI> in the&s;e ca&s;es, and to mi|tigate where the Rule of Law would light too hard, and to &s;upply where it came too &s;hort, and to the end that he might
<PB N="23" REF="15">have the &s;ending forth of Com|mi&s;sions to authori&s;e Judges, &amp; of Precepts from the Prince to produce them to judgment that were to be &s;ued; And to be of e|&s;pecial Tru&s;t with the King for keeping his <HI>Great Seal,</HI> &amp; ordering thereof, &amp; in &s;uch other things as appertains to that office.</P>
<P>Wherefore entring into con&s;i|deration thereof, I found that Office al&s;o to be limited by the Law, and erected thereby; and therfore I gather'd divers Notes concerning the &s;ame, to An&s;wer &s;uch Objections as might in that re&s;pect be objected again&s;t that <HI>Charter</HI> and <HI>Statute,</HI> and the Law of the Land; which lying
<PB N="24" REF="16">by me when your Lord&s;hip was placed in that great Office, whom, I profe&s;s, I ever affected from my fir&s;t comming to the <HI>Temple</HI> more tha~ others (though then I knew, and was known of many of excellent Gifts and Natures;) And after your Honor was called to the Court by her Maje&s;ty, I coming &s;ometimes to you from my old good Lord, &amp; dear Friend Sir <HI>Edward Saunders,</HI> late L. Chief Baron, I found you mo&s;t gracious and favourable unto me, and now lately recei|ved &s;uch honorable u&s;age from you, as I could not have de&s;ired; when &s;ome of good and hono|rable Nature, &amp; excellent good
<PB N="25" REF="16">Di&s;po&s;ition dealt hardly with me, (as I thought) not affording me a good word, for a dutiful heart ever born them, and &s;ome hard pains performed for the~; (which God, for &s;ome offence committed by me, but not a|gain&s;t them, laid on me,) yet your Lord&s;hip, of whom I had never de&s;erved any thing, nor &s;hewed any Duty to, (except God revealed to you the Inten|tion and Affection of my heart) defended my poor credit (as <HI>I</HI> heard) to my great Comfort, and &s;pake well of me.</P>
<P>Wherefore to &s;hew my &s;elf thankfull, (for an ungratefull Man I have ever hated as a De|vil,
<PB N="26" REF="17">and loathed as a Mon&s;ter) I bethought me how to pre&s;ent &s;omething to your Honour, as a token of my dutifull mind, &amp; heart tyed to you; But among&s;t things of price, I could find no|thing that was not too dear for me to compa&s;s, or too mean for you to receive, as a pre&s;ent, and that to deal that way, was but to pour water into the Sea, &s;o plentifully (God be ble&s;&s;ed for it) he hath ble&s;&s;ed you with a|bundance; And yet &s;eeing your Honor had &s;o well u&s;ed me, for nothing, but of your honoura|ble Nature, I gathered hope, that you would accept &s;ome|thing, (were it never &s;o &s;mall)
<PB N="27" REF="17">in good part at my hands, who&s;e heart, and what he hath, is ever at your Commandement; And taking example by the poor Gar|diners, that pre&s;ent flowers to the greate&s;t Princes, that have no|thing in them but a &s;mall &s;mell, and no profit, &amp; yet are well ac|cepted of their gracious minds; I thought good to compo&s;e my Papers together that concerned the Authority &amp; Exerci&s;e of your Lord&s;hips Office, and to pre&s;ent them unto you; which, though too &s;imple to inform your Wi&s;|dom of any under&s;tanding, yet at &s;ome vacant time may &s;erve to recreate your &s;elf in reading; as the plaine&s;t things, &amp; not the gra|ve&s;t matters, are meete&s;t for that
<PB N="28" REF="18">purpo&s;e. But my good Lord, with the&s;e papers I pre&s;ent unto you my &s;elf, &amp; my poor &s;ervice to be altogether at your Comman|dement, with faithful promi&s;e, That if my life may hold one of your fingers fro~ hurt, I will lay it down to help it, or to do you any good; &amp; while I live will &s;peak well of you to men, as one that de&s;erveth it of all. &amp; pray for you to God, that he may &s;till ble&s;s you with increa&s;e of his excellent Graces, much Honor, &amp; perfect a&s;&s;urance of everla&s;ting joy; And that her Ma^t^i^e and this Land may long enjoy you, for the mainte|nance of the Laws and Liberties thereof, and the relief of the op|pre&s;&s;ed Subjects.</P>
</DIV1>
<DIV1 TYPE="text">
<PB N="29" REF="18">
<HEAD>Notes touching the Office and Au|thority of the Lord Chancellor of <HI>England;</HI> Collected out of a Rea|ding made in the Middle Temple, in <HI>Lent, Anno Dom. 1570.</HI> upon the <HI>28</HI> Chap. of the Great Charter of <HI>England,</HI> granted under the Great Seal in the <HI>9th</HI> year, and Enacted and made a Statute at <HI>Marlbridge,</HI> in <HI>52</HI> year of King <HI>Henry</HI> the Third.</HEAD>
<P>_WHen the Reader had found, That, by his Statute, <HI>No Man might be arre&s;ted, impri&s;oned, or dealt with|all in his Per&s;on or Liberty, or put out
<PB N="30" REF="19">of his Freehold, Free Cu&s;toms, or Li|berties; Nor that the King would &s;end forth again&s;t any, nor proceed upon any, but by the lawful trial of their Peers, or the Law of the Land; And that the King would not &s;ell, de|ferr, or deny Ju&s;tice or Right to any; And that that Law of the Land was the Antient cu&s;tom of the Country, which hath continued ever &s;ithence there was a King here, and that by it the King was made, and had his power and preheminence; And that it was confirmed by the Oath of Kings before the Statute, and &s;worn to be ob&s;erved by all the Kings &s;i|thence; And that all Judges are bound to try their doubts, and Judge their Cau&s;es accordingly, how&s;oever
<PB N="31" REF="19">their private knowledge, or Con&s;ci|ence leadeth them;</HI> Then both by Practice, and by the Authority of Books, looking into the cour&s;e of the proceedings in the Chancery, by the Lord Chan|cellor of <HI>England,</HI> from time to time, it &s;eemed as though that Office had been be&s;ides the Law, erected out of the ab&s;olute Authority that the Conquerors claimed; and that it hath been continued from time to time a|gain&s;t the Law, and the Provi|&s;ion of that <HI>Charter</HI> and Parlia|ment, as it were by a Preroga|tive above the Law; for that he is not tyed to any Form of Tri|al of any point of Fact that fal|leth
<PB N="32" REF="20">out doubtfull before him, as other Judges be, but may ex|amine Witne&s;&s;es as he plea&s;eth, and when he plea&s;eth, to inform his Con&s;cience, &amp; al&s;o examine the parties by Oath or other|wayes, and to proceed as it &s;hall &s;eem be&s;t to his Wi&s;dom, to beat out the Truth, as it &s;eemeth good to him in his privat judg|ment; And that his Lord&s;hip may Order &amp; Decree the Cau&s;e, as it &s;eemeth to him to agree mo&s;t with Equity and Con&s;ci|ence, how&s;oever the Law is in the Ca&s;e; and to Impri&s;on the party if he will not be ruled by him, and forbear the benefit of Law, in every thing that the
<PB N="33" REF="20">Lord Chancellor thinketh to be Uncon&s;cionable: So as it &s;eem|ed upon the fir&s;t object, for that his Lord&s;hip is neither bound to the trial, nor the judgement that the Statute appointeth to be ob&s;erved (as it &s;eemed) upon the Letter, that his Authority is above Law, or be&s;ides Law, &amp; &s;o the <HI>Great Charter</HI> of <HI>England</HI> no further holden than it plea|&s;eth the Lord Chancellor of <HI>Eng|land.</HI> Al&s;o it appeared by pra|ctice, That no Man hath Juri&s;|diction to judge according to the Law, before he hath &s;ome Grant or Commi&s;&s;ion from the King or Queen out of the Lord Chancellors Office, under the
<PB N="34" REF="21"><HI>Great Seal</HI> that is in his keeping: And al&s;o by cour&s;e of the Com|mon-law (&s;aving &s;ome particu|lar pre&s;criptions in &s;ome parti|cular Courts) the Judges can|not hold plea in any Cau&s;e, un|til his Lord&s;hip &s;end them it by an Original Writ framed in the Chancery, retornable before the Judges by his Lord&s;hips ap|pointment.</P>
<P>But when it was well con&s;i|dered, That the <HI>Charter</HI> and <HI>Statute</HI> of <HI>Magna Charta</HI> was, that none of the&s;e things &s;hould be done, but according to the Law of the Land; And that e|very King was &s;worn to ob|&s;erve it, and that the Lord
<PB N="35" REF="21">Chancellor is appointed by the King to his Office; It was con|ceived, that the Law of the Land appointed the&s;e things to be thus done by his Lord&s;hip, for &s;ome nece&s;&s;ary cau&s;es known to them that fir&s;t in|vented the Law, and &s;o that great Office, and the <HI>Great Char|ter,</HI> and the Law of the Land might all &s;tand together.</P>
<P>Wherefore then was &s;ought for, when that great Office of Chancery was erected, by whom, and for what cau&s;e? and it was found to be erected by the In&s;titutors of the Com|mon Law, as a Member there|of, of nece&s;sity to ob&s;erve order
<PB N="36" REF="22">in making of Judges, direction of Sutes, and to relieve and &s;up|ply in tho&s;e Ca&s;es, where the Judges by the general Grounds and Rules of Law, could not give competent Remedy by Law, according to Con&s;cience and Equity, as &s;hall hereafter be more plainly &s;hewed; And &s;o his Lord&s;hip, nor his Office, no derogation to the Law of the Land; but his Office a member, and he a Judge there|of, without whom the Law could not have the perfection, order, and due honour that it hath; For the better perceiving whereof, it was Noted,</P>
<P>Fir&s;t, that tho&s;e (the Kings,
<PB N="37" REF="22">Nobles, and Commons, who|&s;oever, and when&s;oever they were) that In&s;tituted the Law of the Land, did &s;ee that it was be&s;t to make it &s;o, as it might &s;tand of General Grounds and Rules, that might comprehend all particular Ca&s;es that &s;hould fall out, and to bind all that were in one Ca&s;e, to one judg|ment, without re&s;pect of per|&s;ons, or other Circum&s;tances; or el&s;e the Law could not di|rect the Judges, how they &s;hould proceed in judgement: For if con&s;ideration of the per|&s;on, or other circum&s;tance, might have given a &s;cope to the Judges, to judge by one Rule,
<PB N="38" REF="23">one Ca&s;e one way, and another another way, the Judge might have made of the Golden Rule of the Law, a Leaden Rule, to bend at his will, and &s;o con|fu&s;ion would have followed, and infinite inconveniences; for avoiding whereof, they made the Rules to reach all per&s;ons alike, according to Ju|&s;tice, which regardeth the per|&s;on of no Man in judgement.</P>
<P>Then, they did &s;ee, that ma|ny would be over-reached; for &s;ome were too &s;imple, and would tru&s;t untru&s;ty per&s;ons, and be circumvented and were meet therefore to be holpen; Some would fall into the la&s;h
<PB N="39" REF="23">of the Law ignorantly, and therefore not to be puni&s;hed as tho&s;e that offended of Malice; Many might craftily over reach their Neighbours, by getting the better end of the &s;taff; And &s;ome by &s;trength bear them down, if by &s;ome extraordina|ry Authority the weaker were not upholden, and the &s;imple provided for, and the &s;ubtill prevented. For in many Ca|&s;es men might offend &amp; wrong their Neighbours in &s;ubtil &s;ort, and be wronged by hap, or &s;implicity, or ignorance, and yet the General Rule of the Law could not fully reach or relieve them, that were &s;o over|reached
<PB N="40" REF="24">or circumvented.</P>
<P>Wherefore the In&s;titutors of the Law found it to be a thing of nece&s;sity, to tie the Judges to follow the Law in judge|ment in all Ca&s;es generally a|like, as the Ca&s;e required: and yet to con&s;titute one Supreme Judge further tru&s;ted than the re&s;t, that might have an Autho|rity ab&s;olute and extraordina|ry, to &s;upply and reform tho&s;e particular Ca&s;es, that might happen as afore&s;aid, according to Equity and good Con&s;ci|ence, and to bind the parties not to follow Law, where by Law they might get more by &s;ubtil|ty, or the others &s;implicity,
<PB N="41" REF="24">than Con&s;cience would.</P>
<P>Here grew an Objection, That it was a di&s;honour to the Law to have the&s;e wants, by this great Man to be thus &s;up|plyed; for that it &s;hewd, that &s;he had not &s;ufficiency and cer|tainty in her Grounds and Rules.</P>
<P>But this is nothing, For there is no Law in any Nation, but particular mi&s;chiefs have grown upon it; nor ever any Art or Science hath been &s;o exqui&s;itely &s;et down, but di&s;|putable Que&s;tions have been found in it. And that it cannot be otherwi&s;e, one example may &s;erve; <HI>Moy&s;es</HI> that was
<PB N="42" REF="25">the Law-giver to Gods Peo|ple, and delivered it him|&s;elf by In&s;piration, was at the wall, we &s;ee, in his own Books, in divers Ca&s;es that happened, both in the Political Law, who &s;hould inherit, and the Ceremonial Law, touch|ing the uncleane&s;&s;e that came by touching a dead body; and he was driven to refer it to God to be decided, and could not decide it him&s;elf by the general Rule of the mo&s;t perfect Law that ever was given to any peo|ple. Then if <HI>Moy&s;es</HI> that man of God found &s;ome doubts that he could not decide, in that Law delivered by him&s;elf;
<PB N="43" REF="25">Good Judges and learned may find &s;ome Ca&s;es, that by Law they can hardly find a good provi&s;ion for, but leave it to &s;uch as God &s;hall appoint to ut|ter his Will by in Ca&s;es of Con|&s;cience, &s;ith by Law they are not otherwi&s;e provided for.</P>
<P>Then it was Noted whereof his Lord&s;hip hath his name of <HI>Dominus Cancellarius Angliae,</HI> Lord Chancellor of <HI>England;</HI> wherein all agree, that he is called <HI>Cancellarius, &agrave; Cancellando.</HI> But what he may Cancell, whereby he had that honour, hath been doubted. Some have &s;aid, that he had authori|ty <HI>Cancellare iniquam Legem Com|munem,
<PB N="44" REF="26">&amp; judicare &s;ecundum Con|&s;cientiam.</HI> But that hath no rea|&s;on, and was rejected; for it is ab&s;urd, that &s;ith the Law hath made him a Judge of Law, and his Office a member of the Law, and made thereby, (as as &s;hall be plainly proved) that the Law &s;hould give Authori|ty to deface or Cancell her &s;elf, or that his Honour &s;hould de|face that wherby he &s;itteth, and hath his Authority. And to that end was cited Mr. <HI>Bractons</HI> &s;ay|ing, <HI>Lex facit Regem, attribuat igi|tur Rex Legi, quod Lex attribuitei, id e&s;t, dominationem &amp; pote&s;tatem;</HI> And thereupon it was conclu|ded, <HI>&agrave; fortiore,</HI> If the King, that
<PB N="45" REF="26">hath an Authority by Preroga|gative above the Law in many ca&s;es, as to pardon and acquit by Mercy, where the Law of Ju&s;tice condemneth, mu&s;t at|tribute to the Law Dominion and Power: the Lord Chancel|lor, though he hath an Autho|rity be&s;ides Law, and yet al|lowed by the Law, is to at|tribute Dominion and Power to the Law in all that he can, for that it made him an Officer in &s;o high degree, and therefore he may not Cancell or deface it. Which point, that he is made by Law, and hath his Authority therby, is afterwards fully proved. And it is to be
<PB N="46" REF="27">Noted, That his Lord&s;hip by his Ab&s;olute power cannot &s;tay the Cour&s;e of Law, but onely bindeth the per&s;on not to fol|low the Law in any Uncon|&s;cionable Cour&s;e. This may &s;erve to &s;hew, that it was not &s;aid of Cancelling the Law; for in tho&s;e Ca&s;es of Con&s;ci|ence it is found by experience, that the Law will take her cour&s;e if the party call upon it, though the Lord Chancellor hath otherwi&s;e ordered the Cau&s;e.</P>
<P>But his Lord&s;hip hath his Name of Cancelling the Kings Letters Patents, which is a thing of as great Honour to
<PB N="47" REF="27">his Lord&s;hip and the Law, as th'other had been of Di&s;honor, and Di&s;grace to both; where|in it was Noted, That the Let|ters Patents of the Prince once pa&s;&s;ed the <HI>Great Seal,</HI> do bind both his or her Maje&s;ty, their Heirs and Succe&s;&s;ors, and all Subjects, yea &s;o far, as the King or Queen cannot call them in, if they find them unfit, nor any Subject can gain&s;ay them, if they be not ju&s;t. Yet by Law if Letters Patents be pa&s;t the <HI>Great Seal</HI> in deceipt of the King or Queen, the Judges by the Law are to adjudge it undue, and not to bind the King or Queen in that re&s;pect, wherein
<PB N="48" REF="28">they were deceived; but yet they mu&s;t leave it under Seal, and cannot deface it. But if any Letters Patents pa&s;s the <HI>Great Seal,</HI> injurious to any Sub|ject, or prejudicial to the Law, the Lord Chancellor as a Judge of Law, (and not by his ab&s;o|&s;olute Authority) by his Ordi|nary power, and by the cour&s;e of the Common Law is to judge of it which proveth that the Law, and not Prerogative giveth him that power. For he is to hold plea of it by cour&s;e of Law, and to call the party in|tere&s;&s;ed in it by proce&s;s of Law, and &s;o proceed accor|ding to the Law, and repeal it
<PB N="49" REF="28">by Judgement, if it be found in Law to be injurious. And then the Lord Chancellor may Cancell it, and pull the Seal fro~ it, and deface it; which nei|ther the King or Queen by Pre|rogative, nor any other Judge of Law, nor other Lord of <HI>England</HI> can do, but him&s;elf, who only hath that Authority. Wherefore, thereof he is called <HI>Dominus Cancellarius Angliae,</HI> as if it were &s;aid, that Lord that only hath Authority in <HI>England</HI> to Cancell the Letters Patents of the Kings, that bind both the King and the Subjects, if they be injurious to any Subject, or prejudicial to the Law.</P>
<PB N="50" REF="29">
<P>In this part, there were Three things Noted; One, that hereof his Lord&s;hip took his Name. Another, that this was his highe&s;t Authority, for that none but he had the like in the Land. The third, that his Lord&s;hip hath it given him by the Law, and is in that re&s;pect a Judge of the Law, and proceedeth in cour&s;e of Law, and not accor|ding to Con&s;cience, and by his Ab&s;olute power, or extraordi|nary Authority; for he cannot judge thereof any otherwi&s;e, but by the Law of the Land.</P>
<P N="3">3. Then was Noted, As all ju&s;tice floweth from the King or Queen, as from the Foun|tain,
<PB N="51" REF="29">and no Authority or Juri&s;|diction in <HI>England</HI> is lawfull, that is not drawn from thence; &s;o is his Lord&s;hip and his Of|fice, next under the King or Queen, to direct &s;uch Commi&s;|&s;ions and Grants as &s;hall give Judicial authority to any judge according to the Law, which mu&s;t pa&s;s under the <HI>Great Seal,</HI> or they be not &s;ufficient. For example, There is no Judge made by Writ or Commi&s;&s;ion, but it cometh from thence, nei|ther hath any Man power <HI>te|nere placita,</HI> but it mu&s;t grow fir&s;t by Grant from thence, except it be the petit Sutes, that belong to petit Courts, as
<PB N="52" REF="30">Courts Baron, and County-Courts; whereof it is &s;aid by Law, <HI>de minimis non curat Lex,</HI> but the Law left them to the Lords at home, to order them for the Peoples ea&s;e; Yet in the&s;e Courts if any falle Judgement be given, it cannot be redre&s;&s;ed but by Writ out of the Chance|ry, to bring it before better Judges. But here of was noted, That though he mu&s;t direct out all Commi&s;sions, and Grants, before any can have Authority to judge according to the Law, that his Lord&s;hip doth that al|&s;o by the Law of the Land; And the Commi&s;sions and Grants made by him are to be
<PB N="53" REF="30">adjudged by the Law of the Land for their validity or inva|lidity; And therefore that his Lord&s;hip therein is a Judge and member of the Law to ap|point and direct the re&s;t in that behalf, and is to do it in that form, and to that effect that the Law hath pre&s;cribed him, which his Lord&s;hip may not alter; whereby it is apparent that he hath that Authority al|&s;o by the Law of the Land.</P>
<P N="4">4. Then was Noted, That by the Common Law, if any would complain of wrong, or &s;ue for right, he was to come into the Chancery, and &s;et down by one of the Clerks
<PB N="54" REF="31">thereof, a Brief of his matter that he would put in Sute, and that was by the Clerk to be &s;et down in form in parchment, and a Precept written before it in the Kings or Queens Name, and that directed to the Sheriff of that Shire where the Plain|tiff allegeth the Defendant was to be be&s;t found, or the cau&s;e mo&s;t aptly lay to be &s;ued to Trial; which Precept Com|mandeth the Defendant or Te|nant to render right to the Plaintiff or Demandant, or ap|pear at the day prefixed in the Court appointed to him, to an|&s;wer him to the Law, and that Brief enclo&s;ed in Wax &s;ealed
<PB N="55" REF="31">with the <HI>Great Seal,</HI> the L. Chan|cellor is to &s;end out by the cour&s;e of the Common Law before a|ny Subject can be &s;ued for any matter of weight, by the cour&s;e of the Common Law. And that Writ is called in <HI>Latine Breve;</HI> wherein al&s;o was noted, a great regard that the Law had, that Men &s;hould not be lightly heard to complain of their Neighbours, nor any Subject drawn into Sutes, nor troubled, nor any Cau&s;es (but the petit ones afore&s;aid) &s;hould be brought to judgement, but by his Honours direction; &s;o as Judges &s;hould not &s;end for whom they would, nor li&s;ten
<PB N="56" REF="32">to all that complained, but to do Ju&s;tice to tho&s;e that were &s;ent to them by the Kings Writ, di|rected by the Lord Chancellor of <HI>England</HI> to be Retorned be|fore them, as fit to be con&s;ide|red of, and meet to be drawn into Sute and Judgement. Though &s;ithence by u&s;age, di|vers Courts have obtained o|ther proceedings, by other pro|ce&s;s, according to their Cour&s;e, and not by Originals, and that is not derogatory either to the Law, or that great Office; for &s;ome have grown by Grant, by rea&s;o~ of the Kings Prerogative, which both the Law and the Chancery alloweth, and are to
<PB N="57" REF="32">allow of right, &s;o it be not in derogation of their Authorities, and may &s;tand with the Law of the Land. For the <HI>Kings Bench</HI> proceedeth by Bill, with|out Original, again&s;t &s;uch as be Pri&s;oners to the <HI>Mare&s;chal</HI> there|of, and that ju&s;tly; for that no Law can pre&s;cribe the King a form to proceed in Iu&s;tice for tho&s;e Cau&s;es that be before him&s;elf, but he may receive any complaint, without Writ, and proceed as it plea&s;e him, &s;o he ob&s;erve the Law for Iu&s;tice &amp; Iudgement, which is done there, as well as in the Com|mon Pleas, where all come in by Original Writ; For though
<PB N="58" REF="33">it be not by like form for pro|ce&s;s, yet it is by the &s;ame form of pleading and judgement, &amp; in matter &amp; &s;ub&s;tance of Law all one. And in this part it is manife&s;t, that this Authority al&s;o in the Lord Chancellor to direct out Original Writs, is by the Law of the Land given unto him, and his form pre&s;cri|bed to him by the Law how he &s;hould make them. And to that purpo&s;e there is a Book of Law left in the Chancery that the Chancery men are bound to follow, which is cal|led <HI>The Regi&s;ter;</HI> And if the Writs be not made according to the form of Law thereby
<PB N="59" REF="33">pre&s;cribed, the Judges will re|ject them, and judge the~ void; which is called in Law, aba|ting of the Writ. So as it is apparent, that in this al&s;o his Lord&s;hip and his Office is by the Common Law, and are members of the Commo~ Law. and that he doth it not by any other Authority above Law, or be&s;ides it.</P>
<P N="5">5. Then was con&s;idered of his Lord&s;hips authority to judge, which appeareth in 9 <HI>E.</HI> 4. <HI>fol.</HI> 14. in a Book-ca&s;e, to be of two &s;orts, or by two powers, <HI>viz.</HI> One according to the cour&s;e of the Common Law, or Po&s;i|tive Law, which is there &s;aid
<PB N="60" REF="34">to be <HI>Potentia ordinata,</HI> which is in proce&s;s, in pleading, and in judgement, according to the cour&s;e of the Common Law of the Land; The other is &s;aid <HI>Ab&s;oluta potentia,</HI> which is in proce&s;s according to the Law of Nature, to &s;end for the party to An&s;wer, and receive his An|&s;wer if he will make it, &amp; then proceed to examine the truth of the matter, and if he will not an&s;wer, but be <HI>Contumax,</HI> yet his Honour is to proceed to the examination of the truth, and not to condemn him in the cau&s;e for his ob&s;tinacy, if it may appear that the matter be not good again&s;t him.</P>
<PB N="61" REF="34">
<P>And there is noted this diffe|rence, which is apparent and common in practice, That where the proceeding is accor|ding to Ordinary power, mi&s;|pleading on either part may marr his Matter, and the judge|ment mu&s;t be according to the Law, how&s;oever the equity of the Ca&s;e &s;hall fall out: But if the proceeding be according to Ab&s;olute power, though the party mi&s;-plead, if the Lord Chancellor &s;hall perceive the matter to be good on his &s;ide, his Lord&s;hip is to judge for him for whom Equity &s;erveth, be it the Plaintiff or Defendant, for that he is to judge as he &s;hall
<PB N="62" REF="35">find the matter to be in Con&s;ci|ence good or bad, and not as he &s;hall find the pleading to be for|mal and good, or vicious and evil, or as the Law will in the Ca&s;e. As for example, in &s;uch actions as be brought in the Chancery before the <HI>L.</HI> Chan|cellor, as an <HI>Audita querela</HI> to avoid a Recogni&s;ance for Non|age, or other good Cau&s;e in Law; And in actions brought according to the cour&s;e of the Law, either by any of the Court, or again&s;t any of them by rea&s;on of their Privilege, and in Vouchers upon Aid-prayer of the King, and &s;uch other, what&s;oever actions are
<PB N="63" REF="35">pur&s;ued there according to the cour&s;e of the Law, his Lord|&s;hip is not to regard what Con|&s;cience would in the Ca&s;e, but is tyed to the &s;trict cour&s;e of Law, &s;o as if the matter be a|gain&s;t Con&s;cience in his Lord|&s;hips opinion, yet he is to ad|judge with him that the Law &s;erveth for, yea if his matter ap|pear to be good, and his Coun|&s;el have lo&s;t it by pleading, his Lord&s;hip can not help it in judgement; nor if the Law be again&s;t him, though Equity &amp; Con&s;cience would &s;eem for him. But on the other &s;ide, if the proceeding be by the Ab|&s;olute power, how&s;oever the
<PB N="64" REF="36">party or his Coun&s;el over&s;ee, or &s;et forth their matter, &amp; what|&s;oever the preci&s;e Rule of Law requireth, if his Lord&s;hip per|ceive by his Wi&s;dom that the cau&s;e in Con&s;cience is good on his &s;ide, his Lord&s;hip is to ad|judge with him; for that then judgement is to proceed <HI>&s;ecundum Con&s;cientiam &amp; Verita|tem,</HI> and not in <HI>Forma Juris.</HI> But in any Ca&s;e that is there in form of Law, if it fall out that in Con&s;cience it ought to be re|lieved, the party may put in a Bill, &amp; follow it in that cour&s;e, and then his Lord&s;hip may &s;tay the cour&s;e of Law.</P>
<P N="6">6. Then was it enquired,
<PB N="65" REF="36">Whether his Lord&s;hip may take order in all cau&s;es which are again&s;t Con&s;cience, or that the Law hath limited them al&s;o, and allowed of &s;ome to hold in that cour&s;e, and &s;ome not? And it &s;eemed, that Con|&s;cience whereby his Lord&s;hip is to judge, is not to be under|&s;tood <HI>&s;impliciter,</HI> and to be <HI>Sim|plex Con&s;cientia,</HI> but <HI>Regulata Con|&s;cientia,</HI> and therein to follow Order and Cour&s;e accu&s;tomed; <HI>viz.</HI> to take order in &s;uch Ca&s;es as by the Cour&s;e of the Court hath been ordered before-time, and in Cau&s;es of like Equity, or greater; wherfore oftentimes Pre&s;idents are &s;ought for and
<PB N="66" REF="37">required, and for lack of Pre&s;i|dents, it hath been &s;ought how ca&s;es in the like rea&s;on, or in <HI>eodem re&s;pectu,</HI> with that that is then in que&s;tion, have been u|&s;ed, to prove that that Court may take cognizance of the Cau&s;e.</P>
<P>As for example, it is again&s;t Con&s;cience, that a rich Father &s;hould &s;uffer an hone&s;t Son to begg, &amp; that a rich Son &s;hould &s;uffer a good Father to want; yet his Lord&s;hip in tho&s;e ca&s;es, cannot make the one to give a|way his goods to relieve the other, according to Con&s;cience; But that, which that <HI>Regulata Con&s;cientia</HI> relieveth, is not when
<PB N="67" REF="37">one keepeth his own uncon|&s;cionably, but when one &s;ee|keth an other mans Goods or Lands, or to trouble his per|&s;on uncon&s;cionably; either by colour of Law, or extorted power, further or otherwi&s;e than in good Con&s;cience it ought to be; then his Lord&s;hip proceeding according to the cour&s;e of that Court, is in Con|&s;cience to relieve the party that is &s;o dealt with, or his Lands or Goods &s;o taken or &s;ought, contrary to Con&s;cience.</P>
<P N="7">7. And it was thought, that if it be uncon&s;cionable that is done, if the Law in ordinary cour&s;e may give a competent
<PB N="68" REF="38">remedy, and the party &s;uffici|ently able to follow it, and that there be no defect in any circum&s;tance, but that by the Law the party wronged may be relieved; that his Lord|&s;hip ought not to deal in it, but referr it to the Law to be judged. But therein there is no certain Rule but his Lord|&s;hips own Wi&s;dom, and Opi|nion, to di&s;cern whether the Law can relieve it, or not, or that there be any defect or not; &s;o as if his Lord&s;hip think there is cau&s;e to retain it, he may, or di&s;mi&s;s it if it plea&s;e him, ac|cording to his own Con&s;ci|ence, which is in that behalf
<PB N="69" REF="38">to direct him, as God &s;hall di|rect it.</P>
<P N="8">8. And &s;ome ca&s;es there be that &s;eem uncon&s;cionable, and yet the Law alloweth them for good and nece&s;&s;ary, and never Lord Chancellor thought good to deal in them. As for example, That the Warranty of a Collateral Ance&s;tor that never had any thing in the Land de&s;cended upon one that had right, &s;hould barr the right Owner from his Inhe|ritance, for that he is Heir to him that made the Warran|ty, though he hath nothing for it. Or that a &s;uppo&s;ed Re|covery in value in a Common
<PB N="70" REF="39">Recovery again&s;t a Cryer of the Court of <HI>Common Pleas,</HI> that is not worth a Groat, nor like ever to be able to make Recompence in value, &s;hould &s;tand for a Recom|pence, and be a barr of a mans lawfull Inheritance, and to barr him that he can never de|mand it, &s;eemeth in every Mans particular Con&s;cience to be uncon&s;cionable; And yet the Law hath allowed of them, upon this General Rule of Law, Better to &s;uffer a Mi&s;|chif than an Inconvenience, and upon the regard that the Law hath to &s;ettle Po&s;&s;e&s;&s;ions of Inheritace in certainty, by
<PB N="71" REF="39">&s;uch In&s;truments and Policies as the Law hath allowed to a&s;&s;ure them by, of which kind the&s;e be; wherefore the Law hath not &s;uffered them either by Law, or in Con&s;cience, at any time to be violated or in|fringed, for any re&s;pect, or in any ca&s;e.</P>
<P N="9">9. And it was &s;aid, That where&s;oever an Act of Parla|ment hath made any provi&s;ion for any uncon&s;cionable thing that was not to be relieved by the Common Law, if the Lord Chancellor think in his Con&s;cience that the Parla|ment hath not &s;ufficiently re|lieved the party, yet his Lord|&s;hip
<PB N="72" REF="40">is not to relieve him further than the Parlament hath done, as before the Act he might have done; for that &s;o much is provided for, as the whole Three E&s;tates thought meet, to who&s;e judge|ment his Lord&s;hip is to yeeld. But if any go about to defraud any Act of Parlament, or not able to &s;eek relief as the Sta|tute appointeth, Then, as a|fore&s;aid, according to Con|&s;cience his Lord&s;hip is to deal therein, when and where, as God and his Con&s;cience is to direct, and no other, nor other rule there can be for his direction in that behalf.</P>
<PB N="73" REF="40">
<P>Hereupon was it al&s;o con|cluded, That his Lord&s;hips Authorities Judicial, both by Ordinary power, and by Ab|&s;olute power are limited by the Law of the Land; For in the Ordinary, he is tyed to the &s;trict cour&s;e of the Law, as other Judges be; and in the Ab&s;olute power, though not tyed to the cour&s;e of the Law, yet he is to deal, <HI>per Regula|tam Con&s;cientiam,</HI> and accor|ding to the cour&s;e of the Court; and in &s;uch Ca&s;es, as in ca|&s;es of Con&s;cience and Equi|ty likewi&s;e hath been relieved before-time, but not in any Ca&s;e that Law hath allowed
<PB N="74" REF="41">of for good and nece&s;&s;ary, nor in any that any Parlament hath made provi&s;ion for, un|le&s;s for &s;ome circum&s;tances the party can not have that which the true intent of the Law, or the Parlament al|lowed him, but by means of that Court; And many things that a good Con&s;ci|ence would will a man to doe in Charity to his Neigh|bour, his Lord&s;hip by his Con&s;cience cannot compell him to do, by the cour&s;e of that Court.</P>
<P N="10">10. But in all that Di&s;cour&s;e none could find how farr his Lord&s;hips Ab&s;olute power
<PB N="75" REF="41">went, nor within what limits certain it could be contained, nor by what means he might find out the truth; But that is without limitation referred to his own Gifts, and the Grace of God, that giveth Wi&s;dom to find out the Truth, and Con|&s;cience to judge accordingly; &s;ometime to find it out by the Law of Nature, as <HI>Solomon</HI> did, when no Te&s;timony could be found in the world, yet he found by her bowels of com|pa&s;sion the true mother of the Child; And &s;ometime it is found out by one mean, and &s;ometime by another: But God never faileth to give
<PB N="76" REF="42">wi&s;dom and means to per|form tho&s;e Offices and Cal|lings, that his Maje&s;ty placeth men in; &s;o as they &s;erve him in Fear, and walk before him with a good Con&s;cience, and &s;eek it in Humility, and with prayer at his hands, who&s;e Will, which is Infinite, is the Rule of the Lord Chancellors Con&s;cience, and therefore his Authority in that re&s;pect is in|finite, and not limited in cer|tainty.</P>
<P N="11">11. Upon all the&s;e Notes the Reader concluded with this Note, That it is certain that his Lord&s;hips Office and Authority is by the Law of the
<PB N="77" REF="42">Land, and not derogatory thereto, but was con&s;tituted by the Law-makers to &s;up|ply tho&s;e things that the Judg|es that be bound to the general Rules could not relieve; but in nothing to proceed to the prejudice of the Law. And to that end his Lord&s;hip was made a Judge of the Law in &s;ome Ca&s;es, and al&s;o a Judge by Con&s;cience, be&s;ides the ge|neral Rule of Law in &s;ome o|ther Ca&s;es; for that being a Judge of the Law as well as others, his Lord&s;hip is with others to uphold the credit of the Law, and that mo&s;t of all others; for that &s;he gave him
<PB N="78" REF="43">greater Authority than any o|ther, and tru&s;ted him above all the re&s;t, in that &s;he tyed all the re&s;t to follow &s;trict Rules, and left him to rule by the Grace of God, and his own Con&s;cience, and to ob|&s;erve only the Equity, and not the &s;trict Rules thereof.</P>
<P>Wherefore no man ought once to controll his Lord|&s;hips judgement in any cau&s;e that he proceedeth in by his Ab&s;olute power, but is with reverence to yeeld unto it, for as much as every one by the Rule of Charity, and of the e&s;timation that we ought to have of them that God hath
<PB N="79" REF="43">&s;ub&s;tituted over us, is to judge the be&s;t, that is, that his Lord|&s;hip hath proceeded in &s;ingle|ne&s;s of heart, according to his Con&s;cience, and the Director of a good Mans Con&s;cience is the will of God, which is the perfect rule of Righteou&s;|ne&s;&s;e, how&s;oever it &s;eemeth to Man in his Wit or Judgement. Wherefore when his Lord&s;hip hath &s;et down his judgement as God hath guided his Con|&s;cience in any ca&s;e, where he is Judge by Con&s;cience, though it differ from &s;ome other judge|ment given either by him&s;elf, or any other good Man that &s;at in his Seat, all men are bound to
<PB N="80" REF="44">think, that the ca&s;e differed in &s;ome circum&s;tance that they cannot &s;ee, or hath not under&s;tood it; Or that God in this ca&s;e, according to his good Will, which is &s;ubject to no Rule but it &s;elf, hath or|dered this thus, and that &s;o, and each being according to Gods good VVill, though dif|ferent in our Under&s;tanding the one from the other, both to be Righteous and Ju&s;t Judgements, and are not to be di&s;liked, or di&s;obeyed of any.</P>
<P N="12">12. But then was it doubt|ed by &s;ome, whether his Lord|&s;hips Authority ab&s;olute might
<PB N="81" REF="44">bind the great Men of the Land, <HI>viz.</HI> The Nobility as well as the mean Subjects? And the doubt ro&s;e upon this, For that their Honours are not to be Arre&s;ted by their Bo|dies for any cau&s;e between Them and any Subject, by the Law of the Land, and the proce&s;&s;e out of the Chan|cery is by Attachment of their Bodies, if they come not in upon a <HI>Sub-poena</HI> &s;erved, and the execution of that Court is Impri&s;onment, untill the par|ty will yield to obey the De|cree and Order thereof, and by the <HI>Great Charter</HI> no Free|man ought to be Impri&s;oned,
<PB N="82" REF="45">but by the Law of the Land. But that &s;eemeth no cau&s;e, why the Order of the Lord Chancellor &s;hould not bind them; for by the Law of the Land, if the Peers commit a|ny contempt to the Crown, they are to be taken by their Bodies as other men. And Mr. <HI>Bracton, Lib.</HI> 1. <HI>Cap.</HI> 24. hath the&s;e words, <HI>Ea quae &s;unt Ju&s;titiae &amp; Paci annexa ad nul|lum peirinent, ni&s;i ad Coronam &amp; Dignitatem Regiam; e&s;t enim Coronae Regis facere Ju&s;titiam &amp; Judicium, &amp; tenere Pacem, &amp; illa &agrave; Corona &s;eparari non po&s;|&s;unt.</HI> And what can be more near annexed to Ju&s;tice, than
<PB N="83" REF="45">when a poor Man complai|neth to the chief Judgement Seat, that he &s;hould have ju|&s;tice according to Con&s;cience and Equity, without re&s;pect of per&s;ons, and that his Might &s;hould not overcome the poor Mans right; Therefore, when it is found, and Ordered for the poor Man, and his Right in Con&s;cience, and the great Man thereby appointed and Ordered, that he &s;hall cea&s;e his hard dealing with him, and he contemneth it, Mu&s;t not that contempt needs be, <HI>Contra Coronam &amp; Dignitatem Regiam,</HI> &s;eeing that Juri&s;dicti|on cannot be &s;eparated from
<PB N="84" REF="46">them? And then all Men a|gree, That for any contempt again&s;t the Crown their Ho|nours may be arre&s;ted and im|pri&s;oned as well as any other Subjects.</P>
<P>But in all the&s;e great Ca&s;es, neither the Reader, nor any his A&s;&s;ociates took upon them to decide the Law, touching the Authorities afore&s;aid, nor to give any certain Rules for them, but dealt only for Lear|ning to open the points, and leave the judgement to the Judges, (as the manner of that Exerci&s;e is) to determine what the Law is; And tou|ching his Lord&s;hips Ab&s;olute
<PB N="85" REF="46">Authority in this whole Di&s;|cour&s;e, they all, both the Rea|der and his A&s;&s;ociates, &s;ubmit|ted them&s;elves to the judge|ment of the Lord Chancellor him&s;elf, for every thing apper|taining to his Lord&s;hips Office; for that God hath not limited how farr, nor wherein, he &s;hould go or deal, but guideth his Con&s;cience in every ca&s;e that &s;hall come before him, by his Grace, to do that which &s;hall be good, ju&s;t, and equall before God and Men, &s;o farr as God &s;hall direct him in that matter, for his own Glory, and the good, or puni&s;hment of the parties, according to his Good will.</P>
<PB N="86" REF="47">
<P N="13">13. But the la&s;t Note was this, That where every other Judge if he erreth in judge|ment, is &s;ubject to a Writ of Error, to have his judgement examined by other Judges a|bove him, and &s;o rever&s;ed, and him&s;elf not to be repro|ved, if it be but error in judg|ment; and if he erre of fal&s;hood, then to be Fined, or puni&s;hed by the Lords in the <HI>Star Cham|ber,</HI> and his fal&s;e Action defa|ced; Yet the Lord Chancellor of <HI>England,</HI> if he erre in his judgement, which he giveth according to his Con&s;cience, there is no Appeal to any but to God to reform it; for he is
<PB N="87" REF="47">the only Judge of the Con&s;ci|ence of Man, and he only may condemn any for Error only in Con&s;cience, and he only may direct Con&s;cience into a better cour&s;e, if Man erre therein; for every Man of his own Nature is &s;ubject therunto; and al&s;o for that in that re&s;pect, there is no Magi&s;trate in <HI>England</HI> &s;uperiour to him, for only the King or Queen is &s;uperiour to him in Government, and they are not by the Law to di&s;tribute Ju&s;tice them&s;elves, but are the &s;uperin|tendents over all others, imme|diate under God to appoint the~ to it, &amp; to &s;ee it done by them, and charge them with it, and
<PB N="88" REF="48">to maintain them therein.</P>
<P>Thus e&s;caping out of this Laborinth, they left it, as they found it, &s;aving this doubt re|&s;olved, That his Lord&s;hips Authority and Office was ere|cted by the Law, and remains a principal Member thereof, and that &s;o of nece&s;sity, as without it the Law could not be ju&s;t and equal to all in every Ca&s;e.</P>
<TRAILER>FINIS.</TRAILER>
<PB REF="48">
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
