r 27 Jus Appellandi AD REGEM Ipsum à Cancellaria SECT I. Of the mutual Obligation upon King and People in reference to Government WHosoever will but consider it may easily discern that there is a mutual benefit accrues by Government as well to the People as to the King the end design of it being the protection of Both from wrong and violence And to the end this may be the better accomplish'd both are mutually bound in England to act their part therein The King is bound to govern by Law and the People most of the considerable part of them are bound and all of them are compellable to be bound to assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the King His Heirs and Successors or united or annex'd to the Imperial Crown of this Realm the King by the very Constitution of his Kingly Office and by his Coronation-Oath and the People both by their Natural Allegiance and by force of the Statute 1 Eliz. cap. 10. It is not a slight and mean tie that they are bound by it is by a sacred and solemn Oath the greatest obligation upon Earth and the firmest bond of Humane Society which whosoever voluntarily breaks either by a wilful acting against or by a careless neglecting to perform what he hath undertaken by it I 'll be bold to say He is sit Company for none on this side Hell unless for some perjur'd Aldermen or false Ignoramne-Jury-men Being thus engag'd I think it highly concerns us all to discharge our Duty therein and to that end it is necessary in the first place to understand what Jurisdictions Preheminencies Priviledges and Authorities do appertain to the King for without That the King cannot exercise His Jurisdiction nor the People assist Him in it And in as much as the King's Jurisdiction over His Court of Chancery is now doubted of by many dis-own'd by some and by others thought not necessary to be put in execution I therefore set my self upon enquiry after the King's Part and Power in that particular having had experience of the inconveniencies the want of the use of it produceth SECT II. What is Jurisdiction to Whom it appertains and How anciently exercised in this Kingdom JURISDICTION in the bare literal sence and signification of the word and ex vi termini imports no more than Dire Droit or Jus dicere a Power to pronounce interpret or relate what is Law and Right in any matter of Controversie But as necessary appendants thereunto there are many Priviledges and Authorities needful to make up a full and plenary Power to administer Justice which are generally comprehended within the meaning of Jurisdiction As first an Authority to Command the party or parties complain'd against before Him that hath Jurisdiction Secondly to Examine the truth of the complaint and to hear the Defendants defence Thirdly to give Judgment according to what the Law is Fourthly to compel Obedience to and Performance of that Judgment which is done either by Imprisonment of the person until he perform or by seizing his Estate or part of it in satisfaction of the Judgment which is the Coercive Power of the Law without which the rest signifies but little The right of Jurisdiction is a prize for which great Contests have been for many Ages in this Kingdom the Pope for a long time strugl'd with our Kings for Jurisdiction in Ecclesiastical matters some yielded to him and some would not The House of Commons have often strove with the House of Lords for Jurisdiction the King's Courts of Justice have often contended with one another for Jurisdiction and now some would have it that the King 's own more immediate Court his High-Court of Conscience would be so highly unconscionable as to out Him from having any thing to do there To find out the true Proprietors of Jurisdiction for which there hath been so many pitch'd Battles fought it is necessary to look a great way back Origo rei inspici debet the beginning must be consider'd Deut. 32. 7. Remember the days of old consider the years of many Generations ask thy Father and he will shew thee thy Elders and they will tell thee After this manner will I make my Enquiry for I know no Statute of Limitation in the case to bar the King by non-claim but there is a Maxim in Law which imports the contrary Quod nullum tempus occurrit Regi and therefore what I find in old Authors as well as new I will truly relate By the Opinion of all ancient wise Politicians and Historians Bod. l. 4. cap. 6. says Bodin Justiciae fruendae causa Reges esse creatos Kings were ordain'd for no other end than for administration of Justice which is a full Authority that Jurisdiction appertained to Kings even by their Constitution and the same Author says That anciently the Kings of most Nations and Countreys were called Judges and they thought no other Appellation or Title more honourable than That and they delighted in nothing more then a personal not only virtual but actual determining of their Subjects Controversies Moses for a great while spent the greatest part Ex. 18. or much of his time sometimes even from morning until evening in hearing and determining Controversies between the people But at length finding that as the people encreased in number so did Suits insomuch that it was too hard a task for him to dispatch all himself he therefore chose men of courage out of all Israel and those he made Heads over the people Rulers over Thousands and over Hundreds over Fifties and over Tens who judged the people at all seasons but the hard causes matters of difficulty they brought to Moses himself to determine none of them pretending that because Moses had given them full power to judge the people within their several Provinces that he had excluded himself from power of judging there and examining whether or no their Judgments were right and just In imitation of Moses Cook 1 Inst f. 168. or after the same manner did the ancient Kings of England divide this Kingdom first into Counties and Counties into Hundreds Hundreds into Manors and Manors into Townships and Villages and appointed Jurisdictions in every Division In or about the time of H. 3. one Henry de Bracton Cow Int. Title Bract. a learned Judge finding that the Laws and Customs of the Realm which at that time were not reduc'd into writing were oftentimes abus'd by unlearned men Qui Cathedram judicandi ascendunt antequam leges dedicerent who became Judges before they had been Students and consequently determined Causes rather after their own fancies than the Rules of Law he therefore resolv'd ad vetera Judicia Justorum perscrutenda diligenter to make diligent enquiry into the ancient Judgments and Resolutions of just Judges and to put the same in writing for the benefit of Posterity as himself says in the first page of his Book
Jus Appellandi AD REGEM Ipsum A CANCELLARIA OR A Manifestation of the King's Part and Power to Relieve His Subjects against Erroneous and Unjust Decrees in CHANCERY Collected out of the Authorities of Law By WALTER WILLIAMS of the Middle-Temple Esq Rex Sapiens Judicabit Populum suum Bract. l. 3.107 LONDON Printed in the Year MDCLXXXIII TO THE High and Mighty MONARCH CHARLES II. By the Grace of GOD KING of Great-Britain c. Most Gracious Sovereign HAving spent many years in the study of your Majesty's Laws and conceaving that several for whom I was concern'd as Councel had been much wrong'd a while since by Decrees in Chancery and finding that they were past hopes of being Righted There I advis'd Petitions to be preferred to Your Majesty the Fountain of Justice thereby beseeching Your Majesty to relieve Your Petitioners either by re-hearing the matter in Your Royal Person or by referring it to such fit persons as Your Majesty should nominate whereupon it was declared by some near Your Majesty That Your Majesty could not legally grant your Petitioners Request and that no Relief could be had against Chancery-Decrees but by the House of Lords assembled in Parliament which thing I apprehended to be a great mistake and tended as I conceiv'd to the Outing of Your Majesty of that Just and Necessary Jurisdiction Preheminence and Authority which is united and annexed to your Imperial Crown and which to assist and defend to my Power I am bound by Oath In discharge whereof I have made diligent search for what evidence could be found in the Authorities of Law to make out Your Majesties just Title to the premisses and what I have found I have made a methodical Collection of being I hope sufficient for the purpose whereunto I have also added some instances of the great mischief it is to your Subjects and may be to Your self your Crown and Dignity that Your Majesties Power in that matter is not put in practice All which I humbly lay at Your Majesties Feet begging Your Majesties acceptance and consideration thereof as it is the product of the unseigned Fidelity and Allegiance of Dread SIR Your Majesties most Faithful and Obedient Subject WA WILLIAMS To His Majesties most Honourable PRIVY-COUNCIL Great Sirs NExt to His Sa-cred Majesty to a C. 4. Inst 53. Crompt Juris 35. You all Honour and Reverence is due as being Incorporate to His Person and Whose b C. 4. Inst. 54 High Office it is according to the best of your Judgments truly and justly to advise and counsel the King in all things that may be to His Honour and Behoof and for the good of His Subjects And though His Majesty is arm'd with several other Councels for several purposes yet it is with You that he consults and advises amongst other the most weighty Affairs of State when and upon what occasion it is that He is to call to His other Councels for Advice and Assistance It appears by the Writs of Summons of the Lords to Parliament Cromp. Ju. fo 1. and by the Writs to the Sheriffs for Election of Knights and Burgesses that it is by Your advice the King doth call His Parliament for after the Salutem in those Writs are these words viz. Quia de Advisamento Assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quodam Parliamentum nostrum apud c. teneri ordinavimus If then it appertains to You to advise His Majesty when it is proper to call His Parliament it follows of consequence that it appertains to You also to advise Him to call His other Councels upon occasion And hence I conceive it is that You have been Dignified in ancient Records by the name of Magnum Concilium Regis and thereby distingnished from Magnum Concilium Regni Co. 1 Inst. 110. cites Records to that purpose which is the Parliament Therefore and in as much as frequent supplications have of late been made by divers to His Majesty for Relief against mistaken Decrees in Chancery witheut effect by reason of some Opinions that there was no legal Remedy in such Cases but by Appeal to the Lords House assembled in Parliament I have for the advancement of Justice and maintenance of the King 's Right of Jurisdiction compil'd and adventured humbly to recommend this ensuing Treatise to His Majesty and Your consideration which if You vouchsafe to peruse I hope it will make it so clear that His Majesty may lawfully relieve His Subjects against such mistaken Decrees in the Intervals of Parliament as to confute all Opponents or at leastwise manisest so much probability thereof and that there is so much necessity for the use of it as may induce You to advise and desire His Majesty to be further satisfied therein by the Opinion of His whole Colledge of Judges who in case of doubt in matters of Law our Law-Books say are his particular and sworn Councel Co. 1 Inst. 110. vi Jurament Jnsticiarior 18 E. 3. In doing whereof I humbly conceive you will perform an act that will highly redound to the Honour of the King welfare of His injur'd Subjects my Zeal to Both which hath put me upon begging Your favourable Reception and Interpretation of this Labour of His who submits both Himself and It to Your Honours Command W. W. The CONTENTS OF the mutual Obligation upon King and People in reference to Government Sect. 1. What is Jurisdiction to Whom it appertains and How anciently exercised in this Kingdom Sect. 2. What is meant by judging according to Equity and by Whom it was anciently exercised Sect. 3. Of the modern and present Power and Jurisdiction of the Court of Equity in Chancery Sec. 4. Of the Corruption and Mistakes of some great Chancellors Sec. 5. That an Appeal to the King in the Intervals of Parliament is an ancient legal remedy against mistaken Decrees in Chancery with the manner of proceeding therein Sec. 6. The inconveniencies that accrew for want of a constant relief against erroneous Decrees in Chan. Sec. 7. Whether the King ought ex debito Justiciae to hear in person or to grant referrences upon complaint to him made against erroneous and unjust Decrees in Chancery Sec 8 ERRATA PAg. 2. l. 19. for Statute 1 El. c. 10. r. Statutes 1 5 El. c. 1. p. 19. in 2 marg note for 232 r. 233. p. 29. 2 marg note for 16 r. 66. p. 28. marg note for 33. read 13. pag. 33. in the 2 marg note fo r. cap. p. 42. l. 24. for have r. hath pag 48. marg note for 4 r. 3. p. 70. for Bracton r. Britton ib. l. 13. for sua r. suam p. 71. l 15 for 10 r 20 p 78 2 marg note for 14 r 24 p 9 l 12 for 22d r 12th p 106 marg note for 32 r 33 p 119 in marg note for 37
ordains That noue from thenceforth except out Lord the King shall hold in his Court any plea of false Judgments given in the Court of his Cennants for such Plea especially belongeth to the Crown and Dignity of our Lord the King Though the Supream Jurisdiction were in the King to use as he saw best it is but rational that if the Parliament were sitting at such time as any Complaints were made to him of any Erroneous Judgment or Decree that he should refer the Examination and final Determination of the matter to the House of Lords who without any manner of doubt are and always were the fittest Referrees the King could refer any matter to be determin'd they being the chief Assembly of the Honour Integrity Wisdom and Justice of the Nation and therefore it is but reasonable the King should take the measures of his final Determination from their Advice or refer it to them to determine which is all one Better or Abler Advisors being not to be found but it is as true they had no power of Judging by their own innate Authority but by a delegated Authority from the Kings as plainly appears by what is said before and also by the Parliament Roll of the 4 of Ed. 3. which is recited in Cotton's Records In haec Verba viz. The Treasons Felonies and other misdemeanors of Roger Mortimer are particularly repeated a great part of which Roll cannot be read for that the Roll is mouldred but in the end it appears that the King charg'd the Lords and Peers who as Judges of the Realm by the Kings Assent adjudged that the said Roger should be Drawn and Hang'd Whereby it appears it is the Kings Charge to the Lords and the Kings Assent that gives them Jurisdiction and Authority And so it follows of necessary consequence that though they are the fittest for the King to Authorize to determine the mistakes and Errors of his Chancellors and other Judges yet if when they are not Assembled in a Parliamentary way there is no reason nor authority against it nor inconveniency by it for the King to Authorize a convenient number of the Lords of the Parliament and Judges that are near him to take course with Erroneous Decrees in the mean time until the Parliament sits And therefore it was that it was provided by Act of Parliament the 31st of Ed. 3. cap. 12. That the Lord Chancellor and Treasurer should have Power upon Complaint to take the Justices and such other sage persons as they thought fit to their Assistance and to Examine the Judgments of the Exchequer Court And if any Error be found they may corted the Rolls and after send them into the Exchequer to make I thereof Execution Which thing I conceive the King might have done of himself without Act of Parliament and I conceive the Act made it a standing Rule to prevent often troubling the King upon every particular occasion and though there be no provision by that Act for any further Examination of the Judgment of the Chancellor and Treasurer in that Case yet it is not so final but the King may upon Petition to him order a Writ of Error returnable in the House of Lords Assembled in Parliament for a further and more due Examination of the matter if either Party thinks himself agrieved thereby and from that time forward ziz the 31 of Ed. 3. there was no standing Order made by Act of Parliament as to the Errors of the Court of Kings-Bench for by that Name I shall now call the Successors of the Judges that followed the King mentioned in the aforesaid Authors but it stood at the Kings meer pleasure 27 El. 8. as formerly until the 27 of Queen Elizabeth Yet our latter Kings before that Statute for the most part used to refer the Examination and Correction of such Errors only to their House of Lords in Parliament insomuch that for want of oftener referring it to their Councel or to Specialibus Auditoribus Special Commissioners as Fleta affirms the King could do as is mention'd in the beginning of this Section it grew to be an Opinion that Errors of the Court of Kings Bench could be rectified no where but in Parliament as appears by the Preamble of that Statute of the 27 of Eliz. Therefore and as the Preamble of that Statute mentions Because the Court of Parlisament was not in those days so often held as in ancient time and because in respect of the great Affairs of the Realm such Erroneous Judgments meaning those of the Kings Bench could not be well consider'd and determin'd in time of Parliament whereby the Subjects of the Realm were greatly hindred and desayed of Justice It was therefore enacted That the Errors of Judgments in the said Court of Kings-Bench in certain Actions therein mention'd should be examined and rectified in the Exchequer-Chamber by such persons as in the said Act is mentioned and after the Judgment is affirmed or tedersed the Record and all things concerning the same shall be removed and brought back into the Court of Kings-Bench that such further proceedings may be thereupon as well for execution as other wise as shall appertain And thereby it is reserv'd That the parties shall not be finally concluded by such Reversal or Affirmation but that they may sue in the high Court of Parliament for a further and more due examination of the said Judgment in such sort as was thentofore used upon erroneous Judgments And the manner thentofore was that before any Writ of Error could be brought to examine and correct Errors in Parliament a Petition was to be preferred to the King for allowance thereof and it was to be allowed by the King before any such Writ of Error could be made as appears by the Authorities in the margin 1 H. 7. fo 19 20. Dy. fo 375. which makes it most plain where in whom the Supreme Judicative Power lay And Judge Jenkins says Jenk Lex terrae fo 55. The reason of the Law and the King's allowance of a Writ of Error returnable in the House of Lords is for that the Judges of the Land all of them being of the Kings Councel and the twelve Masters in Chancery assist in the Lords House by whose advice erroneous Judgments are redrest So that it appears plainly their Judicative Power in that particular is not originally and fundamentally in themselves but derived from the King by his allowance thereof who is fons origo Justitiae Bract. lib. 2. cap. 4. and says Bracton est enim Coronae Regis facere Justitiam Judicium tenere pacem sine quibus Corona consistere non potest nec tenere hujusmodi autem jura sive Jurisdictiones ad personas sive tenementa transferri non poterunt nec per privata persona possideri nec usus nec executio Juris nisi hoc datum fuerit ei de super sicut Jurisdictio delegata non delegari poterit quin Ordinaria remaneat cum
ipso Rege And I find by the Journal of the Lords House that the 10th of December 1621. a Report was made by a Committee appointed to search for Precedents touching Appeals to the Lords from Decrees in Chancery In the Stat. 37 E. 3.18 by Gr. Councel is meant the Privy-Council That anciently all Petitions of that nature were directed to the K. and his great Councel From whence I gather it is but a late practice both to leave the King quite out of such Petitions and to neglect praying his allowance that the Lords may examine Errors of Judgements and Decrees And perhaps it may prove of ill consequence hereafter if not timely considered and rectified the Supremacy of Jurisdiction being the Supreme part of Government Mir. 232. the King 's chiefest Dignity By the foresaid Statutes of E. 3. and El. and some others since made there is sufficient provisions against erroneous Judgments in all Courts at Law in the intervals of Parliament by Writs of Error which are in nature of Appeals which course I conceive the King might have taken if no such Act had been made But against the Judgments and Decrees of the Courts of Equity in Chancery Exchequer Chamber and Counties Palatine c. there is no provision at all by any Parliamentary Act that matter standing as it did by the Common-Law no Parliament having intermeddled with it which if they had they had the same reason or more to desire the King to constitute a Court of Appeal from these Courts of Equity as from other Courts And it is a great Argument with me if there were no other that it was conceived by the Parliament that there is a Power in the King alone out of Parliament-time to rectisie the Errors of the Decrees of all Courts of Equity else the Parliament I presume would have taken care to have provided against those as well as against the Errors of the Court of Kings-Bench which provision was made because they conceived those Errors not to be redressed but in Parliament and the same reason that induced the Parliament to constitute Courts to redress the Errors of the Kings-Bench and Exchequer viz. the unfrequency of Parliliaments and their being otherwise employ'd when they fit may induce the King to appoint Referrees to rectifie Chancery-Decrees For the further clearing of this matter it seems in Queen Elizabeths time there was the like doubt made as now Whether the Queen might relieve against the mistakes of the Chancellor or Keeper in making his Decrees And the Queen took the right way to be inform'd she referr'd it to the Judges to certifie to her their Opinion touching that matter For it appears Rolls Re. 1 p. 331. by the Authority in the Margin that it was certified by all the Judges of England in the Cause between the Countess of Southampton and the Earl of Worcester in Chancery that the Queen upon Petition might refer the matter to the Judges but not to others to examine and reverse the Decree if there should be cause and that the then Lord Chancellor agreed to that resolution And forasmuch as it is mentioned in that Report that the referrence ought to be to the Judges and not to others it is to be understood that it was a point in Law was then in dispute and in such Cases there must be some Judges amongst them for in arte sua cuique credendum est and therefore Judges whose profession the study of the Law is are presum'd to be best conusant of any what the Law is and the Law is not to be unregarded in judging according to Equity but both Law and Conscience are to be so intermix'd as to produce a just Judgment a skill of great curiousity and ought therefore not to be final but in the resolution of several men of great knowledge and integrity since the least byass of affection or disgust to one side or other may lead any single man a great way out of the way I presume this may be the meaning of that Report because I find in the Year-book of the 27th of H. 8. so 15 c. That the Kings Secretary and Mr. Fitz-Herbert were join'd with the Chancellor to review a Decree between the Prior of St. Johns and one Dockeray where the Secretary gave rules in the Cause as well as the Chancellor The House of Lords themselves always take the advice of the Judges and to leave matters of Equity wholly to the Chancellor alone in the intervals of Parliament is to give him a greater power than the Lords take to themselves in Parliament which I humbly conceive ought not to be Besides this resolution of all the Judges assented to by the then Lord Chancellor it was afterwards agreed to by the House of Lords themselves That it was proper for the King to give authority to examine and correct Decrees in Chancery as appears by their own Order which is as followeth viz. Die Veneris vicesimo octavo die Maii 1624. THe Petition of Will. Matthews of Landast was read and the Answer thereunto conceiv'd by the Lords Committees for Petitions after Councel heard on both sides many several days was reported to the House by the Lord Houghton and read in haec verba viz. The Lords Committees upon the examination of the whole Cause between William and George Matthews find William Matthews principal Debt to be Five thousand two hundred and sixty pounds which they hold fit to be paid by the said George Matthews thus Vpon St. Andrews day next One thousand six hundred twenty four 2000 l. Vpon St. Andrews day One thousand six hundred twenty five 2000 l. Vpon St. Andrews day One thousand six hundred twenty six 1260 l. The whole sum 5260 l. And that for security for the payment of this Debt according to every several day and payment here set down the whole Land to stand bound and that this be the better performed the Lords Committees think fit the execution hereof be recommended to the Court of Chancery Die Veneris vicesimo octavo die Maii 1624. post meridiem George Matthews exhibited his Petition in haec verba viz. To the Right Honourable the Lords Spiritual and Temporal in the higher House of Parliament assembled The humble Petition of George Matthews Esq Humbly sheweth your Lordships THat your Petitioners Decree now question'd hath been several times submitted unto by William Matthews never question'd during the life of the Petitioners Father and His Majesty upon information by Petition on both sides declared That he saw no Cause for questioning thereof and it was thereupon ordered That to hear a Cause after submission no Corruption appearing would be a dangerous Precedent In consideration whereof and for that the Decree stands question'd only by Petition nor was your now Petitioner ever party to any Suit nor is there any Bill depending in Court he being informed by Councel that it hath been the course of this Honourable House to reverse Decrees but by
too much as I conceive of the King's Power but not this of referring the examination and correcting of erroneous and unjust Decrees in Chancery to fit persons for that purpose I am sure 't is not prohibited by that Statute by any particular words nor are there any general words therein contain'd that according to the rules of Law and construction of other Statutes can be construed to extend to the taking away of that course of proceeding For the clearing of which point it is requisite that the Statute should be taken strictly into consideration the prohibiting part whereof is as followeth Be it Ordaiued and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdiction Power and Authority belonging to or exercised in the same Court or by any Judges Officers and Ministers thereof be from the first day of August 1641. clearly and absolutely dissolved taken away and determined and that from the said first day of August neither the Lord Chancellor nor the Kéeper of the Great Seal of England the Lord Creasurer of England the Kéeper of the Kings Privy-Seal or President of the Councel nor any Bishop Temporal Lord Privy-Councellor Judge or Justice whatsoever shall have any Power or Authority to hear examine or determine any matter or thing whatsoever in the said Court commonly called the Star-Chamber or to make pronounce or deliver any Judgment Sentence Order or Decree or do any Judicial or Ministerial act in the said Court and all and every Article Clause and Sentence in them and every of them by which any Jurisdiction Power or Authority is given limited and appointed unto the said Court commonly called the Star-Chamber or unto all or any the Judges Officers or Ministers thereof or for any proccedings to be had or made in the said Court or for any matter or thing to be drawn into question examined or determined there shall for so much as concerneth the said Court of Star-Chamber and the Power and Authority thereby given unto it be from the said first day of August repealed and absolutely revoked and made void And be it likewise Enaded That the like Jurisdiction now used and exercised in the Court before the President and Councel in the Marches of Wales and also before the President and Councel established in the Northern-parts and also in the Court commonly called the Court of the Dutchy of Lancaster before the Chancellor and Councel of that Court and also in the Court of Exchequer of the County-Palatine of Chester held before the Chamberlain and Councel of that Court the like Jurisdiction being exercised there shall from the first day of August 1641. he also repealed and absolutely revoked and made void any Law Prescription Custom or Usage c. to the contrary thereof in any wise notwithstanding and that from thenceforth no Court Councel or place of Judicature shall be erected ordained constituted or appointed within the Realm of England or Dominion of Wales which shall have use or exercise the same or the like Jurisdiction as is or hath haen used practiced or exercised in the said Court of Star-Chamber Be it likewise Declared and Enacted by the Authority of this present Parliament That neither His Majesty nor His Privy-Councel have or ought to have any Jurisdiction Power and Authority by English Bill Petition Article Libel or any other arbitrary way whatsoever to examine or draw into question determine or dispose of the Lands Tenements Dereditaments Goods or Chattels of any of the Subjects of this Realm but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law These are all the prohibitory words of that Statute I will not say any thing of the reasonableness or unreasonableness of it but that it was made in 41. But taking it as it is I think it deserves no further construction to disable the King from performing his Oath that is to see that Justice should be done to his Subjects than the very express words will bear and for the right understanding of it it is to be considered in all the parts thereof without relying on any one single Clause alone and thereby it will appear how far the whole may be construed to take away any Power that was before in the King It takes away the Star-Chamber and the Power thereof and prohibits the erecting of any Court of the like Jurisdiction by express terms but by so doing it meddles not with this Power of the Kings to refer the examination of an unjust Decree made in Chancery by One man to Three or Four or more men fit for the purpose neither in terms nor in construction And it is a great argument that it was never intended to be taken away by that Act because it is not taken away by express words for if it had been intended to have been taken away it might have been express'd by particular words it being no new invention since the making of that Act but a course long practis'd before that Act was made as appears by what is aforesaid and that without the least contradiction but on the contrary with the greatest approbation that could be viz the approbation and direction of the Lords House in Parliament at one time and of all the Judges of England at another time as is aforesaid and of all the great Writers of the Law of those times so that there was then no apparent reason for taking it away The next part of the Statute and that which seems most to oppose me is That the King nor His Privy-Councel have or ought to have any Jurisdiction Power or Authority by English Bill Petition Article Libel or any other arbitrary way to examine draw into question determine or dispose of the Lands Tenements c. but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law For the understanding of this it is to be remembred the King for the execution of the Law had two sorts of Powers in Him by the Common-Law He had Power and Authority thority in Person to hear Ordinaria Jurisdictio pertinet ad Regem Bract. fol. 108 412. Ordinaris Juris dictio remanet cumipso Rege Bract. fol. 55. determine and dispose of the Estates of his Subjects upon Controversie arising between them and complain'd of to him and this is properly called Jurisdiction Designatio Justiciariorum est à Rege Jurisdictio vere ordinaria à Lege Co. 4 Inst fo 74. and he had also designatio Judiciorum a power of nominating and appointing Judges under him to hear determine and dispose of the Estates of the Subjects touching which any Controversie did arise and was brought before them to be decided as appears in the beginning of this Treatise Sect. 2. per tout So that if he should be excluded himself by this Statute from hearing and determining in
Of the Laws and Customs of England and therein as to the Temporal state of affairs the Pope having in those days usurp'd Jurisdiction not only upon our Kings but upon many other Princes in Spiritual matters Bracton says Bract. l. 1. fo 5. cap. 8. That under Emperours Kings and Princes are Dukes Earls and Barons great Officers men of Renown and Knights there are also Freemen and Bondmen and divers Authorities and Powers constituted under the King Omnia quidem sub eo ipse sub nullo nisi tantum sub Deo parem autem non habet in regno suo quia sic amitteret praeceptum cum par in parem non habet Imperium item nec multo fortius superiorem nec potentiorem habere debet quia sic erit inferior suis subject is inferiores pares esse non possunt potentioribus ipse autem Rex non debet esse sub bomine sed sub Deo Lege quia Lex facit Regem attribuat igitur Rex Legi quod Lex attribuat ei videlicet Dominationem Potestatem And a little further Et sciendum quod ipse Dominus Kex Ordinariam habet Jurisdictionem Dignitatem Potestatem super omnes qui in regno suo sunt habet enim omnia Jura in manu sua quae ad Coronam Laicalem pertinet potestatem materialem gladium qui pertinet ad regni Gubernaculum habet etiam Justitiam Judicium quae sunt Jurisdictiones ut ex Jurisdictione suae sicut Dei Minister Vicarius tribuat unicuique quod suum fuerit To the like effect he says in another place treating of Temporal Jurisdiction and Who it is that can and ought to judge he says Bract. lib. 3. fo 107. That it is the King and no other ought to judge if He alone could compass it being thereunto obliged by tenor of his Oath for at his Coronation he ought in the name of Jesus Christ upon Oath to promise these Three things to his people that are subject to himself 1. That he would command and use his utmost endeavour that perfect peace be continued to the Church of God and all Christian people during all his time Secondly That he would earnestly and strictly forbid and interdict all Pillaging Extortion Ravening and Wickedness whatsoever Thirdly That in all Judgments he would regard Equity and Mercy that he might receive Mercy from God und that all people by his Justice may enjoy a firm and inviolable Peaee He says further that it is the Kings part and duty he being Gods Vicegerent on Earth to prefer right before wrong Equity before iniquity that all his Subjects might live honestly that none of them hurt the other and that every one of them may have and enjoy what to him of right belongs He ought to exceed all his Subjects in Power He ought to have no Equal much more ought he not to have any Superiour especially in administration of Justice that it may be truly said of him Magnus Dominus noster magna virtus ejus with a great deal more to the same effect In the next chapter he proceeds and says Bract. l. 3. so 108. Dictum est in proximo de ordinaria Jurisdictione quae pertinet ad Regem c. In the precedent Chapter the primitive and fundamental Jurisdiction which belongs to the King is treated of it follows now to treat of the delegated derived and substituted Jurisdiction where a man hath no Authority of himself but what is committed to him as when he that doth so delegate or substitute another cannot himself determine every particular Cause and to the end his labour may be the easier by dividing the burthen amongst divers other persons he ought to choose in his Kingdom wise men fearing God in whom there is sincerity and truth of speech who hate Covetousness and of such to constitute Judges Sheriffs and other Bailiffs and Ministers to whom may be referred as well Questions upon doubtful matters as Complaints upon injuries who will not decline the course of Justice to the right hand nor to the left for hope of Reward nor fear of Punishment And a little further treating of the several sorts of Justices he says thus Item Justiciariorum quidem sunt capitales generales perpetui majores a latere Regis residentes qui omnium aliorum corrigere tenentur injurias errores sunt etiam alii perpetui certo loco residentes sicut in Banco loquelas omnes de quibus habent warrantum terminantes qui omnes Jurisdictionem habere incipiunt praestito sacramento item sunt alii Itenerantes de loco in locum sicut de Comitat ' in Comitat ' quandoque ad omnia placita quandoque ad quaedam speciali ficut ad Assisas tantum Gaolas Et qui authoritatem habere incipiant sine sacramento cum breve Domini Regis receperint de waranto sunt etiam Justiciarii constituti ad quosdam Assisas duas vel tres vel plures qui quidem perpetui non sunt quia expleto Officio Jurisdictionem amittunt That is to say Of Judges some are chief universal constant and of greater power than others always with the King whose business it is to correct the Injuries and Errors of other Judges and there are others that are of a constant continuance resident in a certain place as in the Bench determining all Pleas whereof they have a warrant to determine all of whom begin to have Jurisdiction by taking the Oath of their Office Also there are other Judges that move from place to place as from County to County sometimes to determine all Pleas sometimes some particular Pleas as Assizes only and Gaol-deliveries whose Authority begins without any Oath when they receive the King 's Writ for their Warrant and there are Judges constituted to determine some certain number of Assizes as two three or more who are not of constant continuance but having done what they were appointed to do they lose their Jurisdiction And a little further Et quamvis quidem eorum perpetui sunt ut videtur finitur tamen eorum Jurisdictio multis modis scilicet mortuo eo qui delegavit vel mortuo eo sub cujus proprio nomine causa delegatur Item cum delegans revocaverit Jurisdictionem vel alium dederis Justiciarium That is Altho' some of the said Justices are of constant continuance as it might seem yet their Jurisdiction may be determin'd several ways that is by the death of him who gives them Authority or by the death of him in whose name the Suit is begun or when he that delegates or gives the Authority doth revoke the Authority and Jurisdiction which he gave or appoints another Judge And to conclude that matter he says That no Judge so substituted or delegated by our Lord the King can substitute or delegate another Thus far Bracton whence it is most clear that all primitive and original Jurisdiction was in the King and
look'd not after his Servants And then follows these words viz. This Declaration I have made to your Lordships with a sincere mind humbly craving that if there should be any mistake your Lordships would impute it to want of memory and not to any design of mine to obscure truth or to palliate any thing for I do again confess that in the points charg'd upon me although they should be taken as my self have declared there 's a great deal of corruption and neglect for which I am heartily and penitently sorry and submit my self to the Judgment Grace and Mercy of this Court. And in the close he prays That if they proceed to a Sentence their Sentence may not be too heavy The Confession being read the Lords sent twelve Lords to know if it was his own hand that subscrib'd the Confession and whether he would stand to it or no and being returned they report That they had shew'd it to him and that he own'd it and would abide by it Whereupon it was ordered That the Prince attended by some of the Lords should move His Majesty to sequester the Seal which being accordingly done the Prince reports to the House That he had mov'd the King therein and that his Majesty had promis'd it should be done and that he intended to have done it if they had not mov'd it The second of May following a Commission was granted to Sir James Leigh Chief Justice Vid. Rot. Parl. ejusdem temp to Officiate the place of the Lord Chancellor in the Lords House and the Great Seal was taken from the Chancellor There was not a single Lord keeper from that time until the 10 of July 1621. the Business of the Chancery being then performed by the Commissioners and by Commission committed to be kept by the Lord Treasurer the Lord Steward the Lord. Chamberlain and the Earl of Arundell The third of May the Commons sent a Message to the Lords to demand Judgment against the Lord Chancellor to which the Lords return'd answer they were ready if They with their Speaker would come to demand it and the Commons being come to the Bar of the Lords House the Chief Justice Leigh pronounc'd the Judgment which was 1st That the Lord Viscount St. Albans should undergo a Fine and Ransome of 40000 l. 2d That he should be Imprison'd in the Tower during the Kings pleasure 3d. That he should be for ever uncapable of any Office Place or Employment in the State or Common-wealth 4th That he should never sit in Parliament nor come within the Verge of the Court. I have been more particular in relating these proceedings of the late Lord Chancellor Bacon because of the great Learning and Eminency of the Man and the little need he had to be so Corrupt he had neither Wife nor Child to provide for and if such a man was guilty of Bribery and Corruption who may we be sure will not And therefore great care ought to be taken to have Relief against such contingencies for Corruption in a Judge of that high commanding Power is far beyond all Robbery Burglary Rapine or other Villany the World can invent To Err wilfully and out of a corrupt design is a greater fault and more unpardonable than to err through mistake but the hurt is the same to him that is injur'd by the wrong Decree Therefore if we were sure there would never be any such Corruption any more yet Provision ought to be made against mistakes since those have been very frequent whereof I shall give some instances and for which you shall need to look no further back then to the Journals of the Lords House in the last Session of Parliament at Westminster where you may find that the 17th of November 1680. a Decree in Chancery was Reversed upon the Appeal of Crabb against Fenton and the 22d of the same Month a Decree in Chancery was Revers'd by the Lords upon the Appeal of Turner against Turner and on the 26th of the same Month another Decree in Chancery was Revers'd upon the Appeal of one Chute against Dacres and many more Appeals were brought in that Parliament which yet remain undetermin'd and since the Lord-Keeper North's having the Seal he hath Revers'd several of the late Lord Chancellor Nottingham's Decrees without any new matter arising since the Decree made so that one of them must be mistaken but which of them will not appear but by the judgment of divers others of as great Learning and Judgment as themselves and so it is to be determin'd for many may see more than one and I conceave the King may give them Authority so to do without putting the Kingdom to the Charge and Trouble of convening a Parliament as by the ensuing part of this Treatise will appear SECT VI. That an Appeal to the King in the Intervals of Parliament is an Ancient Legal Remedy against mistaken Decrees in Chancery with the manner of Proceeding therein IT becomes not a single man to be too positive in his own Opinion therefore I shall only at present say that I am most extreamly mistaken in my Calculations if His Majesty hath not sufficient Power in the Intervals of Parliament as the Law is at this day being the 26th of June 1683. to provide for his Subjects and to Relieve them against unjust Decrees in Chancery if the matter be duely look'd into notwithstanding the Art and Labour that hath been used to conceal it Therefore for maintaining of that point I shall once more repeat a Sentence out of Bracton Et defendous generaiment a tout que nul ne eyt poer de amender nul faux Jugement de nous Justices sauve les Justices que suent nous et nostre Court que a ceo sont per nous entitles ou nous mesme on nostre Councel cat ceo reservouns nous especialment a nostre Jurisdiction Bracton fol. 3. and Fleta speaks to the same purpose Habet enim Rex curiam sua c. habet etiam curiam suam Justiciarios suos tam millites quam Clericos locum suum tenentes in Anglia coram quibus non alibi Fleta l. 2. fo 66. NISI CORAMSEMET IPSO ET CONCILIO SUO VEL AUDITORIBUS SPECIALIBUS Falsa Judicia Errores Justiciariorum Revertuntur corriguntur Whence it is manifest that when those Authors wrote the Power of Reversing Erroneous or Falsa unjust Judgments of all other Courts was in the Justices that followed the King and his Court being thereunto Authoriz'd by the King but if they had Err'd the Error was to be Rectified by his Councel or special Auditors such as the King should think fit or by the King himself the supreme Jurisdiction and Dernier resort being in the King himself or where he pleased to place it Car ceo reservonus nous especialment a nostre Jurisdiction And this is also declar'd to be so by Act of Parliament in the 52 of H. 3. cap. 10. which
Bill legally exhibited especially where no corruption is prov'd He therefore most humbly beseecheth That he may have the liberty of a Subject and that he may not be concluded and a Decree submitted unto overthrown and the small remainder of his ancient Inheritance taken from him by Order of this Honourable House only upon a Petition He most humbly submits himself herein to your Lordships and will ever pray for your Honourable preservation This Petition being read and considered of these Lords viz. the Earl of Montgomery the Lord Bishop of Durham the Lord Say and Seal and the Lord Denny were appointed by the House to set down an Order in this Cause between William and George Matthews Die Sabbati vicesimo nono die Maii 1624. THe Lords Committees appointed yesterday in the afternoon to set down an Order in the Cause between William and George Matthews reported the same to the House in haec verba viz. THe Lords of Parliament do order That the Cause depending between Will. Matthews and George Matthews shall be reviewed in Chancery by the Lord Keeper assisted by such of the Lords of Parliament as shall be nominated by the House and by any two of the Judges whom the Lord Keeper shall name for which end the Lord Keeper is to be an humble Suitor unto his Majesty from the House for a Commission unto himself and the Lords that shall be named by the House for the said Review and final Determination of the Cause as to them shall appear Just and Equal And this the Lords desire may be done with all convenient speed The which Order being read the House approved thereof and these Lords were named by the House to be joyn'd in the said Commission with the Lord Keeper viz. the Lord Chamberlain the Earl of Montgomery the Earl of Bridgwater the Lord Bishop of Durham the Lord Bishop of Rochester the Lord Denny and the Lord Houghton and the House ordered the same Cause to be heard and determined accordingly in the beginning of the next Michaelmas Term. This agrees verbatim with the Records of the Lords House and pursuant thereunto the matter was review'd by these Commissioners and a Decree by them made in reversal of the Chancery-Decree as appears by the Registers Book of Orders in Chancery of Michaelmus and Hillary Term in the 22d year of King James Sir Edward Cooke in his Jurisdiction of Courts Anderson 2 part 163. to the same effect Title Chancery with greatapprobation reports several Cases of Decrees in Chancery referred to the Judges by Queen Elizabeth to be examined and amended and it is to be noted that his authority in that Case was sevenfold for when he wrote that Book he was very much incens'd against the King for being put out of his Chief Justiceship and set himself as much as he could against the Prerogative as appears by the whole current of that Book so that had there been any colour of denying the Queen this Power he had never cited those Cases without Objections It was not only practiced by Qu. Elizabeth and King James but also by King Charles the first as appears by an Order which I find in the said Registers Office in the Book of Entry of Orders there of the 22d of November in the 7th year of King Charles the first between one Sherbourn the Executor of one Munford the Executor of one Challener Plaintiff and one Townley and Forrest Defendants which begins thus THe matter upon his Majesties reference to the Right Honourable the Lord Keeper upon the humble Petition of the said Townley coming this day to be heard in the presence of Councel learned on both sides before his Lordship being assisted by Mr. Justice Hutton Mr. Justice Jones Mr. Justice Whitlock and Mr. Justice Harvey the Question appear'd to be Whether or how far the said Townley ought to be bound by the Decree made on the behalf of the said Munford for the sum of 17000 l. against the Defendant Townley in Case the Defendant Thomas Forrest should not pay the same And upon the hearing a Bill of Review was ordered to be brought by Townley either upon matter not insisted on at the first hearing or new matter and according to the course of the Court the said Townley was ordered to give security and in the mean time the execution of the said Decree and all proceedings thereupon as against the said Townley was respited and suspended and whereas by the first Decree Townley was decreed to pay as well what his Co-Trustee Forrest had received of the Profits of the Estate of Challener as what he had received himself Vpon the hearing upon the said Bill of Review the first Decree was revers'd and Townley decreed to answer only so much as he himself had received which appear'd by the proofs to be but three half years Rent and it was referred to a Master in Chancery to audit the account touching the three half-years Rent and the Recognizance given by Townley to perform the Order of the Court was discharged In the same Registers Office I find another Entry of an Order of June 1. in the 12th year of King Charles the first between one Pennington and others Plaintiffs and one Holmes Defendant in these words WHereas upon Petition exhibited to the Kings most Excellent Majesty by the Defendant supposing some injustice and wrong to have been done unto him by a Decree made in this Court between the foresaid parties his Majesty was most graciously pleased to refer the matter to the Master of the Rolls to call to his assistance one of the Judges of the Bench and to hear what could be alledged against the said Decree And this day being appointed for the hearing of the matter the Master of the Rolls calling to him Mr. Justice Crooke and having heard the parties and their Councel on both sides and what could be alledged against the said Decree why the same should not be put in execution saw no cause to recede from or alter the same Now after the Opinion of all the Judges of England assented to by the then Lord Chancellor for the legality of this sort of proceeding and the approhation of the House of Lords and their direction for humble Suit to be made to the King for a Commission from Him to proceed accordingly and after so continu'd a series of practice for the Reign of Three of the best Princes that ever sway'd a Scepter without the least Objection then made against it by any that I ever read or heard of I say after all this sure one would think there could be no room for any colour of illegality in that sort of Proceeding But it is objected That the Power and Right of this sort of proceeding is since taken away by the Statute of 16 Car. 1. cap. 10. But I hold that Statute doth not do it in the least nor doth it carry in it the least colour or look that way though indeed it doth take away somewhat
person yet there is not a word that excludes him from nominating Judges to hear and determine Therefore if he could nominate Referrees to rectifie a Chancery-Decree before the Statute as most apparently he could he may do so yet there being not one word in the Statute that prohibits it And whereas it prohibits all arbitrary ways whatsoever of disposition of the Subjects Estates by the King or his Privy Councel this course is not to promote Arbitraryness but to prevent it for it is more arbitrary to leave Causes to the final determination of one single mans Judgment than to refer it to the Judgment of five or six it being not so easie to corrupt or deceive many as one and that is the reason why a Tryal by Jury of Twelve is so much approv'd of and applauded for they being many Fortescue fol. 75. cannot all be easily corrupted And as to that part of the Act that says The fore-mentioned Estates ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of Law certainly none can say that have considered the premisses but that referring the examination of Chancery-Decrees to a convenient number of sage persons as is aforesaid may very well be accounted a proceeding in Chancery according to the ordinary course of that Court since the first practice of the Court was to determine not by the Chancellor alone but by the consent of divers others as is aforesaid Sect. 3. And I conceive the House of Lords terming it a reviewing of the Decree in Chancery when they directed application to be made to the King for a Commission as is afore-mentioned and all the Judges of England giving their Opinion for the legality of such proceeding and the same consented and agreed to by the then Lord Chancellor and the long continued practice of it without any dislike when there was occasion as I have made appear for several Princes Reigns and until an unparallell'd Rebellion and Usurpation put that as well as all things else out of course may intitle it to an ordinary course of proceeding if any proceeding at all in Equity in Chancery can be so accounted and the determining Causes there by the Chancellor himself without any assistance or consent of others is more like an arbitrary and an extraordinary way and new sort of practice than that For further manifestation of this matter and that a reference from the King to examine the injustice of a Chancery-Decree is a proceeding in Chancery and no erecting of a new Court and that as well when the Lord Chancellor or Lord Keeper is not one of the Referrees or Commissioners as when he is it appears by the proceeding upon the fore-mentioned Reference by the King to the Master of the Rolls and a Judge of the Kings-Bench to examine the injustice of the Decree between Pennington and Holmes afore-mentioned That upon that reference the proceedings on the first Decree was staid and what was done thereupon is entred among the proceedings in Chancery as an Act of that Court And moreover Dúgd Orig. Ju. fol. 32. That Etheldred appointed the Office of Chancellor to be exercis'd by three Abbots by turns it cannot be deny'd but the King may commit the custody of his Great Seal to several Commissioners as King James did upon the outing of the corrupt Lord Bacon See the Parliament Roll of that time and Dugd. Chronological Table of Chancellors and Keepers and in such cases one of the Commissioners keeps the Seal and is President amongst the rest but they have all equal Authority in judging according to the purport of the Commission * 12 Maii 19 Jac. ordered in Chancery inter Butler and Eliot That the Decree made by the Lord Bacon should not be signed by the Commissioners of the Great Seal until notice to the other side as by the Registers Book of Orders in Chancery of that day appears and do sign Decrees and if the King may make many Judges in Equity to hear all Causes generally what is the reason he cannot appoint many Judges there in some few particular Causes upon complaint of mistake by his Chancellor or Keeper since he that may do more can do less and the King is not ty'd to have any certain or limited number of Judges in his Courts for there were in the Common-Pleas in E. 4.'s time and before sometimes 6 7 or 8 and King James had five Judges in the Kings-Bench whereof my Great-grand-father Sir David Williams was the fifth and as many in the Common-pleas about the beginning of his Reign as may appear by Dugdale's Chronological Table of Judges of that time So that I cannot apprehend any manner of prohibition neither express nor implied in this Statute nor any other against the Kings referring the examination and regulating unjust Decrees in Chancery to others besides the Chancellor or Keeper This Statute deserves not to be extended beyond it self it being a penal Statute which is never to be taken by Intendment further then the very express words of the Prohibition upon a strict and bare construction will bear however the Statute it self in the conclusion hath by express words somewhat mended the matter from what is contain'd in the premisses for in the end of the Act there is a Provisoe which doth in effect restore the King to almost all his Ancient Jurisdiction and puts all the seeming Cause of doubt about the matter of Referring the Examination of unjust Decrees in Courts of Equity quite out of doors by confining the meaning and construction of the Statute to the words of the Provisoe therein contained which Provisoe is in these words Provided always and be it Enacted that this Act and the several Clauses therein contain'd wall be taken and Expounded to extend only to the Court of Star-chamber and the said Court holden before the President and Councel in the Marches of Wales and before the President and Councel in the Northern parts and also to the Court commonly call'd the Court of the Dutchy of Lancaster holden before the Chancellor and Councel of that Court and also in the Exchequer of the County Palatine of Chester before the Chamberlain and Councel of that Court and to all Courts of like Jurisdiction to be hereafter Errected Drdain'd constituted or appointed as aforesaid and to the Warrants and Directions of the Council-board and to the Committments Restraints and Imprisonments of any person or persons made commanded and awarded by the Kings Majesty his Heirs and Successors in their own Persons or by the Lords and others of the Privy-Council and every one of them So that here 's an Explanation that no Court or Proceeding in any Court is to be taken away but the Court of Starchamber and the Jurisdiction thereof and such like Courts of like Jurisdiction and this of the Kings referring the Examination of unjust Decrees in Chancery to particular Commissioners and Referrees was practis'd out of the Star-chamber when
that Court was at height as may appear by the forecited Presidents so that it never was a part of the Jurisdiction or practice of that Court and therefore declared by the said Provisoe not intended to be prohibited by the said Act and as to the King the Provisoe says He is to be restrained but from restraining and imprisoning by his own personal command he may do every thing else that he could have done before He may hear and determine in person if he pleases as he could have done before and he may appoint all such Judges or Referrees to all purposes as he could have done before But as to the Warrants of Imprisoning if any cause for such there should be he is to leave that to his Ministers and the King if he thinks fit upon complaint to him made of Injustice or other Error done by his Chancellor or Keeper may order his Chancellor to order the parties concern'd to appear before the King in person and the King himself may require his Chancellor or Keeper to be present and his Majesty may call others to his assistance whom he may confide in for just and equitable advice and may determine what to him seems meet in the Cause upon conference with them this being for advancement not delay of Justice and if the Chancellor or Keeper doth not use the coercive part of Imprisonment and other Process of the Court of Chancery to compel Obedience to such determination I conceive he doth not do his duty I mention this not that I think it 's absolutely necessary the King should trouble himself to hear all matters in person but I humbly conceive it not amiss for his Majesty sometimes to use his Power in Chancery as well as at Councel-board lest for want of using his Power he may be in danger of losing it and consequently his esteem in the eyes of the people may be lessen'd whilst every of his acting Judges the Chancellor or Keeper especially command respect from their Friends and fear and trembling from their Enemies I am sure Solomon's giving Judgment in the case of the Harlots gain'd him more esteem not only amongst his own Subjects but all the World over than any one other act of Government he did in all his Reign and the Kings not being exactly skill'd in the Law or the formal Rules thereof as a profess'd Lawyer should be should not at all hinder his undertaking it sometimes for a man but of common sense having heard the Case put the proofs made and the Arguments of indifferent men not byass'd Advocates or Councel only may easily discern what Judgment is fit to be given in Equitable Causes and the King hath almost infallible helps He hath his Lords Spiritual and Temporal He hath always at his call twelve Judges men skill'd in the Laws and sworn lawfully to counsel the King in all matters These or some of them he may command to attend him at such Hearings and may command them to give their opinion of the matter according to the nature of the Cause and according to the best of their judgments and the King at such hearing may give or cause to be giv'n a Sentence or Judgment according to the Opinion of the majority of them and this course is the best and was the old way of judging of Equity and if us'd some times would make Chancellors and Keepers more regard what they do But if the King should not be minded to meddle in person with determining any Causes his referring of the examination of Chancery-Decrees to persons fit and able of judgment and knowledge to do it may suffice better then to leave it wholly to his Chancellors single judgment For securius expediuntur negotia comissa pluribus plus vident oculi quam oculus There is at this day a standing Commission enroll'd in Chancery to all the Judges of Westminster hall the Master of the Rolls and the other Masters in Chancery impowering any Three of them whereof the Master of the Rolls or one of the Judges to be one in the absence of the Lord Keeper to hear and determine Causes and that is not thought to be prohibited by any Statute And if the King hath Authority and Power to appoint Commissioners for the Chancellor or Keepers ease why cannot he also give power to Commissioners to rectifie his Decrees when he mistakes The Chancellor or Keeper of the Great Seal is but the King's Deputy during pleasure 9 Rep. 99. and a Grant of that Office for life is void Cooke 4 Inst fol. 87. Upon the whole matter I must conclude I can apprehend no warrantable objection can be made against this sort of proceeding or that any Statute doth or intended to take it away so that I shall take that point for granted That it is very lawful for the King to appoint Referrees or Commissioners to rectifie Chancery-Decrees or Decrees of any other Court of Equity The next thing to be considered is Whether any of the King's Privy-Councel may be Referrees or Commissioners for that purpose notwithstanding the said Statute For they are men of so great Honour Knowledge and Integrity and of such Fortune and Estates as to scorn Bribery and therefore very fit to assist in this matter and I hold They may for the prohibition of the Act extends to their not acting as being only and barely Privy-Councellors It doth not say Privy-Councellors shall not act by virtue of any other Authority And this thing proves it self plainly in the Case of the now Lord Keeper and Lord Chief Justice of the Common-Pleas who are both of the Privy-Councel yet examine draw into question determine and dispose of the Lands Tenements Goods and Chattels of the Subjects with a witness by virtue of another Authority derived from the King and if They may do it why may not any other of the Privy Councel act by a lawful Authority in those matters as well as They The next thing considerable is if the Lord Chancellor or Keeper ought to command performance according to the course of the Chancery of what such Referrees do order by virtue of such Reference when he himself is not one of them as well as when he is and I hold he ought First for whatever Order is made in the House of Lords upon determining an Appeal from Chancery-Decrees it is sent to the Chancery to compel Obedience thereto and in this respect I conceive the House of Lords are but the Kings Referrees and do legally and truly derive their Authority from the King as is prov'd by the due Proceedings upon Writs of Error and the ancient form of Petitions against Chancery-Decrees before-mentioned So that such Referrees do act by Authority derived from the King as well as the House of Lords in Parliament And further the practice hath been for the Lord Chancellor or Keeper to pursue what is done by such Referrees for what was resolved by the Judges upon the References mentioned in Sir Edw. Cooke
4 Institutes and certified by them to the Chancellor was comply'd with by him and what was decreed by the major part of the Commissioners joyn'd with the Lord Keeper in the Case of Matthews and Matthews before-remembred was confirmed and prosecuted by the Lord Keeper as Lord Keeper in and according to the course of Chancery and so in the case of Sherburne and Townley and had been so also in the case of Pennington and Holmes before-mentioned if there had been any alteration of the Decree for the confirmation of that Decree by virtue of the Kings referrence is entred as an Act of that Court so that I think that point is also pretty clear And I presume the enrolling or performing of a Decree before Petition to the King or before obtaining his Commission or Order of referrence which are both as sufficient one as the other there being a sufficient number of Precedents of both sorts is no hindrance but that restitution may be awarded if the Commissioners and Referrees make certificate to the Chancellor or Keeper that it ought to be so for the enrollment of a Decree doth not make it more irrevocable then it was before the enrollment but that notwithstanding it may be altered in the same Court for it is not a Record and in that respect not so high in the eye of the Law as a Judgment according to the course of the Common-Law which cannot be revers'd in the same Court and this was so held in H. 8.'s time 27 H. 8. fol. 15. in a Cause in Chancery before mentioned in the 6th Section between the Prior of St. Johns and one Dockeray where upon a review in Chancery before the Lord Chancellor the King 's Secretery and Mr. Fitz-Herbert it was held and allowed that a Decree there is but an Order made by the Court for the time which upon good consideration and cause shewn may well be altered notwithstanding all the arguments then made by the Councel for the first Decree to prevent inspecting into it as that such looking back tended to confusion and would make Causes endless and the like whereunto the Kings Secretary sitting then in equal authority with the Chancellor as appears by the Report made answer and commanded the formal man that was against inspecting the injustice of the Decree to forbear disputing the Power of that Court and such was the practice of the late Lord Chancellor Nottingham who would often rehear and re-hear again and again upon Councels certifying it under their hands that there was good Cause The Cause between Thacker Redman was several times heard by the Lord Nottingham and heard again by the Lord Keeper North on the 20th of April 35 Car. 2. after the Decree enroll'd and upon that hearing a Tryal at Law directed which must occasion another hearing as they apprehended for such rehearing his frequent saying being that the nimbleness of a Clark in enrolling his Decree should not hinder him from coming at Justice and that he would leap over Hedge and Ditch to do it and doubtless it is the true and proper power of that Court of Equity so to do And though it doth of descretion entertain some Forms yet it may and ought upon occasion to leave them rather then tie up its own hands from doing Justice for it hath Potestatem absolutam secundum probata Judicare 9 E. 4. f. 15. and if ever any Chancellor did amiss in that respect it was in that he would leap lustily for some but would not hop over a straw for others I wish none in that great place be ever more guilty of the like partiality It appears from what is before-mentioned that the Court of Equity in Chancery is the King 's high Court of conscience for moderating the rigor and supplying the defects of the Common-Law and he may order it and limit the Jurisdiction thereof as to him seems most agreeable to Equity and Justice a further instance whereof appears by an Enrollment of a Commission now to be seen in Chancery At the Rolls 6 pars 14 Jac. nu 25. beginning thus JAMES by the Grace of God c. wherein it is mentioned That the Attorney-General and the rest of the Kings Councel learned in the Law had been commanded to consider and certifie to the King if the Chancery might relieve according to Equity after a Judgment at Law and therein is mentioned the consultation had by the Kings Councel thereupon and their reasons on the point and the Roll ends thus We in Our Princely judgment having well weigh'd with mature deliberation considered of the said several Reports of Our learned Councel and all the parts of them c. Do will and command That Our Chancellor or Keeper of the Great Seal for the time being shall not hereafter desist to give to Our Subjects upon their several complaints now and hereafter to be made such relief in Equity notwithstanding any former proceeding at the Common-Law against them as shall stand with the true merits and Justice of their cases c. And for that it appertains to Our Princely care and Office only to be Judge over all Our Judges and to discern and determine such differences as at any time may or shall arise between Our several Courts touching their Jurisdiction and the same to set and to decide as We in Our Princely Wisdom shall find to stand most with Our Honour and the example of Our Royal Progenitors in the best of times and the general Weal and Good of Our People for which We are to answer to God who hath placed Vs over them Our will and pleasure is That Our whole Proceedings herein by the Orders formerly set down be enroll'd in Our Court of Chancery there to remain of Record for the better extinguishment of the like Question that may arise in future times Decimo octavo Julii Anno Regni Regis Jacobi quarto decimo per ipsum Regem But after all I have said if there be any that have considered the premisses and will still deny the Kings Power I must also say That for determination of the matter the opinion of his Majesties learned Judges is to be the Touch-stone therefore for a further inducement to enquire further of them touching this matter which is my principal aim hereby I shall in the next place give a hint of the inconveniences that do happen for want of this course of Proceeding SECT VII The Inconveniencies that accrew for want of a constant Relief against Erreneous and Unjust Decrees in Chancery TO apprehend the mischiefs that may ensue for want of a constant and permanent practical Power to controll and rectify mistaken Decrees in Chancery it is a necessary to look back to the fourth Section for the Power of that Court and how far it extends which is there set down in some measure It is also considerable how ill some Chancellors have us'd this their so great unlimited Power which appears in the Lord