SECT. I. Of the mutual Obligation upon King and People, in reference to Government.

WHosoever will but con­sider it, may easily dis­cern, that there is a mu­tual benefit accrues by Government, as well to the People as to the King; the end & design of it being the protection of [Page 2] Both from wrong and violence: And to the end this may be the better ac­complish'd, both are mutually bound in England to act their part therein: The King is bound to govern by Law, and the People most of the conside­rable part of them are bound, and all of them are compellable to be bound to assist and defend all Jurisdictions, Priviledges, Preheminences and Au­thorities, granted or belonging to the King, His Heirs and Successors, or united or annex'd to the Imperial Crown of this Realm; the King by the ve­ry Constitution of his Kingly Office, and by his Coronation-Oath; and the People both by their Natural Al­legiance, and by force of the Statute 1 Eliz. cap. 10. It is not a slight and mean tie that they are bound by, it is by a sacred and solemn Oath, the greatest obligation upon Earth, and the firmest bond of Humane Society; which whosoever voluntarily breaks, either by a wilful acting against, or by a careless neglecting to perform, [Page 3]what he hath undertaken by it, I'll be bold to say, He is sit Company for none on this side Hell, unless for some perjur'd Aldermen, or false Ig­noramne-Jury-men.

Being thus engag'd, I think it highly concerns us all to discharge our Duty therein; and to that end it is necessary, in the first place, to understand what Jurisdictions, Pre­heminencies, Priviledges and Autho­rities do appertain to the King; for without That, the King cannot ex­ercise His Jurisdiction, nor the People assist Him in it: And in as much as the King's Jurisdiction over His Court of Chancery is now doubted of by many, dis-own'd by some, and by o­thers thought not necessary to be put in execution; I therefore set my self upon enquiry after the King's Part and Power in that particular, having had experience of the inconvenien­cies the want of the use of it produ­ceth.

SECT. II. What is Jurisdiction; to Whom it appertains; and How an­ciently exercised in this King­dom.

JURISDICTION, in the bare lite­ral sence and signification of the word, and ex vi termini, imports no more than Dire Droit, or Jus dice­re, a Power to pronounce, interpret or relate what is Law and Right, in any matter of Controversie: But as necessary appendants thereunto, there are many Priviledges and Au­thorities needful, to make up a full and plenary Power to administer Justice, which are generally compre­hended within the meaning of Ju­risdiction; As, first, an Authority to Command the party or parties com­plain'd against, before Him that hath Jurisdiction: Secondly, to Examine [Page 5]the truth of the complaint, and to hear the Defendants defence: Third­ly, to give Judgment according to what the Law is: Fourthly, to compel Obedience to, and Performance of that Judgment which is done either by Imprisonment of the person until he perform, or by seizing his Estate, or part of it, in satisfaction of the Judgment, which is the Coercive Po­wer of the Law, without which the rest signifies but little.

The right of Jurisdiction is a prize for which great Contests have been for many Ages in this Kingdom: the Pope for a long time strugl'd with our Kings for Jurisdiction in Ecclesi­astical matters; some yielded to him, and some would not; The House of Commons have often strove with the House of Lords for Jurisdi­ction; the King's Courts of Justice have often contended with one a­nother for Jurisdiction; and now some would have it, that the King's own more immediate Court, his High-Court [Page 6]of Conscience, would be so high­ly unconscionable, as to out Him from having any thing to do there.

To find out the true Proprietors of Jurisdiction, for which there hath been so many pitch'd Battles fought, it is necessary to look a great way back, Origo rei inspici debet, the be­ginning must be consider'd, Deut. 32. 7. Remember the days of old, consider the years of many Generations; ask thy Father, and he will shew thee; thy Elders, and they will tell thee. After this manner will I make my Enquiry; for I know no Statute of Limitation in the case to bar the King by non-claim; but there is a Maxim in Law which imports the contrary, Quod nullum tempus occur­rit Regi; and therefore what I find in old Authors as well as new, I will truly relate.

By the Opinion of all an­cient & wise Politicians and Historians, Bod. l. 4. cap. 6. (says Bodin) Justiciae fruendae causa Reges esse creatos; [Page 7]Kings were ordain'd for no other end, than for administration of Ju­stice, which is a full Authority that Jurisdiction appertained to Kings, even by their Constitution; and the same Author says, That ancient­ly the Kings of most Nations and Countreys were called Judges, and they thought no other Appellation or Title more honourable than That, and they delighted in nothing more then a personal, not only virtual, but actual, determining of their Sub­jects Controversies.

Moses for a great while spent the greatest part, Ex. 18. or much of his time, sometimes even from mor­ning until evening, in hearing and determining Controversies between the people; But at length, finding that as the people encreased in num­ber, so did Suits, insomuch that it was too hard a task for him to dis­patch all himself, he therefore chose men of courage out of all Israel, and those he made Heads over the people, [Page 8]Rulers over Thousands and over Hun­dreds, over Fifties and over Tens, who judged the people at all seasons: but the hard causes (matters of difficulty) they brought to Moses himself to deter­mine; none of them pretending that because Moses had given them full power to judge the people within their several Provinces, that he had excluded himself from power of judging there, and examining whe­ther or no their Judgments were right and just.

In imitation of Moses, Cook 1 Inst. f. 168. or af­ter the same manner, did the ancient Kings of England divide this Kingdom, first into Coun­ties, and Counties into Hundreds, Hundreds into Manors, and Manors into Townships and Villages, and ap­pointed Jurisdictions in every Divi­sion.

In or about the time of H. 3. one Henry de Bracton, Cow. Int. Title Bract. a learn­ed Judge, finding that the Laws and Customs of the [Page 9]Realm, (which at that time were not reduc'd into writing) were often­times abus'd by unlearned men, Qui Cathedram judicandi ascendunt ante­quam leges dedicerent, who became Judges before they had been Stu­dents, and consequently determined Causes rather after their own fan­cies than the Rules of Law: he there­fore resolv'd, ad vetera Judicia Ju­storum perscrutenda diligenter, to make diligent enquiry into the an­cient Judgments and Resolutions of just Judges, and to put the same in writing for the benefit of Posterity, as himself says in the first page of his Book Of the Laws and Customs of England; and therein as to the Tem­poral state of affairs, (the Pope ha­ving in those days usurp'd Jurisdi­ction, not only upon our Kings, but upon many other Princes in Spiri­tual matters) Bracton says, Bract. l. 1. fo. 5. cap. 8. That under Emperours, Kings and Princes, are Dukes, Earls and Barons, great Offi­cers, [Page 10]men of Renown, and Knights; there are also Freemen and Bondmen, and divers Authorities and Powers constituted under the King; Omnia quidem sub eo, & ipse sub nullo, nisi tantum sub Deo, parem autem non ha­bet in regno suo quia sic amitteret prae­ceptum, cum par in parem non habet Imperium; item nec multo fortius su­periorem nec potentiorem habere debet, quia sic erit inferior suis subject is & in­feriores pares esse non possunt potentio­ribus ipse autem Rex non debet esse sub bomine sed sub Deo & Lege, quia Lex facit Regem, attribuat igitur Rex Legi, quod Lex attribuat ei, videli­cet Dominationem & Potestatem, And a little further, Et sciendum quod ipse Dominus Kex Ordinariam ha­bet Jurisdictionem & Dignitatem & Potestatem, super omnes qui in regno suo sunt habet enim omnia Jura in manu sua quae ad Coronam & Laica­lem pertinet potestatem & materialem gladium qui pertinet ad regni Guber­naculum, habet etiam Justitiam & Ju­dicium [Page 11]quae sunt Jurisdictiones ut ex Jurisdictione suae sicut Dei Minister & Vicarius tribuat unicui (que) quod su­um fuerit.

To the like effect he says in ano­ther place, treating of Temporal Ju­risdiction, and Who it is that can and ought to judge, he says, Bract. lib. 3. fo. 107. That it is the King, and no other, ought to judge, if He alone could compass it, being thereunto obliged by tenor of his Oath; for at his Coronation he ought in the name of Jesus Christ, upon Oath, to promise these Three things to his people that are subject to himself, 1. That he would command, and use his utmost endeavour, that per­fect peace be continued to the Church of God, and all Christian people, during all his time. Secondly, That he would earnestly and strictly forbid and inter­dict all Pillaging, Extortion, Rave­ning, and Wickedness whatsoever. Thirdly, That in all Judgments he would regard Equity and Mercy, that [Page 12]he might receive Mercy from God, und that all people by his Justice may en­joy a firm and inviolable Peaee.

He says further, that it is the Kings part and duty (he being Gods Vice­gerent on Earth) to prefer right be­fore wrong, Equity before iniquity, that all his Subjects might live ho­nestly, that none of them hurt the other, and that every one of them may have and enjoy what to him of right belongs. He ought to exceed all his Subjects in Power; He ought to have no Equal, much more ought he not to have any Superiour, espe­cially in administration of Justice, that it may be truly said of him, Mag­nus Dominus noster, & magna virtus ejus, with a great deal more to the same effect.

In the next chapter he proceeds, and says, Bract. l. 3. so. 108. Dictum est in proxi­mo de ordinaria Jurisdictione quae pertinet ad Regem, &c.

In the precedent Chapter the pri­mitive and fundamental Jurisdiction [Page 13]which belongs to the King is treated of; it follows now to treat of the delegated, derived and substituted Jurisdiction, where a man hath no Authority of himself, but what is committed to him, as when he that doth so delegate or substitute ano­ther, cannot himself determine every particular Cause, and to the end his labour may be the easier, by dividing the burthen amongst divers other persons, he ought to choose in his Kingdom wise men, fearing God, in whom there is sincerity and truth of speech, who hate Covetousness, and of such to constitute Judges, Sheriffs, and other Bailiffs and Ministers, to whom may be referred as well Que­stions upon doubtful matters, as Complaints upon injuries, who will not decline the course of Justice to the right hand nor to the left, for hope of Reward, nor fear of Punish­ment. And a little further, treating of the several sorts of Justices, he says thus; Item Justiciariorum qui­dem [Page 14]sunt capitales generales perpetui & majores a latere, Regis residentes, qui omnium aliorum corrigere tenentur injurias & errores; sunt etiam alii perpetui certo loco residentes sicut in Banco, loquelas omnes de quibus ha­bent warrantum terminantes qui om­nes Jurisdictionem habere incipiunt praestito sacramento; item sunt alii Itenerantes de loco in locum sicut de Comitat' in Comitat' quando (que) ad om­nia placita quando (que) ad quaedam speci­ali ficut ad Assisas tantum & Gaolas; Et qui authoritatem habere incipiant sine sacramento cum breve Domini Regis receperint de waranto sunt etiam Justiciarii constituti ad quosdam As­sisas duas vel tres vel plures; qui qui­dem perpetui non sunt quia expleto Of­ficio Jurisdictionem amittunt: That is to say, Of Judges some are chief, uni­versal, constant, and of greater power than others, always with the King, whose business it is to correct the Injuries and Errors of other Judges; and there are others that are of a con­stant [Page 15]continuance, resident in a cer­tain place; as in the Bench, determi­ning all Pleas whereof they have a warrant to determine; all of whom begin to have Jurisdiction by taking the Oath of their Office. Also there are other Judges that move from place to place, as from County to County, sometimes to determine all Pleas, sometimes some particular Pleas, as Assizes only and Gaol-deli­veries, whose Authority begins with­out any Oath, when they receive the King's Writ for their Warrant; and there are Judges constituted to deter­mine some certain number of Assizes, as two, three, or more, who are not of constant continuance, but having done what they were appointed to do, they lose their Jurisdiction. And a little further, Et quamvis quidem e­orum perpetui sunt, ut videtur finitur ta­men eorum Jurisdictio multis modis, scilicet mortuo eo qui delegavit, vel mor­tuo eo sub cujus proprio nomine causa delegatur. Item cum delegans revoca­verit [Page 16]Jurisdictionem, vel alium dederis Justiciarium: That is, Altho' some of the said Justices are of constant continuance as it might seem, yet their Jurisdiction may be determin'd several ways; that is, by the death of him who gives them Authority, or by the death of him in whose name the Suit is begun, or when he that delegates, or gives the Authority, doth revoke the Authority and Ju­risdiction which he gave, or appoints another Judge. And to conclude that matter, he says, That no Judge so substituted or delegated by our Lord the King, can substitute or de­legate another.

Thus far Bracton; whence it is most clear, that all primitive and ori­ginal Jurisdiction was in the King, and all substituted and delegated Ju­risdiction was derived from Him on­ly, and under such limitations as he directed, so as the Judges did act just­ly; the main charge of administring Justice being on Him; and he fre­quently [Page 17]sate himself in Judgment, assisted by his Capitales Justiciarios à latere suo residentes, who assisted him in the exercise of his Jurisdiction, and eas'd him of trouble; but they ne­ver pretended to deprive him of his power of hearing and determining himself, or changing his Judges, or assigning them Jurisdiction as should be needful, according to the modern Doctrine of some; for he had both complete Jurisdiction, and designati­onem Justiciariorum, in himself; and it was upon good reason this power was originally placed by God in Kings, and consented unto, and ap­proved of by good men; for by the assistance of, and reasoning with their Judges, they could never fail of dis­cerning right Judgment, and their affection to their Subjects (like a good Father to his Children) being equal to all, it is not likely they should be partial in their Judgments; and their Royal Estate is such, as not to value Bribes or Rewards: [Page 18]So that there is not so much reason to fear Injustice from a King, as from a profess'd Lawyer, (like my self) whose aim and design (perhaps) from his Horn-book, was gain and profit, and to raise himself a Name and Fa­mily in the world. I can but wonder then, whence started that humour in men, rather to trust any body in de­ciding their Controversies, than the King? sure it could be from no just Principle.

Besides the fore-mentioned Au­thor Bracton, there are others of the same standing, that maintain the same Doctrine.

The next I shall name is one Horn, who about the time of Edw. 1. com­piled a Book Of the Laws and Ʋsa­ges of England, a great part whereof (as Sir Edward Cooke in his Preface to the 9th. part of his Reports affirms, were such Laws as the Kingdom was govern'd by for about 1100 years then past; to which Book he gives a mighty credit, and in matters of [Page 19]difficulty is very frequently his ipse dixit; and that Author says, Mirror 232. That Jurisdiction is the chie­fest Dignity that appertains to the King: and thereof, he says, there are two sorts, and he calls them ordinary, and assign'd, which are the same with Original and De­legated, as the other Author terms them. Ibid. 23.2. Jurisdiction (Tays he) can be assign'd by none but by the King; and he may do it, because be cannot without assistance perform such a charge; and therefore it was of old ordained, that there should be a Seat, and a Chancellor to keep it, and grant Writs remedial to all Complain­ants without delay. This was the Chancellors Province then.

And again he says, Ibid. 234. Ju­risdiction est un porat a dire Druit; a power of comman­ding right to be done; and this po­wer God gave unto Moses, and such as hold the like place as he; and this power belongs unto the King within [Page 20]his Dominions, and He, by his Au­thority-Royal, makes his Justices in several degrees, Ibid. 235. and doth limit to every one his po­wer after several manners. And there he enumerates divers sorts of Com­missions and Courts; and speaking of the chiefest Justices of all, he says, They determin'd matters more or less, according to the nature of their Com­mission: From whence also it fol­lows, there were no Judges that had, or pretended to have, any Jurisdicti­on originally or fundamentally in themselves; but what all of them had, was by deputation and delega­tion from the King. Furthermore, Edm. 1. out of his Princely care that his people should be govern'd by certain and known Rules, caused the Laws and Rules of Go­vernment, Britt. so. 1. and disposition of Property, which then to fore had been used in the Kingdom, to be put in writing, and publish'd in his own Name; and at the same time com­manded [Page 21]the use and practice of those Laws in all points throughout his whole Dominion; saving, and al­ways reserved to himself, the power of repealing, altering, and amending of them, as should seem good to him, with the assent of his Earls, Barons, and others of his Councel; and sa­ving such Usages and Customs as had been time out of mind used, so that they be not discourdants a droft. And there he proceeds in this man­ner, viz. En primes en droft de nous mesmes & nostre Courte avouns issint ordeyne, &c. which is to this effect, That first of all, in the right of Himself, and of his Court, because he could not in his own Person hear and determine all the complaints of his people; and to the end that his charge should be divided as is there­by appointed, he did ordain, and his will and pleasure was, That his own Jurisdiction should be superiour to all the Jurisdictions in his Realm: So that in all manner of Felonies, Tres­passes, [Page 22]Contracts, and in all manner of Actions real and personal, he had power to give, and cause to be given, such Judgments as thereto belonged, without any other Process, (where he knew the direct truth) as Judge. And there also he appoints, That the Steward of his Houshold should re­present Him within the Verge, and he assigned him his Jurisdiction, which was, to hear and determine the presentments of Articles which concern the Crown, whensoever it should seem good to the King; And moreover, he will'd, that Justices in Eyr should be assign'd to hear and determine those Articles in every County, and in every Franchise, from seven years to seven. And there he gives the like power to his Justices of Ireland and Chester; and wills further, That the Count or Earl of Norfolk, by himself or some other Knight, should always attend upon the King and his Steward within the Verge of the King's House, so long as he should [Page 23]hold the Office of Marshal. And there he appoints the Jurisdiction of the Ju­stices assign'd, Britt. fo. 2. to follow the King, and be where He was, if in England; and that they should have conusance to amend false Judgments, to determine Appeals, and other tres­passes done against the Kings Peace and Jurisdiction. He also appointed a Coroner to be in the Kings House, and in every County (un Viscount) a Sheriff; and that under those She­riffs there should be Hundreders, Serjeants and Bailiffs, who should attend upon the Sheriffs. He also ap­pointed Coroners in every County, and allotted them their Jurisdiction. And moreover, his will and pleasure was, That there should be Justices al­ways residing at Westminster, or else­where, (where he should appoint) to de­termine such common Pleas as the King should command them by his Writs, so as the Pleadings arising thereupon should be recorded. He set­tled the Jurisdiction of the Exche­quer [Page 24]Court, and ordained, That there should be Justices assign'd for every County, to have conusance in such causes as the King should command by his Letters-Patents touching Pety-Assizes, and of other things whereof the Kings will should be they should make record, and that there should be Justices of Gaol-delivery in eve­ry County; And he granted to the said Justices, that they should have the keeping of the Records of the Pleas pleaded before them; But they were not to rase or amend their Rolls, or to make Record contrary to their Enrollments; Also, that the power of the Justices should be li­mited in such manner, that they ex­ceed not the points contained in the Writs or Presentments of Jurors, nor complaints to them made, saving such incident matter, as without which the original causes could not be determined. And he utterly for­bids and prohibits that any shall have power to amend any unjust or [Page 25]erroneous Judgment of his Justices, but only those Justices which fol­lowed Him and his Courts, (who thereunto were by him entitled) or Himself or his Councel; for that matter he specially reserv'd to his own Jurisdiction. He forbids also all his Coroners and Justices, except his Seneschal, his Steward, and his Justi­ces of Ireland and Chester, to make any Deputies to do any thing where­of they ought to make record, with­out the King's leave. He will'd also, That in Counties, Hundreds, and in the Courts of every frank Tene­ment, there should be Courts held by the Suitors; and also in Cities, Towns, Boroughs, and Franchises, &c.

Besides this Book, written by King Ed. 1.'s command, and in his own name, a while after there was ano­ther Book written, (by whom it is not known) called Fleta, and it was in the Reign of Ed. 2. or 3. And that Author says, That Judgment is [Page 26]a threefold act,Fleta lib. 1. cap. 17. fol. 16.of three per­sons at the least, the Judge, the Plaintiff and the De­fendant, without which there can be no Judgment: Nor (says he) can any one Judge in temporal mat­ters, but only the King, or his Substiutes and Delegates. And the same Author, in his Tract of the diversity of Courts, Fleta lib. 2. fol. 16. says as followeth: The King hath a Court in his Councel, in his Parliaments when present, the Prelates, Earls, Ba­rons, Nobles, and other skilful men, who are to determine the doubts of Judges, and where, upon appearance of any new sort of injuries, new remedies are provided; and where Justice is to be rendred to every one according to what belongs to him. He hath also his Court before his Steward in Aula sua, in his Hall, who now (says he) supplies the place of the Capitalis Ju­stiar'; whereof mention is made in the common Writ of homine replegi­ando, who was wont to hear the [Page 27]Kings own Causes, to rectifie false Judgments, and to do Justice to Complainants, without Writ; whose Power, in part, the said Steward of the Kings Houshold hath. Also, the King hath his Court of Chancery in several places in his House. He hath also a Court before his Auditors spe­cially appointed, to be near the King, whose Office extends but to the Justices and others of the Kings Ministers, ☞ to whom there was no power granted to determine what they heard, but to relate the matter to the King, that he might direct punishments according to the quality of the Offence. He hath also his Court and Justices, as well Knights as Clergy-men, (locum suum tenentes in Anglia) before whom, and not else­where, unless before Himself and his Council and special Auditors, false Judgments and Errors of Justices are reversed; and there are determined Writs of Appeals, and other Writs upon criminal Actions, and injuries contra pacem.

He hath also his Courts and his Justices residing in the Exchequer, and also in Banco (now called the Common-Pleas) at Westminster, and some are assign'd for Gaol-deliveries in every County, and some are affign­ed to take Assizes generally in every County, and some are itenerant, and constituted to hear and determine all criminal and civil Pleas. Also, the King hath his Justices itenerant, to hear and determine the Pleas of the Forest; and he hath his Court in eve­ry County, and in the Sheriffs Turn, and in Hundreds, and in the King's Manors, Cities and Boroughs, as in the Hustings of London, Lincoln, Winchester, York, and other places.

And the same Author having afterwards treat­ed more particularly of what Jurisdiction the King had de­legated to every Court, Fleta l 2. f. 75. cap. 33. he writes thus of the Chancery: There is, a­mongst the rest, a certain Office called the Chancery, which ought to be com­mitted [Page 29]to the care of some prudent man, as a Bishop, or Clergy man of great dig­nity, together with the care of the great Seal of England, under whom are all the Chancellors in England, Ireland, Wales and Scotland, and all Keepers of the Kings Seals, (except the Keeper of the Privy Seal) to whom are asso­ciated Clerici honesti, honest and circumspect Clerks, sworn to our Lord the King, and who in the Laws and Customs of England have ample knowledge; whose Office it is to hear and examine the Complaints of Com­plainants, and to grant due remedy by the King's Writ, according to the na­ture and quality of the wrong. And there he treats at large of the Offi­cers, Clerks, and Business of the Chancery, which was to make out Remedial or Original Writs, and Judicial Writs, also upon Recogni­zances and Contracts made in the Chancery, and enroll'd there: but not one tittle or mention is there made by any of the said Authors, of [Page 30]any Superiority the Lord Chancel­lor or Lord Keeper; or the Court of Chancery had over the Proceedings of any of the other Judges, either to examine, correct, or rectifie their Judgments, or stop execution there­of, upon any account, colour or pre­tence whatsoever; which is a most convincing proof, the Chancellor then had no such power.

SECT. III. What is meant by Judging ac­cording to Equity; and by Whom it was anciently per­formed.

HAving laid the foundation of my present purpose upon what I find in the fore-mention'd Authors, I think it not amiss to say somewhat touching their credit; and first of all, that which gives them a reputa­tion with me, is, that they set down [Page 31]what they themselves of their own knowledge knew to be true; they relate what the Law was at the time of the writing of those Books, they took nothing upon trust from other hands, but set down what they them­selves knew to be practice. Next, they were men of great Eminency; Bra­cton was a learned Judge, and it was his zeal to Justice induc'd him to write; Britton was a Book writ by the King's own command, and pub­lish'd by his approbation; and the others, Mirror and Fleta, have al­ways had a great reputation amongst the English Lawyers, not only anci­ent, but modern; and Sir Edward Cooke, who once was honour'd with the title of the Oracle of the Law, in his first Institutes, in every page al­most quotes those Authors for proof of his assertions; and so doth Stan­ford in his Pleas of the Crown: from whence I conclude, that what they wrote for Law, was Law then; and if so, it is Law now, saving wherein­it [Page 32]it is alter'd by the Kings Parliamen­tary Act; nothing less than That could change the Law.

Bracton, Bract. f. 3. speaking of Equity, says, Equitas autem est rerum canveniontia quae in paribus causis paria desiderat Jura, & omnia bene coaequiparat: It is a certain sort of accord and congruity in things, which affects the like Judgments in like Cases, and equally and indiffe­rently considers all circumstances. Equity is that Right which arises and appears upon a due considerati­on of the written Law, the circum­stances of the matter in question, and that natural Justice which a good conscience dictates, and to judge and determine the matter according­ly, I take to be a judging according to Equity.

It should seem that all the Judges mentioned by the said Authors, Eritt. so. 1. were ty'd to proceed and judge according to prescribed Rules; for by Britton it appears, [Page 33]that it was the King's will the Laws (which are Rules) should be set in writing, and used and kept in every point, saving to himself, with con­sent of his Counts, Barons, &c. po­wer to repeal and amend them; but it belong'd to himself alone, princi­pally and in chief to amend false Judgments of his Justices generally, as appears by this; Car ceo reser­douns nous especialment a nostre Jurisdiction.

The King's command to use the Laws and Rules in every point strict­ly, was general to all his Judges; but it was only He that had power in all his Judgments to regard Equi­above Rules; and he had not only power so to do, Bract. lib. 3. fo. 107. but he was oblig'd to it by the latter part of the Coronation-Oath before-recited. Bract. lib. 2. fo. 24. It was the King only had an extraordinary Prehemi­nence over the prescribed Rules and [Page 34]Forms of Law, to moderate the ri­gour and extremity, and supply the defects thereof upon occasion, when his Judges could not exceed the Rules prescribed them; and this power is as necessary as any thing can be for the right distribution of Justice; for it is impossible to make such Rules before-hand, as may suit with all cases; for an extraordinary circumstance may sometimes happen in some cases, that to judge thereof according to general and prescribed Rules of Law, might be to wrong the party, and so make summum jus, summa injuria. But our ancient Kings did not entrust this Power at any time, as I find, with any single person: Els. Office, ch. fo. 25. For, during the Reign of both the Willi­ams, Henry 1. King Ste­phen, and Henry 2, &c. until Ed. 3's. time at leastwise, Dud. Orig. Jud. fo. 25. if not after, there still continu'd a particular Court be­longing to che King, which was the [Page 35]place of Sovereign Justice, both for matters of Law and Equity, called Curia Domini Regis, and Aula Regia, or magna Curia, where He himself oftentimes sate in person; but there he had his Justices à latere suo seden­tes; as namely, his Chief-Justice, his Chancellor, his Constable and Mar­shal, and such others of his Nobles as the King pleas'd to associate to him­self for that purpose: The Justice, to inform the King of what was the strict Rules of Law; Capital' Justic' praesider primus a Rege in Regno C. 4. int' fo [...] to Cancellarii An­gliae Dignitas est ut secundes a Rege in Regno habeatur, ibidem. fol. 78. and the Chancellor, who was usually a spiritual man, to give advice ac­cording to Equity, and there matters of Equity were then determined; And to this Court any man might appeal from the inferiour Courts, to have the Errors of the Judges cor­rected and amended; and if the King were absent, the Justiciar was [Page 36]the King's chief Representative.

But when it was that first the Chancellor had that power of judg­ing according to Equity so given him that he alone could do it of course, is not certainly known.

Some suppose, Orig. Ind. fol. 36. [...] Lamb. [...]. that in Ed. 1. 's time, when the Power of the Ju­sticiarius Anglia de­clin'd, the King, together with the Great Seal, entrusted the Chancellor with his own extraordinary prehe­minence of Jurisdiction over the Common Law, viz. Power of judging according to Equity: but that Authors reason is not sufficient to maintain that supposition; for he gives no reason for it, but that be finds no mention made of any such power in the Chan­cery by Britton; which was wrote about the beginning of the Reign of E. 1. Yet Britton mentions the Jurisdiction of all the other Courts, and he concludes from thence, that if the Chancellors had then had any [Page 37]such power, Britton would have menti­oned it: which indeed is a good ar­gument that the Chancellor had no such power then, but it doth not fol­low of consequence, that because he had it not when Britton was writ, that he must needs have it immedi­ately thereupon: therefore we must come a little, yea a great way nea­rer, before we can find this power fixed in the Chancellor alone.

No doubt but when the Justiciari­us Angliae was laid aside, the Chan­cellor, who before that time was but secundus à Rege in Regno, became then primus à Rege, and was Presi­dent over the rest when any matter of Law or Equity was determined in magna Curia, in the absence of the King; but I cannot find he exerci­sed the Judicative power in mat­ters of Equity alone, until very late­ly, tho' he did several other things alone. I find, G. 4. Inst. fo. 83. Mag. Cha. 553. that in R. 2.'s time a matter being compromited by [Page 38]both sides to the King, the King re­ferred it to the Councel, and they make a Decree, which Decree was sent to the Chancellor to confirm un­der the Great Seal, which was done; after which one of the parties petiti­oned the King that the matter might be left to the determination of the Common-Law; whereupon the King, by warrant under the Privy-Seal, re­quires the Chancellor to make Super­sedeas to the Decree, which was done: whereby it appears, the Chan­cellor alone did nothing but award Process upon the Decree made by the Councel, as the King and They directed. And this, Sir Edw. Cooke says, was the first Decree in Chancery that ever he observed in all his read­ing.

He also cites some opinions, Cooke's Magna. Charta. 553. that the Court of Equity in Chancery began under Henry Beaufort Son of Jo. of Gaunt, who was Chancellor in the beginning of H. 6.'s time; and his [Page 39]reason for it is, because there is not in any Book-Case, or Report of the Law, any mention made of any Court of Equity held before the Chancellors, be­fore the Reign of H. 6. and yet all of them speak of the ordinary Power and Jurisdiction of the Chancery: But in the Reign of H. 6. and E. 4. Cases have been reported to have been de­termined in Chancery, according to Equity; but it is observable, that most of those Causes were heard before several others, together with the Chancellor; and that in matters of doubt, he adjourn'd the patties into the Exchequer-Chamber before himself and the Justices of both Ben­ches, and made his Decrees accor­ding to their Opinion: As for in­stance; In the Year-book of the 37th. of H. 6. fo. 13. the Case was, That one A. had bought of J. R. seve­ral Debts due to J. R. from several per­sons, and A. gave a Bond to J. R. for the sum; And forasmuch as those Debts were but things in Action, and [Page 40]no Property was chang'd, nor no Acti­on accru'd by the bargain to the said A. but the Debtors remained Debtors still to the said J. R. so that A. had nothing for the money secured by the ob­ligation. A. prays in Equity to be dis­charged of the said Bond against J.R. and prays a Subpaena against J.R. and it was granted, and the Defendant answered, and the Chancellor, because the matter seemed doubtful to him, ad­journ'd it to the Exchequer-Chamber before himself and the Justices of both Benches, and there it was debated, and by the Opinion of all the Justices, be­cause the said A. had not quid pro quo by that bargain, therefore the Bond ought to be released, and it was decreed accordingly.

The like will appear to be done by the Book-cases following, 37 H. 6. f. 35, 36, 39 H. 6. f. 26.7 E. 4. f. 14, &c. And if he did not adjourn the Causes into the Exchequer-Cham­ber, he always had the Judges, or some of them, with him at all hea­rings, [Page 41]and decreed according to their Opinions; for the entry of the De­crees in Chancery of H. 6.'s time are after this manner, Els. Off. of Chan. fo. 51. says the Author cited in the Margin, viz. Conside­ratum est per Curiam ex assensu Jo­hannis Fortescue Milit' Capital' Ju­sticiar' Domini Regis ad placita te­nenda & diversorum aliorum Justicia­riorum & servient' ad legem in Curia praesent' existent' quod, &c. and some­times it was, ex assensu omnium Justi­ciar' utrius (que) Banci, and sometimes of one or two Justices; but before the end of that King's Reign, the manner of entry of the Decrees was somewhat altered, and was in this manner; Considerat' Adjudicatum & Decret' est per Cancellarium & per Curiam Cancellar', without particu­lar mention of any Justices or others, and so it continued till H. 8.'s time; But towards the end of his Reign, whereas before that time the Decrees were in Latine, and in very few [Page 42]words, and entred on the back-side of the Bills, they then began to be drawn up in English apart by them­selves, and therein reciting the Bill and Answer, and afterward were en­roll'd in Rolls by themselves: The ancientest of that nature that I can find, are in the Rolls Chappel, and are of the 27th. and 28th. of H. 8. when Sir Thomas Audley was Chan­cellor. In Queen Maries days the entry of all the Decrees is, That it is Ordained, Adjudged and Decreed by the Lord Chancellor, and by the whole Court of Chancery, That so and so: and after the same manner it is at this day, saving that the conjunctive clause And by the High-Court of Chancery, (which in the beginning was not in­certed in vain) is now altogether superfluous and impertinent; for the Lord Chancellor or Lord Keeper, without the assent or consent of any other, have made Decrees for some years past according to his own libe­rum arbitrium, as I shall shew in the next Section.

SECT. IV. Of the modern and present Power and Jurisdiction of the Court of Equity in Chancery.

IN the Chancery are two Courts, C. 4. Inst. fo. 79. one Ordinary, wherein the Lord Chan­cellor or Lord Keeper of the Great Seals proceeds according to the right line of the Law, and if he gives an Er­roneous Judgement, Plowd. 393. que B.R. est le Pluis hault. Court. Dyer 315. there a Writ of Error lies returnable in the Kings Bench; the o­ther is Extraordinary, wherein the Chancellor ought to proceed according to the Rule of Equity, which according to what it is now taken, is what is according to the Chancellor's single Conscience, [Page 44] quecun (que)Els. Office of Ch. fo. 41.sit; it is (say some,) an absolute Power without con­troul, other then in Parliament, and spreadeth it self most largely with­out any Limitation, it stops the pro­ceedings of all the other Courts at Westminster, it renders all their Judgements vain and ineffectual, durante bene placito, of the Chan­cellor or Keeper, and stops Execu­tion, untill his Conscience be satis­fied whether the Plaintiffs at Law ought to go on or no, by which means when a man hath a Judgement fairly obtain'd at Law, or intends to Sue there for a Just and True Debt, if the Defendant at Law becomes Plaintiff in Chancery, and he or his Councel hath but Invention enough to suggest any sort of Equity, there's an Injunction had of course, until the Plaintiff at Law can put an An­swer to the Bill; which if he lives any thing remote from London, it will take up a Month or two's time, [Page 45]or more, to send an Answer, and in the mean time the Debtor prepares his Bag and Baggage, and by that time the Injunction can be Dissolv'd, which cannot be without a conside­rabe Charge, the Gentlemen is per­haps got to Ireland, Jamaico or Japan.

What ever is now finally deter­min'd in Equity in Chancery, it is done by the Chancellor or Lord Keeper alone, and though the Clerks and Registers retain in drawing up their Decrees somewhat of the old form, ziz. That it is Decreed by the Lord Chancellor or Lord Keeper, and by the High Court of Chancery; which implyes there were some o­thers ought to have a hand in ma­king the Decree; yet there is none that now have, for though there are two at least of twelve that bear the name of Masters in Chancery; and heretofore were accounted Socii and Collaterales to the Chancellor that daily sit in Court one on each side [Page 46]of the Lord Chancellor or Keeper; yet they are now but as his Atten­dants, and speak not a word in de­termining any Causes, their only business being to wait and expect how many References the Lord Chancellor will make to them touch­ing insufficient Answers, Scandalous Bills or Answers, Contempts, sta­ting of Accounts and the like, they being to have a Fee for their Report therein, yet that Report is subject to the controul of the Chancellor or Keeper, if he pleases; And if at any time, which is but seldom, any of the Judges are sent for, it often proves to be meerly out of Forma­lity, for their Opinions are seldom regarded.

It is said of the Chancellor and Keeper of the Great-Seal of England, Els. Office of Cla fo. 6. that he is like the Roman Praetor, in whose Constitutions there were said to be two kinds of Powers; one was, when without [Page 47]the Advice of the Judges he would Manumittise, Emancipate, Award Possessions of Lands and Goods, Commit Wardship of Pupills, and grant Injunctions as he thought con­venient: The other sort of Power the Praetor had, was when he pro­ceeded to Judgment according to Leges Regis, &c. The Kings Laws, the Laws of the Twelve Tables, the Civil Law, Laws made by the con­sent of the People, or Decrees of the Senate, and therein he was not absolute as in the other: But out Chancellor or Keeper and their Prae­tor do do differ very much, for the Praetor would at his Entry into that Office propound and publish certain Edicts, which were Principles and Fountains out of which he would derive his Decrees; but what Rules or General Notions the Lord Chan­cellor or Lord Keeper in England doth assign unto himself for Limita­tion of Equity, and direction of his Conscience, those lie hid and con­cealed [Page 48]in his own Breast, so that neither the Man of Law nor Equity is able to inform his Client what is like to become of the Cause, and consequently no man is able to know what is his own, so that it may be said of this great Officer arm'd with this great Power, as was said of Jeremiah's Figs; Jer. 24.4. Those that were good, were very good; but those that were evil, were exceeding evil: For that Power if it be used according to the true intent and design of it, is of Excellent use, Optima corrupta sunt pessima. but if a­bus'd, it is the greatest oppression imaginable; and that that Power hath been a­bused, will appear by the next Section.

SECT. V. Of the Corruptions and Mistakes of some Great Chancellors.

I Find in the Journal Book of the Lords House in the year 1620. and in the 19th. year of King James, that on the 19th. of March in that year, a Message was sent from the Lower House to the Lords, importing; That they had found Abuses in certain Eminent Persons, about which they desired a Conference with their Lordships, that such course might be taken, as might stand with the Honour and Dignity of a Parliament; which was agreed to by the Lords, and the Conference was appointed to be that afternoon; and the next day it was Reported to the Lords by the Lord Treasurer: That at the Conference was deliver'd the desire of the Commons to inform their Lordships [Page 50]what they had found in their Inquiry after the Abuses of the Courts of Justice, where, after having highly com­mended the incomparable good parts of the then Lord Chancellor, and magnified his place from whence Bounty, Justice and Mercy were to be distributed to the Subject, with which he was wholly Intrusted: They declared that the Lord Chan­cellor was Accused of great Bribery and Corruption committed by him; And instanced two Cases, one con­cerning one Christopher Awbrey, and the other concerning one Edward Egerton: As to Awbrey, the matter was, That He having a Cause in Chan­cery between Him and Sir William Brunker, Awbrey feeling some hard measure, was advis'd to give the Lord Chancellor 100 l. which he deliver'd to his Council Sir John Hastings, and He to the Chancellor; but notwith­standing, the business proceeding slow­ly, Awbrey writ several Letters, and deliver'd them to the Lord Chancellor, [Page 51] but could never have any Answer from his Lordship; but at last delivering another Letter, his Lordship told him, if he importun'd him, he would lay him by the Heels: As to Egerton's matter, it was set out at large at the Conference; and will appear by the substance of Egerton's Petition to the Lords, the effect whereof (amongst other things,) is as follow­eth; That the said Edward Egerton being Ʋnmarried and Sickly, he settled his Estate to the use of himself and the Heirs Males of his Body, and for default of such Issue, the Remainder to Sir John Egerton and his Heirs, which Settlement was voluntarily made, without any consideration paid for the same, and with Power of Re­vocation; and that Sir Rowland Egerton, Son and Heir of the said Sir John Egerton, had got the said Settlement into his hands, and all the Petitioners Writings; and that the late Lord Chancellor Elsemere had Decreed, that Sir Rowland Egerton [Page 52] should have the manner of Wrinehal and Haywood Barnes, being a great part of the Petitioners Inheritance, worth 600 l. per Annum, without any cause of Equity contain'd in the said Decree; and that the Petitioner had made humble Suit to the Lord Viscount St. Albans, then Lord Chancellor of England, to have the benefit of a Sub­ject, to recover his Ancient Inheri­tance by Ordinary course of Law; and that his Lordship took from the Peti­tioner 400 l. in Gold, and 52 l. 10 s. in Silver Plate, which Money was accepted of by the said Lord Chan­cellor, saying withall, That the Peti­tioner had not only Enrich'd him, but laid a tye upon him to do the Peti­tioner Justice in his Rightful Causes, and by great Oaths and Protestations drew the Petitioner to Seal an Obliga­tion to his Lordship of ten thousand Marks, to stand to his Lordships Award; and that afterwards the Peti­tioner was divers times sent for by one Robert Sharpeigh, then Steward of [Page 53]his Lordships Houshold; and that the Petitioner was several times offer'd, that if he would then presently pay 1100 l. in ready Money, that is to say, 1000 l. to his Lordship, and 100 l. to Sharpeigh, the Petitioner should have all his Lands Decreed to him, which Money he could not readi­ly pay; and that afterwards the said Lord Chancellor did not only confirm unto the said Sir Rowland Egerton, the Land which he then held of the said Petitioner's Inheritance, being worth 600 l. per Annum, but took a­way more Lands worth 15000 l. and Decreed the same to Sir Rowland Egerton, who did not claim any Title thereto, before the said Bond taken, and Ʋnlawful Decree made; and that he also Decreed the Bond should be Assigned to Sir Rowland Egerton: And the Petitioner having spent 600 l. in Suits, and being depriv'd of all his Evidences by the said Lord Chancel­lor, and by the indirect practice of the said Sir Rowland: He was likely to [Page 54]be utterly defrauded of all his Anci­ent Inheritance, contrary to the com­mon Justice of the Land, unless re­liev'd by their Lordships. The Contents of which Petition, the Petitioner made Oath to be true; and he and Sharpeigh were fur­ther Examin'd touching the mat­ter.

By the Journal of the Lords House for the 21st. of March, in the year 1600. It appears that there had been Information given to the House, that there had been a Cause depen­ding in Chancery between one Smith­wicke and Wiche, which was matter of Account, and had been Referred to Merchants, and the Merchants had Certified on Smithwick's behalf; yet to obtain a Decree in the Cause, he was told by one Burrough, (that was near to the Lord Chancellor) that it must cost him 200 l. which he paid to the use of the Lord Chan­cellor; yet his Lordship Decreed but one part of the Certificate: [Page 55]Whereupon he treats again with Burrough, who demands another 100 l. which Smithwick also paid to the use of the Lord Chancellor; then his Lordship Referr'd the Ac­counts again to the Merchants, who Certified again for Smithwick, yet his Lordship Decreed the second part of the Certificate against Smith­wick; and the first part, which was formerly Decreed for him, his Lord­ship made doubtful: whereupon Smithwick Petition'd to the Lord Chancellor to have his Money again, and he had it.

It appears further by the said Journal Books, that several days were in a great part Employed in taking Examination of Witnesses in proving and detecting the Briberies and Corruptions of that Lord Chan­cellor; which being ended and col­lected, were order'd to be Tran­scrib'd with the Proofs; and on the 24th. of April following were order'd to be sent to his Lordship, with a [Page 56]Message that the Lords requir'd his Answer with all convenient speed.

The Corruptions, as they are men­tioned to be prov'd in the Journal of the Lords House of the said 24th. of April, are as followeth:

• That in the Cause between Sir Rowland Egerton and Edward Egerton, his Lord­ship received on the part of Sir Rowland Egerton before he decreed for him, — 500 l.
• Item, of Edward Egerton in the said Cause, — 400 l.
• Item, in the Cause between Hodie and Hodie, a dozen of Buttons (after the Cause end ed) of the value of — 50 l.
• Item, of the Lady Wharton, 310 l.
• Item, of Sir Tho. Munke, 100 l.
• Item, of Sir John Trevor, 100 l.
• Item, of one Young, — 100 l.
• Item, of one Fisher, — 106 l.
• Item, in the Cause of Ken­day and Valore, of Kenday a Cabinet worth — 800 l.
• [Page 57]Of Valore (borrow'd at two times) — 2000 l.
• Item, in the Cause between Scot and Lenthall, of Scot — 200 l.
• Item, of Lenthall, — 100 l.
• Item, of one Wroth, who had a Cause between him and one Mannering, — 100 l.
• Item, of Sir Ralph Hansby, 500 l.
• Item, in the Lord Moun­taine's Cause, of the Lord Mountaine, and more promis'd at the end of the Cause, — 600 or 700 l.
• Item, of one Mr. Dunch, — 200 l.
• Item, in a Cause between Raynold and Peacock, 200 l. in money, and a Diamond Ring worth 5 or 600 l. — 700 or 800 l.
• Item, of Peacock, — 100 l.
• Item, in a Cause of Barker, 700 l.
• Item, there being a reference from his Majesty to his Lord­ship of a business between the Grocers and Apothecaries, he had of the Grocers — 200 l.
• [Page 58]Of the Apothecaries, (be­sides a rich present of Amber­greece) — 150 l.
• Item, of the French Mer­chants, to constrain the Vint­ners of London to take 1500 Tuns of Wine; to accomplish which, he used very indirect means, by colour of his Office and Authority, without Bill or other Suit depending, as threat­ning and imprisoning the Vint­ners, for which he receiv'd of the Merchants — 1000 l.
• Lastly, That he had given way to great exactions by his Servants, in respect of private Seals, and sealing In­junctions.

By the Journal-book of the 25th. of the said month it appears, that Ba­ron Denham and Mr. Attorney-Ge­neral reported their delivery of the Charge of the Lord Chancellors cor­ruptions to his Lordship, and that he said he would return the Lords an [Page 59]Answer: whereupon the Lords soon after sent a message by Baron Den­ham and Mr. Attorney, to know if he would make his Confession, or stand to his Defence; to which they brought answer, That his Lordship would make no defence to the charge, but meant to acknowledge corruption, and to make a particular confession to every point, and after that, an humble submission; but he humbly crav'd liberty, that wherein the charge was more full than he finds the truth of the Fact, he may make declaration of the truth in such particulars; the charge being brief, and not containing all circumstances: Whereupon the Lords sent the same Messengers back to him, to let him know, they had granted him time till Monday next, being the 30th. of April, at 10 in the morning to send such Confession as his Lordship in­tended to make.

On the 30th. of April the Lord Chief-Justice Leigh (who then exe­cuted [Page 60]the place of Lord Chancellor) in the Lords House, signified to their Lordships, that he had received a Letter and paper Roll sealed up; which being delivered to the Clark of the Lords House, and being ope­ned, & found directed to their Lord ships, it was read, and began thus:

The Confession being read, the Lords sent twelve Lords to know if it was his own hand that subscrib'd the Confession, and whether he would stand to it, or no? and be­ing returned, they report, That they had shew'd it to him, and that he own'd it, and would abide by it: Whereupon it was ordered, That the Prince (attended by some of the Lords) should move His Majesty to sequester the Seal; which being ac­cordingly done, the Prince reports to the House, That he had mov'd the King therein, and that his Majesty had promis'd it should be done, and that he intended to have done it if they had not mov'd it.

The second of May following a Commissi­on was granted to Sir James Leigh Chief Justice, Vid. Rot. Parl. ejusdem temp. to Offi­ciate the place of the Lord Chancel­lor in the Lords House; and the Great Seal was taken from the Chancellor, There was not a single Lord keeper from that time until the 10 of July 1621. the Business of the Chancery being then performed by the Commis­sioners. and by Commission committed to be kept by the Lord Treasurer, the Lord Steward, the Lord. Chamberlain, and the Earl of Arun­dell.

The third of May the Com­mons sent a Message to the Lords to demand Judgment against the Lord Chancellor, to which the Lords re­turn'd answer; they were ready, if They with their Speaker would come to demand it; and the Com­mons being come to the Bar of the Lords House, the Chief Justice Leigh pronounc'd the Judgment, which was,

1st. That the Lord Viscount St. Albans should undergo a Fine and Ransome of 40000 l.

2d. That he should be Imprison'd in the Tower during the Kings pleasure.

3d. That he should be for ever un­capable of any Office, Place or Em­ployment in the State or Common­wealth.

4th. That he should never sit in Par­liament, nor come within the Verge of the Court.

I have been more particular in relating these proceedings of the late Lord Chancellor Bacon, because of the great Learning and Eminency of the Man, and the little need he had to be so Corrupt, he had nei­ther Wife nor Child to provide for; and if such a man was guilty of Bri­bery and Corruption, who may we be sure will not? And therefore great care ought to be taken to have Relief against such contingencies; for Corruption in a Judge of that high commanding [Page 67]Power, is far beyond all Robbery, Burglary, Rapine, or other Villa­ny the World can invent.

To Err wilfully, and out of a cor­rupt design; is a greater fault, and more unpardonable, than to err through mistake; but the hurt is the same to him that is injur'd by the wrong Decree; Therefore if we were sure there would never be any such Corruption any more, yet Pro­vision ought to be made against mi­stakes, since those have been very frequent: whereof I shall give some instances, and for which you shall need to look no further back then to the Journals of the Lords House in the last Session of Parliament at West­minster, where you may find that the 17th. of November 1680. a De­cree in Chancery was Reversed upon the Appeal of Crabb against Fenton, and the 22d. of the same Month a Decree in Chancery was Revers'd by the Lords upon the Appeal of Turner against Turner; and on the [Page 68]26th. of the same Month, another Decree in Chancery was Revers'd upon the Appeal of one Chute a­gainst Dacres, and many more Ap­peals were brought in that Parlia­ment, which yet remain undeter­min'd; and since the Lord-Keeper North's having the Seal, he hath Revers'd several of the late Lord Chancellor Nottingham's Decrees without any new matter arising since the Decree made, so that one of them must be mistaken, but which of them, will not appear but by the judgment of divers others of as great Learning and Judgment as them­selves, and so it is to be determin'd; for many may see more than one, and I conceave the King may give them Authority so to do, without putting the Kingdom to the Charge and Trouble of convening a Par­liament, as by the ensuing part of this Treatise will appear.

SECT. VI. That an Appeal to the King in the Intervals of Parliament, is an Ancient, Legal Remedy against mistaken Decrees in Chancery, with the manner of Proceeding therein.

IT becomes not a single man to be too positive in his own Opi­nion, therefore I shall only at pre­sent say, that I am most extreamly mistaken in my Calculations, if His Majesty hath not sufficient Power in the Intervals of Parliament, as the Law is at this day, being the 26th. of June 1683. to provide for his Subjects, and to Relieve them a­gainst unjust Decrees in Chancery, if the matter be duely look'd into, notwithstanding the Art and La­bour that hath been used to conceal it; Therefore for maintaining of that [Page 70]point, I shall once more repeat a Sentence out of Bracton, Et defen­dous generaiment a tout que nul ne eyt poer de amender nul faux Juge­ment de nous Justices sauve les Justices que suent nous et nostre Court que a ceo sont per nous en­titles ou nous mesme on nostre Councel cat ceo reservouns nous especialment a nostre Jurisdiction; Bracton fol. 3. and Fleta speaks to the same pur­pose, Habet enim Rex curiam sua &c. habet etiam curiam suam & Justiciarios suos tam millites quam Clericos locum suum tenentes in Anglia coram quibus & non alibi, Fleta l. 2. fo. 66. NISI CORAMSEMET IPSO ET CONCILIO SUO VEL AUDITORIBUS SPECIALIBUS, Falsa Judicia & Errores Justi­ciariorum Revertuntur & corri­guntur: Whence it is manifest that when those Authors wrote the Power of Reversing Erroneous (or Falsa) unjust Judgments of all other [Page 71]Courts was in the Justices that fol­lowed the King, and his Court be­ing thereunto Authoriz'd by the King; but if they had Err'd, the Error was to be Rectified by his Councel or special Auditors, such as the King should think fit, or by the King himself, the supreme Jurisdicti­on and Dernier resort being in the King himself, or where he pleased to place it, Car ceo reservonus nous especialment a nostre Jurisdiction.

And this is also declar'd to be so by Act of Parliament in the 52 of H. 3. cap. 10. which ordains, That noue from thenceforth, except out Lord the King shall hold in his Court any plea of false Judg­ments given in the Court of his Cennants, for such Plea especially belongeth to the Crown and Dig­nity of our Lord the King.

Though the Supream Jurisdiction were in the King to use as he saw best, it is but rational that if the Parliament were sitting at such time [Page 72]as any Complaints were made to him of any Erroneous Judgment or Decree, that he should refer the Examination and final Determina­tion of the matter to the House of Lords, who without any manner of doubt, are, and always were, the fittest Referrees the King could re­fer any matter to be determin'd, they being the chief Assembly of the Honour, Integrity, Wisdom and Justice of the Nation, and therefore it is but reasonable the King should take the measures of his final Deter­mination from their Advice, or re­fer it to them to determine, which is all one, Better or Abler Advi­sors being not to be found; but it is as true they had no power of Judg­ing by their own innate Authority, but by a delegated Authority from the Kings, as plainly appears by what is said before, and also by the Par­liament Roll of the 4 of Ed. 3. which is recited in Cotton's Records, In haec Verba, viz. The Treasons, Felonies, and [Page 73]other misdemeanors of Roger Morti­mer are particularly repeated, a great part of which Roll cannot be read, for that the Roll is mouldred; but in the end it appears, that the King charg'd the Lords and Peers, who as Judges of the Realm by the Kings Assent, ad­judged that the said Roger should be Drawn and Hang'd: Whereby it appears it is the Kings Charge to the Lords, and the Kings Assent that gives them Jurisdiction and Au­thority: And so it follows of necessa­ry consequence, that though they are the fittest for the King to Authorize to determine the mistakes and Er­rors of his Chancellors and other Judges; yet, if when they are not Assembled in a Parliamentary way, there is no reason nor authority a­gainst it, nor inconveniency by it, for the King to Authorize a convenient number of the Lords of the Parlia­ment and Judges that are near him to take course with Erroneous De­crees in the mean time until the Par­liament [Page 74]sits; And therefore it was that it was provided by Act of Par­liament the 31st. of Ed. 3. cap. 12. That the Lord Chancellor and Treasurer should have Power upon Complaint to take the Justices, and such other sage persons as they thought fit, to their Assistance, and to Examine the Judgments of the Exchequer Court. And if any Er­ror be found, they may corted the Rolls, and after send them into the Exchequer to make I thereof Execution: Which thing I con­ceive the King might have done of himself without Act of Parliament; and I conceive the Act made it a standing Rule to prevent often trou­bling the King upon every particu­lar occasion; and though there be no provision by that Act for any further Examination of the Judg­ment of the Chancellor and Trea­surer in that Case; yet it is not so final, but the King may upon Peti­tion to him, order a Writ of Error [Page 75]returnable in the House of Lords As­sembled in Parliament for a further and more due Examination of the matter if either Party thinks himself agrieved thereby, and from that time forward, ziz. the 31 of Ed. 3. there was no standing Order made by Act of Parliament, as to the Errors of the Court of Kings-Bench, for by that Name I shall now call the Suc­cessors of the Judges that followed the King mentioned in the aforesaid Authors, but it stood at the Kings meer pleasure, 27 El. 8. as for­merly, until the 27 of Queen Elizabeth: Yet our latter Kings before that Statute, for the most part used to refer the Examina­tion and Correction of such Errors only to their House of Lords in Par­liament, insomuch that for want of oftener referring it to their Councel, or to Specialibus Auditoribus, Special Commissioners, as Fleta affirms the King could do, as is mention'd in the beginning of this Section; it grew to [Page 76]be an Opinion, that Errors of the Court of Kings Bench could be recti­fied no where but in Parliament, as appears by the Preamble of that Sta­tute of the 27 of Eliz. Therefore and as the Preamble of that Statute men­tions, Because the Court of Par­lisament was not in those days so often held as in ancient time; and because in respect of the great Affairs of the Realm, such Errone­ous Judgments, (meaning those of the Kings Bench) could not be well consider'd and determin'd in time of Parliament; whereby the Sub­jects of the Realm were greatly hindred and desayed of Justice. It was therefore enacted, That the Er­rors of Judgments in the said Court of Kings-Bench in certain Actions therein mention'd, should be ex­amined and rectified in the Exche­quer-Chamber by such persons as in the said Act is mentioned; and after the Judgment is affirmed or tedersed, the Record, and all things [Page 77]concerning the same, shall be re­moved and brought back into the Court of Kings-Bench, that such further proceedings may be there­upon, as well for execution as o­ther wise, as shall appertain. And thereby it is reserv'd, That the par­ties shall not be finally concluded by such Reversal or Affirmation, but that they may sue in the high Court of Parliament for a further and more due examination of the said Judgment, in such sort as was thentofore used upon erroneous Judgments: And the manner then­tofore was, that before any Writ of Error could be brought to examine and correct Errors in Parliament, a Petition was to be preferred to the King for allowance thereof, and it was to be allowed by the King be­fore any such Writ of Error could be made, as appears by the Autho­rities in the margin; 1 H. 7. fo. 19, 20. Dy. fo. 375. which makes it most plain where & in whom [Page 78]the Supreme Judicative Power lay. And Judge Jenkins says, Jenk. Lex terrae, fo. 55. The reason of the Law, and the King's al­lowance of a Writ of Error, returnable in the House of Lords, is, for that the Judges of the Land, all of them being of the Kings Councel, and the twelve Masters in Chancery, assist in the Lords House, by whose advice erroneous Judg­ments are redrest: So that it appears plainly, their Judicative Power in that particular is not originally and fundamentally in themselves, but derived from the King, by his allow­ance thereof, who is fons & origo Justitiae; Bract. lib. 2. cap. 4. and, says Bra­cton, est enim Coronae Regis facere Justitiam & Judicium & tenere pacem sine qui­bus Corona consistere non potest nec tenere, hujusmodi autem jura sive Ju­risdictiones ad personas sive tenementa transferri non poterunt nec per priva­ta persona possideri nec usus nec exe­cutio Juris, nisi hoc datum fuerit ei [Page 79]de super sicut Jurisdictio delegata non delegari poterit quin Ordinaria rema­neat cum ipso Rege. And I find by the Journal of the Lords House, that the 10th. of December 1621. a Report was made by a Committee appoint­ed to search for Precedents touching Appeals to the Lords from Decrees in Chancery, In the Stat. 37 E. 3.18. by Gr. Councel is meant the Privy-Council That anci­ently all Petitions of that nature were directed to the K. and his great Coun­cel. From whence I gather, it is but a late practice, both to leave the King quite out of such Petitions, and to neglect praying his allowance, that the Lords may examine Errors of Judgements and Decrees; And perhaps it may prove of ill con­sequence hereafter, if not timely considered and rectified: the Supre­macy of Jurisdiction being the Su­preme part of Government, Mir. 232. & the King's chiefest Dignity.

By the foresaid Statutes of E. 3. and El. and some others since made, [Page 80]there is sufficient provisions against erroneous Judgments in all Courts at Law in the intervals of Parlia­ment, by Writs of Error, which are in nature of Appeals; which course (I conceive) the King might have taken, if no such Act had been made: But against the Judgments and De­crees of the Courts of Equity in Chan­cery, Exchequer Chamber and Counties Palatine, &c. there is no provision at all by any Parliamentary Act; that matter standing as it did by the Com­mon-Law, no Parliament having in­termeddled with it; which if they had, they had the same reason, or more, to desire the King to consti­tute a Court of Appeal from these Courts of Equity, as from other Courts. And it is a great Argument with me, (if there were no other) that it was conceived by the Parlia­ment, that there is a Power in the King alone out of Parliament-time to rectisie the Errors of the Decrees of all Courts of Equity, else the Parlia­ment, [Page 81]I presume, would have taken care to have provided against those, as well as against the Errors of the Court of Kings-Bench; which pro­vision was made, because they con­ceived those Errors not to be redres­sed but in Parliament; and the same reason that induced the Parliament to constitute Courts to redress the Errors of the Kings-Bench and Ex­chequer, viz. the unfrequency of Parli­liaments, and their being otherwise employ'd when they fit, may induce the King to appoint Referrees to re­ctifie Chancery-Decrees.

For the further clearing of this matter, it seems in Queen Eliza­beths time there was the like doubt made as now, Whether the Queen might relieve against the mistakes of the Chancellor or Keeper, in making his Decrees? And the Queen took the right way to be inform'd, she referr'd it to the Judges, to certifie to her their Opinion touching that matter: For it appears, Rolls Re. 1 p. 331. by the Authority in the [Page 82]Margin, that it was certified by all the Judges of England, in the Cause between the Countess of Southamp­ton and the Earl of Worcester in Chan­cery, that the Queen, upon Petition, might refer the matter to the Judg­es (but not to others) to examine and reverse the Decree, if there should be cause; and that the then Lord Chancellor agreed to that re­solution. And forasmuch as it is men­tioned in that Report, that the refer­rence ought to be to the Judges, and not to others: it is to be understood, that it was a point in Law was then in dispute, and in such Cases there must be some Judges amongst them; for, in arte sua cui (que) credendum est; and therefore Judges (whose pro­fession the study of the Law is) are presum'd to be best conusant of any what the Law is; and the Law is not to be unregarded in judging ac­cording to Equity, but both Law and Conscience are to be so inter­mix'd, as to produce a just Judg­ment; [Page 83]a skill of great curiousity, and ought therefore not to be final, but in the resolution of several men of great knowledge and integrity, since the least byass of affection or disgust to one side or other, may lead any single man a great way out of the way.

I presume this may be the mean­ing of that Report, because I find in the Year-book of the 27th. of H. 8. so. 15, &c. That the Kings Secreta­ry and Mr. Fitz-Herbert were join'd with the Chancellor to review a De­cree between the Prior of St. Johns and one Dockeray, where the Secre­tary gave rules in the Cause as well as the Chancellor.

The House of Lords themselves al­ways take the advice of the Judges; and to leave matters of Equity wholly to the Chancellor alone in the intervals of Parliament, is to give him a greater power than the Lords take to themselves in Parliament; which, I humbly conceive, ought not to be.

Besides this resolution of all the Judges, assented to by the then Lord Chancellor, it was afterwards agreed to by the House of Lords themselves, That it was proper for the King to give authority to exa­mine and correct Decrees in Chan­cery, as appears by their own Order, which is as followeth, viz.

And that for security for the pay­ment of this Debt according to every several day and payment here set down, the whole Land to stand bound; and that this be the better performed, the Lords Committees think fit the execution hereof be re­commended to the Court of Chan­cery.

This Petition being read and con­sidered of, these Lords, (viz.) the Earl of Montgomery, the Lord Bishop of Durham, the Lord Say and Seal, and the Lord Denny, were appointed [Page 88]by the House to set down an Order in this Cause between William and George Matthews.

The which Order being read, the House approved thereof, and these Lords were named by the House to be joyn'd in the said Commission with the Lord Keeper, viz. the Lord Chamberlain, the Earl of Montgomery, the Earl of Bridgwater, the Lord Bishop of Dur­ham, the Lord Bishop of Rochester, the Lord Denny, and the Lord Houghton; and the House ordered the same Cause to be heard and deter­mined [Page 90]accordingly in the beginning of the next Michaelmas Term.

This agrees verbatim with the Re­cords of the Lords House; and pur­suant thereunto, the matter was re­view'd by these Commissioners and a Decree by them made in reversal of the Chancery-Decree, as appears by the Registers Book of Orders in Chan­cery, of Michaelmus and Hillary Term in the 22d. year of King James.

Sir Edward Cooke, in his Jurisdicti­on of Courts, Anderson 2 part 163. to the same effect. Title Chancery, with greatap­probation reports seve­ral Cases of Decrees in Chancery referred to the Judges by Queen Elizabeth, to be examined and amended; and it is to be no­ted, that his authority in that Case was sevenfold; for when he wrote that Book, he was very much incens'd against the King for being put out of his Chief Justiceship, and set him­self as much as he could against the [Page 91]Prerogative, as appears by the whole current of that Book; so that had there been any colour of denying the Queen this Power, he had never cited those Cases without Objecti­ons.

It was not only practiced by Qu. Elizabeth and King James, but also by King Charles the first, as appears by an Order which I find in the said Registers Office in the Book of Entry of Orders there of the 22d. of No­vember, in the 7th. year of King Charles the first, between one Sher­bourn, the Executor of one Munford, the Executor of one Challener, Plain­tiff, and one Townley and Forrest Defendants; which begins thus:

In the same Registers Office I find another Entry of an Order of June 1. in the 12th. year of King Charles the first, between one Pennington and others Plaintiffs, and one Holmes Defendant, in these words:

Now, after the Opinion of all the Judges of England, assented to by the then Lord Chancellor for the le­gality of this sort of proceeding, and the approhation of the House of Lords, and their direction for humble Suit to be made to the King for a Commission from Him to proceed accordingly; and after so continu'd a series of practice for the Reign of Three of the best Princes that ever sway'd a Scepter, without the least [Page 95]Objection then made against it by any that I ever read or heard of: I say, after all this, sure one would think there could be no room for any colour of illegality in that sort of Proceeding.

But it is objected, That the Po­wer and Right of this sort of procee­ding is since taken away by the Sta­tute of 16 Car. 1. cap. 10. But I hold, that Statute doth not do it in the least, nor doth it carry in it the least colour or look that way; though, indeed, it doth take away somewhat too much (as I conceive) of the King's Power, but not this of refer­ring the examination and correcting of erroneous and unjust Decrees in Chan­cery to fit persons for that purpose. I am sure 'tis not prohibited by that Sta­tute by any particular words, nor are there any general words therein contain'd, that according to the rules of Law, and construction of other Sta­tutes, can be construed to extend to the taking away of that course of [Page 96]proceeding. For the clearing of which point, it is requisite that the Statute should be taken strictly into consideration; the prohibiting part whereof is as followeth:

These are all the prohibitory words of that Statute. I will not say any thing of the reasonableness or un­reasonableness of it, but that it was made in 41. But taking it as it is, I think it deserves no further constru­ction to disable the King from per­forming his Oath, that is, to see that Justice should be done to his Subjects, than the very express words will bear; and for the right understan­ding of it, it is to be considered in all the parts thereof, without relying on any one single Clause alone, and thereby it will appear how far the whole may be construed to take [Page 100]away any Power that was before in the King.

It takes away the Star-Chamber and the Power thereof, and prohi­bits the erecting of any Court of the like Jurisdiction, by express terms; but by so doing it meddles not with this Power of the Kings to refer the examination of an unjust Decree made in Chancery by One man, to Three or Four, or more men, fit for the purpose, neither in terms nor in construction: And it is a great ar­gument that it was never intended to be taken away by that Act, be­cause it is not taken away by express words; for if it had been intended to have been taken away, it might have been express'd by particular words, it being no new invention since the making of that Act, but a course long practis'd before that Act was made, as appears by what is aforesaid, and that without the least contradiction, but on the contrary, with the greatest approbation that [Page 101]could be, viz the approbation and direction of the Lords House in Par­liament at one time, and of all the Judges of England at another time, as is aforesaid, and of all the great Writers of the Law of those times; so that there was then no apparent reason for taking it away.

The next part of the Statute, and that which seems most to oppose me, is, ‘That the King nor His Privy-Councel have, or ought to have, any Jurisdiction, Power or Authority; by English Bill, Petition, Article, Libel, or any other arbitrary way, to examine, draw into question, determine, or dis­pose of the Lands, Tenements, &c. but that the same ought to be tryed and determined in the ordinary Courts of Justice, and by the ordinary course of Law.’

For the understanding of this, it is to be remembred, the King, for the execution of the Law, had two sorts of Powers in Him by the Com­mon-Law; He had Power and Au­thority [Page 102]thority in Person to hear, Ordinaria Juris­dictio pertinet ad Regem, Bract. fol. 108, 412. Ordinaris Juris. dictio remanet cumipso Rege, Bract. fol. 55. determine, and dispose of the Estates of his Subjects, upon Controversie arising between them, and complain'd of to him, and this is properly called Jurisdicti­on; Designatio Justi­ciariorum est à Rege Jurisdictio vere ordinaria à Lege, Co. 4 Inst. fo. 74. and he had also designatio Judiciorum, a power of nominating and appointing Judges under him to hear, de­termine, and dispose of the Estates of the Subjects, touching which any Controversie did arise, and was brought before them to be decided, as appears in the beginning of this Treatise; Sect. 2. per tout. So that if he should be excluded himself by this Statute from hearing and determining in person, yet there is not a word that excludes him from nominating Judges to hear and determine: Therefore, if he could nominate Referrees to rectifie a [Page 103]Chancery-Decree before the Statute, as most apparently he could, he may do so yet, there being not one word in the Statute that prohibits it. And whereas it prohibits all arbitrary ways whatsoever of disposition of the Subjects Estates by the King or his Privy Councel, this course is not to promote Arbitraryness, but to prevent it; for it is more arbitrary to leave Causes to the final determi­nation of one single mans Judgment, than to refer it to the Judgment of five or six, it being not so easie to corrupt or deceive many as one, and that is the reason why a Tryal by Jury of Twelve is so much approv'd of, and applauded; for they being many, Fortescue fol. 75. cannot all be easily corrupted.

And as to that part of the Act that says, The fore-mentioned Estates ought to be tryed and determined in the ordi­nary Courts of Justice, and by the or­dinary course of Law: certainly none can say that have considered the pre­misses, [Page 104]but that referring the exami­nation of Chancery-Decrees to a convenient number of sage persons, as is aforesaid, may very well be ac­counted a proceeding in Chancery according to the ordinary course of that Court, since the first practice of the Court was to determine not by the Chancellor alone, but by the consent of divers others as is aforesaid. Sect. 3. And I conceive the House of Lords terming it a reviewing of the Decree in Chan­cery, when they directed application to be made to the King for a Com­mission, as is afore-mentioned, and all the Judges of England giving their Opinion for the legality of such pro­ceeding, and the same consented and agreed to by the then Lord Chan­cellor, and the long continued pra­ctice of it without any dislike, (when there was occasion) as I have made appear for several Princes Reigns, and until an unparallell'd Rebellion and Usurpation, put that (as well as [Page 105]all things else) out of course; may intitle it to an ordinary course of pro­ceeding, if any proceeding at all in Equity in Chancery can be so ac­counted; and the determining Causes there by the Chancellor himself, without any assistance or consent of others, is more like an arbitrary and an extraordinary way, and new sort of practice, than that.

For further manifestation of this matter, and that a reference from the King to examine the injustice of a Chancery-Decree is a proceeding in Chancery, and no erecting of a new Court, and that as well when the Lord Chancellor or Lord Keeper is not one of the Referrees or Commis­sioners, as when he is, it appears by the proceeding upon the fore-men­tioned Reference by the King to the Master of the Rolls and a Judge of the Kings-Bench, to examine the injustice of the Decree between Pennington and Holmes afore-mentioned: That upon that reference, the pro­ceedings [Page 106]on the first Decree was staid, and what was done thereupon is entred among the proceedings in Chancery, as an Act of that Court; And moreover, Dúgd. Orig. Ju. fol. 32. That E­theldred appoin­ted the Office of Chancellor to be exercis'd by three Abbots by turns. it can­not be deny'd but the King may commit the custody of his Great Seal to several Com­missioners, as King James did upon the outing of the corrupt Lord Bacon; See the Parlia­ment Roll of that time, and Dugd. Chronological Table of Chan­cellors and Kee­pers. and in such cases one of the Commissioners keeps the Seal, and is Presi­dent amongst the rest, but they have all equal Authority in judging according to the purport of the Commission, 12 Maii 19 Jac. ordered in Chan­cery, inter Butler and Eliot, That the Decree made by the Lord Ba­con should not be signed by the Commissioners of the Great Seal, until notice to the other side, as by the Registers Book of Orders in Chancery of that day appears. and do sign De­crees; and if the King may make many Judg­es in Equity to hear [Page 107]all Causes generally, what is the reason he cannot appoint many Judges there in some few particular Causes, upon complaint of mistake by his Chancellor or Keeper? since he that may do more can do less, and the King is not ty'd to have any cer­tain or limited number of Judges in his Courts; for there were in the Common-Pleas, in E. 4.'s time and before, sometimes 6, 7, or 8, and King James had five Judges in the Kings-Bench, (whereof my Great-grand-father Sir David Williams was the fifth) and as many in the Com­mon-pleas, about the beginning of his Reign, as may appear by Dugdale's Chronological Table of Judges of that time: So that I cannot appre­hend any manner of prohibition, neither express nor implied, in this Statute nor any other, against the Kings referring the examination and regulating unjust Decrees in Chan­cery to others, besides the Chancel­lor or Keeper.

This Statute deserves not to be extended beyond it self, it being a penal Statute, which is never to be taken by Intendment, further then the very express words of the Prohi­bition upon a strict and bare con­struction will bear, however the Statute it self in the conclusion hath by express words somewhat mended the matter from what is contain'd in the premisses; for in the end of the Act there is a Provisoe which doth in effect restore the King to almost all his Ancient Jurisdiction, and puts all the seeming Cause of doubt a­bout the matter of Referring the Examination of unjust Decrees in Courts of Equity quite out of doors, by confining the meaning and con­struction of the Statute to the words of the Provisoe therein contained, which Provisoe is in these words, ‘Provided always, and be it En­acted, that this Act and the se­veral Clauses therein contain'd, wall be taken and Expounded to [Page 109]extend only to the Court of Star­chamber, and the said Court holden before the President and Councel in the Marches of Wales, and be­fore the President and Councel in the Northern parts, and also to the Court commonly call'd, the Court of the Dutchy of Lancaster, holden before the Chancellor and Councel of that Court; and also in the Exchequer of the County Palatine of Chester, before the Chamberlain and Councel of that Court, and to all Courts of like Jurisdiction to be hereafter Er­rected, Drdain'd, constituted or ap­pointed as aforesaid, and to the Warrants and Directions of the Council-board, and to the Com­mittments, Restraints and Impri­sonments of any person or persons made, commanded and awarded by the Kings Majesty, his Heirs and Successors in their own Per­sons, or by the Lords and others of the Privy-Council and every one [Page 110]of them.’ So that here's an Expla­nation that no Court or Proceeding in any Court is to be taken away but the Court of Starchamber and the Jurisdiction thereof, and such like Courts of like Jurisdiction; and this of the Kings referring the Exa­mination of unjust Decrees in Chan­cery to particular Commissioners and Referrees, was practis'd out of the Star-chamber, when that Court was at height, as may appear by the fore­cited Presidents; so that it never was a part of the Jurisdiction or practice of that Court, and there­fore declared by the said Provisoe not intended to be prohibited by the said Act; and as to the King the Provisoe says, He is to be restrai­ned but from restraining and impri­soning by his own personal com­mand, he may do every thing else that he could have done before; He may hear and determine in person, if he pleases, as he could have done before; and he may appoint all such [Page 111]Judges or Referrees to all purposes, as he could have done before: But as to the Warrants of Imprisoning, if any cause for such there should be, he is to leave that to his Mini­sters; and the King, if he thinks fit, upon complaint to him made of In­justice or other Error done by his Chancellor or Keeper, may order his Chancellor to order the parties concern'd to appear before the King in person, and the King himself may require his Chancellor or Keeper to be present, and his Majesty may call others to his assistance, whom he may confide in for just and equitable advice, and may determine what to him seems meet in the Cause, upon conference with them, this being for advancement, not delay of Justice; and if the Chancellor or Keeper doth not use the coercive part of Impri­sonment, and other Process of the Court of Chancery to compel Obe­dience to such determination, I con­ceive he doth not do his duty. I [Page 112]mention this, not that I think it's absolutely necessary the King should trouble himself to hear all matters in person, but I humbly conceive it not amiss for his Majesty sometimes to use his Power in Chancery as well as at Councel-board, lest for want of using his Power, he may be in danger of losing it, and consequent­ly his esteem in the eyes of the peo­ple, may be lessen'd; whilst every of his acting Judges (the Chancellor or Keeper especially) command re­spect from their Friends, and fear and trembling from their Enemies.

I am sure Solomon's giving Judg­ment in the case of the Harlots gain'd him more esteem, not only amongst his own Subjects, but all the World over, than any one other act of Go­vernment he did in all his Reign, and the Kings not being exactly skill'd in the Law, or the formal Rules there­of, as a profess'd Lawyer should be, should not at all hinder his underta­king it sometimes; for a man but [Page 113]of common sense, having heard the Case put, the proofs made, and the Arguments of indifferent men, (not byass'd Advocates, or Councel on­ly) may easily discern what Judg­ment is fit to be given in Equitable Causes; and the King hath almost infallible helps; He hath his Lords Spiritual and Temporal; He hath always at his call twelve Judges, men skill'd in the Laws, and sworn law­fully to counsel the King in all mat­ters: These, or some of them, he may command to attend him at such Hearings, and may command them to give their opinion of the matter, according to the nature of the Cause, and according to the best of their judgments; and the King at such hearing may give, or cause to be giv'n a Sentence or Judgment according to the Opinion of the majority of them; and this course is the best, and was the old way of judging of Equi­ty; and if us'd some times, would make Chancellors and Keepers more [Page 114]regard what they do: But if the King should not be minded to med­dle in person with determining any Causes, his referring of the exami­nation of Chancery-Decrees to per­sons fit and able, of judgment and knowledge to do it, may suffice, bet­ter then to leave it wholly to his Chancellors single judgment; For, securius expediuntur negotia comissa pluribus, & plus vident oculi quam oculus.

There is at this day a standing Commission enroll'd in Chancery to all the Judges of Westminster hall, the Master of the Rolls, and the other Masters in Chancery, impowering any Three of them, (whereof the Master of the Rolls or one of the Judges to be one) in the absence of the Lord Keeper to hear and deter­mine Causes, and that is not thought to be prohibited by any Statute: And if the King hath Authority and Power to appoint Commissioners for the Chancellor or Keepers ease, why [Page 115]cannot he also give po­wer to Commissioners to rectifie his Decrees when he mistakes? The Chancellor or Keeper of the Great Seal is but the King's De­puty during plea­sure, 9 Rep. 99. and a Grant of that Office for life is void, Cooke 4 Inst. fol. 87.

Upon the whole matter, I must conclude, I can apprehend no war­rantable objection can be made a­gainst this sort of proceeding, or that any Statute doth, or intended to take it away: so that I shall take that point for granted, That it is ve­ry lawful for the King to appoint Re­ferrees or Commissioners to rectifie Chancery-Decrees, or Decrees of any other Court of Equity.

The next thing to be considered is, Whether any of the King's Privy-Councel may be Referrees or Com­missioners for that purpose, notwith­standing the said Statute? For they are men of so great Honour, Know­ledge and Integrity, and of such Fortune and Estates, as to scorn Bri­bery, and therefore very fit to assist in [Page 116]this matter; and I hold They may; for the prohibition of the Act ex­tends to their not acting as being only and barely Privy-Councellors: It doth not say, Privy-Councellors shall not act by virtue of any other Au­thority. And this thing proves it self plainly in the Case of the now Lord Keeper, and Lord Chief Justice of the Common-Pleas, who are both of the Privy-Councel, yet examine, draw into question, determine and dispose of the Lands, Tenements, Goods and Chattels of the Subjects, with a witness, by virtue of another Authority derived from the King; and if They may do it, why may not any other of the Privy Coun­cel act by a lawful Authority in those matters, as well as They?

The next thing considerable, is, if the Lord Chancellor or Keeper ought to command performance ac­cording to the course of the Chan­cery, of what such Referrees do order by virtue of such Reference, [Page 117]when he himself is not one of them; as well as when he is; and I hold he ought; First, for what­ever Order is made in the House of Lords upon determining an Appeal from Chancery-Decrees, it is sent to the Chancery, to compel Obedi­ence thereto; and in this respect, I conceive the House of Lords are but the Kings Referrees, and do le­gally and truly derive their Autho­rity from the King, as is prov'd by the due Proceedings upon Writs of Error, and the ancient form of Peti­tions against Chancery-Decrees be­fore-mentioned: So that such Re­ferrees do act by Authority derived from the King, as well as the House of Lords in Parliament. And fur­ther, the practice hath been for the Lord Chancellor or Keeper to pursue what is done by such Re­ferrees; for what was resolved by the Judges upon the References mentioned in Sir Edw. Cooke 4 Insti­tutes, and certified by them to the [Page 118]Chancellor was comply'd with by him; and what was decreed by the major part of the Commissioners joyn'd with the Lord Keeper, in the Case of Matthews and Matthews be­fore-remembred, was confirmed, and prosecuted by the Lord Keeper, as Lord Keeper, in and according to the course of Chancery; and so in the case of Sherburne and Townley; and had been so also in the case of Pen­nington and Holmes before-mentio­ned, if there had been any alteration of the Decree; for the confirmation of that Decree by virtue of the Kings referrence, is entred as an Act of that Court: so that I think that point is also pretty clear. And (I presume) the enrolling or performing of a De­cree, before Petition to the King, or before obtaining his Commission or Order of referrence, (which are both as sufficient one as the other, there being a sufficient number of Prece­dents of both sorts) is no hindrance but that restitution may be awarded, [Page 119]if the Commissioners and Referrees make certificate to the Chancellor or Keeper that it ought to be so; for the enrollment of a Decree doth not make it more irrevocable then it was before the enrollment, but that notwithstanding it may be alte­red in the same Court; for it is not a Record, and in that respect not so high in the eye of the Law as a Judg­ment according to the course of the Common-Law, which cannot be re­vers'd in the same Court; and this was so held in H. 8.'s time, 27 H. 8. fol. 15. in a Cause in Chancery before men­tioned in the 6th. Section, between the Prior of St. Johns and one Docke­ray; where upon a review in Chan­cery before the Lord Chancellor, the King's Secretery, and Mr. Fitz-Herbert, it was held and allowed, that a Decree there is but an Order made by the Court for the time; which upon good consideration, and cause shewn, may well be altered, [Page 120]notwithstanding all the arguments then made by the Councel for the first Decree, to prevent inspecting into it, as that such looking back ten­ded to confusion, and would make Causes endless, and the like: where­unto the Kings Secretary (sitting then in equal authority with the Chancellor, as appears by the Re­port) made answer, and comman­ded the formal man that was against inspecting the injustice of the Decree to forbear disputing the Power of that Court; and such was the pra­ctice of the late Lord Chancellor Nottingham, who would often re­hear and re-hear again and again, upon Councels certify­ing it under their hands that there was good Cause, The Cause be­tween Thacker & Redman was se­veral times heard by the Lord Not­tingham, and heard again by the Lord Keeper North on the 20th. of April, 35 Car. 2. after the Decree enroll'd; and upon that hearing, a Tryal at Law di­rected, which must occasion another hearing. as they appre­hended, [Page 121]for such rehearing his fre­quent saying, being, that the nimble­ness of a Clark in enrolling his De­cree should not hinder him from coming at Justice, and that he would leap over Hedge and Ditch to do it; and doubtless it is the true and pro­per power of that Court of Equity so to do: And though it doth of descretion entertain some Forms, yet it may, and ought upon occasion to leave them, rather then tie up its own hands from doing Justice; for it hath Potestatem absolutam secundum probata Judicare; 9 E. 4. f. 15. and if ever any Chancellor did amiss in that respect, it was in that he would leap lustily for some, but would not hop over a straw for others: I wish none in that great place be ever more guilty of the like partiality.

It appears from what is before-mentioned, that the Court of Equity in Chancery is the King's high Court of conscience for moderating the ri­gor, and supplying the defects of the [Page 122]Common-Law, and he may order it, and limit the Jurisdiction thereof as to him seems most agreeable to Equi­ty and Justice; a further instance whereof appears by an Enrollment of a Com­mission now to be seen in Chancery, At the Rolls, 6 pars 14 Jac. nu. 25. beginning thus:

But after all I have said, if there be any that have considered the pre­misses, and will still deny the Kings Power, I must also say, That for determination of the matter, the opi­nion of his Majesties learned Judges is to be the Touch-stone; therefore, for a further inducement to enquire further of them touching this matter, which is my principal aim hereby, I shall in the next place give a hint of the inconveniences that do happen for want of this course of Procee­ding.

SECT. VII. The Inconveniencies that accrew for want of a constant Relief against Erreneous and Unjust Decrees in Chancery.

TO apprehend the mischiefs that may ensue for want of a con­stant and permanent practical Power to controll and rectify mistaken De­crees in Chancery, it is a necessary to look back to the fourth Section for the Power of that Court, and how far it extends, which is there set down in some measure.

It is also considerable, how ill some Chancellors have us'd this their so great unlimited Power, which ap­pears in the Lord Bacon's Case, here­in also before re-cited in the fifth Section; for it is not Impossible but that some of his Successors may do the like, which if but any one should, [Page 126]it would be very hard for many a poor Creature to wait the Conven­tion of a Parliament, especially if it should happen that another usurping part of a Parliament like that about 41. should attempt to play the old Game again; so that in such case, the King must perhaps either leave many of his Subjects utterly undefended a­gainst the corrupt and vicious pro­ceedings of another Bacon, or endan­ger his own safety, by letting them sit; in which case, by the Rule of Self-pre­servation, the King ought to save him­self: But setting aside this matter of corruption, as if no such would ever hereafter be in the World, if we consider humane frailty, and the real mistakes every single man may be subject to; especially when beset with the mercenary Arguments of three or four Hireling Advocates of a side, who think themselves oblig'd, when opportunity serves, to mi­stake for their Clients, according to the measure of the Fees they re­ceive, [Page 127]as I have known some of them knowingly do; and sometimes they prevaricate and omit what they ought to say, if either Feed on both sides, or not high enough Feed of the side they are of; by means whereof a circumspect Lord Chan­cellor or Keeper may innocently be seduc'd to make an ill Decree, and by force thereof a poor man must either go to Prison, or part with the best part of his Substance, so that by both ways, himself and Family are brought unjustly to want and mise­ry; and if he be a Trades-man, it is ods but he breaks one or two more, for Trades-men are like Nine-pins, one seldom falls alone; and if a Par­liament when it meets should find leasure from publick business to exa­mine the matter, and should see cause to alter the Decree, and Award Restitution, the man that got the Money by means of the ill Decree, may have spent it all, gone beyond Sea, or dead, without Assets, or [Page 128]twenty such Chances may happen, that the Money may never be got again by any Art or Industry what­soever, which would be prevented if there were a place to Appeal, be­fore performance of the ill Decree; and moreover, it remains a doubtful case as to the many Decrees of the late Lord Chancellor Notingham Re vers'd by the now Lord Keeper North, which of the two Lords are in the right, he that made the Decrees, or he that Revers'd them, it being not fairly to be decided, but by the Ad­vice and Opinion of a greater num­ber of as Wise and Judicious men as themselves, and that is a fair and reasonable way of determining it, for vis unita fortior; but the greatest inconvenience of all, is that which concerns the Government; for while this opinion stands, That the King cannot hear the matter in Person, nor refer it to others, though to some of the self same Lords that sit in Parliament; but that the matter [Page 113]must wait their meeting in a Parlia­mentary way, it may make the people believe that the Supremacy of Jurisdiction is in the House of Lords, and not in the King, and con­sequently lessen him in their opi­nion; for People Love and Honour them most from whom they find most Relief against Injury; and how consistent that is with Monar­chy, and how agreeable it is with our Oaths willingly to suffer, let any man Judge that hath Sense and Loyalty. Since all the Courts of Westminster have four Judges in each Court, men Learned in the Laws, of known and visible Inte­grity, and all Sworn, To do equal right to all, 18 E. 3.7. Oath of Just.and to take no Fee or Roabes of any man great or small, but of the King himself, during their be­ing Judges; And who in their pro­ceedings are ty'd to Rules; and since Appeals by Writ of Error, by special Provision by Act of Parlia­ment, [Page 130]may be at all times had against their Judgments; and since there are frequent Appeals from all Eccle­siastical Courts, and from the Court of Admirality out of Parliament. It is a mighty mistery to me, and the policy of it is not Intelligible, that any man should labour to prop up this Opinion, that there should be no Appeal but to Parliament from this Court of Equity in Chancery, where there is now but one Judge, and his Orders and Decrees controuling all the Judgments of other Courts, and he therein ty'd to no other Rule but his own Conscience, be it good or bad: I think a Chancellor or Keeper for his own Justification, should not be against the Kings Examining his Decrees, or Referring them to fit persons to be Examin'd and Cor­rected, which without peradventure is not only the best and surest way for Administration of Justice in this Case, and so far from setting up an Arbitrary way, or an Extraordina­ry [Page 131]Course, that it is but restoring the Court of Equity in Chancery to its Ancient and Primitive form of Judicature, the definitive Judging there by the Chancellor alone be­ing but an Innovation upon the Original Institution of that Court, as appears by what is aforesaid, and to the end there may be no ob­struction in the way, I have enquir'd how far the King ought by Law to provide for his Injur'd Subjects, in case of Appeal to him from Errone­ous or Unjust Decrees in Chancery by a Lord Chancellor or Keeper.

SECT. VIII: Whether the King ought exdebito Ju­sticiae to hear in Person, or to grant References upon Complaint to him made against Erroneous and Ʋnjust Decrees in Chancery.

I Have as great Veneration for Kingly Government, and am as [Page 120]Firm and Faithful to it as any man can be; however I think it no pre­sumption to affirm, that the King ought to do his Subjects right, by using the best means he may for ad­ministration of Justice amongst them, pertinet ad Regem ad quamlibit inju­riam compescendam competens re­medium adhibere. It is no dishnour to him that he is oblig'd to it, for it is for that end he is ordain'd by God and obey'd by men, it is therein consists the height of his Clory and the lustre of his Majesty, and says Fleta, Fleta fo. 17. par. 15.Whereas it is so ordain'd that every man in prosecution of his right, Potius judicio quam viribus utatur, Should make use of the Law rather than force: The injur'd are to come to the King, and having shew'd him the wrong they have suffer'd, he ought to do speedy Justice to his Petitioners; yet the King is not to be troubled, but when his Ordinary judges fall of their Duty: For, Nemo [Page 121]in lite Regem appellato nisi quando domi jus consequi non poterit. Orig. Jul. fo. 20.

A Complaint to the King by Pe­tition against the Error and Injustice of a Chancery Decree, is an Appeal to the King from his Chancellor, from the Inferior Judge to the Supe­rior, which is very natural; and a Petition to him for allowance of a Writ of Error, to the House of Lords to inspect and certifie a Judg­ment of the Court of Kings-Bench, or Exchequer Chamber; and an Ap­peal to the King from his Ecclesiasti­cal Courts, and from the Court of Admirality, are all grounded upon the same natural Justice; and by rea­son of the Kings Supremacy of Juris­diction, and that as well by force of the Common as Statute Law.

Of Appeals in general, Sir Edw. Cooke cites the Opinion of a Learned Judge of the Admirality, and some others to this effect, For as much as an Appeal is a natural defence, it [Page 134]cannot be taken away by any Prince or Power;Cook's 4 Iust. fo. 340.but if the Appeal be just and law­ful, the Superior Judge ought of right and Equity to receive and admit the same, as he ought to do Justice to the Subject; and so if the Cause of the Appeal be just and Lawful, he ought to Reverse and Revoke all mean Acts done after the Appeal brought in prejudice of the Appeallaent: But I need not much labour that point, for I can Experimentally say, that His Majesty is very desirous that His Subjects should have the full and free benefit of the course of Justice, and if any ever fail of it, it ought not to be imputed to the King, but to his Council, whose advice is the Kings guide; and if they mis-advise the King, and he follows their advice, he is excusable; yet he is not bound always to follow their advice, if he be really satisfied in himself after hea­ring their reasons, that it ought to be otherwise than they advise; for [Page 135]as he is plac'd by God above them, it is to be presum'd God may supply him with a more discerning Spirit than they, and enable him to distin­guish between the best and worst advice, having heard the reasons of both: Yet they that knowingly ad­vise the King ill, or neglect to advise him well, when occasion requires, are to blame; therefore I hope His Ma­jesties Privy Council will confider of this matter, and advise and desire His Majesty to take the Advice and Opinion of His Judges, who are His proper Councel therein: For in my poor judgment, and as I have heard from most Judicious men, the resto­ring this kind of proceeding afore­mention'd for Relief against unjust Decrees in Chancery, and other Courts of Equity, will be as much for the Kings Honour and His Subjects Good, as any other part of his Jurisdiction: For I say again, there is no Rob­bery, Piracy, Burglary, or other Villany whatsoever, so mischievous [Page 128]and insupportable, as the unjust ta­king away of a mans Estate by colour of doing Justice, and therefore most worthy of His Majesties care to pre­vent. Cum Index indulgeat indigno nonne ad prolaptionis contagium pro­vocat universos, Bract, 107.

I expect to be Censur'd by some for what is here set down, though I challenge all mankind to charge me with any misrecital or false quotation; but that which most troubles me, is my consciousness of my own unabili­ty to perform the matter, least a good Cause should suffer by ill ma­nagement: However, having done my best, I hope it will be taken in good part by all Honest men; more I cannot do, less I durst not for my Oaths sake; and if any be offended with me, this shall be my Sanctuary,