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cause_n	bishop_n	church_n	rome_n	6,168	5	7.0527	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26141	An enquiry into the jurisdiction of the Chancery in causes of equity ... humbly submitted to the consideration of the House of Lords, to whom it belongeth to keep the inferiour courts within their bounds / by Sir Robert Atkyns, Knight ... ; to which is added, The case of the said Sir Robert Atkyns upon his appeal against a decree obtained by Mrs. Elizabeth Took and others, plaintiffs in Chancery, about a separate maintenance of 200£ per annum, &c.	Atkyns, Robert, Sir, 1621-1709.	1695 (1695)	Wing A4137; ESTC R16409	49,475	54

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

R. II. which is now called Master of the Rolles but in the time of King R. II. it was look'd upon as an inferiour Office as may be observed upon the Supplication of Will. de Burstall in the 1 R. II. Ryley's Placita Parl. in the Appendix pag. 670. who stiles himself A Petit Clerk Keeper of the Rolles of the Chancery and prays his Patent may be confirm'd by Parliament as a work of Charity See Sir Edw. Coke's 4 Instit. fol. 95. 96. ad finem And John de Waltham was Burstall's immediate Successor This also speaks the mighty growth of that Court this petit Clerk now takes place of the Chief Justice of the Common Pleas. Let us hear the Judgment of an ingenious Writer and a worthy Person Mr. Hunt before mentioned in his printed Argument for the Bishop's Right in Judging Capital Causes in Parliament pag. 144. One may wonder says he That there is nothing in Antiquity that gives Authority to so celebrated and busie a Court as the Chancery at this day is none can be able to Cope with it but the highest and Supream Sovereign Power he means I suppose the last Resort the Lords and it is the proper work and care of that Court and to that Court only is this address made It occasions says Mr. Hunt a multitude of Suits tedious in delay The Expences many times equal sometimes exceeds the Value of the Right in dispute and that which is worse the Event is very uncertain That Court says he had its Rise from Feofments made upon Trust to avoid Forfeiture to the Crown in times of Civil War between the Two Houses of York and Lancaster 21 E. 4. fo 23. Bro. Abr. Tit. Conscience plac 21. by Fairfax It encreased from the Nicety of Pleadings especially in Actions upon the Case in the Common Law Courts and from the Potency of the Chancellor who commonly made and unmade says he the Twelve Judges If we may give due respect and credit to learned Sir Edward Coke and to the Resolutions of many Reverend Judges in several Cases in several Kings and Queens Reigns and allow them to interpret Acts of Parliament to whom out of all doubt it does peculiarly belong We may conclude That upon such Proceedings in Equity for matters tryable by a Jury and especially where a Freehold is concern'd and where if there be a right there is an ordinary Remedy for it I say upon such Proceedings be they in the King's Courts Ecclesiastical or Temporal or in a Court of Equity not only a Prohibition will lye to the highest of those Courts to forbid them but a Praemunire also will lie to punish them severely be they never so high because it brings matters tryable at the Common Law and of Freehold and Inheritance ad aliud Examen and to be discussed per aliam Legem as says Sir Edw. Coke's 3 Instit. fol. 121. in the middle of that fol. in the Chapt. of Praemunire and the very Statutes made in those Cases are Prohibitions in themselves If it were thought convenient by the Supream Legislature to have any such Power exercised in an ordinary and constant use of it possibly it might better be deposited in the hands of the Judges of the ordinary Courts of the Common Law whatever Sir Francis Bacon says to the contrary in his Advancement of Learning which has been successfully experimented as in the late Court of Wards mixed of Law and Equity and in the Court of Exchequer where matter of Equity by the Stat. of 33 H. VIII C. 39. is allowed to be pleaded in the same Court and Office among the Latine Proceedings But neither of these Courts ventur'd upon such a Course no not to proceed in a Course of Equity by English Bill till enabled to do so by Act of Parliament tho some have been of Opinion that the Exchequer had such an Equitable Jurisdiction by Prescription And it is a thing to be admired that after so many Courts suppressed by several Acts of Parliament as that of the Star-Chamber the Court of the Council in the Marches of Wales and others and several Courts that have very politically surceas'd the Exercise of their Jurisdiction of their own accord as not being warranted by Law as the Court of Requests c. That the Friends to the High Court of Chancery as to the Exercise of an Equitable Jurisdiction have not endeavoured to fortifie their Court with an Act of Parliament under due and reasonable Regulation especially when it once fell tho in times of Usurpation under a large Correction which tho it wanted a good Authority too yet it manifestly shews the sence of the whole Nation whom the then Usurping Powers thought it good Policy to gratifie and indulge for in pessimis temporibus as well as ex malis Moribus bonae oriuntur Leges as to the matter of them as in the short Reign of Richard III. I can appeal to that Highest Judicature the whole House of Lords who have had many years Experience of me begun about Twenty Four years since for so long ago I was their Assistant and to Thousands more with whom I have had a publick Conversation for about Fifty years and some for a shorter time that this is no new or sullen and revengeful Humour in me but proceeds from a Love to my Countrey and Gratitude to mine and my Ancestors Profession and from a desire to have my self and my own Posterity and Neighbours Free and Happy Let me observe from Mr. Hunt before cited that what he writes doth appear to be the Vulgar and Common Opinion concerning this Court of Equity for which reason I cite him It points out to us whether we are properly to resort for a Regulation that is to the Lords House and with all Submission and Reverence to that High Court be it spoken it is a Trust repos'd in them to reform this Lesser tho commonly call'd The High Court of Chancery and to keep the rest of the Courts within their due Bounds As for the Court of the King's-Bench to whom it most properly belongs to grant Prohibitions upon such occasions 2 Instit. fol. 610. Prohibitions are not of Favour but of Justice It is now grown to that pass through the length of time and disuse that the Court of King's-Bench might possibly find it Imparem Congressum unless encourag'd to it by that Supream Court of the Lord's House Observe too that this Author Mr. Hunt does concur herein with many other Testimonies when this Court of Equity had its first rise and beginning and whence it took the occasion of such a Jurisdiction viz. from the Feofments upon Trust whose beginning too we know and what the Design and purpose was of such illegal and fraudulent corrupt Feofments and Conveyances to Uses upon Trust were we shall further examine and hear the Opinion and Judgment of several Reverend Judges and divers Writers besides upon that Subject before the close of this Discourse of which much

Statutes were made but to no very great purpose for means were found out to evade them At last came forth the Stat. of 27 H. 8. cap. 10. and this undertook and plainly so intended to pluck up this unwholsome Weed by the Roots Which good Law first reciting the excellent quiet and repose that Men's Estates had by the wholsome Rules of the Common Law but cunning Men had sought out new Inventions by fraudulent Feofments and Conveyances craftily made to secret Uses and Trusts to the utter subversion of the ancient Common Laws of this Realm as the Preamble speaks for the utter EXTIRPATING and EXTINGUISHMENT of all such subtil practis'd Feofments Abuses and Errors It is Enacted That the Possession of the Land shall be in him that hath the Use and that he shall have the like Estate in the Land as he had in the Use. How strangely hath all this good Intention Pains and Care been made of little or no effect and the mischiefs still continued by a distinction invested between Trusts and Uses directly against the often repeated Clauses and manifest plain meaning and express words of this good Act For thô the Judges of the Common Law were now by this Act to judge of Uses which before was the work of the Chancery they being now converted by this Act into Estates at Law Yet some Men perfectly to elude this good Act have confidently maintain'd asserted and allow'd a distinction between an Use and a Trust. And thô they are content because they cannot help it that the Judges of the Common Law may determine of Uses the Courts of Equity shall hold a Jurisdiction in matters of Trust. And most of the great Estates in England have by colour of this fallen under their determination and controulment and now have a dependence upon a Jurisdiction of Equity Whereas Were there the least colour left by that Act of 27. H. 8. for any distinction between an Use and a Trust as most certainly and plainly there is none yet as certainly and clearly that Act of Parliament meant to extirpate those Trusts as well as Uses as any ordinary Capacity well perusing that Statute to this purpose may easily perceive I humbly and heartily beg that favour of every Lord to read over deliberately this Stat. of 27 H. 8. cap. 10. for this very purpose for it will plainly discover this gross abuse As to the length of time wherein such a Power and Jurisdiction of Equity hath been exercised in the Chancery yet it plainly appears not to be grounded upon Prescription the Original being known and not so very ancient neither and modest too and moderate at first as most such are in the beginning and having from the first starting of it been hunted and pursued with full Cry and upon a fresh Scent and in view and having hardly any Colour of an Act of Parliament That length of time were it much longer would be no Plea for it See Dr. Barrow in his Treatise of the Pope's Supremacy pag. 154. He that has no right says he to the thing that he possesses cannot plead any length of time to make his possession lawful King Henry VIII by Acts of Parliament restored the Regal Ecclesiastical Sovereignty after it had been usurp'd upon by the Popes and their Prelates near 400 years that is from the time of William the Conquerour For then began their Encroachment And the Act of Parliament of 1 E. 6. C. 2. Sect. 3. calls it a power that had been Usurp'd by the Bishop of Rome contrary to the Form and Order of the Common Law used in this Realm in high derogation to the King 's Royal Prerogative from whence we may observe That Usurping upon the Common Law and Usurping upon the King's Prerogative go together The Bishops Courts here in England took their Original from a Charter of William the Conquerour so that this Jurisdiction was a great Limb lopp'd off from the Primitive Common Law of England For before that Charter of King William Ecclesiastical Causes were determin'd in the Hundred Court and not by Witnesses only and not by the Canon Law but by the Law of the Countrey But this Charter was made by advice of the Arch-Bishops Bishops Abbots Princes and Temporal Lords See Fox his Acts and Monuments Vol. 〈◊〉 Lib. 4. pag. 2●… says Mr. P●…inn in his first Tome of his Vindication of the Supream Ecclesiastical Jurisdiction of our English Kings The Charter it self says he recites that it was done Communi Concilio for which he cites Seldeni ad Eadmerum Notae pag. 167 168. So that still the old Common Law of England hath been upon the losing hand The Civilians hold that Possessor malae fidei ullo tempore non praescribit yet I heartily concur with that Reverend Chief Justice Sir Edw. Coke a most true and hearty lover of his Countrey and an high honour to and honourer of the Profession of the Common Law in his 4 Instit. 246. at the end of that folio in Respect says that Good and Great Man that this Court of Equity hath had some continuance and many Decrees made by it it were worthy of the Wisdom of a Parliament for some Establishment to be had therein and to this intent have I chiefly used this freedom for I never loved Quiet a movere but in order to a better Security And for that end I chuse to make this Humble Address to the House of Lords It is the House of Lords who are theSupreme Court of Justice that can set the true and legal Bounds and Limits to the Jurisdiction of Inferiour Courts and can say to the biggest of them Hitherto shalt thou come and no further and here shall thy proud waves be stayed And such their Judicial Declarations are not to be controul'd by any but the Legislative Power Almighty God gave a strict charge to his own chosen People of Israel to observe those Ordinances and Laws which he gave them by Moses which were very particular and wherein nothing was left to the Discretion of the Magistrate nor had the Magistrate any Latitude whereby he could depart from the plain and common sence and Judge Secundum Aequum Bonum Arbitrarily But they were commanded Deut. 4. 2. Yee shall put nothing to the word which I command you says God by Moses neither shall ye take ought therefrom and the 12 Deut. the last verse in Cases of Difficulty that might arise upon the Construction of those Ordinances and Laws a Provision is made by Almighty God that in such Cases resort should be had to the Priest and to the Judge who should declare the Sentence of Judgment This seems to refer to some special Revelation of the mind of God in such difficult Cases which God made known to the Priest that stood before the Lord to minister 17 Deut. 8 ●…2 verses but here was nothing entrusted with the Priest or Judge of relieving against the pretended rigour or extremity of the Law in