Statutes were made but to no very great purpose for means were found out to evade them At last came forth the Stat. of 27 H. 8. cap. 10. and this undertook and plainly so intended to pluck up this unwholsome Weed by the Roots Which good Law first reciting the excellent quiet and repose that Men's Estates had by the wholsome Rules of the Common Law but cunning Men had sought out new Inventions by fraudulent Feofments and Conveyances craftily made to secret Uses and Trusts to the utter subversion of the ancient Common Laws of this Realm as the Preamble speaks for the utter EXTIRPATING and EXTINGUISHMENT of all such subtil practis'd Feofments Abuses and Errors It is Enacted That the Possession of the Land shall be in him that hath the Use and that he shall have the like Estate in the Land as he had in the Use. How strangely hath all this good Intention Pains and Care been made of little or no effect and the mischiefs still continued by a distinction invested between Trusts and Uses directly against the often repeated Clauses and manifest plain meaning and express words of this good Act For thô the Judges of the Common Law were now by this Act to judge of Uses which before was the work of the Chancery they being now converted by this Act into Estates at Law Yet some Men perfectly to elude this good Act have confidently maintain'd asserted and allow'd a distinction between an Use and a Trust. And thô they are content because they cannot help it that the Judges of the Common Law may determine of Uses the Courts of Equity shall hold a Jurisdiction in matters of Trust. And most of the great Estates in England have by colour of this fallen under their determination and controulment and now have a dependence upon a Jurisdiction of Equity Whereas Were there the least colour left by that Act of 27. H. 8. for any distinction between an Use and a Trust as most certainly and plainly there is none yet as certainly and clearly that Act of Parliament meant to extirpate those Trusts as well as Uses as any ordinary Capacity well perusing that Statute to this purpose may easily perceive I humbly and heartily beg that favour of every Lord to read over deliberately this Stat. of 27 H. 8. cap. 10. for this very purpose for it will plainly discover this gross abuse As to the length of time wherein such a Power and Jurisdiction of Equity hath been exercised in the Chancery yet it plainly appears not to be grounded upon Prescription the Original being known and not so very ancient neither and modest too and moderate at first as most such are in the beginning and having from the first starting of it been hunted and pursued with full Cry and upon a fresh Scent and in view and having hardly any Colour of an Act of Parliament That length of time were it much longer would be no Plea for it See Dr. Barrow in his Treatise of the Pope's Supremacy pag. 154. He that has no right says he to the thing that he possesses cannot plead any length of time to make his possession lawful King Henry VIII by Acts of Parliament restored the Regal Ecclesiastical Sovereignty after it had been usurp'd upon by the Popes and their Prelates near 400 years that is from the time of William the Conquerour For then began their Encroachment And the Act of Parliament of 1 E. 6. C. 2. Sect. 3. calls it a power that had been Usurp'd by the Bishop of Rome contrary to the Form and Order of the Common Law used in this Realm in high derogation to the King 's Royal Prerogative from whence we may observe That Usurping upon the Common Law and Usurping upon the King's Prerogative go together The Bishops Courts here in England took their Original from a Charter of William the Conquerour so that this Jurisdiction was a great Limb lopp'd off from the Primitive Common Law of England For before that Charter of King William Ecclesiastical Causes were determin'd in the Hundred Court and not by Witnesses only and not by the Canon Law but by the Law of the Countrey But this Charter was made by advice of the Arch-Bishops Bishops Abbots Princes and Temporal Lords See Fox his Acts and Monuments Vol. 〈◊〉 Lib. 4. pag. 2â—… says Mr. Pâ—…inn in his first Tome of his Vindication of the Supream Ecclesiastical Jurisdiction of our English Kings The Charter it self says he recites that it was done Communi Concilio for which he cites Seldeni ad Eadmerum Notae pag. 167 168. So that still the old Common Law of England hath been upon the losing hand The Civilians hold that Possessor malae fidei ullo tempore non praescribit yet I heartily concur with that Reverend Chief Justice Sir Edw. Coke a most true and hearty lover of his Countrey and an high honour to and honourer of the Profession of the Common Law in his 4 Instit. 246. at the end of that folio in Respect says that Good and Great Man that this Court of Equity hath had some continuance and many Decrees made by it it were worthy of the Wisdom of a Parliament for some Establishment to be had therein and to this intent have I chiefly used this freedom for I never loved Quiet a movere but in order to a better Security And for that end I chuse to make this Humble Address to the House of Lords It is the House of Lords who are theSupreme Court of Justice that can set the true and legal Bounds and Limits to the Jurisdiction of Inferiour Courts and can say to the biggest of them Hitherto shalt thou come and no further and here shall thy proud waves be stayed And such their Judicial Declarations are not to be controul'd by any but the Legislative Power Almighty God gave a strict charge to his own chosen People of Israel to observe those Ordinances and Laws which he gave them by Moses which were very particular and wherein nothing was left to the Discretion of the Magistrate nor had the Magistrate any Latitude whereby he could depart from the plain and common sence and Judge Secundum Aequum Bonum Arbitrarily But they were commanded Deut. 4. 2. Yee shall put nothing to the word which I command you says God by Moses neither shall ye take ought therefrom and the 12 Deut. the last verse in Cases of Difficulty that might arise upon the Construction of those Ordinances and Laws a Provision is made by Almighty God that in such Cases resort should be had to the Priest and to the Judge who should declare the Sentence of Judgment This seems to refer to some special Revelation of the mind of God in such difficult Cases which God made known to the Priest that stood before the Lord to minister 17 Deut. 8 â—…2 verses but here was nothing entrusted with the Priest or Judge of relieving against the pretended rigour or extremity of the Law in
Rigour of the Law by Equity in their own Persons alone and afterwards did delegate the same Power of Equity to a single Person the Chancellor who as they phrase it hath the dispensing of the King's Conscience as well as the Custody of it And that to the King alone in such Cases an Appeal doth lie which by what hath been already said is manifestly untrue as shall yet be further made out Sir John Fortescue who was a Lord Chancellor in his Book De laudibus Legum Angliae pag. 64. says to Prince Edward Son to King Henry VI proprio ore Nullus Regum Angliae Judicium proferre visus est tamen sua sunt omnia Judicia regni licet per Alios ipsa reddantur Just as all our Laws are said to be the King's Laws not that he hath the sole Legislature as Sir Robert Filmer doth weakly or rather wilfully tho groundlesly infer but Denominatio sumitur à Majore as is most frequent in common Use it is but an Embrio till he quicken it by passing the Bill In the next place Let us enquire at what time and by what occasion this Jurisdiction of the Chancery in Equity began by which it may appear whether it be Entitled to it either by Prescription or by Act of Parliament for Non datur Tertium The same Proofs and Authorities will serve to manifest these â—…7 H. 7. Keilway 42. b. by Vavasor The Sub-Paenâ began in the time of Edw. III. and that says he was against the Feoffee upon Confidence that is to Uses Mr. Lambert who was a Master of the Chancery Sir Edward Coke 2 Instit. 552 in his Archeion pag. 72 74 75. says that the Kings used to refer matters in Equity to the Chancellor from whence the Chancellor was anciently Styled Referendarius as was noted before or to him and some other of the Council And tho' this doth not as he observes plainly erect any Court of Equity yet as he supposeth it is the laying the first Stone of the Chancery Court and pag. 73. That in the time of Edward III. it was a Newly Erected Court which may be understood of its Latin Pleas. The Book called The Diversity of Courts written in the Reign of King Edward III. Treats of the Jurisdiction of the Chancery according to its ordinary Power which are the Latin Proceedings or by the Rules of the Common Law but says nothing of that which the Chancellor holdeth in Equity Et quod non invenis usquam esse putes nusquam It was enabled to deal in some special and particular Cases by Parliament which were but Temporary neither which proves that in such or in the like Cases the Chancellor could not meddle without the help of Acts of Parliament Nor were those Cases referred to his Equitable or Arbitrary Power neither as some misapprehend For Sir Edw. Coke 4 Instit. fol. 82. says That Acts of Parliament giving Power to the Chancellor to hear and determine Causes in Chancery are ever intended of the Court of Record there proceeding in Latin Secundum Legem consuetudinem Angliae which Power is not contested And Mr. Lambert pag. 74. ut supra says he does not remember that in our Reports of the Common Law in which Reports under the Titles of Conscience or Sub-Paena in Fazh or Brook's Abridgment many Cases of Equity in the Chancery may be found there is any mention of Causes before the Chancellor for help in Equity but only from the time of King Henry IV. in whose days by reason of those intestine Troubles between the Two Houses of York and Lancaster Feoffments to Use did either first begin or first grew common for Remedy in which Cases chiefly the Chancery Court was then fled unto No Book-case says that great Champion for the Common Law Sir Edward Coke 2 Instit. 552. nor Reports of the Law make any mention of any Court of Equity in the Chancery used before or in the Reign of King Henry V. but they speak of the Chancellor's ordinary Jurisdiction which is at the Common Law and by Latine Proceedings which proves they were very rare at that time The few Causes heard by the Chancellor in the Reigns of King Henry VIth and Edward IVth in Equity by English Bill are most of them concerning Uses of Land And how great an Invasion that new Invention of Uses was upon the Laws of England both the Common Law and the Statute Law and how pernicious they have been to Men's Estates and what occasion they have been of Contention and multiplying Suits shall appear by what follows See Doctor and Student pag. 71. to that purpose Sir Coke's 2 Instit. 553. affirms That no Act of Parliament printed or unprinted gave the Chancellor any power to hold any Court of Equity The Stat. of 36 Edw. III. Cap. 9. without question says that Grave and Reverend Judge and true lover of his Nation refers to the ordinary power of the Chancellor but gives him no shadow of any Absolute Power meaning a Power of Equity See the 2 Instit. fol. 553. See that remarkable Case of Sir Richard le Scrope in Sir Cotton's Abridgment of the Records of the Tower pag. 351. Numb 10. exceeding pertinent and useful in many respects to our present Enquiry and gives great light to us in many things It is mentioned also in Coke 2 Instit. 553. it happened Anno 17 of King Richard II. John de Windsor complain'd by Petition to the King against Sir Richard le Scrope and Sir John Lisley for detaining divers Mannors in Cambridgshire from him to which as he alledged he had a Right and Title Both Parties submitted the matter to the King's Arbitration The King committed it to the Council not to the Chancellor alone the Council decreed it for Windsor then Plaintiff under the Privy Seal they sent to the Chancellor to confirm that Decree or Award under the Great Seal which was done and a Special Injunction to Sir John Lisley and a Writ to the Sheriff to Execute it A strong Case in all its Circumstances Sir John Lisley one of the Defendants not satisfied with the Decree or Award Petitions the King in Parliament that is Appeals from it and prays the Matter may be determined at the Common Law notwithstanding the Decree or Award so confirm'd The King by Privy Seal Orders the Chancellor to Supersede the Injunction and the Writ and Decree The Decree was revers'd and both Parties order'd to stand to the Common Law and Windsor's Petition was dismissed Sir Edward Coke says that this Decree so made by the Council was the first Decree in Chancery that he could find and that upon a deliberate hearing of the whole matter by the Lords in Parliament it was adjudg'd that Sir John de Windsor should take nothing by his Suit but stand to the Common Law that is according to our now usual Language His Petition or Bill in Equity was dismiss'd and the Parties sent to the Common
taken in the largest sence but rather contra-distinct and indeed opposite to it and destructive of it Sir Henry Spelman at last takes leave of this great Officer and of his Court by shewing what a mighty encrease came flowing in from that ill Weed the Invention of Uses or Trusts which are still the same But to this point there are plenty of far greater Authorities and Authors for whose Testimony herein I shall reserve it Another thing to be premised is that as the King had no such Power himself singly and in his own Person only to decide Causes of Equity and therefore could not Delegate it to any one Man as 't is pretended he might so and upon the same ground and reason the King by our Law could not by his Commission Erect any Court of Equity It can be grouned and warranted only upon a Prescription or an Act of Parliament neither of which can be pretended to in the matter in hand it was so adjudged 26 Eliz. in the King's-Bench Sir Edw. Coke 4 Instit. fol. 87 97. That a Court of Equity cannot be Erected but only by Act of Parliament or Prescription And the like in the Lord Hob. Rep. 63. Resolv'd also in Langdale's Ca. 12. Rep. 52. That the King cannot raise a Court of Equity the reason is because a Court of Equity proceeds by the Rules of the Civil Law and not by the Common Law 6 Rep. 11. b. and 2 Instit 71. The King may appoint a new Court and new Judges but cannot change the Law Hill 8. H. 4. fol. 79. by Gascoign That the King by his Charter cannot out the People of their Inheritance which they have in the Common Law So note the Common Law is the People's Inheritance In the next place Let us proceed to examine about what time and upon what occasion this Court of Equity exerted its Power which hath in part fallen in among our former Enquiries For the time and occasion too Mr. Lambert in his Archeion pag. 75. refers it to the time of King Henry IV. and the occasion was taken from Feoffments to Uses For remedy in which Cases the Chancery was fled unto With this agrees Sir Henry Spelman in his Glossary pag. 107. at the lower end Doctor and Student fol. 98. Sir John Davy's Rep. in his Preface Mr. Hunt's Argument for the Bishop's Right c. pag. 144. And to prevent mistakes herein it must be observ'd That the word Equity hath been very anciently used long before this Jurisdiction began in Chancery but not in a Contradiction or in Opposition to the Common Law of the Land as now it is but either in a mild and merciful Expounding of the Law by the known and sworn Judges of the Law or as synonimous and signifying the same thing as Law Justice and Right For the Laws of England were not looked upon then as being like the Laws of Draco Sanguinary and Cruel and Rigorous but merciful and equitable in themselves and so expounded and administred by the Judges of the Common Law Mulcaster the Translator of the Chancellour Fortescue being a Student of the Common Laws of England in the Reign of King H. VIII could readily observe to his Reader from his Study of those Laws and from the Arguments used by his Author the Excellent Sir John Fortescue Easdem nostras Leges non solum Romanorum Caesarum sed omnium aliarum Nationum Constitutiones multis parasangis prudentiâ Justitia equitate praecellere facilè perspicias See his Preface Non quod principi placet Legis vigorem habet non quicquid de voluntate Regis tho his Will be not Arbitrary neither but guided by Discretion and tho he define secundum aequum bonum sed quod Magnatum suorum Concilio Regiâ authoritate praestante habita super hoc deliberatione tractatu rectè fuerit definitum So writes Bracton Lib. 3. Cap. 9. fol. 107. and so Britton Sir Gilbert Thorneton Ch. Justice in the time of King E. I. and Sir John Fortescue Chief Justice and afterwards Chancellor These invincibly prove the Nature of our Laws The Kings of England were from the first Foundation of the Government Sworn to observe the old known Laws of the Realm which were called Usus Consuetudines Regni and that they would not suffer any Innovasion which was often attempted by the Pope and his Clergy who endeavoured to introduce into this Realm the Civil and Canon Laws King Henry I. writing to the Pope upon such an occasion tells the Pope stoutly Notum habe at Sanctitas vestra quod me vivente Usus Regni Angliae non imminuentur Et si ego in tanta medejectione ponerem Optimates mei totus Angliae populus id nullo modo paterentur And all the Nobles of England by Consent of the Commons wrote to Pope Boniface upon the same occasion Non permittemus tam insolita tam indebita Dominum nostrum Regem etiamsi vellet facere seu quo-modo-libet attemptare The Lord Chancellor and Lord Keeper is also Sworn to do Right to all after the Laws and Usages of this Realm not secundum aequum bonum nor other Rules of Equity 2 E. 3. fol. 20. It is said in that Book by the Chancellor sitting in the Chancery and speaking of that Court This says he is a place of Equity where we grant a Writ to every one that Sues for his Inheritance So that to issue out Writs as Officina Brevium is by the Chancellor's own acknowledgment a proper work of Equity It seems to be the only use of the word Equity at that time 2 Instit. 53. The Civilian Vinius in his Comment upon Justinian's Institutes pag. 20. Nomen Aequitatis says he duplicitèr accipitur vel in genere pro aequo quod cum omni jure conjunctum est vel in specie pro eo quod est à Jure Civili diversum Omnibus Legibus aequitas inesse creditur Nomenque juris non meretur quod ab omni Aequitate destitutum est He mentions no Equity contrary to Law or to Controul the Law nor any other than what was to be exercised by the very Judges of the Law themselves in all Cases that came before them Plowd Comment 466 467. In the Case of Eyston and Studde it is said No Makers of Law can forsee all things that may happen and therefore it is convenient that the fault be reform'd by Equity This the Chancery-men will catch at as making much for their practise of relieving in such unforeseen Cases where the Law looks severe and rigorous But the Case cited proceeds further and makes not at all for the Chancery if it be heard out And the Sages of our Law have deserved great Commendation says that Case in using Equity in Cases of Rigour in the words of a Law for by that they have mollified severe Texts and have made the Law tolerable Who are meant generally in our Law-Books and Arguments by the
Sages of the Law but the Judges to whom by Law belongs the Construction of the Acts of Parliament and the pronouncing of our Laws See the 2 Instit. fol. 611. The Judges in their Answ. to the 16th Objection 614 618. the Judges only are to expound Acts tho they concern Ecclesiastical Jurisdiction Here is no need of a distinct Court of Equity Such a Case of Equity was that of Reniger and Fogassa the first Case in Plowd Comment tho determin'd by a Privy Seal it being in the King 's own Case concerning the Customs There is another Equity says that Case of Eyston and Studde in the Comment which differs much from the former and may be thus defin'd Equitas est verborum legis directio efficiens cum una res solummodo legis cavetur verbis ut omnis alia in aequali genere eisdem caveatur verbis As for instance the Stat. of 9 E. 3. Cap. 3. which gives an Action of Debt against Executors shall be extended by Equity to Administrators tho not within the words But this also is done by the Judges of the Common Law Here is no mention of a Chancery-Equity and it had been according to the right Rules of Logick no good Division if it had not taken in all the parts called the Membra Dividentia which ought to be Toti adaequata Keckerm Systema Logicae pag. 245. regula quarta Doctor and Student pag. 27 28. Equity is to be exercised in the mild and merciful Construction of a Law and in some Cases departing from the strict and rigorous words of a positive Law rather than oppress any Man by it which is not by appealing from that Law or from the Court where that Law is administred but resorting from the Letter to the true intent and meaning of the Law and the true mind of the Makers of the Law Ubi aliud suadet necessitas cessat humanae constitutionis vigor cessat voluntas Nomothetae But this is the Duty of the Judges of the Common Law and to be done in the same Court and in the same Suit and Action and not in another Court and by a new Suit under pretence of Equity for that were to censure the Law and the Judges of the Common-Law Courts and to charge the Law-makers either with Ignorance or over-much Severity which is not to be suffered And this says St. Germin the Author of that Treatise is secretly intended and understood in every general Rule of every positive Law according to what is before remembred in this Discourse out of the Case of Eyston and Studde in Plowd Comment and what is said by the Author of Doctor and Student pag. 27. Laws says he covet to be ruled by Equity which is not meant meerly to be done in another Court Proceeding by Equity but by an equitable Construction of the Law in the Court of the Common Law as appears pag. 28. b. the latter end of that Chap. And those Equitable Constructions are there called Reasonable Exceptions of the Law and hold as well in Cases at Common Law as upon Statutes as appears by the Case there put at Common Law pag. 29. Cap. 17. and on the b. side of that page in medio it is said the Parties shall be relieved in the same Court and by the Common Law Plowd 88. b. 205. b. Thus in the Exposition of a Statute Judges depart from the words of the Law rather than run into an absurdity or inconvenience by a too literal Exposition as in the Case upon the Stat. of Marlbr concerning Distresses The Judges Hill 30. E. 3. gave Judgment against the express words of that Stat. tho the words were in the Negative too as is observed in the argument of Reniger and Fogassa's Case In Plowd Comment fol. 9. b. and it is a Rule in the exposition of Statutes many times to depart from the words to meet with the mind of the Law-makers whose intent as it must be presum'd is to do no Man wrong See in the same Case in Plowd fo 10. and in the same Book fol. 57. b. 199. b. 203. Laws expounded not only different from the words but contrary to them rather than do any Man wrong Such sence is to be made of the words of an Act of Parliament as may best stand with reason and equity and which most avoids rigour and mischief Plowd 364. a. in the Case of Stowell against the Lord Zouch It is spoken there by one or more of the Judges Some Cases by necessity in Construction are to be excepted out of a Stat. 2 Instit. 25. Many Cases may be within the Letter yet not within the meaning of an Act 2 Instit. 107. in Principio 110 111. and general words of a Stat. may be restrained by Construction 2 Instit. 502. and the Exposition of Statutes belongs to the Judges of the Common Law 2 Instit. 618. Hill 13 Jac. 1. in the King's-Bench Vaudry and Pannell's Case Rolles's Rep. first part 331. It is there said that if a Court of Equity made a false Sentence it may be revers'd by the King that is by his Commission for Mic. 42 43 Eliz. in a Suit in Chancery by the Countess of Southampton against the Lord of Worcester and others for the Mannor of Henningham It was resolv'd by all the Justices under their hands which is now in the Chancery That when a Decree is made in the Chancery upon a Petition to the Queen she may refer it to the Justices but not to any others to examine and to reverse it if there be Cause and the Lord Chancellor agreed to this Resolve and upon such a Petition and Reference the Decree made in that Case in Chancery was revers'd by the Justices This was in time before any Contest between the Two Jurisdictions viz. in Queen Elizabeths time and before the Judges were look'd upon as not indifferent It appears 3 H. 5. Nu. 46. That the Commons in a Petition complain That many were grieved by Writs which were called Writs of Sub-Paena which they say were not used till the time of the last King Richard That John de Waltham Bishop of Salisb. of his Subtilty invented and began such Novelty against the Common Law and that they proceeded upon those Writs according to the Civil Law in Subversion of the Common Law and they pray That an Action of Debt of Forty pounds may lye against such See the Record at large Roll. Abr. first part 371. too briefly Abridged by Sir Robert Cotton This is of the Nature of a Presentment by the Commons of England the Grand Jury of the Nation and it doth invincibly prove and testifie the time when this Jurisdiction was first set up in Chancery for the Writ of Sub-Paena is the first Process of that Court in Cases of Equity and 't is call'd a Novelty and Names the first Inventer John de Waltham who was Keeper of the Rolls in the time of King
hath already been said as from Sir Edw. Coke Ch. Jus. who was a faithful Friend to our Nation and Laws Mr. Lambert who was a Master of the Chancery Mr. Dugdale in his Origines Juridiciales from the Ch. Jus. Popham in Chudleigh's Ca. in the first Rep. of Sir Edw. Coke fol. 139. b. and from the rest of the Judges and Arguers of that Case whose Judgment as to this point viz. both of the Original of this Jurisdiction of the Chancery and the mischievous effects of those Conveyances to Uses and upon Trust and Confidence for they are all one and so mentioned in the Act of the 27 H. VIII whose design was to extirpate both will more fully appear 1 Rep. 121. b. There were says that Case Two Inventers of Uses Fear and Fraud Fear in times of Troubles and Civil Wars to save Inheritances from being forfeited which in Truth and in plain words was the same thing with fraud to evade the Law that inflicted those Forfeitures and Fraud to defeat due Debts and lawful Actions and Duties Before the time of Richard II. says the Ch. I. Popham in that Case no Act of Parliament or other Record nor any Book nor Writing made any mention of Uses of Land Hear the Opinion of the King Lords and Commons the whole Nation concerning Uses in the Preamble of the Statute of 1 Rich. III. Cap. 1. The makers of that Statute set forth the mischiefs arising from such Conveyances to Uses and Trusts viz. great Unsurety Trouble Costs and grievous Vexations to the Buyers of Land or to such as took Leases In the Preamble of the Stat. of 27 H. VIII Cap. 10. viz. That by divers subtle Inventions and Practises by Fraudulent Feofments Fines Recoveries and other Assurances craftily made to secret Uses Intents and Purposes c. Manifold Mischiefs did ensue Out of which Statute both from the Preamble and Body of it may be observ'd 10. That Uses and Trusts are the same things Styles Rep. fol. 21. 40. 20. That the intent of the Law-makers was to extirpate both as being but the same But we know where Trusts are supported as if they were distinct things from Uses and a plentiful Harvest hath arisen from them tho it hath been resolv'd that an Use cannot arise out of an Use but this is evaded by giving it the Name of a Trust and making them distinct things So that we may learn from what hath been said when and whence these pernicious things called Uses and Trusts had their Original and who was the first Inventer of the Writs called Writs of Sub-Paena all about the time of that Exorbitant and Tumultuous Reign of King Richard II. and that such Conveyances ought at first to have been adjudg'd void being fraudulent as other fraudulent Conveyances have been by the several Statutes of 52 H. 3. Cap. 6. 50 E. 3. Cap. 6. 2 R. 2. c. 3. 3 H. 7. C. 4. 19 H. 7. Cap. 15. Trin. 7 H. 6. fol. 43. If a Man make a Feofment in fee Proviso tamen that the Feoffor shall always have the Profits of the Land that Proviso is void and contrarious by Hankford a Judge of the Common Pleas in the time of King Richard II. Now What an absurdity and contradiction is it in Reason and a mockery and abuse of the Common Law That a Man shall use the just and necessary Liberty the Law allows him to convey away his Land but it shall be so agreed that he to whom it is conveyed shall not be one jot the better for it but it shall still remain his in point of Profit that convey'd it away And so it is all but a Delusion and Deceit and the honest intention of the Law is baffled by it But a world of work is made by this for a new Court The Judges who are the Conservators of the Common Law and of the rights of the People early decryed these Inventions of Uses and so have several Acts of Parliament But the Potency of some great Church-men and others did still own and support them for they bring great Profit with them to the Jurisdiction Under this pretence and upon these occasions began the Invention of Uses and Trusts which have wonderfully perplex'd and turmoil'd almost all the Estates in England so that Men's Estates and Titles are not now so much guided and governed by the old and most wise and certain Rules of the ancient Common Law as by new invented Rules in a new Court to the subverting of the Common Law and Ruine of many Families How much work have they cut out for our Parliaments by making many Acts of Parliament to redress the Abuses but the Mischiefs are insuperable and the many good Remedies provided by several Parliaments have been rendred fruitless and I cannot for my life tell how it hath so come to pass unless by the excessive Power and mighty Favour that hath been indulged to the Persons in that High Office such as Cardinal Wolsey and others of the Hierarchy who were formerly in that great Office and were wont to have a mighty stroak in the Government By reason of these Conveyances to secret Uses and Trusts the Lord was Defrauded of his Ward heriot and Escheat To remedy this was the Stat. of 52 H. 3. Cap. 6. called the Stat. of Marlebridge made which made such Conveyances void as against the Lord and several other Statutes to the same purpose The Creditor who supposed the same Feoffor he still being in Possession and taking the Profits to be still the Owner in Law he lost his debt till the Stat. of 50. E. 3. c. 6. made the Lands however liable to satisfie the Debts and many Statutes more were made in the like Case A Man that had cause to Sue for his Land knew not against whom to take his Remedy and to bring his Action For one Man had the naked Name or Title like the titular Bishops of the Church of Rome and another had the Use and Profit till the Stat. of 1 R. 2. c. 9. made an Assize maintainable against the Pernor or him that took the Profits The Wife was Defrauded of her Thirds The Husband of his Tenancy by the Courtesie The poor Farmer of his Lease The Crown of the Forfeiture for Treason whereby Men were more imboldened to commit Treason The Stat. of 1 R. 3. c. 1. Tho it meant well yet gave too much countenance to these mischievous Uses by making good the Estates granted by the cestuyque Use Whereas it should rather have set a brand upon those Conveyances to Uses and have declar'd them all void as being generally meer Frauds and Cheats for so the Judges were in those times wont still to pronounce them And that Stat. of 1 R. 3. deals plainly in the matter by setting forth in the Preamble the great Unsurety Trouble Costs and grievous Vexations that daily grew from them but at last that Statute deals too gently by them And several other like
or at any time should be where there might be the same mischiefs viz. by Impeaching Judgments given in the King's Courts which are so often declared to be in Subversion of the Law He affirms That the Proceedings by English Bill in Chancery are not Coram Domino Rege in Cancellaria as the Latine Proceedings are but by a Bill or Petition directed to the Lord Chancellor and not to the King This Case was adjourn'd and we heard of no further Proceeding I was then of Council for the Plaintiff at Law to maintain the Stat. of 4 H. 4. and the Demurrer Crompton's Jurisdiction of Courts in the chapter of the Chancery fol. 67. he allows of the Statute of 4 H. 4. and agrees it extends to the Chancery and mentions what is written by Doctor and Student upon that point So that here are all sorts of Resolutions in this very point and from all sorts of Authorities in Law and in several Reigns Ancient and Modern by the whole Parliament declared by several Statutes by the House of Lords by all the Twelve Judges at several times by all the Courts of Law in Westminster-hall and in particular by the Court of Exchequer most of whose business is to Relieve in Equity grounded upon a Power and Jurisdiction vested in them by Act of Parliament if not by Prescription the two onely ways whereby a Jurisdiction in Equity can be given as has been often resolved and was before observed And all these are Unanimous not one Judge dissenting or doubting not any one Resolution Book or Authority in the Law to the contrary And yet as I am informed the Court of Chancery constantly and without any hesitancy or scruple made of it proceeds to Relieve in Equity after Judgment at Law The Plea and Argument for it on the Chancery side which we may find in a late Author the Title of whose Book is Reports of Cases in the Court of Chancery Printed 1693. to which is added Arguments to prove the Antiquity Dignity Power and Jurisdiction of that Court And much to that purpose is recited in Sir Edw. Coke 3 Instit. fol. 125. in the beginning of that folio It is a Privy Seal 14 Jac. Anno 1616. whereby that King assuming to himself a Power to Arbitrate between the Courts of the Common Law and the Chancery in questions concerning their Jurisdiction and more especially in the great Dispute between the Judges and the Chancellor Whether the Chancery could Relieve in Equity after a Judgment obtained at Common Law which Dispute did arise upon the construction of the Stat of 4 H. 4. cap. 23. whichdid by Law belong to the Judges to determine and resolve as hath been proved and they had determined it King James taking it to belong to his Kingly Office to Arbitrate in such Cases Decides as they would believe the Controversie by adjudging it with the Chancery which he signifies under his Privy Seal and thereby does Will and Command the Chancellor shall from thence-forward proceed to give such Relief in Equity And this was done against the Unanimous Resolution of all the Judges of England and without calling the Judges to Debate it and without any Hearing of them looking upon them as Parties concerned and practical which is a Scurvey Reflection and Scandal upon the Justice of the Nation See the 2d Instit. of Sir Edw. Cok. fol. 617. The Answer of the Twelve Judges to the Twenty fourth Objection to this purpose so that the King upon hearing his own Council Learned in the Law only took upon him to Over-rule all the Twelve Judges in a point of Law and to Interpret and Expound an Act of Parliament which properly belongs to the Judges next under the Supream Court And no wonder is it if King James I. took this Arbitrage upon him as belonging to his Kingly Office and resolved it under his Privy Seal when his constant Opinion was that he was above the Law and that it was Treason to affirm the contrary which yet all the Twelve Judges stoutly did and cited Bracton for it Rex sub Deo Lege See a Collection of King James's Works in a large Folio Printed 1616. pag. 203. where he affirms that the King is above the Law and that he may Interpret it And pag. 534. That it is his Office to make every Court to contain it self within his own Limits See the Act for regulating of the Privy Council c. 16 Car. 1. cap. 10. before-mentioned in the 5th Paragraph it is Declared and Enacted That neither his Majesty nor his Council have or ought to have any Jurisdiction Power Authority by Petition Articles or any other way to draw into question determine or dispose of the Lands or Goods of any of the Subjects of this Kingdom but the same ought to be Tried and Determined in the ordinary Courts of Justice and by the ordinary Course of Law See the several ancient Statutes that require and command the Judges to proceed to administer Justice without Regard had to the Great or Privy Seal that command the contrary Magna Charta cap. 29. 2 E. 3. c. 8. 14 E. 3. c. 14. 20 E. 3. c. 11. Some will argue for the Jurisdiction of the Chancery in Equity from the Statute of Westminster the 2d 13 E. 1. cap. 24. which directs That Nemo recedat à Curia Regis sine Remedio from hence they Collect that where there is matter of Equity wherein the Common Law cannot Relieve there the Chancery by this Statute is enabled to provide Remedy Whereas the Design and Scope of that Statute extends no further than to the framing of Writs in order to Relief by Actions at the Common Law where the Register of Writs that ancient Book of Law had for some new and special Cases provided no Writ which is the first step in every Action and is proper work for the Chancery which is therefore styled Officina Brevium It is very far from giving that Court any Jurisdiction in Equity but it shews what Remedy is to be given towards a Proceeding at the Common Law and not to Relieve against it But it may be noted from this ancient Statute that neither the Chancellor nor the Chancery could alter an Original or so much as frame a new Writ were there never so great Necessity for it till enabled by this Statute It could be done only by the Parliament and in such Cases the Parties were forced to wait till the meeting of a Parliament tho they had manifest Right and clear Equity on their side but no Remedy at Law If it were then a Court of Equity why did not the Chancery Relieve in Equity because the Party was without Remedy at Law Note in the next place That the Parliament by that Statute doth not entrust the Chancellor alone nor any one Person with the framing of new Writs fitted to such new Cases tho they were Cases that had a manifest Right but not a Legal Remedy and yet Writs
fieret detrimentum And Selden speaking of the Civil Law pag. 540. ib. says about King Henry IIId's time Jus Caesareum was newly brought in Et à nonnullis maximè ex genere Hieratico proculdubio perquà m adamatnm atque prae Anglicano in pretio habitum See that admirable and right English Preamble to the Stat. of 25 H. VIII Cap. 21. What Laws only are binding to this Nation viz. none but those Laws which the People of England have taken at their free Liberty by their own Consent to be used amongst them as the customed and ancient Laws of this Realm originally established and none otherwise Not any new Rules devised ex re natâ at the Discretion of any one Man tho never so Great or Wise or Learned but never consented to by the Nation and from the first appearance of them declaim'd against by several Acts of Parliament and by a multitude of Petitions of the whole Commons in Parliament complaining of their Process as a Novelty began at first but about Richard II. or Henry IV. time a time of great Troubles See to this purpose Cott. Abr. 2 H. 4. Nu. 69. 3. H. 5. Nu. 46. 9 H. 5. Nu. 25. Roll. Abr. 26. par 1. fol. 371. D. nu 2. Yet let me here observe one thing more by the way namely that from these beginnings here of the Chancellor's Power tho so restrained as we see by the several particular Acts of Parliament that gave them Occasion was taken afterwards to Engross the Power of Equity and to take it from the highest Court of the Nation And those that plead for it do without all sence or reason ascribe it to some few Acts of Parliament that referred some particular Cases to him as fairly giving him the power whereas those Acts of Parliament manifestly shew the contrary Utcunque verò says Sir Henry Spelman se res habuerit fiquidem vel Exutis sociis vel cedentibus shaken off sitting silent or weary of being Mutes apud ipsum Unicum meaning still the Chancellor remansit tandem Jurisdictio It so came to pass that he could not well tell how that the Chancellor grasp'd it all and shook off his Associates or they prov'd Deserters And one Act of Parliament more Sir Henry Spelman mentions viz. 36 E. 3. Cap. 9. as trusting the Chancellor singly but it hath been already shewn that the matter so intrusted by that Statute had no reference to Equity nor indeed to any Judicial power to be exercised by him but meerly as ministerial rather directing Remedies by Writs in order to a Decision by a Legal Course and by the Common Law He proceeds farther viz. Ascitisque protractis in Cancellariam pluribus quam Justum videbatur Populus meaning the Commons in Parliament ad candem cohibendam Legem rogat non autem tulit sed benignè à Rege responsum est as was wont mandaturum se id parciùs fieri quam priùs solitum This was 4 to H. 4. about which time the Chancellor first began to arrogate to himself this power as shall be more fully shewn hereafter See Sir Rob. Cott. Abr. pag. 410. 2 H. 4. Nu. 69. a Petition of the Commons against the very Original Process of Sub-Paena that it might no more be used and that the Subjects might be treated according to the rightful Laws of the Land anciently used see Rolles's Abr. part 1. fol. 370. more at large And that this Process was illegal appears by another Petition of the Commons 4 H. 4. Nu. 78. Roll's Abr. ut supra The Commons in their Petition 4 H. 4 Cott. Abr. Nu. 78. pray that the Suggestions made in Chancery may be tryed by a Jury and if they be found false that the Jury may give the Defendant damages And that the Plaintiff before he be allowed to take out a Sub-Paena may find sufficient Surety to answer such Damages which shews the good Opinion the Nation had of Juries The Petition of the Commons 4 H. 4. Nu. 110. intimates that all the Estates of the Realm were in danger by the Chancery-Proceedings and they pray remedy for God's sake It is very useful and pertinent also to set down what further Sir Henry Spelman mentions Simile quiddam says he agitatum ferunt in Parliamento Anno primo of King Henry VI. Sc. Neminem ad Cancellariam provocaturum cui duo Justiciariorum Regis non ferrent testimonium haud Subvenire Legem Terrae Two Judges of the Common Law which is call'd the Law of the Land in distinction from the Chancery-Rules were to make way for every Bill in Chancery by their first certifying that the Plaintiff had no Remedy at Law which was an excellent expedient and worthy to be made a Law by a short Act to be past for that purpose The Judges of the Common Law who are Sworn to maintain the Law were thought the most competent and worthy to be entrusted in it and not look'd upon as partial and unindifferent which is a Scandalous Reflection upon the Government and Constitution See the 2 Instit. of Sir Edw. Coke pag. 544. there is a Writ directed by King Edw. II. to the Judges of the King's-Bench in these words Vos Locum nostrum in placitis teneatis nostram praesentiam supplere debeatis and in the Case of Walter de Langton ib. fo 573. Contemptus ministris domini Regis facto eidem Domino Regi inferuntur says the Record in the 33th year of King Edw. I. It appears that the Chancellor could not Act no not in many ordinary Matters till enabled by the Parliament See 14 E. 4. fo 1. Brook Abr. Tit. Brief plac 483. and then his Power was limited and he alone was not entrusted but he had an Association of others Quantum mutatus ab illo It farther shews when he began to enlarge and assume a greater Power and how unwarrantable it was in his first Exercise of it not grounded upon any good Authority for we should have been sure to have heard of it in the King's Answers to the Petitions of the Commons against it as was constantly used upon such Petitions where there was any Law to warrant what was so complain'd of had there been any either Prescription or Act of Parliament the Chancellor being constantly the chief Person among the Tryers of Petitions in Parliament and framing the Answers of those Petitions in Parliament together with the Bishops Lords and Judges which of late hath been wholly disused And lastly it proves how early this new Jurisdiction of the Chanceries Proceeding in Equity was decry'd and exclaim'd against not only for the Abuses in the Administration of it but for usurping a Jurisdiction not founded upon any good Authority and carried on by the Potency and Greatness of the Chancellor Nor was there any the least pretence of any Prescription or Act of Parliament to support it Nor was it taken to be any part of the Law of the Land or of the Common Law tho
R. II. which is now called Master of the Rolles but in the time of King R. II. it was look'd upon as an inferiour Office as may be observed upon the Supplication of Will. de Burstall in the 1 R. II. Ryley's Placita Parl. in the Appendix pag. 670. who stiles himself A Petit Clerk Keeper of the Rolles of the Chancery and prays his Patent may be confirm'd by Parliament as a work of Charity See Sir Edw. Coke's 4 Instit. fol. 95. 96. ad finem And John de Waltham was Burstall's immediate Successor This also speaks the mighty growth of that Court this petit Clerk now takes place of the Chief Justice of the Common Pleas. Let us hear the Judgment of an ingenious Writer and a worthy Person Mr. Hunt before mentioned in his printed Argument for the Bishop's Right in Judging Capital Causes in Parliament pag. 144. One may wonder says he That there is nothing in Antiquity that gives Authority to so celebrated and busie a Court as the Chancery at this day is none can be able to Cope with it but the highest and Supream Sovereign Power he means I suppose the last Resort the Lords and it is the proper work and care of that Court and to that Court only is this address made It occasions says Mr. Hunt a multitude of Suits tedious in delay The Expences many times equal sometimes exceeds the Value of the Right in dispute and that which is worse the Event is very uncertain That Court says he had its Rise from Feofments made upon Trust to avoid Forfeiture to the Crown in times of Civil War between the Two Houses of York and Lancaster 21 E. 4. fo 23. Bro. Abr. Tit. Conscience plac 21. by Fairfax It encreased from the Nicety of Pleadings especially in Actions upon the Case in the Common Law Courts and from the Potency of the Chancellor who commonly made and unmade says he the Twelve Judges If we may give due respect and credit to learned Sir Edward Coke and to the Resolutions of many Reverend Judges in several Cases in several Kings and Queens Reigns and allow them to interpret Acts of Parliament to whom out of all doubt it does peculiarly belong We may conclude That upon such Proceedings in Equity for matters tryable by a Jury and especially where a Freehold is concern'd and where if there be a right there is an ordinary Remedy for it I say upon such Proceedings be they in the King's Courts Ecclesiastical or Temporal or in a Court of Equity not only a Prohibition will lye to the highest of those Courts to forbid them but a Praemunire also will lie to punish them severely be they never so high because it brings matters tryable at the Common Law and of Freehold and Inheritance ad aliud Examen and to be discussed per aliam Legem as says Sir Edw. Coke's 3 Instit. fol. 121. in the middle of that fol. in the Chapt. of Praemunire and the very Statutes made in those Cases are Prohibitions in themselves If it were thought convenient by the Supream Legislature to have any such Power exercised in an ordinary and constant use of it possibly it might better be deposited in the hands of the Judges of the ordinary Courts of the Common Law whatever Sir Francis Bacon says to the contrary in his Advancement of Learning which has been successfully experimented as in the late Court of Wards mixed of Law and Equity and in the Court of Exchequer where matter of Equity by the Stat. of 33 H. VIII C. 39. is allowed to be pleaded in the same Court and Office among the Latine Proceedings But neither of these Courts ventur'd upon such a Course no not to proceed in a Course of Equity by English Bill till enabled to do so by Act of Parliament tho some have been of Opinion that the Exchequer had such an Equitable Jurisdiction by Prescription And it is a thing to be admired that after so many Courts suppressed by several Acts of Parliament as that of the Star-Chamber the Court of the Council in the Marches of Wales and others and several Courts that have very politically surceas'd the Exercise of their Jurisdiction of their own accord as not being warranted by Law as the Court of Requests c. That the Friends to the High Court of Chancery as to the Exercise of an Equitable Jurisdiction have not endeavoured to fortifie their Court with an Act of Parliament under due and reasonable Regulation especially when it once fell tho in times of Usurpation under a large Correction which tho it wanted a good Authority too yet it manifestly shews the sence of the whole Nation whom the then Usurping Powers thought it good Policy to gratifie and indulge for in pessimis temporibus as well as ex malis Moribus bonae oriuntur Leges as to the matter of them as in the short Reign of Richard III. I can appeal to that Highest Judicature the whole House of Lords who have had many years Experience of me begun about Twenty Four years since for so long ago I was their Assistant and to Thousands more with whom I have had a publick Conversation for about Fifty years and some for a shorter time that this is no new or sullen and revengeful Humour in me but proceeds from a Love to my Countrey and Gratitude to mine and my Ancestors Profession and from a desire to have my self and my own Posterity and Neighbours Free and Happy Let me observe from Mr. Hunt before cited that what he writes doth appear to be the Vulgar and Common Opinion concerning this Court of Equity for which reason I cite him It points out to us whether we are properly to resort for a Regulation that is to the Lords House and with all Submission and Reverence to that High Court be it spoken it is a Trust repos'd in them to reform this Lesser tho commonly call'd The High Court of Chancery and to keep the rest of the Courts within their due Bounds As for the Court of the King's-Bench to whom it most properly belongs to grant Prohibitions upon such occasions 2 Instit. fol. 610. Prohibitions are not of Favour but of Justice It is now grown to that pass through the length of time and disuse that the Court of King's-Bench might possibly find it Imparem Congressum unless encourag'd to it by that Supream Court of the Lord's House Observe too that this Author Mr. Hunt does concur herein with many other Testimonies when this Court of Equity had its first rise and beginning and whence it took the occasion of such a Jurisdiction viz. from the Feofments upon Trust whose beginning too we know and what the Design and purpose was of such illegal and fraudulent corrupt Feofments and Conveyances to Uses upon Trust were we shall further examine and hear the Opinion and Judgment of several Reverend Judges and divers Writers besides upon that Subject before the close of this Discourse of which much
what might be the Discretion and Judgment of One great Person and thereby have fenced against it I must not only be defeated of my Right disappointed of a Provision for my Family for which I had long been labouring but beyond all expectation after a tedious and chargeable waiting for the Event and Issue of a Chancery-Suit I shall be doom'd to pay Two or Three hundred pounds by the Name of Costs because I could not Prognosticate what would be the Opinion or Judgment of One single Person upon my Case who is not so tied to Rules as the Judges are This wonderfully enriches the Men of the Chancery Leges humanae says that good Chancellor Fortescue in his commendation of the Laws of England pag. 11. on the b. side of the Page non aliud sunt quam Regulae quibus perfectè justitia Edocetur as they are Leges à ligando so they are Regulae à dirigendo Regulando And id pag. 25. b. 31. b. says the Chancellor still Non potest Rex Angliae ad Libitum suum Leges mutare regni sui This Excellent Chancellor Fortescue lived in the time of King Hen. VI. and was Ch. Justice of the King's-Bench Anno 20 H. 6. as appears by Dugdale's Origines Juridiciales pag. 58 62. yet has not a word to say in Commendation of this Equitable Jurisdiction thô it then began to spring up and he himself were Chancellor as he stiles himself but rather seems utterly to condemn it by so highly commending the Trials of matters of Fact by Twelve Men and preferring it infinitely before that of the Civil Law which the Chancery follows by the Testimony of Witnesses only and by as much extolling the certainty of our Common Law administred by the Judges of it Could he possibly have forgotten to mention that Jurisdiction he himself being Chancellor had he approv'd of it It is excellent advice in the Preface to Sir Coke's 7 Rep. fol. 2. b. Quoad fieri possit quam plurima Legibus ipsis definiantur quam paucissima verò Judicis Arbitrio relinquantur Now let us take Notice of the ill Effects that have arisen from the Exercise of this Equitable Jurisdiction which in general words were taken notice of by a Bill that lately passed One or both Houses of Parliament take these Instances First The Common Law of England which is the birth-right of every English Man and which is so agreeable to the Genius of this Nation and a Law of their chusing is by this new Jurisdiction Subverted and the Civil Law which hath been so vigorously oppos'd by the Lords and Commons from the beginning and in all Ages is introduc'd which brings our Rights and Estates to be determined ad aliud Examen to a Decision by Depositions of Witnesses only and in such a manner examin'd as is observ'd by that incomparable Treatise of the Chancellor Sir John Fortescue De Laudibus Legum Angliae in a private Room before an Officer call'd An Examiner not before the Judge of the Court and many times upon leading Interrogatories Whereas the Truth is best discovered when Witnesses are produced in the face of the Court and Examined by the Judge of the Court in the presence of the Parties to the Suit and their Council and Witnesses brought to confront one another There is many times much in the Countenance and Carriage of a Witness to help to the manifestation of the Truth or Falshood of his Evidence and by Questions suddenly asked him Tacitus in his Annals in his Second Book Chap. 8. tells us that the ancient custom of Rome was That even the Vestal Virgins that in all other Cases were recluse and vailed yet upon occasion for their Testimony they were examined as Witnesses in the common place of Pleadings and Judgment Secondly The Judgment and Determination of Causes in Chancery depend upon the sole Opinion and Conscience of one single Person whose Power therein as some of our Books and Modern Authors presume to affirm is Absolute and Arbitrary Sir John Davys in his Preface to his Reports fol. 11. b. says The Chancellor hath Potestatem absolutam in binding and loosing the Proceedings of the Law and in deciding of Causes by the Rules of his own Conscience and that the King trusts him with his own Conscience Tr. 9. E. 4. fol. 14. Pasc. 22. E. 4. Fitzh Sub-Paena placit 16. by Hussey The Chancellor's Judgment is not guided always by certain and known Rules so that no foresight can sence and provide against it We are not fore-warn'd and therefore cannot be fore-arm'd and all this by a Jurisdiction at the first assum'd but not legally granted The first Chancellor in this Exercise of this Power not at all asking that material Question Quis me constituit Judicem as our Blessed Saviour himself did in the like Case And how expensive and dilatory in Proceedings we have been already told by the several Books and Authorities cited and it shall be yet further observ'd We may read in the Lord Coke in his Magna Charta 29th Chap. in his Exposition fol. 51. of the words per Legem Terrae What mischiefs and horrible vexations did arise when this ancient and fundamental Law this Lex Terrae was laid aside in divers Cases by the Act of 11 H. 7. Cap. 3. and a Liberty given to proceed without any finding and presentment by the Verdict of Twelve Men upon a bare information for the King altho' the Justices of Assize and Justices of the Peace were entrusted in it to proceed according to their Discretions upon bare proof by Witnesses whereby the Judges and Justices who might best be trusted with such a dangerous Power if it might be allow'd to any were not only Judges of the Law as the Judges of the Common Law Courts at Westminster-Hall are but also in the place of a Jury to judge and determine of Fact too as the Equity side of the Chancery too often doth and yet this Liberty was given by an Act of Parliament which cannot be said of the Jurisdiction we are treating of yet the Nation could not bear it but was restless till that intolerable Act of 11 H. 7. Cap. 3. was Repeal'd by the Act of 1 H. 8. C. 6. and the Tryals by Juries thereby restor'd again The Lord Coke in the same Chap. fol. 54. further declares That if any Man by colour of any Authority where he hath not any in that particular Case Arrest or Imprison any Man or cause him to be Arrested or Imprisoned this is against this Act of Magna Charta and it is most hateful says he when it is done by Countenance of Justice and I take it to be worse if done by a Countenance of Equity and by colour of a new invented Writ first devis'd By John de Waltham Mr. Lambard in his fore-cited Archaion fol. 84. speaks thus If the Chancery have no certain Rules and Limits of Equity if it be not known before-hand in what Cases
the Parties to such Judgment be in Peace A Peace with a witness to be involv'd again with a new tedious expensive Chancery-Suit so uncertain in the Event and tied to no certain Rules When the Plaintiff at Law flatter'd himself and was glad that he had arriv'd at his desired Haven Post varios casus post tot discrimina He is wonderfully deceived he must set out to Sea again to another long East-India Voyage But what Authorities Law-Books or Resolutions of Judges or Courts of Justice have the Chancery had for the expounding of the Statute of 4 to Henry IV. in this sense which utterly makes that Statute of no Effect besides those of itheir own Chancellors and besides the Privy-Seal of King James I. upon consulting only with his own Council at Law A very strange way of Proceedng The Great Seal and the Privy Seal are on their side 't is true if these in such Case must be submitted to what then becomes of the Stat. of 2 E. 3. cap. 8. whereby it is accorded and established That it shall not be commanded by the Great nor the little Seal to disturb or delay common Right and tho such Commandments do come the Justices shall not therefore cease to do right in any point the Stat. of 14 E. 3. c. 14. is fully to the same effect The complaint against the late Court of Star-chamber which yet was established by Law was that by experience it was found to be an intolerable burthen to the Subject and the means to introduce an Arbitrary Power and therefore that Court was taken away by the Act of 16 Car. 1. Cap. 10. I shall now on the other side endeavour to make it clear to the Honourable the Lords that such Proceedings of the Chancery of Relieving after Judgment at Law upon any pretence of Equity whatsoever is not only against the express words and meaning of that Act of 4 H. 4 but against the Ancient and Fundamental Common Law of England and this I doubt not to make out by all sorts of Authorities and Resolutions Ancient and Modern and in the Reigns of several Kings and Queens of this Nation and that not one authentick Legal Authority can be produced to the contrary I shall begin with the most ancient Authority and that is in 6 E. 1. in the Case of the Earl of Cornwall cited in Sir Coke's 3 Instit. in the Chapter of Praemunire fol. 123. Judgment was there given before the Justices of Oier and Terminer against the Bishop of Exeter and his Tenants The Arch-Bishop of Canterbury Excommunicated all Persons that dealt in those Proceedings against the Bishop of Exeter and his Tenants before those Justices The Record says That the Judgments given in the King's Court ought not to be Impeach'd in any other Court This appears by that Record to be the Antient Law The Stat. of 4 H. 4. now treated of is in effect a Declaration of the Common Law for it recites in the Preamble as was before observed that such Proceeding was in Subversion of the Common Law of the Land which proves it to be done against the Common Law In the Case of Cobb and Nore Pasc. 5. E. 4. Coram Rege cited by Sir Edw. Coke in the same third Instit. fol. 123. A Judgment was obtain'd by Covin and Practise against all Equity and Conscience in the King's-Bench For the Plaintiff in the Judgment retained by Collusion an Attorney for the Defendant without the knowledge of the Defendant then being beyond Sea the Defendant's Attorney confesseth the Action whereupon Judgment was given The Defendant sought his Remedy by Parliament and by Authority of Parliament Power was given to the Lord Chancellor by advice of Two of the Judges to hear and order the Case according to Equity If the Chancellor had any such Power before what need was there of resorting to the Parliament Non recurritur ad extra-ordinarium nisi cessat ordinarium And why was it not referred to the Chancellor alone without Associates if it did of Right belong to him before Such a Case in these days would be held in Chancery to be a most proper Case for the Relief of that Court. And Note further That one Person alone thô a Lord Chancellor was not to be entrusted with a Judicial Power but others were joined with him In the 22 E. 4. fol. 37. It is said by Hussey Ch. Justice If after Judgment the Chancellor grant an Injunction and commit the Plaintiff at Law to the Fleet the King's-Bench will by Habeas Corpus discharge him In the 21th year of K. H. VIII Articles were Signed by Sir Tho. Moor the Chancellor himself and by Fitz-James Ch Justice and Justice Fitzherbert against Cardinal Wolsey One was for Examining matters in Chancery after Judgment at the Common Law in Sir Edw. Cok. 3. Instit. fol. 124. in Subversion of the Laws See the 2 Instit. fol. 626. at the end of that folio before cited more of Cardinal Wolsey and the Indictment against him In Crompton's Jurisdiction of Courts fol. 67 69. and 57. about the time of 13 Eliz. a Man was Condemn'd in Debt in the Common Pleas that is had Judgment entred against him and he Exhibited a Bill in Whitehall and had an Injunction to stay Execution and the Plaintiff that had the Judgment at Law moved in the Common Pleas to have Execution and it was granted notwithstanding the Injunction afterwards the Chancery committed the Plaintiff at Law to the Fleet for Suing out Execution and the Lord Dier Chief Justice and the whole Court of Common Pleas deliver'd him out of the Fleet by Hab. Corpus In the Case of Sir Moile Finch and Throgmorton Mich. 39. 40. Eliz. Throgmorton Exhibited a Bill in Chancery against Sir Moile Finch and shewed clear matter in Equity to be Relieved against a Forfeiture of a Lease for years pretended by Sir Moile for Breach of a Condition where there was no default in the Plaintiff Throgmorton To which Bill the Defendant in Chancery Sir Moile Finch Pleaded That he had obtained Judgment in the Exchequer in an Ejectment in the Name of his Lessee against Throgmorton the Plaintiff in Chancery and that Judgment had been affirm'd in Error and demanded the Judgment of the Chancery if after Judgment given at the Common Law he should be drawn to answer in Equity Egerton would not allow the Plea but over-ruled it Note He did not Plead the Statute of 4 H. 4. but grounded his Plea at the Common Law Queen Elizabeth referr'd the Consideration of this Plea and Demurrer to all the Judges of England not to her own Council Learned in the Law for the Twelve Judges are the proper Judges of this Question tho it concern'd their own Jurisdiction After hearing Council and the intent of the Lord Chancellor being said to be not to Impeach the Judgment but to Relieve upon collateral Matter in Equity Upon great Deliberation it was Resolved by all the Judges of England That
serve but as a mean to bring the Case to a Judgment but it refers the matter also to the Clerks now called the Masters of the Chancery to frame Writs for such new Cases And those Clerks now Masters were as Fleta describes them Men of profound Science What! in the Civil Law no but in the Laws and Customs of England Qui in Legibus Consuetudinibus Anglicanis notitiam habeant pleniorem And these Masters have Caution given them by that Statute that if any Doubt or Difficulty did arise about framing those Writs Atterminent querentes ad proximum Parliamentum Scribantur Casus in quibus concordare non possunt Et de consensu Juris peritorum fiat breve Why was it not referred in such Case to the Lord Chancellor at least where the Masters could not settle and agree the Form it being a Form No not to any one Man and it was a Work proper for a Parliament and in those days Parliaments met often for these very purposes and it was settled by an Act of Parliament in King Alfred's time and it is a Law still in force That for ever twice a year or oftner if need were in time of Peace a Parliament should be holden at London and as Bracton a Judge tells us this was so ordain'd to determine of Cases that were new and had no Remedy at Law or a doubtful Remedy but good Equity where was the Chancery-Equity then Si aliqua Nova inconsueta Emerserent quoe nunquà m prius evenerunt Ponantur in respectu usque ad Magnam Curiam ut ibi per Concilium Curioe terminentur And there are infinite Precedents says the Learned Coke in the Rolls of Parliament of such references to the Parliament and to that end were Parliaments so often to be held and it took up most of their time See Ryley's Placita Parliamentaria in the Appendix fol. 525. And the infrequency of Parliaments hath given occasion to other Courts to Transact in those matters that are indeed proper for the Parliament The Exorbitances of great and high Officers have been many times a means to hinder and prevent the frequent Meetings of Parliament as in the Case before mentioned of Cardinal Wolsey least their Exorbitancies should be questioned All these Mischiefs might be Remedied either by some good Act of Parliament to be Pass'd as has been often endeavour'd or by Referring the Determination and Judging of Bills of Review of their Decrees into good and indifferent hands or by the Supreme Court 's declaring that the Courts of the Common Law in Westminster-hall ought ex Debito Justitiae to grant Prohibitions to any Court whatsoever that either Usurp a Jurisdiction where they have none of Right or exceed their Jurisdiction where they have one This Legal Remedy having been long disused and laid asleep wants a Revival In order to obtain these peaceable and most necessary Helps this small Treatise is Humbly recommended to the grave Consideration of the HOUSE OF PEERS FINIS ERRATA Page â—…1 line 31. politically r. politiquely P. 32. l. 6. r. his Exercise P. 40. l. 43. it heir r. their The Names of Chancellor and Chancery The first Chancellor in England The Nature of the Chancery and Office of Chancellor So Minshew upon the word Cambden's Britannia p. 143. A Ministerial not Judicial Office at first The Chancery an Office When the Chancery from an Office set up for a Court. a 5. E. 3. c. 14. The Chancery as toits Equity no Court of Record The King with the Peers administred Justice not the K. alone The Administration of Justice not entrusted in oâ—… single hand by the Common Law Judges joined with the Chancellor * See Sir Coke's 2 Instit. iâ—… the Chas of Arti culi Cle ri fol. 601 602. No Reports of Causes in Equity in the Chancery before the time of K. H IV. The Time The Occasion Uses of Land No Act of Parliament gives the Chancellor the power of Equity Sir Richard le Scrope or John de Windâ—… for 's Case The first Decree in Chancery was reversed and the matter left by the House of Lords to the Common Law The Church-men were the first Setters up of a Jurisdiction in Chancery in matters of Equity The Judges were at first wont to be consulted with by the Chancello * Sâ—…e Fi 〈…〉 Abr. 〈◊〉 Sub-Paena and Brook's Abr. tit Conscience and Pasc. 22. E. 4. 6. Pla. 18. The Common Law the only Law in England anciently aa Dr. and Student pag. 15. by Jury and not otherwise The Books of the civil Law introduced into England by the Clergy are commanded to be 〈◊〉 The Nobility were anciently the Students of the Common Law The H. of Commons constant opposers of the Equitable Jurisdiction of the Chancery And of the Process by Sub-Paena There can be no Jurisdiction in Equity but either by Prescription or Act of Parliament not by any Charter or Commission from the King What Equity meant anciently What is meant by Equity in the true sence of it * By the Stat. of Articuli super chartas cap. 5. in anno 28. E. 1 The Judges are called the Sages of the Law The Judges of the Common Law are to review and reverse Decrees in Chancery John de Waltham Bishop of Salish the Inventer of the Writ of Sub-Paena in the wicked time of King Richard II. The Writ of Sub-Paena called a Novelty by a Petition of the House of Commons in the Reign of King Henry V. That a Prohibition lies to stop a Suit in chancery See Mich. 13. E. 3. Fuzh. A bridgment Tit. Prohibition plac 11. The Mischiefs from the Invention of Feofments to Uses and in Trust. Lamb. Archeion pag. 75. Dr. and Student 98. Sir Henry Spelman Gloss. 107. Fitzh Ab. Tit. Sub-Paena thro' that whole title still about Uses 2 H. 4. Cot. â—…br Nu. 69. * Uses and Trusts the same things Sed Mala perlong as invaluérâ—… morat Regula Juris 9 E. 4. fol. 14. There the Chancellor affirms that he has an Pbsolute Aower * See the Preface to Cok. 5th Rep. fol. 4. Hill 8 H. 4. fo 19. by Gascoign * 2 Just it fol. 611. See the Opinion of all the 12 Judges in their Answ. to the 16th Object How much the Trial of a Fact by 12 Men Sworn vivâ voce as to be preferr'd before the Conscience of One particular Man guided by Paper-Proofs * Hill 8. H. 4. fol. 19. by Gascoin that the Common Law is the Peoples Inheritance Sir Hen. Sp. Gloss. 108. Pag. 445. Aphor. 37. * See in Tacitus's Annaeis Lib. 11. cap. 2. What excessive Fees were taken by Advocates for Pleading Causes whereas by the Law Cincia it was provided of old that for Pleading of Causes no Man should take either Money or Gifts at length their Fees were moderated by a Decree of the Prince and Senate Cowley in his Davideis pag. 128. 22 E. 4. See that year Book fol. 6. and that it shall be tried by Witnesses and the Judges are utterly against the Sub-Paena and the then Chancellor agreed to it See Sir Coke's 13 Rep. fol. 44. in the upper part concerning the infinite Exceptions to Witnesses in the Civil Law Courts * 44 E. 3. fol. 25. Bro. Tit. Feofments to Uses plac 9. plac 20. Feeffees to Uses are called Feoffees in Trust. * Fol. 41. 67 57 fully ☜ * Fitz. Abr. tit Trial. plac 6. By the word Royal is meant Real See that Case in the Year-Book and Sir Rob. Cott. Abr. 424. Nu. 110. ☜ See also the Book entituled The Modern Reports fol. 61. in the case of King against Standish ☜ * Cok. 12 Rep. fol. 38. at the lower end Statutes that Prohibit Proceedings in Ecclesiastical Courts extend to Courts afterwards Erected See Sir E. C. 12 Rep. before cited fo 65. at the upper end the Opinion of K. James I. See 2 Inst. fo 601. the 1st Objection 2 Instit. fol. 408. Ryley ibidem fol. 411 386 374 373 371 361 362.