cites a Case there Mich. 43. Elliz. in the Chancery between the Countess of Southampton and the Lord of Worcester Resolv'd by all the Judges That when a Decree is made in Chancery the Queen upon a Petition may referr it to the Judges but not to any other and so says that case the practice and proceedings have been which make a Law in cases of Equity and the Lord Chancellor agreed to it the Lord Egerton and accordingly upon Petition to the Queen and a Reference by the Queen to the Judges that Decree was Revers'd The like we may read in Andersons's Second Reports Fol. 163. The Earl of Worcester and Sir Finche's Case the same with that of the Countess of Southampton and Bulstrode's Third Part Fol. 118. See Serjeant Rolles's Abridgment the First Part Fol. 382. Ruswell and Every's Case 15 Iac. 1. and Arden and Darcy's Case 8 Iac. 1.27 H. 8. Fol. 15. But as to the Remedy against an Erroneous Decree in Chancery I have already given my advice at large in that former Treatise of mine before-mention'd to which I refer my Reader It is high time that it should be settled in some constant course The Noble Author suppos'd as I said before to be the late Lord Hollis in his Book beforemention'd hath asserted a very large Jurisdiction to belong to the House of Peers which in the consequence if it be observ'd and put in practice will be of mighty concernment to the Subjects Nor hath it been answer'd or taken notice of by any as far as I have heard That Author ascribes to the Lords a power to try and determine a matter of Fact in issue although the Right of a Freehold depend upon it and this by Proofs without a Jury pag. 66. and this he grounds upon the Precedent of the case of William Paynel the Record whereof is in Ryley's Placita Parliamentaria Fol. 231. What then becomes of that great privilege of the people of England of being tried by the Country and by their Neighbours and inferior Courts of Equity will be very apt to tread in their steps and do the like and it deserves to be enquir'd into if it be not already frequently so done The Lords will not be likely to reform it upon Appeal from these Courts of Equity if that should be assign'd for Error if they themselves should practice it as this Author says they may Nor does that Precedent of William Paynell any way countenance that practice for there the Concilium Regis gave Judgment upon Matter of Fact confess'd where there needed no trial at all The same Noble Author affirms That the Lords may entertain or dismiss Causes as their occasions will give them leave or as they have leisure from the greater affairs of the Kingdom so that sometimes they cannot be at leisure to do Justice If this Opinion be allow'd Cessa regnare says the Petitioner to King Philip of Macedon when that King refus'd to answer her Petition for want of leisure The Lords can says the same Author grant a temporary dismission to a Defendant by an Entry made of Eat inde sine die ad praesens but may Summon him again for the same Cause at another time when they think fit If this be true a man shall never know when his Cause is at an end nay the Chancery will give further costs after the Parties and Cause are out of the Court and long after the whole matter is at end without any new process The persons of whom this high Judicature doth consist had need be men of great Learning in the Law and of long Experience For the matters that should come before them are such as are too difficult for the inferior Courts to determine and are very abstruse and yet those inferior Courts are generally furnish'd with such as are of great Abilities and long Experience and usually spend Thirty or Forty years in hard study to make them fit for the discharge of their Offices Be Learned ye that are Iudges of the Earth says Almighty God that Judge of Judges Hence Governors are wont to be called Senators and in the time of the Saxons they were called Eoldermen or Eldermen for their Age Gravity and Experience It would indeed be a Miracle in Nature if any one could truly affirm of himself Me jam jam à puero illicò nasci Senem or nasci Iudicem to be able to judge in those abstruse and difficult Causes St. Paul being accus'd before Faelix did and that without insinuating flattery tell his Judge That he did the more cheerfully answer for himself because Faelix had been as St. Paul acknowledg'd of many years a Judge unto that Nation And he said the like when he stood before King Agrippa because he knew him Expert And it is a just and commendable course always practis'd in all our inferior Courts That after a Cause hath been pleaded that both Parties and Council and Witnesses and all others that will are permitted to be present and to hear the Repeating and opening and true stating the Case by the Bench and Court and to hear the Debate of it to observe and be in a readiness to rectify any misapprehension or mistake if any happen and so to set the Court right again As also that the grounds and reasons of the Opinions of the Judges may be known that the People may the better know thereafter how to square their actions And that the Law may be the better known to those that are subject to it For there ought to be one certain known Rule of Law whereby one and the same Case is to be determined and not two or more contradictory Laws in one and the same place It was a woful condition when at the same time some were burnt in Smithfield for being Protestants and others for being Papists which made one cry out Bone Deus quomodo hic vivunt c. Inferior Courts and the Superior must judge by the same Law and Rule for Misera est Servitus ubi jus est vagum And it is impossible to serve two contrary Masters and it is a sad case where the Trumpet of the Law gives an uncertain sound for then a man knows not how to order his affairs There may indeed be a different Method and Course of Proceedings in the several Courts and yet all conform to the same Law And it is sometimes said by our Judges that what is Law in the Exchequer is Law also in the King's-Bench and Common-Pleas If it were otherwise great Confusion would arise And this Law is not known by Inspiration it is not infus'd all at once but acquir'd by long Study and long Experience Sir Francis Bacon in his Advancement of Learning pag. 445. holds it just that Judges should alledge the reasons of their Sentence and that openly in the Audience of all the Court. And anciently amongst us in England the Courts used to enter the reasons given by the Judges upon the Record of the Judgment which is now suppli'd in some measure by Reports of Cases adjudg'd and of the Arguments at Bar and at Bench. But we have few or no Reports of Cases adjudg'd in the Supreme Court since those that are printed by Mr. Ryley In that ancient Cause of Adelwold Bishop of Winchester in the Saxon times under King Eldred the Record mentions that the Bishop himself Coram cunctis suam causam patefecit He pleaded his Cause himself Qua Rebenè ritè ac Apertè ab Omnibus discussa it was openly debated Omnes reddiderunt Iudicium This was at the Miccel-Gemot there was no withdrawing And Eadmerus gives us the like Instance in the Cause of Lanfrank Archbishop of Canterbury in the time of King William the First 't is in his Historiae Novorum pag. 9. Adunatis says he Primoribus Probis viris de Comitatibus quaerelae Lanfranci in Medium ducerentur examinarentur determinarentur In medium that is before or in the midst of all that vast Company To Conclude and in order to the obtaining a safe and speedy remedy let our Law makers be mindful of that old Advice and Caution viz. Serò Medecina paratur Cum Mala per long as invaluêre moras FINIS Hadelow's Case Note Note An. Dom. 1624. Note
way upon the opening of them how properly truly and naturally these Observations result and are made out some by one Precedent and Author and some by another which otherwise by an hasty reading might possibly escape the being observ'd It will not be altogether impertinent by the way to take notice of the temper and usage amongst the Ancient Britons before the coming of the Romans testified by our most credible Authors which seem to have a countenance this way viz. of translating all publick Affairs by the body of the Freeholders And that it may appear that this humour of the Nation was as we use to say bred in the bone Although they seldom or never had any National Assemblies as before hath been observ'd unless upon some great and extraordinary sudden occasion like that of chusing Cassibilan for their General upon the Invasion by the Romans or the like which was but temporary Tacitus the Roman Annalist says of the Ancient Britons De Minoribus rebus Principes consultant De Majoribus Omnes Ita tamèn ut ed quóque quorum penes plebem arbitrium est apud Principes praetractentur Note Principes here signifies not Princes or Monarchs but the great or chief men as will appear by what follows The Plebs or common sort were not excluded whenever they did consult or transact any publick Affairs Ziphilinus out of Dio Cassius speaking of the Britons Apud hos says he Populus magnâ ex parte Principatum tenet This is not meant of the power of Government as if they were a Republick or had any thing of a Democracy for Caesar in his Commentaries tells us that the Old and Primitive Government amongst the Britons as to the Title and outward Form of the Administration was Monarchial and Regal Olim Regibus parebant says he But it must therefore be understood that the People had this Principatum in Subordination to the Kings It was not Engross'd into the hands of an Aristocracy and what can Principatus else consist of unless in Legislature and Judicature Our late Innovators would have us believe that Populus doth sometimes signify only the Lay-Lords met in these Ancient great Assemblies in distinction only from the Clergy as when our Annals or Records mention Clerus Populus as they often do it is not say they to be understood as if the Common people met but only those of the higher Rank the Lords or Nobility Therefore I have cited Tacitus who speaks of the Plebs or Plebeians who used to meet to consult of the greatest Matters De Majoribus Omnes consultant as before was observ'd Omnes comprehends the Plebeians and excludes none But under their favour Populus does most usually signify All but the highest Rank and is exclusive to them only though sometimes by way of distinction from the Prince or Clergy Thus in that old lofty Title of the Roman Republick Senatus Populùsque Romanus where the word Populus is exclusive of the Senate and distinct from it Thus Learned Vinius the Civilian in his Commentaries upon the Imperial Laws Page 12. says Plebs à Populo dissert Nam appellatione Populi Universi Cives significantur Connumeratis etiam Patriciis Senatoribus Plebis autem appellatione sine Patriciis Senatoribus caeteri cives significantur but in no Author till among these new Writers of ours does Populus signify the Lords or Patricians exclusive to the middle or common sort as they would have it To come to the times of the Saxons who next succeeded the Romans even in the time of the Heptarchy We have one Instance or Precedent in the time of Ina King of the West-Saxons which was the most Powerful of all the Seven and at last swallowed up all the rest Lambert in his Book De Priscis Anglorum legibus Fol. 1 mo beginning with King Ina Anno 712. says He made his Laws suasu Instituto Episcoporum suorum Omnium Senatorum suorum Et Natu Majorum Sapientum Populi sui in Magna servorum Dei frequentia Brampton the Historian as Mr. Selden cites him renders it Multáque Congregatione servorum Dei and Lambert again Fol. 62. says King Edgar Anno 959. who was one of the English Monarchs after the time of the Heptarchy gave his Title to his Laws thus viz. Leges quas Rex Edgarus frequenti Senatu Sancivit and afterwards Fol. 148. in a remembrance and recital of some of King Ina's Laws it is said Hoc factum fuit per Commune Concilium assensum Omnium Episcoporum Principum Procerum Comitum no word of Baronum for they were not in being till afterwards in the time of the Normans But the title of King Ina's Laws goes on and says further Et Omnium Sapientum Seniorium Populorum totius Regni that is in English The Common-Council of the whole Nation was made up of all these and but One Body In the time of King Etheluph King of West-Sex there was a great Assembly or Parliament says Mr. Selden held at Winchester Anno 855. now above 800 years since Where were present the Archbishop but one Bishops and Ducum Comitum Procerúmque totius terrae aliorúmque fidelium Infinita Multitudo for which he cites Ingulphus This was at that time the Supreme Judicature and the last Resort There was a Proceeding in a Civil Cause before their Supreme Court or Witena-Gemot under King Eldred Son to King Edgar who began his Reign says Dr. Heylin Anno 978. one Leoffius had bought Land of Adelwold Bishop of Winchester and denied to pay for it And he had also dis-seis'd the Bishop of certain other Lands Edicitur placitum apud Londoniam where the Duces Principes Satrapae ex omni parte confluerant which word Satrapae extends to the middle sort as I shall show by and by The Bishop corà m cunctis suam causam patefecit he opened and pleaded his own Cause before them all Quâ rè benè ritè ac apertè ab omnibus discussa not commanding the Parties and Auditors to withdraw while it was debated by the Court Omnes reddiderunt Iudicium on the Bishop's side This Case is also mention'd by Mr. Selden in his Titles of Honour Page 633. One case more that I shall trouble the Reader with of the Saxon times shall be that of Earl Godwin in the time of Edward the Confessor Seld. ib. 634. There the King himself in his own person did Sue an Appeal of Murder against Earl Godwin for the death of Alfred The Witena-Gemote sate at London and the Cause was heard before Omnes Regni Magnates where the word Magnates comprehended also persons of the middle sort as well as those of the highest Rank as I shall clearly prove but the matter was compounded and twelve Earls bought it off with as much Money as Each of them could carry to the King in their Arms. Note this was in the time of a Saint King too viz. St. Edward I come now to the times
or Persons imploy'd under the Freeholders and the Copyholders did truly and literally hold their Lands at first ad voluntatem domini till time gave it the Reputation of a Legal Custom and to a more durable interest and Leases for above 40 years were not allow'd in those ancient times but adjudg'd and held to be void as vying in value with Inheritance but they have of later times been countenanced by Courts of Equity and made equal in esteem with Freehold Estates and Inheritances being altogether under the Rule and Government of those Courts and having their dependance upon the decrees of those Courts and have the same privileges and favours with Inheritances under the new notion of being by their decrees made to wait upon the Inheritances and subject to Trusts which those Courts take upon them to have the Controulment of and hereby the Freehold and Inheritance of Lands are of little regard and value in comparison of those high powers and privileges which by the Law and Original Institution of the Nation did at first belong to them All this tends to the great Subversion of the Common-Law and of the very Constitution of the Nation and to all the good Rules and Orders of it and in length of time if not before remedied will bring all Estates in Land to depend upon Decrees in Equity and to be Ruled by their Arbitrary Proceedings and then farewel to the Common-Law And these Freeholders who were but the offspring of those Ancient Tenants in Capite are by the Common-Law the true and right Owners and Proprietors of the Kingdom And accordingly as in them was the true value stable firm and fixed interest of the Nation so in them did the Law place the Power and Government under the King who was always the Supreme in the Administration Hence it is that a Trial by Freeholders is in the Sense and Language of the Law a Trial per patriam for they are indeed the Country and the Country is truly theirs And it is a mighty power if we Enquire into it and much of it still remains though it has been exceedingly abated and humbled by the swelling of Equity and by certain Acts of Parliament made in troublesome Reigns yet there are some remains and the marks and footsteps of those many and great benefits that are lopp'd and pared off from it These Tenants in Capite and Freeholders were the Persons who under our Kings made up the Primitive Constitution of our Government both as to the Legislature and the Supreme Judicature or last Resort though now those powers run in a new Channel I shall instance in some of those Ancient and Inherent Rights and Freedoms which those Freeholders or Tenants in Capite did enjoy at the Common-Law and in the times of the Saxons and from times as Ancient as any Records do reach till by several Acts of Parliament made for the most part in unquiet times they were depriv'd of them Which will best discover the true and original Constitution of the Government and give great light to the matter we have now in hand viz. to find out the Supreme Judicature Almost all the Suits and Causes that did arise in the Nation came under the hands and power of the Freeholders ad primam instantiam at the first rise of them and they judged of them both as to matters of Fact and points in Law in the Country And then the greater and weightier matters of the Law met the same persons again at the last Resort of all Causes in the Witena-Gemots For these Freeholders made up the main body of those Common-Councils and great Assemblies Sir Hen. Spelman in his Glossary Fol. 70. speaking of the Magnates and Proceres explains who were meant by those high terms that is the good Freeholders And he shows likewise what Judicial power they had in those first times Magnates and Proceres were they Qui in Curiis praesunt Comitatuum hoc est Ipsarum Curiarum Iudices quos Henricus primus the Son of the Conqueror legum suarum cap. 30. esse libere tenentes Comitatus demonstrat Regis Iudices inquit sunt Barones Comitatus qui liberas in eis terras habent There are the Persons and Judges viz. Freeholders Per quos debent Causae Singulorum alternâ prosecutione tractari There you have their Power and Jurisdiction Among the Laws of King Henry the First c. 7. Collected by Mr. Lambert de priscis c. Fol. 180. The Title of the Law is De generalibus placitis Comitatuum quo modo vel quando fieri debeant Sicut antiqua fuerat institutione formatum generalia Comitatuum placita certis locis diffinito tempore convenire debent Nec ullis ultra fatigationibus agitari nisi propria Regis Necessitas vel Commune Regni Commodum saepius adjiciat Intersint autem Episcopi Comites Vice-domini Vicarii Centenarii Aldermanni praefecti praepositi Barones Vavasores Tungrevii caeteri Terrarum Domini These were the Judges of the Court. Then for the Extent of their Jurisdiction and the Universality of the Causes it proceeds thus viz. Agantur primò Verae Christianitatis Iura now termed Ecclesiastical Causes Secundò Regis placita Pleas of the Crown or Criminal Postremo Causae singulorum between party and party And in the time of the Saxons who first introduced this Course and Method of Justice Suitors were not permitted to pass by this first Application and Address before the Barones or Freeholders whom now we call Free-suitors at the Country-Court and per Saltum to begin at the Courts of Westminster or to follow the King 's Lambert de priscis c. Fol. 62. It is amongst the Laws quas Edgarus Anno 959. frequenti Senatu sancivit Fol. 63. Nemo in litem Regem appellato nisi quidem domi justitiam impetrare non poterit Sin summo jure urgeatur if he meet with hard measure in the Country ad Regem provocato that is to the King in his highest Court. Then was me proper time of Appealing to the King in his great Council as it is said in that Magnum placitum in Ryley's Placita Parliamentaria Page 84. between Humphrey de Bohun Earl of Hereford and Gilbert de Clare Earl of Gloucester and they are the very words of the Judgment in that Case Dominus Rex est omnibus singulis subditis suis Iustitiae debiton But the King alone in his own Person never Administred Justice or Equity but together with his great Court or by his Delegates the Judges in inferior Courts as I have fully prov'd in my Treatife of the Chancery These great Freeholders or Tenants de Rege in Capite as they were and still are the Judges of the County-Court which in Ancient times was the most busy Court so they had by the Common-Law and from time as far as any Record or English History does reach that mighty freedom of chusing all both Civil and Military Officers or Magistrates under whom they lived They