be Justices of Gaol-delivery in every County And he granted to the said Justices that they should have the keeping of the Records of the Pleas pleaded before them But they were not to rase or amend their Rolls or to make Record contrary to their Enrollments Also that the power of the Justices should be limited in such manner that they exceed not the points contained in the Writs or Presentments of Jurors nor complaints to them made saving such incident matter as without which the original causes could not be determined And he utterly forbids and prohibits that any shall have power to amend any unjust or erroneous Judgment of his Justices but only those Justices which followed Him and his Courts who thereunto were by him entitled or Himself or his Councel for that matter he specially reserv'd to his own Jurisdiction He forbids also all his Coroners and Justices except his Seneschal his Steward and his Justices of Ireland and Chester to make any Deputies to do any thing whereof they ought to make record without the King's leave He will'd also That in Counties Hundreds and in the Courts of every frank Tenement there should be Courts held by the Suitors and also in Cities Towns Boroughs and Franchises c. Besides this Book written by King Ed. 1.'s command and in his own name a while after there was another Book written by whom it is not known called Fleta and it was in the Reign of Ed. 2. or 3. And that Author says That Judgment is a threefold act Fleta lib. 1. cap. 17. fol. 16. of three persons at the least the Judge the Plaintiff and the Defendant without which there can be no Judgment Nor says he can any one Judge in temporal matters but only the King or his Substiutes and Delegates And the same Author in his Tract of the diversity of Courts Fleta lib. 2. fol. 16. says as followeth The King hath a Court in his Councel in his Parliaments when present the Prelates Earls Barons Nobles and other skilful men who are to determine the doubts of Judges and where upon appearance of any new sort of injuries new remedies are provided and where Justice is to be rendred to every one according to what belongs to him He hath also his Court before his Steward in Aula sua in his Hall who now says he supplies the place of the Capitalis Justiar ' whereof mention is made in the common Writ of homine replegiando who was wont to hear the Kings own Causes to rectifie false Judgments and to do Justice to Complainants without Writ whose Power in part the said Steward of the Kings Houshold hath Also the King hath his Court of Chancery in several places in his House He hath also a Court before his Auditors specially appointed to be near the King whose Office extends but to the Justices and others of the Kings Ministers ☞ to whom there was no power granted to determine what they heard but to relate the matter to the King that he might direct punishments according to the quality of the Offence He hath also his Court and Justices as well Knights as Clergy-men locum suum tenentes in Anglia before whom and not elsewhere unless before Himself and his Council and special Auditors false Judgments and Errors of Justices are reversed and there are determined Writs of Appeals and other Writs upon criminal Actions and injuries contra pacem He hath also his Courts and his Justices residing in the Exchequer and also in Banco now called the Common-Pleas at Westminster and some are assign'd for Gaol-deliveries in every County and some are affigned to take Assizes generally in every County and some are itenerant and constituted to hear and determine all criminal and civil Pleas. Also the King hath his Justices itenerant to hear and determine the Pleas of the Forest and he hath his Court in every County and in the Sheriffs Turn and in Hundreds and in the King's Manors Cities and Boroughs as in the Hustings of London Lincoln Winchester York and other places And the same Author having afterwards treated more particularly of what Jurisdiction the King had delegated to every Court Fleta l 2. f. 75. cap. 33. he writes thus of the Chancery There is amongst the rest a certain Office called the Chancery which ought to be committed to the care of some prudent man as a Bishop or Clergy man of great dignity together with the care of the great Seal of England under whom are all the Chancellors in England Ireland Wales and Scotland and all Keepers of the Kings Seals except the Keeper of the Privy Seal to whom are associated Clerici honesti honest and circumspect Clerks sworn to our Lord the King and who in the Laws and Customs of England have ample knowledge whose Office it is to hear and examine the Complaints of Complainants and to grant due remedy by the King 's Writ according to the nature and quality of the wrong And there he treats at large of the Officers Clerks and Business of the Chancery which was to make out Remedial or Original Writs and Judicial Writs also upon Recognizances and Contracts made in the Chancery and enroll'd there but not one tittle or mention is there made by any of the said Authors of any Superiority the Lord Chancellor or Lord Keeper or the Court of Chancery had over the Proceedings of any of the other Judges either to examine correct or rectifie their Judgments or stop execution thereof upon any account colour or pretence whatsoever which is a most convincing proof the Chancellor then had no such power SECT III. What is meant by Judging according to Equity and by Whom it was anciently performed HAving laid the foundation of my present purpose upon what I find in the fore-mention'd Authors I think it not amiss to say somewhat touching their credit and first of all that which gives them a reputation with me is that they set down what they themselves of their own knowledge knew to be true they relate what the Law was at the time of the writing of those Books they took nothing upon trust from other hands but set down what they themselves knew to be practice Next they were men of great Eminency Bracton was a learned Judge and it was his zeal to Justice induc'd him to write Britton was a Book writ by the King 's own command and publish'd by his approbation and the others Mirror and Fleta have always had a great reputation amongst the English Lawyers not only ancient but modern and Sir Edward Cooke who once was honour'd with the title of the Oracle of the Law in his first Institutes in every page almost quotes those Authors for proof of his assertions and so doth Stanford in his Pleas of the Crown from whence I conclude that what they wrote for Law was Law then and if so it is Law now saving wherein-it it is alter'd by the Kings Parliamentary Act nothing less than
all substituted and delegated Jurisdiction was derived from Him only and under such limitations as he directed so as the Judges did act justly the main charge of administring Justice being on Him and he frequently sate himself in Judgment assisted by his Capitales Justiciarios à latere suo residentes who assisted him in the exercise of his Jurisdiction and eas'd him of trouble but they never pretended to deprive him of his power of hearing and determining himself or changing his Judges or assigning them Jurisdiction as should be needful according to the modern Doctrine of some for he had both complete Jurisdiction and designationem Justiciariorum in himself and it was upon good reason this power was originally placed by God in Kings and consented unto and approved of by good men for by the assistance of and reasoning with their Judges they could never fail of discerning right Judgment and their affection to their Subjects like a good Father to his Children being equal to all it is not likely they should be partial in their Judgments and their Royal Estate is such as not to value Bribes or Rewards So that there is not so much reason to fear Injustice from a King as from a profess'd Lawyer like my self whose aim and design perhaps from his Horn-book was gain and profit and to raise himself a Name and Family in the world I can but wonder then whence started that humour in men rather to trust any body in deciding their Controversies than the King sure it could be from no just Principle Besides the fore-mentioned Author Bracton there are others of the same standing that maintain the same Doctrine The next I shall name is one Horn who about the time of Edw. 1. compiled a Book Of the Laws and Vsages of England a great part whereof as Sir Edward Cooke in his Preface to the 9th part of his Reports affirms were such Laws as the Kingdom was govern'd by for about 1100 years then past to which Book he gives a mighty credit and in matters of difficulty is very frequently his ipse dixit and that Author says Mirror 232. That Jurisdiction is the chiefest Dignity that appertains to the King and thereof he says there are two sorts and he calls them ordinary and assign'd which are the same with Original and Delegated as the other Author terms them Ibid. 23.2 Jurisdiction Tays he can be assign'd by none but by the King and he may do it because be cannot without assistance perform such a charge and therefore it was of old ordained that there should be a Seat and a Chancellor to keep it and grant Writs remedial to all Complainants without delay This was the Chancellors Province then And again he says Ibid. 234. Jurisdiction est un porat a dire Druit a power of commanding right to be done and this power God gave unto Moses and such as hold the like place as he and this power belongs unto the King within his Dominions and He by his Authority-Royal makes his Justices in several degrees Ibid. 235. and doth limit to every one his power after several manners And there he enumerates divers sorts of Commissions and Courts and speaking of the chiefest Justices of all he says They determin'd matters more or less according to the nature of their Commission From whence also it follows there were no Judges that had or pretended to have any Jurisdiction originally or fundamentally in themselves but what all of them had was by deputation and delegation from the King Furthermore Edm. 1. out of his Princely care that his people should be govern'd by certain and known Rules caused the Laws and Rules of Government Britt so 1. and disposition of Property which then to fore had been used in the Kingdom to be put in writing and publish'd in his own Name and at the same time commanded the use and practice of those Laws in all points throughout his whole Dominion saving and always reserved to himself the power of repealing altering and amending of them as should seem good to him with the assent of his Earls Barons and others of his Councel and saving such Usages and Customs as had been time out of mind used so that they be not discourdants a droft And there he proceeds in this manner viz. En primes en droft de nous mesmes nostre Courte avouns issint ordeyne c. which is to this effect That first of all in the right of Himself and of his Court because he could not in his own Person hear and determine all the complaints of his people and to the end that his charge should be divided as is thereby appointed he did ordain and his will and pleasure was That his own Jurisdiction should be superiour to all the Jurisdictions in his Realm So that in all manner of Felonies Trespasses Contracts and in all manner of Actions real and personal he had power to give and cause to be given such Judgments as thereto belonged without any other Process where he knew the direct truth as Judge And there also he appoints That the Steward of his Houshold should represent Him within the Verge and he assigned him his Jurisdiction which was to hear and determine the presentments of Articles which concern the Crown whensoever it should seem good to the King And moreover he will'd that Justices in Eyr should be assign'd to hear and determine those Articles in every County and in every Franchise from seven years to seven And there he gives the like power to his Justices of Ireland and Chester and wills further That the Count or Earl of Norfolk by himself or some other Knight should always attend upon the King and his Steward within the Verge of the King's House so long as he should hold the Office of Marshal And there he appoints the Jurisdiction of the Justices assign'd Britt fo 2. to follow the King and be where He was if in England and that they should have conusance to amend false Judgments to determine Appeals and other trespasses done against the Kings Peace and Jurisdiction He also appointed a Coroner to be in the Kings House and in every County un Viscount a Sheriff and that under those Sheriffs there should be Hundreders Serjeants and Bailiffs who should attend upon the Sheriffs He also appointed Coroners in every County and allotted them their Jurisdiction And moreover his will and pleasure was That there should be Justices always residing at Westminster or elsewhere where he should appoint to determine such common Pleas as the King should command them by his Writs so as the Pleadings arising thereupon should be recorded He settled the Jurisdiction of the Exchequer Court and ordained That there should be Justices assign'd for every County to have conusance in such causes as the King should command by his Letters-Patents touching Pety-Assizes and of other things whereof the Kings will should be they should make record and that there should
Justices of both Benches and made his Decrees according to their Opinion As for instance In the Year-book of the 37th of H. 6. fo 13. the Case was That one A. had bought of J. R. several Debts due to J. R. from several persons and A. gave a Bond to J. R. for the sum And forasmuch as those Debts were but things in Action and no Property was chang'd nor no Action accru'd by the bargain to the said A. but the Debtors remained Debtors still to the said J. R. so that A. had nothing for the money secured by the obligation A. prays in Equity to be discharged of the said Bond against J.R. and prays a Subpaena against J.R. and it was granted and the Defendant answered and the Chancellor because the matter seemed doubtful to him adjourn'd it to the Exchequer-Chamber before himself and the Justices of both Benches and there it was debated and by the Opinion of all the Justices because the said A. had not quid pro quo by that bargain therefore the Bond ought to be released and it was decreed accordingly The like will appear to be done by the Book-cases following 37 H. 6. f. 35 36 39 H. 6. f. 26.7 E. 4. f. 14 c. And if he did not adjourn the Causes into the Exchequer-Chamber he always had the Judges or some of them with him at all hearings and decreed according to their Opinions for the entry of the Decrees in Chancery of H. 6.'s time are after this manner Els Off. of Chan. fo 51. says the Author cited in the Margin viz. Consideratum est per Curiam ex assensu Johannis Fortescue Milit ' Capital ' Justiciar ' Domini Regis ad placita tenenda diversorum aliorum Justiciariorum servient ' ad legem in Curia praesent ' existent ' quod c. and sometimes it was ex assensu omnium Justiciar ' utriusque Banci and sometimes of one or two Justices but before the end of that King's Reign the manner of entry of the Decrees was somewhat altered and was in this manner Considerat ' Adjudicatum Decret ' est per Cancellarium per Curiam Cancellar ' without particular mention of any Justices or others and so it continued till H. 8.'s time But towards the end of his Reign whereas before that time the Decrees were in Latine and in very few words and entred on the back-side of the Bills they then began to be drawn up in English apart by themselves and therein reciting the Bill and Answer and afterward were enroll'd in Rolls by themselves The ancientest of that nature that I can find are in the Rolls Chappel and are of the 27th and 28th of H. 8. when Sir Thomas Audley was Chancellor In Queen Maries days the entry of all the Decrees is That it is Ordained Adjudged and Decreed by the Lord Chancellor and by the whole Court of Chancery That so and so and after the same manner it is at this day saving that the conjunctive clause And by the High-Court of Chancery which in the beginning was not incerted in vain is now altogether superfluous and impertinent for the Lord Chancellor or Lord Keeper without the assent or consent of any other have made Decrees for some years past according to his own liberum arbitrium as I shall shew in the next Section SECT IV. Of the modern and present Power and Jurisdiction of the Court of Equity in Chancery IN the Chancery are two Courts C. 4. Inst fo 79. one Ordinary wherein the Lord Chancellor or Lord Keeper of the Great Seals proceeds according to the right line of the Law and if he gives an Erroneous Judgement Plowd 393. que B.R. est le Pluis hault Court Dyer 315. there a Writ of Error lies returnable in the Kings Bench the other is Extraordinary wherein the Chancellor ought to proceed according to the Rule of Equity which according to what it is now taken is what is according to the Chancellor's single Conscience quecunque Els Office of Ch. fo 41. sit it is say some an absolute Power without controul other then in Parliament and spreadeth it self most largely without any Limitation it stops the proceedings of all the other Courts at Westminster it renders all their Judgements vain and ineffectual durante bene placito of the Chancellor or Keeper and stops Execution untill his Conscience be satisfied whether the Plaintiffs at Law ought to go on or no by which means when a man hath a Judgement fairly obtain'd at Law or intends to Sue there for a Just and True Debt if the Defendant at Law becomes Plaintiff in Chancery and he or his Councel hath but Invention enough to suggest any sort of Equity there 's an Injunction had of course until the Plaintiff at Law can put an Answer to the Bill which if he lives any thing remote from London it will take up a Month or two's time or more to send an Answer and in the mean time the Debtor prepares his Bag and Baggage and by that time the Injunction can be Dissolv'd which cannot be without a considerabe Charge the Gentlemen is perhaps got to Ireland Jamaico or Japan What ever is now finally determin'd in Equity in Chancery it is done by the Chancellor or Lord Keeper alone and though the Clerks and Registers retain in drawing up their Decrees somewhat of the old form ziz That it is Decreed by the Lord Chancellor or Lord Keeper and by the High Court of Chancery which implyes there were some others ought to have a hand in making the Decree yet there is none that now have for though there are two at least of twelve that bear the name of Masters in Chancery and heretofore were accounted Socii and Collaterales to the Chancellor that daily sit in Court one on each side of the Lord Chancellor or Keeper yet they are now but as his Attendants and speak not a word in determining any Causes their only business being to wait and expect how many References the Lord Chancellor will make to them touching insufficient Answers Scandalous Bills or Answers Contempts stating of Accounts and the like they being to have a Fee for their Report therein yet that Report is subject to the controul of the Chancellor or Keeper if he pleases And if at any time which is but seldom any of the Judges are sent for it often proves to be meerly out of Formality for their Opinions are seldom regarded It is said of the Chancellor and Keeper of the Great-Seal of England Els Office of Cla fo 6. that he is like the Roman Praetor in whose Constitutions there were said to be two kinds of Powers one was when without the Advice of the Judges he would Manumittise Emancipate Award Possessions of Lands and Goods Commit Wardship of Pupills and grant Injunctions as he thought convenient The other sort of Power the Praetor had was when he proceeded to Judgment according to Leges Regis
4 Institutes and certified by them to the Chancellor was comply'd with by him and what was decreed by the major part of the Commissioners joyn'd with the Lord Keeper in the Case of Matthews and Matthews before-remembred was confirmed and prosecuted by the Lord Keeper as Lord Keeper in and according to the course of Chancery and so in the case of Sherburne and Townley and had been so also in the case of Pennington and Holmes before-mentioned if there had been any alteration of the Decree for the confirmation of that Decree by virtue of the Kings referrence is entred as an Act of that Court so that I think that point is also pretty clear And I presume the enrolling or performing of a Decree before Petition to the King or before obtaining his Commission or Order of referrence which are both as sufficient one as the other there being a sufficient number of Precedents of both sorts is no hindrance but that restitution may be awarded if the Commissioners and Referrees make certificate to the Chancellor or Keeper that it ought to be so for the enrollment of a Decree doth not make it more irrevocable then it was before the enrollment but that notwithstanding it may be altered in the same Court for it is not a Record and in that respect not so high in the eye of the Law as a Judgment according to the course of the Common-Law which cannot be revers'd in the same Court and this was so held in H. 8.'s time 27 H. 8. fol. 15. in a Cause in Chancery before mentioned in the 6th Section between the Prior of St. Johns and one Dockeray where upon a review in Chancery before the Lord Chancellor the King 's Secretery and Mr. Fitz-Herbert it was held and allowed that a Decree there is but an Order made by the Court for the time which upon good consideration and cause shewn may well be altered notwithstanding all the arguments then made by the Councel for the first Decree to prevent inspecting into it as that such looking back tended to confusion and would make Causes endless and the like whereunto the Kings Secretary sitting then in equal authority with the Chancellor as appears by the Report made answer and commanded the formal man that was against inspecting the injustice of the Decree to forbear disputing the Power of that Court and such was the practice of the late Lord Chancellor Nottingham who would often rehear and re-hear again and again upon Councels certifying it under their hands that there was good Cause The Cause between Thacker Redman was several times heard by the Lord Nottingham and heard again by the Lord Keeper North on the 20th of April 35 Car. 2. after the Decree enroll'd and upon that hearing a Tryal at Law directed which must occasion another hearing as they apprehended for such rehearing his frequent saying being that the nimbleness of a Clark in enrolling his Decree should not hinder him from coming at Justice and that he would leap over Hedge and Ditch to do it and doubtless it is the true and proper power of that Court of Equity so to do And though it doth of descretion entertain some Forms yet it may and ought upon occasion to leave them rather then tie up its own hands from doing Justice for it hath Potestatem absolutam secundum probata Judicare 9 E. 4. f. 15. and if ever any Chancellor did amiss in that respect it was in that he would leap lustily for some but would not hop over a straw for others I wish none in that great place be ever more guilty of the like partiality It appears from what is before-mentioned that the Court of Equity in Chancery is the King 's high Court of conscience for moderating the rigor and supplying the defects of the Common-Law and he may order it and limit the Jurisdiction thereof as to him seems most agreeable to Equity and Justice a further instance whereof appears by an Enrollment of a Commission now to be seen in Chancery At the Rolls 6 pars 14 Jac. nu 25. beginning thus JAMES by the Grace of God c. wherein it is mentioned That the Attorney-General and the rest of the Kings Councel learned in the Law had been commanded to consider and certifie to the King if the Chancery might relieve according to Equity after a Judgment at Law and therein is mentioned the consultation had by the Kings Councel thereupon and their reasons on the point and the Roll ends thus We in Our Princely judgment having well weigh'd with mature deliberation considered of the said several Reports of Our learned Councel and all the parts of them c. Do will and command That Our Chancellor or Keeper of the Great Seal for the time being shall not hereafter desist to give to Our Subjects upon their several complaints now and hereafter to be made such relief in Equity notwithstanding any former proceeding at the Common-Law against them as shall stand with the true merits and Justice of their cases c. And for that it appertains to Our Princely care and Office only to be Judge over all Our Judges and to discern and determine such differences as at any time may or shall arise between Our several Courts touching their Jurisdiction and the same to set and to decide as We in Our Princely Wisdom shall find to stand most with Our Honour and the example of Our Royal Progenitors in the best of times and the general Weal and Good of Our People for which We are to answer to God who hath placed Vs over them Our will and pleasure is That Our whole Proceedings herein by the Orders formerly set down be enroll'd in Our Court of Chancery there to remain of Record for the better extinguishment of the like Question that may arise in future times Decimo octavo Julii Anno Regni Regis Jacobi quarto decimo per ipsum Regem But after all I have said if there be any that have considered the premisses and will still deny the Kings Power I must also say That for determination of the matter the opinion of his Majesties learned Judges is to be the Touch-stone therefore for a further inducement to enquire further of them touching this matter which is my principal aim hereby I shall in the next place give a hint of the inconveniences that do happen for want of this course of Proceeding SECT VII The Inconveniencies that accrew for want of a constant Relief against Erreneous and Unjust Decrees in Chancery TO apprehend the mischiefs that may ensue for want of a constant and permanent practical Power to controll and rectify mistaken Decrees in Chancery it is a necessary to look back to the fourth Section for the Power of that Court and how far it extends which is there set down in some measure It is also considerable how ill some Chancellors have us'd this their so great unlimited Power which appears in the Lord