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 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 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 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 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 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 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 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 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 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 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 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 cuique 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 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. Die Veneris vicesimo octavo die Maii 1624. THe Petition of Will. Matthews of Landast was read and the Answer thereunto conceiv'd by the Lords Committees for Petitions after Councel heard on both sides many several days was reported to the House by the Lord Houghton and read in haec verba viz. The Lords Committees upon the examination of the whole Cause between William and George Matthews find William Matthews principal Debt to be Five thousand two hundred and sixty pounds which they hold fit to be paid by the said George Matthews thus Vpon St. Andrews day next One thousand six hundred twenty four 2000 l. Vpon St. Andrews day One thousand six hundred twenty five 2000 l. Vpon St. Andrews day One thousand six hundred twenty six 1260 l. The whole sum 5260 l. 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 Die Veneris vicesimo octavo die Maii 1624. post meridiem George Matthews exhibited his Petition in haec verba viz. To the Right Honourable the Lords Spiritual and Temporal in the higher House of Parliament assembled The humble Petition of George Matthews Esq Humbly sheweth your Lordships THat your Petitioners Decree now question'd hath been several times submitted unto by William Matthews never question'd during the life of the Petitioners Father and His Majesty upon information by Petition on both sides declared That he saw no Cause for questioning thereof and it was thereupon ordered That to hear a Cause after submission no Corruption appearing would be a dangerous Precedent In consideration whereof and for that the Decree stands question'd only by Petition nor was your now Petitioner ever party to any Suit nor is there any Bill depending in Court he being informed by Councel that it hath been the course of this Honourable House to reverse Decrees but by
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 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 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 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 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 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 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 wherein-it it is alter'd by the Kings Parliamentary Act nothing less than
look'd not after his Servants And then follows these words viz. This Declaration I have made to your Lordships with a sincere mind humbly craving that if there should be any mistake your Lordships would impute it to want of memory and not to any design of mine to obscure truth or to palliate any thing for I do again confess that in the points charg'd upon me although they should be taken as my self have declared there 's a great deal of corruption and neglect for which I am heartily and penitently sorry and submit my self to the Judgment Grace and Mercy of this Court. And in the close he prays That if they proceed to a Sentence their Sentence may not be too heavy 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 Common-wealth 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 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 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 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 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
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 't is 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 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 Be it Ordaiued and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdiction Power and Authority belonging to or exercised in the same Court or by any Judges Officers and Ministers thereof be from the first day of August 1641. clearly and absolutely dissolved taken away and determined and that from the said first day of August neither the Lord Chancellor nor the Kéeper of the Great Seal of England the Lord Creasurer of England the Kéeper of the Kings Privy-Seal or President of the Councel nor any Bishop Temporal Lord Privy-Councellor Judge or Justice whatsoever shall have any Power or Authority to hear examine or determine any matter or thing whatsoever in the said Court commonly called the Star-Chamber or to make pronounce or deliver any Judgment Sentence Order or Decree or do any Judicial or Ministerial act in the said Court and all and every Article Clause and Sentence in them and every of them by which any Jurisdiction Power or Authority is given limited and appointed unto the said Court commonly called the Star-Chamber or unto all or any the Judges Officers or Ministers thereof or for any proccedings to be had or made in the said Court or for any matter or thing to be drawn into question examined or determined there shall for so much as concerneth the said Court of Star-Chamber and the Power and Authority thereby given unto it be from the said first day of August repealed and absolutely revoked and made void And be it likewise Enaded That the like Jurisdiction now used and exercised in the Court before the President and Councel in the Marches of Wales and also before the President and Councel established in the Northern-parts and also in the Court commonly called the Court of the Dutchy of Lancaster before the Chancellor and Councel of that Court and also in the Court of Exchequer of the County-Palatine of Chester held before the Chamberlain and Councel of that Court the like Jurisdiction being exercised there shall from the first day of August 1641. he also repealed and absolutely revoked and made void any Law Prescription Custom or Usage c. to the contrary thereof in any wise notwithstanding and that from thenceforth no Court Councel or place of Judicature shall be erected ordained constituted or appointed within the Realm of England or Dominion of Wales which shall have use or exercise the same or the like Jurisdiction as is or hath haen used practiced or exercised in the said Court of Star-Chamber Be it likewise Declared and Enacted by the Authority of this present Parliament That neither His Majesty nor His Privy-Councel have or ought to have any Jurisdiction Power and Authority by English Bill Petition Article Libel or any other arbitrary way whatsoever to examine or draw into question determine or dispose of the Lands Tenements Dereditaments Goods or Chattels of any of the Subjects of this Realm but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law 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 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 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 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 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 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 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 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 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 extend only to the Court of Star-chamber 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 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 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 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 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 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 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 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 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 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 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 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 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 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 JAMES by the Grace of God c. wherein it is mentioned That the Attorney-General and the rest of the Kings Councel learned in the Law had been commanded to consider and certifie to the King if the Chancery might relieve according to Equity after a Judgment at Law and therein is mentioned the consultation had by the Kings Councel thereupon and their reasons on the point and the Roll ends thus We in Our Princely judgment having well weigh'd with mature deliberation considered of the said several Reports of Our learned Councel and all the parts of them c. Do will and command That Our Chancellor or Keeper of the Great Seal for the time being shall not hereafter desist to give to Our Subjects upon their several complaints now and hereafter to be made such relief in Equity notwithstanding any former proceeding at the Common-Law against them as shall stand with the true merits and Justice of their cases c. And for that it appertains to Our Princely care and Office only to be Judge over all Our Judges and to discern and determine such differences as at any time may or shall arise between Our several Courts touching their Jurisdiction and the same to set and to decide as We in Our Princely Wisdom shall find to stand most with Our Honour and the example of Our Royal Progenitors in the best of times and the general Weal and Good of Our People for which We are to answer to God who hath placed Vs over them Our will and pleasure is That Our whole Proceedings herein by the Orders formerly set down be enroll'd in Our Court of Chancery there to remain of Record for the better extinguishment of the like Question that may arise in future times Decimo octavo Julii Anno Regni Regis Jacobi quarto decimo per ipsum Regem 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 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 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 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 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 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 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 Vnjust Decrees in Chancery I Have as great Veneration for Kingly Government and am as 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 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 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 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 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 Fiat Justicia si ruat Coelum FINIS