E. C. 4 Instit. 245. Chap. 49. upon the same Subject Rushworth in the Second part of his Historical Collections pag. 1336. mentions how that Mr. Hide afterwards Lord Chancellor then a Member of the House of Commons in the Parliament 1640. by Command from the House of Commons presented to the House of Lords a Complaint against this Court of the President of the North and tells the Lords that that Court by the Spirit and Ambition of the Ministers trusted there or by the natural Inclination of Courts to enlarge their own Power and Jurisdiction had so prodigiously broken down the Banks of the first Channel in which it ran as it had almost overwhelmed the Country under the Sea of Arbitrary Power and involved the People in a Labyrinth of Distemper Oppression and Poverty Another Member of the House of Commons complaining to the Lords of the Star-Chamber first he sets forth the Original of it by Act of Parliament by the Stat. of H. 7. which he calls the Infancy of that Court But he says further that Court by Cardinal Wolsey 8 H. 8. was raised to Man's Estate and from whence says he being now altogether unlimited it is grown a Monster and will hourly produce worse effects unless it be reduced by that hand which laid the Foundation which is by Parliament Let Loose but Power and you shall quickly see How wild a thing unbounded Man will be It deserves to be considered how it fares with the Profession of the Common Law of late years since the Chancery hath been so exalted Readings at the Four Inns of Court twice every year upon some publick useful Statutes which were very ancient and of great esteem and authority in our Courts of Justice are now wholly discontinu'd There being no consideration had who have been Readers in the call to the Degree of a Sergeant at the Law nor in the choice of Judges to the utter overthrow of that Exercise the Lord Chancellor having a great stroak in recommending Persons to that Degree and Employment and this hath happen'd but of late since the Court of Equity hath swell'd to that Height and Greatness Nor have the Nobility and Gentry so much applied themselves to the Study of the Common Law nor the Students to the performance of Exercises whereby they should prepare themselves for the practise of it when they observe the Profit and Preferment to run in another Channel and forsake the Old Hence it comes to pass that an inferiour sort of Men oftentimes procure themselves to be admitted of the Inns of Court and called to the Bar and suddenly leap into mighty Practise and extraordinary Gain in the Court of Chancery having taken no great pains in Study but arriv'd only at some experience in the Course of that Court which is soon attain'd to It may be worth the while to look into some of those Cases wherein these Courts of Equity do most frequently exercise their Jurisdiction and then consider whether there be any great necessity of resorting to those Courts for Relief in such Cases or whether they might not be reliev'd more easily with less expence and more speed and as clearly by the help of the Courts of the Common Law without going a tedious and chargeable Course at Common Law first as it sometimes falls out which after all must serve for nothing but be all set aside and a new but more tedious and more chargeable and uncertain Course of Equity be undergone at last which seems to Strangers not so much accustom'd to the like to be very absurd and impolitick in the Constitution of our Laws and Courts It is according to the Latine Adage Penelopes telam texere retexere Put the Case that a Man pays a Debt upon a single Obligation without taking an Acquittance and afterwards he is Sued by the Obligee upon that Obligation which is clearly against Conscience he cannot at Common Law plead payment without producing an Acquittance which he hath not to produce and is therefore Remediless at the Common Law for it is a Maxim that every charge must be discharged by that which is of as high a nature as that which charges A Record must be discharged by a Record and a specialty by a specialty and not by a bare Averment of the Party that is charged with it And the true reason upon which that Maxim is grounded is given by St. Germin in his Book Entituled A Dialogue between a Doctor of Divinity and a Student of the Common Law written in the Reign of King Henry VIII pag. 22. b. 23. where he puts the same Case That Maxim says St. Germin is grounded upon great reason and to avoid a great inconvenience that else might happen to come to many People that is to say That every Man by a bare Averment shall avoid a Bond and this is the true reason of the Law and tho says St. Germin it may follow thereupon that in some peculiar Case a Man by occasion of that general Maxim may be compelled to pay the Money again yet the Law took heed to that which may often fall out and do hurt among the People rather than do hurt to particular Cases And the Law setteth a general Rule which is good and necessary to all and which every Man may well keep without it be thro' his own default But after all Tho' the Obligor in such Case be Remediless at the Common Law yet says the Author St. Germin pag. 23. he may be holpen in Equity by a Sub-Paena And so says Sir Geo. Cary in his Reports of Causes in Chancery pag. 2. 1st Case and there are Precedents of it in Chancery says the Arch-Bishop of York who was Chancellor And the like is said by Moreton Arch-Bishop of Canterbury then Chancellor and afterwards Cardinal another Clergy-man Pasc. 7. H. 7. fo 12. I suppose these Authors rather speak the Usage and Practise of the Chancery in such Cases than what was their own Opinion and Judgment For if this Relief in Chancery in such Case may be allowed what becomes of that great reason upon which that Maxim was grounded as the Author himself observed before and how is that great Inconvenience avoided by this Maxime which the Author mentioned in the same breath If the Chancery may receive the same Averment and upon proof by Witnesses without trying the Fact by a Jury that Court may relieve the Party Does not the Inconvenience return again and are not the People as much hurt by it Or is it a Mischief and Inconvenience in the Common Law Courts and none in a Court of Equity It were better the Law were changed and that such Averment of the payment might be pleaded to the Action at the Common Law where if Issue be joined upon it it must not only be prov'd by Witnesses but found also by Twelve Men to be true rather than the Chancery shall receive that Averment and allow it to be prov'd by Witnesses only
Rigour of the Law by Equity in their own Persons alone and afterwards did delegate the same Power of Equity to a single Person the Chancellor who as they phrase it hath the dispensing of the King's Conscience as well as the Custody of it And that to the King alone in such Cases an Appeal doth lie which by what hath been already said is manifestly untrue as shall yet be further made out Sir John Fortescue who was a Lord Chancellor in his Book De laudibus Legum Angliae pag. 64. says to Prince Edward Son to King Henry VI proprio ore Nullus Regum Angliae Judicium proferre visus est tamen sua sunt omnia Judicia regni licet per Alios ipsa reddantur Just as all our Laws are said to be the King's Laws not that he hath the sole Legislature as Sir Robert Filmer doth weakly or rather wilfully tho groundlesly infer but Denominatio sumitur à Majore as is most frequent in common Use it is but an Embrio till he quicken it by passing the Bill In the next place Let us enquire at what time and by what occasion this Jurisdiction of the Chancery in Equity began by which it may appear whether it be Entitled to it either by Prescription or by Act of Parliament for Non datur Tertium The same Proofs and Authorities will serve to manifest these â—…7 H. 7. Keilway 42. b. by Vavasor The Sub-Paenâ began in the time of Edw. III. and that says he was against the Feoffee upon Confidence that is to Uses Mr. Lambert who was a Master of the Chancery Sir Edward Coke 2 Instit. 552 in his Archeion pag. 72 74 75. says that the Kings used to refer matters in Equity to the Chancellor from whence the Chancellor was anciently Styled Referendarius as was noted before or to him and some other of the Council And tho' this doth not as he observes plainly erect any Court of Equity yet as he supposeth it is the laying the first Stone of the Chancery Court and pag. 73. That in the time of Edward III. it was a Newly Erected Court which may be understood of its Latin Pleas. The Book called The Diversity of Courts written in the Reign of King Edward III. Treats of the Jurisdiction of the Chancery according to its ordinary Power which are the Latin Proceedings or by the Rules of the Common Law but says nothing of that which the Chancellor holdeth in Equity Et quod non invenis usquam esse putes nusquam It was enabled to deal in some special and particular Cases by Parliament which were but Temporary neither which proves that in such or in the like Cases the Chancellor could not meddle without the help of Acts of Parliament Nor were those Cases referred to his Equitable or Arbitrary Power neither as some misapprehend For Sir Edw. Coke 4 Instit. fol. 82. says That Acts of Parliament giving Power to the Chancellor to hear and determine Causes in Chancery are ever intended of the Court of Record there proceeding in Latin Secundum Legem consuetudinem Angliae which Power is not contested And Mr. Lambert pag. 74. ut supra says he does not remember that in our Reports of the Common Law in which Reports under the Titles of Conscience or Sub-Paena in Fazh or Brook's Abridgment many Cases of Equity in the Chancery may be found there is any mention of Causes before the Chancellor for help in Equity but only from the time of King Henry IV. in whose days by reason of those intestine Troubles between the Two Houses of York and Lancaster Feoffments to Use did either first begin or first grew common for Remedy in which Cases chiefly the Chancery Court was then fled unto No Book-case says that great Champion for the Common Law Sir Edward Coke 2 Instit. 552. nor Reports of the Law make any mention of any Court of Equity in the Chancery used before or in the Reign of King Henry V. but they speak of the Chancellor's ordinary Jurisdiction which is at the Common Law and by Latine Proceedings which proves they were very rare at that time The few Causes heard by the Chancellor in the Reigns of King Henry VIth and Edward IVth in Equity by English Bill are most of them concerning Uses of Land And how great an Invasion that new Invention of Uses was upon the Laws of England both the Common Law and the Statute Law and how pernicious they have been to Men's Estates and what occasion they have been of Contention and multiplying Suits shall appear by what follows See Doctor and Student pag. 71. to that purpose Sir Coke's 2 Instit. 553. affirms That no Act of Parliament printed or unprinted gave the Chancellor any power to hold any Court of Equity The Stat. of 36 Edw. III. Cap. 9. without question says that Grave and Reverend Judge and true lover of his Nation refers to the ordinary power of the Chancellor but gives him no shadow of any Absolute Power meaning a Power of Equity See the 2 Instit. fol. 553. See that remarkable Case of Sir Richard le Scrope in Sir Cotton's Abridgment of the Records of the Tower pag. 351. Numb 10. exceeding pertinent and useful in many respects to our present Enquiry and gives great light to us in many things It is mentioned also in Coke 2 Instit. 553. it happened Anno 17 of King Richard II. John de Windsor complain'd by Petition to the King against Sir Richard le Scrope and Sir John Lisley for detaining divers Mannors in Cambridgshire from him to which as he alledged he had a Right and Title Both Parties submitted the matter to the King's Arbitration The King committed it to the Council not to the Chancellor alone the Council decreed it for Windsor then Plaintiff under the Privy Seal they sent to the Chancellor to confirm that Decree or Award under the Great Seal which was done and a Special Injunction to Sir John Lisley and a Writ to the Sheriff to Execute it A strong Case in all its Circumstances Sir John Lisley one of the Defendants not satisfied with the Decree or Award Petitions the King in Parliament that is Appeals from it and prays the Matter may be determined at the Common Law notwithstanding the Decree or Award so confirm'd The King by Privy Seal Orders the Chancellor to Supersede the Injunction and the Writ and Decree The Decree was revers'd and both Parties order'd to stand to the Common Law and Windsor's Petition was dismissed Sir Edward Coke says that this Decree so made by the Council was the first Decree in Chancery that he could find and that upon a deliberate hearing of the whole matter by the Lords in Parliament it was adjudg'd that Sir John de Windsor should take nothing by his Suit but stand to the Common Law that is according to our now usual Language His Petition or Bill in Equity was dismiss'd and the Parties sent to the Common
taken in the largest sence but rather contra-distinct and indeed opposite to it and destructive of it Sir Henry Spelman at last takes leave of this great Officer and of his Court by shewing what a mighty encrease came flowing in from that ill Weed the Invention of Uses or Trusts which are still the same But to this point there are plenty of far greater Authorities and Authors for whose Testimony herein I shall reserve it Another thing to be premised is that as the King had no such Power himself singly and in his own Person only to decide Causes of Equity and therefore could not Delegate it to any one Man as 't is pretended he might so and upon the same ground and reason the King by our Law could not by his Commission Erect any Court of Equity It can be grouned and warranted only upon a Prescription or an Act of Parliament neither of which can be pretended to in the matter in hand it was so adjudged 26 Eliz. in the King's-Bench Sir Edw. Coke 4 Instit. fol. 87 97. That a Court of Equity cannot be Erected but only by Act of Parliament or Prescription And the like in the Lord Hob. Rep. 63. Resolv'd also in Langdale's Ca. 12. Rep. 52. That the King cannot raise a Court of Equity the reason is because a Court of Equity proceeds by the Rules of the Civil Law and not by the Common Law 6 Rep. 11. b. and 2 Instit 71. The King may appoint a new Court and new Judges but cannot change the Law Hill 8. H. 4. fol. 79. by Gascoign That the King by his Charter cannot out the People of their Inheritance which they have in the Common Law So note the Common Law is the People's Inheritance In the next place Let us proceed to examine about what time and upon what occasion this Court of Equity exerted its Power which hath in part fallen in among our former Enquiries For the time and occasion too Mr. Lambert in his Archeion pag. 75. refers it to the time of King Henry IV. and the occasion was taken from Feoffments to Uses For remedy in which Cases the Chancery was fled unto With this agrees Sir Henry Spelman in his Glossary pag. 107. at the lower end Doctor and Student fol. 98. Sir John Davy's Rep. in his Preface Mr. Hunt's Argument for the Bishop's Right c. pag. 144. And to prevent mistakes herein it must be observ'd That the word Equity hath been very anciently used long before this Jurisdiction began in Chancery but not in a Contradiction or in Opposition to the Common Law of the Land as now it is but either in a mild and merciful Expounding of the Law by the known and sworn Judges of the Law or as synonimous and signifying the same thing as Law Justice and Right For the Laws of England were not looked upon then as being like the Laws of Draco Sanguinary and Cruel and Rigorous but merciful and equitable in themselves and so expounded and administred by the Judges of the Common Law Mulcaster the Translator of the Chancellour Fortescue being a Student of the Common Laws of England in the Reign of King H. VIII could readily observe to his Reader from his Study of those Laws and from the Arguments used by his Author the Excellent Sir John Fortescue Easdem nostras Leges non solum Romanorum Caesarum sed omnium aliarum Nationum Constitutiones multis parasangis prudentiâ Justitia equitate praecellere facilè perspicias See his Preface Non quod principi placet Legis vigorem habet non quicquid de voluntate Regis tho his Will be not Arbitrary neither but guided by Discretion and tho he define secundum aequum bonum sed quod Magnatum suorum Concilio Regiâ authoritate praestante habita super hoc deliberatione tractatu rectè fuerit definitum So writes Bracton Lib. 3. Cap. 9. fol. 107. and so Britton Sir Gilbert Thorneton Ch. Justice in the time of King E. I. and Sir John Fortescue Chief Justice and afterwards Chancellor These invincibly prove the Nature of our Laws The Kings of England were from the first Foundation of the Government Sworn to observe the old known Laws of the Realm which were called Usus Consuetudines Regni and that they would not suffer any Innovasion which was often attempted by the Pope and his Clergy who endeavoured to introduce into this Realm the Civil and Canon Laws King Henry I. writing to the Pope upon such an occasion tells the Pope stoutly Notum habe at Sanctitas vestra quod me vivente Usus Regni Angliae non imminuentur Et si ego in tanta medejectione ponerem Optimates mei totus Angliae populus id nullo modo paterentur And all the Nobles of England by Consent of the Commons wrote to Pope Boniface upon the same occasion Non permittemus tam insolita tam indebita Dominum nostrum Regem etiamsi vellet facere seu quo-modo-libet attemptare The Lord Chancellor and Lord Keeper is also Sworn to do Right to all after the Laws and Usages of this Realm not secundum aequum bonum nor other Rules of Equity 2 E. 3. fol. 20. It is said in that Book by the Chancellor sitting in the Chancery and speaking of that Court This says he is a place of Equity where we grant a Writ to every one that Sues for his Inheritance So that to issue out Writs as Officina Brevium is by the Chancellor's own acknowledgment a proper work of Equity It seems to be the only use of the word Equity at that time 2 Instit. 53. The Civilian Vinius in his Comment upon Justinian's Institutes pag. 20. Nomen Aequitatis says he duplicitèr accipitur vel in genere pro aequo quod cum omni jure conjunctum est vel in specie pro eo quod est à Jure Civili diversum Omnibus Legibus aequitas inesse creditur Nomenque juris non meretur quod ab omni Aequitate destitutum est He mentions no Equity contrary to Law or to Controul the Law nor any other than what was to be exercised by the very Judges of the Law themselves in all Cases that came before them Plowd Comment 466 467. In the Case of Eyston and Studde it is said No Makers of Law can forsee all things that may happen and therefore it is convenient that the fault be reform'd by Equity This the Chancery-men will catch at as making much for their practise of relieving in such unforeseen Cases where the Law looks severe and rigorous But the Case cited proceeds further and makes not at all for the Chancery if it be heard out And the Sages of our Law have deserved great Commendation says that Case in using Equity in Cases of Rigour in the words of a Law for by that they have mollified severe Texts and have made the Law tolerable Who are meant generally in our law-Law-Books and Arguments by the
hath already been said as from Sir Edw. Coke Ch. Jus. who was a faithful Friend to our Nation and Laws Mr. Lambert who was a Master of the Chancery Mr. Dugdale in his Origines Juridiciales from the Ch. Jus. Popham in Chudleigh's Ca. in the first Rep. of Sir Edw. Coke fol. 139. b. and from the rest of the Judges and Arguers of that Case whose Judgment as to this point viz. both of the Original of this Jurisdiction of the Chancery and the mischievous effects of those Conveyances to Uses and upon Trust and Confidence for they are all one and so mentioned in the Act of the 27 H. VIII whose design was to extirpate both will more fully appear 1 Rep. 121. b. There were says that Case Two Inventers of Uses Fear and Fraud Fear in times of Troubles and Civil Wars to save Inheritances from being forfeited which in Truth and in plain words was the same thing with fraud to evade the Law that inflicted those Forfeitures and Fraud to defeat due Debts and lawful Actions and Duties Before the time of Richard II. says the Ch. I. Popham in that Case no Act of Parliament or other Record nor any Book nor Writing made any mention of Uses of Land Hear the Opinion of the King Lords and Commons the whole Nation concerning Uses in the Preamble of the Statute of 1 Rich. III. Cap. 1. The makers of that Statute set forth the mischiefs arising from such Conveyances to Uses and Trusts viz. great Unsurety Trouble Costs and grievous Vexations to the Buyers of Land or to such as took Leases In the Preamble of the Stat. of 27 H. VIII Cap. 10. viz. That by divers subtle Inventions and Practises by Fraudulent Feofments Fines Recoveries and other Assurances craftily made to secret Uses Intents and Purposes c. Manifold Mischiefs did ensue Out of which Statute both from the Preamble and Body of it may be observ'd 10. That Uses and Trusts are the same things Styles Rep. fol. 21. 40. 20. That the intent of the Law-makers was to extirpate both as being but the same But we know where Trusts are supported as if they were distinct things from Uses and a plentiful Harvest hath arisen from them tho it hath been resolv'd that an Use cannot arise out of an Use but this is evaded by giving it the Name of a Trust and making them distinct things So that we may learn from what hath been said when and whence these pernicious things called Uses and Trusts had their Original and who was the first Inventer of the Writs called Writs of Sub-Paena all about the time of that Exorbitant and Tumultuous Reign of King Richard II. and that such Conveyances ought at first to have been adjudg'd void being fraudulent as other fraudulent Conveyances have been by the several Statutes of 52 H. 3. Cap. 6. 50 E. 3. Cap. 6. 2 R. 2. c. 3. 3 H. 7. C. 4. 19 H. 7. Cap. 15. Trin. 7 H. 6. fol. 43. If a Man make a Feofment in fee Proviso tamen that the Feoffor shall always have the Profits of the Land that Proviso is void and contrarious by Hankford a Judge of the Common Pleas in the time of King Richard II. Now What an absurdity and contradiction is it in Reason and a mockery and abuse of the Common Law That a Man shall use the just and necessary Liberty the Law allows him to convey away his Land but it shall be so agreed that he to whom it is conveyed shall not be one jot the better for it but it shall still remain his in point of Profit that convey'd it away And so it is all but a Delusion and Deceit and the honest intention of the Law is baffled by it But a world of work is made by this for a new Court The Judges who are the Conservators of the Common Law and of the rights of the People early decryed these Inventions of Uses and so have several Acts of Parliament But the Potency of some great Church-men and others did still own and support them for they bring great Profit with them to the Jurisdiction Under this pretence and upon these occasions began the Invention of Uses and Trusts which have wonderfully perplex'd and turmoil'd almost all the Estates in England so that Men's Estates and Titles are not now so much guided and governed by the old and most wise and certain Rules of the ancient Common Law as by new invented Rules in a new Court to the subverting of the Common Law and Ruine of many Families How much work have they cut out for our Parliaments by making many Acts of Parliament to redress the Abuses but the Mischiefs are insuperable and the many good Remedies provided by several Parliaments have been rendred fruitless and I cannot for my life tell how it hath so come to pass unless by the excessive Power and mighty Favour that hath been indulged to the Persons in that High Office such as Cardinal Wolsey and others of the Hierarchy who were formerly in that great Office and were wont to have a mighty stroak in the Government By reason of these Conveyances to secret Uses and Trusts the Lord was Defrauded of his Ward heriot and Escheat To remedy this was the Stat. of 52 H. 3. Cap. 6. called the Stat. of Marlebridge made which made such Conveyances void as against the Lord and several other Statutes to the same purpose The Creditor who supposed the same Feoffor he still being in Possession and taking the Profits to be still the Owner in Law he lost his debt till the Stat. of 50. E. 3. c. 6. made the Lands however liable to satisfie the Debts and many Statutes more were made in the like Case A Man that had cause to Sue for his Land knew not against whom to take his Remedy and to bring his Action For one Man had the naked Name or Title like the titular Bishops of the Church of Rome and another had the Use and Profit till the Stat. of 1 R. 2. c. 9. made an Assize maintainable against the Pernor or him that took the Profits The Wife was Defrauded of her Thirds The Husband of his Tenancy by the Courtesie The poor Farmer of his Lease The Crown of the Forfeiture for Treason whereby Men were more imboldened to commit Treason The Stat. of 1 R. 3. c. 1. Tho it meant well yet gave too much countenance to these mischievous Uses by making good the Estates granted by the cestuyque Use Whereas it should rather have set a brand upon those Conveyances to Uses and have declar'd them all void as being generally meer Frauds and Cheats for so the Judges were in those times wont still to pronounce them And that Stat. of 1 R. 3. deals plainly in the matter by setting forth in the Preamble the great Unsurety Trouble Costs and grievous Vexations that daily grew from them but at last that Statute deals too gently by them And several other like
Sages of the Law but the Judges to whom by Law belongs the Construction of the Acts of Parliament and the pronouncing of our Laws See the 2 Instit. fol. 611. The Judges in their Answ. to the 16th Objection 614 618. the Judges only are to expound Acts tho they concern Ecclesiastical Jurisdiction Here is no need of a distinct Court of Equity Such a Case of Equity was that of Reniger and Fogassa the first Case in Plowd Comment tho determin'd by a Privy Seal it being in the King 's own Case concerning the Customs There is another Equity says that Case of Eyston and Studde in the Comment which differs much from the former and may be thus defin'd Equitas est verborum legis directio efficiens cum una res solummodo legis cavetur verbis ut omnis alia in aequali genere eisdem caveatur verbis As for instance the Stat. of 9 E. 3. Cap. 3. which gives an Action of Debt against Executors shall be extended by Equity to Administrators tho not within the words But this also is done by the Judges of the Common Law Here is no mention of a Chancery-Equity and it had been according to the right Rules of Logick no good Division if it had not taken in all the parts called the Membra Dividentia which ought to be Toti adaequata Keckerm Systema Logicae pag. 245. regula quarta Doctor and Student pag. 27 28. Equity is to be exercised in the mild and merciful Construction of a Law and in some Cases departing from the strict and rigorous words of a positive Law rather than oppress any Man by it which is not by appealing from that Law or from the Court where that Law is administred but resorting from the Letter to the true intent and meaning of the Law and the true mind of the Makers of the Law Ubi aliud suadet necessitas cessat humanae constitutionis vigor cessat voluntas Nomothetae But this is the Duty of the Judges of the Common Law and to be done in the same Court and in the same Suit and Action and not in another Court and by a new Suit under pretence of Equity for that were to censure the Law and the Judges of the Common-Law Courts and to charge the Law-makers either with Ignorance or over-much Severity which is not to be suffered And this says St. Germin the Author of that Treatise is secretly intended and understood in every general Rule of every positive Law according to what is before remembred in this Discourse out of the Case of Eyston and Studde in Plowd Comment and what is said by the Author of Doctor and Student pag. 27. Laws says he covet to be ruled by Equity which is not meant meerly to be done in another Court Proceeding by Equity but by an equitable Construction of the Law in the Court of the Common Law as appears pag. 28. b. the latter end of that Chap. And those Equitable Constructions are there called Reasonable Exceptions of the Law and hold as well in Cases at Common Law as upon Statutes as appears by the Case there put at Common Law pag. 29. Cap. 17. and on the b. side of that page in medio it is said the Parties shall be relieved in the same Court and by the Common Law Plowd 88. b. 205. b. Thus in the Exposition of a Statute Judges depart from the words of the Law rather than run into an absurdity or inconvenience by a too literal Exposition as in the Case upon the Stat. of Marlbr concerning Distresses The Judges Hill 30. E. 3. gave Judgment against the express words of that Stat. tho the words were in the Negative too as is observed in the argument of Reniger and Fogassa's Case In Plowd Comment fol. 9. b. and it is a Rule in the exposition of Statutes many times to depart from the words to meet with the mind of the Law-makers whose intent as it must be presum'd is to do no Man wrong See in the same Case in Plowd fo 10. and in the same Book fol. 57. b. 199. b. 203. Laws expounded not only different from the words but contrary to them rather than do any Man wrong Such sence is to be made of the words of an Act of Parliament as may best stand with reason and equity and which most avoids rigour and mischief Plowd 364. a. in the Case of Stowell against the Lord Zouch It is spoken there by one or more of the Judges Some Cases by necessity in Construction are to be excepted out of a Stat. 2 Instit. 25. Many Cases may be within the Letter yet not within the meaning of an Act 2 Instit. 107. in Principio 110 111. and general words of a Stat. may be restrained by Construction 2 Instit. 502. and the Exposition of Statutes belongs to the Judges of the Common Law 2 Instit. 618. Hill 13 Jac. 1. in the King's-Bench Vaudry and Pannell's Case Rolles's Rep. first part 331. It is there said that if a Court of Equity made a false Sentence it may be revers'd by the King that is by his Commission for Mic. 42 43 Eliz. in a Suit in Chancery by the Countess of Southampton against the Lord of Worcester and others for the Mannor of Henningham It was resolv'd by all the Justices under their hands which is now in the Chancery That when a Decree is made in the Chancery upon a Petition to the Queen she may refer it to the Justices but not to any others to examine and to reverse it if there be Cause and the Lord Chancellor agreed to this Resolve and upon such a Petition and Reference the Decree made in that Case in Chancery was revers'd by the Justices This was in time before any Contest between the Two Jurisdictions viz. in Queen Elizabeths time and before the Judges were look'd upon as not indifferent It appears 3 H. 5. Nu. 46. That the Commons in a Petition complain That many were grieved by Writs which were called Writs of Sub-Paena which they say were not used till the time of the last King Richard That John de Waltham Bishop of Salisb. of his Subtilty invented and began such Novelty against the Common Law and that they proceeded upon those Writs according to the Civil Law in Subversion of the Common Law and they pray That an Action of Debt of Forty pounds may lye against such See the Record at large Roll. Abr. first part 371. too briefly Abridged by Sir Robert Cotton This is of the Nature of a Presentment by the Commons of England the Grand Jury of the Nation and it doth invincibly prove and testifie the time when this Jurisdiction was first set up in Chancery for the Writ of Sub-Paena is the first Process of that Court in Cases of Equity and 't is call'd a Novelty and Names the first Inventer John de Waltham who was Keeper of the Rolls in the time of King