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A39243 The priviledges and prerogatives of the High Court of Chancery written by ... Thomas Lord Elsmere ... Egerton, Thomas, Sir, 1540?-1617. 1641 (1641) Wing E540; ESTC R11911 11,675 26

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or any other execution within or without that they c. shal forfit c. and to be put out of the Kings protection be attached c. and sue in processe of Premunire c. And against others which sue in other courts in derogation of the Kings royaltie By this it appeareth plainely that the Pope and Court of Rome continued still and proceeded further in their exorbitant usurpatiou upon the Crowne and Kings Royaltie and the common Lawes of the Kingdome So this Parliament endavoured to meete with and stand with the same namely in the particular cases which are specially mentioned viz. Concerning Iudgements given in the Kings Court in these pleas and cases and in translating of Prelates c. and in other cases attempted against the Kings Crowne and Regality But it is manifest that the intent and the scope and drift of the Parliament was onely against the Pope and Court of Rome and against those persons that persue any such Translations processe c. or other things which touch the King or against his Crown or Regality or his Realme as is aforesaid and which being notifie or execute the same within the Realme or without these be offenders which the Parliament had cause and meant to punish and it is strange and improbable that any learned Iudge of the Common Laws of England should stretch or extend the words of this Statute further then only against the usurped authority of the Pope and Church of Rome But it seemeth that some that take pleasure ludere in vorbis dormitare in sensibus and to dispute de apicibus juris equi boni ratione praetermissâ and to professe learning peritiâ literali non intelligentiâ spirituali And so are contented verba legis tenere vim legis ignorare have gone about to presse and straine the word of this Statute not onely against the Pope and Church of Rome but also against the Kings owne High Court of Chancery and other his Majesties Courts of Equitie in England grounding their opinion and conceit upon these words of the Statute If any purchase in the Court of Rome or else where any such Translations or processes or other things which touch the King And for the better understanding hereof it is to bee remembred that the Pope Court of Rome kept their Seiges and Court not at Rome onely but sometimes at Avignion sometimes at other places and divers Antipopes beeing at one and the selfe same time kept their severall seiges and Courts at severall places and yet each of them challenged and pretended to have supreame jurisdiction power and authority over and above the King and his Crown regality in the cases before remēbred And therefore it was requisite and necessarie for the King and the Parliament to withstand and provide remedy against the same And that is the true and right understanding of Ou Aylors For it is too absurd to say or imagine that the King or Parliament meant to extend the same against the Kings owne Courts of equity in England which dirived their authority and jurisdiction from him onely and heard and determined as his substitutes according to equity and conscience such cases as the Iudges of the common Law could not by the strict rules of the Common law Iudge determine These Courts and the Iudges Ministers therof the King had power to suppesse altar and punish at his pleasure and therefore against these the Lords Temporall and Commons needed not to engage themselves to stand with the King and the Crowne and to live and dye Nor the Lords Spirituall Clergie to promise to stand with the King as they were bound by their alleageance with their Cautious protestations for the ordinarie legall iuditiall proceedings the Chancery and Courts of equity according to conscience The King nor his Crowne nor Regality nor the Common Law were not in any danger but the danger was by the ambitious usurpation of the Pope and the Church of Rome and by the proceedings in the Courts holden by that usurped authority and therefore against them the Parliament provide this Statute following the example of the former Parliament 25. Ed. 3. 27. Ed. 3. and 38. Ed. 3. and those be the Courts which this Parliament the Parliament Anno 27. Ed. 3. cap. 1. noted to bee in derogation of the Kings regalitie and destruction of the Common Law but not the Kings owne Courts of equity and Conscience And for the further clearing of this doubt if it be worthy to be made a doubt how these words ou Ayllors shall be understood in the 5. Ed. 4. there is this note Nota que le statute de premunire est in Curiâ Romanâ Vel alibi lequel alibi est intendue en les Courtes del evesques illmit que sihome soite excompe en court del evesques perchose que appent all Royall Maiestie ses shose alcomen lep il aur premunire issent adiudge fith abridging that case saith that 11. Hen. 7. the opinion of the Court was so which he himselfe heard By which it appeareth that the Iudges did then understand the proceedings by the Bishops in the Spirituall Courts which was by authority derived from the Pope and Church of Rome was onely meant by the word vel alibi But not the procedings in the Kings owne Court of Chancery by authority derived from him onely in cases of equity and Conscience not remediable otherwise for that were to set the King against himselfe which is too inconvenient and absurd FINIS Bodm lib. 3. Cap. 6. p. 425 Bodm lib. 3. Cap. 6. p. 425. Mag. Chart. Cap. 9. Stat. 25. Ed. 3. Cap. 4. Stat. 28. Ed. 3. Cap. 3. Stat. 2. Ed. 3. Cap. 8. Stat. 14. Ed. 3. Cap. 14. Stat. 42. Ed. 3. cap. 3. Stat. 4. Hen. 4. Cap. 23. Vn Stat. 29. Ed. 3. cap. 1. In Casus 192. in quae vel novi lib. pradict. Cap. Bracton lib. 2. fol. 34. cap. 16. 22. Edw. 3. King Iames Bracton lib. 1. fol. 34. cap. 16. Leo Epist. 67. 94. Stat. 25. Ed. 3. Cap. 22. Note Anno 25. Edwad 3. Stat. 27. Ed. 3. Cap. 1. Stat. 16. Ric. 2. Cap. 5. An. 5. Ed. 4. 6. 9. Premunire
THE PRIVILEDGES AND PREROGATIVES of the High Court of Chancery Written by the Right HONOVRABLE Thomas Lord Elsmere late Lord Chancellour of ENGLAND LONDON Printed for Henry Sheapheard 1641. The Preface THe gravitie and discretion of the Iudge in a●tient time hath beene such as in doubtfull causes and especially for construction of Statutes they desired to conferre with the Kings Privie Councell whereof there be many examples some are cited in the Case of Post nati And this ought to be specially regarded where the authority and Iurisdiction of the Kings Court is to be brought into Dispute and question For gravius privatorum damno peccatur Cùm inter summos Magistratus Curiasuè majores de imperio certatur And in these cases the Iudges should first have private and loving Conference together before publique disputes according to the Emperour's command Alloquere illum nè rem injustam faciat NOTES AND OBSERVAtions upon the Statutes of Magna Charta cap. 9. and other Statutes concerning the proceedings in the Chancery in cases of Equitie and Conscience THe Statutes which be now urged and stood upon against the Chancery are first Magna Charta where the words be Nisi per legale iudicium parium suoz vel per legem terrae It is lex terrae that is the Iudges of the Common Law shall determine questions in Law and Pares Iurors to try matters in fact so the Chancery is to order and decree matters of Conscience and Equity which cannot be remedied by the strict rules of the common Law And the same rule serveth for understanding the Statute Anno 25. Edward 3. cap. 4. Vpon these words Sic niscit duem ent mesne en-respons soriudg d'icells per voy de lege And it appeareth the cause of making that Statute was to restraine private suggestiōs made to the King or to his Councell but not meant to take away the ordinary judiciall proceedings and hearing of Cases of conscience and equity in the Chancery Hath the same words as Magna Charta cap. 9 viz. Without being brought into answer by due processe of Law For understanding whereof that is to bee remembred that those that are sued in the Chancery are brought to another by due processe of law for cases of equity and conscience as it is per legem terrae That it shall not be commanded by the great Seale or the little Seale to disturbe or detaine common right and though such commandement doe come the Iustices shall not therefore cease to doe right in any point For the understanding of this Statute The ordinary Iudiciall proceedings by the Chancery according to conscience and equity is not any disturbance or delay of Common right But is the doing of right and Iustice in cases which the common Law cannot helpe for common right standeth not only in the strict rigour and extreamity of the Law for often summum ius oft summa injuria but rather in the doing of right according to equity and conscience And the Iudges of the common Law themselves doe almost every day extend their discretion to stay and mittigate the rigour and strictnesse of the common Law and in so doing doe well notwithstanding the strict word of their oath Declareth the law concerning writs of search and in the end of the same Statute these words viz. That by commandement of the great Seale noe Privie Seale nor point of this Statute viz. concerning Search shall be put in delay Nor that the Iustices of whatsoever place they be shall lett to do the common law by commandement which come to them under the Great Seale or Privie Seale The Common Law hath alwaies allowed the proceedings in the Chancery in cases of conscience and equity and therfore the words to doe the Common law must not be construed too precisely as thereby stop all Courts of equity for it standeth with the common law as well that equity and conscience bee ministred where the common law cannot helpe as that strict Iustice be ministred according to the common law when the common law may serve The Chancery doth not commonly send any Writ or Commandement to the Iudges under the great Seale cōmanding them to stay to do Iustice but awardeth Iniunction to the parties that seeke to have the advantage of the strictnesse of the common law against equity and conscience neverthelesse there be plentiful examples that Writs of super sedeas under the great Seale have beene directed to the Iudges in diverse speciall causes and have in all times untill of late beene dutifully obeyed as in cases of priviledge and to stay their proceedings Reges in consulto and divers others c. Also it is to bee remembred that many Iudges of the common Law have complayned and sued for remedy in the Chancery and have beene sued and answered there and obeyed the orders of that Court in cases of equitie and conscience which could not bee relieved by the Common law This Statute is persuing two former Stat. one 37. Edward 3. cap. 18. which giveth paenam Talionis against those which make false suggestions to the King the other 38. Edward 3. cap. 9. which confirmeth the former statute in all things saving pro paena Talionis And this 42. Edward 3. explayneth the two former and provideth that the people be not greived by false accusers which doe often times make their accusements more for vengeance and singular profits then for the profits of the King and his people and therefore ordaineth that none bee put to answer which is to bee intended upon such accusation and false suggestions without 1. presentment before Iustices or 2. matters of Record 3 by due processe or 4. by Writ originall according to the onely law of the land In this Statute the intent is to bee considered first to explaine the second former statute Anno 27. Edw. 3. and Anno 38. Edw. 3. as is before noted 2. that the antient law of the land bee observe that is That for matters determinable by the common law none bee put to answer but by presentments or matters of Record or by originall Writt or by due processe But therein is not meant that the ordinarie iudiciall proceedings in the Chancery in matters of equity and conscience not being remediable by the Statutes of the common law should be taken away or restrained But that in such cases they may proceede against parties called in by due processe for that is according to the antient law of the land So the practise and experience hath beene ever since which is the true and certaine interpretation of that Statute and of all other Statutes The words be these Whereas as well in plea Reall or as in plea personall after Iudgement given in the Courts of our Soveraigne Lord the King the parties be made to come upon greivous paines some time before the Kings Councell sometime in the Parliament to answer therof anew to the impoverishment of