THE ANTIQUITY & ORIGINAL Of the COURT of CHANCERY, And AUTHORITY of the LORD CHANCELLOR OF ENGLAND BEING A Branch of Serjeant Snagg's Reading, upon the 28 Chapter of Magna Charta, at the Middle Temple, in Lent, 13 Eliz. WITH His Congratulatory Epistle, (by way of Preface) to the Lord CHANCELLOR Hatton, in 29 Eliz.  Major haeredit as à Legibus, quam à parentibus. Cicero. 
LONDON, Printed for Henry Seile over against Saint Dunstan's Church in Fleetstreet, 1654.   

To the Right Honourable the Lord's Commissioners for Custody of the Great Seal of England.  
My Lords,  
WHat an eminent and a learned Professor of the Laws of England heretofore in Manuscript presented to an Honourable Predecessor of your Lordships at his first entrance to that high place, Be pleased to give a Puisnè leave to present in print unto your Lordships at your Investiture. A small fragment, I confess: yet such, I hope, as will appear neither unworthy of your approbation, nor improper for your Patronage and Protection; The subject-matter, as well of the Author's Epistle, as of his Readers observations, being a little Map and Model of your Lordship's great Office and Jurisdiction, and rarely to be found in our printed Authorities; which, peradventure, may be the Reason, why that ancient and excellent Judicatory hath lately met with such great Envy and Opposition; Learning having no other Enemy but Ignorance, and most Men being naturally inclined to apprehend amiss of that they comprehend not; Though it will not be denied, but that any Court of justice in England may admit of Regulation. My Lords, I shall not say any thing for the Piece, it speaks Reason, and can best speak for itself. I shall only crave your Honours pardon for this great presumption of  
Your Lordship's Most humbly devoted, T. L.   

To the Right Honourable Sir Christopher Hatton Knight, Lord Chancellor of England, Robert Snagg an Apprentice of the Common Laws of that Realm, wisheth all increase of Grace, Mercy, and Peace, Honour, and Prosperity in this World, and perfect Felicity in the World to come.  
WHen (Right Honourable) it came to my course to Read in the Middle Temple, after I had there continued a Puisnè full 20 years, and more, (for so they are called till they Read) and then I was to become an Apprentice of the Common Law, and in my Reading to deliver to my Fellows of that House, such Notes as I had collected in the course of my Study, that I thought to be most profitable to be opened for the exercise and use of Law in our time; And when I had looked into some other men's Travels that had Read before me, and other Writers, and found many several Conceits, and sundry Incertainties touching the Commencement of our Law, and whence it came, and what it was; and I thought it as meet (as Tully teacheth) that it should be understood, Quid est de quo disputetur, as to enter into argument of particular cases which were to be decided thereby: which is the manner of that exercise, well known to your Lordship, as one that entered by that Gate into the happy and honourable Course of life, that God of his great Goodness hath most graciously led you in, from Grace to Grace, and Honour to Honour, to the highest Honour and most absolute Office that is in England under her Majesty, who is immediate in all Dignity, Honour, and Authority under God in this Land. But when I had considered, according to my capacity, of all the Reports that be in print of the practice of the Law, and of some other that I have, I could find no certainty of the Commencement of it, what it was, nor whence it came. For some said, it was the Custom of Normandy that the Conqueror brought in, and placed here; Some, that it came out of Germany, brought by those people that were called Angli, that came hither to inhabit, of whom this Land took the name of Angolia, and the Law the name of Lex Angliae, which savoured more of Reason, that is the ground of our Law; And some imagined one thing, and some another; But that great learned Judge Mr. Littleton, in his first Book satisfied me, that it could neither be the Law of Normandy, nor of any other Country in Germany, nor elsewhere, but peculiar to this Land; For he saith, That Tenant by the Courtesy of England is to hold the Land, if his Wife die, during his life, by the Law of England, & is called Tenant by the Courtesy of England, for this, that this is not used in any other Realm, but only in England; whereof I collected, that if the same Law had been in any other Realm, that Tenure by the Law had likewise been there.  
And I found in stories, that presently after the Conquest there were divers Insurrections not only of the people, that did rise without Reason, but of divers of the Nobility of the best sort, who endured Famine, (and that so far as they did ear the vilest vermin) yea, and the utter overthrow of their Houses and Posterity; And all their cause was, but to be restored to their ancient Laws & Liberties. And that civil dissension continued long for that cause, and the Nobility, without restitution of them, would not yield to their Kings, as men that shown themselves to be made of the right English mould, ready to endure any pain and loss, rather than the loss of their native Laws & Liberties, and to subject themselves to the Will-government of their new Lords, and new Laws, that the Conqueror brought in, and the pleasures, and oftentimes the displeasures of their Kings, who did all, and took all, as pleased themselves, under pretence of their Prerogative; which Prerogative rightly used, and truly understood, is a thing most honourable to the Crown, and not prejudicial to the Law, nor hurtful to the Realm, nor any Subjects lawful Interest, or Liberty.  
But that Will-government in the Kings, discontentment in the Nobility, & continual Wars within the Realm, continued until K. Henry the 3. who (being by that time by divers descents purged and purified by our English Air, and by Education after the order of our Nation, and so become English, and of a better nature than the Aliens, and their offspring) of love to his subjects, was content to allow Englishmen their English Laws; And thereupon, the 10th day of Febr. in the 9th year of his Reign, granted under his great Seal the Great Charter, thereby to restore the Laws of the Land, the Liberties of the Subjects, and to limit his Prerogatives, so, as they should be prejudicial to neither.  
But after, kindled (as it seemed) by the heat of his youth, he continued not in that good mind, but infringed the same Charter, and chose his Will for his direction, (as others his late Predecessors had done) and left that Law of the Land, which he had granted to be Restored and Revived. Whereupon 40 years wars after that followed between him and his Barons, (as they be generally Termed, though the greatest Earls, & others of the chief of the Nobility, were Partners therein) which were never fully appeased, until the Parliament was holden at Marlebridge about the 52 year of his Reign, when and where that Charter was enacted in that Parliament, and thereby the ancient Laws and Liberties revived and restored; which Charter so enacted, since hath been by all Kings & Queens solemnly sworn at their Coronations to be kept, and so hath been sacredly Observed to this day, unless some Forgetfulness in some Kings, and Ignorance in some Officers, hath infringed the same. But now, by God's blessing plentifully poured upon us, it is in full Use, to the great Comfort of all good Subjects, and immortal fame of her most Excellent Majesty.  
And in the 28 Chapter of that Charter and Act of Parliament, I find it set down in Latin, in excellent and significant brief words, to this effect, That no Freeman shall be dealt with either in Life, Liberty, Lands, Liberties, Body or Goods; nor that the King would send for any, nor proceed against any, Nisi per legale judicium parium suorum, aut per legem terrae; And that the King would not defer, deny, nor sell Justice, or Right to any; which is, as it were, the sum of all the Charter & Act, and the whole mark that was shot at, to revive the ancient Laws, and restore the ancient Liberty and Liberties to the Subjects.  
Wherein I noted, That, both how far the Prerogative should go, and what is Right and Justice common to all, is referred to be decided per legem terrae; what therefore that Lex terrae was, which was so carefully sought, & dearly bought with so much Noble blood, which was then thereby revived, I thought if I could find, I had that I sought for.  
And therefore I thought it best to begin with such Reporters, or Writers of our Law, as writ nearest the time of that Charter, and looked into Mr. Bracton, that wrote about 9 H. 3. the very time of the first granting of the Charter, who was one of the chief that were appointed (as it is delivered by Tradition) to find out again the ancient Laws of the Land, when the King was pleased to put them again into the force that they had lost by the Conquest. And in his Book in print, I find it thus written, Cum autem ferè in omnibus Regionibus utatur legibus, & jure scripto, sola Anglia usa est in suis fmibus jure non scripto, & consuetudine; in ea quidem ex non scripto, jus venit quod usus comprobavit. And after that, he saith in the next Chapter these words, Leges Anglicanae fuerunt approbatae consensu utentium, & Sacramento Regum confirmatae. And Cap. 3. Consuetudo more utentium approbata vicem Legis obtinet, & consuetudinis non vilis est authoritas.  
And he saith further, Lib. 1. Cap. 8. treating of that Law which he calleth the Custom of the Land, Lex autem facit Regem; attribuat igitur Rex Legi, quod Lex attribuit ei, id est, dominationem & potestatem; nam ubi dominatur voluntas, & non Lex, ibi non est Rex. Whereof may be aptly collected, that before this Law was there was no King here in 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 so by consequence the Law must.  
And then looking for that matter in the Reports of the Law, I found a Book Case, in 2 H. 4. fol. 18. That it was agreed by the Judges, that the Common Custom of the Realm was the Law of the Land; And in that point looking further, I found all Books of Law agree; which Judgement of the Judges from time after the Enacting of that Charter, and the judgement of Mr. Bracton before at the time of the penning of the Charter, concurring in one, satisfied me, That Lex terrae, which is there set down, and thereby revived, and now holden by the great Charter, whereto every King and Queen is sworn at the Coronation, was the ancient Custom of the Land, that all People of several Nations that at several times inhabited here liked best of, as fittest for this place, whereby the Kings lived in greatest Honour and Ease, and the People in greatest Quietness and Freedom, wherefore thereto the Kings were content to bind themselves, and the Subjects could abide no other. And so I drew that travel to this conclusion, That our Law is the ancient Custom of the Country or Land, and of that Antiquity, that there is no Record nor Matter that can show the Commencement thereof, nor any man can tell it, but it was before all memory of Man that remaineth in the world, consisting of Maxims, General Grounds, & Rules, received, approved & allowed as just, good, & necessary for the Government of this Land, begun when this Land first became a Commonwealth under a King, and ever since used, approved, and allowed, from time to time, time out of mind of Man, and by experience found in all Ages to be fittest for the place, and to be necessary, honest and profitable both for the Prince and People, and being so found fit and continued, it became a Custom to be observed of all that should inhabit, or remain here, and when it was lost by the Conquest, it was again restored by Common consent of Parliament, as was necessary it should be; for that the force it had by Custom and Usage was interrupted by the Conquest; So as the Custom of the Realm revived by Parliament, is the Law of the Land, which is the Genus to all; And the Parliament and the Acts thereof, and the Prerogative of the Prince, and the particular Customs of several Counties, Cities, Boroughs, & Manors, be all but Species of it: For that General Custom of the Realm, which is the Law of the Land, authorizeth the Parliament, limiteth the Prerogative, alloweth and disalloweth of Private Customs, and whatsoever in England is to be allowed, and not to be allowed, as they are consonant or dissonant to the reason thereof.  
But when I had found out this by Reading, then looking into the course of Practice, I found the Lord Chancellor fitting highest in Westminster-Hall, and had most to do, & bore the greatest rule; and yet gave his judgement (as it seemed to me) as it pleased himself, whatsoever the Law of the Land required in the case. And seeing Men of great Honour, Learning, & Integrity sit in that place, and so judge. I was in a maze, not finding at the first how it could stand with the Great Charter, that referred all judgement ad Legem terrae, and how any thing different from that Law could be allowable in the Land, sigh the Kings were all sworn to maintain the Charter that restored the Law, and his Lordship and all the Judges were placed by the King.  
But when I looked further, and perused it well, I found, that the Custom of the Land, which is that Lex terrae, allowed of that Authority also, as of the rest; and that it was also a Species of that General, the Law of the Land, which was the antient Custom of the Realm; And that it was of necessity to be in that sort: For that the Common Law, Custom of the Realm, or Law of the Land, (term it as they list) standing of General Grounds, Rules, and Maxims, it was impossible but some particular Cases must fall out, that either the General Rule whereon it lighteth should be too bard for it, or too short to reach it; And therefore was it of necessity (to the end that all Cases might be judged according to Right and Equity,) to have one under the Prince, above the rest, to have such an Authority that might judge secundum aequum, & bonum, & sanam conscientiam, in these cases, and to mitigate where the Rule of Law would light too hard, and to supply where it came too short, and to the end that he might have the sending forth of Commissions to authorize Judges, & of Precepts from the Prince to produce them to judgement that were to be sued; And to be of especial Trust with the King for keeping his Great Seal, & ordering thereof, & in such other things as appertains to that office.  
Wherefore entering into consideration thereof, I found that Office also to be limited by the Law, and erected thereby; and therefore I gathered divers Notes concerning the same, to Answer such Objections as might in that respect be objected against that Charter and Statute, and the Law of the Land; which lying by me when your Lordship was placed in that great Office, whom, I profess, I ever affected from my first coming to the Temple more than others (though then I knew, and was known of many of excellent Gifts and Natures;) And after your Honour was called to the Court by her Majesty, I coming sometimes to you from my old good Lord, & dear Friend Sir Edward Saunders, late L. Chief Baron, I found you most gracious and favourable unto me, and now lately received such honourable usage from you, as I could not have desired; when some of good and honourable Nature, & excellent good Disposition dealt hardly with me, (as I thought) not affording me a good word, for a dutiful heart ever born them, and some hard pains performed for them; (which God, for some offence committed by me, but not against them, laid on me,) yet your Lordship, of whom I had never deserved any thing, nor shown any Duty to, (except God revealed to you the Intention and Affection of my heart) defended my poor credit (as I heard) to my great Comfort, and spoke well of me.  
Wherefore to show myself thankful, (for an ungrateful Man I have ever hated as a Devil, and loathed as a Monster) I bethought me how to present something to your Honour, as a token of my dutiful mind, & heart tied to you; But amongst things of price, I could find nothing that was not too dear for me to compass, or too mean for you to receive, as a present, and that to deal that way, was but to pour water into the Sea, so plentifully (God be blessed for it) he hath blessed you with abundance; And yet seeing your Honour had so well used me, for nothing, but of your honourable Nature, I gathered hope, that you would accept something, (were it never so small) in good part at my hands, whose heart, and what he hath, is ever at your Commandment; And taking example by the poor gardiner's, that present flowers to the greatest Princes, that have nothing in them but a small smell, and no profit, & yet are well accepted of their gracious minds; I thought good to compose my Papers together that concerned the Authority & Exercise of your Lordship's Office, and to present them unto you; which, though too simple to inform your Wisdom of any understanding, yet at some vacant time may serve to recreate yourself in reading; as the plainest things, & not the gravest matters, are meetest for that purpose. But my good Lord, with these papers I present unto you myself, & my poor service to be altogether at your Commandment, with faithful promise, That if my life may hold one of your fingers from hurt, I will lay it down to help it, or to do you any good; & while I live will speak well of you to men, as one that deserveth it of all. & pray for you to God, that he may still bless you with increase of his excellent Graces, much Honour, & perfect assurance of everlasting joy; And that her Ma.tie and this Land may long enjoy you, for the maintenance of the Laws and Liberties thereof, and the relief of the oppressed Subjects.   

Notes touching the Office and Authority of the Lord Chancellor of England; Collected out of a Reading made in the Middle Temple, in Lent, Anno Dom. 1570. upon the 28 Chap. of the Great Charter of England, granted under the Great Seal in the 9th year, and Enacted and made a Statute at Marlbridge, in 52 year of King Henry the Third.  
WHen the Reader had found, That, by his Statute, No Man might be arrested, imprisoned, or dealt withal in his Person or Liberty, or put out of his Freehold, Free Customs, or Liberties; Nor that the King would send forth against 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 sell, defer, or deny Justice or Right to any; And that that Law of the Land was the Ancient custom of the Country, which hath continued ever since there was a King here, and that by it the King was made, and had his power and pre-eminence; And that it was confirmed by the Oath of Kings before the Statute, and sworn to be observed by all the Kings since; And that all Judges are bound to try their doubts, and Judge their Causes accordingly, howsoever their private knowledge, or Conscience leadeth them; Then both by Practice, and by the Authority of Books, looking into the course of the proceed in the Chancery, by the Lord Chancellor of England, from time to time, it seemed as though that Office had been besides the Law, erected out of the absolute Authority that the Conquerors claimed; and that it hath been continued from time to time against the Law, and the Provision of that Charter and Parliament, as it were by a Prerogative above the Law; for that he is not tied to any Form of Trial of any point of Fact that falleth out doubtful before him, as other Judges be, but may examine Witnesses as he pleaseth, and when he pleaseth, to inform his Conscience, & also examine the parties by Oath or otherways, and to proceed as it shall seem best to his Wisdom, to beat out the Truth, as it seemeth good to him in his private judgement; And that his Lordship may Order & Decree the Cause, as it seemeth to him to agree most with Equity and Conscience, howsoever the Law is in the Case; and to Imprison the party if he will not be ruled by him, and forbear the benefit of Law, in every thing that the Lord Chancellor thinketh to be Unconscionable: So as it seemed upon the first object, for that his Lordship is neither bound to the trial, nor the judgement that the Statute appointeth to be observed (as it seemed) upon the Letter, that his Authority is above Law, or besides Law, & so the Great Charter of England no further holden than it pleaseth the Lord Chancellor of England. Also it appeared by practice, That no Man hath Jurisdiction to judge according to the Law, before he hath some Grant or Commission from the King or Queen out of the Lord Chancellor's Office, under the Great Seal that is in his keeping: And also by course of the Common-law (saving some particular prescriptions in some particular Courts) the Judges cannot hold plea in any Cause, until his Lordship send them it by an Original Writ framed in the Chancery, retornable before the Judges by his Lordship's appointment.  
But when it was well considered, That the Charter and Statute of Magna Charta was, that none of these things should be done, but according to the Law of the Land; And that every King was sworn to observe it, and that the Lord Chancellor is appointed by the King to his Office; It was conceived, that the Law of the Land appointed these things to be thus done by his Lordship, for some necessary causes known to them that first invented the Law, and so that great Office, and the Great Charter, and the Law of the Land might all stand together.  
Wherefore then was sought for, when that great Office of Chancery was erected, by whom, and for what cause? and it was found to be erected by the Institutors of the Common Law, as a Member thereof, of necessity to observe order in making of Judges, direction of Suits, and to relieve and supply in those Cases, where the Judges by the general Grounds and Rules of Law, could not give competent Remedy by Law, according to Conscience and Equity, as shall hereafter be more plainly showed; And so his Lordship, nor his Office, no derogation to the Law of the Land; but his Office a member, and he a Judge thereof, without whom the Law could not have the perfection, order, and due honour that it hath; For the better perceiving whereof, it was Noted,  
First, that those (the Kings, Nobles, and Commons, whosoever, and whensoever they were) that Instituted the Law of the Land, did see that it was best to make it so, as it might stand of General Grounds and Rules, that might comprehend all particular Cases that should fall out, and to bind all that were in one Case, to one judgement, without respect of persons, or other Circumstances; or else the Law could not direct the Judges, how they should proceed in judgement: For if consideration of the person, or other circumstance, might have given a scope to the Judges, to judge by one Rule, one Case 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 so confusion would have followed, and infinite inconveniences; for avoiding whereof, they made the Rules to reach all persons alike, according to Justice, which regardeth the person of no Man in judgement.  
Then, they did see, that many would be overreached; for some were too simple, and would trust untrusty persons, and be circumvented and were meet therefore to be helped; Some would fall into the lash of the Law ignorantly, and therefore not to be punished as those that offended of Malice; Many might craftily over reach their Neighbours, by getting the better end of the staff; And some by strength bear them down, if by some extraordinary Authority the weaker were not upholden, and the simple provided for, and the subtle prevented. For in many Cases men might offend & wrong their Neighbours in subtle sort, and be wronged by hap, or simplicity, or ignorance, and yet the General Rule of the Law could not fully reach or relieve them, that were so overreached or circumvented.  
Wherefore the Institutors of the Law found it to be a thing of necessity, to tie the Judges to follow the Law in judgement in all Cases generally alike, as the Case required: and yet to constitute one Supreme Judge further trusted than the rest, that might have an Authority absolute and extraordinary, to supply and reform those particular Cases, that might happen as aforesaid, according to Equity and good Conscience, and to bind the parties not to follow Law, where by Law they might get more by subtlety, or the others simplicity, than Conscience would.  
Here grew an Objection, That it was a dishonour to the Law to have these wants, by this great Man to be thus supplied; for that it showed, that she had not sufficiency and certainty in her Grounds and Rules.  
But this is nothing, For there is no Law in any Nation, but particular mischiefs have grown upon it; nor ever any Art or Science hath been so tightly set down, but disputable Questions have been found in it. And that it cannot be otherwise, one example may serve; Moses that was the Lawgiver to God's People, and delivered it himself by Inspiration, was at the wall, we see, in his own Books, in divers Cases that happened, both in the Political Law, who should inherit, and the Ceremonial Law, touching the uncleanness that came by touching a dead body; and he was driven to refer it to God to be decided, and could not decide it himself by the general Rule of the most perfect Law that ever was given to any people. Then if Moses that man of God found some doubts that he could not decide, in that Law delivered by himself; Good Judges and learned may find some Cases, that by Law they can hardly find a good provision for, but leave it to such as God shall appoint to utter his Will by in Cases of Conscience, sigh by Law they are not otherwise provided for.  
Then it was Noted whereof his Lordship hath his name of Dominus Cancellarius Angliae, Lord Chancellor of England; wherein all agree, that he is called Cancellarius, à Cancellando. But what he may Cancel, whereby he had that honour, hath been doubted. Some have said, that he had authority Cancellare iniquam Legem Communem, & judicare secundum Conscientiam. But that hath no reason, and was rejected; for it is absurd, that sigh the Law hath made him a Judge of Law, and his Office a member of the Law, and made thereby, (as as shall be plainly proved) that the Law should give Authority to deface or Cancel herself, or that his Honour should deface that whereby he sitteth, and hath his Authority. And to that end was cited Mr. Bractons' saying, Lex facit Regem, attribuat igitur Rex Legi, quod Lex attribuitei, id est, dominationem & potestatem; And thereupon it was concluded, à fortiore, If the King, that hath an Authority by Prerogagative above the Law in many cases, as to pardon and acquit by Mercy, where the Law of Justice condemneth, must attribute to the Law Dominion and Power: the Lord Chancellor, though he hath an Authority besides Law, and yet allowed by the Law, is to attribute Dominion and Power to the Law in all that he can, for that it made him an Officer in so high degree, and therefore he may not Cancel or deface it. Which point, that he is made by Law, and hath his Authority thereby, is afterwards fully proved. And it is to be Noted, That his Lordship by his Absolute power cannot stay the Course of Law, but only bindeth the person not to follow the Law in any Unconscionable Course. This may serve to show, that it was not said of Cancelling the Law; for in those Cases of Conscience it is found by experience, that the Law will take her course if the party call upon it, though the Lord Chancellor hath otherwise ordered the Cause.  
But his Lordship hath his Name of Cancelling the King's Letters Patents, which is a thing of as great Honour to his Lordship and the Law, as th'other had been of Dishonour, and Disgrace to both; wherein it was Noted, That the Letters Patents of the Prince once passed the Great Seal, do bind both his or her Majesty, their Heirs and Successors, and all Subjects, yea so far, as the King or Queen cannot call them in, if they find them unfit, nor any Subject can gainsay them, if they be not just. Yet by Law if Letters Patents be passed the Great Seal in deceit 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 respect, wherein they were deceived; but yet they must leave it under Seal, and cannot deface it. But if any Letters Patents pass the Great Seal, injurious to any Subject, or prejudicial to the Law, the Lord Chancellor as a Judge of Law, (and not by his absosolute Authority) by his Ordinary power, and by the course 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 course of Law, and to call the party interessed in it by process of Law, and so proceed according to the Law, and repeal it by Judgement, if it be found in Law to be injurious. And then the Lord Chancellor may Cancel it, and pull the Seal from it, and deface it; which neither the King or Queen by Prerogative, nor any other Judge of Law, nor other Lord of England can do, but himself, who only hath that Authority. Wherefore, thereof he is called Dominus Cancellarius Angliae, as if it were said, that Lord that only hath Authority in England to Cancel 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.  
In this part, there were Three things Noted; One, that hereof his Lordship took his Name. Another, that this was his highest Authority, for that none but he had the like in the Land. The third, that his Lordship hath it given him by the Law, and is in that respect a Judge of the Law, and proceedeth in course of Law, and not according to Conscience, and by his Absolute power, or extraordinary Authority; for he cannot judge thereof any otherwise, but by the Law of the Land.  
3. Then was Noted, As all justice floweth from the King or Queen, as from the Fountain, and no Authority or Jurisdiction in England is lawful, that is not drawn from thence; so is his Lordship and his Office, next under the King or Queen, to direct such Commissions and Grants as shall give Judicial authority to any judge according to the Law, which must pass under the Great Seal, or they be not sufficient. For example, There is no Judge made by Writ or Commission, but it cometh from thence, neither hath any Man power tenere placita, but it must grow first by Grant from thence, except it be the petit Suits, that belong to petit Courts, as Court's Baron, and County-Courts; whereof it is said by Law, de minimis non curat Lex, but the Law left them to the Lords at home, to order them for the People's ease; Yet in these Courts if any fall Judgement be given, it cannot be redressed but by Writ out of the Chancery, to bring it before better Judges. But here of was noted, That though he must direct out all Commissions, and Grants, before any can have Authority to judge according to the Law, that his Lordship doth that also by the Law of the Land; And the Commissions and Grants made by him are to be adjudged by the Law of the Land for their validity or invalidity; And therefore that his Lordship therein is a Judge and member of the Law to appoint and direct the rest in that behalf, and is to do it in that form, and to that effect that the Law hath prescribed him, which his Lordship may not alter; whereby it is apparent that he hath that Authority also by the Law of the Land.  
4. Then was Noted, That by the Common Law, if any would complain of wrong, or sue for right, he was to come into the Chancery, and set down by one of the Clerks thereof, a Brief of his matter that he would put in Suit, and that was by the Clerk to be set down in form in parchment, and a Precept written before it in the Kings or Queen's Name, and that directed to the Sheriff of that Shire where the Plaintiff allegeth the Defendant was to be best found, or the cause most aptly lay to be sued to Trial; which Precept Commandeth the Defendant or Tenant to render right to the Plaintiff or Demandant, or appear at the day prefixed in the Court appointed to him, to answer him to the Law, and that Brief enclosed in Wax sealed with the Great Seal, the L. Chancellor is to send out by the course of the Common Law before any Subject can be sued for any matter of weight, by the course of the Common Law. And that Writ is called in Latin Breve; wherein also was noted, a great regard that the Law had, that Men should not be lightly heard to complain of their Neighbours, nor any Subject drawn into Suits, nor troubled, nor any Causes (but the petit ones aforesaid) should be brought to judgement, but by his Honour's direction; so as Judges should not send for whom they would, nor listen to all that complained, but to do Justice to those that were sent to them by the King's Writ, directed by the Lord Chancellor of England to be Returned before them, as fit to be considered of, and meet to be drawn into Suit and Judgement. Though since by usage, divers Courts have obtained other proceed, by other process, according to their Course, and not by Originals, and that is not derogatory either to the Law, or that great Office; for some have grown by Grant, by reason of the King's Prerogative, which both the Law and the Chancery alloweth, and are to allow of right, so it be not in derogation of their Authorities, and may stand with the Law of the Land. For the King's Bench proceedeth by Bill, without Original, against such as be Prisoners to the Marshal thereof, and that justly; for that no Law can prescribe the King a form to proceed in justice for those Causes that be before himself, but he may receive any complaint, without Writ, and proceed as it please him, so he observe the Law for justice & judgement, which is done there, as well as in the Common Pleas, where all come in by Original Writ; For though it be not by like form for process, yet it is by the same form of pleading and judgement, & in matter & substance of Law all one. And in this part it is manifest, that this Authority also in the Lord Chancellor to direct out Original Writs, is by the Law of the Land given unto him, and his form prescribed to him by the Law how he should make them. And to that purpose there is a Book of Law left in the Chancery that the Chancery men are bound to follow, which is called The Register; And if the Writs be not made according to the form of Law thereby prescribed, the Judges will reject them, and judge them void; which is called in Law, abating of the Writ. So as it is apparent, that in this also his Lordship and his Office is by the Common Law, and are members of the Common Law. and that he doth it not by any other Authority above Law, or besides it.  
5. Then was considered of his Lordship's authority to judge, which appeareth in 9 E. 4. fol. 14. in a Book-case, to be of two sorts, or by two powers, viz. One according to the course of the Common Law, or Positive Law, which is there said to be Potentia ordinata, which is in process, in pleading, and in judgement, according to the course of the Common Law of the Land; The other is said Absoluta potentia, which is in process according to the Law of Nature, to send for the party to Answer, and receive his Answer if he will make it, & then proceed to examine the truth of the matter, and if he will not answer, but be Contumax, yet his Honour is to proceed to the examination of the truth, and not to condemn him in the cause for his obstinacy, if it may appear that the matter be not good against him.  
And there is noted this difference, which is apparent and common in practice, That where the proceeding is according to Ordinary power, mispleading on either part may mar his Matter, and the judgement must be according to the Law, howsoever the equity of the Case shall fall out: But if the proceeding be according to Absolute power, though the party mis-plead, if the Lord Chancellor shall perceive the matter to be good on his side, his Lordship is to judge for him for whom Equity serveth, be it the Plaintiff or Defendant, for that he is to judge as he shall find the matter to be in Conscience good or bad, and not as he shall find the pleading to be formal and good, or vicious and evil, or as the Law will in the Case. As for example, in such actions as be brought in the Chancery before the L. Chancellor, as an Audita querela to avoid a Recognisance for Nonage, or other good Cause in Law; And in actions brought according to the course of the Law, either by any of the Court, or against any of them by reason of their Privilege, and in Vouchers upon Aid-prayer of the King, and such other, whatsoever actions are pursued there according to the course of the Law, his Lordship is not to regard what Conscience would in the Case, but is tied to the strict course of Law, so as if the matter be against Conscience in his Lordship's opinion, yet he is to adjudge with him that the Law serveth for, yea if his matter appear to be good, and his Counsel have lost it by pleading, his Lordship can not help it in judgement; nor if the Law be against him, though Equity & Conscience would seem for him. But on the other side, if the proceeding be by the Absolute power, howsoever the party or his Counsel oversee, or set forth their matter, & whatsoever the precise Rule of Law requireth, if his Lordship perceive by his Wisdom that the cause in Conscience is good on his side, his Lordship is to adjudge with him; for that then judgement is to proceed secundum Conscientiam & Veritatem, and not in Forma Juris. But in any Case that is there in form of Law, if it fall out that in Conscience it ought to be relieved, the party may put in a Bill, & follow it in that course, and then his Lordship may stay the course of Law.  
6. Then was it enquired, Whether his Lordship may take order in all causes which are against Conscience, or that the Law hath limited them also, and allowed of some to hold in that course, and some not? And it seemed, that Conscience whereby his Lordship is to judge, is not to be understood simpliciter, and to be Simplex Conscientia, but Regulata Conscientia, and therein to follow Order and Course accustomed; viz. to take order in such Cases as by the Course of the Court hath been ordered before-time, and in Causes of like Equity, or greater; wherefore oftentimes Precedents are sought for and required, and for lack of Precedents, it hath been sought how cases in the like reason, or in eodem respectu, with that that is then in question, have been used, to prove that that Court may take cognizance of the Cause.  
As for example, it is against Conscience, that a rich Father should suffer an honest Son to beg, & that a rich Son should suffer a good Father to want; yet his Lordship in those cases, cannot make the one to give away his goods to relieve the other, according to Conscience; But that, which that Regulata Conscientia relieveth, is not when one keepeth his own unconscionably, but when one seeketh an other man's Goods or Lands, or to trouble his person unconscionably; either by colour of Law, or extorted power, further or otherwise than in good Conscience it ought to be; then his Lordship proceeding according to the course of that Court, is in Conscience to relieve the party that is so dealt with, or his Lands or Goods so taken or sought, contrary to Conscience.  
7. And it was thought, that if it be unconscionable that is done, if the Law in ordinary course may give a competent remedy, and the party sufficiently able to follow it, and that there be no defect in any circumstance, but that by the Law the party wronged may be relieved; that his Lordship ought not to deal in it, but refer it to the Law to be judged. But therein there is no certain Rule but his Lordships own Wisdom, and Opinion, to discern whether the Law can relieve it, or not, or that there be any defect or not; so as if his Lordship think there is cause to retain it, he may, or dismiss it if it please him, according to his own Conscience, which is in that behalf to direct him, as God shall direct it.  
8. And some cases there be that seem unconscionable, and yet the Law alloweth them for good and necessary, and never Lord Chancellor thought good to deal in them. As for example, That the Warranty of a Collateral Ancestor that never had any thing in the Land descended upon one that had right, should bar the right Owner from his Inheritance, for that he is Heir to him that made the Warranty, though he hath nothing for it. Or that a supposed Recovery in value in a Common Recovery against a Crier of the Court of Common Pleas, that is not worth a Groat, nor like ever to be able to make Recompense in value, should stand for a Recompense, and be a bar of a man's lawful Inheritance, and to bar him that he can never demand it, seemeth in every Man's particular Conscience to be unconscionable; And yet the Law hath allowed of them, upon this General Rule of Law, Better to suffer a Mischif than an Inconvenience, and upon the regard that the Law hath to settle Possessions of Inheritace in certainty, by such Instruments and Policies as the Law hath allowed to assure them by, of which kind these be; wherefore the Law hath not suffered them either by Law, or in Conscience, at any time to be violated or infringed, for any respect, or in any case.  
9 And it was said, That wheresoever an Act of Parliament hath made any provision for any unconscionable thing that was not to be relieved by the Common Law, if the Lord Chancellor think in his Conscience that the Parliament hath not sufficiently relieved the party, yet his Lordship is not to relieve him further than the Parliament hath done, as before the Act he might have done; for that so much is provided for, as the whole Three Estates thought meet, to whose judgement his Lordship is to yield. But if any go about to defraud any Act of Parliament, or not able to seek relief as the Statute appointeth, Then, as aforesaid, according to Conscience his Lordship is to deal therein, when and where, as God and his Conscience is to direct, and no other, nor other rule there can be for his direction in that behalf.  
Hereupon was it also concluded, That his Lordship's Authorities Judicial, both by Ordinary power, and by Absolute power are limited by the Law of the Land; For in the Ordinary, he is tied to the strict course of the Law, as other Judges be; and in the Absolute power, though not tied to the course of the Law, yet he is to deal, per Regulatam Conscientiam, and according to the course of the Court; and in such Cases, as in cases of Conscience and Equity likewise hath been relieved before-time, but not in any Case that Law hath allowed of for good and necessary, nor in any that any Parliament hath made provision for, unless for some circumstances the party can not have that which the true intent of the Law, or the Parliament allowed him, but by means of that Court; And many things that a good Conscience would will a man to do in Charity to his Neighbour, his Lordship by his Conscience cannot compel him to do, by the course of that Court.  
10. But in all that Discourse none could find how far his Lordship's Absolute power 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 Wisdom to find out the Truth, and Conscience to judge accordingly; sometime to find it out by the Law of Nature, as Solomon did, when no Testimony could be found in the world, yet he found by her bowels of compassion the true mother of the Child; And sometime it is found out by one mean, and sometime by another: But God never faileth to give wisdom and means to perform those Offices and Callings, that his Majesty placeth men in; so as they serve him in Fear, and walk before him with a good Conscience, and seek it in Humility, and with prayer at his hands, whose Will, which is Infinite, is the Rule of the Lord Chancellor's Conscience, and therefore his Authority in that respect is infinite, and not limited in certainty.  
11. Upon all these Notes the Reader concluded with this Note, That it is certain that his Lordship's Office and Authority is by the Law of the Land, and not derogatory thereto, but was constituted by the Lawmakers to supply those things that the Judges 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 Lordship was made a Judge of the Law in some Cases, and also a Judge by Conscience, besides the general Rule of Law in some other Cases; for that being a Judge of the Law as well as others, his Lordship is with others to uphold the credit of the Law, and that most of all others; for that she gave him greater Authority than any other, and trusted him above all the rest, in that she tied all the rest to follow strict Rules, and left him to rule by the Grace of God, and his own Conscience, and to observe only the Equity, and not the strict Rules thereof.  
Wherefore no man ought once to control his Lordship's judgement in any cause that he proceedeth in by his Absolute power, but is with reverence to yield unto it, for as much as every one by the Rule of Charity, and of the estimation that we ought to have of them that God hath substituted over us, is to judge the best, that is, that his Lordship hath proceeded in singleness of heart, according to his Conscience, and the Director of a good Man's Conscience is the will of God, which is the perfect rule of Righteousness, howsoever it seemeth to Man in his Wit or Judgement. Wherefore when his Lordship hath set down his judgement as God hath guided his Conscience in any case, where he is Judge by Conscience, though it differ from some other judgement given either by himself, or any other good Man that sat in his Seat, all men are bound to think, that the case differed in some circumstance that they cannot see, or hath not understood it; Or that God in this case, according to his good Will, which is subject to no Rule but itself, hath ordered this thus, and that so, and each being according to God's good Will, though different in our Understanding the one from the other, both to be Righteous and Just Judgements, and are not to be disliked, or disobeyed of any.  
12. But than was it doubted by some, whether his Lordship's Authority absolute might bind the great Men of the Land, viz. The Nobility as well as the mean Subjects? And the doubt risen upon this, For that their Honours are not to be Arrested by their Bodies for any cause between Them and any Subject, by the Law of the Land, and the process out of the Chancery is by Attachment of their Bodies, if they come not in upon a Sub-poena served, and the execution of that Court is Imprisonment, until the party will yield to obey the Decree and Order thereof, and by the Great Charter no Freeman ought to be Imprisoned, but by the Law of the Land. But that seemeth no cause, why the Order of the Lord Chancellor should not bind them; for by the Law of the Land, if the Peers commit any contempt to the Crown, they are to be taken by their Bodies as other men. And Mr. Bracton, Lib. 1. Cap. 24. hath these words, Ea quae sunt Justitiae & Paci annexa ad nullum peirinent, nisi ad Coronam & Dignitatem Regiam; est enim Coronae Regis facere Justitiam & Judicium, & tenere Pacem, & illa à Corona separari non possunt. And what can be more near annexed to Justice, than when a poor Man complaineth to the chief Judgement Seat, that he should have justice according to Conscience and Equity, without respect of persons, and that his Might should not overcome the poor Man's right; Therefore, when it is found, and Ordered for the poor Man, and his Right in Conscience, and the great Man thereby appointed and Ordered, that he shall cease his hard dealing with him, and he contemneth it, Must not that contempt needs be, Contra Coronam & Dignitatem Regiam, seeing that Jurisdiction cannot be separated from them? And then all Men agree, That for any contempt against the Crown their Honours may be arrested and imprisoned as well as any other Subjects.  
But in all these great Cases, neither the Reader, nor any his Associates took upon them to decide the Law, touching the Authorities aforesaid, nor to give any certain Rules for them, but dealt only for Learning to open the points, and leave the judgement to the Judges, (as the manner of that Exercise is) to determine what the Law is; And touching his Lordship's Absolute Authority in this whole Discourse, they all, both the Reader and his Associates, submitted themselves to the judgement of the Lord Chancellor himself, for every thing appertaining to his Lordship's Office; for that God hath not limited how far, nor wherein, he should go or deal, but guideth his Conscience in every case that shall come before him, by his Grace, to do that which shall be good, just, and equal before God and Men, so far as God shall direct him in that matter, for his own Glory, and the good, or punishment of the parties, according to his Good will.  
13. But the last Note was this, That where every other Judge if he erreth in judgement, is subject to a Writ of Error, to have his judgement examined by other Judges above him, and so reversed, and himself not to be reproved, if it be but error in judgement; and if he err of falsehood, then to be Fined, or punished by the Lords in the Star Chamber, and his false Action defaced; Yet the Lord Chancellor of England, if he err in his judgement, which he giveth according to his Conscience, there is no Appeal to any but to God to reform it; for he is the only Judge of the Conscience of Man, and he only may condemn any for Error only in Conscience, and he only may direct Conscience into a better course, if Man err therein; for every Man of his own Nature is subject thereunto; and also for that in that respect, there is no Magistrate in England superior to him, for only the King or Queen is superior to him in Government, and they are not by the Law to distribute Justice themselves, but are the superintendents over all others, immediate under God to appoint them to it, & to see it done by them, and charge them with it, and to maintain them therein.  
Thus escaping out of this Labyrinth, they left it, as they found it, saving this doubt resolved, That his Lordship's Authority and Office was erected by the Law, and remains a principal Member thereof, and that so of necessity, as without it the Law could not be just and equal to all in every Case.  
FINIS.