the Plea of the Defendant in Chancery was good And that the Lord Chancellor ought not to Examine the matter in Equity after the Judgment at the Common Law For thô he would not Examine the Judgment yet he would by Decree take away the Effect of the Judgment And it is there said That the Precedents produced in the times of H. 8. and E. 6. were grounded upon the sole Opinion of the Lord Chancellor and passed Sub Silentio And that no Precedent nor Prescription could prevail against the Statutes of the Realm Thereupon this being certified to the Queen the Plea stood for a good Plea Note The Twelve Judges are the most proper Expounders of Statutes see the 2 Instit. fol. 611. in the answer to the 16th Objection made by the Bishops and Clergy where all the Judges do affirm That they never heard it excepted to before the time of King James I. that any Statute should be expounded by any other than by the Judges of the Law and fol. 618. in the answer of the Judges to the last Objection of the Bishops it is truly said by all the Judges of that time also That if the Twelve Judges Err in Judgment it cannot otherwise be reformed not by the Chancellor nor by the Bishops but Judicially by the Parliament the Superiour Court not by the Council Table neither They further resolv'd That the Interpretation of all Statutes that concern the Clergy being parcel of the Laws of the Realm do belong to the Judges of the Common Law yet this was a Contest about Jurisdiction P. 11. Jac. in the King's-Bench Crok Jac fol. 343. Courtney versus Glanvil The Plaintiff had a Decree against the Defendant Glanvil after Glanvil had obtain'd a Judgment at the Common Law by Confession and Glanvil was imprison'd by the Chancery for not obeying the Decree It is said by Cok. Ch. Just. That the Decree and Imprisonment was Unlawful being after Judgment and that the King's-Bench upon an Habeas Corpus ought to Relieve Glanvil The same Case is reported by Sergeant Rolles in his 1 st Rep. Mich. 12. Jac. fol. 111. and Coke said While I have this Coif on my Head I will not allow it Hill 11. Crok Jac. fol. 335. in the K. B. Heath and Ridley's Case It is said by the Court That by the Statutes of 27 E. 3. cap. 1. 4 H 4. cap. 23. After Judgment given in Curia Domini Regis be it in Plea Real not Royal or Personal it ought not to be avoided but by Errour or Attaint And in the same term it was delivered for a general Maxim in Law That if any Court of Equity doth intermeddle with any Matters properly Triable at the Common Law or which concern Freehold they are to be Prohibited Mich. 12. Jac. in the K. B. Roll. 1 Rep. fol. 71. Wright versus Fowler It was order'd by that Court That Cause should be shown why a Prohibition should not be granted to the dutchy-Dutchy-Court for Proceeding upon a Bill in Equity after Judgment thereupon the Plaintiff in Equity relinquish'd his Bill Mich. â—…13 Jac. K. B. Rolles 1 Rep. fo 252. Coats and Suckerman against Sir Hen. Warner George Crook prayed a Prohibition to the Dutchy for Examining a matter after Judgment in the King's-Bench by Coke Crook Doderidge and Haughton It is said We are resolved that no Court of Equity may meddle after Judgment and a Prohibition was granted It is further said That a Prohibition may be granted by the King's-Bench to the Common Pleas or Exchequer and so of all the Courts of Westminster-Hall if they hold Plea against an Act of Parliament or against the Common Law Mich. 16. Car. 〈◊〉 in the K. B. Crok Car. 1. fol. 595. Calmadies Case A Prohibition was granted against the Court of Requests for proceeding in Equity after a Judgment given in the King's-Bench And the Court Resolv'd That so they would always do whenever any Exhibited Bills there after Verdict and Judgment And the Case of Austin versus Brereton is there cited which was 40 Eliz Austin obtained Judgment in the King's-Bench the Defendant Brereton Sued in the Court of Requests to be Relieved and the Plaintiff at Law was Committed by the Court of Requests and was Bail'd by the King's-Bench and Sir Tho. Gawdy one of the Judges was convened before the Queen for it yet it was held good and Brereton was enforced to satisfie the Judgment Mich. 7. Car. 2. 1655. in the Exchequer Sir Tho. Hardres Rep. fol. 23. Morel versus Douglas The Bill in Equity was to be Relieved against a Judgment by Nihil dicit upon a Bond for the Money was paid There was a Demurrer to the Bill upon the Stat. of 4 H. 4. and the Court allowed the Demurrer There the Case of Langham and Limbrey is cited where the same point was Ruled by the House of Lords by advice of all the Judges the Judgment was for no less than 18000 l. in an Action of Covenant Trin. 1658. In the Exchequer Sir Hardres's Rep. fol. 121. Harris versus Colliton The Defendant had Judgment at Law against the Plaintiff in Equity for Rent of an House The Plaintiff in Equity Harris Exhibited a Bill in Equity to be Reliev'd against that Judgment Suggesting that the House was Demolish'd in the War so that he could make no Profit The Defendant in Equity Colliton sets forth the Stat. of 4 H. 4. and Demur'd to the Bill Finch afterwards Lord Chancellor argued for the Defendant Colliton to maintain the Demurrer As to the Precedents he answers That a 1000 of them will not change the Law and many of them passed Sub silentio or upon the sole Opinion of the Chancellor who is willing to enlarge his own Jurisdiction this was plainly and stoutly said He further held That there were no regular Proceedings in Equity till of late times for Parliaments ought to have been once or twice a year to redress such Grievances Stephens who argued for the Plaintiff in Equity held That the Statute of 4 H. 4. did not extend to the Chancery because the Jurisdiction in Equity of the Chancery was not in being at the making of that Statute and therefore it could not be restrained by it Bigland for the Defendant That the Statute of 27 E. 3. cap. 1. of Praemunire did not extend to a Suit in Chancery because the Chancery was not a Court of Equity at the making of that Stat. and Lambert who was a Master of the Chancery in his time is cited to prove it And 't is there said That the Chancellor TOOK NtOT UPON HIM ex Officio to determine matters in Equiâ—…y till Edw. IVth's time Saunders afterwards Chief Justice of the King's-Bench of Council for the Plaintiff at Law grants it to be true that at the making of the Statute of 27 E. 3. there were no Proceedings in Equity in Chancery but that the words or in any other Court will extend to any Courts that then were
Law I desire that both these Authorities last cited may be compared together viz. Sir Cotton's Abr. and Sir Coke's 2 Instit. 553. the one gives light to the other Juncta juvant This Instructs us in the method of Proceedings in Equity used in the time of King R. II. and most likely in the times preceding Not to the Chancellor alone but to the King himself to be referr'd to the Councel And the Case of Sir Richard le Scrope was in a matter where there was remedy at Law so that they were out of their way in Petitioning to the King in it and therefore the Decree was revers'd by the Lords in Parliament before whom the Appeal did properly lye nor would the Lords themselves determine it upon the Merits of the Cause viz. who had the right but referred the Parties to the Common Law to the right course and yet it was a Decree made by the Submission of all Parties to the Arbitration So ready were the Lords at that time to do right to the Common Law Sir Edward Coke says this was the first Decree made by the Chancellor in the Chancery who did as it seems in limine titubare stumble at the very Threshold which some say is ominous The Proceedings in this Case of Sir Richard le Scrope was as I find when Thomas Arundel Bishop of Ely and afterwards Archbishop of Canterbury was Chancellor who no doubt did much influence the King and Council in making the Decree They have been Churchmen and divers of them of the highest rank Cardinals who are upon good ground supposed to be the first Setters up and promoters of this absolute Power in Chancery the Chancellors generally in those elder times being of the Order of the Clergy And they began as is usual in beginnings with great modesty and to exercise their Power in some few Cases which failed of ordinary help and when Parliaments were not so frequent as formerly to whom recourse should have been and who would have censured such assuming of new Jurisdictions as they afterwards very frequently did And the Setters up of this new Jurisdiction would not at first adventure to do it by One single Person alone tho never so high but with the Concurrence of the Judges and they too not sent for into the Chancery to attend and assist the Chancellor but those new Cases of Equity were sent into the Exchequer Chamber where the Chancellor himself resorted to the Judges with their Causes in Equity and these are many of them reported in our Year-Books of those times And those Causes were constantly determin'd by the opinion of the Judges and this method took off the Judges whose Superiour the Chancellor was in Dignity and Grandeur from opposing that new Jurisdiction by granting Prohibitions to stop the Proceedings of the Chancery in such Cases as it was their Duty to have done See Mr. Selden's Notes upon Fleta How the Clergy who anciently had their Sole dependence upon the Bishop of Rome and held themselves not Subject to the Temporal Power still promoted and endeavoured to introduce the Civil Law into this Realm but yet were still withstood by the Lords and Commons who were always hearty Friends to the Common Law Sir Coke's 2 Instit. fol. 626. at the end of that folio it is said in the Indictment against Cardinal Wolsey and charged upon him that he intended Antiquissimas Angliae Leges penitùs subvertere enervare Universumque hoc Regnum Angliae ejusdem regni populum Legibus Imperialibus vulgò dictis Legibus Civilibus earundem Legum canonibus imperpetuum Subjugare subducere c. Cardinal Wolsey's being in the height of Favour and Authority with King Henry VIII hated both Parliaments and the Common Laws and he was the means that but one Parliament was holden in Fourteen Years The Common Law was the true Natural and Original Law of England used ever since the departure of the Romans and brought in by the English Saxons again Qui suis tantummodò quas secum è Germanià whether they had transplanted them attulerant Moribus usi sunt only their ancient Customs and no other Caesarei Juris says learned Selden usus plane reperitur Nullus per Annos amplius Septingentos more than 700 years There was no Chancery-Law to determine matters of fact much less titles of Freehold by Depositions of Witnesses only or by an Absolute or Arbitrary Power in all that time of 700 years No Man was suffer'd to have a Civil Law Book in his keeping King Stephen by his Edict did forbid it The Saxons Danes and Normans owned no other Law than that Law which Anglorum Commune vocitamus says the famous Selden in his Dissertatio ad Fletam pag. 502 503 505 506 508. And Johannes Balaeus tells us that Theobaldus Cantuariensis Archiepiscopus quasdam Leges in Angliam attulerat sed eas ut Reipublicae nocivas Rex Stephanus perpetuo Parliamenti Decreto damnavit delevit incendi fecit The Common Law was in King Stephen's time and before says Selden the Study of Men that were otherwise Learned too Sed Moribus Majorum tantum patrioque utebantur illi Jure qùod ante ad nostra usque tempora Angliae Commune vocitatur and their Studies were furnished with the Presidents of Judgments and Copies of Reports of Law-Proceedings like those of our Year-Books and no other were cited in their Courts And the Students and Residents at the Inns of Courts who afterwards were the Countors or Pleaders were not Clerks or Sollicitors as many now adays are to the declining of that Noble Profession But the Sons of Noble Men and of the best of the Gentry as we read in Sir John Fortesâ—…ue in his Treatise De Laudibus Legum Angliae Juris Anglicani says Excellent Selden ut Supra 537. quod Commune vocitamus quae Gentis hujus Genio ab intimâ Antiquitate adaptatum fuit Singularis aestimatio atque inde non immeritò in eodem adhaesio constans sane pertinax In that great question says Selden in his Dissertation ib. 539. concerning the right of Succession to the Crown of Scotland referred by all Parties and Pretenders to the Decision of our King Edward I. Anno Regni 19. Anno Dom. 1292. about which they met at Norham in the Bishoprick of Durham It was Debated as a Praeliminary whether it should be judged and decided by the Law of England or of Scotland or the Caesarean or Civil Law as being the Jus Gentium see Riley's Placita Parliamentaria 143. in the middle of that Page our King Edward I being the Soveraign or Superiour Lord of Scotland It was concluded before Roger de Brabazon a Judge of the King's-Bench Sir Edw. Coke says Ch. Justice 2 Instit. 554. the King 's Delegate or Substitute for that Great and Noble Occasion That the Caesarean or Civil Law should by no means be allowed of Nè inde Majestatis Anglicanae Juri
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
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. 2â—… says Mr. Pâ—…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 â—…2 verses but here was nothing entrusted with the Priest or Judge of relieving against the pretended rigour or extremity of the Law in
the Chancellor will relieve and where not then neither the Subject can be assur'd how or when he may possess his own in peace nor the Practiser in Law be able to inform his Client what may become of his Suit Misera est Servitus ubi jus est vagum Cancellarius Angliae says Sir Hen. Spel. non aliter tenetur Decretis suae Curiae vel sui ipsius quin elucente novà ratione Recognoscat i. e. he reviews quae voluerit mutet deleat prout suae videbitur Prudentiae A certain late Author in his Preface to his Book entituled The happy future State of England Printed 1688. cites Leo Afer who tells us That the Inhabitants of the Mountain Magnan on the Frontiers of Fez have not any settled Judicature nor certain Law but for deciding of Controversies when they happen they stop some Travellers passing that way to give Judgment in them and they desray the charges of their stay This is speedy and cheap but very uncertain in the Decision they might as well determine by casting Lots But we in England have contrary Laws as some do imagine so that we serve two Masters that are divided in their Commands and command contrary things and the one undoes what the other does These are like divers Weights and Measures which are an Abomination to the Lord Prov. 20. 10. In one Court they measure Men's Actions and Rights by one Rule in another Court the same Actions again by contrary Rules as if there were Two contrary first Principles and Deities in Nature as the Marcionites and Manichees held the one benign kind and indulgent the other rigorous and destructive to Mankind The People of England have a Right to be Govern'd and their Lives and Estates Subjected to no other Laws but such as are of their own chusing to which they consent according to that most excellent Preamble to the Stat. of the 25. H. 8. Cap. 21. The Laws of England as the Preamble tells us have been taken by the People of England at their free Liberty by their own Consent to be used among them as the Customs and Ancient Laws Originally Established and not otherwise Sir Francis Bacon in his Resuscitatio pag. 65. in his Speech upon taking his place of Chancellor tells us that the Roman Praetors whose Office had the greatest Affinity with the Jurisdiction claim'd in the Chancery used to set down at their Entrance how they would use their Jurisdiction and he acquaints us with the Excellent charge given him by King James I. at the delivery of the Seal to him viz. To contain that Jurisdiction in its due limits without swelling or excess The excess or tumor says Sir Fr. arises ist from that Courts embracing Causes meerly determinable and fit for the Common Law For the Chancery is ordain'd says he to supply the Law not to subvert it Tho' by his favour the supplying of a Law is the proper work of a Parliament 2. The Tumor arises says Sir Fr. from neglect of the Assistance of the Judges in Cases of Difficulty especially if they touch upon Law The Power says he in his advancement of Learning of moderating Laws little differs from the power of making them Vinius the Civilian sets forth the true Office of the Roman Praetor pag. 16. Neque praetor aliud quam Magistratus fuit Juridicundo non Condendo Custos Juris non Arbiter and again pag. 12. Neque ante Lex vi suâ constat Civesque ad Observationem vel paenam obligat quam populo innotescere potuerit quod sine promulgatione sive publicatione aliquâ fieri non potest To every good Law of Man it is requisite that it be manifest among other Properties says Dr. and Student 4 Chap. pag. 7. b. Now How is that Law manifest that depends upon the sudden Opinion and Judgment of One Person who guides that Opinion and Judgment not by any positive certain and particular Rule or Law clearly defin'd but according to that large and indefinite Rule Secundum Aequum Bonum which is directly contrary to the temper and mind of the Common Law of England which delights in certainty Sir Fr. Bacon in his Advancement of Learning pag. 436. The first Dignity of Law says he is That they be certain Certainty is so Essential to a Law as without it a Law cannot be just and pag. 444. That is the best Law which gives the least Liberty to the Arbitrage of the Judge and he is the best Judge that takes the least Liberty yet afterwards this Grave Chancellor is not steddy to himself but is for allowing to Praetorian Courts of Equity Power of supplying the defects of Law which as I said before does belong to the Parliament only and herein he seems under favour not to be so consistent with what he himself writes in his other Treatise It is very well observ'd by Dr. Barrow in his Treatise of the Pope's Supremacy pag. 255. The means and methods by which Power and Jurisdiction from small and modest Beginnings arrive at last to a strange Height and Exorbitancy The Patriarchate Power says he of the Pope can no otherwise be claimed but by his Invasion and Assumption ibid. 256. The Pope's universal Sovereignty and Jurisdiction hath no real Foundation either in Scripture or elsewhere and pag. 257. he shews by what means so groundless a Claim and Pretence gained Belief and Submission to it Eminency of any kind in Might in Place c. does easily pass into advantages of real Power and Command over those that are inferiour c. Any small Power is apt to grow says he and spread it self into a Flame c. and pag. 261. All Power is attended by dependencies of Persons enjoying subordinate Advantages under it which do grow proportionably by its encrease enjoying Wealth excessive Fees Credit Support Privileges and Immunities thereby Let us look into the beginning of that late Jurisdiction of the President and Council in the North. In the Annals of Queen Eliz. Printed 1630. Lib. 2. pag. 68. in the Reign of King H. 8. says that nameless Author when the Rebellion in the North about suppressing the Abbies was pacified whilst the Duke of Norfolk stayed in those parts many Complaints were brought unto him of Wrongs done in the Rebellion Some of them he compounded himself and some of them he committed to Men of Wisdom under his Seal to be by them Compounded which when the King understood he sent him a peculiar Seal to use in these Causes and the same Seal he committed after the Duke was called back to Tunstall Bishop of Duresme and appointed to him Assistants with Authority to hear and determine the complaints of the poor He was then first of all named President and the Authority of his Successors hath ever since encreased very much This Presidentship says the Annals which is now full of Honour hath from a poor beginning grown up in a short time to this Greatness See Sir