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
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
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