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
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
Francis Bacon's Resuscitatio before cited That Turketul before mentioned for a Chancellor was Abbot of Croyland as the succeeding Chancellors till the time of King Henry the 8th were generally Clergymen and their principal Employment was in serving at the Altar in Spiritual Things And in a Subscription by Rembaldus Chancellor to William the First as a witness to Royal Charters among others he did not subscribe in the first place but after divers Bishops Abbots and others which shews something of his Degree and Character at that time And Mauritius Chancellor to William the Conqueror subscribed as a witness to that King's Charter after the Bishops and before the Abbots Rolle's Abridgment par 1. fol. 384. and long before the Conquest in the time of Ethelbert the first Christian King of the Saxons Augemandus the Chan-cellor as Sir Francis Bacon supposes subscribes a Charter by the Title of Referendarius a Referee or Reporter as Minshew upon that word which seems by that to be the higher Title and the Office of both as he observes signifies an Officer that received Petitions directed to the King as Masters of Requests have done of late and made out Writs and Mandates suited to the different Cases of the Petitioners Whence 't is probable the place of the Office afterwards acquired the Name of Officina Brevium It appears by Sir Spelman's Gloss. pag. 106. Connectuntur Munus Cancellarii Capellani Regis in the time of King Ethelbert nec deinceps nisi rarò disjunguntur The Chancellor was usually the King's Chaplain In the Conqueror's time the Chancellor was styled the Master of the Colledge of Scribes or Clerks which Colledge probably was what we now call the Chancery Office whose Duty was Diplomata Scribere whence what was daily written by them have been called Writs Sir Henry Spelman ib. pag. 106. under the Title or Head De Cancellario recentiori de Cancellariâ says Olim nec praetoriâ fungebatur Jurisdictione nec Curiae alicujus praerogativâ which seems to deny him any Jurisdiction and makes the Chancery rather an Office than a Court even in the Latin Proceedings of it And mentioning Gervasius Tilburiensis supposed to be the Author of the Black Book in the Exchequer in Henry II. time and Bracton who was a Judge in Henry III. time treating of the Chancery Non de Curiâ says Sir Henry Spelman intelligendi sunt sed de Officinâ Brevium Chartarum Regiarum 8 H. 4. 13. b. by Gascoign chief Justice it is said The Chancery is not a Judicial Court See the true Nature and Duty of the Office of the Lord Chancellor set out by our ancient Author Fleta lib. 2. cap. 12. to direct Suitors to Writs proper for their respective Cases Sir Edward Coke 2 Instit. 552. and 554. says The Court of Chancery and the King's Bench are but one place that is The Chancery was an Office in or belonging to the King 's Bench. And the Author of Novarum Narrationum written in the beginning of Edward III. 4th Instit. 81. calls it a Court yet he corrects and qualifies it again and says the use of it was Pro Brevibus Originalibus emanandis sed non pro placitis Communibus tenendis It had no Judicature And Sir Henry Spelman further observes That Briton supposed to be the then Bishop of Hereford who wrote in the time of Edward I giving an exact account of all the Civil Courts in his time De hac tamen meaning the Chancery ne verbum ille nec quod sciam alins quisquam ante aevum Edvardi Tertii vel eum circitèr Then it began it seems with a Jurisdiction at Common Law whereby we may conjecture that about the time of King Edward III. or Richard II. time rather that Office set up for a Court as what here follows seems to concur with and then began their Latin and Common Law Pleas as distinct and separate from the Court of the King's Bench And upon the Judgments given in their Common Law and Latine Proceedings which Sir Henry Spelman conceives not to be very ancient neither Fitz. Abr. Error 70. Dier 315. plac 100. Error lies in the King's Bench which proves the King's Bench to be the Superiour Court whereof formerly it was but a part and member Nor can the Chancery to this day try the Issues there joyn'd in matters of fact but by the help of the King's Bench sure therefore it was very weak and deficient if it were a Court not to have power to try its own Issues Nor are those Issues tryed before the Chancellor he is not so much as present at the Tryal of them having no Authority in it but they are tryed before the Judges of the King's Bench Dyer 288. plac 51. Latch 3. 5. Rep. 92. 9. Rep. 98. and then returned again to the Office whence they came Rolles 2d Rep. 291. Stury and Stury's Case 21. Jac. says they are but one Court. Rolâ—…s 2d Rep. 349. by Judge Doderidge towards the end viz. That as to the Law-Proceedings the King's Bench and Chancery are but one Court Mich. 10. E. 3 fo 59. by Shard that the King's Bench and the Chancery are but one place And does that look like a distinct Court where Issues are join'd but the same Court if it be a Court cannot try those Issues How defective is that Court then in its Power Where shall we find the like in the World It plainly proves that this High Court of Chancâ—…y in its Original was but an Office belonging to the higher Court of the King 's Bench. In its Equity-Proceedings 't is not a Court of Record this is acknowledged of all hands but ab incertis initiis excrevit ad Insignem Magnitudinem says that Learned Antiquary Sir H. Sp. He makes a conjecture of the Original of it's Jurisdiction in Equity wherein by the way he ascribes to the King a greater trust and power than our Common Law doth own as shall be further noted hereafter for Rex id potest quod jure potest viz. Sir H. Sp. gives the King a power of deciding Causes in his own person and of mitigating the rigour of the Law by himself alone Unless in this last he be understood only in his Prerogative of Pardoning which belongeth to the King But he moderates what he had said before of the Latitude of the Prince's power in Justitiâ exhibendâ by subjoyning that the Prince still did it by the Administration of his Court of Peers and Barons which according to the Dialect now in use must refer to the Lords House or House of Peers And by his Margent he understands the Residence of the Court of Peers which he speaks of to be Aula Regis sometimes so called in the Saxon Laws and here indeed was the true and ancient Right of the Jurisdiction in Equity and Curia sua consisted of the Peers Barones olim de causis cognoscebant ad aulam Regiam delatis 1b Sir Spelman's Glos. pag.
68. Inter privilegia Baronum on the word Baro. But that I may make hast as this great Officer the Chancellor himself did in process of time from his minority and the first dawning of his power to bring him to his Magnitude I proceed to enquire about what time by what steps and degrees by what Means and upon what Occasion he arrived to his Altitude and transcendent power as our Authors instruct us But before I enter upon it let me premise some few things which may guide us in passing a Judgment upon what is so set down and I set down nothing as my own private opinion I only make a Collection of what is delivered upon this Subject by the most grave and learned Antiquaries and Authors and I submit all to the Judgment of the Lords for whose Information only this is written Iâ—… hath been the Wisdom and I may say the true natural Genius of this Nation from its Original and Infancy especially in Administration of Justice and of what is subservient and conducing towards it to place the Power and confer the Trust not in any one single Person but in many or more than one And it is the Advice of a Lord Chancellor Sir Francis Bacon as to the very Jurisdiction we are Treating of which he calls Praetorian let it not says he be assigned over to one Man but consist of many because it little differs from the power of making La 〈…〉 and he would have their power limited to cases heinous and extraordinary and not invade ordinary Jurisdictions and that it reside in the Highest Courts of Judicature which with us is the House of Lords least it prove a matter of Supplantation of Laws See his Advancement of Learning pag. 445. and pag. 446. the 43d Aphorism Above all says he it most imports the certainty of Laws that Courts of Equity do not so swell and overflow their Banks as under pretence of mitigating the rigour of the Laws to dissect or relax the Strength or Sinews thereof by drawing all to Arbitrement The Lord Coke in his first Instit. 155â—… a and Plowd in his Commentaries take notice that the wisdom of the Law had so ordered it That matters of fact shall be decided by Twelve Men in a Jury and matters in Law by Twelve Judges Sworn to the Common Law in no Case by one single Person Sir Henry Spelman affirms that this was the Genius or Humour of all Europe But to confine our selves to our own Nation he particularly observes that Prisci nostri Reges coram Omni Regno jurabant c. Justitiam per Concilium Procerum regni sui tenturos The Kings alone never did determine matters either in Law or Equity Ingens Exemplorum Multitudo quibus prisci illi Reges Causas ad palatium suum allatas non Unius alicujus judicio sed Communi Procerum Concilio definiêre This circumscribes that unlimited Power which in the beginning of that Paragraph Sir Henry Spelman seems to ascribe singly and solely to the Kings from whence the Advocates of the mighty Power of the Chancery like true Herodians who cried up Herod would derive the like to their Chancellors Fessi autem meaning it of our Kings tautae rei mole coguntur exemplo Moysis Judiciorum lancem Delegatis credere No doubt but it was done by the Commune Concilium of the Nation as Mr. Selden in his Titles of Honour concludes of many such like publick Transactions tho the Records and Rolls of them are not now extant Tunc erectis seorsim à Palatio Tribunalibus pointing as he supposes at the Original of our Courts of Westminster-Hall Singula multis quamvis ex Canone judicaturis tho tied to certain Rules Nullum unico Substituerunt Judici Justitiam uti veritatem rati tutius apud plures conservari Neque ideo vel in Curiis ipsis infimis Rusticanis this best shews the Nations Humour Monocriten preferebant qualemcunque it would not be endur'd The Freeholders in the Country Courts meant by the Curiae rusticanae were to determine Fact and Law both that is were the sole Judges of the Folkmotes or Country Courts Only there lay an Appeal in exorbitant Cases that is in extraordinary matters ad Palatium Regni and they received a Determination from the King not from him alone but E Concilio Procerum This expounds the Law of King Edgar Lambert de priscis Anglorum Legibus pag. 63. Viz. Nemo in lite Regem appellato nisi quidem domi viz. the Country Court consequi non poterit Sin Summo jure domi urgeatur ad Regem ut Is onus aliquâ ex parte allevet provocato that is Moderate the rigour of the Judgment not alone nor by a Chancellor but by advice of the Peers as before is manifestly proved Sir Henry Spelwan proceeds further to observe that several subsequent Statutes which gave power in many particular and limited matters to the Chancellor never referred them to him alone but still in Conjunction with others 31. H. 6. C. 4. the Chancellor has power given him calling to him any of the Justices to proceed by their Advice even in the Court of Chancery it self 5 to E. 4. Inter Cobb Nore by Authority of Parliament Power is given to the Chancellor and Two Judges to order a matter of Collusion In all this the Humour and true Genius of the Nation was still pursued He instances too in the Statutes made in the 20th year of Edward III. about the Forest of Windsor and in the Statute about Assizes of Novel Disseisin whereby in special Cases pro tempore only Power was given to the Chancellor in Conjunction with othérs In the Case of Prohibitions in Sir Coke's 12 Rep. 63. Banoroft Archbishop of Canterbury had informed King James the First That the King himself might decide Causes c. in his Royal Person and that the Judges are but Delegates of the King and that the King may take what Causes he please to determine from the determination of the Judges and may determine them himself And the Archbishop said that this was clear in Divinity that such Authority belongs to the King by the Word of God But Sir Edward Coke then Chief Justice in the Presence and with the clear Consent of all the Judges of England and Barons of the Exchequer answered That the King in his own Person cannot adjudge any Case either Criminal or between Party and Party but it ought to be determin'd in some Court of Justice according to the Law and Custom of England 4 Instit. in the Chap of the King's Bench fol. 70. The King that is the Law and Constitution of the Government hath committed all Power of Judicature to several Courts of Justice This is necessary to be remembred because it is confidently affirm'd by the Advocates of the Equity-Jurisdiction of the Chancery that the Kings of England anciently and at the first did Administer Justice and more especially did mitigate the
the Chancellor will relieve and where not then neither the Subject can be assur'd how or when he may possess his own in peace nor the Practiser in Law be able to inform his Client what may become of his Suit Misera est Servitus ubi jus est vagum Cancellarius Angliae says Sir Hen. Spel. non aliter tenetur Decretis suae Curiae vel sui ipsius quin elucente novà ratione Recognoscat i. e. he reviews quae voluerit mutet deleat prout suae videbitur Prudentiae A certain late Author in his Preface to his Book entituled The happy future State of England Printed 1688. cites Leo Afer who tells us That the Inhabitants of the Mountain Magnan on the Frontiers of Fez have not any settled Judicature nor certain Law but for deciding of Controversies when they happen they stop some Travellers passing that way to give Judgment in them and they desray the charges of their stay This is speedy and cheap but very uncertain in the Decision they might as well determine by casting Lots But we in England have contrary Laws as some do imagine so that we serve two Masters that are divided in their Commands and command contrary things and the one undoes what the other does These are like divers Weights and Measures which are an Abomination to the Lord Prov. 20. 10. In one Court they measure Men's Actions and Rights by one Rule in another Court the same Actions again by contrary Rules as if there were Two contrary first Principles and Deities in Nature as the Marcionites and Manichees held the one benign kind and indulgent the other rigorous and destructive to Mankind The People of England have a Right to be Govern'd and their Lives and Estates Subjected to no other Laws but such as are of their own chusing to which they consent according to that most excellent Preamble to the Stat. of the 25. H. 8. Cap. 21. The Laws of England as the Preamble tells us have been taken by the People of England at their free Liberty by their own Consent to be used among them as the Customs and Ancient Laws Originally Established and not otherwise Sir Francis Bacon in his Resuscitatio pag. 65. in his Speech upon taking his place of Chancellor tells us that the Roman Praetors whose Office had the greatest Affinity with the Jurisdiction claim'd in the Chancery used to set down at their Entrance how they would use their Jurisdiction and he acquaints us with the Excellent charge given him by King James I. at the delivery of the Seal to him viz. To contain that Jurisdiction in its due limits without swelling or excess The excess or tumor says Sir Fr. arises ist from that Courts embracing Causes meerly determinable and fit for the Common Law For the Chancery is ordain'd says he to supply the Law not to subvert it Tho' by his favour the supplying of a Law is the proper work of a Parliament 2. The Tumor arises says Sir Fr. from neglect of the Assistance of the Judges in Cases of Difficulty especially if they touch upon Law The Power says he in his advancement of Learning of moderating Laws little differs from the power of making them Vinius the Civilian sets forth the true Office of the Roman Praetor pag. 16. Neque praetor aliud quam Magistratus fuit Juridicundo non Condendo Custos Juris non Arbiter and again pag. 12. Neque ante Lex vi suâ constat Civesque ad Observationem vel paenam obligat quam populo innotescere potuerit quod sine promulgatione sive publicatione aliquâ fieri non potest To every good Law of Man it is requisite that it be manifest among other Properties says Dr. and Student 4 Chap. pag. 7. b. Now How is that Law manifest that depends upon the sudden Opinion and Judgment of One Person who guides that Opinion and Judgment not by any positive certain and particular Rule or Law clearly defin'd but according to that large and indefinite Rule Secundum Aequum Bonum which is directly contrary to the temper and mind of the Common Law of England which delights in certainty Sir Fr. Bacon in his Advancement of Learning pag. 436. The first Dignity of Law says he is That they be certain Certainty is so Essential to a Law as without it a Law cannot be just and pag. 444. That is the best Law which gives the least Liberty to the Arbitrage of the Judge and he is the best Judge that takes the least Liberty yet afterwards this Grave Chancellor is not steddy to himself but is for allowing to Praetorian Courts of Equity Power of supplying the defects of Law which as I said before does belong to the Parliament only and herein he seems under favour not to be so consistent with what he himself writes in his other Treatise It is very well observ'd by Dr. Barrow in his Treatise of the Pope's Supremacy pag. 255. The means and methods by which Power and Jurisdiction from small and modest Beginnings arrive at last to a strange Height and Exorbitancy The Patriarchate Power says he of the Pope can no otherwise be claimed but by his Invasion and Assumption ibid. 256. The Pope's universal Sovereignty and Jurisdiction hath no real Foundation either in Scripture or elsewhere and pag. 257. he shews by what means so groundless a Claim and Pretence gained Belief and Submission to it Eminency of any kind in Might in Place c. does easily pass into advantages of real Power and Command over those that are inferiour c. Any small Power is apt to grow says he and spread it self into a Flame c. and pag. 261. All Power is attended by dependencies of Persons enjoying subordinate Advantages under it which do grow proportionably by its encrease enjoying Wealth excessive Fees Credit Support Privileges and Immunities thereby Let us look into the beginning of that late Jurisdiction of the President and Council in the North. In the Annals of Queen Eliz. Printed 1630. Lib. 2. pag. 68. in the Reign of King H. 8. says that nameless Author when the Rebellion in the North about suppressing the Abbies was pacified whilst the Duke of Norfolk stayed in those parts many Complaints were brought unto him of Wrongs done in the Rebellion Some of them he compounded himself and some of them he committed to Men of Wisdom under his Seal to be by them Compounded which when the King understood he sent him a peculiar Seal to use in these Causes and the same Seal he committed after the Duke was called back to Tunstall Bishop of Duresme and appointed to him Assistants with Authority to hear and determine the complaints of the poor He was then first of all named President and the Authority of his Successors hath ever since encreased very much This Presidentship says the Annals which is now full of Honour hath from a poor beginning grown up in a short time to this Greatness See Sir